Themis Bar Review Hangout - July 2014 Exam Forum

[Xifeng]

Man, that NY Multiple Choice Simulated Exam was BRUTAL. I nearly had a heart attack until I saw the average ranking.

I just really want this to be over (and not to have to do it again in February).

[TooManyLoans]

Life estate in real property, subject to SoF?

Transferring real property interests are subject to SOF

A lease isn't unless it is for longer than a year. A LE is an interest in real property but a lease isn't?

Correct. LE is conveyed through deed or will.

[bedefan]

There are a couple others here taking the Illinois bar, right?

Personally I find Themis's way of doing Illinois distinctions almost totally useless. I'm finding this particularly frustrating in Civil Procedure. A lot of the so called "distinctions" they list aren't really distinctions at all and just say, in a really long-winded way, that the Illinois rule is pretty much the same as the federal one. I'm finding it really hard to keep track of when there's a big enough difference that I should be noting it.

ANYway with a little googling I found this handy document Jenner & Block published. Areas where Illinois Civ Pro substantially departs from the FRCP are in bold throughout...

http://jenner.com/system/assets/assets/ ... e_2012.pdf

(Edit: though I note that the document assumes you know some of the more obvious differences... hm... less sure it's that useful.)

[bport hopeful]

Finally got around to taking the simulate MBE. I thought the second half was harder than the first. Could be fatigue though. I havent reread them yet.

[bport hopeful]

Also, I havent done secured transaction yet. Seems like a time sink.

[iLoveFruits&Veggies]

Thank you! That's a great list. WOW. I think I need to expand my issue lists (they only have about 6-10 items on them right now so maybe that's the problem), and then hope for clear questions that don't make us go off in the wrong direction as Tanicius mentioned.

My lists are taken directly from the essay workshop handouts (I think you are in CA) then anything added if I struggle to account for it.

As a suggestion for memorizing: Make a list for each topic. Number the list. Memorize them in order and know either what number each item is or at least have signposts like "Holographic wills is #10" or something like that. That way, there are clues along the way to issues you might be missing. So don't just say you have some things memorized for K and try to rattle them off. Say, "I have a 20 issue list for K and number 1 is..." (My list for K is actually only 15, by the way.) That way, if you can think of 1-9 and 12-20, you have a good chance of figuring out the missing parts because they will often be related, and even if you don't you're only missing a fraction of the potential issues.

This is so helpful! Thank you! Just took your advice and made a list for Crim Law. It has 25 issues, but they're easy to memorize now that they're numbered! Crazy how something so simple can make such a huge difference!! Great suggestion!!

[FlanAl]

I got completely confused by an evidence question about holographic wills. I hadn't seen the phrase before in my studying at all and I totally thought they were talking about something like this:

[iLoveFruits&Veggies]

I got completely confused by an evidence question about holographic wills. I hadn't seen the phrase before in my studying at all and I totally thought they were talking about something like this:

HA!!! I used to think that too when I first started studying wills and trusts!! Glad I'm not the only one!!

[Tanicius]

Someone please tell me this is just a crappy Themis written question, the answer to which is not actually supported by its fact pattern:

A defendant is on trial for the crime of obstructing justice in a government investigation by concealing records subpoenaed May 1. The government calls an attorney to testify that on May 3, the defendant asked him how to comply with the regulations regarding the transfer of records to a safe-deposit box in Mexico. The testimony of the attorney is
Answers
A. privileged, because it relates to conduct outside the jurisdiction of the United States.
B. privileged, because an attorney is required to keep the confidences of his clients.
C. not privileged, provided the attorney knew of the concededly illegal purpose for which the advice was sought.
D. not privileged, whether or not the attorney knew of the concededly illegal purpose for which the advice was sought.

Rationale:
Answer choice D is correct. A confidential communication between a client and an attorney is privileged, except when the communication relates to the future commission of what the client knew or should have known was a crime or fraud. Thus, answer choice B is incorrect. Answer choice A is incorrect because it does not matter where the conduct occurs if it is a crime punishable by the United States. Answer choice C is incorrect because the attorney's knowledge of the illegal purpose is not necessary.

Is that actually true? So, nothing a client asks his attorney when the client intends to use the information to commit a crime is ever privileged, even if the attorney reasonably and in good faith does not believe the client will rely on it to commit a crime? ...Cause the fact pattern definitely does not support the idea that the attorney had even an inkling idea of what the client was going to use that information for.

[mmmnnn]

Is there a "shelter rule" in Secured Transactions?

Let's say, for example, Bank has a secured interest in A's inventory. The collateral attaches and the interest is perfected by filing a financing statement. A sells to B. B meets the requirements of a BOCB. B, as a consumer, sells to C, also a consumer.

Does Bank have priority over C, because the garage sale exception does not apply when a financing statement has been filed? Or does C prevail because he took from B, whose rights were superior to Bank despite the filing?

[Tanicius]

Is there a "shelter rule" in Secured Transactions?

Let's say, for example, Bank has a secured interest in A's inventory. The collateral attaches and the interest is perfected by filing a financing statement. A sells to B. B meets the requirements of a BOCB. B, as a consumer, sells to C, also a consumer.

Does Bank have priority over C, because the garage sale exception does not apply when a financing statement has been filed? Or does C prevail because he took from B, whose rights were superior to Bank despite the filing?

I do not believe Article 9 has any pertinent "shelter rule" a la the auto-transfer of holder-in-due-course rights to a subsequent holder in Article 3. The relevant analysis is simply between C and Bank, and would ask what type of relationship C had with B when he purchased from B, and whether he had notice and good faith. Logically, if B did not have notice (he can't, in order to be a BOCB, after all), then C himself probably did not magically obtain notice either.

[mmmnnn]

Is there a "shelter rule" in Secured Transactions?

Let's say, for example, Bank has a secured interest in A's inventory. The collateral attaches and the interest is perfected by filing a financing statement. A sells to B. B meets the requirements of a BOCB. B, as a consumer, sells to C, also a consumer.

Does Bank have priority over C, because the garage sale exception does not apply when a financing statement has been filed? Or does C prevail because he took from B, whose rights were superior to Bank despite the filing?

I do not believe Article 9 has any pertinent "shelter rule" a la the auto-transfer of holder-in-due-course rights to a subsequent holder in Article 3. The relevant analysis is simply between C and Bank, and would ask what type of relationship C had with B when he purchased from B, and whether he had notice and good faith. Logically, if B did not have notice (he can't, in order to be a BOCB, after all), then C himself probably did not magically obtain notice either.

Yeah, this would be a very limited fact pattern. But there are different rules for the BOCB and the consumer-to-consumer/garage sale transaction. BOCB has rights superior to the secured party, even if the secured party has filed a financing statement (assuming the other factors are met). A consumer buying from another consumer is deemed to have constructive notice of the filing statement.

[Tanicius]

Is there a "shelter rule" in Secured Transactions?

Let's say, for example, Bank has a secured interest in A's inventory. The collateral attaches and the interest is perfected by filing a financing statement. A sells to B. B meets the requirements of a BOCB. B, as a consumer, sells to C, also a consumer.

Does Bank have priority over C, because the garage sale exception does not apply when a financing statement has been filed? Or does C prevail because he took from B, whose rights were superior to Bank despite the filing?

I do not believe Article 9 has any pertinent "shelter rule" a la the auto-transfer of holder-in-due-course rights to a subsequent holder in Article 3. The relevant analysis is simply between C and Bank, and would ask what type of relationship C had with B when he purchased from B, and whether he had notice and good faith. Logically, if B did not have notice (he can't, in order to be a BOCB, after all), then C himself probably did not magically obtain notice either.

Yeah, this would be a very limited fact pattern. But there are different rules for the BOCB and the consumer-to-consumer/garage sale transaction. BOCB has rights superior to the secured party, even if the secured party has filed a financing statement (assuming the other factors are met). A consumer buying from another consumer is deemed to have constructive notice of the filing statement.

I don't believe that's true. That would only be true if the consumer is buying from another consumer who is named on the financing statement. If you're buying from a consumer BOCB who is not listed on any financing statement, how could you yourself even conceivably get notice of the secured party's interest?

[Edit] Final answer has been discovered by someone with more knowledge than me: When the BOCB takes, he extinguishes the secured interest, and the secured party can no longer recover, period. Doesn't matter who the BOCB subsequently transfers to. The secured party could still sue the obligor for monetary damages, but they aren't getting the collateral.

[Genuine4ps]

Thank you! That's a great list. WOW. I think I need to expand my issue lists (they only have about 6-10 items on them right now so maybe that's the problem), and then hope for clear questions that don't make us go off in the wrong direction as Tanicius mentioned.

My lists are taken directly from the essay workshop handouts (I think you are in CA) then anything added if I struggle to account for it.

As a suggestion for memorizing: Make a list for each topic. Number the list. Memorize them in order and know either what number each item is or at least have signposts like "Holographic wills is #10" or something like that. That way, there are clues along the way to issues you might be missing. So don't just say you have some things memorized for K and try to rattle them off. Say, "I have a 20 issue list for K and number 1 is..." (My list for K is actually only 15, by the way.) That way, if you can think of 1-9 and 12-20, you have a good chance of figuring out the missing parts because they will often be related, and even if you don't you're only missing a fraction of the potential issues.

This is so helpful! Thank you! Just took your advice and made a list for Crim Law. It has 25 issues, but they're easy to memorize now that they're numbered! Crazy how something so simple can make such a huge difference!! Great suggestion!!

I've heard several people recommend making a list. What exactly is the purpose?

[mmmnnn]

Is there a "shelter rule" in Secured Transactions?

Let's say, for example, Bank has a secured interest in A's inventory. The collateral attaches and the interest is perfected by filing a financing statement. A sells to B. B meets the requirements of a BOCB. B, as a consumer, sells to C, also a consumer.

Does Bank have priority over C, because the garage sale exception does not apply when a financing statement has been filed? Or does C prevail because he took from B, whose rights were superior to Bank despite the filing?

I do not believe Article 9 has any pertinent "shelter rule" a la the auto-transfer of holder-in-due-course rights to a subsequent holder in Article 3. The relevant analysis is simply between C and Bank, and would ask what type of relationship C had with B when he purchased from B, and whether he had notice and good faith. Logically, if B did not have notice (he can't, in order to be a BOCB, after all), then C himself probably did not magically obtain notice either.

Yeah, this would be a very limited fact pattern. But there are different rules for the BOCB and the consumer-to-consumer/garage sale transaction. BOCB has rights superior to the secured party, even if the secured party has filed a financing statement (assuming the other factors are met). A consumer buying from another consumer is deemed to have constructive notice of the filing statement.

I don't believe that's true. That would only be true if the consumer is buying from another consumer who is named on the financing statement. If you're buying from a consumer BOCB who is not listed on any financing statement, how could you yourself even conceivably get notice of the secured party's interest?

[Edit] Final answer has been discovered by someone with more knowledge than me: When the BOCB takes, he extinguishes the secured interest, and the secured party can no longer recover, period. Doesn't matter who the BOCB subsequently transfers to. The secured party could still sue the obligor for monetary damages, but they aren't getting the collateral.

Okay, that makes sense. As far as whether the consumer-buyer's constructive knowledge would be limited to situations in which the seller is named on the financing statement, the Themis outline is unclear: "A consumer buyer of consumer goods takes free of a security interest, even if perfected, unless prior to the purchase, the secured party filed a financing statement covering the goods."

Oh well, on the brightside it would be weird for the seller to be neither a BOCB nor the person named in the statement.

[northwood]

Haven't heard about that video, but my friend passed with Barbri and she told me the same thing. The only thing is I assume you'll have to at least know the issues in order to make up the laws, and it's issue spotting that I have the most difficulty with. The model answers always "see" more issues than I do. Not sure why I have so much trouble with that. SO frustrating. On a bright note, I'm trying out my new coffee tumbler today! lol!

For each essay subject, memorize a checklist of potential issues for the topic. You can even just dash that down on the answer before doing anything else, then go over the checklist to see if you missed anything.

For example, my checklist for wills looks like this:

Intestacy
Spousal community estate
Will execution
Formal wills
Writing
Witnesses
Interested Witnesses
Testamentary Intent
Substantial compliance
Capacity
Holographic wills
Codicils
Revocation
By physical act
By subsequent instrument
Revival/republication
DRR
Legacies
incorporation by reference
Act of independent legal significance
Lapse/anti-lapse
ademption
Securities
abatement order
omitted spouse
elective share
lifetime gifts to children
omitted child
will contests

I've memorized it as a list rather than as a set of items, so for each topic I know how many things are on the list and roughly where things fall on the list, then I can reconstruct the list pretty quickly.

The point is just to have something you can go back over to say, "Hey, does omitted spouse work in this scenario at all? Nah, there's no spouse involved. Moving on."

Whats DRR??

[Tanicius]

Whats DRR??

That super weirdly named concept in Wills that is actually quite simple and logical: a court will disregard a testator’s revocation (such as scratching out a $10,000 to a named beneficiary) if it was based on a mistake and would not have been made but for that mistake (such as handwriting a replacement dollar amount of $100,000 for the same beneficiary, not realizing that handwritten additions to wills are prohibited by state statute). The end result is that the unlawful modification does not add anything new to the will, but the revocation made will also be set aside and the beneficiary will get the gift they were originally bequeathed. This prevents beneficiaries from being hung out to dry by the testator's mistake of law.

[puttycake]

Whats DRR??

That super weirdly named concept in Wills that is actually quite simple and logical: a court will disregard a testator’s revocation (such as scratching out a $10,000 and handwriting in $100,000) if it was based on a mistake and would not have been made but for that mistake, such as a statute against handwritten editions that invalidates the $100,000 modification and therefore would otherwise leave the beneficiary with nothing, since the $10,000 has been scratched out.

Yep. Dependent Relative Revocation.

[northwood]

Whats DRR??

That super weirdly named concept in Wills that is actually quite simple and logical: a court will disregard a testator’s revocation (such as scratching out a $10,000 and handwriting in $100,000) if it was based on a mistake and would not have been made but for that mistake, such as a statute against handwritten editions that invalidates the $100,000 modification and therefore would otherwise leave the beneficiary with nothing, since the $10,000 has been scratched out.

Yep. Dependent Relative Revocation.

aah yes.. that's what it is.. for some reason I was thinking " would they really want to have an essay question / ask about a do not resituate provision in a living will, or power of attorney form?"

[Genuine4ps]

Two defendants were being tried together in federal court for bank robbery. The prosecutor sought to introduce testimony from the first defendant's prison cellmate. The cellmate would testify that the first defendant had admitted to the cellmate that he and the second defendant had robbed the bank. The prosecutor asked the court to instruct the jury that the cellmate's testimony could be considered only against the first defendant. Can the cellmate's testimony be admitted in a joint trial over the second defendant's objection?

The correct answer is "no, because it would violate the second D's right to confrontation."

Why? The D's are being tried together. Both Ds have ample opportunity to cross-examine the witness.

[simonesa]

A friend doing BarBri told me that they released a video the other day explaining what to do if you have absolutely no idea what the law is on an essay. Essentially, they tell you to make up the law, and then apply it to the facts, because points for analysis are granted separately from knowing the law. Can anyone confirm this? If true, this seems like it would apply when you kinda know the law but not entirely - put something close to the law down and then apply it.

Someone I know, who took the NY bar two years ago, told me the same thing. I believe she took Barbri, so maybe she got the idea from them as well. I'm not sure if she actually had to BS her way through an essay, but she definitely told me about this little theory one day when I was having a nervous breakdown.

I mean, if you don't know the law, you have no other choice. My plan is to make sure I use EVERY fact given. This is definitely my strategy for any secured transaction question that might come up. I haven't even look at the outline or handout!

[champ33]

Two defendants were being tried together in federal court for bank robbery. The prosecutor sought to introduce testimony from the first defendant's prison cellmate. The cellmate would testify that the first defendant had admitted to the cellmate that he and the second defendant had robbed the bank. The prosecutor asked the court to instruct the jury that the cellmate's testimony could be considered only against the first defendant. Can the cellmate's testimony be admitted in a joint trial over the second defendant's objection?

The correct answer is "no, because it would violate the second D's right to confrontation."

Why? The D's are being tried together. Both Ds have ample opportunity to cross-examine the witness.

This is the Bruton doctrine. The Supreme Court has said that as a matter of law, when two defendants are tried together for the same crime, admission of one defendant's confession is so prejudicial to the second defendant that it cannot be cured by a limiting instruction.

[champ33]

Someone please tell me this is just a crappy Themis written question, the answer to which is not actually supported by its fact pattern:

A defendant is on trial for the crime of obstructing justice in a government investigation by concealing records subpoenaed May 1. The government calls an attorney to testify that on May 3, the defendant asked him how to comply with the regulations regarding the transfer of records to a safe-deposit box in Mexico. The testimony of the attorney is
Answers
A. privileged, because it relates to conduct outside the jurisdiction of the United States.
B. privileged, because an attorney is required to keep the confidences of his clients.
C. not privileged, provided the attorney knew of the concededly illegal purpose for which the advice was sought.
D. not privileged, whether or not the attorney knew of the concededly illegal purpose for which the advice was sought.

Rationale:
Answer choice D is correct. A confidential communication between a client and an attorney is privileged, except when the communication relates to the future commission of what the client knew or should have known was a crime or fraud. Thus, answer choice B is incorrect. Answer choice A is incorrect because it does not matter where the conduct occurs if it is a crime punishable by the United States. Answer choice C is incorrect because the attorney's knowledge of the illegal purpose is not necessary.

Is that actually true? So, nothing a client asks his attorney when the client intends to use the information to commit a crime is ever privileged, even if the attorney reasonably and in good faith does not believe the client will rely on it to commit a crime? ...Cause the fact pattern definitely does not support the idea that the attorney had even an inkling idea of what the client was going to use that information for.

I agree this question and explanation are bogus. The only thing I can think of is that now that it has been established because of the criminal trial that the client was using the lawyer's services to commit a crime, the information is no longer privileged/the attorney has an obligation to disclose it? But that is not supported by the explanation and I don't know if it is legally correct.

[Genuine4ps]

Two defendants were being tried together in federal court for bank robbery. The prosecutor sought to introduce testimony from the first defendant's prison cellmate. The cellmate would testify that the first defendant had admitted to the cellmate that he and the second defendant had robbed the bank. The prosecutor asked the court to instruct the jury that the cellmate's testimony could be considered only against the first defendant. Can the cellmate's testimony be admitted in a joint trial over the second defendant's objection?

The correct answer is "no, because it would violate the second D's right to confrontation."

Why? The D's are being tried together. Both Ds have ample opportunity to cross-examine the witness.

This is the Bruton doctrine. The Supreme Court has said that as a matter of law, when two defendants are tried together for the same crime, admission of one defendant's confession is so prejudicial to the second defendant that it cannot be cured by a limiting instruction.

Thanks!

[mmmnnn]

A defendant is being tried for the murder of a woman who disappeared 10 years ago and has not been heard from since. Her body has never been found. The prosecutor has presented strong circumstantial evidence that she was murdered by the defendant. To help establish the fact of her death, the prosecutor has requested that the judge give the following instruction, based on a recognized presumption in the jurisdiction: "A person missing and not heard from in the last seven years shall be presumed to be deceased."

Is the instruction proper?

A. No, because the fact that someone has not been heard from in seven years does not necessarily lead to a conclusion that the person is dead.
B. No, because mandatory presumptions are not allowed against a criminal defendant on an element of the charged crime.
C. Yes, because it expresses a rational conclusion that the jury should be required to accept.
D. Yes, because the defendant has a chance to rebut the presumption by offering evidence that the woman is alive or has been heard from in the last seven years.

Answer choice B is correct. The U.S. Supreme Court has held it to be a violation of due process for a judge to give a mandatory jury instruction in a criminal case on an element of the charged crime. The instruction is unconstitutional because the phrase "shall be presumed" could be interpreted by the jury as shifting the burden of proof to the defendant or as requiring the jury to find an element of the charged crime, neither of which is permissible. Answer choice A is incorrect. It is true that the conclusion does not necessarily follow. But to be constitutional, a presumption or inference does not have to be certain; it needs only to be rational and to follow more likely than not. The presumption in the requested instruction meets that standard. However, the instruction violates due process as explained above. Answer choice C is incorrect because a mandatory jury instruction in a criminal case on an element of the charged crime violates due process. Answer choice D is incorrect. It is true that the defendant has a chance to rebut the presumption with evidence that the woman is alive or has been heard from in the last seven years. But it violates due process to shift the burden of proof to the defendant on an element of the crime.

Is the fact that someone is dead necessarily an "element" of murder? The prosecution isn't asking for the jury to be instructed that the defendant caused the death or even that the victim was murdered at all.