2018 February CA Bar Forum

[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.

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.

I dont think it was a negligence question, it was a trespass question differing between the dog and the man. I just think it was easy points. Hell i suspect the bar people will shake there heads if a lot of people miss it, and be like people this was a easy one come on we were trying to give you points after that weird inmate con law one. Like the analysis for it is so easy, and in hindsight of COURSE youd sue for negligence as well. Like the only way they could have made it easier is if the woman yelled "your dog damaged my property when it dug a hole and i'm going to sue you for trespass and maybe if the analysis adds up some other torts that could apply"

[Mxmasterr]

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.

no those are evidence issues that were not implicated. I like your competent attorney would not put on someone who could be impeached though, i dont think thats a big issue. I put out a long argument about the lawyer offering a personal opinion on the evidence and also maybe becoming a witnesses in his own case

[hope2018]

I did not write any distinctions between CA and ABA. I didn't do well in PR. I focused on false testimony correcting false statement and competence. I may be wrong ...That was my weakest section of the exam.

This was my first two day exam. I took the 3 days last Feb and my MBE score was top 92% Avg nation and 91% AVg ca. The MBE morning was decent but afternoon section i saw two answers that could be correct. I increased my score for 55% during practice to 80-90%.

Unfortunately the 2 PTs killed my last Feb. This time I thought the PT was ok.

As for Tort I mentioned SL but did not do a full analysis because I was running out of time barely finished the taking question. There was a easement by prescription defense and could argue privileged to retrieve the dog for the trespass claim would fail as a defense.

how did you guys devide the assets in tje will for the two children Anna and someone else section other than the 3rd omitted child?

[esq]

no those are evidence issues that were not implicated. I like your competent attorney would not put on someone who could be impeached though, i dont think thats a big issue. I put out a long argument about the lawyer offering a personal opinion on the evidence and also maybe becoming a witnesses in his own case

Assuming that a reasonably competent attorney with the relevant knowledge, skill, thoroughness, and preparation, should be able to understand whether the expert's opinion was pursuant to reasonably reliable principles (Daubert), or generally accepted (Frye), then the attorney would fall below his duty of care by utilizing such an expert. Especially since this attorney knew that the expert came to a completely different conclusion in a prior legal matter.

But, definitely glad if the consensus is that most of us didn't do a full analysis on that, and how it would relate to attorney competence! Because I keyed it up, and punted, on the basis that there was not enough information to conclude either way. You seemed to hit the issues pretty well, so that makes me feel a bit better.

[Yogagirl]

I also did Daubert and Kelly/Frye analysis, but did not dig in too deep. Mentioned prior inconsistent statement, too (but at the very end and only in passing). Like others, missed the negligence part of the dog and wire fence question; spent a lot of time on nuisance and then trespass to land, chattels, conversion, IIED, oversensitive plaintiff, etc.

And the last 25 questions of MBE were brutal - at least for me. I simply could not think anymore. The rest of afternoon session was not too bad. I did a lot of Adaptibar and practice sets from the NCBE site. Still, I could not believe the person seated next to me was done in 40 minutes.

[Mxmasterr]

I did not write any distinctions between CA and ABA. I didn't do well in PR. I focused on false testimony correcting false statement and competence. I may be wrong ...That was my weakest section of the exam.

This was my first two day exam. I took the 3 days last Feb and my MBE score was top 92% Avg nation and 91% AVg ca. The MBE morning was decent but afternoon section i saw two answers that could be correct. I increased my score for 55% during practice to 80-90%.

Unfortunately the 2 PTs killed my last Feb. This time I thought the PT was ok.

As for Tort I mentioned SL but did not do a full analysis because I was running out of time barely finished the taking question. There was a easement by prescription defense and could argue privileged to retrieve the dog for the trespass claim would fail as a defense.

how did you guys devide the assets in tje will for the two children Anna and someone else section other than the 3rd omitted child?

I believe the other children each got a 10K cut. There was an argument, that i missed, that Ana could have inherited her deceased mothers share, but it should have been rejected because of the wills survival requirement. To not reject it would have raised a pretty intense abatement issue regarding what was in the estate at the time the first wife died, which we had no way to answer. The omitted child got 20K of the SP. My figures were living wife = 100% CP and 30K SP, omitted kid = 20K sp (1/3 of the remaining 60K sp), other child 10 K other child 10K then workers get their 20K. That should have spent the estate and i ended with 0.

I did the prescriptive easement analysis, I'm glad others wrote that to, because afterward the test i thought I was waaaaaay off base for it and kicking myself. But when i saw 10 years i just said prescriptive easement.

[hope2018]

That's pretty much how I divided the assets except that I said 1/3 for omitted child but I got the number wrong 30k instead of 20k.

How did you guys analyze the Crim? I thought there was not consent for entry it was not voluntary consent and did the full blown exceptions and exclusion with exceptions but didn't have much to really analyze for crim pro.

[Mxmasterr]

That's pretty much how I divided the assets except that I said 1/3 for omitted child but I got the number wrong 30k instead of 20k.

How did you guys analyze the Crim? I thought there was not consent for entry it was not voluntary consent and did the full blown exceptions and exclusion with exceptions but didn't have much to really analyze for crim pro.

the omitted child got 1/3 of the remaining 60K (the 2/3 SP).

The crimpro was all about exceptions to warrant requirement which were Exigent circumstances, inevitable discovery, and exceeding the scope of plain sight, and fruit of poisonous tree. Can't open up a letter if your looking for a kid, can't open a cupboard if your looking for a kid,

[Saturn__Ascends]

I did the prescriptive easement analysis, I'm glad others wrote that to, because afterward the test i thought I was waaaaaay off base for it and kicking myself. But when i saw 10 years i just said prescriptive easement.

I did prescriptive easement too. Did anyone toss in Sincerity Test on the Con Law Q?

[Bla Bla Bla Blah]

I also did Daubert and Kelly/Frye analysis, but did not dig in too deep. Mentioned prior inconsistent statement, too (but at the very end and only in passing). Like others, missed the negligence part of the dog and wire fence question; spent a lot of time on nuisance and then trespass to land, chattels, conversion, IIED, oversensitive plaintiff, etc.

And the last 25 questions of MBE were brutal - at least for me. I simply could not think anymore. The rest of afternoon session was not too bad. I did a lot of Adaptibar and practice sets from the NCBE site. Still, I could not believe the person seated next to me was done in 40 minutes.

Nice. Glad that others saw it and were kinda similar to me in approach. My afternoon MBE was the worst and I definitely also had serious brain fatigue... but that was more like on the last 50 for me And no way that walking out after 40 minutes is passing, or smart.

[Anon007]

For Q5 on wills, I agree re ending up with no money in the estate at the end, but I (mistakenly) ended up giving more to the spouse and none to the omitted child by saying that one of the exceptions to omitted children taking applied ($$ was going to the omitted child's parent). The analysis was in there so hopefully most points awarded.

My general analysis went something like this:
1. Overview
- Said what you need for a valid will, with some of the CA specifics (call of question asked for CA so might as well throw in what you know!) on witnesses not signing in presence of testator or at same time. Then explained that the facts say valid will and codicil here so move on to analysis.

2. Surviving Wife (Nell)
- Discuss/argue mistake of ambiguity and have Nell try to take as spouse under the will. CA allows extrinsic evidence for any ambiguity (unlike common law which diverges on patent/latent ambiguities). Extrinsic evidence shows clearly intended wife 1 due to the 20 years marriage thing, timing of execution of will and codicil, timing of his marriage to Nell, etc. So no luck on this argument.
- Discuss/argue lapse of gift to wife 1 (Wendy?) and note CA's anti-lapse statute just bc call of question noted CA law. I said anti-lapse can't save bc the beneficiary is Wendy and anti-lapse only saves gifts to blood relatives of the T or any former/current spouse. I guess there may be an argument that the child of Wendy could take the gift - I didn't say anything about that bc I thought you look to the beneficiary only. Barbri made it a point to flag anti-lapse as not saving gifts to spouses, so I went with that.
- Discuss/argue pretermitted spouse and say she gets 100% CP, 100% quasi-CP (there was none but I mentioned it anyway) and also gets then a sliding scale percentage of the SP depending on intestate share (I noted the scales of intestate share: 100% no kids/parents/siblings; 50% one kid; 33% multi kids; 50% parents/siblings). Here, she gets 100k CP and 30k SP (33% of the 90k SP). I then mentioned no defense/excuse to pretermitted spouse (no waiver/no taking something else in lieu/no intent or express language re omitting her).

3. Son
- I kept this super high level but noted that he was not pretermitted bc the codicil republished the will and provided a devise to him of 10k. He gets 10k.

4. Daughter1
- Also super high level and noted provided for under terms of the will. She gets 10k.

5. Daughter2
- Discussed pretermitted child and entitlement to intestate share. Noted no in lieu gift, no intentional language, but then messed up and said she won't take her intestate share bc her parent is taking substantial portion of the estate. Gifting to the parent is a valid excuse to pretermitted children taking intestate share, but it only applies if the will leaves to the parent (here this doesn't apply bc Nell/mother is taking outside the will as pretermitted spouse). The result is that I had no idea where to put her funds, so I just gave them to the mother. Oh well.

6. START employees
- Discussed class gift, noting can't be too broad or uncertain. Here it is not broad or uncertain. Discussed some intent of the testator as the will says "at death" for testing what employees take, so clearly doesn't matter that there may be different employees when executed versus when effective. Also noted no language re a requirement that they be there for a specified period of time.
- Flagged RAP, noted USRAP in CA for 90 year wait and see. RAP doesn't impact here bc class closes and all beneficiaries ascertainable at death.
- START employees get 2k x 10 = 20k.

7. Remainder.
- I mentioned that if anything was remaining then the default in CA is per capita distribution unless will clearly says otherwise.

[Anon007]

How did you guys analyze the Crim? I thought there was not consent for entry it was not voluntary consent and did the full blown exceptions and exclusion with exceptions but didn't have much to really analyze for crim pro.

For crim, my analysis was something like:
1. Fourth Amendment overview
- explain Fourth Amendment
- note exclusionary rule, note exceptions (knock and announce/grand jury/impeachment/parole/something beginning with a "c") and say they don't apply here.
- note the fruit of poisonous tree doctrine, not exceptions (inevitability, which is discussed later, independent source, intervention by D)

2. Govt Act
- easy, police acting via Officer Ava and the other guy

3. Reas expectation of privacy (at least I think I included this, hope so)
- easy, this is a house. require warrant for house search.

4. Valid Warrant
- said what warrant needs.
- discussed (1) officer ava went to the house without a warrant so her search is illegal unless an exception applies, and (2) I said invalid warrant bc even if it has probable cause (noted informant rules/analysis) it is lacking in particularity (only said "Don's house" (no address, street, etc) and "for C" (no last name/identifiers).

5. Good faith reliance by police?
- no bc Officer Ava isn't relying on the warrant.
- i didnt mention it, but maybe this could save the second police officer using the crappy warrant, provided it wasn't so lacking in PC that he would fail. Probably some points missed here.

6. Exceptions
- named all exceptions, flagged:
(1) plain view, but said officer ava wasn't in legit place by being in the house and the illegality of the items weren't apparent except for the bomb as this could be in a place that a child might be and was big enough to be obvious. Plain view doesn't save the others even with a valid warrant/inevitability excuse to fruit of poisonous tree due to the warrant being granted.
(2) hot pursuit, but said doesn't help here bc timing is unclear on the facts re when she went missing versus when police heard the tip, and also there is no chase or suspect that the police followed into the house. If they were in pursuit, anything in plain view would be ok, so just the bomb.
(3) common caretaker, said won't help but can't remember why.
(4) consent, but said no way bc she intimidated him at the door and said she was going to search the house whether he wanted her to or not.

7. Discussed inevitability defence based on the warrant but said the warrant was bad so no defence. Even if it was a good warrant, only the bomb could be admitted bc warrant wouldn't allow them to search for little girls in medicine cabinets or sealed envelopes.

--
2. Attempted kidnap
- Note attempt requirements
- Note kidnap requirements
- Explain no guilt bc bc even if D had the mental state (specific intent to kidnap, based on informant fact re wanting to kidnap someone to raise as daughter), D didn't commit an act of perpetration sufficient to come dangerously close to completion.
- Noted possible defence of abandonment, which isn't accepted by common law but is in minority states, but stated not even applicable bc he didnt make an act sufficient enough to abandon.

[What'sUP?]

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.

no those are evidence issues that were not implicated. I like your competent attorney would not put on someone who could be impeached though, i dont think thats a big issue. I put out a long argument about the lawyer offering a personal opinion on the evidence and also maybe becoming a witnesses in his own case

Agree. I totally FORGOT to write about the L's comment in his closing argument. As I was typing earlier portions of the essay I was like, " oh yea, I need to write about that", but then I forgot to actually either write it down on my scratch paper or just freaking type it is as a headnote -- ARGHHHHHHH!

[Bla Bla Bla Blah]

Having worked public defense for years prior to switching into IP, I can tell you that Officer A's search would have likely been found reasonable. A child was missing, and she believed the child would very soon end up dead. Officer B went to get a warrant, which when issued, presumes PC. He arrived shortly after the search. Though presumptively invalid when a search occurs sans warrant, Officer A would likely be found to have acted in exigent circumstances, under the belief that a valid warrant would quickly be issued-which it was. Viewing the totality of the circumstances, it would likely be said that any time between the search and Officer B showing up with the warrant was immaterial, and they would have found the evidence anyway since Officer B showed up immediately after the search with a valid warrant-which means they would have done the same thing just moments after the initial search.

Therefore, an analysis of the search itself was the most important. This turned on where a kidnapped child (the subject of the warrant would reasonably be found in such searches) and plain view issues.

[iteachtenthgrade]

Having worked public defense for years prior to switching into IP, I can tell you that Officer A's search would have likely been found reasonable. A child was missing, and she believed the child would very soon end up dead. Officer B went to get a warrant, which when issued, presumes PC. He arrived shortly after the search. Though presumptively invalid when a search occurs sans warrant, Officer A would likely be found to have acted in exigent circumstances, under the belief that a valid warrant would quickly be issued-which it was. Viewing the totality of the circumstances, it would likely be said that any time between the search and Officer B showing up with the warrant was immaterial, and they would have found the evidence anyway since Officer B showed up immediately after the search with a valid warrant-which means they would have done the same thing just moments after the initial search.

Therefore, an analysis of the search itself was the most important. This turned on where a kidnapped child (the subject of the warrant would reasonably be found in such searches) and plain view issues.

Yay! This makes me feel better because it’s very similar to what I ended up saying.

I then went on to make an exigency argument for the expanding the scope of the warrant (as issued later) to permit searches of the medicine cabinet and envelope based on the public danger presented by the bomb, which was found in a place a child could be hidden and thus was findable under the aft-issued warrant. That might have been too far, but I just said that the state might make it, not that it would necessarily work.

[Doobydoobydoo]

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.

Gosh, there were so many claims in that dispute about the dog and the grill. I didn't do negligence for the dog tort, I said that was strict liability. But for some reason I did a battery analysis on the smoke from the grill, in addition to trespass and nuisance. It seems to apply in theory, though it seems kind of silly looking back on it... A lot going on.

[GatorNation13]

https://apps.calbar.ca.gov/mcleselfstud ... ?testid=48

[bigballerbrand]

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.

Gosh, there were so many claims in that dispute about the dog and the grill. I didn't do negligence for the dog tort, I said that was strict liability. But for some reason I did a battery analysis on the smoke from the grill, in addition to trespass and nuisance. It seems to apply in theory, though it seems kind of silly looking back on it... A lot going on.

I didn't do negligence/SL for the dog. Only trespass.

For smokehouse, I did assault, battery, IIED, and nuisance.

[love4vinolaw]

I believe the other children each got a 10K cut. There was an argument, that i missed, that Ana could have inherited her deceased mothers share, but it should have been rejected because of the wills survival requirement. To not reject it would have raised a pretty intense abatement issue regarding what was in the estate at the time the first wife died, which we had no way to answer. The omitted child got 20K of the SP. My figures were living wife = 100% CP and 30K SP, omitted kid = 20K sp (1/3 of the remaining 60K sp), other child 10 K other child 10K then workers get their 20K. That should have spent the estate and i ended with 0.

Interesting. My math came out differently.

New wife got 100% of the CP

Then out of the 90K, I took the workers (20k) and the two specific gifts for A and B ($10k each) which left me with $50k. Because of the Omitted Spouse and the Pretermitted Child, and how they take under intestesacy, but trying to avoid having to deal with Abatement in my numbers, -- I brushed over it and mentioned that it would kick in essentially if there wasn't enough res to pay out the amounts.

So since on the Bar's website under the Scope for the exam the specifically mentioned the following statutes -- I made sure to put as many of them into my analysis as possible. I gave 1/3 to New wife for SP for Omitted Spouse and then the other 2/3 I apportioned between all 3 kids basing it first on probate code 21109 -- (1) portion for the Pretermmited child to take under intestacy from 21623, and then 1 portion each for Kid A under 21110, and 1 portion for Kid B under 21115 because adopted takes as blood.

Bad Idea?

[cgc210]

Can anyone please remind me what the first part of the question with Prof responsibility was about? I cannot remember for the life of me

[Doobydoobydoo]

Can anyone please remind me what the first part of the question with Prof responsibility was about? I cannot remember for the life of me

Yes it was about rescission of a contract for a commercial warehouse. The contract was rescindable for fraud.

[iteachtenthgrade]

Can anyone please remind me what the first part of the question with Prof responsibility was about? I cannot remember for the life of me

LOL! Happens.

The misrepresentation/recission one about the factory roof.

[Bla Bla Bla Blah]

Can anyone please remind me what the first part of the question with Prof responsibility was about? I cannot remember for the life of me

The PR question was tied into the property-contracts question, re: the quitclaim deed where there was a question of whether seller misrepresented the potentially faulty roof, or had a duty to disclose and chose to omit. It asked us to analyze under the ABA and the CA rules.

I analyzed the duty of loyalty, which is essentially to represent the clients interests, and not attorney's own. The duty of competence/care, which only differs in CA because it adds to the ABA rule that attorney is to have the requisite mental, and physical, ability to competently represent. Arguably, putting an expert on the stand when the lawyer was fully aware that the expert had come to an entirely different opinion in another matter on the same issue is shows lack of competence, and certainly is not in the client's best interest.

I also analyzed the ABA rule on lawyer testimony (i.e., not at all, in this situation at least). In CA, it is allowed, but only if there is agreement among counsel and the judge permits.

That was pretty much all there was to it. I was honestly expecting more, considering that the CA Bar questions and model answers from past administrations of the test seemed to have pretty hard core PR questions that required much more analysis. For instance,
July 2017 Question 2 would have made me have an aneurysm if something like it would have popped up on this test... that one was a all out nuanced PR topic, not just a sidenote issue like ours was.

[Bla Bla Bla Blah]

Can anyone please remind me what the first part of the question with Prof responsibility was about? I cannot remember for the life of me

Yes it was about rescission of a contract for a commercial warehouse. The contract was rescindable for fraud.

Fraud would require an intentional misrepresentation that was material to the transaction, reliance, damages. He never misrepresented a thing. He only said that he never had a problem, which was entirely true. However, me may have omitted information since, while the roof was not faulty at the time, he knew that it likely would be in the future. He only had a responsibility to disclose known existing latent defects, and its questionable as to whether a latent defect that had not yet materialized qualified. She accepted quitclaim, which affects whether the possibility of a faulty roof materially affected the contract. If his omission materially affected the contract, then she may have been able to rescind as there could not have been a meeting of the minds. Unlikely in an "as is" contract. Also, once the sale is complete, the right to rescind generally vanishes, and damages are the only remedy--unless fraud, which again, required a misrepresentation. I don't think she could have rescinded. She might be able to recover expectation damages.

[cgc210]

Thank you! For some reason, I could not recall what it was about at all. It was an odd combo.