Themis Bar Review Hangout - July 2015 Exam Forum

[Confused7]

CivPro question:

When requesting a deposition or interrogatory of a non-party witness, what is the procedure? When do you need a subponea and/or do you have to get court approval?

Deposition - you need notice to depose a party. If you need to depose a non-party witness, you need a subpoena. There are 2 kinds of subpoena with long Latin names. One is for deposing a non-party witness and the other is to require anyone to bring documents to the deposition. You need court approval to depose more than 11 people or to depose a witness more than once.

Interrogatory - you are limited to 25 and can only serve them on the party. Though for matrimonial actions, I think you can serve an interrogatory on non-party witnesses who can speak to the financial situation of the spouses. You need court approval if you have more than 25 interrogatories.

This was perfect, thank you

No problem! Not sure if you caught it but I made a minor edit to my post above. You also need court approval to depose anyone before mandatory disclosures are given.

[sd5289]

CivPro question:

When requesting a deposition or interrogatory of a non-party witness, what is the procedure? When do you need a subponea and/or do you have to get court approval?

Deposition - you need notice to depose a party. If you need to depose a non-party witness, you need a subpoena. There are 2 kinds of subpoena with long Latin names. One is for deposing a non-party witness and the other is to require anyone to bring documents to the deposition. You need court approval to depose more than 11 people or to depose a witness more than once.

Interrogatory - you are limited to 25 and can only serve them on the party. Though for matrimonial actions, I think you can serve an interrogatory on non-party witnesses who can speak to the financial situation of the spouses. You need court approval if you have more than 25 interrogatories.

This was perfect, thank you

No problem! Not sure if you caught it but I made a minor edit to my post above. You also need court approval to depose anyone before mandatory disclosures are given.

Off the top of my head I remember subpoena duces tecum (or some fuckery like that) means production of documents. I forget the other one.

I'm also exhausted and half-tempted to be done for the night and play video games.

[Confused7]

Off the top of my head I remember subpoena duces tecum (or some fuckery like that) means production of documents. I forget the other one.

I'm also exhausted and half-tempted to be done for the night and play video games.

Haha, yeah I think you're right. Though I can't stuff those silly names into my brain anymore so I'm just going to say fuck it for the test. :X

[sp1kedrat]

fuck i just realized i completely forgot to study ny civil practice...is it worth trying to cram it all in one day or should i just give up and pray that theres no essay related to it? HELP

[Confused7]

fuck i just realized i completely forgot to study ny civil practice...is it worth trying to cram it all in one day or should i just give up and pray that theres no essay related to it? HELP

It's alright - don't panic. I actually think it'd be helpful if we could come up with a list of important NY Civ Pro stuff to study...here's what I think are the important points. They can definitely be done in 1 day if you commit to it.

1) Standards for summary judgment and motion to dismiss for failure to state a claim (similar to fed standards)
2) Statute of limitations for various actions. This is ANNOYING as fuck to memorize but I think here are the main points:
- Negligence claims usually 3 years
- Contracts are usually 6 years, except contracts for a sale of goods is 4 years
- Intentional torts are 1 year
- Actions against municipalities are 1 year and 90 days (and you have to give 90 days notice to municipality)
3) Provisional remedies - attachment, notice of pendency, receivership, temporary restraining order, and preliminary injunctions.
4) NY Supreme Court has jurisdiction over divorce + distribution of marital property (NOT Family Court).
5) Only court with jurisdiction for suits against NY state itself is Court of Claims.

Feel free to add on to the list. The NY Civ Pro outline is long, but if you just hone in a couple of issues it should be fine!

[sd5289]

fuck i just realized i completely forgot to study ny civil practice...is it worth trying to cram it all in one day or should i just give up and pray that theres no essay related to it? HELP

No worries.

According to the SmartBarPrep outline (which has been amazing), the biggest subjects for NY Practice have definitely been:

motion for summary judgment - standard is whether there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. SJ can be granted for either P or D, and can be granted in part (say, torts claim where liability is subject to SJ but the question of damages goes to the jury). According to SmartBarPrep, this has shown up on half of the exams.

motion to dismiss for failure to state a claim - standard is whether, after viewing non-movant's allegations as true, whether there is any basis for relief based upon those facts (slightly different from federal Civ Pro standard). According to SmartBarPrep, this has shown about 1/3 of the time.

Some SOL's you should keep in mind:

Art. 78 proceedings = 4 months
intentional torts = 1 yr
tort liability against municipality = 1 yr, 90 days (requires 90 days notice to municipality)
med mal = 2 1/2 yrs (unless foreign instrument, than 1 yr upon discovery or should have discovered)
- also there are some rules on continuous treatment tolling the period
negligence = 3 yrs from date of injury
strict products liability = 3 yrs
K for sale of goods = 4 yrs (note parties can K down to no less than 1 yr, however can't K up)
breach of warranty = 4 yrs
other K's = 6 yrs

I would say of the Ct jurisdictions, remember that Supreme Court is a trial court, but also has original jurisdiction over divorce actions (reason I bring it up is it could show up in either the NYMC or a Family Law essay). Ct of Appeals is the highest court, and normally reviews matters of law, but can also review matters of fact in defamation case (the latter part came up in a NYMC question because why not).

Hope this helps!

ETA: scooped!

For everyone helping in this thread:

[sp1kedrat]

wow thanks so much guys

[jkpolk]

fuck i just realized i completely forgot to study ny civil practice...is it worth trying to cram it all in one day or should i just give up and pray that theres no essay related to it? HELP

Right there with you. I'm cramming it tomorrow. Figure a once over is better than nothing!

[Lawbro]

I'm cramming NY Practice now too. Put it off because every time I looked at the 50 page "short" outline I started falling asleep.

[hadisious]

Alright I've finally got one, could use some insight

[+] Spoiler

A driver negligently drove his car into a pedestrian, breaking her leg. The pedestrian's leg was put in a cast, and she used crutches to get about. While shopping at the local supermarket, the pedestrian non-negligently placed one of her crutches on a banana peel that had been negligently left on the floor by the manager of the supermarket's produce department. The pedestrian's crutch slipped on the peel, and she fell to the floor, breaking her arm. Had the pedestrian stepped on the banana peel at a time when she did not have to use crutches, she would have regained her balance.
The pedestrian sued the driver and the supermarket for her injuries.
The pedestrian will be able to recover from

A The driver, for her broken leg only.
B The driver, for both of her injuries, and the supermarket, for her broken arm only.
C The supermarket, for both of her injuries.
D The driver, for her broken leg only, and the supermarket, for her broken arm only.

Answer choice B is correct. Generally, a defendant is liable for harm caused by foreseeable intervening forces that occur between the time of the defendant’s act and the plaintiff’s injury. When an intervening force is unforeseeable, a defendant will still be liable for his acts if the result was nevertheless foreseeable. Subsequent negligence usually is considered a foreseeable intervening force, but even if the supermarket’s negligence were not foreseeable, the result—plaintiff’s slipping and falling as a consequence of using crutches—was foreseeable.

I know that almost everything is foreseeable when it comes to later injuries due to an injury from negligence. However, this seemed way disconnected to me. Is this just a bad Themis question? Or am I not thinking broadly enough? I thought once someone was patched up and on the road to recovery, any further negligence isn't attributable to the original tortfeasor?

[lilypad144]

Alright I've finally got one, could use some insight

[+] Spoiler

A driver negligently drove his car into a pedestrian, breaking her leg. The pedestrian's leg was put in a cast, and she used crutches to get about. While shopping at the local supermarket, the pedestrian non-negligently placed one of her crutches on a banana peel that had been negligently left on the floor by the manager of the supermarket's produce department. The pedestrian's crutch slipped on the peel, and she fell to the floor, breaking her arm. Had the pedestrian stepped on the banana peel at a time when she did not have to use crutches, she would have regained her balance.
The pedestrian sued the driver and the supermarket for her injuries.
The pedestrian will be able to recover from

A The driver, for her broken leg only.
B The driver, for both of her injuries, and the supermarket, for her broken arm only.
C The supermarket, for both of her injuries.
D The driver, for her broken leg only, and the supermarket, for her broken arm only.

Answer choice B is correct. Generally, a defendant is liable for harm caused by foreseeable intervening forces that occur between the time of the defendant’s act and the plaintiff’s injury. When an intervening force is unforeseeable, a defendant will still be liable for his acts if the result was nevertheless foreseeable. Subsequent negligence usually is considered a foreseeable intervening force, but even if the supermarket’s negligence were not foreseeable, the result—plaintiff’s slipping and falling as a consequence of using crutches—was foreseeable.

I know that almost everything is foreseeable when it comes to later injuries due to an injury from negligence. However, this seemed way disconnected to me. Is this just a bad Themis question? Or am I not thinking broadly enough? I thought once someone was patched up and on the road to recovery, any further negligence isn't attributable to the original tortfeasor?

I think the entire premise behind this question is this line - "Had the pedestrian stepped on the banana peel at a time when she did not have to use crutches, she would have regained her balance."

I agree with you that it is totally disconnected but you just have to think about it like defendant negligence ===> crutches ===> crutches caused the slip ===> defendant's negligence caused the slip.

If she had set the crutches down and was walking down the aisle and slipped on the banana, different story.

Totally me just rambling on but that's how I think about these types of foreseeability questions. I always think very broadly with them.

[somuchbooty]

I've given up on essays. Elite MBE or fail for me. It's not even a question. I got a choice of law prompt and literally couldn't think of a thing to write. Just lol.

[zot1]

Raise your hand if you haven't done a lot today and feel super guilty about it but not guilty enough to actually do something about it!

*Slowly raises hand*

I'm done soon, 2 sets of 50 MBE questions and maybe a secured transactions essay later. Dear God I just want to have a beer and fall asleep by the pool.

Yes, yes, and yes. I've decided not to do anymore MBEs or essays and am literally spending the time now until forever rereading my outlines.

I'm drinking wine and watching The Goonies, y'all.

[zot1]

Random (and maybe dumb) question, but are we supposed to download the exam ahead of time or at the site?

[Confused7]

Random (and maybe dumb) question, but are we supposed to download the exam ahead of time or at the site?

Good question. I actually have 0 idea how the bar works.

[sd5289]

Random (and maybe dumb) question, but are we supposed to download the exam ahead of time or at the site?

Good question. I actually have 0 idea how the bar works.

I looked on my SofTest and it looks like I've downloaded both the AM and PM portions. Try logging on (with your BOLE ID and password they emailed way back when) and then downloading the "exams."

Also, I see your wine and raise you a mimosa. Because I want one.

[Underoath]

I've given up on essays. Elite MBE or fail for me. It's not even a question. I got a choice of law prompt and literally couldn't think of a thing to write. Just lol.

It really isn't lol, but LOL because the same thing happens to me.

[sd5289]

How I feel about these next few days...

[Confused7]

Random (and maybe dumb) question, but are we supposed to download the exam ahead of time or at the site?

Good question. I actually have 0 idea how the bar works.

I looked on my SofTest and it looks like I've downloaded both the AM and PM portions. Try logging on (with your BOLE ID and password they emailed way back when) and then downloading the "exams."

Also, I see your wine and raise you a mimosa. Because I want one.

Are we supposed to get an email telling us that the AM and PM exam portions are uploaded? I never got those. But when I click on "Take Exam" in SofTest, it shows the AM and PM portions as being under "Available" tests. Is this what everyone else sees?

[zot1]

Random (and maybe dumb) question, but are we supposed to download the exam ahead of time or at the site?

Good question. I actually have 0 idea how the bar works.

I looked on my SofTest and it looks like I've downloaded both the AM and PM portions. Try logging on (with your BOLE ID and password they emailed way back when) and then downloading the "exams."

Also, I see your wine and raise you a mimosa. Because I want one.

Are we supposed to get an email telling us that the AM and PM exam portions are uploaded? I never got those. But when I click on "Take Exam" in SofTest, it shows the AM and PM portions as being under "Available" tests. Is this what everyone else sees?

I checked and see that Tuesday's exam is there. Nothing else.

I see your mimosa and raise you another bottle of wine

[sd5289]

^ Yeah I don't remember downloading anything, but the AM and PM sessions are there, so I'm assuming that means we're good.

And yay wine and mimosas! First order of business after this nonsense is over is a classic drunk brunch ala NYC style.

[Nanosoft]

Since you guys are talking about downloading the exam, and since others are panicking, here's something for everyone :

I'm hand-writing this fucking thing...and I've been doing everything on my computer all summer.

PA Performance Test + two essays in the morning, 4 essays in the afternoon...yikes. I hand wrote in law school so it felt natural not to switch...but maybe I should have done more practice before the bar. My hand is going to fall off.

[adevine39]

Raise your hand if you haven't done a lot today and feel super guilty about it but not guilty enough to actually do something about it!

*Slowly raises hand*

I'm done soon, 2 sets of 50 MBE questions and maybe a secured transactions essay later. Dear God I just want to have a beer and fall asleep by the pool.

Yes, yes, and yes. I've decided not to do anymore MBEs or essays and am literally spending the time now until forever rereading my outlines.

I'm drinking wine and watching The Goonies, y'all.

You weren't at Asser Levy Rec center watching it outside were you? I took the evening off and watched Goonies there with my wife. Totally worth it.

[Nanosoft]

I've given up on essays. Elite MBE or fail for me. It's not even a question. I got a choice of law prompt and literally couldn't think of a thing to write. Just lol.

I feel your pain.

These PA non-MBE essay topics really are shit, and they feel never-ending. Partnerships....Corporations.... Wills....Trust....Federal Income Tax....Family Law....Employment Discrimination, etc etc etc.

Our state director guy sent out an email telling us what should show up and what should not...my only hope is that I'm not thrown a curve ball.

[Pleasye]

Text exchange with a friend:

Friend: hey I'm going to a bar by your house come out!!!

Me: lol I would love to but I'm taking the bar on Tuesday so I'm studying

Friend: I've been studying all week too! My real estate exam is on the 3rd.



(Inexplicable rage at the comparison)