Themis Bar Review Hangout - July 2014 Exam Forum

[Genuine4ps]

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.

Your post made me think of a questions I've been meaning to ask. I like to format my headers too, but it's my understanding from one of the Themis workshops that this formatting may or may not transfer over from examsoft during the actual bar. In other words, such formatting may just be there for the test taker to better organize.

[Genuine4ps]

What did you all think of this question:

An officer sees a recently released felon at the mall. The officer calls the station to see if there are any outstanding warrants. Unbeknownst to the cop, another officer had fraudulently changed the data on the felon to show that he did have a warrant when in fact, the warrant had expired. Felon was arrested and a gun was discovered on him. Felon is charged with felon in possession and he seeks to dismiss the charge and seeks to have the gun excluded.

Here are the two answers I narrowed it down to:

C. Yes, because a violation of the Fourth Amendment prohibition against unreasonable searches and seizures requires the suppression of the seized evidence.

D. Yes, because the arrest warrant had expired.

I chose "C", which is wrong, but I don't know why. The explanation is very poor--"answer choice C is incorrect because an unconstitutional search or seizure does not require a court to apply the exclusionary rule. Instead the rule is applied where it serves to deter future constitutional violations."

This doesn't make sense to me. I thought that evidence procured from an unconstitutional search (barring some exception) must be excluded.

Thoughts?


ETA: Ok, I did some thinking, and I think I know the answer, so I'm going to answer it for anyone else who's having issues.

The police officer at the station was acting in bad faith, so the warrant is invalid, not the search. So the gun is being excluded due to a bad faith warrant, not an unconstitutional search.

[dreakol]

What did you all think of this question:

An officer sees a recently released felon at the mall. The officer calls the station to see if there are any outstanding warrants. Unbeknownst to the cop, another officer had fraudulently changed the data on the felon to show that he did have a warrant when in fact, the warrant had expired. Felon was arrested and a gun was discovered on him. Felon is charged with felon in possession and he seeks to dismiss the charge and seeks to have the gun excluded.

Here are the two answers I narrowed it down to:

C. Yes, because a violation of the Fourth Amendment prohibition against unreasonable searches and seizures requires the suppression of the seized evidence.

D. Yes, because the arrest warrant had expired.

I chose "C", which is wrong, but I don't know why. The explanation is very poor--"answer choice C is incorrect because an unconstitutional search or seizure does not require a court to apply the exclusionary rule. Instead the rule is applied where it serves to deter future constitutional violations."

This doesn't make sense to me. I thought that evidence procured from an unconstitutional search (barring some exception) must be excluded.

Thoughts?


ETA: Ok, I did some thinking, and I think I know the answer, so I'm going to answer it for anyone else who's having issues.

The police officer at the station was acting in bad faith, so the warrant is invalid, not the search. So the gun is being excluded due to a bad faith warrant, not an unconstitutional search.

answer is D, right? if an arrest is invalid, then anything found because of the arrest will be excluded (paraphrasing the rule)

[Genuine4ps]

What did you all think of this question:

An officer sees a recently released felon at the mall. The officer calls the station to see if there are any outstanding warrants. Unbeknownst to the cop, another officer had fraudulently changed the data on the felon to show that he did have a warrant when in fact, the warrant had expired. Felon was arrested and a gun was discovered on him. Felon is charged with felon in possession and he seeks to dismiss the charge and seeks to have the gun excluded.

Here are the two answers I narrowed it down to:

C. Yes, because a violation of the Fourth Amendment prohibition against unreasonable searches and seizures requires the suppression of the seized evidence.

D. Yes, because the arrest warrant had expired.

I chose "C", which is wrong, but I don't know why. The explanation is very poor--"answer choice C is incorrect because an unconstitutional search or seizure does not require a court to apply the exclusionary rule. Instead the rule is applied where it serves to deter future constitutional violations."

This doesn't make sense to me. I thought that evidence procured from an unconstitutional search (barring some exception) must be excluded.

Thoughts?


ETA: Ok, I did some thinking, and I think I know the answer, so I'm going to answer it for anyone else who's having issues.

The police officer at the station was acting in bad faith, so the warrant is invalid, not the search. So the gun is being excluded due to a bad faith warrant, not an unconstitutional search.

answer is D, right?

Yes.

[Genuine4ps]

This is not in reference to the question above, but is anyone else frustrated with being tested on questions that were not covered in the handouts?

[SilverE2]

This is not in reference to the question above, but is anyone else frustrated with being tested on questions that were not covered in the handouts?

I think it's on purpose, because Themis knows a lot of the people will skip the long outlines. Barbri uses the practice questions to teach the small exclusions, and I think Themis is doing the same.

[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)...

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."

Thanks! I'm glad it's not just me. Usually it is something really silly, like that the template uses "demonstrative legacy" while my class in law school taught "demonstrative gift." The probate code uses "gift" so I feel like that should be fine, even though "legacy" is more precise when talking about personal property.

The other issue I am having is with the long paragraphs or sentences that list lots of elements. I like to number them in the rule statement itself, or at least say something like "there are four necessary elements," especially if I'm going to follow it with numbered subsections. Without cues like that in my boilerplate, I'm more likely to forget one of the four things. I guess it is just a matter of creating some new rule lists and making these minor adjustments as I go.

[FlanAl]

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

Im signed up for it but now that I think about it I'm not sure its worth it. I just figured it would be the same thing as doing mbe questions at my apartment but now I'm wondering if they will give us the answers/some feedback like the online program. If not I might as well just keep doing the practice ones online.

[klbisho4]

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.

Did anybody figure out the answer to this yet??? Seems like the consensus is D, but I'm leaning towards B. Only because elements of negligence are duty, breach, actual cause, proximate cause, and damages. So it seems like the best defense would be to assert that you owe no duty to the plaintiff. It would kill the whole chain right?

[NYSprague]

I don't see how D could be the best defense. Children pushing carts are hazards.

I'm not sold on any of these but I haven't thought about torts in years.
I'm going with C. But I don't like admitting negligence for something, even if unspecified.

[jumpingjack]

I'm going through all the previous essay model answers and the handouts and am compiling an outline full of black letter law. Does this make sense? Or is there just too damn much law to remember. Themis has said that each black letter law outline should be 1-2 pages, and I'm not sure how I can shove all that crap in 1-2 pages.

Is it about prioritizing certain things over other things and rolling the dice? What are you all doing when it comes to that?

[Genuine4ps]

I'm going through all the previous essay model answers and the handouts and am compiling an outline full of black letter law. Does this make sense? Or is there just too damn much law to remember. Themis has said that each black letter law outline should be 1-2 pages, and I'm not sure how I can shove all that crap in 1-2 pages.

Is it about prioritizing certain things over other things and rolling the dice? What are you all doing when it comes to that?

I think that's basically what I'm going to do (although I don't know if I'm going to use the essays to do this). I'm NOT going to include the nuances, but just the major rules.

[jumpingjack]

I'm going through all the previous essay model answers and the handouts and am compiling an outline full of black letter law. Does this make sense? Or is there just too damn much law to remember. Themis has said that each black letter law outline should be 1-2 pages, and I'm not sure how I can shove all that crap in 1-2 pages.

Is it about prioritizing certain things over other things and rolling the dice? What are you all doing when it comes to that?

I think that's basically what I'm going to do (although I don't know if I'm going to use the essays to do this). I'm NOT going to include the nuances, but just the major rules.

What would be your example of a nuance be? For instance, would you leave out how an affirmative action case is analyzed when putting down the rules for suspect classifications in Equal Protection?

[Genuine4ps]

I'm going through all the previous essay model answers and the handouts and am compiling an outline full of black letter law. Does this make sense? Or is there just too damn much law to remember. Themis has said that each black letter law outline should be 1-2 pages, and I'm not sure how I can shove all that crap in 1-2 pages.

Is it about prioritizing certain things over other things and rolling the dice? What are you all doing when it comes to that?

I think that's basically what I'm going to do (although I don't know if I'm going to use the essays to do this). I'm NOT going to include the nuances, but just the major rules.

What would be your example of a nuance be? For instance, would you leave out how an affirmative action case is analyzed when putting down the rules for suspect classifications in Equal Protection?

I haven't started the process yet, but I would probably create a heading for strict scrutiny, define it, and then list when it applies, including affirmative action. I wouldn't go into the fact that it can't be based on a quota, must be based on a history of discrimination of a certain group by a specific establishment, etc. I consider those nuances. My two page outline is going to be used largely for tackling the essays. I will probably still have to review the handout here and there.

Make sense? Like I said, I haven't started this process, but that's my plan.

[jumpingjack]

That makes sense. My outline might end up being too cumbersome. When I'm done I might purge all the extra stuff and do what you said and spend some extra time digging in the handouts.

[Bildungsroman]

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.

Did anybody figure out the answer to this yet??? Seems like the consensus is D, but I'm leaning towards B. Only because elements of negligence are duty, breach, actual cause, proximate cause, and damages. So it seems like the best defense would be to assert that you owe no duty to the plaintiff. It would kill the whole chain right?

"B" is too broad. The customer is an invitee on the land, to whom the landowner owes a duty to inspect the property and protect the invitee from unreasonable danger. There are situations in which such a duty would include the duty to remove people who are posing an unreasonable danger. Let's say that a customer in a store tells the owner that someone in aisle five is recklessly throwing cans of green beans across the store. The owner would have a duty to protect its customers from this green-bean-throwing menace, even though it's entirely the actions of a third person causing the danger. The store doesn't owe a duty to protect customers from this cart-pushing girl, but that's because this girl does not pose an unreasonable risk to the other customers (answer d).

[NYSprague]

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.

Did anybody figure out the answer to this yet??? Seems like the consensus is D, but I'm leaning towards B. Only because elements of negligence are duty, breach, actual cause, proximate cause, and damages. So it seems like the best defense would be to assert that you owe no duty to the plaintiff. It would kill the whole chain right?

"B" is too broad. The customer is an invitee on the land, to whom the landowner owes a duty to inspect the property and protect the invitee from unreasonable danger. There are situations in which such a duty would include the duty to remove people who are posing an unreasonable danger. Let's say that a customer in a store tells the owner that someone in aisle five is recklessly throwing cans of green beans across the store. The owner would have a duty to protect its customers from this green-bean-throwing menace, even though it's entirely the actions of a third person causing the danger. The store doesn't owe a duty to protect customers from this cart-pushing girl, but that's because this girl does not pose an unreasonable risk to the other customers (answer d).

Probably. I don't know torts. Kids with carts can be menaces. As seen by these facts.

[Genuine4ps]

That makes sense. My outline might end up being too cumbersome. When I'm done I might purge all the extra stuff and do what you said and spend some extra time digging in the handouts.

It's probably going to be hard to only outline the big picture, but if you include the nuances, it seems like it will essentially just be a duplication of the handout.

[Genuine4ps]

For secured transactions essays when the obligor and debtor are the same person, how are you labeling that person?

[klbisho4]

This secured transactions lecturer is just horrible. I want to smash my computer. He skips all over the place and doesn't even address some of the fill in the blanks. And he smacks his gums every 5 seconds. Dude is driving me insane. I have no idea what he is talking about as a result.

[mmmnnn]

This secured transactions lecturer is just horrible. I want to smash my computer. He skips all over the place and doesn't even address some of the fill in the blanks. And he smacks his gums every 5 seconds. Dude is driving me insane. I have no idea what he is talking about as a result.

Yep. Made me wish I'd taken Secured Transactions instead of Wills and Estates last semester.

[northwood]

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.

Did anybody figure out the answer to this yet??? Seems like the consensus is D, but I'm leaning towards B. Only because elements of negligence are duty, breach, actual cause, proximate cause, and damages. So it seems like the best defense would be to assert that you owe no duty to the plaintiff. It would kill the whole chain right?

D. Here a shopping center has a duty to ensure the safety and protection of its customers. By providing shopping carts the grocery store extended its duty to ensure the safety of the carts. since the mother was at the child's side and was pushing the cart in a manner that caused the plaintiff no concern, it cannot be said that the cart itself was defective. likewise because the plaintiff was injured when the defendant child pushed the cart into her, the childs actions was the actual and proximate cause of the injuries, not the shopping cart. because the mother and child was not an employee of the store, the store cannot be held vicariously liable. Thus, while the mother may have been negligent in allowing her child to push the cart, it cannot be said that the tore was negligent in letting the child push the cart because the child's mother was at her side at all time. Answer choice C is incorrect because the word any makes it very broad, and perhaps the store was 1% negligent in not expressly stating that only a child ( older than the tortious child) can push the carts. Therefore, D is the correct answer

[j1987]

This was one of the "best" essays on the NJ bar for this particular question. Makes me wonder.

"1) The testimony of Mark is inadmissible under the Hearsay Exception of Dying declaration.

Relevant testimony is any evidence which tends to prove or disprove an element evidence is Admissible as a general rule; However, there are many exceptions including Hearsay. Hearsay is an out of court statement offered to prove the matter asserted. Hearsay is generally inadmissible however there are many exceptions.

A Dying declaration is an out of court statement made by a declarant in the face of impending death. The judge should rule that the test for Brian’s statement was subjectively met. Further Dying Declarations are admissible in criminal trials and the statements must pertain to the circumstances surrounding the death. This exception is allowed because dying people are supposedly less likely to lie in the face of death.

Brian’s testimony is relevant because it tends to show motive for Stacey wanting to kill him. The testimony that Stacey was embezzling money and he was on his way to tell the authorities. In additional Stacey is on trial for murder not embezzlement so the prosecution can argue that the statement is being introduced to show motive rather than truth of the matter asserted.

In this case because Brian’s testimony is relevant and goes to show both motive as well as possible circumstances surrounding his death, the evidence should be rules admissible."

[Tanicius]

This was one of the "best" essays on the NJ bar for this particular question. Makes me wonder.

"1) The testimony of Mark is inadmissible under the Hearsay Exception of Dying declaration.

Relevant testimony is any evidence which tends to prove or disprove an element evidence is Admissible as a general rule; However, there are many exceptions including Hearsay. Hearsay is an out of court statement offered to prove the matter asserted. Hearsay is generally inadmissible however there are many exceptions.

A Dying declaration is an out of court statement made by a declarant in the face of impending death. The judge should rule that the test for Brian’s statement was subjectively met. Further Dying Declarations are admissible in criminal trials and the statements must pertain to the circumstances surrounding the death. This exception is allowed because dying people are supposedly less likely to lie in the face of death.

Brian’s testimony is relevant because it tends to show motive for Stacey wanting to kill him. The testimony that Stacey was embezzling money and he was on his way to tell the authorities. In additional Stacey is on trial for murder not embezzlement so the prosecution can argue that the statement is being introduced to show motive rather than truth of the matter asserted.

In this case because Brian’s testimony is relevant and goes to show both motive as well as possible circumstances surrounding his death, the evidence should be rules admissible."

Wow, that is indeed pretty awful.

[blue920]

This was one of the "best" essays on the NJ bar for this particular question. Makes me wonder.

"1) The testimony of Mark is inadmissible under the Hearsay Exception of Dying declaration.

Relevant testimony is any evidence which tends to prove or disprove an element evidence is Admissible as a general rule; However, there are many exceptions including Hearsay. Hearsay is an out of court statement offered to prove the matter asserted. Hearsay is generally inadmissible however there are many exceptions.

A Dying declaration is an out of court statement made by a declarant in the face of impending death. The judge should rule that the test for Brian’s statement was subjectively met. Further Dying Declarations are admissible in criminal trials and the statements must pertain to the circumstances surrounding the death. This exception is allowed because dying people are supposedly less likely to lie in the face of death.

Brian’s testimony is relevant because it tends to show motive for Stacey wanting to kill him. The testimony that Stacey was embezzling money and he was on his way to tell the authorities. In additional Stacey is on trial for murder not embezzlement so the prosecution can argue that the statement is being introduced to show motive rather than truth of the matter asserted.

In this case because Brian’s testimony is relevant and goes to show both motive as well as possible circumstances surrounding his death, the evidence should be rules admissible."

Well. Now I know why people talk about "autopass" as long as you do well enough on the MBE.