. Forum

[thebull]

Thanks! Are you aware of any NY Bar essay predictions for this year?

FWIW:

http://www.smartbarprep.com/SmartBarPre ... alysis.pdf

Yep, I know about that..I was so impressed I ordered the full outline!

[jerwood84]

I'm just glad I'm not taking the California Bar (this time around). I'll take my UBE state Bar and feel slightly more relaxed knowing it's not California Bar.

[missinglink]

MBE CONLAW SPOILER

The governor of a state signed a death warrant for a convicted murderer. Two men who are active opponents of the death penalty conducted a demonstration protesting the execution of the convicted murderer. The two men carried large signs that stated, "The Governor is a Murderer." A local television station broadcast news coverage of the demonstration, including pictures of the signs carried by the two men. If the governor asserts against the television station a claim for damages for intentional infliction of emotional distress, will the governor prevail?
A. Yes, if the broadcast showing the signs caused the governor to suffer severe emotional distress.
B. Yes, because the assertion on the signs was extreme and outrageous.
C. No, unless the governor suffered physical harm as a consequence of the emotional distress caused by the signs.
D. No, because the television station did not publish a false statement of fact with "actual malice."
Incorrect: Answer choice D is correct. The television station will only be held liable for intentionally or recklessly acting with extreme or outrageous conduct that caused the governor to suffer severe emotional distress. In this fact pattern, the television station will not be held liable as they did not publish a false statement of fact with "actual malice," which could be considered extreme or outrageous. Instead, they reported a news story about two men protesting an execution. Answer choices A and B are incorrect because they are not complete as the governor must prove not only that he suffered severe emotional distress, but that the distress was the result of the television station intentionally or recklessly acting with extreme or outrageous conduct. Answer choice C is incorrect because it is a wrong statement of law, as physical harm need not be proven.

Can anyone explain this to me? Answer choice D sets out the standard for defamation, but the claim is for IIED.

[releasethehounds]

Is anyone else just.....done?

[Talar]

Thanks for the answers guys regarding the immunity stuff.

[dudeman2014]

MBE CONLAW SPOILER

The governor of a state signed a death warrant for a convicted murderer. Two men who are active opponents of the death penalty conducted a demonstration protesting the execution of the convicted murderer. The two men carried large signs that stated, "The Governor is a Murderer." A local television station broadcast news coverage of the demonstration, including pictures of the signs carried by the two men. If the governor asserts against the television station a claim for damages for intentional infliction of emotional distress, will the governor prevail?
A. Yes, if the broadcast showing the signs caused the governor to suffer severe emotional distress.
B. Yes, because the assertion on the signs was extreme and outrageous.
C. No, unless the governor suffered physical harm as a consequence of the emotional distress caused by the signs.
D. No, because the television station did not publish a false statement of fact with "actual malice."
Incorrect: Answer choice D is correct. The television station will only be held liable for intentionally or recklessly acting with extreme or outrageous conduct that caused the governor to suffer severe emotional distress. In this fact pattern, the television station will not be held liable as they did not publish a false statement of fact with "actual malice," which could be considered extreme or outrageous. Instead, they reported a news story about two men protesting an execution. Answer choices A and B are incorrect because they are not complete as the governor must prove not only that he suffered severe emotional distress, but that the distress was the result of the television station intentionally or recklessly acting with extreme or outrageous conduct. Answer choice C is incorrect because it is a wrong statement of law, as physical harm need not be proven.

Can anyone explain this to me? Answer choice D sets out the standard for defamation, but the claim is for IIED.

This is the type of bullshit that you will almost certainly not see on the MBE. If they put this on there, well over 75 percent of people would avoid answer choice D because it sets out a standard for a tort that is not being alleged by the plaintiff. I probably would've picked A myself.

That said, my gut after finishing reading the fact pattern is that there is no way the governor is recovering on an IIED claim here (for a variety of reasons) and then I should've tried to look for the best "no" answer.

But yea, fuck this question.

[JuTMSY4]

MBE CONLAW SPOILER

The governor of a state signed a death warrant for a convicted murderer. Two men who are active opponents of the death penalty conducted a demonstration protesting the execution of the convicted murderer. The two men carried large signs that stated, "The Governor is a Murderer." A local television station broadcast news coverage of the demonstration, including pictures of the signs carried by the two men. If the governor asserts against the television station a claim for damages for intentional infliction of emotional distress, will the governor prevail?
A. Yes, if the broadcast showing the signs caused the governor to suffer severe emotional distress.
B. Yes, because the assertion on the signs was extreme and outrageous.
C. No, unless the governor suffered physical harm as a consequence of the emotional distress caused by the signs.
D. No, because the television station did not publish a false statement of fact with "actual malice."
Incorrect: Answer choice D is correct. The television station will only be held liable for intentionally or recklessly acting with extreme or outrageous conduct that caused the governor to suffer severe emotional distress. In this fact pattern, the television station will not be held liable as they did not publish a false statement of fact with "actual malice," which could be considered extreme or outrageous. Instead, they reported a news story about two men protesting an execution. Answer choices A and B are incorrect because they are not complete as the governor must prove not only that he suffered severe emotional distress, but that the distress was the result of the television station intentionally or recklessly acting with extreme or outrageous conduct. Answer choice C is incorrect because it is a wrong statement of law, as physical harm need not be proven.

Can anyone explain this to me? Answer choice D sets out the standard for defamation, but the claim is for IIED.

The trick here is that he's suing the TV station. So run through the analysis of IIED with that in mind. As the explanation provides - A and B are both correct about the requirements, but D is correct because IIED requires intention or reckless conduct - such as actual malice. So in order for the TV station to act intentionally or recklessly they needed actual malice, of which they had none.

[BarbellDreams]

Is anyone else just.....done?

This. Idk, I'm at 80% complete, m head buzzes just thinking about doing more MBEs, seems like Themis is giving me weird MBE questions that test minutia and lower my confidence at this point and I know how to write an essay by now.

I fully plan on waking up on Monday, reading over my outlines and putting everything down by 12-1 and just having the rest of the day to do anything that isn't related to the bar. But today and tomorrow I still think I need to get at least 200 more MBEs and 10 more essays in.

[elysiansmiles]

That said, my gut after finishing reading the fact pattern is that there is no way the governor is recovering on an IIED claim here (for a variety of reasons) and then I should've tried to look for the best "no" answer.

But yea, fuck this question.

Yeah, this may be a "know thyself" thing, but in all subjects except criminal law (I hate you, criminal law and procedure!!) my "yes/no" instincts are solid, and I have had a lot of success using that as my starting point. I don't remember what I put for this question, but my thought process would have been to pick whichever one of the "no" answers looked less asinine. On a "Can they recover?" question, I pick my yes/no before looking at the responses, and then resist the urge to second guess myself. Except in crim, where all bets are off for me.

[releasethehounds]

Is anyone else just.....done?

This. Idk, I'm at 80% complete, m head buzzes just thinking about doing more MBEs, seems like Themis is giving me weird MBE questions that test minutia and lower my confidence at this point and I know how to write an essay by now.

I fully plan on waking up on Monday, reading over my outlines and putting everything down by 12-1 and just having the rest of the day to do anything that isn't related to the bar. But today and tomorrow I still think I need to get at least 200 more MBEs and 10 more essays in.

At this point I feel like for the last week I've been going through the motions and now all i'm doing is putting shit in my short term memory which is unreliable as hell. I'm with you, I do plan to take Monday pretty much off. i may run through outlines until I need to leave to pre-register for the exam at like...2. But other than that? nah.

I know I need to do a couple more MPTs as i've only done like...3, i think, and two are on the exam. But at this point i don't honestly see what 3 more days of studying super hard are going to get me. i guess if I just feel like being fucking ridiculous I could shoot for 100% completion (5 MPTs, 23 essays, 100 MBE questions, 7 30-minute reviews) but at this point I don't think it honestly gets me anything other than bragging rights for something that no one cares about, and i certainly don't think it will really make any difference preparing for the exam.

Studying for the bar has been a lot like law school, for me. I did a lot of crap in law school like make outlines and used study methods that don't generally work for me because a) I managed to make it that far in life without ever learning how to effectively study and b) because everyone told me to. I feel like we're told we need these 10-15 hour days studying for 2 months is that method actually effective? The biggest problem for me is getting myself to just calm the fuck down and tell myself it's okay to ditch the program and leave essays unwritten and questions unanswered and to just work on the shit I know I need to work on: nailing down some tests for con law and torts, trying for the 400th time to learn damages in contracts, and reviewing the rest. I'm not going to be more comfortable than i am now and I think that's honestly okay. At a certain point you've just got to trust you've put the work in.

/rant.

[releasethehounds]

Except in crim, where all bets are off for me.

Well between theft offenses [dear larceny by trick et al.: fuck you.] that are halfway indistinguishable, voluntary manslaughter when NO reasonable person would act 'out of passion rather than reason', depraved heart murder charges for things that really do not amount to reckless disregard of an unreasonably high risk to human life and topping it all off with an inconsistent arson definition I'd say you're doing just fine if you can get through the questions without your head exploding.

[BarbellDreams]

SPOILER

Have a question on this one:

An honest dispute develops between a homeowner and an electrician over whether wiring and circuit breakers installed by the electrician satisfied contractual specifications. If the wiring and circuit breakers meet those specifications, the homeowner owes the electrician $10,000 under the terms of the contract. The homeowner offers to pay the electrician $8,000 in satisfaction of the homeowner's contractual obligations, if the electrician replaces the circuit breakers with a different brand. The electrician accepts the homeowner's offer. After the electrician replaces the circuit breakers, the homeowner refuses to pay the electrician. In a breach of contract action brought by the electrician, the fact-finder determines that the wiring and circuit breakers originally installed by the electrician did satisfy the contract specifications. The fact-finder also determines that the electrician and the homeowner entered into an accord for which the homeowner failed to prove the required satisfaction. What is maximum amount that the electrician can seek in damages from the homeowner?
Answers
$18,000
$10,000
$8,000
Nothing

I realize when accord is given and no satisfaction is given you can sue either for the accord agreement or under the original contract. However, I was under the impression that if the accord makes the other party do something else thats not original to the contract (here, the electrician has to replace the panels with one of a different brand, something he wasnt required to do under the original contract) then the law counts this as an entirely separate contract and not accord and satisfaction.

Did I totally make this up or does someone else remember this?

[Reinhardt]

Is the answer 18k or 10k?

[Bikeflip]

Freaking out b/c my scores are way down today. This was on NCBE Exam 3. Okay, actually not doing bad. I'm checking my answers after every 10th question, and I just had a shitty first 10.

[Eruannon]

Just did an NY practice essay where a kid at a summer camp slipped on a wet baseball field. The essay facts make out the case for negligence and that isn't disputed. But the dad signed a waiver when he sent the kid to the camp. The waiver would normally be legit (although it would just get rid of the dad's claims not the kid's claims), but I though that places of public amusement couldn't waive their liability for negligence torts. The model answer didn't even bring up the fact that a summer camp might fall into the category of a "place of public amusement", and said the waiver was valid. Any NY people know why this is the case... really confused about it.

[yeff]

Just did an NY practice essay where a kid at a summer camp slipped on a wet baseball field. The essay facts make out the case for negligence and that isn't disputed. But the dad signed a waiver when he sent the kid to the camp. The waiver would normally be legit (although it would just get rid of the dad's claims not the kid's claims), but I though that places of public amusement couldn't waive their liability for negligence torts. The model answer didn't even bring up the fact that a summer camp might fall into the category of a "place of public amusement", and said the waiver was valid. Any NY people know why this is the case... really confused about it.

+1, thought the same, while missing the fact that he could only waive for himself and not his son.

FWIW, here's the sample candidate answers from the bar examiners for this part of this question (Question 4, part 4, July 2005)

The following are sample candidate answers that received scores superior to the average scale score awarded for the relevant essay. They have been reprinted without change, except for minor editing. These essays should not be viewed as "model" answers, and they do not, in all respects, accurately reflect New York State law and/or its application to the facts. These answers are intended to demonstrate the general length and quality of responses that earned above average scores on the indicated administration of the bar examination. These answers are not intended to be used as a means of learning the law tested on the examination, and their use for such a purpose is strongly discouraged.

4. At issue is whether the release signed by Bobby’s father bars his ability to bring a claim against the camp.
Under New York law, an individual who pays a required fee may not be denied his right to bring a claim against a negligent party who benefits from that fee.
Under New York law, a parent who pays a required fee to a camp expects that his child will be treated without negligence, as the existence of a special relationship exists. Camp counselors are receiving a salary to supervise children. The fee requires extra attention, as it is indicative of a contract.
A child who is injured because of a camp’s or counselor’s negligence has a right to receive damages for such injury.
Potentially, the camp could argue that Bobby "assumed the risk" by participating and consenting to play in a sports event, but when such injury is caused by a counselor’s negligence and not the inherent danger of a game, the camp will be held liable. Thus, the release did not bar a claim for negligence.

4. The issue is whether the release form validly relieved Golden Sunshine Camp of its liability.
In order to include a valid waiver of claims, a contract must clearly state so on its face. Here, the term RELEASE was written in big letters and the father signed the contract in consideration for the camp attendance. Therefore, he is unable to make a claim against Golden Sunshine Camp. However, the father is unable to release Bobby. Bobby is an infant because he is under 18 and he is incapable of waiving his rights. The mere fact that his father signed a release form did not waive his rights. A party cannot waive all liability.

New York Distinction: Releases Exempting Recreational Facilities from Liability are Void Owners and operators of recreational facilities cannot disclaim liability for damages caused by their employees through contracts, applications, or tickets if the user pays a fee or other compensation for the use of the facility. Such agreements are void as against public policy. N.Y. Gen. Oblig. Law § 5-326.

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract,
membership application, ticket of admission or similar writing, entered
into between the owner or operator of any pool, gymnasium, place of
amusement or recreation, or similar establishment and the user of such
facilities, pursuant to which such owner or operator receives a fee or
other compensation for the use of such facilities, which exempts the
said owner or operator from liability for damages caused by or resulting
from the negligence of the owner, operator or person in charge of such
establishment, or their agents, servants or employees, shall be deemed
to be void as against public policy and wholly unenforceable.

[Eruannon]

Thanks Yeff, that post makes me feel much better in general... it doesn't seem like the 'correct' answer is as strictly defined as the Themis model answers led me to believe.

[BarbellDreams]

Is the answer 18k or 10k?

Answer was 10 can you can sue for accord or for original contract but not both. I said 18 cause I thought it was separate deal given that the electrician had to perform another action not mandated by the original contract.

[Reinhardt]

Is the answer 18k or 10k?

Answer was 10 can you can sue for accord or for original contract but not both. I said 18 cause I thought it was separate deal given that the electrician had to perform another action not mandated by the original contract.

Yeah that's kinda weird, considering it may've cost the guy over $10k to do both performances.

[dixiecupdrinking]

Just did an NY practice essay where a kid at a summer camp slipped on a wet baseball field. The essay facts make out the case for negligence and that isn't disputed. But the dad signed a waiver when he sent the kid to the camp. The waiver would normally be legit (although it would just get rid of the dad's claims not the kid's claims), but I though that places of public amusement couldn't waive their liability for negligence torts. The model answer didn't even bring up the fact that a summer camp might fall into the category of a "place of public amusement", and said the waiver was valid. Any NY people know why this is the case... really confused about it.

+1, thought the same, while missing the fact that he could only waive for himself and not his son.

FWIW, here's the sample candidate answers from the bar examiners for this part of this question (Question 4, part 4, July 2005)

The following are sample candidate answers that received scores superior to the average scale score awarded for the relevant essay. They have been reprinted without change, except for minor editing. These essays should not be viewed as "model" answers, and they do not, in all respects, accurately reflect New York State law and/or its application to the facts. These answers are intended to demonstrate the general length and quality of responses that earned above average scores on the indicated administration of the bar examination. These answers are not intended to be used as a means of learning the law tested on the examination, and their use for such a purpose is strongly discouraged.

4. At issue is whether the release signed by Bobby’s father bars his ability to bring a claim against the camp.
Under New York law, an individual who pays a required fee may not be denied his right to bring a claim against a negligent party who benefits from that fee.
Under New York law, a parent who pays a required fee to a camp expects that his child will be treated without negligence, as the existence of a special relationship exists. Camp counselors are receiving a salary to supervise children. The fee requires extra attention, as it is indicative of a contract.
A child who is injured because of a camp’s or counselor’s negligence has a right to receive damages for such injury.
Potentially, the camp could argue that Bobby "assumed the risk" by participating and consenting to play in a sports event, but when such injury is caused by a counselor’s negligence and not the inherent danger of a game, the camp will be held liable. Thus, the release did not bar a claim for negligence.

4. The issue is whether the release form validly relieved Golden Sunshine Camp of its liability.
In order to include a valid waiver of claims, a contract must clearly state so on its face. Here, the term RELEASE was written in big letters and the father signed the contract in consideration for the camp attendance. Therefore, he is unable to make a claim against Golden Sunshine Camp. However, the father is unable to release Bobby. Bobby is an infant because he is under 18 and he is incapable of waiving his rights. The mere fact that his father signed a release form did not waive his rights. A party cannot waive all liability.

New York Distinction: Releases Exempting Recreational Facilities from Liability are Void Owners and operators of recreational facilities cannot disclaim liability for damages caused by their employees through contracts, applications, or tickets if the user pays a fee or other compensation for the use of the facility. Such agreements are void as against public policy. N.Y. Gen. Oblig. Law § 5-326.

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract,
membership application, ticket of admission or similar writing, entered
into between the owner or operator of any pool, gymnasium, place of
amusement or recreation, or similar establishment and the user of such
facilities, pursuant to which such owner or operator receives a fee or
other compensation for the use of such facilities, which exempts the
said owner or operator from liability for damages caused by or resulting
from the negligence of the owner, operator or person in charge of such
establishment, or their agents, servants or employees, shall be deemed
to be void as against public policy and wholly unenforceable.

The way those answers are written also makes me feel better about my own chances.

[Charles Barkley]

I'm exhausted.

[JuTMSY4]

I'm exhausted.

I'm in this position where I know every second means I could learn just one more thing that might make the difference. But in reality, I realize I've done at least enough to pass. Still, I feel concerned I could fail and I can't let up.

What's everyone's monday plan?

[Charles Barkley]

Light review of my outlines for the state law portion of the test (day 1).

I'm doing that now, actually. I'm done with the MBE.

[kalvano]

What's everyone's monday plan?

Tuesday in Texas is MPT and then short-answer Crim and Civ Pro questions, so go over a couple MPT's and do a ton of procedure practice questions, since they tend to repeat a lot of them.

[Bikeflip]

What's everyone's monday plan?

Tuesday in Texas is MPT and then short-answer Crim and Civ Pro questions, so go over a couple MPT's and do a ton of procedure practice questions, since they tend to repeat a lot of them.

So jealous Texas tells you what will be on the test.