Themis Bar Review Hangout - July 2014 Exam Forum

[Lasers]

LOL i just did milestone 2 in preparation for the simulation tomorrow. hit 70% so we'll see how it goes tomorrow.

and yes, to those stressing about the CA essays, i am in the exact same boat. but my thinking is that if you get through every essay practice question, the issues/patterns will be more apparent and you'll be more familiar with the rules.

[mmmnnn]

I'm somewhat confused about two different answer explanations regarding prior inconsistent statements, but I may have figured it out. Are the following statements correct?

A witness’s prior inconsistent statement is always admissible to impeach the witness. Such a statement is also admissible substantively as non-hearsay if the statement was made under oath. If the evidence is admitted substantively, the witness must be given the chance to explain or deny the inconsistent statement, but the opportunity to explain or deny need not take place before the statement is admitted into evidence. Under Rule 806, however, the hearsay declarant whose statement has been admitted into evidence for impeachment purposes need not be given the opportunity to explain or deny any prior inconsistent statements or conduct.

I'll bump this question and add another. Why can handwriting not be authenticated by a layperson who became familiar with the handwriting solely for the purposes of litigation, but a layperson can identify a voice even if they became familiar with the voice only for the purposes of identification?

[puttycake]

I'm somewhat confused about two different answer explanations regarding prior inconsistent statements, but I may have figured it out. Are the following statements correct?

A witness’s prior inconsistent statement is always admissible to impeach the witness. Such a statement is also admissible substantively as non-hearsay if the statement was made under oath. If the evidence is admitted substantively, the witness must be given the chance to explain or deny the inconsistent statement, but the opportunity to explain or deny need not take place before the statement is admitted into evidence. Under Rule 806, however, the hearsay declarant whose statement has been admitted into evidence for impeachment purposes need not be given the opportunity to explain or deny any prior inconsistent statements or conduct.

I'll bump this question and add another. Why can handwriting not be authenticated by a layperson who became familiar with the handwriting solely for the purposes of litigation, but a layperson can identify a voice even if they became familiar with the voice only for the purposes of identification?

I think you're right about the first one.

About the second, it's because the rules are inconsistent and they hate us.

[jigglypuffdreams]

I'm somewhat confused about two different answer explanations regarding prior inconsistent statements, but I may have figured it out. Are the following statements correct?

A witness’s prior inconsistent statement is always admissible to impeach the witness. Such a statement is also admissible substantively as non-hearsay if the statement was made under oath. If the evidence is admitted substantively, the witness must be given the chance to explain or deny the inconsistent statement, but the opportunity to explain or deny need not take place before the statement is admitted into evidence. Under Rule 806, however, the hearsay declarant whose statement has been admitted into evidence for impeachment purposes need not be given the opportunity to explain or deny any prior inconsistent statements or conduct.

I'll bump this question and add another. Why can handwriting not be authenticated by a layperson who became familiar with the handwriting solely for the purposes of litigation, but a layperson can identify a voice even if they became familiar with the voice only for the purposes of identification?

The first part sounds right, as for the voice versus handwriting thing, doesn't the voice identification come up in the context of "hey that guy called me, I heard his voice, then I heard him talk again at trial and he had the same voice." It's not like someone is training laypeople to recognize someone's voice, at least not in any questions I've come across yet.

[mmmnnn]

I'm somewhat confused about two different answer explanations regarding prior inconsistent statements, but I may have figured it out. Are the following statements correct?

A witness’s prior inconsistent statement is always admissible to impeach the witness. Such a statement is also admissible substantively as non-hearsay if the statement was made under oath. If the evidence is admitted substantively, the witness must be given the chance to explain or deny the inconsistent statement, but the opportunity to explain or deny need not take place before the statement is admitted into evidence. Under Rule 806, however, the hearsay declarant whose statement has been admitted into evidence for impeachment purposes need not be given the opportunity to explain or deny any prior inconsistent statements or conduct.

I'll bump this question and add another. Why can handwriting not be authenticated by a layperson who became familiar with the handwriting solely for the purposes of litigation, but a layperson can identify a voice even if they became familiar with the voice only for the purposes of identification?

The first part sounds right, as for the voice versus handwriting thing, doesn't the voice identification come up in the context of "hey that guy called me, I heard his voice, then I heard him talk again at trial and he had the same voice." It's not like someone is training laypeople to recognize someone's voice, at least not in any questions I've come across yet.

Ok, actually the right to explain the prior inconsistent statement apparently hinges not on whether the statement is admitted as substantive evidence or for impeachment purposes, but rather whether the declarant is testifying in court. Here's the latest answer explanation on this: "It is ordinarily true that a witness impeached with a prior inconsistent statement must be given an opportunity to explain or deny the statement. That is not possible, however, when a hearsay declarant is not produced at trial. Therefore Rule 806 provides that the ordinary requirement of a 'fair opportunity to explain or deny' is not applicable to hearsay declarants who are being impeached with prior inconsistent statements."

As far as the handwriting distinction, the question I was referring to asked "which of the following is LEAST likely to be considered a proper means of identifying a voice on a tape." One of the options was "A lay witness testifies after having become familiar with the voice solely for the purposes of litigation." That was NOT the correct answer, because "A voice can be identified by any person who has heard the voice at any time, including one made familiar with the voice solely for the purposes of litigation." I got it wrong, because I'd previously learned that "A lay witness with personal knowledge of the claimed author's handwriting may testify as to whether the document is in that person's handwriting; however, the lay witness must not have become familiar with the handwriting for the purposes of litigation."

[Apple Tree]

I'm somewhat confused about two different answer explanations regarding prior inconsistent statements, but I may have figured it out. Are the following statements correct?

A witness’s prior inconsistent statement is always admissible to impeach the witness. Such a statement is also admissible substantively as non-hearsay if the statement was made under oath. If the evidence is admitted substantively, the witness must be given the chance to explain or deny the inconsistent statement, but the opportunity to explain or deny need not take place before the statement is admitted into evidence. Under Rule 806, however, the hearsay declarant whose statement has been admitted into evidence for impeachment purposes need not be given the opportunity to explain or deny any prior inconsistent statements or conduct.

I'll bump this question and add another. Why can handwriting not be authenticated by a layperson who became familiar with the handwriting solely for the purposes of litigation, but a layperson can identify a voice even if they became familiar with the voice only for the purposes of identification?

The first part sounds right, as for the voice versus handwriting thing, doesn't the voice identification come up in the context of "hey that guy called me, I heard his voice, then I heard him talk again at trial and he had the same voice." It's not like someone is training laypeople to recognize someone's voice, at least not in any questions I've come across yet.

Ok, actually the right to explain the prior inconsistent statement apparently hinges not on whether the statement is admitted as substantive evidence or for impeachment purposes, but rather whether the declarant is testifying in court. Here's the latest answer explanation on this: "It is ordinarily true that a witness impeached with a prior inconsistent statement must be given an opportunity to explain or deny the statement. That is not possible, however, when a hearsay declarant is not produced at trial. Therefore Rule 806 provides that the ordinary requirement of a 'fair opportunity to explain or deny' is not applicable to hearsay declarants who are being impeached with prior inconsistent statements."

As far as the handwriting distinction, the question I was referring to asked "which of the following is LEAST likely to be considered a proper means of identifying a voice on a tape." One of the options was "A lay witness testifies after having become familiar with the voice solely for the purposes of litigation." That was NOT the correct answer, because "A voice can be identified by any person who has heard the voice at any time, including one made familiar with the voice solely for the purposes of litigation." I got it wrong, because I'd previously learned that "A lay witness with personal knowledge of the claimed author's handwriting may testify as to whether the document is in that person's handwriting; however, the lay witness must not have become familiar with the handwriting for the purposes of litigation."

I thought you only had to give the witness a chance to explain when you are offering extrinsic evidence to support inconsisten statement for impeachment purpose? I'm looking at the Themis evidence outline p.20.

[Kiwi917]

I'm somewhat confused about two different answer explanations regarding prior inconsistent statements, but I may have figured it out. Are the following statements correct?

A witness’s prior inconsistent statement is always admissible to impeach the witness. Such a statement is also admissible substantively as non-hearsay if the statement was made under oath. If the evidence is admitted substantively, the witness must be given the chance to explain or deny the inconsistent statement, but the opportunity to explain or deny need not take place before the statement is admitted into evidence. Under Rule 806, however, the hearsay declarant whose statement has been admitted into evidence for impeachment purposes need not be given the opportunity to explain or deny any prior inconsistent statements or conduct.

I'll bump this question and add another. Why can handwriting not be authenticated by a layperson who became familiar with the handwriting solely for the purposes of litigation, but a layperson can identify a voice even if they became familiar with the voice only for the purposes of identification?

The first part sounds right, as for the voice versus handwriting thing, doesn't the voice identification come up in the context of "hey that guy called me, I heard his voice, then I heard him talk again at trial and he had the same voice." It's not like someone is training laypeople to recognize someone's voice, at least not in any questions I've come across yet.

The Advisory Committee notes for FRE 901 give a little more explanation of this, if you really want to dive into it: http://www.law.cornell.edu/rules/fre/rule_901. Seems like the most important thing is that voice identification is not the subject of expert testimony, while handwriting identification traditionally is. I'm not sure if that even makes sense anymore, because voice identification experts seem common nowadays. Maybe there's a stretch of an argument that voice ID should be treated more like eyewitness or visual ID, because lay people generally have more day-to-day experience identifying voices and appearances than they do with identifying handwriting, but that's a pretty weak argument given how terrible eyewitness IDs are.

[mmmnnn]

I thought you only had to give the witness a chance to explain when you are offering extrinsic evidence to support inconsisten statement for impeachment purpose? I'm looking at the Themis evidence outline p.20.

Yeah, I'm looking at that now, too. I guess the answer I quoted says it's "ordinarily true" that a witness must be given the opportunity to explain or deny, because it would be rare to be impeached with a prior inconsistent statement that wasn't offered as extrinsic evidence.

[puttycake]

The Advisory Committee notes for FRE 901 give a little more explanation of this, if you really want to dive into it: http://www.law.cornell.edu/rules/fre/rule_901. Seems like the most important thing is that voice identification is not the subject of expert testimony, while handwriting identification traditionally is. I'm not sure if that even makes sense anymore, because voice identification experts seem common nowadays. Maybe there's a stretch of an argument that voice ID should be treated more like eyewitness or visual ID, because lay people generally have more day-to-day experience identifying voices and appearances than they do with identifying handwriting, but that's a pretty weak argument given how terrible eyewitness IDs are.

Yeah, I can see why writing was traditionally an expert thing, since you'd have examples of writing lying around that people could study, but you couldn't really study voices until there was a method of recording them. The law is just incredibly slow to react.

[crossingforHYS]

So I just got 100 out of 200, TERRIBLE.

how likely is this telling me I may fail?

I am going to be going over all of the mbe subjects today and my issues with them but I am starting to get very nervous.

and by nervous I mean break down territory. #lookingforsupport .

[mmmnnn]

So I just got 100 out of 200, TERRIBLE.

how likely is this telling me I may fail?

I am going to be going over all of the mbe subjects today and my issues with them but I am starting to get very nervous.

and by nervous I mean break down territory. #lookingforsupport .

I've spent the past couple days reviewing every question and answer explanation in the single-subject multiple choice tests. It has significantly raised my scores (except in Contracts, for some reason). It'll probably take you three days to get through everything, but I think that's the best way to improve. And really, three days isn't that much. If you've reviewed all prior questions by the end of the weekend, and you do another 1,000 questions before the exam, there's no reason to worry.

[bport hopeful]

Im taking Milestone #2 tomorrow. For giggles, can anyone tell me what the average is?

[Tanicius]

Im taking Milestone #2 tomorrow. For giggles, can anyone tell me what the average is?

63%

[84Sunbird2000]

So, on question 35 of the Sim, why is the well-practiced knife thrower guy who consistently hits a dime target acting recklessly in a manner indifferent to human life? It seems that his consistency and lifetime of practice would negate the "reckless" portion, but apparently not...

[bport hopeful]

So, on question 35 of the Sim, why is the well-practiced knife thrower guy who consistently hits a dime target acting recklessly in a manner indifferent to human life? It seems that his consistency and lifetime of practice would negate the "reckless" portion, but apparently not...

Hes throwing knives at people.

Edit: That was smarmier than I intended.

[Lolek]

Anybody know when a party fails to satisfy the opportunity to deny standard? I had a question where they couldn't use prior inconsistent statement as it was too late because the witness was dismissed after a silent cross exam and plaintiff finished her case. Yet on this simulated exam there's a question exactly like that but the extrinsic evidence is admissible. I know in the latter problem it just indicates there was no cross exam which is fine cause it can be admitted prior to the opportunity but in the first one it was apparently barred and the only explanation I can think of is that plaintiff finished her case so the defense waited too long to impeach with extrinsic evidence.

[lsutiger1987]

The Kaplan MBE Red Book is the real deal. Actually tougher than the Themis MBE questions. Was told that the Kaplan red book reflects what will be on the bar exam. Many people I know who used it said it definitely helped.

[j1987]

The Kaplan MBE Red Book is the real deal. Actually tougher than the Themis MBE questions. Was told that the Kaplan red book reflects what will be on the bar exam. Many people I know who used it said it definitely helped.

I feel like there are so many tips out there as to which books to use to prepare. I know someone who used Themis to prepare for NY/NJ in February, and that person said Themis' questions were very similar to what was on the bar. I have heard people complain about Barbri, saying the Barbri questions were very dissimilar to what is on the bar.

I haven't heard anything about Kaplan.

How do we know what to use?!

[ave083]

So I just got 100 out of 200, TERRIBLE.

how likely is this telling me I may fail?

I am going to be going over all of the mbe subjects today and my issues with them but I am starting to get very nervous.

and by nervous I mean break down territory. #lookingforsupport .

I am not glad you got 100/200 but I am glad that I'm not alone! I've been consistently getting high 60's and low 70% in the practice questions and I got 107/200 yesterday in the exam environment on site test. I completely lost my cool and it has thrown me big time! I came home and was able to answer a lot of the questions I missed under calmer conditions. Not happy today, but gotta keep on going. No point throwing in the towel after all the work you did to actually get to 100/200... There's just under 3 weeks, practice makes perfect. Try to make sure you've done at least 1500 questions before the real deal.

[cooperlaserpup]

So I just got 100 out of 200, TERRIBLE.

how likely is this telling me I may fail?

I am going to be going over all of the mbe subjects today and my issues with them but I am starting to get very nervous.

and by nervous I mean break down territory. #lookingforsupport .

I am not glad you got 100/200 but I am glad that I'm not alone! I've been consistently getting high 60's and low 70% in the practice questions and I got 107/200 yesterday in the exam environment on site test. I completely lost my cool and it has thrown me big time! I came home and was able to answer a lot of the questions I missed under calmer conditions. Not happy today, but gotta keep on going. No point throwing in the towel after all the work you did to actually get to 100/200... There's just under 3 weeks, practice makes perfect. Try to make sure you've done at least 1500 questions before the real deal.

At this point in the course most people get around 110-120. The assumption is that there will be improvement on that before the bar. 100 is NOT terrible, it is very close to being on track. Don't get down on yourself, you're still in a perfectly good position to get what you need to pass with some more study. Don't forget, there's no extra prize for passing with flying colors

Maybe its just me, but I got 113 correct and thought "Alrighty. I can deal with that."

[Bigbub75]

So I just got 100 out of 200, TERRIBLE.

how likely is this telling me I may fail?

I am going to be going over all of the mbe subjects today and my issues with them but I am starting to get very nervous.

and by nervous I mean break down territory. #lookingforsupport .

I've spent the past couple days reviewing every question and answer explanation in the single-subject multiple choice tests. It has significantly raised my scores (except in Contracts, for some reason). It'll probably take you three days to get through everything, but I think that's the best way to improve. And really, three days isn't that much. If you've reviewed all prior questions by the end of the weekend, and you do another 1,000 questions before the exam, there's no reason to worry.

I think this is great advice. Ive kept a running word doc for all the explanations of the questions I get wrong, especially those with very nuanced explanations. It's about 40 pages long at this point but I review parts of it everyday. It helps me not repeat mistakes and also drives home certain rules. I have been able to raise my points on the practice sets significantly this way from about 50% to being consistently in the 70s. It does take time and I have had to forgo doing some other things that Themis says I should be doing but at this point I only want to do things that I think will help me pass the exam.

[094320]

..

[Lasers]

ugh, i gotta wake up early tomorrow for the simulation. ah well...maybe it'll fix my sleeping schedule.

[kapital98]

ugh, i gotta wake up early tomorrow for the simulation. ah well...maybe it'll fix my sleeping schedule.

I keep waking up at 10am and then sleeping in until 1pm. I keep telling myself tomorrow is going to be the first day I get my sleep schedule on track. Then, after failing, I tell myself the next day will be the first day.

[Prime]

MPT....I hate yooooooooooou. Such a time sink! Glad I only have to write one MPT for the bar. Then again, I get hit with the mandatory handwritten Texas Crim/Civ pro short answers. Yiiiipie