Themis Bar Review Hangout - July 2015 Exam Forum

[sd5289]

So I got my last graded essay back. THIS TIME, even though I missed some issues, made up some rules, and deviated from the sample answer analysis, the grader gave me a "passing grade" (67) when she would otherwise give me a 33. Do I assume that maybe she had been grading harder before because she wanted to encourage me to do better/try harder, or do I just assume I actually did better this time (even though it really wasn't that different from my other essays...)?

I think at this point it's about just not reading the tea leaves.

Yeah don't make yourself crazy. I caught myself doing it on an MBE mixed set and managed to stop myself.

I think at this point with my scores evening out, I'm going to do a set of questions and an essay per day just to stay fresh, but I'm doubling down on trying to memorize everything in these last few days.

[Mad Hatter]

To those of you struggling with character evidence, feel free to reference this chart I made when I took the class.

this is awesome. thanks a ton

If you need more help, consider looking at tanicious' stickied post. I believe he discusses this aspect of evidence pretty clearly.

[kiwi4president]

Does anybody know the average scale increase on the MBE?

[Ahyis]

Does anybody know the average scale increase on the MBE?

I could be talking out of my ass, but I believe I've read places that it's around 10, give or take a few.

EDIT: That's assuming you're in the middle of the pack. Obviously more if you're lower, and less if you're higher.

[jkpolk]

Does anybody know the average scale increase on the MBE?

http://www.seperac.com/calc-mbe-febjuly.php

The higher you score the less you're bumped up. Average is probably 10-15.

[sd5289]

I feel like these later MBE sets are testing the most randomly obscure rules on the planet:

[+] Spoiler

A decedent, at death, was the owner of record of a $52,000 account at a state savings bank. As permitted by state law, the decedent’s nephew was named in the account records as the person to be paid upon the decedent’s death. After the decedent’s death, the bank received by mail a documented claim of a creditor of the decedent, claiming that the decedent, shortly before her death, had assigned the account to the creditor. The following day, the nephew appeared at the bank and demanded the $52,000 in the account. The bank has doubts as to whether the decedent’s signature on the assignment is valid. The creditor and bank are citizens of the same state as the decedent was at the time of her death. The nephew lives in an adjoining state. The bank filed a statutory interpleader action with the local federal district court. The nephew has filed a motion to dismiss based on lack of subject matter jurisdiction. The bank opposes this motion.

How should the court rule on the motion?

[+] Spoiler

A. For the nephew, because the amount in controversy fails to meet the jurisdictional minimum.
B. For the nephew, because there is not diversity of citizenship between the bank and creditor.
C. For the bank, because there is no amount-in-controversy requirement for a statutory interpleader action.
D.: For the bank, because the probate exception to diversity jurisdiction does not apply.

[+] Spoiler

Answer choice D is correct. While federal courts generally do not exercise diversity jurisdiction over probate matters, this restriction is narrowly construed and primarily applies to the probate of a will or the administration of a decedent’s estate. Here, the applicable state law recognizes the validity of a paid-on-death account, which permits the owner of the bank account to designate a person to take the account upon the owner’s death. Since this property does not pass by the decedent’s will and is not included in the decedent’s estate, the action does not fall within the probate exception to diversity jurisdiction. Since, as discussed with regard to answer choices A and B, the court otherwise has diversity jurisdiction, the court should deny the nephew’s motion to dismiss. Answer choice A is incorrect. For a statutory interpleader action, the amount in controversy need only exceed $500, rather than the $75,000 otherwise required for a diversity action. In this case, the $52,000 at issue easily satisfies this amount-in-controversy requirement. Answer choice B is incorrect. For a statutory interpleader action, diversity jurisdiction is met if any two claimants are citizens of different states. Here, because the nephew and the creditor, the two claimants, are from different states, the diversity requirement is satisfied. Answer choice C is incorrect. For a statutory interpleader action, the amount in controversy must exceed $500.

I went with D, but only because A-C were completely wrong. I've never heard of this rule in D before today.

[somuchbooty]

I feel like these later MBE sets are testing the most randomly obscure rules on the planet:

[+] Spoiler

A decedent, at death, was the owner of record of a $52,000 account at a state savings bank. As permitted by state law, the decedent’s nephew was named in the account records as the person to be paid upon the decedent’s death. After the decedent’s death, the bank received by mail a documented claim of a creditor of the decedent, claiming that the decedent, shortly before her death, had assigned the account to the creditor. The following day, the nephew appeared at the bank and demanded the $52,000 in the account. The bank has doubts as to whether the decedent’s signature on the assignment is valid. The creditor and bank are citizens of the same state as the decedent was at the time of her death. The nephew lives in an adjoining state. The bank filed a statutory interpleader action with the local federal district court. The nephew has filed a motion to dismiss based on lack of subject matter jurisdiction. The bank opposes this motion.

How should the court rule on the motion?

[+] Spoiler

A. For the nephew, because the amount in controversy fails to meet the jurisdictional minimum.
B. For the nephew, because there is not diversity of citizenship between the bank and creditor.
C. For the bank, because there is no amount-in-controversy requirement for a statutory interpleader action.
D.: For the bank, because the probate exception to diversity jurisdiction does not apply.

[+] Spoiler

Answer choice D is correct. While federal courts generally do not exercise diversity jurisdiction over probate matters, this restriction is narrowly construed and primarily applies to the probate of a will or the administration of a decedent’s estate. Here, the applicable state law recognizes the validity of a paid-on-death account, which permits the owner of the bank account to designate a person to take the account upon the owner’s death. Since this property does not pass by the decedent’s will and is not included in the decedent’s estate, the action does not fall within the probate exception to diversity jurisdiction. Since, as discussed with regard to answer choices A and B, the court otherwise has diversity jurisdiction, the court should deny the nephew’s motion to dismiss. Answer choice A is incorrect. For a statutory interpleader action, the amount in controversy need only exceed $500, rather than the $75,000 otherwise required for a diversity action. In this case, the $52,000 at issue easily satisfies this amount-in-controversy requirement. Answer choice B is incorrect. For a statutory interpleader action, diversity jurisdiction is met if any two claimants are citizens of different states. Here, because the nephew and the creditor, the two claimants, are from different states, the diversity requirement is satisfied. Answer choice C is incorrect. For a statutory interpleader action, the amount in controversy must exceed $500.

I went with D, but only because A-C were completely wrong. I've never heard of this rule in D before today.

I've been seeing a lot of these questions as well, where they're testing 3 different things at once bc you'd have to know all 3 to not choose one of the wrong ones. I really hope the real test doesn't do that much.

[sd5289]

Also, how does this weighted score thing work? Is there a certain % of people who have to pass each year? I get the idea that if you score lower then you'll get a bigger bump than you score higher, but I'm not entirely certain where the line is drawn between passing and failing.

[Pickled]

I vote for the following as the question that has most made me want to throw something across the room today:

[+] Spoiler

In which of the following cases is a conviction of the defendant for robbery LEAST likely to be upheld?
A A jewel thief forced his way into a woman's home, bound her, and compelled her to tell him that her jewelry was in an adjoining room. The jewel thief went to the room, took the jewelry, and fled.
B A confederate of the bag snatcher pushed a man in order to cause him to lose his balance and drop his briefcase. The bag snatcher picked up the briefcase and ran off with it.
C Having induced a woman to enter his hotel room, the robber forced her to telephone her maid to tell the maid to bring certain jewelry to the hotel. The robber locked the woman in the bathroom while he accepted the jewelry from the maid when she arrived.
D A bar patron unbuttoned the vest of a man too drunk to notice and removed his wallet. A minute later, the victim missed his wallet and accused the patron of taking it. The patron pretended to be insulted, slapped the victim, and went off with the wallet.
SUBMIT ANSWER

Sorry, that's not the best choice.

The answer you selected is not the best choice in this situation.

[+] Spoiler

Answer choice D is correct. Robbery is the taking of personal property from a person, by force or intimidation, with the intent to permanently deprive the person of the property. Answer choice D is the best answer for two reasons. First, the victim was too drunk to be intimidated by the patron at the time of the taking or to notice the removal of his wallet. Second, the force, the slap, did not occur at the time of the taking. Answer choice A is incorrect because, although the jewelry was in an adjoining room, it was still within the victim's control. Answer choice B is incorrect because the parties, both defendant and the bag snatcher, were acting in concert. Answer choice C is incorrect because, although the victim was locked in the bathroom at the time of the taking, the taking still occurred "from the person" as it was within the woman's control evidenced by the fact that she called her maid to bring the jewelry.

[texlaw]

Came down with a nasty case of pneumonia. Didn't have the power to study for 4 days. Perfect timing!

[zot1]

So I got my last graded essay back. THIS TIME, even though I missed some issues, made up some rules, and deviated from the sample answer analysis, the grader gave me a "passing grade" (67) when she would otherwise give me a 33. Do I assume that maybe she had been grading harder before because she wanted to encourage me to do better/try harder, or do I just assume I actually did better this time (even though it really wasn't that different from my other essays...)?

I think at this point it's about just not reading the tea leaves.

Yeah don't make yourself crazy. I caught myself doing it on an MBE mixed set and managed to stop myself.

I think at this point with my scores evening out, I'm going to do a set of questions and an essay per day just to stay fresh, but I'm doubling down on trying to memorize everything in these last few days.

Alright. I was trying to make myself feel better because maybe my essays haven't been sucking this entire time. It's cool though, I'll just keep reviewing and practicing and hoping for the best.

Thanks, guys!

[Ahyis]

I vote for the following as the question that has most made me want to throw something across the room today:

[+] Spoiler

In which of the following cases is a conviction of the defendant for robbery LEAST likely to be upheld?
A A jewel thief forced his way into a woman's home, bound her, and compelled her to tell him that her jewelry was in an adjoining room. The jewel thief went to the room, took the jewelry, and fled.
B A confederate of the bag snatcher pushed a man in order to cause him to lose his balance and drop his briefcase. The bag snatcher picked up the briefcase and ran off with it.
C Having induced a woman to enter his hotel room, the robber forced her to telephone her maid to tell the maid to bring certain jewelry to the hotel. The robber locked the woman in the bathroom while he accepted the jewelry from the maid when she arrived.
D A bar patron unbuttoned the vest of a man too drunk to notice and removed his wallet. A minute later, the victim missed his wallet and accused the patron of taking it. The patron pretended to be insulted, slapped the victim, and went off with the wallet.
SUBMIT ANSWER

Sorry, that's not the best choice.

The answer you selected is not the best choice in this situation.

[+] Spoiler

Answer choice D is correct. Robbery is the taking of personal property from a person, by force or intimidation, with the intent to permanently deprive the person of the property. Answer choice D is the best answer for two reasons. First, the victim was too drunk to be intimidated by the patron at the time of the taking or to notice the removal of his wallet. Second, the force, the slap, did not occur at the time of the taking. Answer choice A is incorrect because, although the jewelry was in an adjoining room, it was still within the victim's control. Answer choice B is incorrect because the parties, both defendant and the bag snatcher, were acting in concert. Answer choice C is incorrect because, although the victim was locked in the bathroom at the time of the taking, the taking still occurred "from the person" as it was within the woman's control evidenced by the fact that she called her maid to bring the jewelry.

Let me just add on to this because I have some serious issues with the whole Robbery force/fear requirement:

Had a question that said that drugging someone and then taking their wallet WAS FORCE and therefore ROBBERY

Had a question that said snatching a purse from someone was NOT FORCE, because they didn't have a chance to react/struggle.

Had this question before too, which basically says the guy didn't notice, therefore wasn't forced/intimidated.

So grabbing a purse isn't robbery, but drugging someone, or waiting until they're drunk and then stealing from them is? If the guy didn't use force, how did he grab the purse? The very act of grabbing a bag is FORCE.

Raaaaaage.

[anon sequitur]

So grabbing a purse isn't robbery, but drugging someone, or waiting until they're drunk and then stealing from them is? If the guy didn't use force, how did he grab the purse? The very act of grabbing a bag is FORCE.

Raaaaaage.

Yeah, I really don't know about the drugging issue, never heard of it and would have assumed it's not force. But the grabbing of a purse thing is a legitimate distinction made in actual case law; basically if you're an awesome pick-pocket and get away with someone's stuff without them noticing (i.e., using less force than is required for them to notice), that's just larceny and outside the bounds of what robbery is trying to prevent, which is violent theft. I definitely got this wrong the first time I saw it even though I had learned it in one of my classes. At least it's a clear enough distinction to be easily remembered.

[sd5289]

Torts question:

[+] Spoiler

The day after a seller completed the sale of his house and moved out, one of the slates flew off the roof during a windstorm. The slate struck a pedestrian, who was on the public sidewalk. The pedestrian was seriously injured. The roof is old and has lost several slates in ordinary windstorms on other occasions. If the pedestrian sues the seller to recover damages for his injuries, will the pedestrian prevail?

[+] Spoiler

A. Yes, because the roof was defective when the seller sold the house.
B. Yes, if the seller should have been aware of the condition of the roof and should have realized that it was dangerous to persons outside the premises.
C. No, because the seller was neither the owner nor the occupier of the house when the pedestrian was injured.
D. No, if the pedestrian knew that in the past slates had blown off the roof during windstorms.

[+] Spoiler

Answer choice B is correct. With respect to an artificial condition, a landowner has a duty to prevent an unreasonable risk of harm to passersby, so if the seller knew of the dangerous condition of the roof, he is liable for the pedestrian's injury. Answer choice A is incorrect because whether or not the roof was defective, the seller was obligated to protect the pedestrian from it. Answer choice C is incorrect because selling the house does not relieve the seller of liability if he was previously aware of the dangerous condition and did not protect passersby from it. Answer choice D is incorrect because walking on the sidewalk past the seller's house is not a dangerous activity of which the pedestrian can assume the risk.

First off, I don't feel bad about missing this because apparently 60% of you all also thought it was C. I understand the explanation for why C is incorrect, BUT my question now is how long does that duty to last? Until the buyer takes possession? Forever? I was tempted by B, but went with C because the seller wasn't the owner anymore and thus, in my mind, had no duty in this situation.

[Pickled]

I vote for the following as the question that has most made me want to throw something across the room today:

[+] Spoiler

In which of the following cases is a conviction of the defendant for robbery LEAST likely to be upheld?
A A jewel thief forced his way into a woman's home, bound her, and compelled her to tell him that her jewelry was in an adjoining room. The jewel thief went to the room, took the jewelry, and fled.
B A confederate of the bag snatcher pushed a man in order to cause him to lose his balance and drop his briefcase. The bag snatcher picked up the briefcase and ran off with it.
C Having induced a woman to enter his hotel room, the robber forced her to telephone her maid to tell the maid to bring certain jewelry to the hotel. The robber locked the woman in the bathroom while he accepted the jewelry from the maid when she arrived.
D A bar patron unbuttoned the vest of a man too drunk to notice and removed his wallet. A minute later, the victim missed his wallet and accused the patron of taking it. The patron pretended to be insulted, slapped the victim, and went off with the wallet.
SUBMIT ANSWER

Sorry, that's not the best choice.

The answer you selected is not the best choice in this situation.

[+] Spoiler

Answer choice D is correct. Robbery is the taking of personal property from a person, by force or intimidation, with the intent to permanently deprive the person of the property. Answer choice D is the best answer for two reasons. First, the victim was too drunk to be intimidated by the patron at the time of the taking or to notice the removal of his wallet. Second, the force, the slap, did not occur at the time of the taking. Answer choice A is incorrect because, although the jewelry was in an adjoining room, it was still within the victim's control. Answer choice B is incorrect because the parties, both defendant and the bag snatcher, were acting in concert. Answer choice C is incorrect because, although the victim was locked in the bathroom at the time of the taking, the taking still occurred "from the person" as it was within the woman's control evidenced by the fact that she called her maid to bring the jewelry.

Let me just add on to this because I have some serious issues with the whole Robbery force/fear requirement:

Had a question that said that drugging someone and then taking their wallet WAS FORCE and therefore ROBBERY

Had a question that said snatching a purse from someone was NOT FORCE, because they didn't have a chance to react/struggle.

Had this question before too, which basically says the guy didn't notice, therefore wasn't forced/intimidated.

So grabbing a purse isn't robbery, but drugging someone, or waiting until they're drunk and then stealing from them is? If the guy didn't use force, how did he grab the purse? The very act of grabbing a bag is FORCE.

Raaaaaage.

Exactly! It is absolutely unreal how inconsistent these types of questions are. There is absolutely no rhyme or reason or consistent rule.

[marthac66]

I really wish Themis provided a book of their online MBE Qs!!!! I can't deal with the computer strain much more.....

[sd5289]

I vote for the following as the question that has most made me want to throw something across the room today:

[+] Spoiler

In which of the following cases is a conviction of the defendant for robbery LEAST likely to be upheld?
A A jewel thief forced his way into a woman's home, bound her, and compelled her to tell him that her jewelry was in an adjoining room. The jewel thief went to the room, took the jewelry, and fled.
B A confederate of the bag snatcher pushed a man in order to cause him to lose his balance and drop his briefcase. The bag snatcher picked up the briefcase and ran off with it.
C Having induced a woman to enter his hotel room, the robber forced her to telephone her maid to tell the maid to bring certain jewelry to the hotel. The robber locked the woman in the bathroom while he accepted the jewelry from the maid when she arrived.
D A bar patron unbuttoned the vest of a man too drunk to notice and removed his wallet. A minute later, the victim missed his wallet and accused the patron of taking it. The patron pretended to be insulted, slapped the victim, and went off with the wallet.
SUBMIT ANSWER

Sorry, that's not the best choice.

The answer you selected is not the best choice in this situation.

[+] Spoiler

Answer choice D is correct. Robbery is the taking of personal property from a person, by force or intimidation, with the intent to permanently deprive the person of the property. Answer choice D is the best answer for two reasons. First, the victim was too drunk to be intimidated by the patron at the time of the taking or to notice the removal of his wallet. Second, the force, the slap, did not occur at the time of the taking. Answer choice A is incorrect because, although the jewelry was in an adjoining room, it was still within the victim's control. Answer choice B is incorrect because the parties, both defendant and the bag snatcher, were acting in concert. Answer choice C is incorrect because, although the victim was locked in the bathroom at the time of the taking, the taking still occurred "from the person" as it was within the woman's control evidenced by the fact that she called her maid to bring the jewelry.

Let me just add on to this because I have some serious issues with the whole Robbery force/fear requirement:

Had a question that said that drugging someone and then taking their wallet WAS FORCE and therefore ROBBERY

Had a question that said snatching a purse from someone was NOT FORCE, because they didn't have a chance to react/struggle.

Had this question before too, which basically says the guy didn't notice, therefore wasn't forced/intimidated.

So grabbing a purse isn't robbery, but drugging someone, or waiting until they're drunk and then stealing from them is? If the guy didn't use force, how did he grab the purse? The very act of grabbing a bag is FORCE.

Raaaaaage.

Hopefully I can help with this.

If you're talking about a purse-snatching where a guy runs up behind the victim and grabs it while he keeps running, then no, that's not robbery because he didn't use force on her, nor did he intended to instill fear in her. Robbery requires "force" (try and understand this somewhat loosely, which I'll discuss in a second) on the person (or causing fear of force), not the thing stolen. So long as the victim doesn't actually feel fear, which these questions will say in the fact pattern, and the D didn't use force on the victim, there's no robbery.

When a person drugs someone to make them pass out in order to take their wallet or whatever, that is still on the person, and while it doesn't fit within our typical understanding of "force," that still counts. Try and focus on whether the D's act affects the person and hopefully that will help.

ETA: as for the question quoted above, there's no fear of force because the guy's passed out drunk, and the D didn't actually use force on the victim in order to get to the wallet. The question says which scenario is LEAST likely to result in a conviction for robbery. The physical force that did occur was after the theft, and the force must be used to facilitate the theft.

[always_raining]

Torts question:

[+] Spoiler

The day after a seller completed the sale of his house and moved out, one of the slates flew off the roof during a windstorm. The slate struck a pedestrian, who was on the public sidewalk. The pedestrian was seriously injured. The roof is old and has lost several slates in ordinary windstorms on other occasions. If the pedestrian sues the seller to recover damages for his injuries, will the pedestrian prevail?

[+] Spoiler

A. Yes, because the roof was defective when the seller sold the house.
B. Yes, if the seller should have been aware of the condition of the roof and should have realized that it was dangerous to persons outside the premises.
C. No, because the seller was neither the owner nor the occupier of the house when the pedestrian was injured.
D. No, if the pedestrian knew that in the past slates had blown off the roof during windstorms.

[+] Spoiler

Answer choice B is correct. With respect to an artificial condition, a landowner has a duty to prevent an unreasonable risk of harm to passersby, so if the seller knew of the dangerous condition of the roof, he is liable for the pedestrian's injury. Answer choice A is incorrect because whether or not the roof was defective, the seller was obligated to protect the pedestrian from it. Answer choice C is incorrect because selling the house does not relieve the seller of liability if he was previously aware of the dangerous condition and did not protect passersby from it. Answer choice D is incorrect because walking on the sidewalk past the seller's house is not a dangerous activity of which the pedestrian can assume the risk.

First off, I don't feel bad about missing this because apparently 60% of you all also thought it was C. I understand the explanation for why C is incorrect, BUT my question now is how long does that duty to last? Until the buyer takes possession? Forever? I was tempted by B, but went with C because the seller wasn't the owner anymore and thus, in my mind, had no duty in this situation.

This one got me into a rage. I chose C as well. Still don't understand this one.

[always_raining]

Turned my graded essay in on Friday and still have not gotten it back. Is it 2 business days? So I should get it by today?

[zot1]

Turned my graded essay in on Friday and still have not gotten it back. Is it 2 business days? So I should get it by today?

I think it is 2 business days.

[Confused7]

Turned my graded essay in on Friday and still have not gotten it back. Is it 2 business days? So I should get it by today?

I think it is 2 business days.

Yeah, you should be getting yours back soon. I submitted mine on Friday and only got it bad late last night.

[juniormint33]

Did anyone ever find out whether we have to submit all of the graded essays in order to (worst case scenario) retake the course fo' free?

[UnamSanctam]

I mean, drugging someone is definitely force. Think about rape.

[lilypad144]

Did anyone ever find out whether we have to submit all of the graded essays in order to (worst case scenario) retake the course fo' free?

Per this link at above the law: http://abovethelaw.com/2013/05/which-ba ... he-best-2/

"GUARANTEES

If you complete 75% or more of course work and fail, you get money back AND free repeat for next available session. If you don’t complete 75% you get free repeat.
MUST be 1st timer"

If you need to know for sure, give Themis a call. They are available directly on their phone line. No wait.

[kgus22]

Did anyone ever find out whether we have to submit all of the graded essays in order to (worst case scenario) retake the course fo' free?

Per this link at above the law: http://abovethelaw.com/2013/05/which-ba ... he-best-2/

"GUARANTEES

If you complete 75% or more of course work and fail, you get money back AND free repeat for next available session. If you don’t complete 75% you get free repeat.
MUST be 1st timer"

If you need to know for sure, give Themis a call. They are available directly on their phone line. No wait.

I e-mailed them about it before and they said there was no completion percentage requirement either...