2017 July California Bar

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Dee099

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Re: 2017 July California Bar

Postby Dee099 » Thu Jul 27, 2017 4:43 pm

I took that Q as evidence, as stated abouve it was asking about testimony at trial and introducing the memo at trial.

The lawyer was using privelage as his bars against admission, so I took on the essay by discussing why privelage applied, and also other bars against admission like hersay, and potential exceptions.

PR part, I talked about fees/fee agreements (the Q said something about a retainer agreement) not much to discuss, just threw in the rule , talked about duty if confidentiality, and about potential Duty to withdraw when he found out dude admitted to committing fraud, I think I added another duty one, as a general one as kinda a Hail Mary to see if it hit any points.


On the TRO and Preliminary Injuction one, i said the elements were the same, so said to see above, I've been to lazy to double check how the differ, completely blanked on that part.

Definitely feels like handwriting puts me at a disadvantage bc I don't get to write out as much If I were typing, but ideas flow better when writing.

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Re: 2017 July California Bar

Postby happybar » Thu Jul 27, 2017 4:45 pm

In the Civ Pro question - one of them asked if the buyer could file a fraud claim.
In retrospect I understand that they were asking if his complaint was sufficient (fraud is something you need to argue in more detail).
I completed misread the question and gave a full fraud substantive argument explaining the elements of the tort and likelihood of getting his claim.
Assuming I got the other 4 parts right - the fact that i totally misread one question would probably get me to no more than 60, right?

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Re: 2017 July California Bar

Postby as4040 » Thu Jul 27, 2017 4:47 pm

controo wrote:
Hangastaronit wrote:
maxmartin wrote:
happybar wrote:
jman77 wrote:
nsv wrote:Did everyone address hearsay on the second question?


In the essays? Yup. I saw 2 hearsay within a hearsay issues. One was admissible (opponent party statement/admission) within a business record and the other inadmissible (I think statement of a belief -- also, it was irrelevant).


But they didn't ask if the memorandum is admissible. They asked if the plaintiff can compel lawyer to give it her in discovery. So I don't think evidence was even necessary at this stage of discovery.
The question was only asking if he has reason to refuse discover because of att client privilege / work product.


Yep, this question just has nothing to do with evidence.


Do others agree on this? I read it as the lawyer being compelled to testify at trial was asking for a discussion of 2 levels of hearsay under CA evidence rules. If evidence wasn't supposed to be discussed on essay 2, there goes 1/3 of my essay...


At the very least, I don't think it was a pure PR question. Themis said that for PR questions, the call of the question would generally say "answer according to CA and ABA." They said this for the 3rd call of the question, but the first two said "answer according to CA law" only. So even though PR was huge obviously on those too, I think they were looking for either some CA civ pro or some CA evidence for those two. I'm not sure which because I don't remember exactly what the questions said. But I put some really basic evidence stuff for the lawyer testifying at trial one and some really basic civ pro stuff stuff for the memorandum. I am not at all confident about this though. I was just guessing and didn't feel good about the question at all.




Anyone else talk about CA a-c privilege not applying after estate has been fully distributed? Did Barbri totally screw me over with that one?

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Re: 2017 July California Bar

Postby jman77 » Thu Jul 27, 2017 4:48 pm

happybar wrote:
valentina wrote:I didn't say absolutely anything about evidence on that second essay. I re-read it several times and while of course, I did see hearsay issues, the calls of the question did not ask about admissibility, it was about whether or not the attorney could be compelled to testify about what his client told him, then about what a witness told him. The next question was whether he could be compelled to produce his work product, and then finally, the last question asked to identify breaches of duty (confidentiality and loyalty, because of a potential conflict). Am I the only who attacked this essay in that way? I literally did not mention one word of evidentiary law.


I don't think there was any loyalty or potential conflicts issues because the facts indicated that he separately represented the owner of the company and not the company itself. I also mentioned financial integrity - his duty to return the estate some of the money he got in the retainer agreement which is an agreement where you typically get money in advance while he was fired in the beginning , shortly thereafter his client died.

Since I concluded that the privilege ended when the deceased client estate was settled - he violated his duty of candor to the court and fairness to thid parties (here Claire) by refusing to testify and forcing her to submit a motion to compel.


He could still legitimately refuse under work product privilege, though, since both the client and attorney can assert that privilege. And in CA it's an absolute privilege that can only be overcome by a showing of unfair prejudice.

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Re: 2017 July California Bar

Postby valentina » Thu Jul 27, 2017 4:48 pm

happybar wrote:
valentina wrote:I didn't say absolutely anything about evidence on that second essay. I re-read it several times and while of course, I did see hearsay issues, the calls of the question did not ask about admissibility, it was about whether or not the attorney could be compelled to testify about what his client told him, then about what a witness told him. The next question was whether he could be compelled to produce his work product, and then finally, the last question asked to identify breaches of duty (confidentiality and loyalty, because of a potential conflict). Am I the only who attacked this essay in that way? I literally did not mention one word of evidentiary law.


I don't think there was any loyalty or potential conflicts issues because the facts indicated that he separately represented the owner of the company and not the company itself. I also mentioned financial integrity - his duty to return the estate some of the money he got in the retainer agreement which is an agreement where you typically get money in advance while he was fired in the beginning , shortly thereafter his client died.

Since I concluded that the privilege ended when the deceased client estate was settled - he violated his duty of candor to the court and fairness to thid parties (here Claire) by refusing to testify and forcing her to submit a motion to compel.


There was a potential conflict if Don ever asked him to also defend the corporate entity. Remember that in CA, you need informed written consent for potential conflicts as well as actual conflicts. So, by not informing him that there was a potential conflict and getting his informed, written consent, he violated the duty of loyalty. He couldn't be compelled to testify as to what the sister told him not based on ACP, but because his duty of confidentiality forbids him to talk about anything related to the representation of his client. I didn't see any issues with regard to breach of duty of candor to the court or third parties, he wasn't committing any fraud or engaging in dishonesty, he was simply doing what he was bound by ethical rules to do; "forcing" a party to file a motion to compel anything isn't a breach of a duty.

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Re: 2017 July California Bar

Postby maxmartin » Thu Jul 27, 2017 4:51 pm

as4040 wrote:
controo wrote:
Hangastaronit wrote:
maxmartin wrote:
happybar wrote:
jman77 wrote:
nsv wrote:Did everyone address hearsay on the second question?


In the essays? Yup. I saw 2 hearsay within a hearsay issues. One was admissible (opponent party statement/admission) within a business record and the other inadmissible (I think statement of a belief -- also, it was irrelevant).


But they didn't ask if the memorandum is admissible. They asked if the plaintiff can compel lawyer to give it her in discovery. So I don't think evidence was even necessary at this stage of discovery.
The question was only asking if he has reason to refuse discover because of att client privilege / work product.


Yep, this question just has nothing to do with evidence.


Do others agree on this? I read it as the lawyer being compelled to testify at trial was asking for a discussion of 2 levels of hearsay under CA evidence rules. If evidence wasn't supposed to be discussed on essay 2, there goes 1/3 of my essay...


At the very least, I don't think it was a pure PR question. Themis said that for PR questions, the call of the question would generally say "answer according to CA and ABA." They said this for the 3rd call of the question, but the first two said "answer according to CA law" only. So even though PR was huge obviously on those too, I think they were looking for either some CA civ pro or some CA evidence for those two. I'm not sure which because I don't remember exactly what the questions said. But I put some really basic evidence stuff for the lawyer testifying at trial one and some really basic civ pro stuff stuff for the memorandum. I am not at all confident about this though. I was just guessing and didn't feel good about the question at all.




Anyone else talk about CA a-c privilege not applying after estate has been fully distributed? Did Barbri totally screw me over with that one?

I did, but the attorney is subject to duty of confidentiality.

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Re: 2017 July California Bar

Postby Dee099 » Thu Jul 27, 2017 4:52 pm

happybar wrote:Assuming I got the other 4 parts right - the fact that i totally misread one question would probably get me to no more than 60, right?


No should still be very likely to get a 65 if you hit in the other 4 parts, I'd have trouble believing that a 5 part question could not yield a 65 for missing one part, I'd still feel like even hitting 3 parts spot on and missing 2 could get a 65.

The 65's in Baressay.com are eye opening as to what sometimes get a 65, so if you think you hit in the other 4 parts, I wouldn't sweat missing that one part.

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Re: 2017 July California Bar

Postby jman77 » Thu Jul 27, 2017 4:53 pm

Dee099 wrote:I took that Q as evidence, as stated abouve it was asking about testimony at trial and introducing the memo at trial.

The lawyer was using privelage as his bars against admission, so I took on the essay by discussing why privelage applied, and also other bars against admission like hersay, and potential exceptions.

PR part, I talked about fees/fee agreements (the Q said something about a retainer agreement) not much to discuss, just threw in the rule , talked about duty if confidentiality, and about potential Duty to withdraw when he found out dude admitted to committing fraud, I think I added another duty one, as a general one as kinda a Hail Mary to see if it hit any points.


On the TRO and Preliminary Injuction one, i said the elements were the same, so said to see above, I've been to lazy to double check how the differ, completely blanked on that part.

Definitely feels like handwriting puts me at a disadvantage bc I don't get to write out as much If I were typing, but ideas flow better when writing.


I did the same with the TRO/PI question. Lost some points by not pointing out that TRO doesn't require balancing of the harms.

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Re: 2017 July California Bar

Postby caliguy93 » Thu Jul 27, 2017 4:54 pm

sorry guys, that question was a pure PR.

the question called for whether or not they can compel the attorney to testify, not whether it was admissible over an objection like every other evidence question in bar history.

furthermore, it prompted duty of confidentiality issues which prompts additional distinctions between ABA and CA regarding whether or not the privilege continues after the death of the client. ABA it is still privileged, CA the privilege ends.

then theres the whole duty of confidentiality being violated when the attorney told the sister what her brother had said, which he was not allowed to do.

Furthermore, it prompts the duty of loyalty and creates a conflict of interest as the attorney being a third party witness at trial and prompts an analysis whether or not an attorney can be compelled if it would create a conflict of interest. Then you can discuss work product doctrine and how the sister Wendy was still available to be interviewed and that by compelling the work product (memorandum) would just assist Claire from doing her own work and interviewing Wendy herself and that good cause didn't exist to compel the work product. Had the sister been unavailable due to death then she would have good cause as a potential necessary witness is no longer available and the only means of gaining that access is through the attorney's work product.
Sorry, but this was a trick question and if you went down the wrong rabbit hole for evidence, i don't think you did very well. sorry and this is just my personal opinion, not trying to troll
Last edited by caliguy93 on Thu Jul 27, 2017 5:42 pm, edited 1 time in total.

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Re: 2017 July California Bar

Postby maxmartin » Thu Jul 27, 2017 4:57 pm

caliguy93 wrote:sorry guys, that question was a pure PR.

the question called for whether or not they can compel the attorney to testify, not whether it was admissible over an objection like every other evidence questioning bar history.

furthermore, it prompted duty of confidentiality issues which prompts additional distinctions between ABA and CA regarding whether or not the privilege continues after the death of the client. ABA it is still privileged, CA the privilege ends.

Furthermore, it prompts the duty of loyalty and creates a conflict of interest as the attorney being a third party witness at trial and prompts an analysis whether or not an attorney can be compelled if it would create a conflict of interest. Then you can discuss work product doctrine and how the sister Wendy was still available to be interviewed and that by compelling the work product (memorandum) would just assist Claire from doing her own work and interviewing Wendy herself and that good cause didn't exist to compel the work product. Had the sister been unavailable due to death then she would have good cause as a potential necessary witness is no longer available and the only means of gaining that access is through the attorney's work product.
Sorry, but this was a trick question and if you went down the wrong rabbit hole for evidence, i don't think you did very well. sorry and this is just my personal opinion, not trying to troll


100% agree, you can throw your hearsay, double hearsay (what ever that is about) in there only after you completely discussed the PR issues.

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Re: 2017 July California Bar

Postby Dee099 » Thu Jul 27, 2017 4:59 pm

A valid argument but not enough to convince me Evidence didn't apply, or even some Civ Pro.

November is only light years away, so well know soon.

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Re: 2017 July California Bar

Postby jman77 » Thu Jul 27, 2017 5:04 pm

caliguy93 wrote:sorry guys, that question was a pure PR.

the question called for whether or not they can compel the attorney to testify, not whether it was admissible over an objection like every other evidence questioning bar history.

furthermore, it prompted duty of confidentiality issues which prompts additional distinctions between ABA and CA regarding whether or not the privilege continues after the death of the client. ABA it is still privileged, CA the privilege ends.

then theres the whole duty of confidentiality being violated when the attorney told the sister what her brother had said, which he was not allowed to do.

Furthermore, it prompts the duty of loyalty and creates a conflict of interest as the attorney being a third party witness at trial and prompts an analysis whether or not an attorney can be compelled if it would create a conflict of interest. Then you can discuss work product doctrine and how the sister Wendy was still available to be interviewed and that by compelling the work product (memorandum) would just assist Claire from doing her own work and interviewing Wendy herself and that good cause didn't exist to compel the work product. Had the sister been unavailable due to death then she would have good cause as a potential necessary witness is no longer available and the only means of gaining that access is through the attorney's work product.
Sorry, but this was a trick question and if you went down the wrong rabbit hole for evidence, i don't think you did very well. sorry and this is just my personal opinion, not trying to troll


You say it's pure PR and yet you talk about evidence (work product privilege is an evidence, not a PR concept). For me, the best approach here was still to talk about the other related issues, including hearsay, after disposing of the PR and privilege issues.

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Re: 2017 July California Bar

Postby caliguy93 » Thu Jul 27, 2017 5:06 pm

Dee099 wrote:A valid argument but not enough to convince me Evidence didn't apply, or even some Civ Pro.

November is only light years away, so well know soon.


unfortunately, there is never a case where they test a subject twice, and we had a full civ pro question. so there is zero chance that the question had a civ pro crossover even though i agree, motion to compel and work product for discovery reason all fall under it. You had to Know Civ pro for it, but they are grading it for PR.

My tutor told me that in fact patterns, if there just isn't enough facts to support the header you are analyzing, then chances are its not relevant. From what i hear regarding your guys analysis for evidence, a lot of people had to make lots of assumptions that were not in the fact pattern to discuss evidence issues such as relevance, authentication, business records, or anything else for the elements of exceptions to hearsay.

If you have to assume too many facts, or don't have much facts to support a potential issue, chances are its not an issue for the exam... as such evidence would fall into that category and is ultimately a deciding factor for me that it was not an evidence question.

i can see how anyone can fall down that rabbit hole, as when i read the calls of the question first i couldn't decide whether it was evidence, civ pro or PR and didn't figure it out until i read the entire fact pattern.

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Re: 2017 July California Bar

Postby maxmartin » Thu Jul 27, 2017 5:11 pm

caliguy93 wrote:
Dee099 wrote:A valid argument but not enough to convince me Evidence didn't apply, or even some Civ Pro.

November is only light years away, so well know soon.


unfortunately, there is never a case where they test a subject twice, and we had a full civ pro question. so there is zero chance that the question had a civ pro crossover even though i agree, motion to compel and work product for discovery reason all fall under it. You had to Know Civ pro for it, but they are grading it for PR.

My tutor told me that in fact patterns, if there just isn't enough facts to support the header you are analyzing, then chances are its not relevant. From what i hear regarding your guys analysis for evidence, a lot of people had to make lots of assumptions that were not in the fact pattern to discuss evidence issues such as relevance, authentication, business records, or anything else for the elements of exceptions to hearsay.

If you have to assume too many facts, or don't have much facts to support a potential issue, chances are its not an issue for the exam... as such evidence would fall into that category and is ultimately a deciding factor for me that it was not an evidence question.

i can see how anyone can fall down that rabbit hole, as when i read the calls of the question first i couldn't decide whether it was evidence, civ pro or PR and didn't figure it out until i read the entire fact pattern.


I thought the calls are extremely clear. They never asked the admissibility of the underline evidence. They only asked can attorney do this, can attorney do that? I just don't get how you can jump to evidence or civ pro stuff. I think if you want to throw them in there, that is fine. But that is not the meat of this question.

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Re: 2017 July California Bar

Postby maxmartin » Thu Jul 27, 2017 5:16 pm

Evidence questions in CA bar have always been extremely clear. They will directly ask you whether this statement or evidence is admissible or is it an error for the court to admit the evidence. They never tested evidence in any other ways.

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Re: 2017 July California Bar

Postby caliguy93 » Thu Jul 27, 2017 5:18 pm

maxmartin wrote:Evidence questions in CA bar have always been extremely clear. They will directly ask you whether this statement or evidence is admissible or is it an error for the court to admit the evidence. They never tested evidence in any other ways.


unless they are testing on the types of objections.. which they have done before

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Re: 2017 July California Bar

Postby maxmartin » Thu Jul 27, 2017 5:19 pm

caliguy93 wrote:
maxmartin wrote:Evidence questions in CA bar have always been extremely clear. They will directly ask you whether this statement or evidence is admissible or is it an error for the court to admit the evidence. They never tested evidence in any other ways.


unless they are testing on the types of objections.. which they have done before

That is even more obvious, usually a trial court transcript will be the question. :mrgreen:

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Re: 2017 July California Bar

Postby caliguy93 » Thu Jul 27, 2017 5:22 pm

maxmartin wrote:
caliguy93 wrote:
maxmartin wrote:Evidence questions in CA bar have always been extremely clear. They will directly ask you whether this statement or evidence is admissible or is it an error for the court to admit the evidence. They never tested evidence in any other ways.


unless they are testing on the types of objections.. which they have done before

That is even more obvious, usually a trial court transcript will be the question. :mrgreen:


no argument that it would be extremely clear, only that there is more than one way to test evidence than admissibility

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Re: 2017 July California Bar

Postby jman77 » Thu Jul 27, 2017 5:23 pm

maxmartin wrote:Evidence questions in CA bar have always been extremely clear. They will directly ask you whether this statement or evidence is admissible or is it an error for the court to admit the evidence. They never tested evidence in any other ways.


Yeah, but if after you answer the main question you have a legitimate way of working in other related questions although not directly asked, it can only help, right? I agree that if you only answered it as an evidence question, you probably did not do well on that question. However, if there are 2 examinees and they each answered the main call but one of them addresses other reasonably related issues as well, don't you think that 2nd examinee will get more points than the first one? Obviously you don't talk about partnerships or remedies in that question as there is no basis whatsoever for doing so, but it's a litigation, so evidence and civ pro are definitely fair game if those issues appear in the fact pattern.

I read somewhere that the highest grades in the essays are those where the writer displayed creativity in the answers, and I think being able to work in legitimately related issues you spotted into your answer is one aspect of creativity.

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Re: 2017 July California Bar

Postby Dee099 » Thu Jul 27, 2017 5:26 pm

checks posts after posting: :shock: :shock: :shock:

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Re: 2017 July California Bar

Postby caliguy93 » Thu Jul 27, 2017 5:27 pm

also, iv been tracking all the subjects tested for the last 7 years (14 exams) and they have never tested evidence/PR crossover.

you can see my chart in the link below...which also includes my predictions for potential subjects for the next exam

https://s4.postimg.org/hllqof5f1/Screen_Shot_2017-07-27_at_2.23.42_PM.png

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Re: 2017 July California Bar

Postby maxmartin » Thu Jul 27, 2017 5:31 pm

jman77 wrote:
maxmartin wrote:Evidence questions in CA bar have always been extremely clear. They will directly ask you whether this statement or evidence is admissible or is it an error for the court to admit the evidence. They never tested evidence in any other ways.


Yeah, but if after you answer the main question you have a legitimate way of working in other related questions although not directly asked, it can only help, right? I agree that if you only answered it as an evidence question, you probably did not do well on that question. However, if there are 2 examinees and they each answered the main call but one of them addresses other reasonably related issues as well, don't you think that 2nd examinee will get more points than the first one? Obviously you don't talk about partnerships or remedies in that question as there is no basis whatsoever for doing so, but it's a litigation, so evidence and civ pro are definitely fair game if those issues appear in the fact pattern.

I read somewhere that the highest grades in the essays are those where the writer displayed creativity in the answers, and I think being able to work in legitimately related issues you spotted into your answer is one aspect of creativity.


If you want to throw your evidence there, that is fine only after you discussed major PR issues. But if you spend 1/3 of your space discussing hearsay, I think that is not good. Btw, for me PR covers privilege, some people call it evidence. That is fine. I just don't think this question has anything to do with hearsay, authentication or any document hearsay.

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Re: 2017 July California Bar

Postby caliguy93 » Thu Jul 27, 2017 5:50 pm

maxmartin wrote:
jman77 wrote:
maxmartin wrote:Evidence questions in CA bar have always been extremely clear. They will directly ask you whether this statement or evidence is admissible or is it an error for the court to admit the evidence. They never tested evidence in any other ways.


Yeah, but if after you answer the main question you have a legitimate way of working in other related questions although not directly asked, it can only help, right? I agree that if you only answered it as an evidence question, you probably did not do well on that question. However, if there are 2 examinees and they each answered the main call but one of them addresses other reasonably related issues as well, don't you think that 2nd examinee will get more points than the first one? Obviously you don't talk about partnerships or remedies in that question as there is no basis whatsoever for doing so, but it's a litigation, so evidence and civ pro are definitely fair game if those issues appear in the fact pattern.

I read somewhere that the highest grades in the essays are those where the writer displayed creativity in the answers, and I think being able to work in legitimately related issues you spotted into your answer is one aspect of creativity.


If you want to throw your evidence there, that is fine only after you discussed major PR issues. But if you spend 1/3 of your space discussing hearsay, I think that is not good. Btw, for me PR covers privilege, some people call it evidence. That is fine. I just don't think this question has anything to do with hearsay, authentication or any document hearsay.



i agree completely, some model answers have proven to show some applicants completely missed the call of the question but presented a creative argument through an alternative means to come to a lawyer like conclusion. However, you never know whether your grader will be impressed with your creativity or dissatisfied with the fact you missed the call completely. maybe the got into a fight with their significant other the morning they left for the office to read some essays. maybe the exam they read before yours was phenomenal and even though yours would otherwise be passing, looked like shit compared to the one they read before yours. maybe its the opposite, maybe you got lucky and they are having a great day and/or the essays they read before yours was complete shit and made your essay look extremely creative and well applied.

maybe the only thing the grader knows about Lucas/Anti-lucas is what they can barely remember from law school 20 years ago and anything you write may be good as long as it sounds good.

who knows.

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Re: 2017 July California Bar

Postby dimetech » Thu Jul 27, 2017 6:00 pm

Dee099 wrote:I took that Q as evidence, as stated abouve it was asking about testimony at trial and introducing the memo at trial.

The lawyer was using privelage as his bars against admission, so I took on the essay by discussing why privelage applied, and also other bars against admission like hersay, and potential exceptions.

PR part, I talked about fees/fee agreements (the Q said something about a retainer agreement) not much to discuss, just threw in the rule , talked about duty if confidentiality, and about potential Duty to withdraw when he found out dude admitted to committing fraud, I think I added another duty one, as a general one as kinda a Hail Mary to see if it hit any points.


On the TRO and Preliminary Injuction one, i said the elements were the same, so said to see above, I've been to lazy to double check how the differ, completely blanked on that part.

Definitely feels like handwriting puts me at a disadvantage bc I don't get to write out as much If I were typing, but ideas flow better when writing.


TRO requires a threat of immediate harm; prelim. does not.

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Re: 2017 July California Bar

Postby Brobot » Thu Jul 27, 2017 6:33 pm

dimetech wrote:
Dee099 wrote:I took that Q as evidence, as stated abouve it was asking about testimony at trial and introducing the memo at trial.

The lawyer was using privelage as his bars against admission, so I took on the essay by discussing why privelage applied, and also other bars against admission like hersay, and potential exceptions.

PR part, I talked about fees/fee agreements (the Q said something about a retainer agreement) not much to discuss, just threw in the rule , talked about duty if confidentiality, and about potential Duty to withdraw when he found out dude admitted to committing fraud, I think I added another duty one, as a general one as kinda a Hail Mary to see if it hit any points.


On the TRO and Preliminary Injuction one, i said the elements were the same, so said to see above, I've been to lazy to double check how the differ, completely blanked on that part.

Definitely feels like handwriting puts me at a disadvantage bc I don't get to write out as much If I were typing, but ideas flow better when writing.


TRO requires a threat of immediate harm; prelim. does not.


Might want to recheck that, friend.



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