Themis Bar Review Hangout - July 2014 Exam Forum

[kapital98]

I just finished the MBE evidence lectures. I'm not sure if I can take the last two review sessions. It's 45 minutes long and they don't count towards my completion rate. I think I will save them for right before the exam.

[Genuine4ps]

62% on milestone 2. Really disappointed.

Went over to the other bar review thread, and everyone in Kaplan is scoring really high (like 80s and 90s). Hope Themis is just giving us difficult questions to scare us.

[mmmnnn]

62% on milestone 2. Really disappointed.

Went over to the other bar review thread, and everyone in Kaplan is scoring really high (like 80s and 90s). Hope Themis is just giving us difficult questions to scare us.

This would worry me if I were taking the Kaplan course. We know it's basically impossible for "everyone" to score 80 or 90% on the real thing. I'm more concerned with the fact that the questions identified as prior NCBE questions seem to be the least coherent.

[071816]

62% on milestone 2. Really disappointed.

Went over to the other bar review thread, and everyone in Kaplan is scoring really high (like 80s and 90s). Hope Themis is just giving us difficult questions to scare us.

this shouldn't worry you

[mmmnnn]

A few questions/thoughts about the mixed MBE set I just took:

1. So a defendant "should be found guilty" of larceny for stealing another person's illegal drugs? Obviously a court would not enforce a contract related to illegal drugs, so why/how would a prosecutor bring charges against someone for stealing drugs?

2. "Five years ago, a seller acquired property improved with a 15-year-old dwelling. This year, the seller listed the property for sale with a licensed real estate broker. The seller informed the broker of several defects in the house that were not readily discoverable by a reasonable inspection, including a leaky basement, an inadequate water supply, and a roof that leaked. A purchaser responded to the broker's advertisement, was taken by the broker to view the property, and decided to buy it. The broker saw to it that the contract specified the property to be "as is," but neither the broker nor the seller pointed out the defects to the purchaser, who did not ask about the condition of the dwelling. After closing and taking possession, the purchaser discovered the defects, had them repaired, and demanded that the seller reimburse him for the cost of the repairs. The seller refused, and the purchaser brought an appropriate action against the seller for damages. If the seller wins, it will be because [answer: "as-is" language controls]."

I thought "as-is" disclaimers were ineffective for known latent defects in real property? This was a weird question where I thought all the answers were wrong.

3. "When [police] arrived at the home in question, they found a man and woman screaming at each other. One officer handcuffed the man and took him outside, while the other officer spoke with the woman inside the house. Without reading the man his Miranda rights, the officer asked the man to explain what happened. [The man then blurts out a bunch of incriminating info relating to illegal possession of a weapon.]"

Themis says the statements should be suppressed, but it gives no analysis as to whether this was actually a custodial interrogation. Obviously the man wasn't literally under arrest; to me this seemed more akin to the limited questioning permitted in a Terry stop.

[Tanicius]

A few questions/thoughts about the mixed MBE set I just took:

1. So a defendant "should be found guilty" of larceny for stealing another person's illegal drugs? Obviously a court would not enforce a contract related to illegal drugs, so why/how would a prosecutor bring charges against someone for stealing drugs?

People who steal things are bad people, as the logic goes. You rob a drug dealer, you're still robbing them whether what you're stealing are illegal drugs or lawfully obtained money. Same for larceny. We want to police people who do bad things, even if they're doing bad things to other bad people. The same logic applies to larceny of stolen goods. If you steal stolen property in someone else's possession, you're probably a vile person we have an interest in prosecuting. I realize this specific policy reasoning wasn't explained to you in any of the larceny materials, but maybe it will help you understand why it's unlawful conduct. Enforcing contracts for illegal activities would be different because, by enforcing the contract, you are actively encouraging the illegal activity. Prosecuting larceny of already-stolen goods does not in any way encourage more larceny.

2. "Five years ago, a seller acquired property improved with a 15-year-old dwelling. This year, the seller listed the property for sale with a licensed real estate broker. The seller informed the broker of several defects in the house that were not readily discoverable by a reasonable inspection, including a leaky basement, an inadequate water supply, and a roof that leaked. A purchaser responded to the broker's advertisement, was taken by the broker to view the property, and decided to buy it. The broker saw to it that the contract specified the property to be "as is," but neither the broker nor the seller pointed out the defects to the purchaser, who did not ask about the condition of the dwelling. After closing and taking possession, the purchaser discovered the defects, had them repaired, and demanded that the seller reimburse him for the cost of the repairs. The seller refused, and the purchaser brought an appropriate action against the seller for damages. If the seller wins, it will be because [answer: "as-is" language controls]."

I thought "as-is" disclaimers were ineffective for known latent defects in real property? This was a weird question where I thought all the answers were wrong.

IIRC, you can sue a seller for fraud in the contract phase of the sale or withdraw from the sale (before closing), but this would be a quitclaim deed, which provides no warranty protection whatsoever. Quitclaim deeds are covered in the Themis handout.

3. "When [police] arrived at the home in question, they found a man and woman screaming at each other. One officer handcuffed the man and took him outside, while the other officer spoke with the woman inside the house. Without reading the man his Miranda rights, the officer asked the man to explain what happened. [The man then blurts out a bunch of incriminating info relating to illegal possession of a weapon.]"

Themis says the statements should be suppressed, but it gives no analysis as to whether this was actually a custodial interrogation. Obviously the man wasn't literally under arrest; to me this seemed more akin to the limited questioning permitted in a Terry stop.

It's a close call in real life when this happens (which is often), but under Black Letter Law it's custodial because he was placed in handcuffs and was clearly not free to leave while he was being asked questions about his involvement in a crime. If you handcuff someone during a Terry stop, you can't just start asking them questions about their involvement in a crime -- you would have to keep questions limited to protecting your safety as an officer, like asking someone if they have any weapons on their person.

[puttycake]

I just hit the 75% mark for the whole thing, which was my goal by the 4th. Basically 50% of the essay questions plus 20% of the MC left to do. I'm tired!

[shemori]

anyone else going to take the simulated mbe on Wednesday aT NYU (NY Bar) and How much of the Practice MBE Have People Completed. Im only at 53 percent

[Genuine4ps]

I just hit the 75% mark for the whole thing, which was my goal by the 4th. Basically 50% of the essay questions plus 20% of the MC left to do. I'm tired!

Well done! That's my goal for the end of this month.

[iLoveFruits&Veggies]

anyone else going to take the simulated mbe on Wednesday aT NYU (NY Bar) and How much of the Practice MBE Have People Completed. Im only at 53 percent

I'm debating taking it in CA, although it's quite a drive for me. I'm behind on MBE practice questions on Themis because I've been doing lots of them on Adaptibar instead. Wondering if the simulated exam will be real NCBE questions or not?? Scary to devote an entire day of study to it + the long drive. Anyone else going? Or just doing the full day exam at home? Nice that they at least offer the in-person option

[Tanicius]

anyone else going to take the simulated mbe on Wednesday aT NYU (NY Bar) and How much of the Practice MBE Have People Completed. Im only at 53 percent

I'm debating taking it in CA, although it's quite a drive for me. I'm behind on MBE practice questions on Themis because I've been doing lots of them on Adaptibar instead. Wondering if the simulated exam will be real NCBE questions or not?? Scary to devote an entire day of study to it + the long drive. Anyone else going? Or just doing the full day exam at home? Nice that they at least offer the in-person option

Definitely not driving even a single hour for such a thing. What a waste of time. You've taken dozens of high-stakes standardized and essay tests in your life by now. There is absolutely no reason you should have to shoot your entire day just to take one simulated exam.

[mmmnnn]

IIRC, you can sue a seller for fraud in the contract phase of the sale or withdraw from the sale (before closing), but this would be a quitclaim deed, which provides no warranty protection whatsoever. Quitclaim deeds are covered in the Themis handout.

The quitclaim analysis makes sense to me, but this was actually a Contracts question. In fact, when Themis directs me to the outline connected with this question, it sends me to Defenses to the Formation of a Contract (i.e., fraud/misrepresentation).

Here are the answers and explanations given:

Answers:

A. the seller fulfilled the duty to disclose defects by disclosure to the broker.
B. the contract's "as is" provision controls the rights of the parties.
C. The broker became the agent of both the purchaser and the seller, and thus knowledge of the defects was imputed to the purchaser.
D. the seller of a used dwelling that has been viewed by the purchaser has no responsibility toward the purchaser.

Rationale:

Answer choice B is correct. The fact that the contract specifically indicated that the purchaser was buying the property "as is" controls. That term is understood to mean that the purchaser buys at his or her own risk. As there is no indication of unconscionability, the "as is" provision would control. Answer choice A is incorrect, as the broker is the seller's agent. Disclosure to the seller's own agent would not constitute disclosure to the purchaser. The "as is" provision would alert the purchaser that he was accepting the risk of any problems with the property. Answer choice C is incorrect, as the broker was only the agent of the seller and not the agent of the purchaser. Answer choice D is incorrect, as the mere fact of a purchaser viewing the property does not absolve the seller of responsibility to the purchaser. The inclusion of the "as is" provision would generally shift the risk with regard to the property to the purchaser.

I think ultimately this is one that you have to "back in to," as Duffy puts it, because the rest of the answers are worse than B.

[Genuine4ps]

anyone else going to take the simulated mbe on Wednesday aT NYU (NY Bar) and How much of the Practice MBE Have People Completed. Im only at 53 percent

I'm debating taking it in CA, although it's quite a drive for me. I'm behind on MBE practice questions on Themis because I've been doing lots of them on Adaptibar instead. Wondering if the simulated exam will be real NCBE questions or not?? Scary to devote an entire day of study to it + the long drive. Anyone else going? Or just doing the full day exam at home? Nice that they at least offer the in-person option

Do you prefer Adaptibar because it allows you to take a series of difficult questions (e.g., mortgages)?

[Tanicius]

IIRC, you can sue a seller for fraud in the contract phase of the sale or withdraw from the sale (before closing), but this would be a quitclaim deed, which provides no warranty protection whatsoever. Quitclaim deeds are covered in the Themis handout.

The quitclaim analysis makes sense to me, but this was actually a Contracts question. In fact, when Themis directs me to the outline connected with this question, it sends me to Defenses to the Formation of a Contract (i.e., fraud/misrepresentation).

Here's are the answers and explanations given:

Answers:

A. the seller fulfilled the duty to disclose defects by disclosure to the broker.
B. the contract's "as is" provision controls the rights of the parties.
C. The broker became the agent of both the purchaser and the seller, and thus knowledge of the defects was imputed to the purchaser.
D. the seller of a used dwelling that has been viewed by the purchaser has no responsibility toward the purchaser.

Rationale:

Answer choice B is correct. The fact that the contract specifically indicated that the purchaser was buying the property "as is" controls. That term is understood to mean that the purchaser buys at his or her own risk. As there is no indication of unconscionability, the "as is" provision would control. Answer choice A is incorrect, as the broker is the seller's agent. Disclosure to the seller's own agent would not constitute disclosure to the purchaser. The "as is" provision would alert the purchaser that he was accepting the risk of any problems with the property. Answer choice C is incorrect, as the broker was only the agent of the seller and not the agent of the purchaser. Answer choice D is incorrect, as the mere fact of a purchaser viewing the property does not absolve the seller of responsibility to the purchaser. The inclusion of the "as is" provision would generally shift the risk with regard to the property to the purchaser.

I think ultimately this is one that you have to "back in to," as Duffy puts it, because the rest of the answers are worse than B.

Yeah, okay, I see what you're saying. Unless someone else chimes in, I definitely would have raged over that question and thought every single answer was objectively wrong.

[Tanicius]

God these stupid Torts questions. Torts are my best subject, statistically, but it's questions like these that make attaining 100% simply impossible:

An eight-year-old girl went to the grocery store with her mother. The girl pushed the grocery cart while her mother put items into it. The girl's mother remained near her at all times. The plaintiff, another customer in the store, noticed the girl pushing the cart in a manner that caused the plaintiff no concern. A short time later, the cart that the girl was pushing struck the plaintiff in the knee, inflicting serious injury. If the plaintiff brings an action, based on negligence, against the grocery store, the store's best defense will be that
A. A store owes no duty to its customers to control the use of its shopping carts.
B. A store owes no duty to its customers to control the conduct of other customers.
C. Any negligence of the store was not the proximate cause of the plaintiff's injury.
D. A supervised child pushing a cart does not pose an unreasonable risk to other customers.

[Burgstaller04]

I haven't kept up with the last 20-ish pages of the thread so maybe this has been asked before but is anyone going to the MBE simulation in Houston on the 9th?

[Stringer6]

God these stupid Torts questions. Torts are my best subject, statistically, but it's questions like these that make attaining 100% simply impossible:

An eight-year-old girl went to the grocery store with her mother. The girl pushed the grocery cart while her mother put items into it. The girl's mother remained near her at all times. The plaintiff, another customer in the store, noticed the girl pushing the cart in a manner that caused the plaintiff no concern. A short time later, the cart that the girl was pushing struck the plaintiff in the knee, inflicting serious injury. If the plaintiff brings an action, based on negligence, against the grocery store, the store's best defense will be that
A. A store owes no duty to its customers to control the use of its shopping carts.
B. A store owes no duty to its customers to control the conduct of other customers.
C. Any negligence of the store was not the proximate cause of the plaintiff's injury.
D. A supervised child pushing a cart does not pose an unreasonable risk to other customers.

D?

[mmmnnn]

God these stupid Torts questions. Torts are my best subject, statistically, but it's questions like these that make attaining 100% simply impossible:

An eight-year-old girl went to the grocery store with her mother. The girl pushed the grocery cart while her mother put items into it. The girl's mother remained near her at all times. The plaintiff, another customer in the store, noticed the girl pushing the cart in a manner that caused the plaintiff no concern. A short time later, the cart that the girl was pushing struck the plaintiff in the knee, inflicting serious injury. If the plaintiff brings an action, based on negligence, against the grocery store, the store's best defense will be that
A. A store owes no duty to its customers to control the use of its shopping carts.
B. A store owes no duty to its customers to control the conduct of other customers.
C. Any negligence of the store was not the proximate cause of the plaintiff's injury.
D. A supervised child pushing a cart does not pose an unreasonable risk to other customers.

D?

I would guess D, too. A & B are essentially the same statement, and they both seem intuitively wrong. The store surely has some duty to control its customers, including their use of the store-provided shopping carts. Between C & D, I would go with D because the only possible negligence here is some failure to supervise/adequately control. Obviously that failure would be the proximate cause of the injury. D simply states that the store wasn't negligent.

This took too long to figure out.

[Kiwi917]

CA folks - how do you feel about the essay workshop templates? Are you memorizing them word-for-word? I initially liked the idea of having boilerplate to memorize, but something about the writing style or phrasing isn't clicking for me. Deciding whether I should power through it or start rephrasing and/or pulling better statements from model answers (with the added work of checking them for accuracy)...

[iLoveFruits&Veggies]

CA folks - how do you feel about the essay workshop templates? Are you memorizing them word-for-word? I initially liked the idea of having boilerplate to memorize, but something about the writing style or phrasing isn't clicking for me. Deciding whether I should power through it or start rephrasing and/or pulling better statements from model answers (with the added work of checking them for accuracy)...

Wow. I could have written the exact same post!! I ran into the same experience today. I like the essay review videos (I'm actually watching them twice!) and I like the templates and was memorizing them, but then ran into wording that just didn't match the way I write. i.e. on the crim sheet for conspiracy it states: "an agreement between two or more people to accomplish an unlawful purpose..." and I like the word "objective" instead of "purpose" much better, so I've decided to start rephrasing them. No longer memorizing them word for word because like you said, it doesn't always "click."

[puttycake]

CA folks - how do you feel about the essay workshop templates? Are you memorizing them word-for-word? I initially liked the idea of having boilerplate to memorize, but something about the writing style or phrasing isn't clicking for me. Deciding whether I should power through it or start rephrasing and/or pulling better statements from model answers (with the added work of checking them for accuracy)...

I memorize the boilerplate, then often end up rephrasing it when I'm using it. I'm just trying to get a framework into my head.

[blue920]

1. So a defendant "should be found guilty" of larceny for stealing another person's illegal drugs? Obviously a court would not enforce a contract related to illegal drugs, so why/how would a prosecutor bring charges against someone for stealing drugs?

There was a question similar to this on the first (I think) Criminal Law question set. Two guys agreed to steal money from a bank and one worked there, so he took the money and passed it off to his friend for safekeeping. They were supposed to split it, but the friend took more than his fair share. I had it narrowed down to either 1 or 2 counts of larceny and picked 1. It was 2.

I was very surprised. Everyone I've told the question to (including law school friends studying for the bar) has been very surprised.

At least I won't be making that mistake again.

[iLoveFruits&Veggies]

anyone else going to take the simulated mbe on Wednesday aT NYU (NY Bar) and How much of the Practice MBE Have People Completed. Im only at 53 percent

I'm debating taking it in CA, although it's quite a drive for me. I'm behind on MBE practice questions on Themis because I've been doing lots of them on Adaptibar instead. Wondering if the simulated exam will be real NCBE questions or not?? Scary to devote an entire day of study to it + the long drive. Anyone else going? Or just doing the full day exam at home? Nice that they at least offer the in-person option

Do you prefer Adaptibar because it allows you to take a series of difficult questions (e.g., mortgages)?

I like Adaptibar because all of the questions are past NCBE questions, I like their explanations, and I like that it adapts to my weaknesses - and gives me more questions of them (yep, mortgages!) and I have so much control over it... It also times each question, let's me know how I did compared to everyone on each answer, and I think the best part is that I can have all 6 subjects mixed up if I want so I don't get bored of one, and it's reflective of how the actual exam will be. Themis' MBEs are good and likely sufficient, I just like Adaptibar better and I can use all the extra help I can get!

[Tanicius]

Ran out of time on the CoL/Family Law graded essay; was cut off while formatting my headers with bold/italics/underlining. Can't wait for my grader's condescending comment that I ought to format all of my headers rather than just half of them on the real thing.

[dreakol]

God these stupid Torts questions. Torts are my best subject, statistically, but it's questions like these that make attaining 100% simply impossible:

An eight-year-old girl went to the grocery store with her mother. The girl pushed the grocery cart while her mother put items into it. The girl's mother remained near her at all times. The plaintiff, another customer in the store, noticed the girl pushing the cart in a manner that caused the plaintiff no concern. A short time later, the cart that the girl was pushing struck the plaintiff in the knee, inflicting serious injury. If the plaintiff brings an action, based on negligence, against the grocery store, the store's best defense will be that
A. A store owes no duty to its customers to control the use of its shopping carts.
B. A store owes no duty to its customers to control the conduct of other customers.
C. Any negligence of the store was not the proximate cause of the plaintiff's injury.
D. A supervised child pushing a cart does not pose an unreasonable risk to other customers.

D?

I would guess D, too. A & B are essentially the same statement, and they both seem intuitively wrong. The store surely has some duty to control its customers, including their use of the store-provided shopping carts. Between C & D, I would go with D because the only possible negligence here is some failure to supervise/adequately control. Obviously that failure would be the proximate cause of the injury. D simply states that the store wasn't negligent.

This took too long to figure out.

what's the answer on this? D seems like the "best" answer