2015 February California Bar Exam Forum

[esq]

I try to say loon generally to avoid specifics, but suppose that it was shown that zoo and elephant were figments of loons imagination, then loon is delusional...can be looney, can't be delusional as to intent.

[hyc9598]

Resulting trust is an implied in fact trust based on presumed intent on the party. Honorary trust or failing cy pres results in it.

Common law allows presumption of undue influence by fiduciaries when there is a such relationship and active participation and unnatural result. CA statute conclusively presumes undue influence when fiduciary's transcribing or causing it and the gift is to drafter, relatives or associates.

[defamationnation]

Is it just me, or did the question in PT B specify to only talk about her non-verbal conduct? And to argue that that the mom's non-verbal conduct was to be excluded?? So why are people talking about her excited utterance? I actually made a heading for verbal conduct after nonverbal conduct just to be safe.


I read the instructions very thoroughly (or so i thought). Any input?

[JDMBALLMMS]

Is it just me, or did the question in PT B specify to only talk about her non-verbal conduct? And to argue that that the mom's non-verbal conduct was to be excluded?? So why are people talking about her excited utterance? I actually made a heading for verbal conduct after nonverbal conduct just to be safe.


I read the instructions very thoroughly (or so i thought). Any input?

I thought it said verbal and non-verbal. I do remember that gave me a clue to read the transcript again and make comment on both.

[LawIsPrettyCool]

Resulting trust is an implied in fact trust based on presumed intent on the party. Honorary trust or failing cy pres results in it.

Common law allows presumption of undue influence by fiduciaries when there is a such relationship and active participation and unnatural result. CA statute conclusively presumes undue influence when fiduciary's transcribing or causing it and the gift is to drafter, relatives or associates.

The answer will be analyzed differently in the two state released questions. One will say the money goes to the elephants due to cy pres doctrine since that elephant lady would have wanted it to do so since they may get more elephants or give it to other animals that are similar to elephants, such as Dolphins, or monkeys. The other will say nah, first you get da elephants, den you get da respect, den you get da money. Resulting trust, back to heirs. Grandchildren > Elefantes.

[hyc9598]

It is a hearsay because nodding two (by paramedic's memory) or three (by Taylor's memory) times is verbal conduct (assertion). It is a statement. It is an assertive conduct and out of court statement to prove the truth of the matter asserted. We need exception even if this is not testimonial (not for the use of later trial or to prove past act). There is no excited utterance exception. First Jackson says the excited state (demeanor, voice, crying, etc.) is determinative than lapse of time. The late father's report was not made in agitated state. Compare that to Davis's. Also, the third case (forgot name) says 911 is law enforcement action but in any way this is to prove the past act because the father said the son left. There was no emergency. This is just to report or prove past act. There was no chance to cross examine and the wife is unavailable to testify. Davis was made in emergency situation and it could be viewed as asking for help, not to prove the past act or for trial reasonably expected by witness/declarent as such. It was such an emergency and they wanted immediate help or escape form danger. Father did not ask for help. He merely said his son killed his wife (actually he was dead and his wife did not die). Thus, Under Jackson, exception does not apply because even if it was made after 30 minutes, there was no excited mental state(Jackson said metal state rather than time is important (in that case is was6 days later). Under Davis v. Washington and 2009 case, this violates the confrontation clause.

[s1m4]

So whats everyone's plan moving forward? I'm about 50/50 in regards to whether I passed or failed. I think I did better than last time, but as I understand it the curve is tougher. I am thinking about taking this month off and then getting the Kaplan QBank and doing about 20 a day during weekdays until we get the results... Don't want to have to re-learn everything a third time.

[tearsforbeers]

So whats everyone's plan moving forward? I'm about 50/50 in regards to whether I passed or failed. I think I did better than last time, but as I understand it the curve is tougher. I am thinking about taking this month off and then getting the Kaplan QBank and doing about 20 a day during weekdays until we get the results... Don't want to have to re-learn everything a third time.

My plan is pretty much the same as yours, s1m4. Unlike this time around, next time the time frame is shorter between the time we find out and the July exam. I forgot a bunch of stuff since last July and had to review pretty much everything again. I think this time around it'll be a little easier to recollect the materials. That said, I am keeping all of my Barbri materials instead of returning them and I plan on doing 50-100 MBE questions every week until May. That way I'll only have to review California subjects. I'm also debating whether to take the bar in WA and HI in July. I'll have to make that decision pretty soon. 75% chance I'm taking the bar or multiple bar exams in July anyway.

[esq]

Depends on when Kaplan cuts me off. I might do some questions over my weekends just to stay sharp, but I think I'll definitely listen to the lectures on my Ipod every night while I'm dozing off and hope that this keeps me fresh...especially the subjects that are relevant to my work (doesn't hurt to know all the ins and outs of Const, Crim Law and Proc., Evidence, and PR regardless of whether I take again).

In either case, those lectures are a better sedative than a sounds of nature CD so it's a win win!

[AMCD]

Can't believe the NY guy thought it was evidence.. Are you sure he passed in NY? I mean damn..

physician/patient privilege aspect is evidence-y but yeah that essay will probably be called civ pro not civ pro/evidence

That NY guy though... seems like a character fit for a movie... So many characters taking the bar exam someone ought to write a movie about it... Let's see- 77 days or so to kill... After I finish binge watching house of cards maybe I should do something useful instead of acting like I know it all on TLS. AMCD- can we get a detailed description of NY d-bag?

BTW, before I forget, your mock memo cracked me up. Just what I needed this morning. THANKS!!

Other notable moments for the screenplay:

NY Douche: (for the Remedies essay) I only wrote about SP b/c that's all she's going to get. It's one of those benefits you have as a practicing attorney and not a Bar taker."

NY Douche: I made up a brilliant 5-part test for the motion, based upon XYZ case. I didn't put in any facts, well actually throughout I really didn't put in facts, just cited the law b/c that's what you do in real life.

NY Douche: The court never told the stepson to write the will. Where did you get that from? It just said he was the conservator.

To prove me wrong, he madly pulled out the question booklet again from the envelope as the proctor was coming around to prove me wrong. Showed me the page and proceeded to read, "The court asked him to write another will for her" -- or whatever it said. Douche: "Well that doesn't matter anyway, so what's your point?" I never raised any point. It was always the other way around. Said he had "fifty" headings for the property essay and spent 90 mins on it!

Thanks for telling me to calm down s1m4!! BTW, I am a dudette, hence the creepiness of the following me to my car/hotel each day to lecture me on what I don't know!

Classic.

I think I've reached that sentimental afterglow at this point. Surely come May I will look back on these posts cursing my existence as an over-sharing soft touch. But honestly, as lawyers we are getting into a profession that requires us to be decent people. Compassion and empathy are the most valuable assets a lawyer can have.

FUCK YOU NY DOUCHE YOU CREEPY PRICK

He will be the subject matter of a half-written amateur screenplay come May.

The opening scene: An exodus of wannabe lawyers leaving the test center. Hundreds, maybe even a couple thousand debt-laden weary-eyed JDs traipsing in procession ranting in packs of 2-4, exchanging phrases barely discernible to the nonordained.

Enter NY Douchebag and AMCD. AMCD, a worried and distant look in her eyes. NY-Dbag, gesticulating in a manner belying his overbearing personality in a state that can only be described as bar exam pontification. Loving the sweet sound of his own voice and the adrenaline that could only be derived from the clear-eyed powers of deduction known to only a select few admitted attorneys. He was too good for this exam and he knew it. He tried unsuccessfully to argue at the California Supreme Court that California's lack reciprocation was tantamount to a substantive due process violation...or was it equal protection. It really didn't matter. He knew that he was right.. He was always right....

We must write this! OMG this has made me forget about the whole miserable PT. Thank you, thank you!

You know the movie, "A Lawyer Walks into a Bar" -- we can just call this, as part two, "A Douchebag Lawyer Walks Out of the Bar"

[Gopackgo2010]

Is everyone finished taking the bar exam? I'm referring to people taking are taking it over 6 days. There's a Cali probate code statute that I want to post that directly refers to the biggest issue, in my opinion, in essay #6. Does anyone know?

[arizzle]

Just found this page about becoming a Bar Exam grader: http://admissions.calbar.ca.gov/Examina ... rader.aspx

Pertinent line: "Book fee compensation for grading examination answers is $3.25 per essay answer and $3.75 for each performance test answer."


So basically graders are incentivized to read through essay and PT answers as fast as possible. I'm sure that never effects the grading :p

[AMCD]

You are quite right. My really good friend has a friend who grades for CA. She is rather junior, having only done it about two years and so is not allowed to do the PTs, but she told my friend she spends about 1.5 mins. on an essay, and mostly checks off via her rubric sheet what should be there. Depressing, certainly.

[iaminsane]

Some quick math -

Est. 9,000 California test takers in July @ 600 a head application fee = $5,400,000 revenue
Cost for 100 graders grading 54,000 essays and 18,000 PTs (including each grader's $725 prep fee) = $315,500

So 6% of the application fee is used for the most important part of the exam. California sure is spending a lot to make sure they get it right.

[JDMBALLMMS]

Some quick math -

Est. 9,000 California test takers in July @ 600 a head application fee = $5,400,000 revenue
Cost for 100 graders grading 54,000 essays and 18,000 PTs (including each grader's $725 prep fee) = $315,500

So 6% of the application fee is used for the most important part of the exam. California sure is spending a lot to make sure they get it right.

Graders are not the most important part of the exam and the likely reason why they pay so cheaply and this is variable i.e. they can adjust that cost.
But the cost of hiring a hall for whole day and Examsoft/Softtest may be very high and and not negotiable. And we are not even talking about paying the invigilators.

My concern is that if they are paying so low scanning submitted answers sheets becomes the norm and therefore makes sense to headline, underline and be short and sweet. The rubric sheet allows the scanning and I think it tells them the issues and points to give or deduct if an issue is present or absent. Which also explains why two similar essays may score differently.

[iaminsane]

Examsoft is a separate fee of I think $145.

I don't think renting a convention center on three non-weekend days is that expensive. For example, quick google search found you can rent the Tucson Arena (29,520 usable space), max occupancy of 8,962 people for $3,519 p.d.
http://www.tucsonaz.gov/files/tcc/2014_Rental_Rates.pdf

So lets say 500k to rent all the space for 3 days.

Security and proctors are an extra expense. In the U.S. there is one police officer per 100 citizens - let's say 1 security guard per 100 test takers 300 p.d. and 1 proctor per 20 examinees @ 100 p.d. = $216,000 for 3 days

Now how much to create the test? They license the MBE from the NCBE (lets say $100 per examinee which is probably high) and they create their own essays and PT (lets say again $100 per examinee which is probably really high). That's a cost of $900,000 to create the written portion, or 112,000 per essay/PT question and rubric. Total cost of 1.8MM for the exam production, including printing.

All these costs are under 3MM while they take in 5.4MM. Are C&F and admin costs 2.4MM? They can clearly spend more to have better grading.

[JDMBALLMMS]

My response to your initial post was to highlight the fact that there are other costs more than your alluded examiner fees as 6% of the total cost as the main expense of the total fees paid by candidates.

Irrespective of what they pay or incentive, the examiners had similar experience as candidate as some of us and ethics and moral conscience should ensure that they show some commitment to grading not based on the amount being paid but on their need to ensure fair play and quality.

I bet that even if the Bar decides to pay $100 per paper marked, if the examiners are not morally upright in doing the right thing, there is a high likelihood that the same mentality will prevail.

[bhence]

For the Wills question, did anyone else read the language of will #1 and 3 to mean that the trust extinguished at the death of the grandkids and the assets were transferred to Z outright (i.e., not in trust)? That means that the "for the care of elephants" language was precatory and Z took them outright.

[redblueyellow]

Looks like today might be the last day for accommodated testing. My friends seem very confident in what to expect today.

[bhence]

Looks like today might be the last day for accommodated testing. My friends seem very confident in what to expect today.

Is this a joke? There can't be anyone still testing.

[gaagoots]

Boo House of Cards S3.

Yay Whiplash

Going to watch Marco Polo, anyone see it?

[AMCD]

Boo House of Cards S3.

Yay Whiplash

Going to watch Marco Polo, anyone see it?

Watched Whiplash last night. Wow, that was intense. Today watched the movie on the Russian hockey team that lost in Miracle on Ice. Really great if you are into ice hockey.

Need to catch up on all the Academy films. Luckily my husband gets all the screeners, so I can binge on them this week finally. Can't remember the last time I watched anything since November--other than ice hockey!

[PennJD83]

Looks like today might be the last day for accommodated testing. My friends seem very confident in what to expect today.

Is this a joke? There can't be anyone still testing.

Definitely not a joke. I also know someone who just finished taking the bar today. Unbelievable

[w1xy]

Looks like today might be the last day for accommodated testing. My friends seem very confident in what to expect today.

Maybe you should report them.

[morescotchplease]

back to work, reading contracts. There is a no oral modification clause in the contract. My brain immediately does an IRAC analysis of the issue. #barexameffects