Themis Bar Review Hangout - July 2015 Exam Forum

[zot1]

definitely have a lady-respect crush on Karlan.

What? No. She makes too many mistakes.

[texlaw]

definitely have a lady-respect crush on Karlan.

My mind must be at its saturation point, because I don't even know what this means.

[sd5289]

Themis just gave me an assessment question on impleader in NY Practice on a lecture that covered joinder, interpleader, and intervention. Just looked at the next chapter handout and it starts with impleader.

I thought I was losing it for a second.

Bravo Themis!

[annapach]

definitely have a lady-respect crush on Karlan.

What? No. She makes too many mistakes.

May be true but I think she's a great lecturer, and she keeps my attention. Plus she also casually notes that she worked on every SCOTUS case referenced in crimpro PLUS check out her wikipedia: https://en.wikipedia.org/wiki/Pamela_S._Karlan Self-described "snarky, bisexual Jewish woman." AMAZING

[Lawbro]

Serkin, the guy doing NY Wills, reminds me a lot of Ted Mosby. And the NY Practice guy reminded me of Don Draper. Maybe I'm going crazy

[zot1]

definitely have a lady-respect crush on Karlan.

What? No. She makes too many mistakes.

May be true but I think she's a great lecturer, and she keeps my attention. Plus she also casually notes that she worked on every SCOTUS case referenced in crimpro PLUS check out her wikipedia: https://en.wikipedia.org/wiki/Pamela_S._Karlan Self-described "snarky, bisexual Jewish woman." AMAZING

Okay, that is pretty cool. I was just very frustrated going through her lectures because she misstated the law/facts way too many times. But if she keeps your attention, that's certainly a plus.

[NonJuris]

[deleted b/c answered]

[always_raining]

Ok so forgot my old account on this site, popping out of lurker status on this thread because I am up to the boiling point with CivPro MBE and themis in particular (maybe).

Maybe one of y'all can help me with this?

[+] Spoiler

A plaintiff filed a complaint in federal court alleging that a cell phone application sold by the defendant infringed upon a patent held by the plaintiff. The complaint was signed by an associate at the large law firm that represented the plaintiff. The defendant filed a motion to dismiss, arguing that the cell phone application at issue did not actually perform as described in the complaint, and thus did not affect the plaintiff’s patent. The court held a hearing on the motion to dismiss. At the hearing, the defendant presented evidence that the application performed only functions not covered by the plaintiff’s patent. The defendant also showed that the plaintiff’s attorney had never actually used the application, but had drafted the complaint based solely on his client’s description of the application. The court granted the motion to dismiss. The court also issued an order requiring the plaintiff’s attorney and his law firm to pay the defendant’s attorney’s fees, finding that the plaintiff’s attorney had not conducted a reasonable inquiry into the factual contentions in the complaint.

What of the following is the best argument that the court erred in its order requiring payment of attorney’s fees?

Answer choices:

[+] Spoiler

A court may not impose sanctions against a law firm unless the pleading at issue is signed by a partner.

Correct Answer: A court may not order a party to pay the opposing party’s attorney’s fees except upon motion.

You Selected: An attorney may rely upon factual contentions put forth by the client in a pleading.

Attorney’s fees are not a permissible type of sanction under Rule 11.

Explanation:

[+] Spoiler

Answer choice B is correct. A court may impose sanctions, including payment of attorney’s fees, on attorneys, law firms, and parties for violations of Rule 11, but may typically do so only when a party makes a motion for such fees. In this case, the defendant did not make a motion requesting attorney’s fees, and thus the court erred in imposing such sanctions. Answer choice A is incorrect because, absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee. Answer choice C is incorrect because an attorney must make a reasonable inquiry into the factual contentions contained in a pleading. Answer choice D is incorrect because attorney’s fees are one type of permissible sanction under Rule 11.

My issue/question:

[+] Spoiler

So is a motion required at all times for attorney's fees awards under rule 11 sanctions, or only "typically" as the explanation (but not the right answer) seems to indicate? Is this in the rules? Is that you, John Wayne? Is this me?

Also according to Themis ~70% picked the same (wrong) answer that I did, and only 16% of people got this one right. So, that's good, I guess?

According to the outline on page 53, attorney's fees can only be imposed "on a motion and warranted for effective deterrence." I'm not sure why they added the word "typically." It must be either a mistake, or it might be more complicated than the outline makes it out to be.

I also picked the answer you picked. I remembered that sanctions could be awarded without a motion but did not remember the exception. The answer we both picked also seemed so tempting, but I remember when I picked it I thought "hm, I think the attorney has to do a little more than simply believe whatever is told to her/him." But then none of the other answers seemed correct.

[BearLaw]

Ok so forgot my old account on this site, popping out of lurker status on this thread because I am up to the boiling point with CivPro MBE and themis in particular (maybe).

Maybe one of y'all can help me with this?

[+] Spoiler

A plaintiff filed a complaint in federal court alleging that a cell phone application sold by the defendant infringed upon a patent held by the plaintiff. The complaint was signed by an associate at the large law firm that represented the plaintiff. The defendant filed a motion to dismiss, arguing that the cell phone application at issue did not actually perform as described in the complaint, and thus did not affect the plaintiff’s patent. The court held a hearing on the motion to dismiss. At the hearing, the defendant presented evidence that the application performed only functions not covered by the plaintiff’s patent. The defendant also showed that the plaintiff’s attorney had never actually used the application, but had drafted the complaint based solely on his client’s description of the application. The court granted the motion to dismiss. The court also issued an order requiring the plaintiff’s attorney and his law firm to pay the defendant’s attorney’s fees, finding that the plaintiff’s attorney had not conducted a reasonable inquiry into the factual contentions in the complaint.

What of the following is the best argument that the court erred in its order requiring payment of attorney’s fees?

Answer choices:

[+] Spoiler

A court may not impose sanctions against a law firm unless the pleading at issue is signed by a partner.

Correct Answer: A court may not order a party to pay the opposing party’s attorney’s fees except upon motion.

You Selected: An attorney may rely upon factual contentions put forth by the client in a pleading.

Attorney’s fees are not a permissible type of sanction under Rule 11.

Explanation:

[+] Spoiler

Answer choice B is correct. A court may impose sanctions, including payment of attorney’s fees, on attorneys, law firms, and parties for violations of Rule 11, but may typically do so only when a party makes a motion for such fees. In this case, the defendant did not make a motion requesting attorney’s fees, and thus the court erred in imposing such sanctions. Answer choice A is incorrect because, absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee. Answer choice C is incorrect because an attorney must make a reasonable inquiry into the factual contentions contained in a pleading. Answer choice D is incorrect because attorney’s fees are one type of permissible sanction under Rule 11.

My issue/question:

[+] Spoiler

So is a motion required at all times for attorney's fees awards under rule 11 sanctions, or only "typically" as the explanation (but not the right answer) seems to indicate? Is this in the rules? Is that you, John Wayne? Is this me?

Also according to Themis ~70% picked the same (wrong) answer that I did, and only 16% of people got this one right. So, that's good, I guess?

The text of rule 11 requires a motion for sanctions before a court can impose sanctions or attorney fees. If the court acts on its own, it has to issue a show cause order and hold a hearing on the matter before sanctions may be imposed.

[NonJuris]

.

[BearLaw]

The text of rule 11 requires a motion for sanctions before a court can impose sanctions or attorney fees. If the court acts on its own, it has to issue a show cause order and hold a hearing on the matter before sanctions may be imposed.

Ok cool. So I should have known the rule, blame myself for that one I guess... I just have trust issues with trying to learn this stuff from the answer explanations given by Themis. That "typically" was bugging me. Thanks.

No problem. Its not the best explanation. I think the "typically" comes from the fact that a court can impose sanctions without a motion, but has to issue a show cause order and hold a hearing first. Thus, of the options given as answers, and based on the situation described, that choice is the best of the possible answers.

[2014]

How seriously do you guys take the practice essays? I'm struggling to do more than half ass an outline and then read the model answers :/

[teeshtee]

A city adopted an ordinance that prohibited any apartment building from housing more than one convicted felon on the premises. A convicted felon owned an apartment building in the city. He lived in one of the apartments in the building with his brother, who was also a convicted felon. The building owner received a citation from the city for violating the ordinance, and was ordered to pay a fine and bring the building into compliance. The building owner sued the city, arguing that the ordinance violated his constitutional rights.
What is the best argument for striking down the ordinance?

A The ordinance violates the Privileges and Immunities Clause.
B The ordinance violates the Equal Protection Clause.
C The ordinance violates the Eighth Amendment.
D The ordinance violates the Due Process Clause.

[+] Spoiler

Answer choice D is correct. The guarantee of substantive due process is based upon the idea that laws should be reasonable and not arbitrary, and ensures that a governmental action that infringes upon a fundamental right is subject to strict scrutiny. Related persons have a fundamental right to live together in a single household. In this case, the ordinance prevented the man from living with his brother. Thus, the man’s best argument is that the ordinance, by prohibiting him from living with a family member, violates substantive due process. Answer choice A is incorrect because the Privileges and Immunities Clause, which prohibits a state from discriminating against the citizens of another state, is not implicated in this case. Answer choice B is incorrect because the law does not employ a suspect classification, and thus any equal protection claim would be subject to rational basis review. The man would have a difficult time showing that the ordinance did not satisfy this standard. Answer choice C is incorrect because state and local governments do not violate the Eight Amendment simply by imposing special disabilities on convicted felons, especially when doing so is reasonably related to protecting public safety.

Just got this Con Law question. Answered it correctly, but struggled a little, and Themis' explanation did not make me feel any better. The part I'm curious about is that the fact pattern states it is the "building owner" who is bringing suit, but Themis' explanation makes no reference to the "building owner," but rather seems to imply that the convicted felon, "the man," is the one bringing suit. Is there something I'm reading wrong here?

[Confused7]

A city adopted an ordinance that prohibited any apartment building from housing more than one convicted felon on the premises. A convicted felon owned an apartment building in the city. He lived in one of the apartments in the building with his brother, who was also a convicted felon. The building owner received a citation from the city for violating the ordinance, and was ordered to pay a fine and bring the building into compliance. The building owner sued the city, arguing that the ordinance violated his constitutional rights.
What is the best argument for striking down the ordinance?

A The ordinance violates the Privileges and Immunities Clause.
B The ordinance violates the Equal Protection Clause.
C The ordinance violates the Eighth Amendment.
D The ordinance violates the Due Process Clause.

[+] Spoiler

Answer choice D is correct. The guarantee of substantive due process is based upon the idea that laws should be reasonable and not arbitrary, and ensures that a governmental action that infringes upon a fundamental right is subject to strict scrutiny. Related persons have a fundamental right to live together in a single household. In this case, the ordinance prevented the man from living with his brother. Thus, the man’s best argument is that the ordinance, by prohibiting him from living with a family member, violates substantive due process. Answer choice A is incorrect because the Privileges and Immunities Clause, which prohibits a state from discriminating against the citizens of another state, is not implicated in this case. Answer choice B is incorrect because the law does not employ a suspect classification, and thus any equal protection claim would be subject to rational basis review. The man would have a difficult time showing that the ordinance did not satisfy this standard. Answer choice C is incorrect because state and local governments do not violate the Eight Amendment simply by imposing special disabilities on convicted felons, especially when doing so is reasonably related to protecting public safety.

Just got this Con Law question. Answered it correctly, but struggled a little, and Themis' explanation did not make me feel any better. The part I'm curious about is that the fact pattern states it is the "building owner" who is bringing suit, but Themis' explanation makes no reference to the "building owner," but rather seems to imply that the convicted felon, "the man," is the one bringing suit. Is there something I'm reading wrong here?

The question states that the convicted felon IS the building owner.

[GULCPerson]

A city adopted an ordinance that prohibited any apartment building from housing more than one convicted felon on the premises. A convicted felon owned an apartment building in the city. He lived in one of the apartments in the building with his brother, who was also a convicted felon. The building owner received a citation from the city for violating the ordinance, and was ordered to pay a fine and bring the building into compliance. The building owner sued the city, arguing that the ordinance violated his constitutional rights.
What is the best argument for striking down the ordinance?

A The ordinance violates the Privileges and Immunities Clause.
B The ordinance violates the Equal Protection Clause.
C The ordinance violates the Eighth Amendment.
D The ordinance violates the Due Process Clause.

[+] Spoiler

Answer choice D is correct. The guarantee of substantive due process is based upon the idea that laws should be reasonable and not arbitrary, and ensures that a governmental action that infringes upon a fundamental right is subject to strict scrutiny. Related persons have a fundamental right to live together in a single household. In this case, the ordinance prevented the man from living with his brother. Thus, the man’s best argument is that the ordinance, by prohibiting him from living with a family member, violates substantive due process. Answer choice A is incorrect because the Privileges and Immunities Clause, which prohibits a state from discriminating against the citizens of another state, is not implicated in this case. Answer choice B is incorrect because the law does not employ a suspect classification, and thus any equal protection claim would be subject to rational basis review. The man would have a difficult time showing that the ordinance did not satisfy this standard. Answer choice C is incorrect because state and local governments do not violate the Eight Amendment simply by imposing special disabilities on convicted felons, especially when doing so is reasonably related to protecting public safety.

Just got this Con Law question. Answered it correctly, but struggled a little, and Themis' explanation did not make me feel any better. The part I'm curious about is that the fact pattern states it is the "building owner" who is bringing suit, but Themis' explanation makes no reference to the "building owner," but rather seems to imply that the convicted felon, "the man," is the one bringing suit. Is there something I'm reading wrong here?

The "building owner" and "the man" are the same person. The question states that the convicted felon owns the apartment building.

EDIT: Scooped. Doesn't TLS usually give you a warning when that happens?

[teeshtee]

Thank you both. Unbelievable, and terrifying, that I still missed that entire sentence after re-reading the fact pattern prior to posting it here.

[kjartan]

How seriously do you guys take the practice essays? I'm struggling to do more than half ass an outline and then read the model answers :/

I take about half of them seriously. I don't get much out of the model answers. I think trying to write the model answers on the actual bar exam could easily lead to a failing score.

[zot1]

How seriously do you guys take the practice essays? I'm struggling to do more than half ass an outline and then read the model answers :/

I try to take them as seriously as possible because I think it's useful for me to practice as much as possible.

I have taken them all closed book and I write out my full answers. The only thing I don't do (but I do in the graded essays) is that if I have leftover time, I don't go back to review my answer, correct errors, make sure I discussed all facts.

[zot1]

How seriously do you guys take the practice essays? I'm struggling to do more than half ass an outline and then read the model answers :/

I take about half of them seriously. I don't get much out of the model answers. I think trying to write the model answers on the actual bar exam could easily lead to a failing score.

So very curious to know what exactly you mean by this

[somuchbooty]

How seriously do you guys take the practice essays? I'm struggling to do more than half ass an outline and then read the model answers :/

I take about half of them seriously. I don't get much out of the model answers. I think trying to write the model answers on the actual bar exam could easily lead to a failing score.

So very curious to know what exactly you mean by this

I assume that they mean that a really good answer could in fact look nothing like the model answer, but I'm unsure. I'd agree with that, I think the way they approach things is against any kind of sense in a lot of the model answers I've seen so far.

[kjartan]

How seriously do you guys take the practice essays? I'm struggling to do more than half ass an outline and then read the model answers :/

I take about half of them seriously. I don't get much out of the model answers. I think trying to write the model answers on the actual bar exam could easily lead to a failing score.

So very curious to know what exactly you mean by this

I assume that they mean that a really good answer could in fact look nothing like the model answer, but I'm unsure. I'd agree with that, I think the way they approach things is against any kind of sense in a lot of the model answers I've seen so far.

This is one aspect of it. Obviously, the quality of the model answers is pretty mixed. But another is that if you shoot for a model answer, you're going to run out of time

[habz]

Evidence question. If a defendant is standing trial for murdering someone, and that now deceased person has written in his diary that the defendant is guilty of another crime, can that be admissible under 804 as a forfeiture by wrongdoing or do we have to first prove that the person actually killed the deceased? Meaning, does the forfeiture by wrongdoing come into play when the person is only accused of the wrongdoing as opposed to actually having proved the wrongdoing?

[BearLaw]

Evidence question. If a defendant is standing trial for murdering someone, and that now deceased person has written in his diary that the defendant is guilty of another crime, can that be admissible under 804 as a forfeiture by wrongdoing or do we have to first prove that the person actually killed the deceased? Meaning, does the forfeiture by wrongdoing come into play when the person is only accused of the wrongdoing as opposed to actually having proved the wrongdoing?

If I understand the question, forfeiture by wrongdoing would not apply unless the other crime is what the defendant is standing trial for now. If it is a murder trial, the notebook would be hearsay without an exception, and likely also impermissible propensity evidence against the defendant, unless this previous crime was prosecuted. Even then, there is better/non-hearsay evidence of that conviction.

Forgive me if I am misunderstanding.

[habz]

Evidence question. If a defendant is standing trial for murdering someone, and that now deceased person has written in his diary that the defendant is guilty of another crime, can that be admissible under 804 as a forfeiture by wrongdoing or do we have to first prove that the person actually killed the deceased? Meaning, does the forfeiture by wrongdoing come into play when the person is only accused of the wrongdoing as opposed to actually having proved the wrongdoing?

If I understand the question, forfeiture by wrongdoing would not apply unless the other crime is what the defendant is standing trial for now. If it is a murder trial, the notebook would be hearsay without an exception, and likely also impermissible propensity evidence against the defendant, unless this previous crime was prosecuted. Even then, there is better/non-hearsay evidence of that conviction.

Forgive me if I am misunderstanding.

I should clarify that the evidence in the diary is motive for the murder itself

[BearLaw]

Evidence question. If a defendant is standing trial for murdering someone, and that now deceased person has written in his diary that the defendant is guilty of another crime, can that be admissible under 804 as a forfeiture by wrongdoing or do we have to first prove that the person actually killed the deceased? Meaning, does the forfeiture by wrongdoing come into play when the person is only accused of the wrongdoing as opposed to actually having proved the wrongdoing?

If I understand the question, forfeiture by wrongdoing would not apply unless the other crime is what the defendant is standing trial for now. If it is a murder trial, the notebook would be hearsay without an exception, and likely also impermissible propensity evidence against the defendant, unless this previous crime was prosecuted. Even then, there is better/non-hearsay evidence of that conviction.

Forgive me if I am misunderstanding.

I should clarify that the evidence in the diary is motive for the murder itself

Ah gotcha, then yes, I would think forfeiture by wrongdoing would apply. The evidence is being offered as motive, not substantively, and the defendant is responsible for the witness being unavailable.