2017 July California Bar

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valentina

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Re: 2017 July California Bar

Postby valentina » Thu Jul 27, 2017 6:34 pm

Reading this thread is like going down a terribly long and dark rabbit hole! I took the attorney's exam so I only did the essays and PT. On the torts question, I did full negligence analyses for both the driver and the utility company. The idea of an ultra hazardous activity didn't cross my mind because it's not an activity that is uncommon in the community; total opposite, every town and city in the world has electricity. It is not, at least to me, in and of itself and ultrahazardous activity. - was I totally off base here? I thought they threw in that bit about the new wiring to tie in with their breach of duty. For me, most of the essay had to do with causation and intervening and superceding events.

AcidaliaPlanitia

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Re: 2017 July California Bar

Postby AcidaliaPlanitia » Thu Jul 27, 2017 6:39 pm

valentina wrote:Reading this thread is like going down a terribly long and dark rabbit hole! I took the attorney's exam so I only did the essays and PT. On the torts question, I did full negligence analyses for both the driver and the utility company. The idea of an ultra hazardous activity didn't cross my mind because it's not an activity that is uncommon in the community; total opposite, every town and city in the world has electricity. It is not, at least to me, in and of itself and ultrahazardous activity. - was I totally off base here? I thought they threw in that bit about the new wiring to tie in with their breach of duty. For me, most of the essay had to do with causation and intervening and superceding events.


I wouldn't worry about it too much, I think people are making too much of the whole ultrahazardous activity aspect. I did mention it but only to shut it down, but like you, most of my analysis focused on causation and foreseeable/unforeseeable intervening causes.

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Re: 2017 July California Bar

Postby jman77 » Thu Jul 27, 2017 6:43 pm

caliguy93 wrote:
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.


That's what I've been saying all along. First you analyze whether the duty of confidentiality applies, It does not because compliance with court orders are an exception, so he can't hide behind that duty. Then you ask if atty-client privilege applies. It does not either because the sister is not a client and only communications between the atty. and the client are protected. Can't hide behind that either. So then what? Work product privilege. Both client and attorney can assert it so it doesn't matter that the client is dead. But he has to prove no unfair prejudice to plaintiff. Plaintiff can always subpoena sister, so no unfair prejudice there. So can't compel. Could've stopped here (not sure about conflict of interest since lawyer didn't know he was going to be a necessary witness when he accepted the engagement. Is he even a necessary witness? Sister can testify as to the same information. Also, I'm pretty sure a court order will also discharge him of any duties related to conflict of interest). On the other hand, in CA, work product privilege is absolute absent a showing of unfair prejudice.

However, instead of stopping there, I went on and said even assuming the court could compel, the document may be inadmissible anyway if it is hearsay not subject to any applicable exclusions. Then discussion on definition of hearsay, rules, exceptions, best evidence rule and application to the facts.

I honestly can't see a scenario where I wouldn't get more points than someone who just stopped at the point where the conclusion that he can't be compelled was reached, regardless of who the grader may be.

netrag

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Re: 2017 July California Bar

Postby netrag » Thu Jul 27, 2017 7:07 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 mean, I spent a paragraph discussing hearsay and tagged on on two sentences re: motion to compel. The majority of my time was spent discussing the AC privilege and confidentiality. I didn't address ABA/CA and confidentiality until the third part when the call of the question asked about morals and whether L***would be subject to discipline. Several UCLA kids were telling me that they thought it was a mix of the three as well.

I'm not concerned about it because half of the examinees answered a full Remedies question as a Contracts question on the last bar exam, and the model answers they posted included one of each.

Re: negligence, my essay was long. I mentioned all of the possibilities even if they didn't work because the facts seemed to imply that they wanted you to at least address regular negligence, negligence per se, SPL/Abnormally Dangerous (electricity, not in commerce), SPL DD (safer alternative in call but too costly and new as compared to widely adopted one used), etc. even though they wouldn't work. That was one where I could actually rack up extra one pointers (as opposed Comm Prop, Remedies, anything Cal related that wasn't PR). But I only spent a paragraph on the ones that didn't work, and worked one into my full negligence analysis where it is normally addressed.

I botched remedies. I was hellbent on discussing the UCC,which was pointless. I'm also not sure if my Right to a Jury Trial answer was very clear because I based that part off of the Barbri lecturer's class (the only useful one...although Maynard was pretty good, and so much better than that old guy who used to teach it).
Last edited by netrag on Thu Jul 27, 2017 7:33 pm, edited 1 time in total.

netrag

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Re: 2017 July California Bar

Postby netrag » Thu Jul 27, 2017 7:32 pm

The good news is that if any of us have to retake, the essays will be much easier to predict since they haven't tested Partnership/Agency and Trusts in quite a while, and they haven't tested Real Property or Con Law much at all in the past five years as compared to the other subjects. Remedies, Community Property, Torts, and Contracts are probably due for a break as well.

Also, Magicsheets were a lifesaver nearing the end. Leansheets were great for the MBE back in the day, but their only decent CA sheet was Comm Prop. Would only recommend Magicsheets and CriticalPass for Cal. Emanuel used to be great, too, but they aren't testing like that anymore. The kids that took the Kaplan class seem to be the only ones who aren't nervous about the MBE, which is bizzare. I thought it was terrible.
Last edited by netrag on Thu Jul 27, 2017 7:38 pm, edited 1 time in total.

maxmartin

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Re: 2017 July California Bar

Postby maxmartin » Thu Jul 27, 2017 7:34 pm

netrag wrote:The good news is that if any of us have to retake, the essays will be much easier to predict since they haven't tested Partnership/Agency and Trusts in quite a while, and they haven't tested Real Property or Con Law much at all in the past five years as compared to the other subjects. Remedies, Community Property, Torts, and Contracts are probably due for a break as well.


Real Property or Con Law are in 07/2016

jman77

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Re: 2017 July California Bar

Postby jman77 » Thu Jul 27, 2017 7:37 pm

AcidaliaPlanitia wrote:
valentina wrote:Reading this thread is like going down a terribly long and dark rabbit hole! I took the attorney's exam so I only did the essays and PT. On the torts question, I did full negligence analyses for both the driver and the utility company. The idea of an ultra hazardous activity didn't cross my mind because it's not an activity that is uncommon in the community; total opposite, every town and city in the world has electricity. It is not, at least to me, in and of itself and ultrahazardous activity. - was I totally off base here? I thought they threw in that bit about the new wiring to tie in with their breach of duty. For me, most of the essay had to do with causation and intervening and superceding events.


I wouldn't worry about it too much, I think people are making too much of the whole ultrahazardous activity aspect. I did mention it but only to shut it down, but like you, most of my analysis focused on causation and foreseeable/unforeseeable intervening causes.


Agree that it came down to negligence. However, I thought that the call of the question as to what "reasonable claims" H can raise implicitly came with the expectation that you were supposed to go through each potentially reasonable theory (as long as it wasn't patently unreasonable) and ascertain whether it is in fact reasonable, and then whether H is likely to prevail if he asserts this claim or that claim. So that's how I ended up discussing SPL and ultra-hazardous activity, although I ended up ruling both out because the facts of the case did not support that all elements existed.

Otherwise, if only negligence was in play as legit answers, I don't think that question was a 1-hour question at all (could've been done in about 30 minutes). I remember initially being worried that I was missing a lot of things because it seemed to be too short (before it occurred to me to talk about SPL and ultra hazardous activity).
Last edited by jman77 on Thu Jul 27, 2017 7:43 pm, edited 2 times in total.

netrag

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Re: 2017 July California Bar

Postby netrag » Thu Jul 27, 2017 7:40 pm

maxmartin wrote:
netrag wrote:The good news is that if any of us have to retake, the essays will be much easier to predict since they haven't tested Partnership/Agency and Trusts in quite a while, and they haven't tested Real Property or Con Law much at all in the past five years as compared to the other subjects. Remedies, Community Property, Torts, and Contracts are probably due for a break as well.


Real Property or Con Law are in 07/2016


Yeah but haven't they only been tested a few times as compared to the other MBE subjects? I saw a few different breakdowns and I recall Evidence, Real Property, and Con Law with lower numbers than the others on four and ten year comparisons.

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SmokeytheBear

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Re: 2017 July California Bar

Postby SmokeytheBear » Thu Jul 27, 2017 7:46 pm

Jesus am I glad that I didn't get on this message board after I took the bar exam. I'd be curled up in the corner of my bedroom with the shades drawn and the lights off listening to the National on repeat praying for a lightning bolt to pierce my room and hit me between the eyes.

Friends--what's done is done. You've expended so much energy already. Go enjoy the sunshine and some fish tacos.

mimim8

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Re: 2017 July California Bar

Postby mimim8 » Thu Jul 27, 2017 8:01 pm

SmokeytheBear wrote:Jesus am I glad that I didn't get on this message board after I took the bar exam. I'd be curled up in the corner of my bedroom with the shades drawn and the lights off listening to the National on repeat praying for a lightning bolt to pierce my room and hit me between the eyes.

Friends--what's done is done. You've expended so much energy already. Go enjoy the sunshine and some fish tacos.


This.

Pearl

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Re: 2017 July California Bar

Postby Pearl » Thu Jul 27, 2017 8:09 pm

In Torts essay, where Harry sued the Electric Company, - was Res Ipsa a viable option to throw in? I mentioned standard negligence, abnormally dangerous activity and Res Ipsa.

ur_hero

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Re: 2017 July California Bar

Postby ur_hero » Thu Jul 27, 2017 8:26 pm

A fun game I played post-CBX was how many days (or hours) I could go without checking TLS for reassurance that I passed and/or confirmation that I failed.

Rooting for you all!

maxmartin

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Re: 2017 July California Bar

Postby maxmartin » Thu Jul 27, 2017 8:28 pm

When will they release the new passing score? Is the date set yet? I thought it was sometime in Sep.

Pearl

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Re: 2017 July California Bar

Postby Pearl » Thu Jul 27, 2017 8:28 pm

Was surprised that they allowed people to bring pillows for the essay day. I was awfully drained by the Proctor reading instructions for hours and hours. Pillow could become a deadly weapon at that point.

varcom24

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Re: 2017 July California Bar

Postby varcom24 » Thu Jul 27, 2017 8:28 pm

AcidaliaPlanitia wrote:
valentina wrote:Reading this thread is like going down a terribly long and dark rabbit hole! I took the attorney's exam so I only did the essays and PT. On the torts question, I did full negligence analyses for both the driver and the utility company. The idea of an ultra hazardous activity didn't cross my mind because it's not an activity that is uncommon in the community; total opposite, every town and city in the world has electricity. It is not, at least to me, in and of itself and ultrahazardous activity. - was I totally off base here? I thought they threw in that bit about the new wiring to tie in with their breach of duty. For me, most of the essay had to do with causation and intervening and superceding events.


I wouldn't worry about it too much, I think people are making too much of the whole ultrahazardous activity aspect. I did mention it but only to shut it down, but like you, most of my analysis focused on causation and foreseeable/unforeseeable intervening causes.


I'm in the same boat – i don't think ultrahazardous was a major point. I interpreted all the "tech innovation" stuff in the facts as a sign that they wanted design defect analysis, but still ended up spending most of my time on the neg claim against the driver

logicspeaks

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Re: 2017 July California Bar

Postby logicspeaks » Thu Jul 27, 2017 8:41 pm

I was under the impression the facts about wiring alternatives was for application of the Hand formula.

AcidaliaPlanitia

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Re: 2017 July California Bar

Postby AcidaliaPlanitia » Thu Jul 27, 2017 8:48 pm

varcom24 wrote:
AcidaliaPlanitia wrote:
valentina wrote:Reading this thread is like going down a terribly long and dark rabbit hole! I took the attorney's exam so I only did the essays and PT. On the torts question, I did full negligence analyses for both the driver and the utility company. The idea of an ultra hazardous activity didn't cross my mind because it's not an activity that is uncommon in the community; total opposite, every town and city in the world has electricity. It is not, at least to me, in and of itself and ultrahazardous activity. - was I totally off base here? I thought they threw in that bit about the new wiring to tie in with their breach of duty. For me, most of the essay had to do with causation and intervening and superceding events.


I wouldn't worry about it too much, I think people are making too much of the whole ultrahazardous activity aspect. I did mention it but only to shut it down, but like you, most of my analysis focused on causation and foreseeable/unforeseeable intervening causes.


I'm in the same boat – i don't think ultrahazardous was a major point. I interpreted all the "tech innovation" stuff in the facts as a sign that they wanted design defect analysis, but still ended up spending most of my time on the neg claim against the driver


Same here, the whole safer alternative thing felt absolutely like it was begging for design defect analysis, but it just didn't fit because it really wasn't a "good" in the traditional sense.

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Re: 2017 July California Bar

Postby caliguy93 » Thu Jul 27, 2017 9:10 pm

for those who think the question is an evidence question i just thought of something.

you guys insist it was during trial, however who was the defendant? it was Home inc.

in order for it to be an evidence question, Home Inc. would have to be making the objections. not the Attorney as the attorney has no right to object as to the admissibility of his memo or work product with regards to admissibility. Yet no facts indicated anything about Home Inc's actions at all regarding the trial, just simply that they were being named in the action and Claire wanted to use it against Home Inc.

Further, home Inc, cannot object on the grounds of privilege as they do not hold the privilege and have no standing to assert that privilege. They also have no standing to claim work product as it is not their work product. So how can you analyze admissibility when Home Inc. was not in the fact pattern as to what objections they are making, nor was home inc allowed to assert any privleges.

All of the arguments will have to come from the attorney since if the attorney agreed to supply the information or had consent to waive the privelage, then Home inc. would object on evidence (hearsay) grounds. to assume anything happened before trial with regards to this stuff is way to much to rely on for any evidence question.

being that the attorney is not a party to the action against home, his assertion of the privileges against being compelled to testify or to turn over his work product isn't an admissibility issue since he doesn't have standing to object to any of it, it is a PR issue since being compelled to divulge the information may force him to violate his ethical duties.

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Re: 2017 July California Bar

Postby JonFish233 » Thu Jul 27, 2017 10:28 pm

caliguy93 wrote:for those who think the question is an evidence question i just thought of something.

you guys insist it was during trial, however who was the defendant? it was Home inc.

in order for it to be an evidence question, Home Inc. would have to be making the objections. not the Attorney as the attorney has no right to object as to the admissibility of his memo or work product with regards to admissibility. Yet no facts indicated anything about Home Inc's actions at all regarding the trial, just simply that they were being named in the action and Claire wanted to use it against Home Inc.

Further, home Inc, cannot object on the grounds of privilege as they do not hold the privilege and have no standing to assert that privilege. They also have no standing to claim work product as it is not their work product. So how can you analyze admissibility when Home Inc. was not in the fact pattern as to what objections they are making, nor was home inc allowed to assert any privleges.

All of the arguments will have to come from the attorney since if the attorney agreed to supply the information or had consent to waive the privelage, then Home inc. would object on evidence (hearsay) grounds. to assume anything happened before trial with regards to this stuff is way to much to rely on for any evidence question.

being that the attorney is not a party to the action against home, his assertion of the privileges against being compelled to testify or to turn over his work product isn't an admissibility issue since he doesn't have standing to object to any of it, it is a PR issue since being compelled to divulge the information may force him to violate his ethical duties.


I think this is spot on. I took it to be basically just a question about qualified work product versus absolutely protected work product. The first part asked about the part of the memorandum regarding what the lady said, which is qualified work product, the production of which under CA law can only be compelled if there's a showing of unfair prejudice or injustice (as opposed to the ABA substantial need/not possible to get from other source without undue hardship rule).

The second part of that question dealt with the part of the memorandum containing the attorney's impression that the lady would be a good witness for the plaintiff, which constitutes the mental impressions/conclusions/legal opinions of the attorney, and is absolutely privileged.

For me, that was all there was to it as to those two questions.

caliguy93

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Re: 2017 July California Bar

Postby caliguy93 » Thu Jul 27, 2017 10:35 pm

JonFish233 wrote:
caliguy93 wrote:for those who think the question is an evidence question i just thought of something.

you guys insist it was during trial, however who was the defendant? it was Home inc.

in order for it to be an evidence question, Home Inc. would have to be making the objections. not the Attorney as the attorney has no right to object as to the admissibility of his memo or work product with regards to admissibility. Yet no facts indicated anything about Home Inc's actions at all regarding the trial, just simply that they were being named in the action and Claire wanted to use it against Home Inc.

Further, home Inc, cannot object on the grounds of privilege as they do not hold the privilege and have no standing to assert that privilege. They also have no standing to claim work product as it is not their work product. So how can you analyze admissibility when Home Inc. was not in the fact pattern as to what objections they are making, nor was home inc allowed to assert any privleges.

All of the arguments will have to come from the attorney since if the attorney agreed to supply the information or had consent to waive the privelage, then Home inc. would object on evidence (hearsay) grounds. to assume anything happened before trial with regards to this stuff is way to much to rely on for any evidence question.

being that the attorney is not a party to the action against home, his assertion of the privileges against being compelled to testify or to turn over his work product isn't an admissibility issue since he doesn't have standing to object to any of it, it is a PR issue since being compelled to divulge the information may force him to violate his ethical duties.


I think this is spot on. I took it to be basically just a question about qualified work product versus absolutely protected work product. The first part asked about the part of the memorandum regarding what the lady said, which is qualified work product, the production of which under CA law can only be compelled if there's a showing of unfair prejudice or injustice (as opposed to the ABA substantial need/not possible to get from other source without undue hardship rule).

The second part of that question dealt with the part of the memorandum containing the attorney's impression that the lady would be a good witness for the plaintiff, which constitutes the mental impressions/conclusions/legal opinions of the attorney, and is absolutely privileged.

For me, that was all there was to it as to those two questions.



there was also conflict of interest (duty of loyalty) if the attorney is compelled to testify as a third party witness as well as the duty of confidentiality and whether the attorney client privileged continued after death of the client (ABA says yes, CA says no)

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Dee099

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Re: 2017 July California Bar

Postby Dee099 » Thu Jul 27, 2017 10:46 pm

Welp, nothing I can do now regarding the PR question,
Hoping it's enough of creativity for at least a 60,especially seeing how a good amount of ppl took various directions outside of PR discussion.

Sad part is later down the road, someone will get this as a practice study essay, and be like "wow, I hope I get an easy one like this in test day".

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Re: 2017 July California Bar

Postby JonFish233 » Thu Jul 27, 2017 10:51 pm

caliguy93 wrote:
JonFish233 wrote:
caliguy93 wrote:for those who think the question is an evidence question i just thought of something.

you guys insist it was during trial, however who was the defendant? it was Home inc.

in order for it to be an evidence question, Home Inc. would have to be making the objections. not the Attorney as the attorney has no right to object as to the admissibility of his memo or work product with regards to admissibility. Yet no facts indicated anything about Home Inc's actions at all regarding the trial, just simply that they were being named in the action and Claire wanted to use it against Home Inc.

Further, home Inc, cannot object on the grounds of privilege as they do not hold the privilege and have no standing to assert that privilege. They also have no standing to claim work product as it is not their work product. So how can you analyze admissibility when Home Inc. was not in the fact pattern as to what objections they are making, nor was home inc allowed to assert any privleges.

All of the arguments will have to come from the attorney since if the attorney agreed to supply the information or had consent to waive the privelage, then Home inc. would object on evidence (hearsay) grounds. to assume anything happened before trial with regards to this stuff is way to much to rely on for any evidence question.

being that the attorney is not a party to the action against home, his assertion of the privileges against being compelled to testify or to turn over his work product isn't an admissibility issue since he doesn't have standing to object to any of it, it is a PR issue since being compelled to divulge the information may force him to violate his ethical duties.


I think this is spot on. I took it to be basically just a question about qualified work product versus absolutely protected work product. The first part asked about the part of the memorandum regarding what the lady said, which is qualified work product, the production of which under CA law can only be compelled if there's a showing of unfair prejudice or injustice (as opposed to the ABA substantial need/not possible to get from other source without undue hardship rule).

The second part of that question dealt with the part of the memorandum containing the attorney's impression that the lady would be a good witness for the plaintiff, which constitutes the mental impressions/conclusions/legal opinions of the attorney, and is absolutely privileged.

For me, that was all there was to it as to those two questions.



there was also conflict of interest (duty of loyalty) if the attorney is compelled to testify as a third party witness as well as the duty of confidentiality and whether the attorney client privileged continued after death of the client (ABA says yes, CA says no)


Oh yeah, I forgot about those. That was the third part, right? But as far as compelling the memorandum (insofar as it contained X and Y), it was just a work product question.

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Re: 2017 July California Bar

Postby happybar » Thu Jul 27, 2017 10:58 pm

Not really healthy, I know, but I am going over the questions in my head.
In the second question (the one focused on att-client privilege) - was the question asking whether the plaintiff can compel lawyer to testify ask specifically to testify about the conversation with the sister - or in general to testify also to what he spoke with the client?

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Re: 2017 July California Bar

Postby mambar » Thu Jul 27, 2017 10:59 pm

.
Last edited by mambar on Mon Aug 21, 2017 1:17 am, edited 1 time in total.

mcmand

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Re: 2017 July California Bar

Postby mcmand » Thu Jul 27, 2017 11:41 pm

mimim8 wrote:
SmokeytheBear wrote:Jesus am I glad that I didn't get on this message board after I took the bar exam. I'd be curled up in the corner of my bedroom with the shades drawn and the lights off listening to the National on repeat praying for a lightning bolt to pierce my room and hit me between the eyes.

Friends--what's done is done. You've expended so much energy already. Go enjoy the sunshine and some fish tacos.


This.


Tried to say the same thing earlier in the thread. It fell on deaf ears. Crazy anxious people gonna be crazy anxious people.
Last edited by mcmand on Fri Jan 26, 2018 4:27 pm, edited 1 time in total.



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