2018 February CA Bar Forum

[Bla Bla Bla Blah]

I agree with no free speech. Also think the epc was a stretch.

Anyone else invalidate the codicil for lack of capacity?

Why would you have? Both the will and codicil sections of the question explicitly said that they were validly executed. Therefore, we were to assume that capacity and formalities had been met. That may leave some question as to intent, but legal capacity was a given.

[Bla Bla Bla Blah]

I am drunk. As for this free speech analysis you mentioned, it's not totally wrong. There is case law to suggest that the government does have some free speech protection. See Walker v. Sons of Confederate Veterans. The sign may have been protected, thus Constitutional, under the First Amendment. So free speech analysis wasn't irrelevant or a "wrong" way of looking at the problem. It should earn you some points.

I thought it was worth mentioning, but not as one of the main arguments to discuss. The main argument on that issue was pursuant to the Lemon Test (Secular purpose, promotes or inhibits, excessive entanglement). However, there was a side argument as to whether a prison cafeteria can be considered a public forum. If so, and if the religious expressions were put there by the prisoners and not the state, then a free speech analysis would follow. That argument relied on quite a few ifs that didn't seem to have support in the essay prompt, however.

[anon0515]

Also did not think Free Speech was implicated and focused on the Lemon factors. Did mention SL on the dog question along with trespass.

I hope I'm just remembering incorrectly, but did the tort questions ask for only causes of action and defenses or also damages as well? I'm suddenly in a panic I needed to talk about potential damages that could be recovered for each and that in a rush I glossed over that call of the question.

On the wills question, I just did not have the law memorized well enough and botched the rule statements on a few interests, which led to the wrong final distribution outcome... I still wrote an organized essay with analysis, it just is wrong for two of the interests. Have any retakers done this before and how does it impact your essay score? Is that a guaranteed 45?

On the MBE, felt like I was down to two and making an educated guess on at least 50-60% of the questions. Also was flustered and answered some easy questions wrong because I didn't have exceptions memorized well enough. I've scored well on the MBE before, but not so sure this time. Luckily we won't have as long of a wait on results as July takers.

[scard]

That question revolves around free exercise clause (tea), establishment clause (lemon test) for the quotes on the wall, and free speech-content based restriction- incitement of illegal activity (book).

You don’t mention public forums with content based restrictions, those are for content neutral restrictions and would require a TPM analysis which would be irrelevant here.

The Wills question definitly stayed both the will and codicil were valid, no need to challenge or establish either documents validity.

[Bla Bla Bla Blah]

Also did not think Free Speech was implicated and focused on the Lemon factors. Did mention SL on the dog question along with trespass.

I hope I'm just remembering incorrectly, but did the tort questions ask for only causes of action and defenses or also damages as well? I'm suddenly in a panic I needed to talk about potential damages that could be recovered for each and that in a rush I glossed over that call of the question.

On the wills question, I just did not have the law memorized well enough and botched the rule statements on a few interests, which led to the wrong final distribution outcome... I still wrote an organized essay with analysis, it just is wrong for two of the interests. Have any retakers done this before and how does it impact your essay score? Is that a guaranteed 45?

On the MBE, felt like I was down to two and making an educated guess on at least 50-60% of the questions. Also was flustered and answered some easy questions wrong because I didn't have exceptions memorized well enough. I've scored well on the MBE before, but not so sure this time. Luckily we won't have as long of a wait on results as July takers.

I thought about SL, but ultimately didn't go for it. The dog never bit anyone.

There was the intentional trespass, and the question of whether the dogs trespass was unintentional or negligent--it was at least negligent.

I also noticed the 10 years issue, which was thrown in there. Wasn't a huge issue to get sidetracked on, but worth mentioning that he never possessed the land for adverse possession, and prescriptive easement elements (which I brain farted on by calling it an implied easement, haha!).

The torts question only requested claims and defenses. I'm not sure that the call of any questions explicitly requested remedies, outside of the question on whether the property-contract quitclaim deed could be rescinded in question one.

The wills question had so many different players to analyze the outcome for, and one main player who either accepted the fact that she wasn't included (very unlikely) in which case the will worked out the way it was stated, or inherited intestate due to being omitted or through the widow's election. Once that analysis was done, I felt (for the most part, and outside of smaller CA law issues related to adoption and whether the first wife's daughter had a claim--there was no per stirpes language), it was a race to get through the analysis and on to the PT, in my opinion.

On the MBE, I feel like what an earlier poster said applies to me too. The morning portion was a breeze. The afternoon session was ridiculous. Almost all the questions in my afternoon were multi-paragraph, with open ended prompts, and answers that were like splitting hairs. Lots of criminal procedure, evidence, and civil procedure in my afternoon session.

Lots of very nuanced questions, that relied on very hidden issues (in very complicated and long fact patterns) of whether right to council had attached, whether an objection did or did not prohibit an an off-the-wall procedure that wasn't commonly tested through Adaptibar or included in other study materials, and whether something such as the prior testimony exception can be used where a trial testimony ended in a settlement, ambiguously at the close of evidence (with no mention of a cross-examination, and possibly referring to simply the evidence that was discussed, or the close of all evidence), and where the witness was unavailable.

[Bla Bla Bla Blah]

That question revolves around free exercise clause (tea), establishment clause (lemon test) for the quotes on the wall, and free speech-content based restriction- incitement of illegal activity (book).

You don’t mention public forums with content based restrictions, those are for content neutral restrictions and would require a TPM analysis which would be irrelevant here.

The Wills question definitly stayed both the will and codicil were valid, no need to challenge or establish either documents validity.

You don't mention content based restrictions in a public forum analysis?!? You mean that a public forum analysis doesn't take into account whether subject or viewpoint based expressions of free speech matter? Time place and manner restrictions only matter where the state has imposed a restriction, and whether it has left adequate alternative avenues of expression available at the end of it all. However, where the cafeteria can be considered a public forum, a private party (prisoners) could very certainly express religious views (without a TPM analysis) and it would be entirely okay.

Book relied on whether the prohibition was content specific, and if not, whether it was motivated by an arbitrary decision aimed at the content.

Tea relied on whether it was content specific, and if not, whether it was due to a regulation of general applicability, neutral as to content, and therefore the effects were incidental.

[Mxmasterr]

Also did not think Free Speech was implicated and focused on the Lemon factors. Did mention SL on the dog question along with trespass.

I hope I'm just remembering incorrectly, but did the tort questions ask for only causes of action and defenses or also damages as well? I'm suddenly in a panic I needed to talk about potential damages that could be recovered for each and that in a rush I glossed over that call of the question.

On the wills question, I just did not have the law memorized well enough and botched the rule statements on a few interests, which led to the wrong final distribution outcome... I still wrote an organized essay with analysis, it just is wrong for two of the interests. Have any retakers done this before and how does it impact your essay score? Is that a guaranteed 45?

On the MBE, felt like I was down to two and making an educated guess on at least 50-60% of the questions. Also was flustered and answered some easy questions wrong because I didn't have exceptions memorized well enough. I've scored well on the MBE before, but not so sure this time. Luckily we won't have as long of a wait on results as July takers.

I thought about SL, but ultimately didn't go for it. The dog never bit anyone.

There was the intentional trespass, and the question of whether the dogs trespass was unintentional or negligent--it was at least negligent.

I also noticed the 10 years issue, which was thrown in there. Wasn't a huge issue to get sidetracked on, but worth mentioning that he never possessed the land for adverse possession, and prescriptive easement elements (which I brain farted on by calling it an implied easement, haha!).

The torts question only requested claims and defenses. I'm not sure that the call of any questions explicitly requested remedies, outside of the question on whether the property-contract quitclaim deed could be rescinded in question one.

The wills question had so many different players to analyze the outcome for, and one main player who either accepted the fact that she wasn't included (very unlikely) in which case the will worked out the way it was stated, or inherited intestate due to being omitted or through the widow's election. Once that analysis was done, I felt (for the most part, and outside of smaller CA law issues related to adoption and whether the first wife's daughter had a claim--there was no per stirpes language), it was a race to get through the analysis and on to the PT, in my opinion.

On the MBE, I feel like what an earlier poster said applies to me too. The morning portion was a breeze. The afternoon session was ridiculous. Almost all the questions in my afternoon were multi-paragraph, with open ended prompts, and answers that were like splitting hairs. Lots of criminal procedure, evidence, and civil procedure in my afternoon session.

Lots of very nuanced questions, that relied on very hidden issues (in very complicated and long fact patterns) of whether right to council had attached, whether an objection did or did not prohibit an an off-the-wall procedure that wasn't commonly tested through Adaptibar or included in other study materials, and whether something such as the prior testimony exception can be used where a trial testimony ended in a settlement, ambiguously at the close of evidence (with no mention of a cross-examination, and possibly referring to simply the evidence that was discussed, or the close of all evidence), and where the witness was unavailable.

You should have ended up with 0 money in the estate at the end. Basically the wills answer should have analyzed omitted spouse: who gets her intestate share of 100% cp, and 1/3 sp, the omitted/adopted child who gets an instate share of the SP. Then you should have analyzed whether the daughter could claim through her deceased mother through anti lapse, i missed this but the answer was no, because the will had a survival component. Otherwise there were issues of adoption, acts of independents significance and whether the workers could take which the could. I think the question was testing mostly on whtehr you knew how to work the omitted spouse share (which is different then a forced share) and the omitted child share.

[Mxmasterr]

Also did not think Free Speech was implicated and focused on the Lemon factors. Did mention SL on the dog question along with trespass.

I hope I'm just remembering incorrectly, but did the tort questions ask for only causes of action and defenses or also damages as well? I'm suddenly in a panic I needed to talk about potential damages that could be recovered for each and that in a rush I glossed over that call of the question.

On the wills question, I just did not have the law memorized well enough and botched the rule statements on a few interests, which led to the wrong final distribution outcome... I still wrote an organized essay with analysis, it just is wrong for two of the interests. Have any retakers done this before and how does it impact your essay score? Is that a guaranteed 45?

On the MBE, felt like I was down to two and making an educated guess on at least 50-60% of the questions. Also was flustered and answered some easy questions wrong because I didn't have exceptions memorized well enough. I've scored well on the MBE before, but not so sure this time. Luckily we won't have as long of a wait on results as July takers.

I thought about SL, but ultimately didn't go for it. The dog never bit anyone.

There was the intentional trespass, and the question of whether the dogs trespass was unintentional or negligent--it was at least negligent.

I also noticed the 10 years issue, which was thrown in there. Wasn't a huge issue to get sidetracked on, but worth mentioning that he never possessed the land for adverse possession, and prescriptive easement elements (which I brain farted on by calling it an implied easement, haha!).

The torts question only requested claims and defenses. I'm not sure that the call of any questions explicitly requested remedies, outside of the question on whether the property-contract quitclaim deed could be rescinded in question one.

The wills question had so many different players to analyze the outcome for, and one main player who either accepted the fact that she wasn't included (very unlikely) in which case the will worked out the way it was stated, or inherited intestate due to being omitted or through the widow's election. Once that analysis was done, I felt (for the most part, and outside of smaller CA law issues related to adoption and whether the first wife's daughter had a claim--there was no per stirpes language), it was a race to get through the analysis and on to the PT, in my opinion.

On the MBE, I feel like what an earlier poster said applies to me too. The morning portion was a breeze. The afternoon session was ridiculous. Almost all the questions in my afternoon were multi-paragraph, with open ended prompts, and answers that were like splitting hairs. Lots of criminal procedure, evidence, and civil procedure in my afternoon session.

Lots of very nuanced questions, that relied on very hidden issues (in very complicated and long fact patterns) of whether right to council had attached, whether an objection did or did not prohibit an an off-the-wall procedure that wasn't commonly tested through Adaptibar or included in other study materials, and whether something such as the prior testimony exception can be used where a trial testimony ended in a settlement, ambiguously at the close of evidence (with no mention of a cross-examination, and possibly referring to simply the evidence that was discussed, or the close of all evidence), and where the witness was unavailable.

the dog didn't bite anyone yes. But it damaged the land by digging a hole in it. Negligence and Strict liability can apply to property damage as well as personal injury. I missed it, but i think a full on negligence and strict liaiblity analysis could have been done for land damage.

[Bla Bla Bla Blah]

You should have ended up with 0 money in the estate at the end. Basically the wills answer should have analyzed omitted spouse: who gets her intestate share of 100% cp, and 1/3 sp, the omitted/adopted child who gets an instate share of the SP. Then you should have analyzed whether the daughter could claim through her deceased mother through anti lapse, i missed this but the answer was no, because the will had a survival component. Otherwise there were issues of adoption, acts of independents significance and whether the workers could take which the could. I think the question was testing mostly on whtehr you knew how to work the omitted spouse share (which is different then a forced share) and the omitted child share.

Nice analysis. Feel pretty good about it all if you saw and discussed this too. Anti-lapse didn't apply, and exactly for the reason you stated. The intent as to the workers was not limited to whether they were working at the time the will was executed, but was contingent on who was there at time of testators death. And while the omitted child share was very important,it was less important to the spouse due to the widows election--but you're right about the importance of discussing it. Thanks for confirming the 1/3 sp issue... was a bit worried I had that wrong for the spouse since my study materials only analyzed this where there were two remaining children, and not three.

[scard]

That question revolves around free exercise clause (tea), establishment clause (lemon test) for the quotes on the wall, and free speech-content based restriction- incitement of illegal activity (book).

You don’t mention public forums with content based restrictions, those are for content neutral restrictions and would require a TPM analysis which would be irrelevant here.

The Wills question definitly stayed both the will and codicil were valid, no need to challenge or establish either documents validity.

You don't mention content based restrictions in a public forum analysis?!? You mean that a public forum analysis doesn't take into account whether subject or viewpoint based expressions of free speech matter? Time place and manner restrictions only matter where the state has imposed a restriction, and whether it has left adequate alternative avenues of expression available at the end of it all. However, where the cafeteria can be considered a public forum, a private party (prisoners) could very certainly express religious views (without a TPM analysis) and it would be entirely okay.

Book relied on whether the prohibition was content specific, and if not, whether it was motivated by an arbitrary decision aimed at the content.

Tea relied on whether it was content specific, and if not, whether it was due to a regulation of general applicability, neutral as to content, and therefore the effects were incidental.

No, for the quotes on the wall I analyzed thru the establishment clause arguing that although it Had a secular purpose it advanced one religion over others etc and did a lemon test analysis.

For the tea, I did a free exercise analysis since it restricted belief and conduct being Strict scrutiny and did another analysis on generally neutral applicable laws being Rational basis. (I missed the prisoners get the rational basis part)

And for the book, I did a freedom of speech - content based restriction analysis discussing incitement of illegal activity since the reason they denied the book was because it encourages illegal activity.

The way I understand it, time place and manner is only applicable to content neutral restrictions that would attach the diffierent forums and a forum analysis is not needed to regulate content based restrictions such as misrepresented commercial speech, obscenities, or incitement of illegal activity. (Example, misrepresented commercial speech is Not allowed in any of the forums)

[Mxmasterr]

You should have ended up with 0 money in the estate at the end. Basically the wills answer should have analyzed omitted spouse: who gets her intestate share of 100% cp, and 1/3 sp, the omitted/adopted child who gets an instate share of the SP. Then you should have analyzed whether the daughter could claim through her deceased mother through anti lapse, i missed this but the answer was no, because the will had a survival component. Otherwise there were issues of adoption, acts of independents significance and whether the workers could take which the could. I think the question was testing mostly on whtehr you knew how to work the omitted spouse share (which is different then a forced share) and the omitted child share.

Nice analysis. Feel pretty good about it all if you saw and discussed this too. Anti-lapse didn't apply, and exactly for the reason you stated. The intent as to the workers was not limited to whether they were working at the time the will was executed, but was contingent on who was there at time of testators death. And while the omitted child share was very important,it was less important to the spouse due to the widows election--but you're right about the importance of discussing it. Thanks for confirming the 1/3 sp issue... was a bit worried I had that wrong for the spouse since my study materials only analyzed this where there were two remaining children, and not three.

yea i skipped the anti lapse issue, but i wish i had just mentioned it that the daughter would argue it but it should be rejected. The widow is an omitted spouse. There is also a widows forced share, which is different issue. The widow in a forced share only gets her CP share, this is when your included in the will but don't like what you got or they tried to transfer some of your CP. On our test we had an omitted spouse who gets her intestate share but no more then 1/2 of the SP.

I spent a lot of words arguing that the one spouse might try and claim she is actually the spouse named in the will, but that the will was referring to the other dead spouse.

[Bla Bla Bla Blah]

yea i skipped the anti lapse issue, but i wish i had just mentioned it that the daughter would argue it but it should be rejected. The widow is an omitted spouse. There is also a widows forced share, which is different issue. The widow in a forced share only gets her CP share, this is when your included in the will but don't like what you got or they tried to transfer some of your CP. On our test we had an omitted spouse who gets her intestate share but no more then 1/2 of the SP.

I spent a lot of words arguing that the one spouse might try and claim she is actually the spouse named in the will, but that the will was referring to the other dead spouse.

You're right. And that would make the main issue omission. Nice catch.

[anony5]

The widow's election rule only applies when the testator-spouse attempts to dispose of the community property belonging to the surviving spouse to someone else and the spouse is otherwise provided for in the will (ie, I give my wife $20,000 of my SP). Then the widow would get to choose to take under the terms of the Will and forego the CP, or take her 1/2 of the CP that legally belongs to her and forego the Will. There is no widow's election issue when the testator attempts to give only his half of the CP to someone else or when he neglects to provide for the disposition of the CP.

[Bla Bla Bla Blah]

The widow's election rule only applies when the testator-spouse attempts to dispose of the community property belonging to the surviving spouse to someone else and the spouse is otherwise provided for in the will (ie, I give my wife $20,000 of my SP). Then the widow would get to choose to take under the terms of the Will and forego the CP, or take her 1/2 of the CP that legally belongs to her and forego the Will. There is no widow's election issue when the testator attempts to give only his half of the CP to someone else or when he neglects to provide for the disposition of the CP.

Awesome! Thanks for clarifying anony5. I'm hoping that they are a bit forgiving of my incorrect inclusion of this analysis, and that what I analyzed correctly prevails. But if not, I'm in a way grateful that we can discuss the issues here... because that statement of the rule is so much clearer than in any of my materials, and if I have to retake, I am certainly not going to forget how it applies now.

There's something positive to learning the correct application after failing to apply correctly! Appreciate your contribution.

Now, how would the dogs damage to property, and not person, be analyzed in SL?! I thought that only applied to abnormally dangerous activity, products liability, wild animals, and domesticated pets with a known propensity to bite?

[What'sUP?]

What a racehorse Essay exam this was! Every question seemed like a "race horse." The am MBE felt brutal. I was trying to be so exacting which cost me a lot of time -- so I had to rush the last 30 minutes -- and I don't feel good about that. The afternoon was better, felt like I used my time more wisely.

With respect to the actual substance of the questions, specifically in regards to the Con. Law questions, I did (in addition to discussing the Free Exercise of Religion and Establishment Clause issues) I did talk about the signage in the prison cafeteria as a speech related issue. My mind went there!

This was my first time taking the two day exam and my first time typing. While shorter -- it just felt like a "race horse" for the ENTIRE time!

[Mxmasterr]

The widow's election rule only applies when the testator-spouse attempts to dispose of the community property belonging to the surviving spouse to someone else and the spouse is otherwise provided for in the will (ie, I give my wife $20,000 of my SP). Then the widow would get to choose to take under the terms of the Will and forego the CP, or take her 1/2 of the CP that legally belongs to her and forego the Will. There is no widow's election issue when the testator attempts to give only his half of the CP to someone else or when he neglects to provide for the disposition of the CP.

yes that is true. but there is a separate rule for omitted spouses, who is a spouse who marries after a will is created and is not named in the will. It causes a partial revocation of the will like the omitted child.

[What'sUP?]

However, I neglected to discuss negligence and/or strict liability on the Torts question and focused on Nuisance and T/L.

[Mxmasterr]

The widow's election rule only applies when the testator-spouse attempts to dispose of the community property belonging to the surviving spouse to someone else and the spouse is otherwise provided for in the will (ie, I give my wife $20,000 of my SP). Then the widow would get to choose to take under the terms of the Will and forego the CP, or take her 1/2 of the CP that legally belongs to her and forego the Will. There is no widow's election issue when the testator attempts to give only his half of the CP to someone else or when he neglects to provide for the disposition of the CP.

Awesome! Thanks for clarifying anony5. I'm hoping that they are a bit forgiving of my incorrect inclusion of this analysis, and that what I analyzed correctly prevails. But if not, I'm in a way grateful that we can discuss the issues here... because that statement of the rule is so much clearer than in any of my materials, and if I have to retake, I am certainly not going to forget how it applies now.

There's something positive to learning the correct application after failing to apply correctly! Appreciate your contribution.

Now, how would the dogs damage to property, and not person, be analyzed in SL?! I thought that only applied to abnormally dangerous activity, products liability, wild animals, and domesticated pets with a known propensity to bite?

i think you wanted to just bring it up the SL and reject it. The question asked what argument could she raise, well ... that is one. Also there is a exception if you know the dog is causing damage I believe. Also could be negligent to fail to control your animal, you have a duty to control your own animal and if you know its messing with someone elses land well ... i think it goes from there.

[What'sUP?]

I TOTALLY see the negligence argument . . . argh!!!!!! For some reason I just missed it -- and looking back I wish I would have written about it darn it!

[Mxmasterr]

I TOTALLY see the negligence argument . . . argh!!!!!! For some reason I just missed it -- and looking back I wish I would have written about it darn it!

same man, im pretty disappointed at that. Missing the easy points is stupid. I spent so much time writing about nuisance, that i took the dog and man on as just trespass. But there was a negligence argument. Wouldn't have even been hard to write out, maybe 2 minutes of typing and you churn out a basic little negligence argument.

[cgc210]

Anyone remember the AM question regarding the prof responsibility q? I cannot remember the first call of the question at all!!!

[Mxmasterr]

Anyone remember the AM question regarding the prof responsibility q? I cannot remember the first call of the question at all!!!

It asked about misrepresentation/nondisclosure and rescission

[What'sUP?]

I TOTALLY see the negligence argument . . . argh!!!!!! For some reason I just missed it -- and looking back I wish I would have written about it darn it!

same man, im pretty disappointed at that. Missing the easy points is stupid. I spent so much time writing about nuisance, that i took the dog and man on as just trespass. But there was a negligence argument. Wouldn't have even been hard to write out, maybe 2 minutes of typing and you churn out a basic little negligence argument.

Still, it just didn't feel like a "negligence" question, right?! That is such a huge issue that seems to usually stands on its own -- we'll see. It didn't scream "negligence" that is all I am saying. At the same time, I can totally see that as an argument . . . it makes sense.

[Bla Bla Bla Blah]

Did anyone do a full Daubert (Fed), Frye ( CA), analysis in re: lawyers obligation to represent competently in the property contract question? I didn't see the issue clearly at the time, and so dismissed it as not having enough information to conclude whether the expert's methods were reasonably reliable or generally accepted. But seems like it deserved more analysis seeing that whatever principles expert relied upon caused him to draw two wildly different opinions. I did analyze whether a competent attorney was reasonable in relying on an expert that he knew could easily be impeached with his prior inconsistent statement, but did not analyze the validity of the testimony as thoroughly as I could have pursuant to the relevant expert testimony standards... which was certainly an issue.

[Bla Bla Bla Blah]

Still, it just didn't feel like a "negligence" question, right?! That is such a huge issue that seems to usually stands on its own -- we'll see. It didn't scream "negligence" that is all I am saying. At the same time, I can totally see that as an argument . . . it makes sense.

Not sure how you get to intentional tresspass through a dog absent mind control, or intentionally throwing the dog over the fence. But to do nothing when you understand that your dog continually trespasses creates a foreseeable and neglected duty, therefore, liability for negligent tresspass attaches.