Themis Bar Review Hangout - July 2014 Exam Forum

[kapital98]

Got my hands on a few released MBE exams. I'm working on the first one, and so far every question I've gotten has been on Themis in some form, so I think we have confirmation that Themis does in fact use old MBE questions, and theirs are similar to what we will see on the actual exam next week.

So Fordham gave us a 200 Q full Kaplan MBE and then organized the head of Kaplan to come to campus for 2 days and go through the answer choices with us, and he actually said that NCBE has released so few actual questions (i think it's like 1000 over the past 30 years or something ridiculously low), and the only reason they release them is because those questions either gave them problems or gave the students problems in some way...they were too easy, or too hard, or too ambiguously worded, etc. Basically that there is a reason NCBE released the questions it released.

Idk how helpful that is, but I just wanted to put that out there

75% of Themis MBE questions are NCBE released questions. 25% are written by Themis.

Adaptibar's pratice exams are straight out of the past recent exams. They aren't glued together to form an exam. I find it really difficult to imagine that 100+ questions on each exam, out of 190, are "too easy or hard" and that's why they are released.

I express a lot of doubt over his statements if he is talking about the questions licensed by Adaptibar or even Themis.

[plenipotentiary]

I don't get third party beneficiaries.

Here's the question that confused me:

On March 1, a mechanic agreed to repair an owner's machine for $5,000, to be paid on completion of the work. On March 15, before the work was completed, the mechanic sent a letter to the owner with a copy to one of the mechanic's creditors, telling the owner to pay the $5,000 to the creditor. The mechanic then completed the work.

Which of the following, if true, would best serve the owner as a defense in an action brought against him by the creditor for $5,000?
A. The creditor was incapable of performing the mechanic's work.
B. The mechanic had not performed his work in a workmanlike manner.
C. On March 1, the mechanic had promised the owner that he would not assign the contract.
D. The creditor was not the intended beneficiary of the owner-mechanic contract.

The answer was B, and I got it right, but I thought it was because mechanic had assigned his rights to payment under the contract to creditor. The explanation said it was because creditor was an intended beneficiary. I thought that intended beneficiaries had to be named in the original contract between the promisor and the promisee.

Can an assignee of contractual rights become an intended beneficiary? Can anyone other than an intended beneficiary ever sue under the contract?

Ugh.

[blue920]

I don't get third party beneficiaries.

Here's the question that confused me:

On March 1, a mechanic agreed to repair an owner's machine for $5,000, to be paid on completion of the work. On March 15, before the work was completed, the mechanic sent a letter to the owner with a copy to one of the mechanic's creditors, telling the owner to pay the $5,000 to the creditor. The mechanic then completed the work.

Which of the following, if true, would best serve the owner as a defense in an action brought against him by the creditor for $5,000?
A. The creditor was incapable of performing the mechanic's work.
B. The mechanic had not performed his work in a workmanlike manner.
C. On March 1, the mechanic had promised the owner that he would not assign the contract.
D. The creditor was not the intended beneficiary of the owner-mechanic contract.

The answer was B, and I got it right, but I thought it was because mechanic had assigned his rights to payment under the contract to creditor. The explanation said it was because creditor was an intended beneficiary. I thought that intended beneficiaries had to be named in the original contract between the promisor and the promisee.

Can an assignee of contractual rights become an intended beneficiary? Can anyone other than an intended beneficiary ever sue under the contract?

Ugh.

I do not get them either. I did the last contracts practice set and got like 4 intended beneficiary questions wrong, including that question,. Someone who's good at contracts want to explain intended beneficiaries?

[Lolek]

Yea, the reason B is the answer is because the question asks what is his best defense. Only B and D make any sense in this context. But D is incorrect because it is possible even if unlikely that the creditor may be considered a TPB. With B, if the mechanic materially breaches the contract, it becomes certain the creditor will not receive the money because of the mechanics breach.

[mmmnnn]

Wow, I just got hammered by the Contracts questions in a mixed set. But it looks like everyone else did too according to the "answer popularity index."

I get a kick out of seeing graphs where the correct answer is the least chosen.

[Prime]

Best evidence rule is usually wrong...

(best evidence is the correct choice)

Thanks Themis

[blue920]

Wow, I just got hammered by the Contracts questions in a mixed set. But it looks like everyone else did too according to the "answer popularity index."

I get a kick out of seeing graphs where the correct answer is the least chosen.

Yeah, there was one property question where I picked D, which like maybe 70% of people picked. B, the correct answer, was at about 10%.

Those people mess up the scale for the rest of us.

[Tanicius]

75% of Themis MBE questions are NCBE released questions. 25% are written by Themis.

Adaptibar's pratice exams are straight out of the past recent exams. They aren't glued together to form an exam. I find it really difficult to imagine that 100+ questions on each exam, out of 190, are "too easy or hard" and that's why they are released.

I express a lot of doubt over his statements if he is talking about the questions licensed by Adaptibar or even Themis.

Yeah, less than 75% of Themis questions are MBE. Either that or a lot of their MBE questions are outdated. Adaptiar has four full exam's worth of MBE questions released in the last five years alone.

[Dripworx]

Best evidence rule is usually wrong...

(best evidence is the correct choice)

Thanks Themis

LAWL. This happened on four questions in one set.

[mizunoami]

75% of Themis MBE questions are NCBE released questions. 25% are written by Themis.

Adaptibar's pratice exams are straight out of the past recent exams. They aren't glued together to form an exam. I find it really difficult to imagine that 100+ questions on each exam, out of 190, are "too easy or hard" and that's why they are released.

I express a lot of doubt over his statements if he is talking about the questions licensed by Adaptibar or even Themis.

Yeah, less than 75% of Themis questions are MBE. Either that or a lot of their MBE questions are outdated. Adaptiar has four full exam's worth of MBE questions released in the last five years alone.

Oh ew. I'm almost at 100% on MBE questions from Themis and didn't think to get Adaptibar. I'm not going to be screwed am I?

[Tanicius]

Oh ew. I'm almost at 100% on MBE questions from Themis and didn't think to get Adaptibar. I'm not going to be screwed am I?

I didn't buy Adaptibar or try their free sample.

[kapital98]

Oh ew. I'm almost at 100% on MBE questions from Themis and didn't think to get Adaptibar. I'm not going to be screwed am I?

No reason to buy it at this point unless your scores are really low. Can you redo the questions on Themis? Otherwise, maybe save some questions for a couple days before the exam? Going into the test rusty because you ran out of questions a week before the test is probably not the best idea.

Edit: I believe you can get and additional 100 questions from Adaptibar free if you use their trial. I never used the trial.

[mizunoami]

Oh ew. I'm almost at 100% on MBE questions from Themis and didn't think to get Adaptibar. I'm not going to be screwed am I?

No reason to buy it at this point unless your scores are really low. Can you redo the questions on Themis? Otherwise, maybe save some questions for a couple days before the exam? Going into the test rusty because you ran out of questions a week before the test is probably not the best idea.

Edit: I believe you can get and additional 100 questions from Adaptibar free if you use their trial. I never used the trial.

I've got about 250 questions left. My scores are somewhere around 75-85%. I was just worried they might be nothing like the actual MBE questions.

[dreakol]

Oh ew. I'm almost at 100% on MBE questions from Themis and didn't think to get Adaptibar. I'm not going to be screwed am I?

No reason to buy it at this point unless your scores are really low. Can you redo the questions on Themis? Otherwise, maybe save some questions for a couple days before the exam? Going into the test rusty because you ran out of questions a week before the test is probably not the best idea.

Edit: I believe you can get and additional 100 questions from Adaptibar free if you use their trial. I never used the trial.

I've got about 250 questions left. My scores are somewhere around 75-85%. I was just worried they might be nothing like the actual MBE questions.

one prep company is more than enough man

[Lolek]

1. Statement against penal interest requires corroborating evidence, correct? What does that include?

2. If there is an affirmative defense, does D have burden of production and persuasion?

3. Trespass - smoke above ground counts?

4. Can you disclaim builders warranty of fitness?

5. When disclaiming warranties, 'all are hereby disclaimed' doesn't work. As is and with faults works for merchantability but does it work for fitness and title?

6. Had a question where answer said you cannot transfer the right to enter in a condition subsequent future interest during lifetime? This makes no sense.

[splitmuch]

26. (Question ID#4206)
A man witnessed a hit-and-run accident in which a truck struck and killed a child. Immediately after the accident, the witness gave police a signed, handwritten statement with a description of the truck, including the make and model, as well as a description of the driver of the truck. After several months, the authorities identified and charged a man who fit the witness’s description, although the pickup truck was never located. In the interim, however, the witness had suffered a brain injury and no longer remembered any of the events from the date of the accident. At trial, the prosecutor called the witness to testify. The prosecutor first showed the witness a photo of a vehicle of the same make and model as the truck in an attempt to refresh the witness’s memory. The defense objected but was overruled by the judge. When this failed to refresh the witness’s memory, the prosecutor showed the witness his earlier handwritten and signed statement. Again, the defense objected and was overruled. The witness testified that he had no memory of the events described in the statement, but that he recognized his handwriting on the statement and that the statement accurately reflected what he witnessed at the time. The prosecutor then moved to introduce the photo and statement into evidence as exhibits, and the defense again objected.

How should the judge rule?
A. The judge should admit both the photo and the statement into evidence as exhibits
.B. The judge should admit the photo, but not the statement, into evidence as an exhibit.
C. The judge should admit the statement, but not the photo, into evidence as an exhibit.
D. The judge should not admit the photo or the statement into evidence as exhibits

Themis says D is right. I get all the reasoning regarding past recollection recorded (can be read into evidence but document itself cannot be admitted).

My question is why doesn't the statement, given "Immediately after the accident," also qualify for the 803(1) present sense impression exception?

[mizunoami]

26. (Question ID#4206)
A man witnessed a hit-and-run accident in which a truck struck and killed a child. Immediately after the accident, the witness gave police a signed, handwritten statement with a description of the truck, including the make and model, as well as a description of the driver of the truck. After several months, the authorities identified and charged a man who fit the witness’s description, although the pickup truck was never located. In the interim, however, the witness had suffered a brain injury and no longer remembered any of the events from the date of the accident. At trial, the prosecutor called the witness to testify. The prosecutor first showed the witness a photo of a vehicle of the same make and model as the truck in an attempt to refresh the witness’s memory. The defense objected but was overruled by the judge. When this failed to refresh the witness’s memory, the prosecutor showed the witness his earlier handwritten and signed statement. Again, the defense objected and was overruled. The witness testified that he had no memory of the events described in the statement, but that he recognized his handwriting on the statement and that the statement accurately reflected what he witnessed at the time. The prosecutor then moved to introduce the photo and statement into evidence as exhibits, and the defense again objected.

How should the judge rule?
A. The judge should admit both the photo and the statement into evidence as exhibits
.B. The judge should admit the photo, but not the statement, into evidence as an exhibit.
C. The judge should admit the statement, but not the photo, into evidence as an exhibit.
D. The judge should not admit the photo or the statement into evidence as exhibits

Themis says D is right. I get all the reasoning regarding past recollection recorded (can be read into evidence but document itself cannot be admitted).

My question is why doesn't the statement, given "Immediately after the accident," also qualify for the 803(1) present sense impression exception?

Present sense impression involves narrating the event as it's occurring?

[hous]

I'm pretty sure the mixed practice sets are easier than the practice sets on a single topic.

[Prime]

I'm pretty sure the mixed practice sets are easier than the practice sets on a single topic.

I tend to agree. I just wish there was more variety on certain subjects on the mixed exams. Namely the "best evidence rule" versus "hearsay" questions. Not seeing nearly as many hearsay related questions.

[splitmuch]

26. (Question ID#4206)
A man witnessed a hit-and-run accident in which a truck struck and killed a child. Immediately after the accident, the witness gave police a signed, handwritten statement with a description of the truck, including the make and model, as well as a description of the driver of the truck. After several months, the authorities identified and charged a man who fit the witness’s description, although the pickup truck was never located. In the interim, however, the witness had suffered a brain injury and no longer remembered any of the events from the date of the accident. At trial, the prosecutor called the witness to testify. The prosecutor first showed the witness a photo of a vehicle of the same make and model as the truck in an attempt to refresh the witness’s memory. The defense objected but was overruled by the judge. When this failed to refresh the witness’s memory, the prosecutor showed the witness his earlier handwritten and signed statement. Again, the defense objected and was overruled. The witness testified that he had no memory of the events described in the statement, but that he recognized his handwriting on the statement and that the statement accurately reflected what he witnessed at the time. The prosecutor then moved to introduce the photo and statement into evidence as exhibits, and the defense again objected.

How should the judge rule?
A. The judge should admit both the photo and the statement into evidence as exhibits
.B. The judge should admit the photo, but not the statement, into evidence as an exhibit.
C. The judge should admit the statement, but not the photo, into evidence as an exhibit.
D. The judge should not admit the photo or the statement into evidence as exhibits

Themis says D is right. I get all the reasoning regarding past recollection recorded (can be read into evidence but document itself cannot be admitted).

My question is why doesn't the statement, given "Immediately after the accident," also qualify for the 803(1) present sense impression exception?

Present sense impression involves narrating the event as it's occurring?

But it doesn't... 803(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

[JoeFish]

26. (Question ID#4206)
A man witnessed a hit-and-run accident in which a truck struck and killed a child. Immediately after the accident, the witness gave police a signed, handwritten statement with a description of the truck, including the make and model, as well as a description of the driver of the truck. After several months, the authorities identified and charged a man who fit the witness’s description, although the pickup truck was never located. In the interim, however, the witness had suffered a brain injury and no longer remembered any of the events from the date of the accident. At trial, the prosecutor called the witness to testify. The prosecutor first showed the witness a photo of a vehicle of the same make and model as the truck in an attempt to refresh the witness’s memory. The defense objected but was overruled by the judge. When this failed to refresh the witness’s memory, the prosecutor showed the witness his earlier handwritten and signed statement. Again, the defense objected and was overruled. The witness testified that he had no memory of the events described in the statement, but that he recognized his handwriting on the statement and that the statement accurately reflected what he witnessed at the time. The prosecutor then moved to introduce the photo and statement into evidence as exhibits, and the defense again objected.

How should the judge rule?
A. The judge should admit both the photo and the statement into evidence as exhibits
.B. The judge should admit the photo, but not the statement, into evidence as an exhibit.
C. The judge should admit the statement, but not the photo, into evidence as an exhibit.
D. The judge should not admit the photo or the statement into evidence as exhibits

Themis says D is right. I get all the reasoning regarding past recollection recorded (can be read into evidence but document itself cannot be admitted).

My question is why doesn't the statement, given "Immediately after the accident," also qualify for the 803(1) present sense impression exception?

Present sense impression involves narrating the event as it's occurring?

But it doesn't... 803(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

The problem here is that the term "immediately" in the question does not mean the same thing as "immediately" in the present sense impression exception.

In the question, the word immediately means "when the policeman got there and asked him to write down his statement." That's not the same as in the rule, where it means "so soon after it happened that we think it's really really unlikely he made it up."

If the policeman had literally been standing next to the guy with a pad and pen out before anything happened, and they just happened to witness the car wreck right in front of them, and the first thing the policeman did was hand the pen and pad to the guy and say "write down what you saw," then the written statement would probably be a present sense impression.

[Apple Tree]

26. (Question ID#4206)
A man witnessed a hit-and-run accident in which a truck struck and killed a child. Immediately after the accident, the witness gave police a signed, handwritten statement with a description of the truck, including the make and model, as well as a description of the driver of the truck. After several months, the authorities identified and charged a man who fit the witness’s description, although the pickup truck was never located. In the interim, however, the witness had suffered a brain injury and no longer remembered any of the events from the date of the accident. At trial, the prosecutor called the witness to testify. The prosecutor first showed the witness a photo of a vehicle of the same make and model as the truck in an attempt to refresh the witness’s memory. The defense objected but was overruled by the judge. When this failed to refresh the witness’s memory, the prosecutor showed the witness his earlier handwritten and signed statement. Again, the defense objected and was overruled. The witness testified that he had no memory of the events described in the statement, but that he recognized his handwriting on the statement and that the statement accurately reflected what he witnessed at the time. The prosecutor then moved to introduce the photo and statement into evidence as exhibits, and the defense again objected.

How should the judge rule?
A. The judge should admit both the photo and the statement into evidence as exhibits
.B. The judge should admit the photo, but not the statement, into evidence as an exhibit.
C. The judge should admit the statement, but not the photo, into evidence as an exhibit.
D. The judge should not admit the photo or the statement into evidence as exhibits

Themis says D is right. I get all the reasoning regarding past recollection recorded (can be read into evidence but document itself cannot be admitted).

My question is why doesn't the statement, given "Immediately after the accident," also qualify for the 803(1) present sense impression exception?

This is a criminal case. The evidence is offered against D and testimonial in nature. The witness is now unavailable to testify, but the D had no prior chance to examine him, so I think it violates the Confrontational clause. Otherwise I feel like it should get in.

[Tanicius]

1. Statement against penal interest requires corroborating evidence, correct? What does that include?

Only if it's offered in a criminal case to prove that someone was self-incriminating themselves of a crime. Remember though, that this wouldn't apply to the defendant, all of whose statements come in under 801(d)(2) admission by party opponent when the prosecution is offering them.

2. If there is an affirmative defense, does D have burden of production and persuasion?

Not always. So long as the affirmative defense does include a factual question that is part of the prosecution's elements for the crime, the state may but does not have to place the affirmative defense burden on the defendant.

3. Trespass - smoke above ground counts?

I believe this is so.

4. Can you disclaim builders warranty of fitness?

I... think so? So you have property warranties, and contracts warranties. In property law you can always disclaim all warranties by giving a quitclaim deed. And in contract law, the only warranty you cannot disclaim is when you are a merchant making an express warranty.

5. When disclaiming warranties, 'all are hereby disclaimed' doesn't work. As is and with faults works for merchantability but does it work for fitness and title?

I think, for property purposes, you more care about what kind of deed it is rather than language used, because that's what the problem will focus on.

6. Had a question where answer said you cannot transfer the right to enter in a condition subsequent future interest during lifetime? This makes no sense.

Dunno. I would certainly think a future interest holder can hire self-help to visit a premises and conduct maintenance to prevent waste, but that's probably not a transfer of actual interest in the property.

[Lolek]

1. Statement against penal interest requires corroborating evidence, correct? What does that include?

Only if it's offered in a criminal case to prove that someone was self-incriminating themselves of a crime. Remember though, that this wouldn't apply to the defendant, all of whose statements come in under 801(d)(2) admission by party opponent when the prosecution is offering them.

2. If there is an affirmative defense, does D have burden of production and persuasion?

Not always. So long as the affirmative defense does include a factual question that is part of the prosecution's elements for the crime, the state may but does not have to place the affirmative defense burden on the defendant.

3. Trespass - smoke above ground counts?

I believe this is so.

4. Can you disclaim builders warranty of fitness?

I... think so? So you have property warranties, and contracts warranties. In property law you can always disclaim all warranties by giving a quitclaim deed. And in contract law, the only warranty you cannot disclaim is when you are a merchant making an express warranty.

5. When disclaiming warranties, 'all are hereby disclaimed' doesn't work. As is and with faults works for merchantability but does it work for fitness and title?

I think, for property purposes, you more care about what kind of deed it is rather than language used, because that's what the problem will focus on.

6. Had a question where answer said you cannot transfer the right to enter in a condition subsequent future interest during lifetime? This makes no sense.

Dunno. I would certainly think a future interest holder can hire self-help to visit a premises and conduct maintenance to prevent waste, but that's probably not a transfer of actual interest in the property.

1. So this doesn't exist for a W in a civil case? Also, the question said teacher hired student to kill husband. Student was overheard telling friend he just made an easy 100K knocking off the guy. Friend is gonna testify to this. This was the answer but there was no corroborating evidence mentioned only the statement to the friend.

2. I'm not sure what you mean, can you give an example?

4. I was referring to the builder disclaiming to the couple having the house built, I'm assuming the answer is no.

5. I meant Ks warranties of fitness for particular purpose and title. Also, I thought you can't disclaim express warranties period, not only if you're a merchant. Btw, you can disclaim them all orally too right?

[Tanicius]

1. So this doesn't exist for a W in a civil case? Also, the question said teacher hired student to kill husband. Student was overheard telling friend he just made an easy 100K knocking off the guy. Friend is gonna testify to this. This was the answer but there was no corroborating evidence mentioned only the statement to the friend.

Statement against penal interest only requires corroborating evidence when it is offered in criminal case. Again though, remember that if we're talking about a criminal case, a party would only be offered an unavailable declarant's statement against penal interest against a non-defendant, since the prosecution can always use the much easier-to-satisfy admission by party opponent exemption to hearsay instead of this exception. An example of this exception in a criminal case would be if the defendant claimed a different person had confessed to the police and then disappeared and now the cops can't find the guy.

As for when it's a civil case, statement against penal interest can be offered without corroborating evidence.

2. I'm not sure what you mean, can you give an example?

There's been a lot of talk ITT about questions where a judge seemingly reverses the prosecution's burden of proof and places it on the defendant. The confusion arises out of a misunderstanding of the hypo. Under the Constitution, the prosecution must always prove all of the elements of its burden of proof for a criminal allegation, and the defendant can never have the burden of disproving a stated element of the prosecution's burden. Ex: In a common law murder case, the prosecution must always prove that there was malice or intent.

However, the defendant may constitutionally be given a burden of proof of his own if it is not an element of the prosecution's case. Take, for example, a self-defense affirmative defense. In such a case, the defendant is necessarily admitting "You're right, I killed this other person with malice. You have met your burden of proof. But I had a legal justification to do it." Unless stated otherwise in the question, the lack of a legal justification is not part of the prosecution's burden of proof, so the defendant may lawfully be required to prove his justification.

Another example: To prevail on a charge of rape in State A, the prosecution must prove that the defendant had intercourse with a woman who was not his wife, against her consent. Let's say the defendant argues "First, she was my wife, so that element is unsatisfied, and also I reasonably believed she consented." His first argument is a requirement of the prosecution's burden to prove that she was not his wife, so the defendant cannot be required to prove she was not his wife. But the second argument is different from the prosecution's burden. The prosecution has to prove she did not give consent; they do not need to prove that the defendant believed there was no consent. So the judge may properly require the defendant to prove his belief that there was consent.

4. I was referring to the builder disclaiming to the couple having the house built, I'm assuming the answer is no.

Yeah, I've never heard of a fact pattern where a contractor tried to disclaim any kind of warranty, now that I think of it. Wouldn't worry.

5. I meant Ks warranties of fitness for particular purpose and title. Also, I thought you can't disclaim express warranties period, not only if you're a merchant. Btw, you can disclaim them all orally too right?

I'd just review the long outline portion on this. It's like a page or so. I don't trust myself to get it right verbatim.