Themis Bar Review Hangout - July 2015 Exam Forum

[soj]

.

[Pleasye]

Explanation to MBE Question says: "Answer choice B is incorrect because an expert does not need to reach a particular level of scientific certainty in order for his testimony to be admissible."

Themis lecture outline says: "Experts must also possess a reasonable degree of certainty in their opinion."



And naturally...

The foregoing NCBE MBE question has been modified to reflect current NCBE stylistic approaches; the NCBE has not reviewed or endorsed this modification.

A particular level of scientific certainty isn't the same as a reasonable degree of certainty.

Agree that the modified questions generally suck though.

[adevine39]

Just had a minor heart palpitation when I looked at the date and realized in exactly one month this stupid thing starts.

[UnamSanctam]

I know I'm embarrassingly behind, but a Milestone 1 of 68 is good, right?

Score brother.Beware, I got railed by the next few topics.

thanks all, yeah i am worried because constitutional law still confuses me and i hated crim law so I needed a pick me up to prepare me for the next few weeks.

I hated Crim, too, and it has turned out to be my best area. I think you might start slow on Con Law but the rules start making sense just by drilling PQs. Evidence and Civ Pro can be a little daunting too with esoteric intricacies, but I think understanding the underlying policies that drive those help you get to the right answer (or at least eliminate the wrong) when you're in a pinch. Crim Pro though. That messes with me. I have no advice.

[collegewriter]

Hi folks

Lurking for a while. Foreign student here trying desperately to catch up to your curve;) Feeling alone (hence posting on a Sunday instead of studying). While I am really excited and feel privileged to be able to go to the US to sit this test (never been before!), I also feel I'm on the brink of madness.

Anyway I wanted to share this amazing hearsay lecture on you tube. I know you all have so much at stake and the lectures weren't terribly helpful (to me anyway). It's a well spent hour (if you don't get hearsay). Don't let the guitar at the beginning put you off. This guy should have taught the whole MBE. I think I love him.

https://www.youtube.com/watch?v=rNeFsjTfs2s

May I ask you guys for any advice:

1. re NY materials - I'm watching/reading family, wills, NY prac, Corps, and just going to read the rest. Did you find it worthwhile watchig all the lectures? It's been a bit hit and miss so far.

2. PRACTICAL tactics for handwriting an MPT (or just practical tactics for outlining an answer effectively, full stop?) I watched the lectures - seems like a clever guy - but freaked out because by the time I would have finished crafting his structure (and I just got confused honestly by the handout) I would run out of time to write the thing - would seem to be very difficult even with a computer. Anyway, now I have a big ole case of MPT analysis - paralysis and I panic when I try to start one.

ps - I am finding a lot of comfort in this board, so thanks to all

Cheers peeps

I found the MPT videos really confusing as well but a friend who was farther along told me to stick with it and use the method. I distilled his method into own document:
How to Write a MPT Answer:

1. Read Task Memo
a. What is the POV? Objective OR Persuasive
b. Who is the audience? Legal OR Laypeople
c. What type of assignment is it?
2. Read the Library (UNLESS the question is a problem-solving question)
a. Read the oldest cases first
b. Read shorter factual things first (like police statements)
c. Note jurisdiction and chronology as you read—controlling or not?
d. Pay attention to footnotes and quotes
e. Pay attention to relationship between cases
f. Note policy concerns
g. Note which cases are good and bad—note whether you want to be similar or different.
h. Note whether a policy will apply to you.
i. Note where it is important to differentiate your situation from controlling law.
3. Make Rules and Tests (Note: have found this step not always necessary--sometimes it means re-writing a test from materials you receive)
a. Focus on grey areas of law
b. Read cases with an eye to determining why the case is included
c. Craft a test that addresses those grey areas and the materials
d. Add the elements of the test under a heading
4. Read the File
a. Focus on finding relevant facts that prove or disprove the elements in your working outline
b. Characterize relationships and insert into your outline
c. Some facts will be irrelevant
d. Add facts into your working outline under the headings
e. Create an ATTACK outline that determines the order of arguments
5. Write
a. IRAC for objective writing
b. CRAC for persuasive writing

Sorry formatting is weird.

Keep this list by you on practice MPTs and religiously follow it. By the time you get to 5, you should be able to do it in about 20-30 minutes if you type reasonably fast. Good luck!

[smalogna]

Hi folks

Lurking for a while. Foreign student here trying desperately to catch up to your curve;) Feeling alone (hence posting on a Sunday instead of studying). While I am really excited and feel privileged to be able to go to the US to sit this test (never been before!), I also feel I'm on the brink of madness.

Anyway I wanted to share this amazing hearsay lecture on you tube. I know you all have so much at stake and the lectures weren't terribly helpful (to me anyway). It's a well spent hour (if you don't get hearsay). Don't let the guitar at the beginning put you off. This guy should have taught the whole MBE. I think I love him.

https://www.youtube.com/watch?v=rNeFsjTfs2s

May I ask you guys for any advice:

1. re NY materials - I'm watching/reading family, wills, NY prac, Corps, and just going to read the rest. Did you find it worthwhile watchig all the lectures? It's been a bit hit and miss so far.

2. PRACTICAL tactics for handwriting an MPT (or just practical tactics for outlining an answer effectively, full stop?) I watched the lectures - seems like a clever guy - but freaked out because by the time I would have finished crafting his structure (and I just got confused honestly by the handout) I would run out of time to write the thing - would seem to be very difficult even with a computer. Anyway, now I have a big ole case of MPT analysis - paralysis and I panic when I try to start one.

ps - I am finding a lot of comfort in this board, so thanks to all

Cheers peeps

I found the MPT videos really confusing as well but a friend who was farther along told me to stick with it and use the method. I distilled his method into own document:
How to Write a MPT Answer:

1. Read Task Memo
a. What is the POV? Objective OR Persuasive
b. Who is the audience? Legal OR Laypeople
c. What type of assignment is it?
2. Read the Library (UNLESS the question is a problem-solving question)
a. Read the oldest cases first
b. Read shorter factual things first (like police statements)
c. Note jurisdiction and chronology as you read—controlling or not?
d. Pay attention to footnotes and quotes
e. Pay attention to relationship between cases
f. Note policy concerns
g. Note which cases are good and bad—note whether you want to be similar or different.
h. Note whether a policy will apply to you.
i. Note where it is important to differentiate your situation from controlling law.
3. Make Rules and Tests (Note: have found this step not always necessary--sometimes it means re-writing a test from materials you receive)
a. Focus on grey areas of law
b. Read cases with an eye to determining why the case is included
c. Craft a test that addresses those grey areas and the materials
d. Add the elements of the test under a heading
4. Read the File
a. Focus on finding relevant facts that prove or disprove the elements in your working outline
b. Characterize relationships and insert into your outline
c. Some facts will be irrelevant
d. Add facts into your working outline under the headings
e. Create an ATTACK outline that determines the order of arguments
5. Write
a. IRAC for objective writing
b. CRAC for persuasive writing

Sorry formatting is weird.

Keep this list by you on practice MPTs and religiously follow it. By the time you get to 5, you should be able to do it in about 20-30 minutes if you type reasonably fast. Good luck!

I've found the MPT to be the one big area of this exam that you need to be cognizant of your personal style of analysis. I tried the first two practices following the Themis method and did horribly and had no time to write my response. It's trial and error. I now read the memo, read the statutes, read the file, read the cases, and then come up with my topic titles and subtopic titles and attack each one step by step. I have abandoned the whole outline before you write process because it just doesn't work for me I try to make my outline too perfect. I've done three since I've changed my process and it's drastically improved. You just need to play around with different approaches and eventually you will find the one that works for you.

[misterjames]

Just had a minor heart palpitation when I looked at the date and realized in exactly one month this stupid thing starts.

i still feel like it's a ton of time. i think i'll reserve my freak outs until the 2 week mark.

[lacrossebrother]

ya im still at like 8%. not impressed by the difficulty of this thing. july 11 gonna start studying.

[anon sequitur]

ya im still at like 8%. not impressed by the difficulty of this thing. july 11 gonna start studying.

Good to know you're out there, taking it easy for all us sinners.

[MrBriggs360]

ya im still at like 8%. not impressed by the difficulty of this thing. july 11 gonna start studying.

Man, and I thought I cut myself short by only leaving 8 weeks to study! I'm on the way to 50% with four weeks left and still feel like I'm going to be buried for 12 hours a day for the next month.

[somuchbooty]

ya im still at like 8%. not impressed by the difficulty of this thing. july 11 gonna start studying.

lol i hope this is a troll

[MrBriggs360]

Heads up to New Yorkers, I don't know how substantially we will be tested on Administrative Law, but the NY lectures and handout leave out a TON of information that's contained within the large outline and is probably pertinent. So if you haven't given that large outline at least a look, I'd breeze through it quickly and familiarize yourself.

[smalogna]

Some help please on a civ pro Q (shocker)

[+] Spoiler

An employer brought suit against a former employee for damages due to breach of fiduciary duty. The complaint, which was properly filed in federal district court, alleged that the claim arose out of the former employee’s management of a competing business while he was an employee of the employer. The former employee, in his timely filed answer, admitted the employer’s allegations but alleged that the employer failed to pay the former employee commissions earned while an employee of the employer. The former employee then asserted that this allegation constituted an affirmative defense to the employer’s action. The former employee’s answer also contained a counterclaim for the unpaid commissions and unreimbursed expenses. Ten days after service of the answer, the employer responded to the counterclaim with a denial that the former employee had not been paid commissions owed. Twenty days after service of the answer, the employer moved to strike the former employee’s affirmative defense. An employer’s failure to compensate an employee does not constitute an affirmative defense to a breach of fiduciary duty action by the employer under the applicable jurisdiction’s law.

How should the court rule on the employer’s motion to strike?
A Grant the motion, because the employer denied the former employee’s allegation that he had not been paid commissions earned while an employee.
B Grant the motion, because the affirmative defense is insufficient as a matter of law.
C Deny the motion, because the employer could have filed a motion for judgment on the pleadings.
D Deny the motion, because it was not timely filed.

Answer choice B is correct. If a pleading contains an insufficient defense, a party must move to strike the defense from the pleading either before responding to the pleading or, if a responsive pleading is not permitted, within 21 days after being served with the pleading. Here, the defense is insufficient as a matter of the applicable jurisdiction’s law, so the motion to strike should be granted.

Didn't the employer respond to the answer thereby waiving their ability to strike the defense...you know as the answer explanation says.

[MrBriggs360]

Heads up to New Yorkers, I don't know how substantially we will be tested on Administrative Law, but the NY lectures and handout leave out a TON of information that's contained within the large outline and is probably pertinent. So if you haven't given that large outline at least a look, I'd breeze through it quickly and familiarize yourself.

EDIT: Nevermind, he just covered stuff out of order.

[annapach]

ya im still at like 8%. not impressed by the difficulty of this thing. july 11 gonna start studying.

lol i hope this is a troll

seems this guy has made his troll status obvious on a variety of boards

[always_raining]

ya im still at like 8%. not impressed by the difficulty of this thing. july 11 gonna start studying.

Man, and I thought I cut myself short by only leaving 8 weeks to study! I'm on the way to 50% with four weeks left and still feel like I'm going to be buried for 12 hours a day for the next month.

You're basically caught up! 4 weeks out and I'm on schedule and at 55%.

[somuchbooty]

ya im still at like 8%. not impressed by the difficulty of this thing. july 11 gonna start studying.

lol i hope this is a troll

seems this guy has made his troll status obvious on a variety of boards

yeah, suppose he is. I'm at 32% right now, which guarantees I won't have time to do anything else for the next month, which I'm cool with. I'm almost ashamed to be that far behind as is, I can't imagine down at 8%.

[kjartan]

Explanation to MBE Question says: "Answer choice B is incorrect because an expert does not need to reach a particular level of scientific certainty in order for his testimony to be admissible."

Themis lecture outline says: "Experts must also possess a reasonable degree of certainty in their opinion."



And naturally...

The foregoing NCBE MBE question has been modified to reflect current NCBE stylistic approaches; the NCBE has not reviewed or endorsed this modification.

A particular level of scientific certainty isn't the same as a reasonable degree of certainty.

Agree that the modified questions generally suck though.

I realize that. I shouldn't have truncated Themis's rule statement. My point was that Themis gives an incomplete rule statement in the explanation. Themis says all that's required is: (1) qualified expert; (2) testimony based on sufficient facts and data; (3) testimony is product of reliable principles and methods; and (4) expert applied principles and methods reliable. Themis completely omits the reasonable degree of certainty requirement.

[lacrossebrother]

ya i trolled you. not actually at 8%

[annapach]

Question re: crim pro.

Here is the question:

[+] Spoiler

A brutal murder occurred at a roadside rest area. Unable to determine the identity of the killer, the police set up a checkpoint on the highway near the rest area several days later at approximately the same time of night as the murder occurred. The purpose of the checkpoint was to ask travelers for help in solving the murder. The police stopped every car and gave the driver a flyer with information about the murder. The officer then asked the driver if he had any relevant information he wanted share with police. If the driver responded negatively, the driver was allowed to continue on his way. If the driver responded affirmatively, the car was directed to the shoulder of the road to talk with another officer. A driver who was stopped in this manner was smoking marijuana. The police officer, upon smelling the marijuana, directed the driver to the side of the road where the driver was arrested. At the driver's trial for driving under the influence, the driver moves to exclude the evidence of the marijuana from the trial on the grounds that the stop violated his constitutional rights.

Should the court grant the driver's motion

Answer:

[+] Spoiler

No, because the police had an information seeking purpose in stopping the driver.

Answer Explanation:

[+] Spoiler

Police may set up of checkpoint for the purpose of seeking information about a crime without violating the constitutional rights of a driver who is stopped.

Excerpt from long outline:

[+] Spoiler

Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles

My problem with this:

[+] Spoiler

Is a murder at a rest stop closely related to an issue affecting automobiles? That seems like a stretch.

[kjartan]

Ugh, I was so close to hitting 90% on my last conlaw MBE set. Two Themis modified questions fucked me.

[BearLaw]

Some help please on a civ pro Q (shocker)

[+] Spoiler

An employer brought suit against a former employee for damages due to breach of fiduciary duty. The complaint, which was properly filed in federal district court, alleged that the claim arose out of the former employee’s management of a competing business while he was an employee of the employer. The former employee, in his timely filed answer, admitted the employer’s allegations but alleged that the employer failed to pay the former employee commissions earned while an employee of the employer. The former employee then asserted that this allegation constituted an affirmative defense to the employer’s action. The former employee’s answer also contained a counterclaim for the unpaid commissions and unreimbursed expenses. Ten days after service of the answer, the employer responded to the counterclaim with a denial that the former employee had not been paid commissions owed. Twenty days after service of the answer, the employer moved to strike the former employee’s affirmative defense. An employer’s failure to compensate an employee does not constitute an affirmative defense to a breach of fiduciary duty action by the employer under the applicable jurisdiction’s law.

How should the court rule on the employer’s motion to strike?
A Grant the motion, because the employer denied the former employee’s allegation that he had not been paid commissions earned while an employee.
B Grant the motion, because the affirmative defense is insufficient as a matter of law.
C Deny the motion, because the employer could have filed a motion for judgment on the pleadings.
D Deny the motion, because it was not timely filed.

Answer choice B is correct. If a pleading contains an insufficient defense, a party must move to strike the defense from the pleading either before responding to the pleading or, if a responsive pleading is not permitted, within 21 days after being served with the pleading. Here, the defense is insufficient as a matter of the applicable jurisdiction’s law, so the motion to strike should be granted.

Didn't the employer respond to the answer thereby waiving their ability to strike the defense...you know as the answer explanation says.

I think (and someone jump in if I am misunderstanding) that the waiver would only apply if the court ordered a reply to the answer outside of a response/answer to the countercliam. Since employer only responded to the counterclaim, and there would not otherwise be a reply required to the answer/defenses, the 21 day rule would still apply? That seems attenuated, but its the best I can come up with.

[UnamSanctam]

ya im still at like 8%. not impressed by the difficulty of this thing. july 11 gonna start studying.

lol i hope this is a troll

seems this guy has made his troll status obvious on a variety of boards

Lax rarely outright lies. Especially outside the Lounge.

[annapach]

ya i trolled you. not actually at 8%
[img]http://i.imgur.com/TJXfMWv.png

I stand corrected. Respect.

[refinedwarrior]

My scores SUCK. I have never done so poorly and I am ready to give up. I hate VA and there are so many sections. I work full time right now and hope July 1st I'll be able to take the month of July off. I don't know why I can't recall like I used to. I'm guessing my cardiac arrest/coma didn't help though that was in November 2013.