Themis Bar Review Hangout - July 2016 Forum

[rambleon65]

I reached Rudy Giuliani at the convention levels of rage at this question in the 100 paper MBE set:

[+] Spoiler

A contractor purchased a furnace from a distributor of heating systems, after the distributor recommended the furnace based on the contractor’s stated needs. The bill of sale between the distributor and the contractor stated, “All warranties, express or implied, are hereby disclaimed.” The contractor installed the furnace in an office building. Due to a manufacturing defect, the furnace failed to heat the building as it should have. The contractor was sued by the owner of the office building.

Can the contractor assert a claim against the distributor for breach of the implied warranty of merchantability?

Answers:

No, because there is no implied warranty of merchantability for sales between merchants.
No, because the distributor disclaimed this warranty.
Yes, because furnace failed to heat the building.
Yes, because the contractor relied on the distributor’s judgment.
Rationale:

Answer choice C is correct. Goods that are not fit for the ordinary purpose for which such goods are used are not merchantable. As a merchant seller of the furnace, the distributor can be liable for breach of the warranty of merchantability. Answer choice A is incorrect because the implied warranty of merchantability applies when the seller is a merchant. It applies even where the buyer is also a merchant. Answer choice B is incorrect because a general disclaimer is not sufficient to disclaim the warranty of merchantability. Answer choice D is incorrect because reliance on a seller’s judgment is not a requirement of the implied warranty of merchantability, and a warranty of fitness for a particular purpose may be disclaimed in general language.

WTF, NCBE? They're asking SPECIFICALLY about the implied warranty, which CAN be disclaimed in a conspicuous writing. I still don't get why I was wrong.

It wasn't disclaimed in a conspicuous writing. it was a general disclaimer. That's not enough.

Themis outline: "Unless the circumstances indicate otherwise, the warranty [of merchantability] can be disclaimed by use of “as is,” “with all faults,” or similar language that makes plain that there is no implied warranty. The disclaimer may be oral, but it must use the term “merchantability” and must be conspicuous if in writing"

Is that disclaimer not similar to "as is/with faults" and making it plain?

The confusion is because that phrase "it must use the term merchantability" applies to all disclaimers, and not just oral ones as the outline seems to read. I went directly to UCC 2-316.

[ultimolugar]

Themis gonna Theme (from Optional Evidence Set 6):

[+] Spoiler

A plaintiff has sued a defendant, alleging that she was run over by a speeding car driven by the defendant. The plaintiff was unconscious after her injury and, accompanied by her husband, was brought to the hospital in an ambulance.
At trial, the plaintiff calls an emergency room physician to testify that when the physician asked the plaintiff's husband if he knew what had happened, the husband, who was upset, replied, "I saw my wife get run over two hours ago by a driver who went right through the intersection without looking."

Is the physician's testimony about the husband's statement admissible?

Answers:

No, because it relates an opinion.
Correct Answer: No, because it is hearsay not within any exception.
Yes, as a statement made for purposes of diagnosis or treatment.
You Selected: Yes, as an excited utterance.
Rationale:

Answer choice B is correct. The statement is offered to prove liability for the accident. As such, it is not a statement made for purposes of diagnosis or treatment. Moreover, the statement was made two hours after the accident, so it is very unlikely that the husband (who was not himself an accident victim) was under a continuous state of excitement between the time of the accident and the time he made the statement. Therefore, the statement is not admissible as an excited utterance, and no other hearsay exception applies. Answer choice A is incorrect. An out-of-court statement is not inadmissible simply because it contains an opinion. Statements of opinion by out-of-court declarants may be admitted if they qualify under a hearsay exception and otherwise satisfy the rules governing opinion testimony of in-court witnesses. This statement, however, is hearsay not within any exception and is inadmissible. Answer choice C is incorrect. The husband's statement is making an accusation of fault for the accident. Such a statement is not pertinent to the diagnosis or treatment of the plaintiff, as is required by the hearsay exception. No other hearsay exception applies, so the statement is inadmissible. As discussed with respect to answer choice B, because the husband made the statement two hours after the accident, it is very unlikely that the husband (who was not himself an accident victim) was under a continuous state of excitement between the time of the accident and the time he made the statement.

Time shouldn't be the dispositive factor for an excited utterance, stress is. Or so I thought.

But I forgive them this time because that set was basically testing if you know the BLL without crazy analyses to crazy facts.

It's only his wife... as someone who has been married for almost 8 years I can tell you that you get less and less excited about things involving your spouse.

[ultimolugar]

I reached Rudy Giuliani at the convention levels of rage at this question in the 100 paper MBE set:

[+] Spoiler

A contractor purchased a furnace from a distributor of heating systems, after the distributor recommended the furnace based on the contractor’s stated needs. The bill of sale between the distributor and the contractor stated, “All warranties, express or implied, are hereby disclaimed.” The contractor installed the furnace in an office building. Due to a manufacturing defect, the furnace failed to heat the building as it should have. The contractor was sued by the owner of the office building.

Can the contractor assert a claim against the distributor for breach of the implied warranty of merchantability?

Answers:

No, because there is no implied warranty of merchantability for sales between merchants.
No, because the distributor disclaimed this warranty.
Yes, because furnace failed to heat the building.
Yes, because the contractor relied on the distributor’s judgment.
Rationale:

Answer choice C is correct. Goods that are not fit for the ordinary purpose for which such goods are used are not merchantable. As a merchant seller of the furnace, the distributor can be liable for breach of the warranty of merchantability. Answer choice A is incorrect because the implied warranty of merchantability applies when the seller is a merchant. It applies even where the buyer is also a merchant. Answer choice B is incorrect because a general disclaimer is not sufficient to disclaim the warranty of merchantability. Answer choice D is incorrect because reliance on a seller’s judgment is not a requirement of the implied warranty of merchantability, and a warranty of fitness for a particular purpose may be disclaimed in general language.

WTF, NCBE? They're asking SPECIFICALLY about the implied warranty, which CAN be disclaimed in a conspicuous writing. I still don't get why I was wrong.

THIS QUESTION IS ALSO A RADICAL ISLAMIC TERRORIST.

[Fivedham]

I reached Rudy Giuliani at the convention levels of rage at this question in the 100 paper MBE set:

[+] Spoiler

A contractor purchased a furnace from a distributor of heating systems, after the distributor recommended the furnace based on the contractor’s stated needs. The bill of sale between the distributor and the contractor stated, “All warranties, express or implied, are hereby disclaimed.” The contractor installed the furnace in an office building. Due to a manufacturing defect, the furnace failed to heat the building as it should have. The contractor was sued by the owner of the office building.

Can the contractor assert a claim against the distributor for breach of the implied warranty of merchantability?

Answers:

No, because there is no implied warranty of merchantability for sales between merchants.
No, because the distributor disclaimed this warranty.
Yes, because furnace failed to heat the building.
Yes, because the contractor relied on the distributor’s judgment.
Rationale:

Answer choice C is correct. Goods that are not fit for the ordinary purpose for which such goods are used are not merchantable. As a merchant seller of the furnace, the distributor can be liable for breach of the warranty of merchantability. Answer choice A is incorrect because the implied warranty of merchantability applies when the seller is a merchant. It applies even where the buyer is also a merchant. Answer choice B is incorrect because a general disclaimer is not sufficient to disclaim the warranty of merchantability. Answer choice D is incorrect because reliance on a seller’s judgment is not a requirement of the implied warranty of merchantability, and a warranty of fitness for a particular purpose may be disclaimed in general language.

WTF, NCBE? They're asking SPECIFICALLY about the implied warranty, which CAN be disclaimed in a conspicuous writing. I still don't get why I was wrong.

THIS QUESTION IS ALSO A RADICAL ISLAMIC TERRORIST.

From now on, when I get MBE questions wrong, I'm gonna stand up and start shouting, "WE NEED TO FIGURE OUT WHAT'S GOING ON! THERE IS SOMETHING GOING ON, FOLKS!

[1down1togo]

Themis gonna Theme (from Optional Evidence Set 6):

[+] Spoiler

A plaintiff has sued a defendant, alleging that she was run over by a speeding car driven by the defendant. The plaintiff was unconscious after her injury and, accompanied by her husband, was brought to the hospital in an ambulance.
At trial, the plaintiff calls an emergency room physician to testify that when the physician asked the plaintiff's husband if he knew what had happened, the husband, who was upset, replied, "I saw my wife get run over two hours ago by a driver who went right through the intersection without looking."

Is the physician's testimony about the husband's statement admissible?

Answers:

No, because it relates an opinion.
Correct Answer: No, because it is hearsay not within any exception.
Yes, as a statement made for purposes of diagnosis or treatment.
You Selected: Yes, as an excited utterance.
Rationale:

Answer choice B is correct. The statement is offered to prove liability for the accident. As such, it is not a statement made for purposes of diagnosis or treatment. Moreover, the statement was made two hours after the accident, so it is very unlikely that the husband (who was not himself an accident victim) was under a continuous state of excitement between the time of the accident and the time he made the statement. Therefore, the statement is not admissible as an excited utterance, and no other hearsay exception applies. Answer choice A is incorrect. An out-of-court statement is not inadmissible simply because it contains an opinion. Statements of opinion by out-of-court declarants may be admitted if they qualify under a hearsay exception and otherwise satisfy the rules governing opinion testimony of in-court witnesses. This statement, however, is hearsay not within any exception and is inadmissible. Answer choice C is incorrect. The husband's statement is making an accusation of fault for the accident. Such a statement is not pertinent to the diagnosis or treatment of the plaintiff, as is required by the hearsay exception. No other hearsay exception applies, so the statement is inadmissible. As discussed with respect to answer choice B, because the husband made the statement two hours after the accident, it is very unlikely that the husband (who was not himself an accident victim) was under a continuous state of excitement between the time of the accident and the time he made the statement.

Time shouldn't be the dispositive factor for an excited utterance, stress is. Or so I thought.

But I forgive them this time because that set was basically testing if you know the BLL without crazy analyses to crazy facts.

I think by "excited utterance," it is looking for more of a reactionary statement where the infirmities of hearsay are diminished. Two hours is a long time for something to be reactionary and presumed to be honest / reliable / trustworthy.

Time is a factor only in that it is sort of a sub-factor of excited. You have to be under the stress of the excitement. 2 hours later, your are no longer excited.

[BostonCeltics]

Finally got around to doing the simulated MBE and only got a 110. I think I'm officially fucked. Ugh.

[NaeDeen]

From now on, when I get MBE questions wrong, I'm gonna stand up and start shouting, "WE NEED TO FIGURE OUT WHAT'S GOING ON! THERE IS SOMETHING GOING ON, FOLKS!

[NaeDeen]

Finally got around to doing the simulated MBE and only got a 110. I think I'm officially fucked. Ugh.

It's not over just yet...keep pressing forward and don't let it shake you!! Now is the time stay positive...good luck!!

[PotLuck]

Finally got around to doing the simulated MBE and only got a 110. I think I'm officially fucked. Ugh.

You got this! Every wrong answer you get today is one you wont get wrong on the test. Stay positive my friend and, in regards to the MBE, the best advice I can give you is never make the same mistake twice!

[Hmasterflex]

Finally got around to doing the simulated MBE and only got a 110. I think I'm officially fucked. Ugh.

Bro, I bet you were stressed as bawls when you took it. I've found that when I do MBE problems and I'm super stressed (distracted by how many other things i need to study), it's the difference between me getting a 55% and a 70%. Big difference. You've got this

[squiggle]

Finally got around to doing the simulated MBE and only got a 110. I think I'm officially fucked. Ugh.

Definitely not. Here's a spreadsheet of people's practice and real MBE scores from last summer: https://docs.google.com/spreadsheets/d/ ... edit#gid=0

110 is within striking distance. Make sure you review all the answer explanations, and figure out why you got questions wrong (misread facts, didn't know law or exception to law, misapplied law, etc). You got this!

[unidentifiable]

i get so confused about when congress can and cannot change the appellate jurisdiction of scotus

[BigZuck]

i get so confused about when congress can and cannot change the appellate jurisdiction of scotus

Can't change original jurisdiction but they can monkey with appellate jurisdiction

[Fivedham]

i get so confused about when congress can and cannot change the appellate jurisdiction of scotus

I've noticed a pattern. NCBE asks a question that is essentially Marbury v. Madison, but they just switch around the facts and ask you to come to Marshall's conclusion. So the right answer in those is just the Marbury holding - Congress can't change original jurisdiction of SCOTUS by federal statute. They ask another question that involves Congress fast-tracking appeals to SCOTUS, and the answer in that is always that it's fine, because it doesn't mess with SCOTUS original jurisdiction, it just clarifies its appellate jurisdiction.

The only other questions I've seen about SCOTUS jurisdiction all involve adequate and independent state grounds. I haven't seen any weird original jurisdiction cases like ambassador suits or suits between states.

[Hmasterflex]

Finally got around to doing the simulated MBE and only got a 110. I think I'm officially fucked. Ugh.

Definitely not. Here's a spreadsheet of people's practice and real MBE scores from last summer: https://docs.google.com/spreadsheets/d/ ... edit#gid=0

110 is within striking distance. Make sure you review all the answer explanations, and figure out why you got questions wrong (misread facts, didn't know law or exception to law, misapplied law, etc). You got this!

I pray to the Gods, old and new, that this spreadsheet is still relevant.

[Vantwins]

Finally got around to doing the simulated MBE and only got a 110. I think I'm officially fucked. Ugh.

I did worse than that last week, but watching the explanation videos all day the next day must've helped - my scores have gone up every practice set since then (well besides the one I was doing last night at 11:30pm but I think I was half asleep!). Maybe they'll help you too. I liked the advice about trying to guess the answer first so you're less likely to get tricked by the "distractors" and also to not get caught up with feeling bad for the victim (i.e. answering that child rapist should get the death penalty even though that's not the law but just because you hate him!).

I'm doing decent enough now on the MBE stuff that I'm mainly switching over to just studying my state distinctions and doing practice essays. I do the MBE PQs just when I need a change of pace or I'm eating a snack and can't concentrate on essays. But I'm in MD - MBE is only 33%.

Good luck!

[Steve2207]

Does anyone know how the IL Bar curves the essays? I am worried because I am only hitting mid to high 50’s on the MBE sets, and need to do well on the essays to make up. Essays aren’t really my strong suit either. On most of them, I only hit about half the main points at best, or I do well at hitting the points but either can’t remember all of the rule, or come to the wrong conclusion. Is this normal, or should I be kicking it into overdrive these next few days?

ETA: I have pretty much abandoned the Themis schedule at this point. Instead, I have been doing a mixed MBE set every morning, and reviewing the answers. After that I have been going over one MBE subject’s outline (2-3 hours) per day, writing an essay on it, and then reviewing an essay subjects outline for the same amount of time, and writing another essay. Does anyone know if this is insufficient/ have any suggestions? I should be at or close to 90% completion by Monday. Thanks!

[luxxe]

Does anyone know how the IL Bar curves the essays? I am worried because I am only hitting mid to high 50’s on the MBE sets, and need to do well on the essays to make up. Essays aren’t really my strong suit either. On most of them, I only hit about half the main points at best, or I do well at hitting the points but either can’t remember all of the rule, or come to the wrong conclusion. Is this normal, or should I be kicking it into overdrive these next few days?

ETA: I have pretty much abandoned the Themis schedule at this point. Instead, I have been doing a mixed MBE set every morning, and reviewing the answers. After that I have been going over one MBE subject’s outline (2-3 hours) per day, writing an essay on it, and then reviewing an essay subjects outline for the same amount of time, and writing another essay. Does anyone know if this is insufficient/ have any suggestions? I should be at or close to 90% completion by Monday. Thanks!

This is basically what I'm doing, it's been really helpful for me to focus in one an MBE and MEE subject a day. Feels so much more manageable.

[NaeDeen]

Does anyone know how the IL Bar curves the essays? I am worried because I am only hitting mid to high 50’s on the MBE sets, and need to do well on the essays to make up. Essays aren’t really my strong suit either. On most of them, I only hit about half the main points at best, or I do well at hitting the points but either can’t remember all of the rule, or come to the wrong conclusion. Is this normal, or should I be kicking it into overdrive these next few days?

ETA: I have pretty much abandoned the Themis schedule at this point. Instead, I have been doing a mixed MBE set every morning, and reviewing the answers. After that I have been going over one MBE subject’s outline (2-3 hours) per day, writing an essay on it, and then reviewing an essay subjects outline for the same amount of time, and writing another essay. Does anyone know if this is insufficient/ have any suggestions? I should be at or close to 90% completion by Monday. Thanks!

For what it's worth I'm doing the same thing because the mixed set has everything and you get to cover law that you're confused about/don't know/need clarification on and so on. I read my outline out loud as it helps me remember. For the essays, I've gotten A LOT better (I hit anywhere between 90% to 100% of the issues) by doing exactly what you have started doing. I've seen all scores go up since then--unless my brain has given up for the day, then it's downhill from there.

So by the middle to end of the week you should notice an upwards trend in your scores. I also don't write full essays--I issue spot and print the essay and write out rule statements by hand and do the analysis out loud then insert the rule statements into the question box. Takes about 10-15 mins to issue spot and write out rules and the remaining 10 to insert. I figured out what works for me through trial and error. At first I was following the schedule but I didn't get to cover all the topics I wanted to cover and that darn progress bar was driving me nuts so I let it go. Keep pushing, everything will work out!!!!

[Robb]

Finally got around to doing the simulated MBE and only got a 110. I think I'm officially fucked. Ugh.

Definitely not. Here's a spreadsheet of people's practice and real MBE scores from last summer: https://docs.google.com/spreadsheets/d/ ... edit#gid=0

110 is within striking distance. Make sure you review all the answer explanations, and figure out why you got questions wrong (misread facts, didn't know law or exception to law, misapplied law, etc). You got this!

Ohh, thanks for this. Interesting data set. Some info-themis takers:

Scaled score average above raw PT score or average (/200): 21.5
Standard deviation of difference: 11.
Max difference: 37.3
Min difference: -2.5

With the standard deviation/assuming a normal distribution, that means there's about a 98% chance your scaled score will be at least your raw score on the practice test; a 84% chance that it will be at least 10 points higher, and, of course, 50% that it will be 21 or more higher; 34% chance it will be 30 higher; and 5% chance it will be 40 higher.

[Hmasterflex]

Anyone else get jazzed up at some torts and crim questions?

Question is like "and she grabbed the fire extinguisher" and i'm like "beat his a**!"

or for felony murder, i hear DMX BAARK'ing in my head

My greatest challenge come test day will be keeping my mouth shut

[1down1togo]

Finally got around to doing the simulated MBE and only got a 110. I think I'm officially fucked. Ugh.

Definitely not. Here's a spreadsheet of people's practice and real MBE scores from last summer: https://docs.google.com/spreadsheets/d/ ... edit#gid=0

110 is within striking distance. Make sure you review all the answer explanations, and figure out why you got questions wrong (misread facts, didn't know law or exception to law, misapplied law, etc). You got this!

Ohh, thanks for this. Interesting data set. Some info-themis takers:

Scaled score average above raw PT score or average (/200): 21.5
Standard deviation of difference: 11.
Max difference: 37.3
Min difference: -2.5


With the standard deviation/assuming a normal distribution, that means there's about a 98% chance your scaled score will be at least your raw score on the practice test; a 84% chance that it will be at least 10 points higher, and, of course, 50% that it will be 21 or more higher; 34% chance it will be 30 higher; and 5% chance it will be 40 higher.

I feel like this data probably suffers from some self-selection bias, however. I don't think people that failed are going to want to come back and post online about how bad they did.

[crisdavila]

Scared. I can't seem to get more than a 65% in the mixed pqs. Have read the black law, but somehow they always get me. Im seriously thinking about withdrawing. Also scared about the essays part.

[PotLuck]

Any recommendations for super short rule statement outlines? (Whether free or not)

I dont think I have enough time to go through my notes and make my own and also study them by the time of the bar. I finally got my MBE up and now my MEE rules memorization is a freaking joke.

[PotLuck]

Scared. I can't seem to get more than a 65% in the mixed pqs. Have read the black law, but somehow they always get me. Im seriously thinking about withdrawing. Also scared about the essays part.

Have faith! I went through 6 mixed PQ and didnt break 60 on ANY OF THEM. I recently did 7 and 8 and got 65 and 75 respectively. I also got a 140 on the simulated.

Change your mindset about wrong answers. Every answer you get wrong you are going to study. This means that every answer you get wrong is a question you WILL NOT get wrong on the exam. Plus, word is that the mixed sections are designed to give you questions in your weak areas.

You got this!