BarBri Bar Review Hangout - July 2015 Exam Forum

[florentine]

Anyone else think the MBE Refresher was absurdly difficult? 62/100 here, and I did pretty well on the Simulated MBE (140/200) a few weeks ago. Anyone looking for a confidence, I would suggest not doing the Refresher.

Got the same on the Refresher and got 131/200 on the Simulated. Feeling a little bit crappy about it, but will just keep pounding away at MBE...

[Redamon1]

If Plaintiff bring an action against a manufacturer alleging injuries on the ground of strict liability due to failure to warn. Is it a defense that manufacture did not know of such risk, and the risk was not known in the industry at the time?

I remember doing a few questions like that on the MBE but cannot find an answer on point. The closest one is "scientifically unknowable risk" may be a defense, but that seems like an exceedingly high bar. Presumably any risk is scientifically discoverable if one is to invest an unlimited amount of money.

I'm no expert but I think that's why it's called strict liability. You basically tell the manufacturer they're responsible for everything and they can decide how much to invest in safety.

You're probably right. Thanks.

I'm no expert either but I spent a bit of time trying to figure this out some time ago because it makes my head spin. My bottom line is this: A plaintiff can sue in a products liability case either in negligence or strict liability, alleging in either case that a product was defective because of (a) a manufacturing defect (b) a design defect (c) or inadequate warning.

In a negligence suit, you follow the usual negligence approach: was the defendant negligent with regard to the manufacturing process, the design, or the warning label?

Here's the catch: in a strict liability suit, you would think that a plaintiff would need to show no knowledge or fault at all on the part of the defendant in all three categories of product defects. It's strict liability, right?? Wrong! In reality, only the fist kind of defect—manufacturing defect—is true strict liability. No matter how careful the manufacturer was, if the plaintiff gets injured by a product that came off the assembly line with a defect none of the other million products in the line that year had, the plaintiff wins. For the other two kinds of defects, courts apply negligence-like tests, so strict liability is a bit of a misnomer. For design defects, courts will ask whether the defendant could reasonably foresee the use the plaintiff made of the product (even if it was a misuse). If so, plaintiff wins. Courts will also ask whether there was a feasible alternative to the way the product was designed (that sounds like negligence, right?). And for warning defects, the plaintiff wins if she can show that the warning was not adequate, i.e. it did not warn the user of apparent risks. In effect, courts are asking whether it is reasonable to expect the manufacturer to provide different warnings (sounds like negligence again to me). So if the industry as a whole has no knowledge of a product's particular danger (in OP's hypo), I would think you could not win against the defendant, even in strict liability.

In sum, the analysis changes quite a bit for manufacturing defects, depending on whether you sue in negligence or SL, but for the other two kinds of product defects, it's very similar in both kinds of suits.

Another big difference is that, for all three product defect claims, you can use strict liability only against commercial suppliers, but I believe you' can sue casual sellers and service providers in negligence.

[myrtlewinston]

If it's the same D, yes.

Right. And if it was a second Defendant, P's claim would have to be claiming that both Ds are jointly liable? Or same T/O?

Same T/O, which could entail joint and several liability.

[Tiago Splitter]

If it's the same D, yes.

Right. And if it was a second Defendant, P's claim would have to be claiming that both Ds are jointly liable? Or same T/O?

Same T/O.

Page 12 of the Civ Pro lecture handout says you only combine the claims against different D's if they are jointly liable.

[RaleighStClair]

If it's the same D, yes.

Right. And if it was a second Defendant, P's claim would have to be claiming that both Ds are jointly liable? Or same T/O?

Same T/O.

Page 12 of the Civ Pro lecture handout says you only combine the claims against different D's if they are jointly liable.

Off the top of my head, I can't think of a situation where two parties would be jointly liable to one P, if the facts were unrelated/not the same transaction/occurrence.

[Danger Zone]

But you said one is a federal claim, so you could have federal question jurisdiction over that and supplemental jurisdiction over the other if its from the same t/o regardless of the dollar amounts.

[Tiago Splitter]

Off the top of my head, I can't think of a situation where two parties would be jointly liable to one P, if the facts were unrelated/not the same transaction/occurrence.

It's not about the facts being unrelated, just that the damages P is claiming are different between the two. So if two drivers crash in to you and you have 80k in damages you are ok, but if you hire two painters and one doesn't show up and the other paints the house the wrong color you've got sort of the same T/O (probably not the best example) but the guys aren't jointly liable.

That said, DZ is absolutely right. It's FQ so you are good.

[RaleighStClair]

Got it. Thanks all.

[kyle010723]

I'm no expert either but I spent a bit of time trying to figure this out some time ago because it makes my head spin. My bottom line is this: A plaintiff can sue in a products liability case either in negligence or strict liability, alleging in either case that a product was defective because of (a) a manufacturing defect (b) a design defect (c) or inadequate warning.

In a negligence suit, you follow the usual negligence approach: was the defendant negligent with regard to the manufacturing process, the design, or the warning label?

Here's the catch: in a strict liability suit, you would think that a plaintiff would need to show no knowledge or fault at all on the part of the defendant in all three categories of product defects. It's strict liability, right?? Wrong! In reality, only the fist kind of defect—manufacturing defect—is true strict liability. No matter how careful the manufacturer was, if the plaintiff gets injured by a product that came off the assembly line with a defect none of the other million products in the line that year had, the plaintiff wins. For the other two kinds of defects, courts apply negligence-like tests, so strict liability is a bit of a misnomer. For design defects, courts will ask whether the defendant could reasonably foresee the use the plaintiff made of the product (even if it was a misuse). If so, plaintiff wins. Courts will also ask whether there was a feasible alternative to the way the product was designed (that sounds like negligence, right?). And for warning defects, the plaintiff wins if she can show that the warning was not adequate, i.e. it did not warn the user of apparent risks. In effect, courts are asking whether it is reasonable to expect the manufacturer to provide different warnings (sounds like negligence again to me). So if the industry as a whole has no knowledge of a product's particular danger (in OP's hypo), I would think you could not win against the defendant, even in strict liability.

In sum, the analysis changes quite a bit for manufacturing defects, depending on whether you sue in negligence or SL, but for the other two kinds of product defects, it's very similar in both kinds of suits.

Another big difference is that, for all three product defect claims, you can use strict liability only against commercial suppliers, but I believe you' can sue casual sellers and service providers in negligence.

Thanks, this was precisely on point.

I know that a product liability case can be brought under negligent or strict liability, but when a court is determining under strict liability, it sounds as if the analysis is still very negligent-like as you eluded to, hence the confusion. Thanks again.

[jamescastle]

Is anyone else's sleep schedule just completely broken by this point?
I know I need to readjust to what the bar exam will be like so that I can function from the morning through the early afternoon. But so far I've been going to bed at like 4am and waking up at 11am. Thinking about pulling an all nighter tonight and then going to bed super early at like 9pm tomorrow and getting on track.

[kyle010723]

Is anyone else's sleep schedule just completely broken by this point?
I know I need to readjust to what the bar exam will be like so that I can function from the morning through the early afternoon. But so far I've been going to bed at like 4am and waking up at 11am. Thinking about pulling an all nighter tonight and then going to bed super early at like 9pm tomorrow and getting on track.

+1, but more like 4am and getting up at 7am due to some bar related nightmares (being serious)...

[RaleighStClair]

Is anyone else's sleep schedule just completely broken by this point?
I know I need to readjust to what the bar exam will be like so that I can function from the morning through the early afternoon. But so far I've been going to bed at like 4am and waking up at 11am. Thinking about pulling an all nighter tonight and then going to bed super early at like 9pm tomorrow and getting on track.

I'm on this exact schedule. That's actually not a bad idea. Maybe use the time doing busywork, like making notecards that you can use later for actual memorization/learning. Might need some coffee.

[ohhoney]

Is anyone else's sleep schedule just completely broken by this point?
I know I need to readjust to what the bar exam will be like so that I can function from the morning through the early afternoon. But so far I've been going to bed at like 4am and waking up at 11am. Thinking about pulling an all nighter tonight and then going to bed super early at like 9pm tomorrow and getting on track.

OMG, yes. Please let me know how this works out, because I cannot seem to get out of this 4am-11am nonsense. I'm just afraid an all nighter is going to eff me up even worse... Also, is anyone else experiencing this fun little situation I have going on where you literally hate anyone you encounter with any sort of happiness in their life?!!

[jamescastle]

Is anyone else's sleep schedule just completely broken by this point?
I know I need to readjust to what the bar exam will be like so that I can function from the morning through the early afternoon. But so far I've been going to bed at like 4am and waking up at 11am. Thinking about pulling an all nighter tonight and then going to bed super early at like 9pm tomorrow and getting on track.

OMG, yes. Please let me know how this works out, because I cannot seem to get out of this 4am-11am nonsense. I'm just afraid an all nighter is going to eff me up even worse... Also, is anyone else experiencing this fun little situation I have going on where you literally hate anyone you encounter with any sort of happiness in their life?!!

Yep. Someone posted this yesterday http://bitterempire.com/ten-things-you- ... dying-bar/
Particularly of note is #2:
Resent Anyone Who Says You Will Pass. You have always been “successful,” “smart,” and “a great test taker.” Family and friends who are non-lawyers know this about you, and they choose to remind you anytime you mention that you think you are about to fail big time. You understand that they are generally correct, but you know for a fact that your loved ones don’t know what they are talking about this time. Being told that “of course you will pass” only results in a blood-boiling rage. You already aren’t seeing non-lawyer friends often because of your busy schedule, but their attempts at understanding and encouragement will make you more and more removed as the test date approaches.

edit: might not have been yesterday. days blend together at this point.

[Outis Onoma]

Is anyone else's sleep schedule just completely broken by this point?
I know I need to readjust to what the bar exam will be like so that I can function from the morning through the early afternoon. But so far I've been going to bed at like 4am and waking up at 11am. Thinking about pulling an all nighter tonight and then going to bed super early at like 9pm tomorrow and getting on track.

Same schedule, tempted ot do the same, but then I know tomorrow will just be a wasted day.

[Redamon1]

Try using melatonin pills to get back on your sleep schedule. Works for me, and it's a fairly gentle approach when it comes to the medication department:

http://www.webmd.com/sleep-disorders/tc ... n-overview

[Kage3212]

Same 4 am to 11 am schedule here. Pretty hilarious that this is common.

[Good Guy Gaud]

How many hours is everyone sleeping per night?

I'm like 6.5 - 7

[old_soul]

Try mine -- sleeping at 7:30ish am waking up at 1 pm. Yup. I know I'm effed.

[florentine]

Wondering what everyone's score and timing was on the MBE Refresher.

I got 62/100 and finished with 55 minutes left...

[zta_themis]

Wondering what everyone's score and timing was on the MBE Refresher.

I got 62/100 and finished with 55 minutes left...

69/100 with a little over an hour left. I can't seem to slow down even when I know I need to pay close attention to the question so I don't misread a fact.

[diowad]

Damn Idk how you guys with the wacky sleep schedule function. I mean I'll start studying around 8-9 am and then shut it down by 6 pm. In bed by 11. Anything more and I don't hang on to stuff at all.

[Hutz_and_Goodman]

Damn Idk how you guys with the wacky sleep schedule function. I mean I'll start studying around 8-9 am and then shut it down by 6 pm. In bed by 11. Anything more and I don't hang on to stuff at all.

I'm doing around 9-7/8pm with about two hours off in between eating lunch, walking dogs, watching sportscenter, etc.
At least for me I can't retain much beyond this period and I think the biggest risk of failing the bar at this point is being incredibly sleep deprived for the test and/or just thoroughly run down.

[kmp127]

Damn Idk how you guys with the wacky sleep schedule function. I mean I'll start studying around 8-9 am and then shut it down by 6 pm. In bed by 11. Anything more and I don't hang on to stuff at all.

I'm doing around 9-7/8pm with about two hours off in between eating lunch, walking dogs, watching sportscenter, etc.
At least for me I can't retain much beyond this period and I think the biggest risk of failing the bar at this point is being incredibly sleep deprived for the test and/or just thoroughly run down.

That's exactly what I'm doing, I feel like by the time 8pm comes around my brain is too full n swooshy anyway. I know it's bad, but just for bar review i take a spoon of zzquil a night (spoon = 1/4 of the suggested dosage) -- don't wanna knock myself out, but just get myself to sleep and stop thinking about recording statutes.......

[Andrews989]

On the criminal procedure questions, can anyone explain the difference between when to choose these two answer choices?
1) The confession was obtained involuntarily
2) The confession was obtained in violation of Miranda

Barbri usually says both are correct, but one is better in the circumstances for some random reason