California Bar Exam (July 2013) thread Forum

[M2izzie]

If I fail it will be because of PTs ... If one gets 70s on the essays and 55s on the PTs and an average MBE can one pass? ... Thanks

[M2izzie]

Did anyone else get extra brownie point by analyzing by comparison that K's question with that Redding Pipe case from 1L?

[Another]

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[Another]

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[Another]

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[a male human]

Day 3 way too easy.

Really? I thought essays were decent, but I was unsure about where to focus on for the PT.

Same. I even forgot to talk about how evidence must be relevant to be admissible! I think I mentioned that in one subsection somewhere, fuck.

Also for the wills question, I thought "republication" does not work with the codicil because there still isn't a witness. I went into a full analysis on intestate distribution, which worked out nicely with the 300k figure divisible by 3... Did I fuck up?

Give me reasons to put more Captain Morgan in my stomach. It's empty, and I can feel it burning through my lining into my bloodstream.

[thrillerjesus]

So, on the wills essay. I totally thought that a holographic codicil cannot make valid a prior invalid attested will. I recognized the issue, and raised it, but was apparently wrong on the law?

I still raised all the issues that would otherwise have come up, and analyzed them as if the will had been effectively republished before noting the issue was actually moot since there was no valid will. And obviously I divided the estate as if it were intestate.

How fucked am I?

It's so hard to know how much the essay graders care about issue spotting versus strength of analysis versus actually knowing the law correctly.

[deadlinguo]

I think I failed the torts Q today. I forgot it said intentional torts only so in addition to trespass and trespass to chattels/conversion I also did a negligence analysis. I also forgot to discuss nuisance and injunctive relief to remove the trees under the remedies portion. Did I fail? How bad does it look that I included negligence?

That one mistake won't cost you on the exam. You talked about trespass to land and trespass to chattel/conversion. Those were the big intentional torts you had to mention. My nuisance analysis was small (someone can correct me if there were other intentional torts that were supposed to be there).

It's fine if you didn't mention the specific remedy to remove the trees. I don't think you needed to do a full-blown IFBD analysis. It's removing trees. Legal remedies should clearly be enough. The court isn't going to force the guy to remove the trees if he could easily just pay the Plaintiff money so that plaintiff can hire a contractor to do it himself. The court also wouldn't want to supervise this D-fool and make sure he performs correctly when removing trees.

Hope that helps. Again, I'm not infallible; if someone thinks otherwise, let me know.

I completely agree with this and didn't mention anything about injunctive relief because of that. I didn't write beyond legal remedies. Wonder if it would have been better to bring up equitable remedies and then explain why not.

[deadlinguo]

For the wills question: I think in California there is a "substantial compliance" rule for wills where if you mostly follow the formalities and there's clear intent to form a will, its still valid. Might be wrong though I dunno.

[chocolateicecream]

For the wills failure to have both witnesses, I discussed the harmless error rule.

[neilu789]

In cal, you don't need both witnesses to have joint presence, nor is the will invalid based on interested witnesses, so I think the attested will was valid

[a male human]

Great, my notes don't say anything about a harmless error rule.

o Signed by 2 witnesses
 Must be present at the same time

Then again, the graders don't care about your conclusion; they care about your analysis! or so they say

[thrillerjesus]

In cal, you don't need both witnesses to have joint presence, nor is the will invalid based on interested witnesses, so I think the attested will was valid

Not saying you're wrong, because obviously I have no idea anymore, but IIRC he didn't have even single presence. Neither witness was actually in the room when he signed the will. He just presented a signed will to them for them to witness. That's not kosher, right? Or have I got this subject even more wrong than I realized?

[spartjdawg]

In cal, you don't need both witnesses to have joint presence, nor is the will invalid based on interested witnesses, so I think the attested will was valid

Cal Statutes disagree with you:

6110. (a) Except as provided in this part, a will shall be in
writing and satisfy the requirements of this section.
(b) The will shall be signed by one of the following:
(1) By the testator.
(2) In the testator's name by some other person in the testator's
presence and by the testator's direction.
(3) By a conservator pursuant to a court order to make a will
under Section 2580.
(c) (1) Except as provided in paragraph (2), the will shall be
witnessed by being signed, during the testator's lifetime, by at
least two persons each of whom (A) being present at the same time,
witnessed either the signing of the will or the testator's
acknowledgment of the signature or of the will and (B) understand
that the instrument they sign is the testator's will.
(2) If a will was not executed in compliance with paragraph (1),
the will shall be treated as if it was executed in compliance with
that paragraph if the proponent of the will establishes by clear and
convincing evidence that, at the time the testator signed the will,
the testator intended the will to constitute the testator's will.

[neilu789]

In cal, you don't need both witnesses to have joint presence, nor is the will invalid based on interested witnesses, so I think the attested will was valid

Cal Statutes disagree with you:

6110. (a) Except as provided in this part, a will shall be in
writing and satisfy the requirements of this section.
(b) The will shall be signed by one of the following:
(1) By the testator.
(2) In the testator's name by some other person in the testator's
presence and by the testator's direction.
(3) By a conservator pursuant to a court order to make a will
under Section 2580.
(c) (1) Except as provided in paragraph (2), the will shall be
witnessed by being signed, during the testator's lifetime, by at
least two persons each of whom (A) being present at the same time,
witnessed either the signing of the will or the testator's
acknowledgment of the signature or of the will and (B) understand
that the instrument they sign is the testator's will.
(2) If a will was not executed in compliance with paragraph (1),
the will shall be treated as if it was executed in compliance with
that paragraph if the proponent of the will establishes by clear and
convincing evidence that, at the time the testator signed the will,
the testator intended the will to constitute the testator's will.

that just says that they have to either see testator sign at the same time or have the signature pointed out to them at the same time. IIRC, T pointed out his signature to both at the same time and one signed immediately and one signed the next day. I think that is kosher, but I could be wrong

[softey]

In cal, you don't need both witnesses to have joint presence, nor is the will invalid based on interested witnesses, so I think the attested will was valid

Cal Statutes disagree with you:

6110. (a) Except as provided in this part, a will shall be in
writing and satisfy the requirements of this section.
(b) The will shall be signed by one of the following:
(1) By the testator.
(2) In the testator's name by some other person in the testator's
presence and by the testator's direction.
(3) By a conservator pursuant to a court order to make a will
under Section 2580.
(c) (1) Except as provided in paragraph (2), the will shall be
witnessed by being signed, during the testator's lifetime, by at
least two persons each of whom (A) being present at the same time,
witnessed either the signing of the will or the testator's
acknowledgment of the signature or of the will and (B) understand
that the instrument they sign is the testator's will.
(2) If a will was not executed in compliance with paragraph (1),
the will shall be treated as if it was executed in compliance with
that paragraph if the proponent of the will establishes by clear and
convincing evidence that, at the time the testator signed the will,
the testator intended the will to constitute the testator's will.

that just says that they have to either see testator sign at the same time or have the signature pointed out to them at the same time. IIRC, T pointed out his signature to both at the same time and one signed immediately and one signed the next day. I think that is kosher, but I could be wrong

I thought the attested will was valid for same reason--the barbri wills instructor expressly said they do not need to sign at same time and that acknowledgement is fine

[spartjdawg]

In cal, you don't need both witnesses to have joint presence, nor is the will invalid based on interested witnesses, so I think the attested will was valid

Cal Statutes disagree with you:

6110. (a) Except as provided in this part, a will shall be in
writing and satisfy the requirements of this section.
(b) The will shall be signed by one of the following:
(1) By the testator.
(2) In the testator's name by some other person in the testator's
presence and by the testator's direction.
(3) By a conservator pursuant to a court order to make a will
under Section 2580.
(c) (1) Except as provided in paragraph (2), the will shall be
witnessed by being signed, during the testator's lifetime, by at
least two persons each of whom (A) being present at the same time,
witnessed either the signing of the will or the testator's
acknowledgment of the signature or of the will and (B) understand
that the instrument they sign is the testator's will.
(2) If a will was not executed in compliance with paragraph (1),
the will shall be treated as if it was executed in compliance with
that paragraph if the proponent of the will establishes by clear and
convincing evidence that, at the time the testator signed the will,
the testator intended the will to constitute the testator's will.

that just says that they have to either see testator sign at the same time or have the signature pointed out to them at the same time. IIRC, T pointed out his signature to both at the same time and one signed immediately and one signed the next day. I think that is kosher, but I could be wrong

You are mistaken (I think). Acknowledgment is different than pointing out to someone that you signed. Its a legal acknowledgment and part of a written document.

[madison12991]

Haha, yeah, the wills essay confused me to no end. I was like, "There's a valid will, the interested witness maybe shouldn't take under it, everyone else is good, holographic codicil also good, the first wife's death doesn't matter, what's more to say?"

Seriously, what else was there? I couldn't figure it out and left this morning thinking that between that and spending 40 minutes trying to figure out what intentional torts I was forgetting instead of focusing on weird remedies, I had failed for sure.

[spartjdawg]

Haha, yeah, the wills essay confused me to no end. I was like, "There's a valid will, the interested witness maybe shouldn't take under it, everyone else is good, holographic codicil also good, the first wife's death doesn't matter, what's more to say?"

Seriously, what else was there? I couldn't figure it out and left this morning thinking that between that and spending 40 minutes trying to figure out what intentional torts I was forgetting instead of focusing on weird remedies, I had failed for sure.

My analysis was that it was not validly executed. However, the holographic codicil, through incorporation by reference validated the will. There was also the issue of the "Son" and interpretation of what that meant, but I missed it.

[cavalierattitude]

What about bent finger where doc didn't give a full disclosure but it was normal in the field to not give full disclosure

I put that it woudn't have prevented it from happening (because the patient would still have ocnsented to the procedure/reasonable patient or wahtever could reasonably have still consented to the procedure witht hat full disclosure).

The question was a negligence question, not a battery question. That answer went to the issue of consent to prevent battery. The doctor went along with typical doctor practice, thus no negligence. Battery is another question. This may be completely wrong, though.

I agree. Negligence and decided duty of care in the profession was the standard

I had this at first but remembered my 1L Torts prof harping on the idea that failure to comply with industry standard shows negligence but compliance with industry standard doesn't show absence of negligence because the standard itself could be unreasonable. Something about glass shower doors not made of safety glass.

[spartjdawg]

Here is an example of a will with an acknowledgment. --LinkRemoved--

I know it sounds crazy, but if the statute allowed you to defeat the witness requirement by just saying "Oh, he pointed to it and said it was his signature" it would be very easy to commit fraud.

[mrpickles]

Haha, yeah, the wills essay confused me to no end. I was like, "There's a valid will, the interested witness maybe shouldn't take under it, everyone else is good, holographic codicil also good, the first wife's death doesn't matter, what's more to say?"

Seriously, what else was there? I couldn't figure it out and left this morning thinking that between that and spending 40 minutes trying to figure out what intentional torts I was forgetting instead of focusing on weird remedies, I had failed for sure.

I don't think there was much more to say.
Interested witness but no facts to indicate undue influence, but even if not valid bc of witnesses/sig stuff --> it's valid holo codicil that validated it, and that clarified his his current wife gets stuff at death. Only other thing was "stepson" usage in will I analyzed. Said dont know if adopted, but even if not, he obviously thought about will changes with codicil, so I said the kid still takes, and also easy extrinsic evidence to figure out who stepson was. But I mean, what else was there? I ended up telling everything I knew about testamentary capacity, testamentary intent, etc. Small into on CA = CP state so you can only will away 1/2 of CP, etc.
I don't know, was there some hidden issue in there?

[cavalierattitude]

20 grams of drugs under the seat in rental car? Prior arrests for 20 grams of drugs in rental car = admissible to show common scheme?

I put admissible for sale and possession

B.S. on that, if I have a case of apples on 6/3, 7/19, and 7/26, how does that prove that I also had a case of apples on 10/2? But if I had them for sale on those three dates and I also had a case on 10/2, then it seems likely that I was looking to sell the case on 10/2 also.

[spartjdawg]

I had this at first but remembered my 1L Torts prof harping on the idea that failure to comply with industry standard shows negligence but compliance with industry standard doesn't show absence of negligence because the standard itself could be unreasonable. Something about glass shower doors not made of safety glass.

That is industry standard for non-professional fields.

[TaipeiMort]

In cal, you don't need both witnesses to have joint presence, nor is the will invalid based on interested witnesses, so I think the attested will was valid

Cal Statutes disagree with you:

6110. (a) Except as provided in this part, a will shall be in
writing and satisfy the requirements of this section.
(b) The will shall be signed by one of the following:
(1) By the testator.
(2) In the testator's name by some other person in the testator's
presence and by the testator's direction.
(3) By a conservator pursuant to a court order to make a will
under Section 2580.
(c) (1) Except as provided in paragraph (2), the will shall be
witnessed by being signed, during the testator's lifetime, by at
least two persons each of whom (A) being present at the same time,
witnessed either the signing of the will or the testator's
acknowledgment of the signature or of the will and (B) understand
that the instrument they sign is the testator's will.
(2) If a will was not executed in compliance with paragraph (1),
the will shall be treated as if it was executed in compliance with
that paragraph if the proponent of the will establishes by clear and
convincing evidence that, at the time the testator signed the will,
the testator intended the will to constitute the testator's will.

that just says that they have to either see testator sign at the same time or have the signature pointed out to them at the same time. IIRC, T pointed out his signature to both at the same time and one signed immediately and one signed the next day. I think that is kosher, but I could be wrong

You are mistaken (I think). Acknowledgment is different than pointing out to someone that you signed. Its a legal acknowledgment and part of a written document.

If he didn't sign in their presence, he must expressly or impliedly acknowledge his signature to them before they sign (like saying it is right here, pointing at it).