2017 February California Bar Exam Forum

[spartan4life]

Hello all. I've been seeing the discussion on impeachment and how it arose. I wanted to give my 2 cents. I think impeachment arose because there was a prior inconsistent statement. This is how I define a prior inconsistent statement: A statement that was made out of the current court proceeding that is different than what is now being said in court.

During Donna’s Pizza’s case-in-chief, Erin testified that she had the green light and that it was Pete who ran the red light. In rebuttal, Pete testified that, at the accident scene, Erin told him, “I was in a hurry to make a pizza delivery and that is why I ran the red light.”

From above, Erin's statement is a PIS because she told Pete something different at the actual scene versus what she said in court. Since it was not made under oath at a prior deposition or court hearing, it is only admissible to impeach.

[monkey law]

As for the impeachment issue-- as I remember it-- there was a witness that made a statement at the scene-- then later in the fact pattern, when questioned about the incident, the witness gave an inconsistent statement.

[InterAlia1961]

As for the impeachment issue-- as I remember it-- there was a witness that made a statement at the scene-- then later in the fact pattern, when questioned about the incident, the witness gave an inconsistent statement.

I see it, too. Six weeks too late. But yes, prior inconsistent statement. Damn, there are two issues I sailed right by.

[barexaminerssuck27]

My bar tutor will be sending me a list of issues that she spotted for these released essays.

If you're interested, check back soon. I will post when I get them from her.

Also, if you're interested in checking the points, look at Barbri essays rubric. She said their rubric is pretty close to the real thing.

Good luck everyone!!!!

[barexaminerssuck27]

Damn. There's was two impeachment issue. Erin and Donna. Impeachment was such a huge deal - practically the last paragraph. I bombed Evidence. I hope I didnt though

DAMN!

[InterAlia1961]

My bar tutor will be sending me a list of issues that she spotted for these released essays.

If you're interested, check back soon. I will post when I get them from her.

Also, if you're interested in checking the points, look at Barbri essays rubric. She said their rubric is pretty close to the real thing.

Good luck everyone!!!!

I'm interested. I'm fretting over the Evidence essay and the Remedies as well. I was optimistic at first, but now, I'm not feeling so confident. I might resume studying.

[I-object]

With respect to Sparten4life I see it a bit differently. I could be wrong.

After reading I can see how conveluted that 2nd to last paragraph was. It was probably designed that way to see if we could slow down carefully read and dissect, then put it back together to make sense of it, before writing the correct issue.

During Donna’s Pizza’s case in -chief, Erin testified that she had the green light and that it was Pete who ran the red light. Donna, the owner of Donna’s Pizza, then testified that Donna’s Pizza was not responsible for the accident. On cross-examination, Donna was asked whether she had ever offered to pay for any of Pete’s medical expenses, and she denied she had. Donna’s Pizza reste
.

Impeachement

First, its Donna, not Erin who is on cross examination.

My understanding is you can only impeach a witness on cross examination. You cannot impeach a witness while on direct. This means if you had a testifying witness whom you wanted to discredit for a prior inconsistant statement, or for other purpose, then you must call that witness back to the witness stand and cross examine that witness. This is especially true if that Witness is still available, presently at court. For example say W1 and W2 testify on their case in cheif. If you want to discredit W1 , you simply call W1 back to the stand under cross examination. You dont call W2 and impeach W2 on what W1 said. That isnt how it works.

Here Donna is under Cross examination, She was asked whether she had ever offered to pay for any of Petes medical expenses, and she denied that she had. (But the facts tell us that she in fact visited Pete at the hospital and offered to pay his medical bills).

So its Donna, not Erin who is the subject of impeachment. Can Pete impeach Donna?. I said that even though Donna is lying about offering to pay his medical bills, it cant come in anyway because Public Policy reason (offers to pay medical bills) wont allow it. I recall saying something to the effect that he could however ask her under Specific Acts if she visited him at the hospital because thats what she did and she is on the stand and Pete is asking her directly (not extrinsicly through another) I believe thats the impeachable part, but again her "statement" offering to pay medical bills does not come in.

I see what Sparten4life was saying. Its compelling and satisfies the prior inconsistent statement, but because Petes testimony about what Donna said, and because Erin was not on cross examination then I believe Erin was not being impeached.

Like I said I could be wrong, Let me know what you think

[I-object]

I forgot to address Erin's statements. I believe the issues there were non-hearsay and hearsay exception issues.

In rebuttal, Pete testified that, at the accident scene, Erin told him, “I was in a hurry to make a pizza delivery and that is why I ran the red light.”

Non-hearsay
admission from a party opponent. I said while this could have been admissible had Erin been a party, it was not admissible because it was Donnas case n chief. In other words Erin was not a party, thus not a party opponent.

Hearsay
Vicarious admission. Erin was however an employee of Donna, and made the statement while under the scope and duty of her employment, making pizza deliveries. So that admission comes in.

I agree there was a prior inconsistent statement, but I believe it applied to Hearsay not Impeachment. It comes in both as an exception, not to prove the truth of the matter asserted , but that the statement was made, and substantively to prove fault.

(I could be wrong here) Maybe there was a second impeachment issue, but I have to lean on the fact that Erin was not being cross examined.

Anyway that's my take based on the calls

[I-object]

One last note on what I said about prior inconsistent statement. Was just thinking, isnt prior inconsistent statement admissible only when the Witness is Unavailable?. Here Erin was available to testify, and in fact testified. Just wanted to correct myself regarding it coming in as an exception to hearsay. It is not because she was available.

Food for thought.

[InterAlia1961]

Just want to say how much I appreciate I-Object for speaking up here. I think there were likely points for discussing impeachment of Erin. Something like: Had Pete cross-examined Erin, blah, blah. But there was no straight up impeachment issue. I said that Donna's statement wasn't admissible, but that the fact that she came to the hospital was admissible to show her state of mind...guilt, to rebut her statement that she wasn't responsible.

I discussed relevancy heavily. Although, I misstated the rule for legal relevancy. I said something like it's legally relevant if it bears on an element of the claim or charge. It's undue prejudice. Whoops.

The witness doesn't need to be unavailable in order to impeach with a PIS. They have to be unavailable for a statement against interest. (San Francisco Fire Department.) You can impeach a non-available witness with a PIS to the same extent as an available witness. For example, let's say you managed to get an excited utterance admitted, "OMG, she's running into the street." Even if the witness wasn't available, you could introduce evidence that seconds before that the witness said, "She has no legs," as a PIS.

Anyway, I think you're correct about the impeachment issue on the whole. It was discussable, but not discussing it didn't tank you.

[spartan4life]

I agree. The prior inconsistent statement comes in as an exemption to the hearsay rule. That's what I wrote. I also briefly mentioned it as impeaching the credibility of Erin because prior inconsistent statements cast doubt on the credibility of a witness.

I believe you are both correct that impeachment did not arise because impeachment occurs on cross-examination and Erin was not being cross-examined. THAT'S GOOD TO KNOW! I probably forgot that little nuance because of all the material we have to cover for this damn test lol.

I can't wait to find out these results.

I haven't been able to get a non-law job because employers know I'm going to leave as soon as I find out my results either to: 1) study and retake the test again if I don't pass, or 2) to find a law related job if I do pass. It could also be that I'm over qualified.

I haven't been able to get a law-related job because attorneys are hiring for "permanent" positions and if I don't pass I'm not a permanent candidate.

For those of you who don't pass, please don't commit suicide. I heard of a Hastings grad who did in July 2016 because they didn't pass. If you think you have it bad, know that I'm on food stamps and surviving because I managed to save money before having to quit to study, I have my tax return, and have some family support. Finding a job as a law grad waiting for results is a struggle.

[barexaminerssuck27]

Please don't hate me. Here's my take. I have read the impeachment rule again. The rule says "WAS SUBJECT to cross-examination" concerning the statement. It doesn't mean that the declarant has to be cross-examined. Just needs an opportunity to be cross-examined. The bar examiners are tricky (look at my username)

Both Erin and Donna testified. Erin did not get cross-examined, but it could be argued that she COULD get cross-examined. She did testified afterall. I don't think missing any issue will tank you. However, I do think impeachment was a huge issue.



I am still waiting for my tutor's e-mail. She doesn't work on weekends so hopefully I will get a reply today.

Here's the rule: https://understandingevidence.com/2013/ ... 1d1-and-2/

[monkey law]

"During Donna’s Pizza’s case-in-chief, Erin testified that she had the green light and that it was Pete who ran the red light. Donna, the owner of Donna’s Pizza, then testified that Donna’s Pizza was not responsible for the accident.

On cross- examination, Donna was asked whether she had ever offered to pay for any of Pete’s medical expenses, and she denied she had. Donna’s Pizza rested.

In rebuttal, Pete testified that, at the accident scene, Erin told him, “I was in a hurry to make a pizza delivery and that is why I ran the red light.”

_______________________________________________________________________________________________________________________________

FRE 801(d)(1)(B), the prior statement as non-hearsay is admitted as substantive evidence.

FRE 613. Witness’s Prior Statement
(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.

(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).

Here Erin testified the light "she had the green light." Pete testified Erin previously stated "I ran the red light."

Since Erin's statement to Pete is inconsistent with her testimony to Pete it will be admissible as substantive evidence under 801(d)(1)(B) as non hearsay exception. (Note the statement would also satisfy the vicarious admission exception as well.)

Under FRE 613 (a) the statement is also admissible as impeachment evidence, however, the real issue here is the admission of Pete's statement as impeachment because it is extrinsic evidence. Therefore, there should be arguments on both sides to determine if the matter is admissible. This leads to a discussion of whether the testimony is collateral or not.

[monkey law]

Feb 2017 questions are posted.

[immikeyiiirock]

Interested in hearing people's new thoughts, questions, and anxieties after having the full essays and PTs available in front of them. :]

[InterAlia1961]

"During Donna’s Pizza’s case-in-chief, Erin testified that she had the green light and that it was Pete who ran the red light. Donna, the owner of Donna’s Pizza, then testified that Donna’s Pizza was not responsible for the accident.


In rebuttal, Pete testified that, at the accident scene, Erin told him, “I was in a hurry to make a pizza delivery and that is why I ran the red light.”

I argued something like this: Pete will argue that because Erin said she was in a hurry to deliver pizza, it shows that she was acting within the scope of her employment at the time of the accident, making the statement admissible as a vicarious admission. Donna will argue that speeding is not within the scope of Erin's duties, and therefore Erin was not acting in the scope of her employment and Donna's Pizza is not responsible for Pete's damages, nor is the statement admissible to show liability because it wasn't made in the scope of employment.

[monkey law]

InterAlia1961-

I agree that is a valid argument for admitting the statement as substantive evidence, but what I think others are saying is there was an impeachment issue that would allow the statement to be admitted for impeachment purposes, It is not that you are wrong, there were just a few more points available on the issue than what could be give for discussing the admission issue alone. Rest assured there are many other similar issues throughout the bar exam and everyone misses issues.

I think of the exam as more of a points game where a single issue is not as important as your overall performance. Relevance issues must be addressed with the introduction of every new piece of Ev. Then it must be authenticated. Then issues of character, hearsay, impeachment and privilege. If you missed an impeachment discussion it is really not that big an issue in this fact pattern, it is likely a 3 point issue, 5 at the most.

Therefore, if the graders state at 40 points when you find the correct area of law (40 is the minimum score for any single essay question) then we are really fighting for 30-35 points on any single essay. That will give us a 70 0r 75. I hope this will help ease the stress for you while you wait.

[InterAlia1961]

[quote="monkey law"
I think of the exam as more of a points game where a single issue is not as important as your overall performance. Relevance issues must be addressed with the introduction of every new piece of Ev. Then it must be authenticated. Then issues of character, hearsay, impeachment and privilege. If you missed an impeachment discussion it is really not that big an issue in this fact pattern, it is likely a 3 point issue, 5 at the most.

Therefore, if the graders state at 40 points when you find the correct area of law (40 is the minimum score for any single essay question) then we are really fighting for 30-35 points on any single essay. That will give us a 70 0r 75. I hope this will help ease the stress for you while you wait.[/quote]

Thanks. I keep reminding myself I only have to get to 70. Last time, I knew I failed. I struggled with both PTs, barely finishing, and was completely unprepared for Civ Pro, both on the MBE and the essays. This time, I only had to raise my MBE score four points (140 last time) and my written scores by five points each. I don't know if I passed, but I also don't know that I didn't. The stress is unreal. I hate Schroedinger's cat. Somebody kill it already.

No matter what happens, I can honestly say I was less fearful this time, and better prepared because of practice. I didn't guess on the MBE, even when I had no clue. The answer I chose was one that I reasoned to. I'm certain a couple were wrong, but I'm hoping that by taking the time to come to a conclusion put me ahead. On the essays that stressed me out, I gave myself permission to panic for a minute. I actually timed it on the Business essay. Then I started writing. Put something on the screen, anything. Once I started writing, I was fine. Except for the bankruptcy question on the Business essay. I was running out of time, so my answer was brief and unimpressive. I console myself with the fact that I finished.

[InterAlia1961]

I found a debrief of sorts regarding Question Number 2:

https://www.youtube.com/watch?v=G9xNCzls_HY

[monkey law]

I actually found Q2 quite easy. I did a fraud analysis under tort for the parking issue. Did foreseeability and speculation were big discussions, then compensatory, nominal, punitive.

I then did an analysis of the condo sale and the murder issue under contract law. I happened to know that Ca had a stigmatized property statue that required the seller to disclose. Therefore, it was foreseeable to the seller. I did a specific performance analysis to force the seller to purchase the property back. And I did an equitable lean on any assets that could be traced to the funds from the buyer in order to protect the assets during the process. There were a few other issues, butt that is the basic framework I used.

I know there are other ways to handle the issues. But liked being able to discuss both tort remedies and Contract remedies.

I hope I never find out how I did

Funny how we stress over points that we hope we never get to see.

[InterAlia1961]

I actually found Q2 quite easy. I did a fraud analysis under tort for the parking issue. Did foreseeability and speculation were big discussions, then compensatory, nominal, punitive.

I then did an analysis of the condo sale and the murder issue under contract law. I happened to know that Ca had a stigmatized property statue that required the seller to disclose. Therefore, it was foreseeable to the seller. I did a specific performance analysis to force the seller to purchase the property back. And I did an equitable lean on any assets that could be traced to the funds from the buyer in order to protect the assets during the process. There were a few other issues, butt that is the basic framework I used.

I know there are other ways to handle the issues. But liked being able to discuss both tort remedies and Contract remedies.

I hope I never find out how I did

Funny how we stress over points that we hope we never get to see.

The question wasn't CA specific. At CL, there is no duty to disclose anything that doesn't affect habitability. It is almost a certainty that the seller was going to lose this one. I talked about PE, condition precedent, fraud, recission, damages (for some reason, I couldn't get the word "consequential"to come to me). I also talked about restitution as well as seller's defenses, of which there were several. In addition to contract law, I talked about the duty to disclose, none here. I'm feeling okay about essay #2 now.

[InterAlia1961]

Break down of Question 3. There's a discussion of double hearsay. I see what people were talking about.

https://www.youtube.com/watch?v=tieLMiqyYsY

I bombed it for sure.

[barexaminerssuck27]

Break down of Question 3. There's a discussion of double hearsay. I see what people were talking about.

https://www.youtube.com/watch?v=tieLMiqyYsY

I bombed it for sure.

If you have Facebook, you should join a group called "2017 California Bar Exam" The guy's name is Eddie Reyes and he's in the group. Also, the Founder of One-Timers will personally answer your questions too. Bar tutors are in there as well.

I bombed it too. Missed double hearsay. I saw impeachment/PIS but ran out of time. Two main issues and didn't even addressed it.

[barexaminerssuck27]

Looking back, the Feb 2017 bar round was filled with race-horse essays. WILLS had TONS of issues. Remedies had torts and contracts. Evidence was filled with tricks. Corporations was hell. PR was racehorse. Crim Pro had all the Amendments.

Terrible.

[I-object]

To those of you who believed you bombed. Its a process. Its about learning the law, understanding how its applied to the essays. I saw Eddies videos. Appreciated the Evidence review as it comported to my analysis, but the Crim Pro review took me by surprise because in my view at the time of the exam and under its pressure, I saw defendant guilty. I laid out the analysis on a previous post. As for the remedies review, I disagree with his two part analysis in that Remedies as a subject should mostly focus on the remedies, not fully on the fault, guilt or wrongdoing as a separate discussion but incorporated into the analysis of the "remedy". I wont criticize. After all im on the outside looking in. But my advise to all of you and myself, Lets learn from our missteps and all material we encounter to get passed this juncture in our lives. And also lets not loose faith. And for myself speaking, I accept that if it does not happen, its for a reason. Maybe more perfect practice is needed, maybe simply not yet qualified. Which ever, the learning will ultimately make you better. I know you might think this sounds cheesy , but I say it sincerely and concretely. It does not hurt to start studying early regardless. Chin up.