Themis Bar Review Hangout - July 2014 Exam Forum

[Lasers]

MBE mc question... Themis says the answer is B. I picked A, and I am convinced that Themis is wrong on this one. Isn't there no constitutional negligence requirement when its a private person and not a matter of public concern?

Question
The defendant and the plaintiff were law school classmates who had competed for the position of editor of the law review. The defendant had the higher grade point average, but the plaintiff was elected editor, largely in recognition of a long and important note that had appeared in the review over her name. During the following placement interview season, the defendant was interviewed by a representative of a nationally prominent law firm. In response to the interviewer's request for information about the authorship of the law review note, the defendant said that he had heard that the note attributed to the plaintiff was largely the work of another student. The firm told the plaintiff that it would not interview her because of doubts about the authorship of the note. This greatly distressed the plaintiff. In fact the note had been prepared by the plaintiff without assistance from anyone else. If the plaintiff asserts a claim against the defendant based on defamation, the plaintiff will

Answers
Recover, because the defendant's statement was false.
Recover, if the defendant had substantial doubts about the accuracy of the information he gave the interviewer.
Not recover, unless the plaintiff proves pecuniary loss.
Not recover, because the statement was made by the defendant only after the interviewer inquired about the authorship of the note.

Rationale:
Answer choice B is correct. A plaintiff will prevail in a defamation action if the defendant's defamatory language concerning the plaintiff is published to a third person and such language damages a plaintiff's reputation. In this case, in order for the plaintiff, a non-public person not involving a matter of public concern, to prevail, he must establish that the defendant was negligent in ascertaining the truth or falsity of his statement.

This is pretty hidden in the outline:
“If the plaintiff in a defamation action is a private individual and the defendant’s statement does not involve a matter of public concern, then the constitutional requirements do not apply. At common law, the defendant was strictly liable. Most states today require at least negligence by the defendant for all defamation actions, and some now require actual malice in all defamation actions.”

was about to post that. it seems the answer applies the modern standard, which is troubling because the question doesn't make clear what standard we're supposed to use. in any event, i doubt it shows up on the real exam.

[FlanAl]

Did we ever figure out if you can access the summary outlines outside of directed study?

Haha, pretty sure the answer is no. I always get so mad at that fact when I don't complete an assignment before the summary outline assignment and it gets kicked over to tomorrow.

Ok looks like I'm going to spend a solid amount of time just blasting through some of the directed study stuff then. Thanks!

[TooManyLoans]

Did we ever figure out if you can access the summary outlines outside of directed study?

Haha, pretty sure the answer is no. I always get so mad at that fact when I don't complete an assignment before the summary outline assignment and it gets kicked over to tomorrow.

Ok looks like I'm going to spend a solid amount of time just blasting through some of the directed study stuff then. Thanks!

What summary outlines are you talking about? If the MBE subjects shoot me a PM and I'll send you the link my advisor sent me.

[Tanicius]

Oh, you mean ACCESS them. I thought you meant check them off of the directed task menu. You can access them anytime you please so long as Themis sent you a message with the URLs for the summary outlines.

[jumpingjack]

I just went over that one, and got it right. It is B because for the tort of defamation, a private party who has been defamed on a non-public issue must show that the defendant acted recklessly or negligently.

Contrast that with a public party or a private party with a public issue, who must show malice/reckless disregard to the truth.

[Prime]

Mother loving #$@#$@#@#$

I hate these 'best argument' questions. Especially when the 'explanation' essentially says that the choice is a "strong" argument.

[Tanicius]

Mother loving #$@#$@#@#$

I hate these 'best argument' questions. Especially when the 'explanation' essentially says that the choice is a "strong" argument.

The worst is this complete fiction that broader arguments are better than specific arguments, or that arguing against the original claimant's burden of proof is always stronger than arguing for an affirmative defense.

Example of this:

1. too drunk to form a mental element > involuntarily intoxicated as an affirmative defense

2. arguably did not commit a crime > definitely did not intend the crime, which requires specific intent

3. this could potentially be offered for something other than the truth of the matter asserted > definitely falls under an exception to hearsay



In all of those situations, if I was trying the case, I would much rather make the "weaker" argument if the facts supported both.

[WonkyPanda]

If you look at examsoft in CA, you can see what is enabled for the test.

It's showing that copy/paste and spell check are enabled.

[Gotti]

Can someone explain to me how the Homestead Exemption and the Personal Property Set-Aside are factored into the elective share analysis? Some model answers for wills essays include them in their analysis and some don't, so I'm confused.

For example, in the essay I just wrote, here's the testator's (Tim's) net estate:

(i) The family’s residence valued at $360,000, which Tim and Spouse, owned as tenants by the entirety;

(ii) Various corporate stocks worth a total of $600,000, all of which Tim had purchased in the name of “Tim, pay on death to Mom;”

(iii) A qualified profit-sharing retirement plan account containing $240,000 with Mom as the only named beneficiary, pursuant to a designation of beneficiary that Tim had signed in 2005; and

(iv) $300,000 in cash, after payment of all debts and estate administrative expenses.

According to the model answer, Spouse gets 1/3 of Tim’s estate:

Because the family residence was owned by Tim and Spouse as tenants by the entirety, only one-half of the family residence, $180,000, will be considered a testamentary substitute with regard to the net estate. The net estate subject to the elective share is $1,320,000 ($180,000 + $600,000 + $240,000 + $300,000 = $1,320,000). Spouse is entitled to one-third of that, or $440,000. Spouse will receive $180,000 in real property (Tim’s half of the family residence) and $260,000 in cash to make up the difference, for a total value of $440,000.

Then Mom gets the rest, which includes the corporate stocks worth $600,000, the retirement plan containing $240,000, and $40,000 cash. In total, Mom will receive assets worth $880,000, or two-thirds of the estate.

BUT what about the Homestead Exemption? I know Spouse gets the house anyway, but when does it apply and how is it factored in? Also, shouldn't the spouse have gotten $25,000 out of the Personal Property Set-Aside that isn't counted in Tim's net estate? Because the spouse is supposed to get (among other things) up to $25,000 in money which includes $$ from checking and savings accounts (which includes the $300k talked about in this question).

[071816]

i for one agree with themis' message; i'll learn more law this week than the prior 8. maybe not totally accurate considering i've already known the broad strokes, but i'm about to start memorizing the specific elements of most of the BLL so i can see how that's true.

MBE and rule memorization for me from tomorrow on. gonna be done with the essay PQ's today with just a few left undone so i can do them during the week.

Have you actually been doing the essays (like writing them out)? Or have you just been issue spotting/outlining? I have some essay PQs left and I'm not sure how to make the best use of my time with them. I've basically just been briefly outlining then reading the model answers.

[071816]

I'M GONNA BOMB ALL THE ESSAYS. FUCK IT ALL.

[numbertwo88]

There is so much to civil procedure, and then state and federal rules

I need to pick and choose what is just not important enough because I am not going to get all of this down by the 31st.

I'M GONNA BOMB ALL THE ESSAYS. FUCK IT ALL.

I believe I'm right there with you.

[northwood]

hakuna matada. if you don't know make up a rule that is a modification of what you do know that may be relevant and apply it.

[Apple Tree]

i for one agree with themis' message; i'll learn more law this week than the prior 8. maybe not totally accurate considering i've already known the broad strokes, but i'm about to start memorizing the specific elements of most of the BLL so i can see how that's true.

MBE and rule memorization for me from tomorrow on. gonna be done with the essay PQ's today with just a few left undone so i can do them during the week.

Have you actually been doing the essays (like writing them out)? Or have you just been issue spotting/outlining? I have some essay PQs left and I'm not sure how to make the best use of my time with them. I've basically just been briefly outlining then reading the model answers.

This is what I've been doing: look at an essay, list the issues and write out the rule statements if I don't think I know them, and then look at the model answer.

[Lilly76]

Reviewed Fed civ pro, NJ civ pro, fed tax and family law. Hopefully I'll be able to write out few coherent rule statements, but I doubt I'll be able to remember everything that is not marital property and Pa loves to test on that.

[Tarponbeach]

If you look at examsoft in CA, you can see what is enabled for the test.

It's showing that copy/paste and spell check are enabled.

Maryland disables Spell Check. I'm assuming to level the playing field for the 1 person who will be hand writing the essays.

[WonkyPanda]

This may be old, but some of you may enjoy this post: http://lightspeedsound.tumblr.com/post/ ... e-bar-exam

[Prime]

Advice I heard: if you don't know a rule, make up a 3 part test and apply it to the facts and your analysis.

[numbertwo88]

Advice I heard: if you don't know a rule, make up a 3 part test and apply it to the facts and your analysis.

If I get a con law question, God forbid, at this stage of my studying I'll have nothing to write aside from the preamble. & I truly believe that would cover the entire question.

[Prime]

Advice I heard: if you don't know a rule, make up a 3 part test and apply it to the facts and your analysis.

If I get a con law question, God forbid, at this stage of my studying I'll have nothing to write aside from the preamble. & I truly believe that would cover the entire question.

Glad I don't have to write about Con Law. Instead, I get Real Property!! Yay!

[hous]

Been grinding 8+ hours a day for the past 8 days, with the vast majority of the time spent on florida essay subjects. Took my first MBE practice set since the simulated MBE and am VERY happy (80% on mixed set 6). I'm learning so much more now that I'm grinding away. I was noticing things that I would have missed last week for sure.

Unless Themis makes the mixed PQ sets easier than the single subject sets, I think I might just have a chance of passing this thing. My essays are still atrocious despite puting in countless hours these past few days. Then again, it could just be a fluke and I could be doomed.

[dtl]

Would any California brothers/sisters in arms be willing to explain the "Primary Rights Doctrine" to me as it applies to res judicata?

Themis is not very clear, and all google gives me is a bunch of very opaque law review articles.

Someone made the prediction of CA civil procedure being introduce via preclusion this test, and I want to be prepared! (To be disappointed when I study up on it and it does not appear.)

[bport hopeful]

A little late, but 75%. Finally.

[yips]

Would any California brothers/sisters in arms be willing to explain the "Primary Rights Doctrine" to me as it applies to res judicata?

Themis is not very clear, and all google gives me is a bunch of very opaque law review articles.

Someone made the prediction of CA civil procedure being introduce via preclusion this test, and I want to be prepared! (To be disappointed when I study up on it and it does not appear.)

If CA civ pro comes up via preclusion, I will scream.

But, here's how I understand primary rights:

Under claim preclusion/res judicata principles, a final judgment on the merits precludes the parties from successive litigation of an identical claim in a subsequent action.

But how do we know what is an identical claim?

FRCP: Federal courts apply a "transactional" approach: a subsequent claim is barred with respect to the transaction out of which the claim arose. So if I slip and fall in your store and sue you in federal court, I must bring my personal injury claim for my broken arm and the property claim for my broken watch together (arose from same transaction, so I can't litigate two times on the issue of whether you were negligent in waxing the floor).

CA: Primary rights doctrine bases causes of action on individual harms; each harm, therefore, is a separate claim and not barred by res judicata. So, by comparison, if I slip and fall in your store and sue you in CA court, I can bring the personal injury claim for my broken arm, and then later on, in a completely separate action, I can bring the property claim for my broken watch (these are two separate primary rights, so I can litigate each time on the issue of whether you were negligent). The first action does not bar the second; they are separate claims, so therefore no claim preclusion/res judicata.

Does that help?

[Gotti]

A little late, but 75%. Finally.

I'm still sitting at 68% -_-

Well I've done a lot of MBE questions not from Themis though