BarBri Bar Review Hangout - July 2015 Exam

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charlesxavier
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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby charlesxavier » Sun Jul 26, 2015 12:40 pm

Charger wrote:
musicfor18 wrote:
Charger wrote:Can someone clarify remittitur and additur and when each can be used in federal court and in CA?


Remittitur can be used in federal and state court. Additur can only be used in state court because it violates the 7th Amendment. The reason state courts can use it is because the 7th Amendment hasn't been incorporated to apply to the states. In terms of when they're used, I think remittitur is used when a D moves for a new trial on the ground that the jury awarded excessive damages. If the judge agrees, the judge can give the D a choice of accepting a lower judgment or having a new trial. Additur is the opposite. If it appears the jury's damage award was lower than any reasonable juror could have found, then the state judge can give the P a choice between accepting a higher damage award or getting a new trial.


I'm confused. Critical Pass cards say, "Federal court cannot reduce jury award (violates 7th Amendment) but judge can order a new trial or offer remittitur or additur if convinced award is too high or low."

So the CP cards are making it seem like both can be used, provided that the party making the motion is given the choice of adding/reducing award and a new trial. Are the cards just wrong?


Additur--judge offers that D can pay more or new trial (not allowed in federal court)

Remittitur-- judge offers that P can accept less or new trial. Judge must offer, it cannot simply lower.

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BVest
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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby BVest » Sun Jul 26, 2015 12:44 pm

Charger wrote:I'm confused. Critical Pass cards say, "Federal court cannot reduce jury award (violates 7th Amendment) but judge can order a new trial or offer remittitur or additur if convinced award is too high or low."


Yeah, the court isn't reducing the jury award, he's offering a new trial. But before doing so, he's saying "but, we won't have to go through this new trial if y'all agree to this amount of money that is less than the jury awarded." And the courts have held that this does not violate the 7th amendment when done this way, but that the judge can't unilaterally say "well the Jury said 2x but I'm entering a judgment for x, and I don't care what you think."

musicfor18
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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby musicfor18 » Sun Jul 26, 2015 12:45 pm

Charger wrote:
musicfor18 wrote:
Charger wrote:Can someone clarify remittitur and additur and when each can be used in federal court and in CA?


Remittitur can be used in federal and state court. Additur can only be used in state court because it violates the 7th Amendment. The reason state courts can use it is because the 7th Amendment hasn't been incorporated to apply to the states. In terms of when they're used, I think remittitur is used when a D moves for a new trial on the ground that the jury awarded excessive damages. If the judge agrees, the judge can give the D a choice of accepting a lower judgment or having a new trial. Additur is the opposite. If it appears the jury's damage award was lower than any reasonable juror could have found, then the state judge can give the P a choice between accepting a higher damage award or getting a new trial.


I'm confused. Critical Pass cards say, "Federal court cannot reduce jury award (violates 7th Amendment) but judge can order a new trial or offer remittitur or additur if convinced award is too high or low."

So the CP cards are making it seem like both can be used, provided that the party making the motion is given the choice of adding/reducing award and a new trial. Are the cards just wrong?

Edit: also, additur means adding to the jury award, right? Which you say can be used in state court only. But the critical pass cards say federal court cannot reduce award, which would be remittitur, right? I'm so confused.


The CP cards are mostly right. It's correct that the judge can't lower the damage award, but the judge can give the D a choice of accepting a lower damage award or having a new trial. If the CP cards say additur is permissible in federal court, they're wrong. The Supreme Court has held that it violates the 7th Amendment. The only reason it's allowed in state court is that the 7th Amendment doesn't apply to states.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby kyle010723 » Sun Jul 26, 2015 12:47 pm

musicfor18 wrote:The CP cards are mostly right. It's correct that the judge can't lower the damage award, but the judge can give the D a choice of accepting a lower damage award or having a new trial. If the CP cards say additur is permissible in federal court, they're wrong. The Supreme Court has held that it violates the 7th Amendment. The only reason it's allowed in state court is that the 7th Amendment doesn't apply to states.


Are we sure about additur does not apply in Fed Court? It can apply if it is sitting in diversity right?

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charlesxavier
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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby charlesxavier » Sun Jul 26, 2015 12:51 pm

kyle010723 wrote:
musicfor18 wrote:The CP cards are mostly right. It's correct that the judge can't lower the damage award, but the judge can give the D a choice of accepting a lower damage award or having a new trial. If the CP cards say additur is permissible in federal court, they're wrong. The Supreme Court has held that it violates the 7th Amendment. The only reason it's allowed in state court is that the 7th Amendment doesn't apply to states.


Are we sure about additur does not apply in Fed Court? It can apply if it is sitting in diversity right?


This is mostly right but with remittitur judge gives the Plaintiff the choice between accepting less money and a new trial (not the D).

It's on page 78 of the long Civ Pro outline:

"When offered remittitur, the plaintiff is given the choice between accepting an award less than that given her by the jury or submitting to a new trial"

"The judge...may not offer the defendant the choice of accepting a higher award or submitting to a new trial. Additur has been held to violate the 7th Amendment (which is not applicable to the states)."

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BVest
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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby BVest » Sun Jul 26, 2015 12:52 pm

kyle010723 wrote:
musicfor18 wrote:The CP cards are mostly right. It's correct that the judge can't lower the damage award, but the judge can give the D a choice of accepting a lower damage award or having a new trial. If the CP cards say additur is permissible in federal court, they're wrong. The Supreme Court has held that it violates the 7th Amendment. The only reason it's allowed in state court is that the 7th Amendment doesn't apply to states.


Are we sure about additur does not apply in Fed Court? It can apply if it is sitting in diversity right?


There's no case law either way, besides Erie. Since no one knows whether they could use additur for a state law case, it's not a testable question on an exam that's supposed to have right answers.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby kyle010723 » Sun Jul 26, 2015 12:52 pm

BVest wrote:
kyle010723 wrote:
musicfor18 wrote:The CP cards are mostly right. It's correct that the judge can't lower the damage award, but the judge can give the D a choice of accepting a lower damage award or having a new trial. If the CP cards say additur is permissible in federal court, they're wrong. The Supreme Court has held that it violates the 7th Amendment. The only reason it's allowed in state court is that the 7th Amendment doesn't apply to states.


Are we sure about additur does not apply in Fed Court? It can apply if it is sitting in diversity right?


There's no case law either way, besides Erie. Since no one knows whether they could use additur for a state law case, it's not a testable question on an exam that's supposed to have right answers.


There you go, so it wouldn't be on the exam, haha.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby Charger » Sun Jul 26, 2015 12:56 pm

Very helpful, all. Thanks!

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby musicfor18 » Sun Jul 26, 2015 1:28 pm

charlesxavier wrote:
kyle010723 wrote:
musicfor18 wrote:The CP cards are mostly right. It's correct that the judge can't lower the damage award, but the judge can give the D a choice of accepting a lower damage award or having a new trial. If the CP cards say additur is permissible in federal court, they're wrong. The Supreme Court has held that it violates the 7th Amendment. The only reason it's allowed in state court is that the 7th Amendment doesn't apply to states.


Are we sure about additur does not apply in Fed Court? It can apply if it is sitting in diversity right?


This is mostly right but with remittitur judge gives the Plaintiff the choice between accepting less money and a new trial (not the D).



Yep. Stupid mistake on my part.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby musicfor18 » Sun Jul 26, 2015 1:30 pm

BVest wrote:
kyle010723 wrote:
musicfor18 wrote:The CP cards are mostly right. It's correct that the judge can't lower the damage award, but the judge can give the D a choice of accepting a lower damage award or having a new trial. If the CP cards say additur is permissible in federal court, they're wrong. The Supreme Court has held that it violates the 7th Amendment. The only reason it's allowed in state court is that the 7th Amendment doesn't apply to states.


Are we sure about additur does not apply in Fed Court? It can apply if it is sitting in diversity right?


There's no case law either way, besides Erie. Since no one knows whether they could use additur for a state law case, it's not a testable question on an exam that's supposed to have right answers.


Can a federal court use additur when the case is not one where a jury trial is required by the 7th Amendment, but Congress (or a state, if diversity) has nevertheless granted the right to a jury trial by statute?

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby xChiTowNx » Sun Jul 26, 2015 1:44 pm

Going through essays - pretty much summarizing fact patter, looking at model answers for how they divided headings, and filling in from outlines, writing from memory if its a similar question.

Kinda worried that the trust/wills section essay q's are all involving will issues tho.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby BVest » Sun Jul 26, 2015 1:59 pm

I had never found the studysmart app until last night. Now I'm using it to procrastinate. My percentiles are really all over the place. 13th for torts (including 9th for duty/breach and 6th for privacy/defamation); 93rd and 90th for property and civ pro; medianish for everything else. My actual numbers correct are much tighter of course -- 46 to 68% for everything but civ pro.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby Kage3212 » Sun Jul 26, 2015 2:02 pm

Doing some crim law questions and trying to wrap my head around accomplice liability.

Does an accomplice need to have the specific intent that a crime be committed + aid, assist?

I could have sworn that I see answers that state "accomplice not guilty because no intent that crime be committed" and then "accomplice guilty because assistance foreseeably resulted in crime."

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby BVest » Sun Jul 26, 2015 2:10 pm

Kage3212 wrote:Doing some crim law questions and trying to wrap my head around accomplice liability.

Does an accomplice need to have the specific intent that a crime be committed + aid, assist?

I could have sworn that I see answers that state "accomplice not guilty because no intent that crime be committed" and then "accomplice guilty because assistance foreseeably resulted in crime."


Generally: Intent that crime be committed + intent to aid/assist wrongdoer as you stated. But when the mens rea for the underlying crime is recklessness or negligence, then those can replace the intent that the crime be committed. Also, if accomplice meets required mens rea for accomplice to one crime, foreseeable other crimes in the episode can also be charged against the accomplice.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby Kage3212 » Sun Jul 26, 2015 2:14 pm

BVest wrote:
Kage3212 wrote:Doing some crim law questions and trying to wrap my head around accomplice liability.

Does an accomplice need to have the specific intent that a crime be committed + aid, assist?

I could have sworn that I see answers that state "accomplice not guilty because no intent that crime be committed" and then "accomplice guilty because assistance foreseeably resulted in crime."


Generally: Intent that crime be committed + intent to aid/assist wrongdoer as you stated. But when the mens rea for the underlying crime is recklessness or negligence, then those can replace the intent that the crime be committed.


Question was a guy goes to a gun store, tells owner he wants a gun to rob. Owner charges him 4x price for gun. Guy takes the gun and robs a store and kills the clerk. Says that the owner is an accomplice for the murder. I have a tough time delineating here because I dont see any specific intent on part of the gun shop owner to have any specific intent that the guy commit a robbery. Sure he knew about it, but I didn't mere knowledge rose to the level of having specific intent that the crime be committed.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby N.P.H. » Sun Jul 26, 2015 2:17 pm

When is it required that a modification of a contract be written?

Only when there's a SoF issue? (ie the modification itself is within the SoF??)

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BVest
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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby BVest » Sun Jul 26, 2015 2:18 pm

Kage3212 wrote:
BVest wrote:
Kage3212 wrote:Doing some crim law questions and trying to wrap my head around accomplice liability.

Does an accomplice need to have the specific intent that a crime be committed + aid, assist?

I could have sworn that I see answers that state "accomplice not guilty because no intent that crime be committed" and then "accomplice guilty because assistance foreseeably resulted in crime."


Generally: Intent that crime be committed + intent to aid/assist wrongdoer as you stated. But when the mens rea for the underlying crime is recklessness or negligence, then those can replace the intent that the crime be committed.


Question was a guy goes to a gun store, tells owner he wants a gun to rob. Owner charges him 4x price for gun. Guy takes the gun and robs a store and kills the clerk. Says that the owner is an accomplice for the murder. I have a tough time delineating here because I dont see any specific intent on part of the gun shop owner to have any specific intent that the guy commit a robbery. Sure he knew about it, but I didn't mere knowledge rose to the level of having specific intent that the crime be committed.


That's an additional exception for providing the tools for the crime. Providing tools of a crime while knowing their purpose can apparently also replace intent that the crime be committed.

ETA: Apparently this is only the case where the tools provided are illegal or the seller has charged a high premium because he knows of the intended criminal use. See Conviser p. 9.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby Tiago Splitter » Sun Jul 26, 2015 2:21 pm

N.P.H. wrote:When is it required that a modification of a contract be written?

Only when there's a SoF issue? (ie the modification itself is within the SoF??)

If after the modification you'd need a writing, then you need a writing for the modification. So if I agree to lease you land for 18 months and then we change it to 14 months, we need a writing for the change because a lease for 14 months on its own requires a writing.

For sales of goods under the UCC if the contract says you always need a writing for modifications the contract controls. So normally a modification of a sale of goods from $600 to $400 would not need a writing since it's going under $500. But if the original contract said you always need a writing the original contract wins out, and the court won't enforce the modification without a writing.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby N.P.H. » Sun Jul 26, 2015 2:31 pm

Tiago Splitter wrote:
N.P.H. wrote:When is it required that a modification of a contract be written?

Only when there's a SoF issue? (ie the modification itself is within the SoF??)

If after the modification you'd need a writing, then you need a writing for the modification. So if I agree to lease you land for 18 months and then we change it to 14 months, we need a writing for the change because a lease for 14 months on its own requires a writing.

For sales of goods under the UCC if the contract says you always need a writing for modifications the contract controls. So normally a modification of a sale of goods from $600 to $400 would not need a writing since it's going under $500. But if the original contract said you always need a writing the original contract wins out, and the court won't enforce the modification without a writing.


So under the UCC we don't need a writing if the contract is silent on the issue and we're under $500?

Thanks man.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby kyle010723 » Sun Jul 26, 2015 2:42 pm

Just finished Mixed Set 7 and came in at 38/50. Most of my mistakes today were "[A] is not as good as [B]" type of errors... Oh well. I'm done with studying for the MBE.

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Killingly
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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby Killingly » Sun Jul 26, 2015 2:43 pm

I truly cannot stop watching Harry Potter.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby kykiske » Sun Jul 26, 2015 2:47 pm

kyle010723 wrote:Just finished Mixed Set 7 and came in at 38/50. Most of my mistakes today were "[A] is not as good as [B]" type of errors... Oh well. I'm done with studying for the MBE.


I'm around 35-38/50 on the Mixed Sets.

Reviewed some MPT answers. Got down my timing for reading the case file, library, and outlining the answer.

Going over some last-minute confusion about nuances in con. law, trusts, and corporations.

I don't think there's much left I can do.

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RaleighStClair
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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby RaleighStClair » Sun Jul 26, 2015 2:47 pm

Today's the first day in about a month (aside from the 4th of July) that instead of studying within an hour of waking up, I just sat down and watched a movie. I can't tell you how good it feels. Burnout is real, you guys.

I'll probably put in a few hours later today, but that's it.

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

Postby Tiago Splitter » Sun Jul 26, 2015 2:50 pm

N.P.H. wrote:
Tiago Splitter wrote:
N.P.H. wrote:When is it required that a modification of a contract be written?

Only when there's a SoF issue? (ie the modification itself is within the SoF??)

If after the modification you'd need a writing, then you need a writing for the modification. So if I agree to lease you land for 18 months and then we change it to 14 months, we need a writing for the change because a lease for 14 months on its own requires a writing.

For sales of goods under the UCC if the contract says you always need a writing for modifications the contract controls. So normally a modification of a sale of goods from $600 to $400 would not need a writing since it's going under $500. But if the original contract said you always need a writing the original contract wins out, and the court won't enforce the modification without a writing.


So under the UCC we don't need a writing if the contract is silent on the issue and we're under $500?

Thanks man.

Yep. If the contract is silent you use the same method as common law. No writing required if the new deal on its own would not have required a writing.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby DesperadoOfColumbia » Sun Jul 26, 2015 2:51 pm

RaleighStClair wrote:Today's the first day in about a month (aside from the 4th of July) that instead of studying within an hour of waking up, I just sat down and watched a movie. I can't tell you how good it feels. Burnout is real, you guys.

I'll probably put in a few hours later today, but that's it.



I'm watching Formula One and I have never enjoyed it as much since Jenson Button came back from last place in the rain to win the race on the last lap in Canada 2011, my goodness.I'm gonna CriPass/Leancards for a few and I'm done as well.




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