California Bar Exam (July 2014) thread Forum

[Mr. Pink]

SP was the bulk of that question. Not to burst anyone's bubble here, but he was definitely getting SP on that contract.

1) Def and certain contract
2) Inadequate remedies at law- the consequential damages were to speculative and unforeseeable, and since he cut his rate in hopes of those damages, the legal remedies are inadequate
3) Mutuality- this is more broad than before... even though the woman who breached wouldn't be able to get it, the landscaper still can. The lady is only having to pay $$$ and as long as he can show more than a mere promise to perform, he can get it (and that last sentence about him wanting to perform because his big payday is coming from the magazine furthers that)
4) Feasibility- sure why not
5) defense- can't think of any she could raise other than arguing mutuality- no laches or unclean hands

SP doesn't apply at all to that question. SP only applies in land sale contracts, unique or rare goods. It does NOT apply to services contracts (which was the case here) even if the services are rare or unique.

You can conclude it however you like, but that last sentence about him wanting to work under the contract is the examiners way of asking you to discuss SP.... just glossing over it briefly probably cost some points.

[dtl]

I thought it was

Applicable Law-common Law
Material breach
SP-denied
Compensatory damages + mitigation
Incidental damages because why not
Unrecoverable Consequential damages for profits that may/may not have came from the magazine and the contract with the third party that never ended up happening
Restitution for work put in
Detrimental reliance

Did you or anybody else do a full-blown Specific Performance analysis, breaking down all the elements?

I quickly raised and dismissed the issue because it was clear she wouldn't get it, but I'm a little worried that I should have went beyond the "Inadequate Legal Remedy" element in my rule and analysis.

Thoughts?

If it were not for the "X really wants the court to let him finish the job" or w/e I likely would have glossed over SP. Yet given that it mentioned it, I gave it the full SP analysis.

I think as long as you listed the SP requirements and said which he fails, you are likely fine as far as the SP part.

SP was the bulk of that question. Not to burst anyone's bubble here, but he was definitely getting SP on that contract.

1) Def and certain contract
2) Inadequate remedies at law- the consequential damages were to speculative and unforeseeable, and since he cut his rate in hopes of those damages, the legal remedies are inadequate
3) Mutuality- this is more broad than before... even though the woman who breached wouldn't be able to get it, the landscaper still can. The lady is only having to pay $$$ and as long as he can show more than a mere promise to perform, he can get it (and that last sentence about him wanting to perform because his big payday is coming from the magazine furthers that)
4) Feasibility- sure why not
5) defense- can't think of any she could raise other than arguing mutuality- no laches or unclean hands

It was a services contract, and the amount he would have charged without relying on the magazine deal was specifically given to us. It was easy to make him whole just with money damages, and a court is unlikely to resort to equity when that is the case.

[jarofsoup]

SP was the bulk of the question. I thought he definitely was not getting sp because there was an adequate legal alt. plus just out of common logic...how can u force people to accept improvements to their property.

[pkt63]

Probably not worth going back and forth over, since the point was the analysis not the conclusion, and I'm pretty sure people concluding either way could get high (or low) scores. But, I will throw in that I think it is a big question whether or not he could be made whole. Just because he had the amount he normally charges, which is only an indicator anyway and not dispositive, doesn't mean he will be made whole. He wouldn't be getting the benefit of his bargain, or to be put in the place he expected to be put in after the deal, if he just got his normal rate. The whole point of compensatory and expectation damages is to get what you were going to get if this deal went through not if you had made some totally other deal or the deal you have made with other people. This deal was about advertising and building his brand and all kinds of uncertain and speculative amounts. And equity is all about finding a way to realize the bargain you made, not giving you a deal you never assented to in the first place. I went back and forth a lot on it, but ultimately I don't believe adequate means creating some totally other contract, it means adequate for the contract you actually made. And because it is so speculative and uncertain, the damages for this actual contract are inadequate.

[adonai]

SP was the bulk of that question. Not to burst anyone's bubble here, but he was definitely getting SP on that contract.

1) Def and certain contract
2) Inadequate remedies at law- the consequential damages were to speculative and unforeseeable, and since he cut his rate in hopes of those damages, the legal remedies are inadequate
3) Mutuality- this is more broad than before... even though the woman who breached wouldn't be able to get it, the landscaper still can. The lady is only having to pay $$$ and as long as he can show more than a mere promise to perform, he can get it (and that last sentence about him wanting to perform because his big payday is coming from the magazine furthers that)
4) Feasibility- sure why not
5) defense- can't think of any she could raise other than arguing mutuality- no laches or unclean hands

SP doesn't apply at all to that question. SP only applies in land sale contracts, unique or rare goods. It does NOT apply to services contracts (which was the case here) even if the services are rare or unique.

You can conclude it however you like, but that last sentence about him wanting to work under the contract is the examiners way of asking you to discuss SP.... just glossing over it briefly probably cost some points.

I didn't even think SP was worthy of addressing. It just didn't apply to me. I'm not talking about concluding the right way. I'm saying it's not even an issue really worth addressing. I felt it wasn't even a relevant issue. But I'm sure briefly covering it wouldn't have hurt.

Edit: okay now I remember the part saying P wanted to really work under the K. Welp, guess I failed that one.

[lmr]

SP was the bulk of that question. Not to burst anyone's bubble here, but he was definitely getting SP on that contract.

1) Def and certain contract
2) Inadequate remedies at law- the consequential damages were to speculative and unforeseeable, and since he cut his rate in hopes of those damages, the legal remedies are inadequate
3) Mutuality- this is more broad than before... even though the woman who breached wouldn't be able to get it, the landscaper still can. The lady is only having to pay $$$ and as long as he can show more than a mere promise to perform, he can get it (and that last sentence about him wanting to perform because his big payday is coming from the magazine furthers that)
4) Feasibility- sure why not
5) defense- can't think of any she could raise other than arguing mutuality- no laches or unclean hands

SP doesn't apply at all to that question. SP only applies in land sale contracts, unique or rare goods. It does NOT apply to services contracts (which was the case here) even if the services are rare or unique.

You can conclude it however you like, but that last sentence about him wanting to work under the contract is the examiners way of asking you to discuss SP.... just glossing over it briefly probably cost some points.

I didn't even think SP was worthy of addressing. It just didn't apply to me. I'm not talking about concluding the right way. I'm saying it's not even an issue really worth addressing. I felt it wasn't even a relevant issue. But I'm sure briefly covering it wouldn't have hurt.

The examiners said the guy ideally wanted to perform the K so you had to mention SP at least briefly. I concluded he couldn't get SP bc it was not feasible for the courts to enforce. This wasn't just a payment that had to be made but landscaping project of some exclusive housing community that had to be suited to the lady's taste. I ended up finding damages were adequate bc most of his speculative damages were unforeseeable. Did D even know she was getting a discounted rate bc of her agreement to allow him to photograph? Or did she just agree to let him to photograph? Did she know of his 3P K? He was only getting a proposal to the magazine-no guarantee the magazine would ever publish anything. I just concluded K price was adequate enough.(Said his extra service to 3P prob not deductible bc it was only 10 hours worth and he could prob perform both).
Guess it doesn't matter as long as you do the analysis but I don't see how you can enforce this K in real life by granting SP. It just seems unfair to the D.

[pkt63]

Guess it doesn't matter as long as you do the analysis but I don't see how you can enforce this K in real life by granting SP. It just seems unfair to the D.

I went back and forth over that part for a long time too. I said it's not as obviously easy to enforce as and exchange of goods or land, but it's also not as obviously hard or against public policy as forcing someone to work for someone else. You just have to force the landowner to allow him on her land for 100 hours plus a bit for the photo shoot. But I like your consideration about whether she would like the end product, too. I'm interested in what the model conclusion would say, but I'm definitely confident that I did a ton of analysis on the right areas.

[injun]

Not sure if this was addressed already, but does anyone know what should have been discussed with regards to the crim pro question...specifically the attorney not wanting to allow the defendant to testify and the Pro se question. Thanks!

[Carryon]

Not sure if this was addressed already, but does anyone know what should have been discussed with regards to the crim pro question...specifically the attorney not wanting to allow the defendant to testify and the Pro se question. Thanks!

I thought that unlike a civil case in which defendant may commit perjury, the defendant has a constitutional right to testify. The attorney can make a noisy withdraw of the case, but he cannot, unlike a civil case, prevent the defendant from testifying. I also concluded that the defendant has a right to represent himself pro se, even though his reasons for discharging the attorney were not valid. But, I am not so sure. These essay questions were a little tricky at times, as evident by the split in discussion on specific performance for the remedies question. Anybody else have any thoughts?

[iLoveFruits&Veggies]

Not sure if this was addressed already, but does anyone know what should have been discussed with regards to the crim pro question...specifically the attorney not wanting to allow the defendant to testify and the Pro se question. Thanks!

I thought that unlike a civil case in which defendant may commit perjury, the defendant has a constitutional right to testify. The attorney can make a noisy withdraw of the case, but he cannot, unlike a civil case, prevent the defendant from testifying. I also concluded that the defendant has a right to represent himself pro se, even though his reasons for discharging the attorney were not valid. But, I am not so sure. These essay questions were a little tricky at times, as evident by the split in discussion on specific performance for the remedies question. Anybody else have any thoughts?

I said the defendant had the right to testify (but could not remember the term "pro se" which drove me batty to no end!) and I discussed why SP was not an option for the remedies question - it was a service contract - courts don't like to force people to work together AND it would be very difficult to enforce. Btw, I'm really confused as to how much we can talk about the Bar on here. Can we discuss it as long as we don't post the language of any questions??? Anyone know the scoop?

[Determination3]

Per the above post: Yea, I made up the law there and said something to that effect. I'd like to thank Law and Order for that answer.

But for the Torts question, did anyone mention Negligent Infliction of Emotional Distress?

[dtl]

Per the above post: Yea, I made up the law there and said something to that effect. I'd like to thank Law and Order for that answer.

But for the Torts question, did anyone mention Negligent Infliction of Emotional Distress?

If you mean the restaurant scenario, it said to only do negligence theor............

Mid writing that sentence I realized NIED is a negligence theory. Still, I do not think it qualifies for it at all, and I doubt you will lose points for not including it. You would have to argue that him eating the food was some sort of "threat of impact" I guess. I dunno, it does not seem to apply.

[Carryon]

Not sure if this was addressed already, but does anyone know what should have been discussed with regards to the crim pro question...specifically the attorney not wanting to allow the defendant to testify and the Pro se question. Thanks!

I thought that unlike a civil case in which defendant may commit perjury, the defendant has a constitutional right to testify. The attorney can make a noisy withdraw of the case, but he cannot, unlike a civil case, prevent the defendant from testifying. I also concluded that the defendant has a right to represent himself pro se, even though his reasons for discharging the attorney were not valid. But, I am not so sure. These essay questions were a little tricky at times, as evident by the split in discussion on specific performance for the remedies question. Anybody else have any thoughts?

I said the defendant had the right to testify (could not remember the term "pro se" which drove me batty to no end!) and I discussed why SP was not an option for the remedies question - it was a service contract - courts don't like to force people to work together AND it would be very difficult to enforce. Btw, I'm really confused as to how much we can talk about the Bar on here. Can we discuss it as long as we don't post the language of any questions??? Anyone know the scoop?

Good question, I don't see it in any of the rules. Maybe it was just for the MBE section in that you cannot talk about the questions after the morning session. I know that for the February 2014 bar, once the questions were posted, other people, such as teachers at bar review courses (e.g. barsecrets. com) discussed the exam questions. I would like to know too if there is a prohibition on discussing the questions, anybody know?

[Determination3]

Per the above post: Yea, I made up the law there and said something to that effect. I'd like to thank Law and Order for that answer.

But for the Torts question, did anyone mention Negligent Infliction of Emotional Distress?

If you mean the restaurant scenario, it said to only do negligence theor............

Mid writing that sentence I realized NIED is a negligence theory. Still, I do not think it qualifies for it at all, and I doubt you will lose points for not including it. You would have to argue that him eating the food was some sort of "threat of impact" I guess. I dunno, it does not seem to apply.

Yea, I talked about NIED. I thought the rule was that: D actions puts P in foreseeable risk of physical impact where P was in the zone of danger and P suffered physical injury. I discussed all that.

But if the question asked about negligent torts, then that's a negligent tort and it would have hurt to discuss it.

[pkt63]

I JUST discovered Tehama County is actually a county in California. You know, from PT-A? Mind blown.

[jarofsoup]

Per the above post: Yea, I made up the law there and said something to that effect. I'd like to thank Law and Order for that answer.

But for the Torts question, did anyone mention Negligent Infliction of Emotional Distress?

If you mean the restaurant scenario, it said to only do negligence theor............

Mid writing that sentence I realized NIED is a negligence theory. Still, I do not think it qualifies for it at all, and I doubt you will lose points for not including it. You would have to argue that him eating the food was some sort of "threat of impact" I guess. I dunno, it does not seem to apply.

Yea, I talked about NIED. I thought the rule was that: D actions puts P in foreseeable risk of physical impact where P was in the zone of danger and P suffered physical injury. I discussed all that.

But if the question asked about negligent torts, then that's a negligent tort and it would have hurt to discuss it.

Not sure neiid is relevant at all to that question.

[Determination3]

Per the above post: Yea, I made up the law there and said something to that effect. I'd like to thank Law and Order for that answer.

But for the Torts question, did anyone mention Negligent Infliction of Emotional Distress?

If you mean the restaurant scenario, it said to only do negligence theor............

Mid writing that sentence I realized NIED is a negligence theory. Still, I do not think it qualifies for it at all, and I doubt you will lose points for not including it. You would have to argue that him eating the food was some sort of "threat of impact" I guess. I dunno, it does not seem to apply.

Yea, I talked about NIED. I thought the rule was that: D actions puts P in foreseeable risk of physical impact where P was in the zone of danger and P suffered physical injury. I discussed all that.

But if the question asked about negligent torts, then that's a negligent tort and it would have hurt to discuss it.

Not sure neiid is relevant at all to that question.

To be frank, come what may, I don't give a eff anymore. I don't think putting anything down hurts, what hurts is not putting anything down. If I pass, I pass, if I fail, I fail.

This was my 3rd time, and it's exhausting. No amount of stress will change anything. I'm just going to put this out of my mind for the next 3months, and enjoy my life guilt free.

[chicoalto0649]

I called specific performance an "affirmative injunction" not sure where I pulled that out from...

[Jay Heizenburg]

Per the above post: Yea, I made up the law there and said something to that effect. I'd like to thank Law and Order for that answer.

But for the Torts question, did anyone mention Negligent Infliction of Emotional Distress?

If you mean the restaurant scenario, it said to only do negligence theor............

Mid writing that sentence I realized NIED is a negligence theory. Still, I do not think it qualifies for it at all, and I doubt you will lose points for not including it. You would have to argue that him eating the food was some sort of "threat of impact" I guess. I dunno, it does not seem to apply.

Yea, I talked about NIED. I thought the rule was that: D actions puts P in foreseeable risk of physical impact where P was in the zone of danger and P suffered physical injury. I discussed all that.

But if the question asked about negligent torts, then that's a negligent tort and it would have hurt to discuss it.

Not sure neiid is relevant at all to that question.

TITCR

[Jay Heizenburg]

I called specific performance an "affirmative injunction" not sure where I pulled that out from...

LMAO!!!

I'm not trying to be mean, but this made me laugh hard out loud ... because it's so true to the experience of trying to conjure up shit in the moment. I called what Alice did, "Information Misappropriation." What the fuck is that? But, like you, I hope it works.

And to answer your question, you pulled it out of your ass, like I and most of us did at some point during the exam.

November can't get here fast enough.

[digger]

also, it said he discounted b/c of the exposure he intended to get from the magazine article, but he hadn't even proposed the magazine article to the magazine editor yet... the first couple times i read the question i glazed over this detail, didn't realize til halfway through writing my answer that he hadn't even begun discussions with the magazine about the article re D's yard

[dtl]

I called specific performance an "affirmative injunction" not sure where I pulled that out from...

http://definitions.uslegal.com/a/affirm ... njunction/

You actually were kind of right.

[Byejulyhifeb]

Fwiw I played devils advocate and argued he gets SP. Interesting issue where it's the contractor himself moving for SP and the servitude issues on personal contracts are usually vice versa. Basically argued that since the damages are too unforseeable and since it goes to the benefit of the bargain that they both K for, he should get sp of pictures. Then went into a rather large discussion re: feasibility. Court could grant contractor few hours on a specific day and time to take the pictures. Not much required of the landlord except to just open his property and let him take his pics.

I did the q in about 40 minutes because I knew evidence was my stronger subject and wanted to get the most points in that one. Would be surprised if I get >60 on the remedies. Only talked about expectancy. Threw out the consequential on the other K he was contracting because it was too speculative. Then concluded with SP for the pics. Totally blew any quasi K argument for part performance.

[duskfall]

Has anyone who has done Barbri shipped his or her books back? Were you also charged for the shipping fees? I was kind of shocked that it was over $30 to ship the books back at the cheapest UPS rate, just to get our deposit back.

I shipped it back in March through the USPS Chess Board Flat Rate box. It all fit and cost me $15. THe chess board flat rate box is not at all USPS outlets. You could probably order it for free online.

[duskfall]

statistics for the Feb 2014 Cal bar finally out!

http://admissions.calbar.ca.gov/Portals ... TATS_R.pdf