Themis Bar Review Hangout - July 2014 Exam Forum

[j1987]

So, Secured Transactions has only come up on the NY bar 7 times since 1981.

Where did you get this information?

[Apple Tree]

I have a question about res ipsa loquitur in a multiple defendant case. If someone could help me that would be great.

Simulated exam # 135 goes like this:

Four men were bow-and-arrow hunting in a thickly wooded area. Each man was wearing brightly-colored apparel to minimize the risk of an accident. However, midway through the day, one hunter was struck in the leg by an arrow. The wounded man collapsed in agony, and eventually required several surgical procedures and months of rehabilitation in order to walk again. None of the other three men admitted responsibility for the accident. The injured man sued the other three hunters, claiming negligence. The injured man (i.e., the plaintiff) introduced evidence tending to show that no other hunting parties were within a five-mile radius at the time of the incident, but he was unable to show conclusively which of the three defendants fired the arrow that caused his injury. At the conclusion of the plaintiff’s case, one of the defendants filed a motion for summary judgment. How should the court rule on the motion?

Answer Choices:
Deny the motion, because the defendant had not yet exonerated himself from responsibility.
Deny the motion, because res ipsa loquitur applies.
Grant the motion, because the plaintiff has failed to meet his burden of proof.
Grant the motion, because the defendant was not a substantial factor in plaintiff’s injury.

Correct Answer: Grant the motion, because the plaintiff has failed to meet his burden of proof.
Rationale: Answer choice C is correct.... If the plaintiff’s harm was caused by one of a small number of defendants, each of whose conduct was tortious (negligent), and all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause-in-fact of the plaintiff’s harm. Here, however, the plaintiff cannot establish that all of the defendants were negligent; rather, only one defendant was, and the evidence does not establish which one.... Answer choice B is incorrect because res ipsa loquitur is applied only in cases where the defendant was in exclusive control of the instrumentality that caused the plaintiff’s harm, or at least was responsible for those with such control. Here, the plaintiff has not established who was in control of the arrow that caused his injury.

BUT, in Themis tort outline p. 48, it says examples of joint and several liability applies when "Res ipsa loquitur is used against multiple defendants (such as in a surgical setting), and that defendants are unable to identify the tortfeasor whose acts were negligent." So originally I thought when a plaintiff isn't sure who committed the negligence, but could prove that it definitely come from a very small group of people, the burden shifts to that group of people to disprove themselves (like the case in the surgery)? But is this question saying P has to pinpoint to a specific plaintiff? I'm so confused...

[Tanicius]

BUT, in Themis tort outline p. 48, it says examples of joint and several liability applies when "Res ipsa loquitur is used against multiple defendants (such as in a surgical setting), and that defendants are unable to identify the tortfeasor whose acts were negligent." So originally I thought when a plaintiff isn't sure who committed the negligence, but could prove that it definitely come from a very small group of people, the burden shifts to that group of people to disprove themselves (like the case in the surgery)? But is this question saying P has to pinpoint to a specific plaintiff? I'm so confused...

Yeah, I feel like res ipsa loquitur is totally toothless if you have to prove who committed the act.

[Lilly76]

No idea how to handle the massive amounts of info in fed civ pro, Pa civ pro and Nj civ pro

[bport hopeful]

Holy Hell. NYS MC.

[071816]

BUT, in Themis tort outline p. 48, it says examples of joint and several liability applies when "Res ipsa loquitur is used against multiple defendants (such as in a surgical setting), and that defendants are unable to identify the tortfeasor whose acts were negligent." So originally I thought when a plaintiff isn't sure who committed the negligence, but could prove that it definitely come from a very small group of people, the burden shifts to that group of people to disprove themselves (like the case in the surgery)? But is this question saying P has to pinpoint to a specific plaintiff? I'm so confused...

Yeah, I feel like res ipsa loquitur is totally toothless if you have to prove who committed the act.

I was pretty confused by this question as well. The explanation pissed me off. I thought the whole reason for the doctrine was so that you didn't have to specifically prove that any of the actors were negligent.

[SisyphusHappy]

Quick contracts question. I don't really understand when nondisclosure is a defense. If you're selling me a ring and I say "that's a beautiful diamond, I'll buy it," but it's actually a cheap stone, the contract is voidable, right? The long outline makes the doctrine seem much more expansive than the lecture notes or short outline do.

[numbertwo88]

Quick contracts question. I don't really understand when nondisclosure is a defense. If you're selling me a ring and I say "that's a beautiful diamond, I'll buy it," but it's actually a cheap stone, the contract is voidable, right? The long outline makes the doctrine seem much more expansive than the lecture notes or short outline do.

Isn't it basically misrepresentation via silence? As though the party to the contract who knows about the issue, which is a material issue to the contract, says nothing despite. Also whether the party to be harmed by the contract could have found out about the information.

In your example whether or not the diamond was quartz is, in my mind, a material fact that you were not privy to in just seeing the ring; so the seller would need to correct as opposed to "silently" go along with it.

... that's my understanding.

[mmmnnn]

I have a question about res ipsa loquitur in a multiple defendant case. If someone could help me that would be great.

Simulated exam # 135 goes like this:

Four men were bow-and-arrow hunting in a thickly wooded area. Each man was wearing brightly-colored apparel to minimize the risk of an accident. However, midway through the day, one hunter was struck in the leg by an arrow. The wounded man collapsed in agony, and eventually required several surgical procedures and months of rehabilitation in order to walk again. None of the other three men admitted responsibility for the accident. The injured man sued the other three hunters, claiming negligence. The injured man (i.e., the plaintiff) introduced evidence tending to show that no other hunting parties were within a five-mile radius at the time of the incident, but he was unable to show conclusively which of the three defendants fired the arrow that caused his injury. At the conclusion of the plaintiff’s case, one of the defendants filed a motion for summary judgment. How should the court rule on the motion?

Answer Choices:
Deny the motion, because the defendant had not yet exonerated himself from responsibility.
Deny the motion, because res ipsa loquitur applies.
Grant the motion, because the plaintiff has failed to meet his burden of proof.
Grant the motion, because the defendant was not a substantial factor in plaintiff’s injury.

Correct Answer: Grant the motion, because the plaintiff has failed to meet his burden of proof.
Rationale: Answer choice C is correct.... If the plaintiff’s harm was caused by one of a small number of defendants, each of whose conduct was tortious (negligent), and all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause-in-fact of the plaintiff’s harm. Here, however, the plaintiff cannot establish that all of the defendants were negligent; rather, only one defendant was, and the evidence does not establish which one.... Answer choice B is incorrect because res ipsa loquitur is applied only in cases where the defendant was in exclusive control of the instrumentality that caused the plaintiff’s harm, or at least was responsible for those with such control. Here, the plaintiff has not established who was in control of the arrow that caused his injury.

BUT, in Themis tort outline p. 48, it says examples of joint and several liability applies when "Res ipsa loquitur is used against multiple defendants (such as in a surgical setting), and that defendants are unable to identify the tortfeasor whose acts were negligent." So originally I thought when a plaintiff isn't sure who committed the negligence, but could prove that it definitely come from a very small group of people, the burden shifts to that group of people to disprove themselves (like the case in the surgery)? But is this question saying P has to pinpoint to a specific plaintiff? I'm so confused...

Res ipsa generally applies in a situation where the defendant is known (like a corporation or supermarket, most obviously). This has been extended to medical cases, where the defendant is not necessarily known. It hasn't been extended to other tort cases where the identity of the defendant is unknown. From another answer:

"Ybarra v. Spangard and cases that follow its approach have relied on this extension of res ipsa loquitur to establish causation in situations in which the plaintiff was treated by a medical team that, as a group, had exclusive control of the patient and in which the patient, because she was unconscious, cannot identify what went wrong. The doctrine may be limited to medical cases in which there may be a concern that none of the medical professionals would be willing to testify against another."

[iLoveFruits&Veggies]

I have a question about res ipsa loquitur in a multiple defendant case. If someone could help me that would be great.

Simulated exam # 135 goes like this:

Four men were bow-and-arrow hunting in a thickly wooded area. Each man was wearing brightly-colored apparel to minimize the risk of an accident. However, midway through the day, one hunter was struck in the leg by an arrow. The wounded man collapsed in agony, and eventually required several surgical procedures and months of rehabilitation in order to walk again. None of the other three men admitted responsibility for the accident. The injured man sued the other three hunters, claiming negligence. The injured man (i.e., the plaintiff) introduced evidence tending to show that no other hunting parties were within a five-mile radius at the time of the incident, but he was unable to show conclusively which of the three defendants fired the arrow that caused his injury. At the conclusion of the plaintiff’s case, one of the defendants filed a motion for summary judgment. How should the court rule on the motion?

Answer Choices:
Deny the motion, because the defendant had not yet exonerated himself from responsibility.
Deny the motion, because res ipsa loquitur applies.
Grant the motion, because the plaintiff has failed to meet his burden of proof.
Grant the motion, because the defendant was not a substantial factor in plaintiff’s injury.

Correct Answer: Grant the motion, because the plaintiff has failed to meet his burden of proof.
Rationale: Answer choice C is correct.... If the plaintiff’s harm was caused by one of a small number of defendants, each of whose conduct was tortious (negligent), and all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause-in-fact of the plaintiff’s harm. Here, however, the plaintiff cannot establish that all of the defendants were negligent; rather, only one defendant was, and the evidence does not establish which one.... Answer choice B is incorrect because res ipsa loquitur is applied only in cases where the defendant was in exclusive control of the instrumentality that caused the plaintiff’s harm, or at least was responsible for those with such control. Here, the plaintiff has not established who was in control of the arrow that caused his injury.

BUT, in Themis tort outline p. 48, it says examples of joint and several liability applies when "Res ipsa loquitur is used against multiple defendants (such as in a surgical setting), and that defendants are unable to identify the tortfeasor whose acts were negligent." So originally I thought when a plaintiff isn't sure who committed the negligence, but could prove that it definitely come from a very small group of people, the burden shifts to that group of people to disprove themselves (like the case in the surgery)? But is this question saying P has to pinpoint to a specific plaintiff? I'm so confused...

Res ipsa generally applies in a situation where the defendant is known (like a corporation or supermarket, most obviously). This has been extended to medical cases, where the defendant is not necessarily known. It hasn't been extended to other tort cases where the identity of the defendant is unknown. From another answer:

"Ybarra v. Spangard and cases that follow its approach have relied on this extension of res ipsa loquitur to establish causation in situations in which the plaintiff was treated by a medical team that, as a group, had exclusive control of the patient and in which the patient, because she was unconscious, cannot identify what went wrong. The doctrine may be limited to medical cases in which there may be a concern that none of the medical professionals would be willing to testify against another."

I bet a bunch of hunting buddies might not want to testify against each other either. Ticked that the hunters get off free on this one. Not fair. Grrrrr...

[numbertwo88]

I don't know where to begin condensing information for the essays.

13 days

[Apple Tree]

I have a question about res ipsa loquitur in a multiple defendant case. If someone could help me that would be great.

Simulated exam # 135 goes like this:

Four men were bow-and-arrow hunting in a thickly wooded area. Each man was wearing brightly-colored apparel to minimize the risk of an accident. However, midway through the day, one hunter was struck in the leg by an arrow. The wounded man collapsed in agony, and eventually required several surgical procedures and months of rehabilitation in order to walk again. None of the other three men admitted responsibility for the accident. The injured man sued the other three hunters, claiming negligence. The injured man (i.e., the plaintiff) introduced evidence tending to show that no other hunting parties were within a five-mile radius at the time of the incident, but he was unable to show conclusively which of the three defendants fired the arrow that caused his injury. At the conclusion of the plaintiff’s case, one of the defendants filed a motion for summary judgment. How should the court rule on the motion?

Answer Choices:
Deny the motion, because the defendant had not yet exonerated himself from responsibility.
Deny the motion, because res ipsa loquitur applies.
Grant the motion, because the plaintiff has failed to meet his burden of proof.
Grant the motion, because the defendant was not a substantial factor in plaintiff’s injury.

Correct Answer: Grant the motion, because the plaintiff has failed to meet his burden of proof.
Rationale: Answer choice C is correct.... If the plaintiff’s harm was caused by one of a small number of defendants, each of whose conduct was tortious (negligent), and all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause-in-fact of the plaintiff’s harm. Here, however, the plaintiff cannot establish that all of the defendants were negligent; rather, only one defendant was, and the evidence does not establish which one.... Answer choice B is incorrect because res ipsa loquitur is applied only in cases where the defendant was in exclusive control of the instrumentality that caused the plaintiff’s harm, or at least was responsible for those with such control. Here, the plaintiff has not established who was in control of the arrow that caused his injury.

BUT, in Themis tort outline p. 48, it says examples of joint and several liability applies when "Res ipsa loquitur is used against multiple defendants (such as in a surgical setting), and that defendants are unable to identify the tortfeasor whose acts were negligent." So originally I thought when a plaintiff isn't sure who committed the negligence, but could prove that it definitely come from a very small group of people, the burden shifts to that group of people to disprove themselves (like the case in the surgery)? But is this question saying P has to pinpoint to a specific plaintiff? I'm so confused...

Res ipsa generally applies in a situation where the defendant is known (like a corporation or supermarket, most obviously). This has been extended to medical cases, where the defendant is not necessarily known. It hasn't been extended to other tort cases where the identity of the defendant is unknown. From another answer:

"Ybarra v. Spangard and cases that follow its approach have relied on this extension of res ipsa loquitur to establish causation in situations in which the plaintiff was treated by a medical team that, as a group, had exclusive control of the patient and in which the patient, because she was unconscious, cannot identify what went wrong. The doctrine may be limited to medical cases in which there may be a concern that none of the medical professionals would be willing to testify against another."

I bet a bunch of hunting buddies might not want to testify against each other either. Ticked that the hunters get off free on this one. Not fair. Grrrrr...

Totally. It's so weird that they only apply this to surgery cases, but very glad to know!

[Tanicius]

Heads up on Res Ipsa. I came across a question where it applied to an airline where all the passengers and staff died. Even though there no proof that it was the airline's fault instead of the fault of a contractor or mechanic, res ipsa was applied to the crashed plane's airline.

I like how MBE questions essentially operate like case law.

[Kiwi917]

Isn't there an old torts case similar to the res ipsa hunting question? Something about hunters shooting at each other, but I think the two defendants both shot at the plaintiff (rather than just one out of three possible shooters in the MBE question). Sound familiar to anyone else?

[DavidB]

Isn't there an old torts case similar to the res ipsa hunting question? Something about hunters shooting at each other, but I think the two defendants both shot at the plaintiff (rather than just one out of three possible shooters in the MBE question). Sound familiar to anyone else?

Summers v. Tice?

[Kiwi917]

Isn't there an old torts case similar to the res ipsa hunting question? Something about hunters shooting at each other, but I think the two defendants both shot at the plaintiff (rather than just one out of three possible shooters in the MBE question). Sound familiar to anyone else?

Summers v. Tice?

Yes - thanks! I guess that wasn't res ipsa after all, not really on-point here.

[iLoveFruits&Veggies]

Well, my one day devoted to Civ Pro & CA Civ Pro is coming to an end. HA! Like I know it now... hahahaaaa!!! Taking my chances, fingers crossed it won't be on the exam... I'm movin' ON!

[Lasers]

there's no way i'm gonna pass the essays. i mean, i just don't know how i'll memorize all the elements necessary for every fucking doctrine. i got a torts essay with strict liability and malicious prosecution. i mean, i could sorta work my way through strict liability, but i didn't know a single element of malicious prosecution. sure, i would throw as much bullshit as i could because i know what the concept is, but i didn't have a single formal element in my head.

also, i have a sneaking suspicion that even after i look through all of the practice essays on the website, the bar will come up with something i haven't covered and i'm gonna be screwed.

[84Sunbird2000]

there's no way i'm gonna pass the essays. i mean, i just don't know how i'll memorize all the elements necessary for every fucking doctrine. i got a torts essay with strict liability and malicious prosecution. i mean, i could sorta work my way through strict liability, but i didn't know a single element of malicious prosecution. sure, i would throw as much bullshit as i could because i know what the concept is, but i didn't have a single formal element in my head.

also, i have a sneaking suspicion that even after i look through all of the practice essays on the website, the bar will come up with something i haven't covered and i'm gonna be screwed.

Yes, but everybody feels that way and most people are topping off every essay with a thick gravy layer of bullshit. It's not exactly curved, but more or less is. Some percentage of takers (who knows, 5 percent?) are going to panic a few times or run out of time on their MBE and are going to remove themselves from the competition. Some additional percentage of people are going to be really ill-prepared because they didn't have time or resources to study very well at all.

It's obviously possible to fail, but nearly everybody feels helpless and full of shit like you do. I know I do. First, there's no such thing as an eidetic memory, so everybody is forgetting shit. Nobody in the whole country does better than 10 or 15 wrong in a given MBE administration. Everybody misses several points on essays in every bar in every state. All you have to do, assuming you keep your head, is beat a fairly small minority of those who remain in the running.

[Lasers]

there's no way i'm gonna pass the essays. i mean, i just don't know how i'll memorize all the elements necessary for every fucking doctrine. i got a torts essay with strict liability and malicious prosecution. i mean, i could sorta work my way through strict liability, but i didn't know a single element of malicious prosecution. sure, i would throw as much bullshit as i could because i know what the concept is, but i didn't have a single formal element in my head.

also, i have a sneaking suspicion that even after i look through all of the practice essays on the website, the bar will come up with something i haven't covered and i'm gonna be screwed.

Yes, but everybody feels that way and most people are topping off every essay with a thick gravy layer of bullshit. It's not exactly curved, but more or less is. Some percentage of takers (who knows, 5 percent?) are going to panic a few times or run out of time on their MBE and are going to remove themselves from the competition. Some additional percentage of people are going to be really ill-prepared because they didn't have time or resources to study very well at all.

It's obviously possible to fail, but nearly everybody feels helpless and full of shit like you do. I know I do. First, there's no such thing as an eidetic memory, so everybody is forgetting shit. Nobody in the whole country does better than 10 or 15 wrong in a given MBE administration. Everybody misses several points on essays in every bar in every state. All you have to do, assuming you keep your head, is beat a fairly small minority of those who remain in the running.

yeah, i suppose so. i haven't started trying to memorize rules yet, though i suppose i know them very generally.

i'm at about 50% done with the practice essays; though i'm simply outlining answers, i'm starting to see patterns now and i'm not really missing any issues. it's the law that's mostly been the problem. hoping to bust a few more out for the next two days then start cramming rule statements.

MBE will be on the backburner for another couple days or so; i'll probably do another practice on saturday. then on sunday, i'll outline 2 performance tests since i haven't done them at all.

[bport hopeful]

Just did the Graded PT. Felt like I did pretty well. Preparing myself for the inevitable slightly below average grade that I'm sure is coming to me.

I also feel like the difficulty of a PT can vary pretty heavily. This one seemed easy.

[iLoveFruits&Veggies]

there's no way i'm gonna pass the essays. i mean, i just don't know how i'll memorize all the elements necessary for every fucking doctrine. i got a torts essay with strict liability and malicious prosecution. i mean, i could sorta work my way through strict liability, but i didn't know a single element of malicious prosecution. sure, i would throw as much bullshit as i could because i know what the concept is, but i didn't have a single formal element in my head.

also, i have a sneaking suspicion that even after i look through all of the practice essays on the website, the bar will come up with something i haven't covered and i'm gonna be screwed.

It does seem daunting. I don't think I'm going to pass the essays either. And I'm taking the exam with all the Stanford Law peeps - hopefully mine won't get smushed in for grading with theirs. I guess at this point the goal is just to have something to put on the page if we get an essay we're unfamiliar with. That's what I did with Civ Pro yesterday. I only have a few rules memorized (the main ones), but no matter what question I get, IF we get a Civ Pro question, I'll at least have something to say. I'm not sure if I'll spot the right issues, or write the correct rules, but my page won't be blank anymore. Before yesterday, it would have been BLANK.

[TooManyLoans]

Just did the Graded PT. Felt like I did pretty well. Preparing myself for the inevitable slightly below average grade that I'm sure is coming to me.

I also feel like the difficulty of a PT can vary pretty heavily. This one seemed easy.

Submitted my graded PT on 7/3, the day it was due and still haven't gotten a grade back. Based on how long it took my grader to grade my previous essays, I'll be lucky if I get it back before the exam. And if then, only if I send 3 emails asking for it. But yea, the one in PA was a straight up memo with one case, and I thought it was pretty straight forward.

[jigglypuffdreams]

there's no way i'm gonna pass the essays. i mean, i just don't know how i'll memorize all the elements necessary for every fucking doctrine. i got a torts essay with strict liability and malicious prosecution. i mean, i could sorta work my way through strict liability, but i didn't know a single element of malicious prosecution. sure, i would throw as much bullshit as i could because i know what the concept is, but i didn't have a single formal element in my head.

also, i have a sneaking suspicion that even after i look through all of the practice essays on the website, the bar will come up with something i haven't covered and i'm gonna be screwed.

It does seem daunting. I don't think I'm going to pass the essays either. And I'm taking the exam with all the Stanford Law peeps - hopefully mine won't get smushed in for grading with theirs. I guess at this point the goal is just to have something to put on the page if we get an essay we're unfamiliar with. That's what I did with Civ Pro yesterday. I only have a few rules memorized (the main ones), but no matter what question I get, IF we get a Civ Pro question, I'll at least have something to say. I'm not sure if I'll spot the right issues, or write the correct rules, but my page won't be blank anymore. Before yesterday, it would have been BLANK.

Eek, don't think of all the Stanford law people. If you're in California, there are a TON of unranked and unaccredited schools, including an online-only one. I'm in Michigan and if I imagined myself curved harshly against the 30 U of M students who take it every year, I'd probably die. I mean, I get that California's a nice state and more of their T14 people want to stick around after graduation, but I met a Cooley kid who was going to take the bar in California and practice corporate law, so try to imagine him instead.

[bport hopeful]

Just did the Graded PT. Felt like I did pretty well. Preparing myself for the inevitable slightly below average grade that I'm sure is coming to me.

I also feel like the difficulty of a PT can vary pretty heavily. This one seemed easy.

Submitted my graded PT on 7/3, the day it was due and still haven't gotten a grade back. Based on how long it took my grader to grade my previous essays, I'll be lucky if I get it back before the exam. And if then, only if I send 3 emails asking for it. But yea, the one in PA was a straight up memo with one case, and I thought it was pretty straight forward.

Mine was a memo also, but had three cases. They were simple though. My grader has been punctual. Id be pissed If I were you.