BarBri Bar Review Hangout - July 2015 Exam Forum

[redblueyellow]

Anyone else feel like it's impossible to know ALL these rules for the essays?

Reading the passing (like 65-70) answers from prior years is kind of scary, they seem to hit the rules pretty accurately... Not totally sure that I can replicate that on Tuesday, especially if it's on CA Evidence or something.

I found the opposite true. The rules on the essays (at least the model CA answers) aren't completely out there, but on the MBEs, I feel like they're testing things that I didn't even cover. The essay rules are just presented really clearly and obviously, but they're all things I've read before (somewhere).

[robinhoodOO]

Is a prior conviction of a crime involving dishonesty always admissible to impeach a witness / never in the court's discretion, even if it's more than 10 years old? Or does it passing the 10-year threshold remove the auto-admissible part and make it probably too remote or at least make it an issue for the judge to decide?

10 year threshold applies to all convictions--whether felony or dishonesty.

thank you!

The 10 year limit is not hard and fast. I believe prior convictions may still come in subject to balancing (probative value v. prejudicial effect). See Rule 609(b)

Also, it's 10 years after release OR conviction (whichever is later).

Does the CEC/Prop 8 have a 10 year thing as well? Leansheets doesn't say anything about it, but does explicitly mention it for FRE.

No. 10 year rule is FRE. CEC Rule 788 provides that all felonies come in related to moral turpitude (subject to 352 balancing, including considering "remoteness" in time). Prop 8 for crim cases then lets misdemeanors related to moral turp come in as well.

Independent from that, acts related to misdemeanors come in as prior bad acts re moral turp.

[corgibutts18]

I'm in need of some unbiased 3rd party advice. Should I drop MBE practice and focus on MEEs? My PSP only assigned mixed sets 3 and 4 before the big day. MBE is 50% where I'm at.

Mixed set 3: 44/50
Mixed set 4: 41/50

Are the other mixed sets more difficult? Should I do them in lieu of essay review in the final 2 days? Any advice is much appreciated!

[kyle010723]

I'm in need of some unbiased 3rd party advice. Should I drop MBE practice and focus on MEEs? My PSP only assigned mixed sets 3 and 4 before the big day. MBE is 50% where I'm at.

Mixed set 3: 44/50
Mixed set 4: 41/50

Are the other mixed sets more difficult? Should I do them in lieu of essay review in the final 2 days? Any advice is much appreciated!

Those scores are plenty good, no reason to do more unless you really want to.

[smokeylarue]

My leansheets says forun non coveniens never granted if P is resident of forum. Is this true?

[Tiago Splitter]

My leansheets says forun non coveniens never granted if P is resident of forum. Is this true?

Rick Freer aka god of civ pro says "almost never granted if P is a resident of the present forum." So if if this comes up on an essay I think you'd want to go through the analysis but then conclude it's not gonna happen.

[kyle010723]

Note to self, if one defendant resides in the forum state, no defendant can remove on the ground of diversity... why do I keep getting this wrong...

[musicfor18]

My leansheets says forun non coveniens never granted if P is resident of forum. Is this true?

It's not an actual rule, but it's a very strong private factor against dismissal on FNC grounds because courts are hesitant to override the P's choice of forum when he has a real interest in litigating there.

[smokeylarue]

Thanks.

Also another Q. Say P sues D1 over some contract. D1 impleads D2. Can D1 then sue D2 over something completely unrelated?

Can D2 counterclaim D1 with something completely unrelated?

[victortsoi]

Note to self, if one defendant resides in the forum state, no defendant can remove on the ground of diversity... why do I keep getting this wrong...

hmm, but they could transfer if everybody thinks its convenient?

[victortsoi]

Thanks.

Also another Q. Say P sues D1 over some contract. D1 impleads D2. Can D1 then sue D2 over something completely unrelated?

Can D2 counterclaim D1 with something completely unrelated?

I don't think so (please correct me!) but P could aggregate any unrelated claims against any D.

[gobias_inc]

Thanks.

Also another Q. Say P sues D1 over some contract. D1 impleads D2. Can D1 then sue D2 over something completely unrelated?

Can D2 counterclaim D1 with something completely unrelated?

No, it has to be related to the common nexus of operative fact in the original claim. If it was D1 asserting a non-compulsory counter-claim I THINK it doesnt have to satisfy the common nexus test.

[kyle010723]

Note to self, if one defendant resides in the forum state, no defendant can remove on the ground of diversity... why do I keep getting this wrong...

hmm, but they could transfer if everybody thinks its convenient?

At that point it would be governed by State Civ Pro since defendants cannot remove to Fed Court.

[brotherdarkness]

Thanks.

Also another Q. Say P sues D1 over some contract. D1 impleads D2. Can D1 then sue D2 over something completely unrelated?

Can D2 counterclaim D1 with something completely unrelated?

My understanding is as follows (I find it's best to separate the lawsuits):

P v. D1 --> D1 can bring any counterclaim he wants against P, whether or not arising from the same transaction or occurrence. If it arises from the same T&O, he must bring the claim. If it does not arise from the same T&O, he may bring it (provided proper SMJ).

D1 v. D2 --> D1's claim against D2 is likely going to be for contribution or indemnity. D1's first claim against D2 must arise from the same transaction or occurrence as P v. D1, but I believe D1 may bring as many additional claims as he wants against D2 (provided proper SMJ), even if those additional claims do not arise from the same T&O. Once D1 brings D2 into the suit, D2 can bring any counterclaim he wants against D1, whether or not arising from the same transaction or occurrence. If it arises from the same T&O, he must bring the claim. If it does not arise from the same T&O, he may bring it (provided proper SMJ).

[robinhoodOO]

Thanks.

Also another Q. Say P sues D1 over some contract. D1 impleads D2. Can D1 then sue D2 over something completely unrelated?

Can D2 counterclaim D1 with something completely unrelated?

No, it has to be related to the common nexus of operative fact in the original claim. If it was D1 asserting a non-compulsory counter-claim I THINK it doesnt have to satisfy the common nexus test.

But, once in the third-party defendant can bring permissive counterclaims against the third-party plaintiff.

[musicfor18]

Thanks.

Also another Q. Say P sues D1 over some contract. D1 impleads D2. Can D1 then sue D2 over something completely unrelated?

Can D2 counterclaim D1 with something completely unrelated?

My understanding is as follows (I find it's best to separate the lawsuits):

P v. D1 --> D1 can bring any counterclaim he wants against P, whether or not arising from the same transaction or occurrence. If it arises from the same T&O, he must bring the claim. If it does not arise from the same T&O, he may bring it (provided proper SMJ).

D1 v. D2 --> D1's claim against D2 is likely going to be for contribution or indemnity. D1's first claim against D2 must arise from the same transaction or occurrence as P v. D1, but I believe D1 may bring as many additional claims as he wants against D2 (provided proper SMJ), even if those additional claims do not arise from the same T&O. Once D1 brings D2 into the suit, D2 can bring any counterclaim he wants against D1, whether or not arising from the same transaction or occurrence. If it arises from the same T&O, he must bring the claim. If it does not arise from the same T&O, he may bring it (provided proper SMJ).

This is correct. Previous response was wrong. See FRCP 18 & 14. Also, common nucleus of operative fact is not the test for joinder. It's same transaction or occurrence. CNOF is for supplemental jurisdiction.

[brotherdarkness]

Thanks.

Also another Q. Say P sues D1 over some contract. D1 impleads D2. Can D1 then sue D2 over something completely unrelated?

Can D2 counterclaim D1 with something completely unrelated?

My understanding is as follows (I find it's best to separate the lawsuits):

P v. D1 --> D1 can bring any counterclaim he wants against P, whether or not arising from the same transaction or occurrence. If it arises from the same T&O, he must bring the claim. If it does not arise from the same T&O, he may bring it (provided proper SMJ).

D1 v. D2 --> D1's claim against D2 is likely going to be for contribution or indemnity. D1's first claim against D2 must arise from the same transaction or occurrence as P v. D1, but I believe D1 may bring as many additional claims as he wants against D2 (provided proper SMJ), even if those additional claims do not arise from the same T&O. Once D1 brings D2 into the suit, D2 can bring any counterclaim he wants against D1, whether or not arising from the same transaction or occurrence. If it arises from the same T&O, he must bring the claim. If it does not arise from the same T&O, he may bring it (provided proper SMJ).

This is correct. Previous response was wrong. See FRCP 18 & 14. Also, common nucleus of operative fact is not the test for joinder. It's same transaction or occurrence. CNOF is for supplemental jurisdiction.

Sweet. I'm gonna make it.

ETA -- Can you spell out the distinction between common nucleus of operative fact and same transaction or occurrence? As in, when would you have one and not the other?

[jamescastle]

Stupid question: do we bubble the MBE answer sheet with pen or pencil?

My guess is pencil. But in my state, we cannot even bring in our own pen/pencil anyway...

Someone could have made custom Number 2 pencils with full outlines on them. Can't have that nonsense.

[RaleighStClair]

Thanks.

Also another Q. Say P sues D1 over some contract. D1 impleads D2. Can D1 then sue D2 over something completely unrelated?

Can D2 counterclaim D1 with something completely unrelated?

My understanding is as follows (I find it's best to separate the lawsuits):

P v. D1 --> D1 can bring any counterclaim he wants against P, whether or not arising from the same transaction or occurrence. If it arises from the same T&O, he must bring the claim. If it does not arise from the same T&O, he may bring it (provided proper SMJ).

D1 v. D2 --> D1's claim against D2 is likely going to be for contribution or indemnity. D1's first claim against D2 must arise from the same transaction or occurrence as P v. D1, but I believe D1 may bring as many additional claims as he wants against D2 (provided proper SMJ), even if those additional claims do not arise from the same T&O. Once D1 brings D2 into the suit, D2 can bring any counterclaim he wants against D1, whether or not arising from the same transaction or occurrence. If it arises from the same T&O, he must bring the claim. If it does not arise from the same T&O, he may bring it (provided proper SMJ).

This is correct. Previous response was wrong. See FRCP 18 & 14. Also, common nucleus of operative fact is not the test for joinder. It's same transaction or occurrence. CNOF is for supplemental jurisdiction.

I assume you mean impleader. I believe "common question of law or fact" is a part of the test for permissive joinder. (The other part being T/O)

[brotherdarkness]

"Common question of law or fact" is the standard for class action lawsuits as well, yeah?

[Good Guy Gaud]

"Common question of law or fact" is the standard for class action lawsuits as well, yeah?

Yes. Typicality is also important to remember. So, say you've got like a factory who leaked toxic chemicals into a river that injured people and damaged property. Claims for medical expenses + property damages are not typical.

[musicfor18]

Thanks.

Also another Q. Say P sues D1 over some contract. D1 impleads D2. Can D1 then sue D2 over something completely unrelated?

Can D2 counterclaim D1 with something completely unrelated?

My understanding is as follows (I find it's best to separate the lawsuits):

P v. D1 --> D1 can bring any counterclaim he wants against P, whether or not arising from the same transaction or occurrence. If it arises from the same T&O, he must bring the claim. If it does not arise from the same T&O, he may bring it (provided proper SMJ).

D1 v. D2 --> D1's claim against D2 is likely going to be for contribution or indemnity. D1's first claim against D2 must arise from the same transaction or occurrence as P v. D1, but I believe D1 may bring as many additional claims as he wants against D2 (provided proper SMJ), even if those additional claims do not arise from the same T&O. Once D1 brings D2 into the suit, D2 can bring any counterclaim he wants against D1, whether or not arising from the same transaction or occurrence. If it arises from the same T&O, he must bring the claim. If it does not arise from the same T&O, he may bring it (provided proper SMJ).

This is correct. Previous response was wrong. See FRCP 18 & 14. Also, common nucleus of operative fact is not the test for joinder. It's same transaction or occurrence. CNOF is for supplemental jurisdiction.

I assume you mean impleader. I believe "common question of law or fact" is a part of the test for permissive joinder. (The other part being T/O)

No. A previous poster had said that a TPP can't bring additional claims against the TPD unless it's part of the same "common nexus of operative fact" as the P's claim against D. Common nucleus is not the test for whether any kind of joinder is permissible. It's the test for supplemental jurisdiction. Same T/O + at least one common question of fact or law is the test for joinder of parties (not joinder of claims against existing parties).

[musicfor18]

ETA -- Can you spell out the distinction between common nucleus of operative fact and same transaction or occurrence? As in, when would you have one and not the other?

CNOF is broader than same T/O. Same T/O will always also be part of a CNOF, but it's possible to have something that's not same T/O, but is still CNOF. Did that make any sense? CNOF really asks whether you would ordinarily expect to try the two claims in the same lawsuit.

[RaleighStClair]

No. A previous poster had said that a TPP can't bring additional claims against the TPD unless it's part of the same "common nexus of operative fact" as the P's claim against D. Common nucleus is not the test for whether any kind of joinder is permissible. It's the test for supplemental jurisdiction. Same T/O + at least one common question of fact or law is the test for joinder of parties (not joinder of claims against existing parties).

Got it. We're on the same page. The common "nucleus" vs. common "question" is really annoying.

[brotherdarkness]

"Common question of law or fact" is the standard for class action lawsuits as well, yeah?

Yes. Typicality is also important to remember. So, say you've got like a factory who leaked toxic chemicals into a river that injured people and damaged property. Claims for medical expenses + property damages are not typical.

Ah good catch. And I believe the full rule is that "common questions of law or fact predominate." So if these injured people were seeking compensatory damages, how would they go about doing so? Would they bring a class action against the factory to establish that the factory was negligent in leaking the toxic chemicals, and then subsequently each bring their own civil case against the factory to establish compensatory damages (using offensive issue preclusion to prevent re-litigation of the negligence issue)?

But if it was strict liability due to abnormally dangerous activity (toxic chemicals or whatever), presumably there'd be no need for the class action and each injured party would bring it's own civil case to collect compensatory damages...