2018 February CA Bar

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cgc210

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Re: 2018 February CA Bar

Postby cgc210 » Fri Mar 02, 2018 3:46 am

Right! I could not recall that part of the question. I think I answered it ok, now that you have refreshed my recollection!

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Re: 2018 February CA Bar

Postby Mxmasterr » Fri Mar 02, 2018 7:18 am

Bla Bla Bla Blah wrote:
cgc210 wrote:Can anyone please remind me what the first part of the question with Prof responsibility was about? I cannot remember for the life of me


The PR question was tied into the property-contracts question, re: the quitclaim deed where there was a question of whether seller misrepresented the potentially faulty roof, or had a duty to disclose and chose to omit. It asked us to analyze under the ABA and the CA rules.

I analyzed the duty of loyalty, which is essentially to represent the clients interests, and not attorney's own. The duty of competence/care, which only differs in CA because it adds to the ABA rule that attorney is to have the requisite mental, and physical, ability to competently represent. Arguably, putting an expert on the stand when the lawyer was fully aware that the expert had come to an entirely different opinion in another matter on the same issue is shows lack of competence, and certainly is not in the client's best interest.

I also analyzed the ABA rule on lawyer testimony (i.e., not at all, in this situation at least). In CA, it is allowed, but only if there is agreement among counsel and the judge permits.

That was pretty much all there was to it. I was honestly expecting more, considering that the CA Bar questions and model answers from past administrations of the test seemed to have pretty hard core PR questions that required much more analysis. For instance,
July 2017 Question 2 would have made me have an aneurysm if something like it would have popped up on this test... that one was a all out nuanced PR topic, not just a sidenote issue like ours was.


No I think the question turned on false testimony and whether the lawyer knew the expert was lying. The lawyer did his own research that contradicted the expert ... It screamed is this guy perjuring himself. The lawyer then repeated the claim to the jury which could be a false statement of fact and violate duty of candor and fairness by putting on and arguing false evidence. Then he offered an opinion from his own investigation u can't do that. He told the jury something he did that was not in evidence from personal knowledge that's not allowed. Also the lawyer being a witness stuff. I thought that whole question was testing lawyer knowledge of perjury though.

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Re: 2018 February CA Bar

Postby Bla Bla Bla Blah » Fri Mar 02, 2018 11:46 am

Mxmasterr wrote:No I think the question turned on false testimony and whether the lawyer knew the expert was lying. The lawyer did his own research that contradicted the expert ... It screamed is this guy perjuring himself. The lawyer then repeated the claim to the jury which could be a false statement of fact and violate duty of candor and fairness by putting on and arguing false evidence. Then he offered an opinion from his own investigation u can't do that. He told the jury something he did that was not in evidence from personal knowledge that's not allowed. Also the lawyer being a witness stuff. I thought that whole question was testing lawyer knowledge of perjury though.


Not sure where you get purjury from based on the lawyer's reaserch, which only confirmed that weather affected deterioration rates and explained why the experts opinion might have differed. Scientific opinions can change based on conditions, no purjury in that. And of course an attorney can offer his own opinion, based on his own investigation, without first hand knowledge of the event in front of the jury. Attorneys do this all the time on cross examination and questioning. 100 percent okay, depending on how it is introduced. The only problem here is the form of introduction, which was testimonial. Not allowed under the ABA, allowed in CA if both attorneys agree.

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Re: 2018 February CA Bar

Postby love4vinolaw » Fri Mar 02, 2018 12:13 pm

Woke up at 3 am in a cold sweat when I realized all the way through the 3rd essay I referred to it the BBQ issue as her right to quiet enjoyment of her property, and although I used the nuissance definition, I don't think I ever actually called it that. Like the word dropped from my vocabulary.... and even in reading through all the comments here, it didn't hit me until today. Ugh.

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Re: 2018 February CA Bar

Postby Bla Bla Bla Blah » Fri Mar 02, 2018 12:21 pm

love4vinolaw wrote:Woke up at 3 am in a cold sweat when I realized all the way through the 3rd essay I referred to it the BBQ issue as her right to quiet enjoyment of her property, and although I used the nuissance definition, I don't think I ever actually called it that. Like the word dropped from my vocabulary.... and even in reading through all the comments here, it didn't hit me until today. Ugh.


Read some of the model answers. As long as you didn't do that consistently throughout the essay, and even sometimes where you did, being able to explain and analyze the elements is the most important factor and often results in doing better than you think. I can think of multiple model answers where I've seen them apply the parts, but not specifically name the legal theory.

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Re: 2018 February CA Bar

Postby What'sUP? » Fri Mar 02, 2018 12:25 pm

Does someone remember the facts from the Nuisance/Taking Question -- did the facts state what the statutory time period was to obtain an easement by prescription?

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Re: 2018 February CA Bar

Postby Mxmasterr » Fri Mar 02, 2018 1:01 pm

Bla Bla Bla Blah wrote:
Mxmasterr wrote:No I think the question turned on false testimony and whether the lawyer knew the expert was lying. The lawyer did his own research that contradicted the expert ... It screamed is this guy perjuring himself. The lawyer then repeated the claim to the jury which could be a false statement of fact and violate duty of candor and fairness by putting on and arguing false evidence. Then he offered an opinion from his own investigation u can't do that. He told the jury something he did that was not in evidence from personal knowledge that's not allowed. Also the lawyer being a witness stuff. I thought that whole question was testing lawyer knowledge of perjury though.


Not sure where you get purjury from based on the lawyer's reaserch, which only confirmed that weather affected deterioration rates and explained why the experts opinion might have differed. Scientific opinions can change based on conditions, no purjury in that. And of course an attorney can offer his own opinion, based on his own investigation, without first hand knowledge of the event in front of the jury. Attorneys do this all the time on cross examination and questioning. 100 percent okay, depending on how it is introduced. The only problem here is the form of introduction, which was testimonial. Not allowed under the ABA, allowed in CA if both attorneys agree.


A lawyer is prohibited from "asserting personal knowledge of facts in issue except when testifying as a witness", 3.4(e) model rules. That's what he did.

But I believe the issue with the expert's testimony was he had testified in the past in a way that was unfavorable to the client and now was testifying very favorably ... so is he lying. The lawyer did some research on this that contradicted the expert ... did the lawyer know the expert was lying? the lawyer repeated the experts claim to the jury ... did the lawyer make a false statement of fact knowingly and rely on false testimony? the lawyer made an argument about an investigation he did that was not in evidence ... so he asserted personal knowledge of facts in issue except he was not a witness. I also argued it wasn't clear the expert was lying, maybe his opinion changed based on further research, but i think you had to put it out there.

Youre just wrong on the isuse of a lawyer talking about an investigation he did, you can't get up in court and do that in closing argument.

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Re: 2018 February CA Bar

Postby What'sUP? » Fri Mar 02, 2018 1:11 pm

Mxmasterr wrote:
Bla Bla Bla Blah wrote:
cgc210 wrote:Can anyone please remind me what the first part of the question with Prof responsibility was about? I cannot remember for the life of me


The PR question was tied into the property-contracts question, re: the quitclaim deed where there was a question of whether seller misrepresented the potentially faulty roof, or had a duty to disclose and chose to omit. It asked us to analyze under the ABA and the CA rules.

I analyzed the duty of loyalty, which is essentially to represent the clients interests, and not attorney's own. The duty of competence/care, which only differs in CA because it adds to the ABA rule that attorney is to have the requisite mental, and physical, ability to competently represent. Arguably, putting an expert on the stand when the lawyer was fully aware that the expert had come to an entirely different opinion in another matter on the same issue is shows lack of competence, and certainly is not in the client's best interest.

I also analyzed the ABA rule on lawyer testimony (i.e., not at all, in this situation at least). In CA, it is allowed, but only if there is agreement among counsel and the judge permits.

That was pretty much all there was to it. I was honestly expecting more, considering that the CA Bar questions and model answers from past administrations of the test seemed to have pretty hard core PR questions that required much more analysis. For instance,
July 2017 Question 2 would have made me have an aneurysm if something like it would have popped up on this test... that one was a all out nuanced PR topic, not just a sidenote issue like ours was.


No I think the question turned on false testimony and whether the lawyer knew the expert was lying. The lawyer did his own research that contradicted the expert ... It screamed is this guy perjuring himself. The lawyer then repeated the claim to the jury which could be a false statement of fact and violate duty of candor and fairness by putting on and arguing false evidence. Then he offered an opinion from his own investigation u can't do that. He told the jury something he did that was not in evidence from personal knowledge that's not allowed. Also the lawyer being a witness stuff. I thought that whole question was testing lawyer knowledge of perjury though.


I agree -- at least perjury and duty of candor to the Court were the issues I focused on as well.

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Re: 2018 February CA Bar

Postby cgc210 » Fri Mar 02, 2018 3:17 pm

What'sUP? wrote:Does someone remember the facts from the Nuisance/Taking Question -- did the facts state what the statutory time period was to obtain an easement by prescription?


They did not give the staute, but I just said if there was a sol of 10 years...

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Re: 2018 February CA Bar

Postby Mxmasterr » Fri Mar 02, 2018 4:11 pm

cgc210 wrote:
What'sUP? wrote:Does someone remember the facts from the Nuisance/Taking Question -- did the facts state what the statutory time period was to obtain an easement by prescription?


They did not give the staute, but I just said if there was a sol of 10 years...


That what i said, common law was 20 but if the statute is 10 its 10. Are we sure this was a issue though, i let feeling like this wasn't right.

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Re: 2018 February CA Bar

Postby Bla Bla Bla Blah » Fri Mar 02, 2018 4:17 pm

Mxmasterr wrote:
Mxmasterr wrote:No I think the question turned on false testimony and whether the lawyer knew the expert was lying. The lawyer did his own research that contradicted the expert ... It screamed is this guy perjuring himself. The lawyer then repeated the claim to the jury which could be a false statement of fact and violate duty of candor and fairness by putting on and arguing false evidence. Then he offered an opinion from his own investigation u can't do that. He told the jury something he did that was not in evidence from personal knowledge that's not allowed. Also the lawyer being a witness stuff. I thought that whole question was testing lawyer knowledge of perjury though.


A lawyer is prohibited from "asserting personal knowledge of facts in issue except when testifying as a witness", 3.4(e) model rules. That's what he did.

But I believe the issue with the expert's testimony was he had testified in the past in a way that was unfavorable to the client and now was testifying very favorably ... so is he lying. The lawyer did some research on this that contradicted the expert ... did the lawyer know the expert was lying? the lawyer repeated the experts claim to the jury ... did the lawyer make a false statement of fact knowingly and rely on false testimony? the lawyer made an argument about an investigation he did that was not in evidence ... so he asserted personal knowledge of facts in issue except he was not a witness. I also argued it wasn't clear the expert was lying, maybe his opinion changed based on further research, but i think you had to put it out there.

Youre just wrong on the isuse of a lawyer talking about an investigation he did, you can't get up in court and do that in closing argument.


Alright, let's not get heated here. I think we both agree that where an attorney is not allowed to act as a witness, such a statement is against the rules. Here, the lawyer was not acting as a witness, and it would be a stretch to say that he could have been. So we both agree.

I will say that the context of what I said was in your statement that he "offered an opinion from his own investigation u can't do that." It looks as though you had a different understanding of what you meant by that, so I misunderstood. Here's an explanation along the lines of what I was thinking:

Everything offered to the jury by a lawyer comes from the lawyers investigation, including lawyer statements, including opinions, that lack first hand knowledge. For example, if the attorney's investigation turns up witness testimony based on first hand knowledge, reputation or opinion (whatever the relevant trait is, and however it is introduced--be it to impeach truthfulness, because it makes up an essential part of the claim or defense, or because defendant opened the door), or there is relevant specific act, or criminal felonies, misdemeanors (truthfulness, violence, moral turp), then attorney can offer this information. If I am crossing a witness, I might say "but you aren't always a truthful person (opinion), you've been convicted of fraud, or have done this thing that I uncovered in my witness investigation, isn't that right?" And that would be totally okay.

However, law is not black and white, as we all well know. And in certain contexts, this might not be so. Here, "asserting personal knowledge of facts" might be considered one of those areas, but not sure that qualifies as an opinion. I can't answer all of your questions on whether the lawyer knew if the expert was lying, and whether he made a false statement of fact knowingly and relied on false testimony. That's a position for you to explain. That would also require assuming some facts that were not in the fact pattern, since the fact pattern did not address whether the expert had some sort of malintent or was actually lying.

I think you're right about being able to make the argument, though, if you assume facts not in the fact pattern. And I think we both agree that asserting testimonial statements when the attorney was not able to testify would breach rule 3.4(e), though to distinguish the CA rule you would have needed to point out that in CA an attorney can act as a witness if the parties agree and the court permits--not the case here based on the facts given, but the only way to distinguish the rules.

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Re: 2018 February CA Bar

Postby Bla Bla Bla Blah » Fri Mar 02, 2018 4:25 pm

cgc210 wrote:
What'sUP? wrote:Does someone remember the facts from the Nuisance/Taking Question -- did the facts state what the statutory time period was to obtain an easement by prescription?


They did not give the staute, but I just said if there was a sol of 10 years...


I also don't recall a statutory time period for prescriptive easement. And I'm sure they didn't include the "10 year" fact for no reason at all, so definitely a good reason to bring up elements of creating a right in another's land through trespass. I saw it as a side issue, though, and a possible red haring that might distract from the main issues if I invested too much into the argument.

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Re: 2018 February CA Bar

Postby What'sUP? » Fri Mar 02, 2018 4:56 pm

I am feeling uneasy about the Con law question. Although I did end up writing about Freedom of Religion/Lemon Test/ Free Exercise; the first part of the Con Law question regarding the signage in the prison cafeteria had me stumped. I ended up relating those to speech issues -- yikes. Its a total bummer to be realizing these things after the fact. :shock:

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Re: 2018 February CA Bar

Postby cgc210 » Fri Mar 02, 2018 5:20 pm

What'sUP? wrote:I am feeling uneasy about the Con law question. Although I did end up writing about Freedom of Religion/Lemon Test/ Free Exercise; the first part of the Con Law question regarding the signage in the prison cafeteria had me stumped. I ended up relating those to speech issues -- yikes. Its a total bummer to be realizing these things after the fact. :shock:



I think just about everyone has one of those in one essay. I didn't go with free speech but I don't think if it was extra, it's going to deduct points, if it is all you mentioned about the quotes, then there might be deductions, but on one essay with one issue I would think you aren't doomed. At least I hope not, because I didn't recall several rules on the wills question, I knew the general analysis for the problems, but had no idea what the rules were all called. Ugh! 3 months is going to be rough. I wish they would tell us our MBE scores now, then I could have a better idea if I need to start prepping for July. At 50%, it doesn't matter how good essays were, if you don't do enough on the MBE.

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Re: 2018 February CA Bar

Postby Bla Bla Bla Blah » Fri Mar 02, 2018 5:33 pm

What'sUP? wrote:I am feeling uneasy about the Con law question. Although I did end up writing about Freedom of Religion/Lemon Test/ Free Exercise; the first part of the Con Law question regarding the signage in the prison cafeteria had me stumped. I ended up relating those to speech issues -- yikes. Its a total bummer to be realizing these things after the fact. :shock:


Not sure that you got it wrong my friend. You brought up the Lemon Test, which does demonstrate that you were able to spot the issue re: the signage. I think you said that the government does have a limited right to speech, which is true, if it isn't disqualified by the Lemon test. So assuming that you brought up government speech, on the one hand, and then analyzed how that speech would be implicated through the Lemon test, you might not have anything to worry about. I'm sure that my essay answers are much more disjointed than what I was attempting to explain, or can explain when I'm not in time pressured situations. We're all pumping out first draft responses, and only geniuses have time to go back and do a full on review and edit (of an actually decent response).

As long as it indicates that you spotted, and discussed, significant issues, you probably did way better than you think. You may even get that grader who sees a 65 or 70 where another might have seen a 55 (which happens all the time, look at all the complaints about the disparities in scores that happen on the second re-read).

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Re: 2018 February CA Bar

Postby hope2018 » Fri Mar 02, 2018 6:10 pm

I think you could discuss easement by prescription as defense...clues from essays were "no trespass sign" showing hostile, and "continues fetching" for "10 years".

I used SL as well but I threw in an incomplete rule with analysis...graders like t see analysis of every element of rule.
I recall saying owners are strictly liable for damages of trespass on land of another. I said dog went on land blah blah caused foreseeable damage when he dog a hole. such week analysis but I was rushing since I was running out of time.
ugh.

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Re: 2018 February CA Bar

Postby What'sUP? » Fri Mar 02, 2018 6:25 pm

Bla Bla Bla Blah wrote:
What'sUP? wrote:I am feeling uneasy about the Con law question. Although I did end up writing about Freedom of Religion/Lemon Test/ Free Exercise; the first part of the Con Law question regarding the signage in the prison cafeteria had me stumped. I ended up relating those to speech issues -- yikes. Its a total bummer to be realizing these things after the fact. :shock:


Not sure that you got it wrong my friend. You brought up the Lemon Test, which does demonstrate that you were able to spot the issue re: the signage. I think you said that the government does have a limited right to speech, which is true, if it isn't disqualified by the Lemon test. So assuming that you brought up government speech, on the one hand, and then analyzed how that speech would be implicated through the Lemon test, you might not have anything to worry about. I'm sure that my essay answers are much more disjointed than what I was attempting to explain, or can explain when I'm not in time pressured situations. We're all pumping out first draft responses, and only geniuses have time to go back and do a full on review and edit (of an actually decent response).

As long as it indicates that you spotted, and discussed, significant issues, you probably did way better than you think. You may even get that grader who sees a 65 or 70 where another might have seen a 55 (which happens all the time, look at all the complaints about the disparities in scores that happen on the second re-read).


Thanks for the insight as well as for the encouragement. My concern is that writing about the incorrect issue is right from the start is not going to make a good impression or bode well for me. But, you are right, I think it is important to remember that we are all writing under really unique situations. Not everything is going to be perfect.

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Re: 2018 February CA Bar

Postby jduckits » Fri Mar 02, 2018 6:37 pm

Saturn__Ascends wrote:
Mxmasterr wrote:
hope2018 wrote:
I did the prescriptive easement analysis, I'm glad others wrote that to, because afterward the test i thought I was waaaaaay off base for it and kicking myself. But when i saw 10 years i just said prescriptive easement.


I did prescriptive easement too. Did anyone toss in Sincerity Test on the Con Law Q?



I did the sincerity test (is it a religion, is the belief sincere, is the belief under attack/discrimination by the state action). I also started the connlaw question with a discussion on standing.

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Re: 2018 February CA Bar

Postby jduckits » Fri Mar 02, 2018 6:40 pm

Did anyone actually make any attempt to raise defenses to nuisance? I couldn’t remember the rule statements for substantial and unreasonable interference. I made them up... Not sure how many points I will get...

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Re: 2018 February CA Bar

Postby Bla Bla Bla Blah » Fri Mar 02, 2018 6:47 pm

Well, for sure my wills essay was ridiculous, especially since I figured that it would be a time trap before the PT, and therefore focused on the PT first while I still had my wits. So I was hitting fatigue and 10 minutes off my time when I answered wills... wanted to make sure that I did the best that my tiny brain would let me on the 200 point question!

Outside of that, I'm not sure that any of us know what the absolute correct way was to approach the questions. It's like eating a Reese's peanut butter cup... some creative, but very smart arguments, might end up getting better scores even if they missed a main issue, or two, or three. And I definitely took practice tests where I thought I had nailed it, and come to find out, the model answer thought that other issues were far more important. You never know until they drop the scores, and luckily we aren't waiting as long as July test takers have to wait :)

I take what's said in this forum as challenges to my viewpoints, and if valid enough, ammo for throwing down solid arguments (based on what some users are making me contemplate here) on similar issues that will now be easier to spot if I have to retake.

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Re: 2018 February CA Bar

Postby Baller31 » Fri Mar 02, 2018 7:17 pm

jduckits wrote:Did anyone actually make any attempt to raise defenses to nuisance? I couldn’t remember the rule statements for substantial and unreasonable interference. I made them up... Not sure how many points I will get...


Yes. The defense of laches, because the plaintiff was annoyed about the smokehouse smell for quite some time but did not bring a suit for equitable relief seeking an injunction or possible monetary relief within a reasonable time. It's a weak defense to nuisance but a well established on point defense according to case law. Didn't see much of anything else on point though.

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Re: 2018 February CA Bar

Postby jduckits » Fri Mar 02, 2018 7:30 pm

Baller31 wrote:
jduckits wrote:Did anyone actually make any attempt to raise defenses to nuisance? I couldn’t remember the rule statements for substantial and unreasonable interference. I made them up... Not sure how many points I will get...


Yes. The defense of laches, because the plaintiff was annoyed about the smokehouse smell for quite some time but did not bring a suit for equitable relief seeking an injunction or possible monetary relief within a reasonable time. It's a weak defense to nuisance but a well established on point defense according to case law. Didn't see much of anything else on point though.


That was a good defense to raise. Quick thinking!

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Re: 2018 February CA Bar

Postby Baller31 » Fri Mar 02, 2018 7:41 pm

jduckits wrote:
Baller31 wrote:
jduckits wrote:Did anyone actually make any attempt to raise defenses to nuisance? I couldn’t remember the rule statements for substantial and unreasonable interference. I made them up... Not sure how many points I will get...


Yes. The defense of laches, because the plaintiff was annoyed about the smokehouse smell for quite some time but did not bring a suit for equitable relief seeking an injunction or possible monetary relief within a reasonable time. It's a weak defense to nuisance but a well established on point defense according to case law. Didn't see much of anything else on point though.


That was a good defense to raise. Quick thinking!


Thanks. Really had to think fast for that one. I figured that it was maybe smart to devote more time to the condemnation/takings action since they gave us that issue, making it likely they expected more analysis on it, and just use prior knowledge from past cases on the private nuisance action coupled with possible defenses. Apparently both private nuisance and condemnation is a real big issue in California.

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Re: 2018 February CA Bar

Postby RezIpsy » Fri Mar 02, 2018 7:53 pm

Bla Bla Bla Blah wrote:
Mxmasterr wrote:
Mxmasterr wrote:No I think the question turned on false testimony and whether the lawyer knew the expert was lying. The lawyer did his own research that contradicted the expert ... It screamed is this guy perjuring himself. The lawyer then repeated the claim to the jury which could be a false statement of fact and violate duty of candor and fairness by putting on and arguing false evidence. Then he offered an opinion from his own investigation u can't do that. He told the jury something he did that was not in evidence from personal knowledge that's not allowed. Also the lawyer being a witness stuff. I thought that whole question was testing lawyer knowledge of perjury though.


A lawyer is prohibited from "asserting personal knowledge of facts in issue except when testifying as a witness", 3.4(e) model rules. That's what he did.

But I believe the issue with the expert's testimony was he had testified in the past in a way that was unfavorable to the client and now was testifying very favorably ... so is he lying. The lawyer did some research on this that contradicted the expert ... did the lawyer know the expert was lying? the lawyer repeated the experts claim to the jury ... did the lawyer make a false statement of fact knowingly and rely on false testimony? the lawyer made an argument about an investigation he did that was not in evidence ... so he asserted personal knowledge of facts in issue except he was not a witness. I also argued it wasn't clear the expert was lying, maybe his opinion changed based on further research, but i think you had to put it out there.

Youre just wrong on the isuse of a lawyer talking about an investigation he did, you can't get up in court and do that in closing argument.


Alright, let's not get heated here. I think we both agree that where an attorney is not allowed to act as a witness, such a statement is against the rules. Here, the lawyer was not acting as a witness, and it would be a stretch to say that he could have been. So we both agree.

I will say that the context of what I said was in your statement that he "offered an opinion from his own investigation u can't do that." It looks as though you had a different understanding of what you meant by that, so I misunderstood. Here's an explanation along the lines of what I was thinking:

Everything offered to the jury by a lawyer comes from the lawyers investigation, including lawyer statements, including opinions, that lack first hand knowledge. For example, if the attorney's investigation turns up witness testimony based on first hand knowledge, reputation or opinion (whatever the relevant trait is, and however it is introduced--be it to impeach truthfulness, because it makes up an essential part of the claim or defense, or because defendant opened the door), or there is relevant specific act, or criminal felonies, misdemeanors (truthfulness, violence, moral turp), then attorney can offer this information. If I am crossing a witness, I might say "but you aren't always a truthful person (opinion), you've been convicted of fraud, or have done this thing that I uncovered in my witness investigation, isn't that right?" And that would be totally okay.

However, law is not black and white, as we all well know. And in certain contexts, this might not be so. Here, "asserting personal knowledge of facts" might be considered one of those areas, but not sure that qualifies as an opinion. I can't answer all of your questions on whether the lawyer knew if the expert was lying, and whether he made a false statement of fact knowingly and relied on false testimony. That's a position for you to explain. That would also require assuming some facts that were not in the fact pattern, since the fact pattern did not address whether the expert had some sort of malintent or was actually lying.

I think you're right about being able to make the argument, though, if you assume facts not in the fact pattern. And I think we both agree that asserting testimonial statements when the attorney was not able to testify would breach rule 3.4(e), though to distinguish the CA rule you would have needed to point out that in CA an attorney can act as a witness if the parties agree and the court permits--not the case here based on the facts given, but the only way to distinguish the rules.


I argued about the lawyer testifying as an issue as well. However, regarding the expert I couldn’t figure out why the heck the atty was calling an expert on tiles on a rescission of K for so I threw in an incompetence argument. The “experienced” trial attorney steered me in that direction but I was running out of time so I had to roll with it. I can only imagine what these graders think! They have likely seen some really creative arguments! :lol:

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Re: 2018 February CA Bar

Postby What'sUP? » Fri Mar 02, 2018 8:05 pm

jduckits wrote:Did anyone actually make any attempt to raise defenses to nuisance? I couldn’t remember the rule statements for substantial and unreasonable interference. I made them up... Not sure how many points I will get...


I feel like I had sufficient rule statements . . . I know they weren't perfect but we'll see. . . :?



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