Themis Bar Review Hangout - July 2016 Forum

[xfer999]

I feel stupid asking this question just two days before the exam. But are employees not in privity with their employers? I always thought they were. I ask because of this question:

[+] Spoiler

A CEO sued a catering company in federal district court under diversity jurisdiction for injuries resulting from the company’s alleged negligence in serving undercooked chicken at a business conference. Prior to trial, the judge granted the CEO’s motion for summary judgment, finding that a chef employed by the catering company had been negligent in preparing the chicken, and that the company was vicariously liable for the chef’s negligence. The catering company was only able to pay half the value of the judgment before filing for bankruptcy and dissolving. If the CEO subsequently sues the chef in the same federal court, will collateral estoppel preclude the chef from litigating his own negligence?

Answers:

No, because collateral estoppel cannot be used offensively.
Correct Answer: No, because the chef was not a party to the original action.
Yes, because issue preclusion does not require strict mutuality of parties.
You Selected: Yes, because the determination of the chef’s negligence was essential to the original judgment.

Rationale:

Answer choice B is correct. Collateral estoppel (or issue preclusion) requires that the party against whom the issue is to be precluded was a party to the original action or in privity with that party. Because the chef was not a party to the prior action, collateral estoppel cannot apply here with regard to the issue of the chef’s negligence. Answer choice A is incorrect. Although the offensive use of collateral estoppel is subject to restrictions, offensive use of collateral estoppel is not prohibited. Answer choice C is incorrect because, although issue preclusion does not require strict mutuality of parties, it does require that the party who is to be collaterally estopped (here, the chef) was a party to the original action or in privity with that party. Answer choice D is incorrect. Although the determination of an issue must have been essential to the prior judgment in order for collateral estoppel to apply with respect to that issue in the current case, and that requirement is met here, the requirement that the person who is collaterally estopped be a party to the original action or in privity with that party is not met.

That confuses me because I feel like I recently got an estoppel question wrong because I though they were not in privity and the answer seemed to indicate that they were in privity.

To my understanding, privity in the preclusion context means when the interests are aligned together to be identical or almost identical (i.e. if the chef and the catering company were co-owners) Here, the relationship is merely employment, not a co-interest in the same thing. Employers are almost always going to have adverse interests to mere employees, so it would be unfair to identify them as in a privity relationship. For preclusion, I just analyze the fairness of the transaction if I have it down to 2 responses after applying the elements. Hope this helps!

I wonder if another way to work through issue preclusion is to figure out if the defendant in the original case could have thrown the defendant in the new case under the bus. Like, the catering co could have argued, "yeah chef was negligent but we're not vicariously liable because xyz (independent contractor, outside scope of emplymt, etc.)." If so, then it's probably not precluded. Thoughts?

[minimumcontacts]

Isn't there like an internal clock in SofTest? Debating whether or not to go to Target tomorrow to buy a cheap analog watch, since clearly my Pebble won't be allowed in.

Assuming all softest products are the same, every essay exam I took in law school was with softest and there's a clock at the bottom of the screen (as well as a timer that tells you how long it's been open). My jurisdiction doesn't allow watches, which is going to drive me insane every time I look at my wrist and sigh when I realize there's no watch.

[luxxe]

Just popping in to say hello and that you guys have got this!

Used Themis last year. Was hitting about 65% on MBE before exam. Finished about 92% of the course. Passed MD on the first try (with a 150+ MBE).

My advice - Try to destress tonight/tomorrow. Keep it to a minimum of studying which should be mainly a review. If you don't know it now, you probably won't. The exam may or may not be what you are expecting but dig deep into the back of your brain and just keep writing something for the essays. Make sure you keep pace on the MBE. You'll probably get it narrowed down to two, don't over analyze it or you'll run out of time, go with your gut and pick one - trust me on this, I was one of the ones that had the infamous "every answer is a freaking D!!" exams last July. During lunch, decompress. Go somewhere quiet, away from everyone if you can. And enjoy the moment when you are FINALLY finished, because then the loooong wait for results begins

Good luck everyone!!!

Thank you!!!!

Yes! Super reassuring.

[Vantwins]

Isn't there like an internal clock in SofTest? Debating whether or not to go to Target tomorrow to buy a cheap analog watch, since clearly my Pebble won't be allowed in.

Assuming all softest products are the same, every essay exam I took in law school was with softest and there's a clock at the bottom of the screen (as well as a timer that tells you how long it's been open). My jurisdiction doesn't allow watches, which is going to drive me insane every time I look at my wrist and sigh when I realize there's no watch.

Thanks, I do not feel like watch shopping right now! I don't think the Bar Examiners are so evil that they don't want us to have a method of keeping track of our time. My analog watch doesn't have a minutes hand so it's useless.

heading to baltimore soon (a day earlier than planned) as another of my children was up at 3am puking last night. I need some sleep. My husband is the one who is all gung ho on me going back to work, so I'll let him deal with puking children on his own.

[blach0987]

...Would it be the worst decision in the world to never do the full MEE?

NY UBE, 83.2% completion overall (but the MEE has been sitting at the top of my to-do queue for like a week now, so I don't have credit for a lot of review that I have done), 69% completion of the essays, averaging 78% correct on MBE mixed sets, scored above average on every graded essay, I've written like 30 real life motions so the MPT should be fine.

I'm just generally feeling so exhausted and dead inside that I would rather stare into space and never move from the couch than write for three hours straight today. (Or, you know, ever, but I get good test adrenaline)

I feel guilty not doing it, but I also feel like I need to relax, it's not going to make a big difference, and I should try to perk myself up for test day.

Personally, at this point, I think you should do some light review and relax. You are going to do the full MEE/MPT in 1.5 days and there is no reason to exhaust yourself from that so close to the exam. Just review the MEE topics and remember that you are more prepared than you think!

I haven't really done any MEE review but hoping that I can come up with something that makes some sense.

[Hmasterflex]

Do people study between days during the exam? For example, will you go home after the first day and review for your second-day stuff?

[1down1togo]

Reached 100%. Nothing. Not even a: "Congrats! You did it!" Just- "you've reached your study goal for the day." The same crap that always pops up.

That's it. I'm done. I cannot focus anymore. Hopefully this is enough.

Good luck all!

I'm going to go drink.

[Fivedham]

Reached 100%. Nothing. Not even a: "Congrats! You did it!" Just- "you've reached your study goal for the day." The same crap that always pops up.

That's it. I'm done. I cannot focus anymore. Hopefully this is enough.

Good luck all!

I'm going to go drink.

Well that's disappointing.

Do people study between days during the exam? For example, will you go home after the first day and review for your second-day stuff?

I'm planning on reviewing some of the super obscure state-specific stuff the night before my essay days just so it's fresh in my memory.

[unidentifiable]

Reached 100%. Nothing. Not even a: "Congrats! You did it!" Just- "you've reached your study goal for the day." The same crap that always pops up.

That's it. I'm done. I cannot focus anymore. Hopefully this is enough.

Good luck all!

I'm going to go drink.

Damnit. Fuckin bummer. I'm at 99.1%, not pumped about the shitty ending.

[Steve2207]

I just hit a disappointing 54% on MBE Mixed set 19! Did anyone else find that set to be overly difficult?

I am starting to feel like all hope is lost, and I have forgotten all that I know.

[unidentifiable]

I just hit a disappointing 54% on MBE Mixed set 19! Did anyone else find that set to be overly difficult?

I am starting to feel like all hope is lost, and I have forgotten all that I know.

I'm doing that one tomorrow... shit

[mu13ski]

I just hit a disappointing 54% on MBE Mixed set 19! Did anyone else find that set to be overly difficult?

I am starting to feel like all hope is lost, and I have forgotten all that I know.

I think it has been established that the mixed sets are different for everyone. Though I did feel as though the last few mixed sets were testing on much more discrete issues.

[luxxe]

I just hit a disappointing 54% on MBE Mixed set 19! Did anyone else find that set to be overly difficult?

I am starting to feel like all hope is lost, and I have forgotten all that I know.

I think it has been established that the mixed sets are different for everyone. Though I did feel as though the last few mixed sets were testing on much more discrete issues.

Yeah. I stopped at 17 for this reason. My scores started jumping around a lot, and I'm not learning these discrete exceptions to exceptions at this point.

[salix]

Reached 100%. Nothing. Not even a: "Congrats! You did it!" Just- "you've reached your study goal for the day." The same crap that always pops up.

That's it. I'm done. I cannot focus anymore. Hopefully this is enough.

Good luck all!

I'm going to go drink.

Well that's disappointing.

Almost at 100%, but because I was a little behind, I still have one "Review everything you've done this summer" task sitting there that I can't check off until tomorrow (in addition to the 'travel and rest' task, but I guess that doesn't get any points if you're already at 100%). I had hoped for little fireworks, or an explosion of smiley faces, or a fanfare of trumpets! I would have stayed up until midnight, just to check it off and have my little Themis party. I would have killed the time by studying extra - maybe one extra rule statement or exception would have stuck in my brain. But now...knowing that there's nothing... sigh. There's just no reason to go on.

If I fail by one point, I blame you for spoiling it for me. And Themis, of course.

j/k. Joining you for the drink.

Cheers to all of us!

[Steve2207]

I just hit a disappointing 54% on MBE Mixed set 19! Did anyone else find that set to be overly difficult?

I am starting to feel like all hope is lost, and I have forgotten all that I know.

I think it has been established that the mixed sets are different for everyone. Though I did feel as though the last few mixed sets were testing on much more discrete issues.

This set is identical to the 100 additional MBE questions in the back of the practice exams book. Should be the same for everyone.

[ndp1234]

I just hit a disappointing 54% on MBE Mixed set 19! Did anyone else find that set to be overly difficult?

I am starting to feel like all hope is lost, and I have forgotten all that I know.

I think it has been established that the mixed sets are different for everyone. Though I did feel as though the last few mixed sets were testing on much more discrete issues.

This set is identical to the 100 additional MBE questions in the back of the practice exams book. Should be the same for everyone.

This was not true for me. The mixed set 19 was different than the 100 questions in the book.

FWIW, Themis decided to go easy on me that set with a 76%. However, the set before - 60%. Themis giveth, Themis taketh.

[Hmasterflex]

Forced myself to do a full MPT now reviewing MBE stuff. I'm spacing out hard. Not sure if I'll get the multiple choice done today

[ndp1234]

Reached 100%. Nothing. Not even a: "Congrats! You did it!" Just- "you've reached your study goal for the day." The same crap that always pops up.

That's it. I'm done. I cannot focus anymore. Hopefully this is enough.

Good luck all!

I'm going to go drink.

Themis made sure I stop at exactly 99.8% for today so I don't find out about my non-celebration until tomorrow. I kid you not.

[WinSome]

Took a nice half-day today, and it made all the difference. I was completely zoning out reviewing the past couple of days and now I feel much better. I took a nice long walk in the park, cleared my head, and caught some Pokemon. I'd seriously recommend taking at least part of tomorrow off if your even close to burning out. I plan on doing some review in the morning, hitting 100% (apparently with no fanfare, wtf Themis!), and then taking a nice long drive to my hotel. I might do some reviewing tomorrow night before bed, but nothing too heavy.

Now, time to grab a drink, watch some HBO, and go to bed early.

Good luck everyone! We got this!

[Kragoth180]

Commercial Paper Question

If maker makes a note payable to the order of payee (issues the note), and payee gives value, in GF, w/o notice of infirmities, payee is a HDC, correct?

If payee sells this note for value to transferee without indorsing it (hence, not transfer), and transferee takes it in GF, transferee has the right of specific performance to obtain indorsement. By obtaining an indorsement, the transfer requirement for being a holder is satisfied...

Question:
The Themis essay has that the transferee, if not having notice of infirmities, is a HDC.
Is it possible that the transferee is also a HDC because of the Shelter Rule? Just curious....

[rambleon65]

Commercial Paper Question

If maker makes a note payable to the order of payee (issues the note), and payee gives value, in GF, w/o notice of infirmities, payee is a HDC, correct?

If payee sells this note for value to transferee without indorsing it (hence, not transfer), and transferee takes it in GF, transferee has the right of specific performance to obtain indorsement. By obtaining an indorsement, the transfer requirement for being a holder is satisfied...

Question:
The Themis essay has that the transferee, if not having notice of infirmities, is a HDC.
Is it possible that the transferee is also a HDC because of the Shelter Rule? Just curious....

Shelter Rule. Yes. Transferee is a HDC if a transferor is a HDC, absent fraud by transferee.

[Kragoth180]

Commercial Paper Question

If maker makes a note payable to the order of payee (issues the note), and payee gives value, in GF, w/o notice of infirmities, payee is a HDC, correct?

If payee sells this note for value to transferee without indorsing it (hence, not transfer), and transferee takes it in GF, transferee has the right of specific performance to obtain indorsement. By obtaining an indorsement, the transfer requirement for being a holder is satisfied...

Question:
The Themis essay has that the transferee, if not having notice of infirmities, is a HDC.
Is it possible that the transferee is also a HDC because of the Shelter Rule? Just curious....

Shelter Rule. Yes. Transferee is a HDC if a transferor is a HDC, absent fraud by transferee.

Sweet deal, thanks!

[Vantwins]

Do people study between days during the exam? For example, will you go home after the first day and review for your second-day stuff?

Just a bit because MD has a lot of distinctions/follows minority rule, just want to get my mind set for MBE defaults which are often opposite of MD.

[Virindi]

Under the common law, are undiscovered/unanticipated trespassers owed a duty of care?

The outline says:

c) Undiscovered trespassers
Land possessors generally owe no duty to undiscovered trespassers, nor do they have a duty to inspect their property for evidence of trespassers.

The VERY SAME OUTLINE, a few paragraphs away, states:

"1) Traditional approach
A landowner is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers."

Furthermore, some of the themis answers state no duty is owed, and some state a duty is owed. This is driving me nuts.

the outline sucks

the first rule you quoted is about undiscovered trespassers

the second rule is about discovered or known trespassers

The rule for discovered/known trespassers is to warn/remedy about artificial and hidden dangers I thought?

it seemed like you hit four rules in one sentence.

there's the attractive nuisance doctrine - where you have to make unreasonable dangerous artificial conditions on your property safe if you know children will be trespassing.

then no willful/wanton misconduct (traps and shit) for discovered/expected trespassers

then duty to inspect, fix, and protect business guests (invitees)

and a duty to warn about concealed dangers for your friends (licensees)

[Rahviveh]

Under the common law, are undiscovered/unanticipated trespassers owed a duty of care?

The outline says:

c) Undiscovered trespassers
Land possessors generally owe no duty to undiscovered trespassers, nor do they have a duty to inspect their property for evidence of trespassers.

The VERY SAME OUTLINE, a few paragraphs away, states:

"1) Traditional approach
A landowner is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers."

Furthermore, some of the themis answers state no duty is owed, and some state a duty is owed. This is driving me nuts.

the outline sucks

the first rule you quoted is about undiscovered trespassers

the second rule is about discovered or known trespassers

The rule for discovered/known trespassers is to warn/remedy about artificial and hidden dangers I thought?

it seemed like you hit four rules in one sentence.

there's the attractive nuisance doctrine - where you have to make unreasonable dangerous artificial conditions on your property safe if you know children will be trespassing.

then no willful/wanton misconduct (traps and shit) for discovered/expected trespassers

then duty to inspect, fix, and protect business guests (invitees)

and a duty to warn about concealed dangers for your friends (licensees)

For attractive nuisance, do you actually have to fix the condition or can you just warn?