Themis Bar Review Hangout - July 2015 Exam Forum

[orangecup]

Count me in as another person who's a) ready to take the damn thing already, and b) doesn't want to ruin my qualified confidence going in after some good MBE scores and essays over the past week or so. But I also want to stay fresh. From what it's worth, I see in the directed study schedule (which expects me to do 3.2% today, haha, good one) that the emphasis shifts to review and memorization in the last week. Everyone I've talked to who passed also suggest switching to that framework but doing a few questions and/or essays each day just to keep those skills we've built over the summer.

(Not a Themis student here, but been following the thread lol): I agree with this. That's pretty much been my approach. I think at this point we know how to approach essays and MBEs, so it's just a matter of remembering the little things that may come up. I'll probably aim for 25 MBEs per day, issue spotting some essays, and blitzing through other essays to get familiar with what's been asked in the past. I'll tack on memorization to this (made ~480 flashcards. I've presumably memorized all of them, so my plan is to go over 120 a day Thurs-Sun, which shouldn't take too long).

[UnamSanctam]

Finally took the simulated essay day. All I can say is lol at the length of the model answers, with case and restatement citations.

[zot1]

I'm not sure if these days I want to do less work because we've been doing this for too long or because I'm afraid I'll be too burned out the days of the exam if I push too much right now...

[soj]

.

[zor]

I am so burnt out. Having SUCH a hard time focusing on this material today, ugh. And I still haven't done the simulated essay day so that's going to be real fun tomorrow.

[zot1]

I am so burnt out. Having SUCH a hard time focusing on this material today, ugh. And I still haven't done the simulated essay day so that's going to be real fun tomorrow.

I hear you. I'm trying to do an issue per subject list because I can do it without thinking too much and I think it'll help me study later.

[juniormint33]

For the love of god can someone please help me nail down the Best Evidence Rule? Just when I think I have it I get another question wrong. FOR EXAMPLE:

[+] Spoiler

"D is being prosecuted for conspiracy to possess with intent to distribute. At trial, govt. seeks to have its agent testify to a conversation that he overheard between the D and a co-conspirator regarding the incoming shipment of a large quantity of coke. That conversation was also audiotaped, though critical portions of it are inaudible. The D objects to the testimony of the agent on the ground that it is not the best evidence of the conversation. Is the testimony admissible?"

Correct answer: Admissible bc the BER does not require proof of the conversation through the audiotape.

Now. I understand that the BER is not this catchall provision that requires everyone to use their best evidence all the time. I also understand that it DOES req the original (or an acceptable copy) in two situations. First, when the contents of the document/photo/whatever are AT ISSUE, and second when the wit is relying on it to testify. What I DON'T understand is why the first of these two is not implicated by these facts. To me, it would seem that the contents of the conversation are at the central issue of - oh, I don't know - the D's guilt? But clearly I'm missing something.

Anyone?

[BelugaWhale]

Can anyone help me with personal property and theif conveying good title?

Themis states that a truly genuine bona fide purchaser for value can prevail over the true owner of a chattel and thus, my understanding, have superior title.

Yet I just did an essay where the answer came out exactly the opposite, the answer stated that "It is irrelevant that subsequent transferees were acting in good faith" and that purchasing in good faith is not a good defense where the property is stolen property.

So I'm confused

[eloise16]

I am so burnt out. Having SUCH a hard time focusing on this material today, ugh. And I still haven't done the simulated essay day so that's going to be real fun tomorrow.

I still haven't done the simulated essay day either but at this point I don't think I'm going to. What is the point? I'd rather work on the areas that I'm weakest at -- do those essays -- rather than put myself through a day long test at the end of which I will be exhausted and unable to review/study anymore.

I sat for the simulated MBE, so I feel like I have an idea of what its like to be in testing conditions for that long. I dunno, maybe I am wrong? I might try to do the first half of the simulated essay day -- did people think it was really helpful?

[BelugaWhale]

For the love of god can someone please help me nail down the Best Evidence Rule? Just when I think I have it I get another question wrong. FOR EXAMPLE:

[+] Spoiler

"D is being prosecuted for conspiracy to possess with intent to distribute. At trial, govt. seeks to have its agent testify to a conversation that he overheard between the D and a co-conspirator regarding the incoming shipment of a large quantity of coke. That conversation was also audiotaped, though critical portions of it are inaudible. The D objects to the testimony of the agent on the ground that it is not the best evidence of the conversation. Is the testimony admissible?"

Correct answer: Admissible bc the BER does not require proof of the conversation through the audiotape.

Now. I understand that the BER is not this catchall provision that requires everyone to use their best evidence all the time. I also understand that it DOES req the original (or an acceptable copy) in two situations. First, when the contents of the document/photo/whatever are AT ISSUE, and second when the wit is relying on it to testify. What I DON'T understand is why the first of these two is not implicated by these facts. To me, it would seem that the contents of the conversation are at the central issue of - oh, I don't know - the D's guilt? But clearly I'm missing something.

Anyone?

For BER to apply, the content of the document, etc, has to be at issue. A lot of times documents are used as a way to prove something OTHER than their own content. Transcript is used to prove content of conversation, ledger used to prove sales and purchases of a business. When documents are used in this fashion, then best evidence rule not at issue. Only when documents contents itself, so if content of contract itself is at issue, then applies.

In your example, the recording isn't at issue because it's being used to prove what was said, not what the recording actually is. If my example is correct, if you offered a writing that said that the audiotape is a recording of X, then the BRE would apply and require production of the recording because the best evidence of the recording is the recording. In other words, the recording is now at issue

[zot1]

For the love of god can someone please help me nail down the Best Evidence Rule? Just when I think I have it I get another question wrong. FOR EXAMPLE:

[+] Spoiler

"D is being prosecuted for conspiracy to possess with intent to distribute. At trial, govt. seeks to have its agent testify to a conversation that he overheard between the D and a co-conspirator regarding the incoming shipment of a large quantity of coke. That conversation was also audiotaped, though critical portions of it are inaudible. The D objects to the testimony of the agent on the ground that it is not the best evidence of the conversation. Is the testimony admissible?"

Correct answer: Admissible bc the BER does not require proof of the conversation through the audiotape.

Now. I understand that the BER is not this catchall provision that requires everyone to use their best evidence all the time. I also understand that it DOES req the original (or an acceptable copy) in two situations. First, when the contents of the document/photo/whatever are AT ISSUE, and second when the wit is relying on it to testify. What I DON'T understand is why the first of these two is not implicated by these facts. To me, it would seem that the contents of the conversation are at the central issue of - oh, I don't know - the D's guilt? But clearly I'm missing something.

Anyone?

The reason why is because the agent has personal knowledge of the conversation and since the critical portions of the audiotape is inaudible, it is technically not the best evidence in this situation (if that makes sense?).

[kateebee]

I am so burnt out. Having SUCH a hard time focusing on this material today, ugh. And I still haven't done the simulated essay day so that's going to be real fun tomorrow.

I still haven't done the simulated essay day either but at this point I don't think I'm going to. What is the point? I'd rather work on the areas that I'm weakest at -- do those essays -- rather than put myself through a day long test at the end of which I will be exhausted and unable to review/study anymore.

I sat for the simulated MBE, so I feel like I have an idea of what its like to be in testing conditions for that long. I dunno, maybe I am wrong? I might try to do the first half of the simulated essay day -- did people think it was really helpful?

I'm also interested in hearing whether people thought the simulated essay exam was helpful. I've been putting it off myself and just today decided I might not do it. I also didn't do the Graded MPT. I might be screwing myself, but I am a very strong writer, and I just feel like it's not the writing things out that I have a problem with and I will be able to fill in the blanks with words once I get there and get the questions in front of me. I feel like my time is better spent reviewing (and stalking TLS Forum...).

[zot1]

For the love of god can someone please help me nail down the Best Evidence Rule? Just when I think I have it I get another question wrong. FOR EXAMPLE:

[+] Spoiler

"D is being prosecuted for conspiracy to possess with intent to distribute. At trial, govt. seeks to have its agent testify to a conversation that he overheard between the D and a co-conspirator regarding the incoming shipment of a large quantity of coke. That conversation was also audiotaped, though critical portions of it are inaudible. The D objects to the testimony of the agent on the ground that it is not the best evidence of the conversation. Is the testimony admissible?"

Correct answer: Admissible bc the BER does not require proof of the conversation through the audiotape.

Now. I understand that the BER is not this catchall provision that requires everyone to use their best evidence all the time. I also understand that it DOES req the original (or an acceptable copy) in two situations. First, when the contents of the document/photo/whatever are AT ISSUE, and second when the wit is relying on it to testify. What I DON'T understand is why the first of these two is not implicated by these facts. To me, it would seem that the contents of the conversation are at the central issue of - oh, I don't know - the D's guilt? But clearly I'm missing something.

Anyone?

The reason why is because the agent has personal knowledge of the conversation and since the critical portions of the audiotape is inaudible, it is technically not the best evidence in this situation (if that makes sense?).

Never mind, the previous explanation seems better

[zot1]

I am so burnt out. Having SUCH a hard time focusing on this material today, ugh. And I still haven't done the simulated essay day so that's going to be real fun tomorrow.

I still haven't done the simulated essay day either but at this point I don't think I'm going to. What is the point? I'd rather work on the areas that I'm weakest at -- do those essays -- rather than put myself through a day long test at the end of which I will be exhausted and unable to review/study anymore.

I sat for the simulated MBE, so I feel like I have an idea of what its like to be in testing conditions for that long. I dunno, maybe I am wrong? I might try to do the first half of the simulated essay day -- did people think it was really helpful?

I'm also interested in hearing whether people thought the simulated essay exam was helpful. I've been putting it off myself and just today decided I might not do it. I also didn't do the Graded MPT. I might be screwing myself, but I am a very strong writer, and I just feel like it's not the writing things out that I have a problem with and I will be able to fill in the blanks with words once I get there and get the questions in front of me. I feel like my time is better spent reviewing (and stalking TLS Forum...).

I found it useful just to get myself used to the grind of doing so much freaking writing in one day. However, this close to the exam, I just can't see how it could be more useful than reviewing.

[UnamSanctam]

Can anyone help me with personal property and theif conveying good title?

Themis states that a truly genuine bona fide purchaser for value can prevail over the true owner of a chattel and thus, my understanding, have superior title.

Yet I just did an essay where the answer came out exactly the opposite, the answer stated that "It is irrelevant that subsequent transferees were acting in good faith" and that purchasing in good faith is not a good defense where the property is stolen property.

So I'm confused

Uh. I double checked my outline and where "iii) The bona fide purchaser truly believed that the owner who was selling the goods had the authority to do so," the owner shouldn't be able to get that property back.

[UnamSanctam]

I am so burnt out. Having SUCH a hard time focusing on this material today, ugh. And I still haven't done the simulated essay day so that's going to be real fun tomorrow.

I still haven't done the simulated essay day either but at this point I don't think I'm going to. What is the point? I'd rather work on the areas that I'm weakest at -- do those essays -- rather than put myself through a day long test at the end of which I will be exhausted and unable to review/study anymore.

I sat for the simulated MBE, so I feel like I have an idea of what its like to be in testing conditions for that long. I dunno, maybe I am wrong? I might try to do the first half of the simulated essay day -- did people think it was really helpful?

I'm also interested in hearing whether people thought the simulated essay exam was helpful. I've been putting it off myself and just today decided I might not do it. I also didn't do the Graded MPT. I might be screwing myself, but I am a very strong writer, and I just feel like it's not the writing things out that I have a problem with and I will be able to fill in the blanks with words once I get there and get the questions in front of me. I feel like my time is better spent reviewing (and stalking TLS Forum...).

I found it useful just to get myself used to the grind of doing so much freaking writing in one day. However, this close to the exam, I just can't see how it could be more useful than reviewing.

Yeah. It's good to know about when you're going to burn out, but I don't think doing it once is actually going to build any endurance.

[BelugaWhale]

Can anyone help me with personal property and theif conveying good title?

Themis states that a truly genuine bona fide purchaser for value can prevail over the true owner of a chattel and thus, my understanding, have superior title.

Yet I just did an essay where the answer came out exactly the opposite, the answer stated that "It is irrelevant that subsequent transferees were acting in good faith" and that purchasing in good faith is not a good defense where the property is stolen property.

So I'm confused

Uh. I double checked my outline and where "iii) The bona fide purchaser truly believed that the owner who was selling the goods had the authority to do so," the owner shouldn't be able to get that property back.

That's what I thought, it's question 2 from an old Virginia Exam

http://law.wm.edu/academics/howto/prepa ... Answer.pdf

[anon sequitur]

The reason why is because the agent has personal knowledge of the conversation and since the critical portions of the audiotape is inaudible, it is technically not the best evidence in this situation (if that makes sense?).

This is also how I thought of it, though beluga's explanation is also on point as far as I can tell. I really just think of BER as applying when there's an argument about the existence of certain words/numbers on a paper or a recording. It's not applicable when you're trying to prove the truth of those words. The contract said $5,000/no the contract said $500 --> BER applies

[juniormint33]

For the love of god can someone please help me nail down the Best Evidence Rule? Just when I think I have it I get another question wrong. FOR EXAMPLE:

[+] Spoiler

"D is being prosecuted for conspiracy to possess with intent to distribute. At trial, govt. seeks to have its agent testify to a conversation that he overheard between the D and a co-conspirator regarding the incoming shipment of a large quantity of coke. That conversation was also audiotaped, though critical portions of it are inaudible. The D objects to the testimony of the agent on the ground that it is not the best evidence of the conversation. Is the testimony admissible?"

Correct answer: Admissible bc the BER does not require proof of the conversation through the audiotape.

Now. I understand that the BER is not this catchall provision that requires everyone to use their best evidence all the time. I also understand that it DOES req the original (or an acceptable copy) in two situations. First, when the contents of the document/photo/whatever are AT ISSUE, and second when the wit is relying on it to testify. What I DON'T understand is why the first of these two is not implicated by these facts. To me, it would seem that the contents of the conversation are at the central issue of - oh, I don't know - the D's guilt? But clearly I'm missing something.

Anyone?

For BER to apply, the content of the document, etc, has to be at issue. A lot of times documents are used as a way to prove something OTHER than their own content. Transcript is used to prove content of conversation, ledger used to prove sales and purchases of a business. When documents are used in this fashion, then best evidence rule not at issue. Only when documents contents itself, so if content of contract itself is at issue, then applies.

In your example, the recording isn't at issue because it's being used to prove what was said, not what the recording actually is. If my example is correct, if you offered a writing that said that the audiotape is a recording of X, then the BRE would apply and require production of the recording because the best evidence of the recording is the recording. In other words, the recording is now at issue

So when I'm asking myself whether the content of something is "at issue" I should actually be asking whether we're trying to prove if the document/photo is what we're alleging it is? Can someone draw a distinction for me between when the contents of a document are clearly "at issue" and when it is clearly NOT at issue?

[hawkhill]

For the love of god can someone please help me nail down the Best Evidence Rule? Just when I think I have it I get another question wrong. FOR EXAMPLE:

Now. I understand that the BER is not this catchall provision that requires everyone to use their best evidence all the time. I also understand that it DOES req the original (or an acceptable copy) in two situations. First, when the contents of the document/photo/whatever are AT ISSUE, and second when the wit is relying on it to testify. What I DON'T understand is why the first of these two is not implicated by these facts. To me, it would seem that the contents of the conversation are at the central issue of - oh, I don't know - the D's guilt? But clearly I'm missing something.

Anyone?

For MBE purposes, I try to reason focus on the contents portion of the rule, in other words, is a party is trying to prove the actual written content of the writing? If not, the rule probably doesn't apply. Ex. A testifies the contract terms said X, but we have the actual contract available to see how the terms read, making A's testimony irrelevant/"less good" evidence of whether the contract did in fact say X.

In terms of the question you posted, the agent is testifying about the conversation's contents, yes, but not about the actual words used in the conversation--he's saying "they talked about selling drugs," not "D said the phrase 'I will sell you drugs.'" Whether he actually said the specific phrase would invoke the BER, while the general contents of the conversation do not.

[juniormint33]

The reason why is because the agent has personal knowledge of the conversation and since the critical portions of the audiotape is inaudible, it is technically not the best evidence in this situation (if that makes sense?).

This is also how I thought of it, though beluga's explanation is also on point as far as I can tell. I really just think of BER as applying when there's an argument about the existence of certain words/numbers on a paper or a recording. It's not applicable when you're trying to prove the truth of those words. The contract said $5,000/no the contract said $500 --> BER applies

This helps a little. Thanks. So say there's a recording of a jailhouse conversation. And the prosecution is saying the D said the car was green. And the defense is saying the D is heard saying the car was gray. NOW does BER apply?

[Underoath]

Finally scored the highest on a mixed MBE 74%...about to take another one to make sure it isn't a fluke.

[BelugaWhale]

The reason why is because the agent has personal knowledge of the conversation and since the critical portions of the audiotape is inaudible, it is technically not the best evidence in this situation (if that makes sense?).

This is also how I thought of it, though beluga's explanation is also on point as far as I can tell. I really just think of BER as applying when there's an argument about the existence of certain words/numbers on a paper or a recording. It's not applicable when you're trying to prove the truth of those words. The contract said $5,000/no the contract said $500 --> BER applies

This helps a little. Thanks. So say there's a recording of a jailhouse conversation. And the prosecution is saying the D said the car was green. And the defense is saying the D is heard saying the car was gray. NOW does BER apply?

No, what's at issue is the conversation (again) and not the recording.

To use this example again, if a writing stated that a recording is a recording of XYZ. The BER would then apply to the recording because what's at issue is the recording and the best evidence of it is the recording itself.

[BelugaWhale]

Also, a crim pro question.

Say a judge fails to correctly strike a juror for cause and a party has to use a preemptory to strike instead. Is this reversible error? My understanding was no because the use of a preemptory would cure any harm and the mere fact of losing a preemptory is just tough luck

[zot1]

Also, a crim pro question.

Say a judge fails to correctly strike a juror for cause and a party has to use a preemptory to strike instead. Is this reversible error? My understanding was no because the use of a preemptory would cure any harm and the mere fact of losing a preemptory is just tough luck

I couldn't find anything on point in the outline (though I could have missed it), but I don't think it would be tough luck because that peremptory challenge could have been used for a different judge. But yeah, this is all speculation with no rule