BarBri Bar Review Hangout - February 2016 Exam Forum

[NY_Sea]

Hi everyone... hope y'all are hanging in there. Can anyone help with products liability - strict liability vs. negligence? Basically, the two theories of liability seem pretty much the same to me, except obviously for negligence, the plaintiff has to make the additional showing of negligence. So, why would a plaintiff ever assert a claim of products liability under a negligence theory, when he could assert it as strict liability without having to prove anything additional (negligence)? When I initially reviewed this topic I had it in my head that the defendant had to be a commercial supplier to be subject to strict liability (edit to add: but did NOT need to be a commercial supplier to be subject to negligence), but I see that that is actually incorrect - in the multistate outline it also discusses commercial suppliers in the part about negligence. Thanks!

Strict Products liability means you have to show the 4 part test: 1) D is a merchant; 2) Product was defective (Design Defect, Manufacturing Defect, Incomplete Instructions); 3) Product hasn't changed since it left D's hands; and 4) P was making a foreseeable use. If you can't meet that test you can't assert Strict Products Liability, but you can assert Negligence. So it's not really someone choosing to assert one standard over the other... It's much more likely that the Plaintiff couldn't prove one of the requirements for Strict Products (either the product wasn't defective or one of the others). A company can still be negligent without having a defective product. Think the hamburger meat question with the bone in it... The beef wasn't defective, but the company could be found negligent for allowing the beef to go out with a huge bone in it.

[BrokenMouse]

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[rocket32]

Can anyone explain what "holder in due course" is? I am unsure when it is used and what purpose.

I assume you're talking about commercial paper? I don't really get it either... or most things about commercial paper. I've got a partial mnemonic for it in case it comes up, just to get the elements down. It's not one of my better ones but it's sort of stuck for me, so who knows, maybe it will help you - (1) holder who (2) takes for value (3) in good faith without notice of ODD-SAC-D. (the note is Overdue, Dishonored, or in Default; that there are no unauthorized Signatures or Alterations; or that there are any Claims or Defenses to the instrument.

As I understand it, if you're a holder in due course, personal defenses cannot be asserted against enforcement of the note. Only REAL defenses.

I memorized it as holder in due course must be a written negotiable note, which the bonafide purchaser takes subject to real defenses but not personal defenses. but I don't know how this works. Anybody got a real life example when it is used and why?

So this is what I think - the rationale is similar to the bona fide purchaser doctrine - to protect people who enter into transactions in good faith. So an example would be if A steals bearer paper, A is a holder. The note is stolen, though, and A knows that. So A knows that the note is subject to a theft defense and therefore cannot be a HIDC. If A then negotiates the bearer paper to B, and B pays A for the note without any knowledge that it was stolen, and B trusts A, B would be a HIDC, because B became a holder, paid value, took the note in good faith, without notice that there were any defenses to the instrument. B could then enforce the note against the maker, because theft is a personal defense, not a real defense. Does that sound right?

[rocket32]

Hi everyone... hope y'all are hanging in there. Can anyone help with products liability - strict liability vs. negligence? Basically, the two theories of liability seem pretty much the same to me, except obviously for negligence, the plaintiff has to make the additional showing of negligence. So, why would a plaintiff ever assert a claim of products liability under a negligence theory, when he could assert it as strict liability without having to prove anything additional (negligence)? When I initially reviewed this topic I had it in my head that the defendant had to be a commercial supplier to be subject to strict liability (edit to add: but did NOT need to be a commercial supplier to be subject to negligence), but I see that that is actually incorrect - in the multistate outline it also discusses commercial suppliers in the part about negligence. Thanks!

Strict Products liability means you have to show the 4 part test: 1) D is a merchant; 2) Product was defective (Design Defect, Manufacturing Defect, Incomplete Instructions); 3) Product hasn't changed since it left D's hands; and 4) P was making a foreseeable use. If you can't meet that test you can't assert Strict Products Liability, but you can assert Negligence. So it's not really someone choosing to assert one standard over the other... It's much more likely that the Plaintiff couldn't prove one of the requirements for Strict Products (either the product wasn't defective or one of the others). A company can still be negligent without having a defective product. Think the hamburger meat question with the bone in it... The beef wasn't defective, but the company could be found negligent for allowing the beef to go out with a huge bone in it.

This is helpful - thank you!

[BrokenMouse]

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[rocket32]

Can anyone explain what "holder in due course" is? I am unsure when it is used and what purpose.

I assume you're talking about commercial paper? I don't really get it either... or most things about commercial paper. I've got a partial mnemonic for it in case it comes up, just to get the elements down. It's not one of my better ones but it's sort of stuck for me, so who knows, maybe it will help you - (1) holder who (2) takes for value (3) in good faith without notice of ODD-SAC-D. (the note is Overdue, Dishonored, or in Default; that there are no unauthorized Signatures or Alterations; or that there are any Claims or Defenses to the instrument.

As I understand it, if you're a holder in due course, personal defenses cannot be asserted against enforcement of the note. Only REAL defenses.

I memorized it as holder in due course must be a written negotiable note, which the bonafide purchaser takes subject to real defenses but not personal defenses. but I don't know how this works. Anybody got a real life example when it is used and why?

So this is what I think - the rationale is similar to the bona fide purchaser doctrine - to protect people who enter into transactions in good faith. So an example would be if A steals bearer paper, A is a holder. The note is stolen, though, and A knows that. So A knows that the note is subject to a theft defense and therefore cannot be a HIDC. If A then negotiates the bearer paper to B, and B pays A for the note without any knowledge that it was stolen, and B trusts A, B would be a HIDC, because B became a holder, paid value, took the note in good faith, without notice that there were any defenses to the instrument. B could then enforce the note against the maker, because theft is a personal defense, not a real defense. Does that sound right?

Note is just a promise on a piece of paper signed saying "I owe You" for (whatever reason)? As someone who has never taken a loan out in my life or ever owned a property, this is just all foreign to me.

For it to be a negotiable note, it needs to have all of the elements of negotiability. One of the elements is that it must contain words of negotiability. So I think just saying "I owe you" is insufficient. It must say "I promise to pay" or "pay to the order of."

[Sue]

How many PTs have you guys done so far and plan to do over the next week or so?

I have done ~14-15 so far, 6-7 remaining, but I am still bad at MPTs, plus I almost never finish in time.

Damn you spend 42 hours... I only did 2 PTs so far. You put me to shame.

I bet my 42 hours = your 3 hours. I am that bad at it

[Sue]

Hi everyone... hope y'all are hanging in there. Can anyone help with products liability - strict liability vs. negligence? Basically, the two theories of liability seem pretty much the same to me, except obviously for negligence, the plaintiff has to make the additional showing of negligence. So, why would a plaintiff ever assert a claim of products liability under a negligence theory, when he could assert it as strict liability without having to prove anything additional (negligence)? When I initially reviewed this topic I had it in my head that the defendant had to be a commercial supplier to be subject to strict liability (edit to add: but did NOT need to be a commercial supplier to be subject to negligence), but I see that that is actually incorrect - in the multistate outline it also discusses commercial suppliers in the part about negligence. Thanks!

Strict Products liability means you have to show the 4 part test: 1) D is a merchant; 2) Product was defective (Design Defect, Manufacturing Defect, Incomplete Instructions); 3) Product hasn't changed since it left D's hands; and 4) P was making a foreseeable use. If you can't meet that test you can't assert Strict Products Liability, but you can assert Negligence. So it's not really someone choosing to assert one standard over the other... It's much more likely that the Plaintiff couldn't prove one of the requirements for Strict Products (either the product wasn't defective or one of the others). A company can still be negligent without having a defective product. Think the hamburger meat question with the bone in it... The beef wasn't defective, but the company could be found negligent for allowing the beef to go out with a huge bone in it.

This is helpful - thank you!

Also, note that physical injury or property damage must be shown in both, recovery will be denied if the sole claim is for economic loss.
Oh, and this: ordinary negligence product liability cases against a retailer/wholesaler generally fail on MBE because they can usually satisfy their duty by an inspection.

[BrokenMouse]

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[MrMustache]

I'm curious, is there any advantages to handwriting the finals?

I have terrible handwriting, could I cruise through if my essays sort of, kind of, look like I know what I'm talking about even though the grader can't read it? Looking at BarEssays, some of those high-scoring handwritten essays have very little analysis.

[BrokenMouse]

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[MrMustache]

Is the Emanuel MBE book practice questions easier than Kaplan or Barbri? I heard it's real bar exam questions but I just got 45/57 (79%) on evidence (and similar score in Con Law) and I thought to myself this has to be easier than average. I got below average on July 15 MBE so I am skeptical.

Past real MBEs seem easier because BarBri [or other prep company] has already prepared us for them. A friend of mine who was struggling with BarBri MBEs last summer, scoring in the 50s and low 60s, pretty much got 90%+ on all of the NCBE online practice exams [Speaking of which, I still don't understand how I got excess to those for free last year. Did they start charging for them only recently?] .

Basically, from what I've heard, NCBE and prep-companies are in a constant game of cat and mouse. NCBE keeps adding new wrinkles to what they test, and BarBri and other prep companies prep us for those, then NCBE changes those wrinkles again on the next exam. Supposedly they do this because everyone would be scoring too well after being prepped. Supposedly there's also some guessing games going on too, where BarBri and other prep courses try to guess what new wrinkle NCBE will test in the coming exams [Themis was all about asking questions dealing with all the deadlines in Civ Pro, I don't think there was a single question on the actual bar dealing with it.]

I don't know how you felt about the July MBE, but for me the first 100 questions felt like NOTHING that Themis had prepped me for, it was as if I was taking a completely different test that had nothing to do with MBEs. I wasn't the only one because Themis and BarBri bar-prep threads on this forum were freaking out about how unrepresentative those real questions were to anything. BarBri was in full damage control on twitter telling people to wait for the curve. That curve must have been pretty sweet because my dumbass scored a 1500/2000.

[MrMustache]

I'm curious, is there any advantages to handwriting the finals?

I have terrible handwriting, could I cruise through if my essays sort of, kind of, look like I know what I'm talking about even though the grader can't read it? Looking at BarEssays, some of those high-scoring handwritten essays have very little analysis.

This was my observation as well, but let's not take the small sample of handwriting with high scores on baressays as being representative. There may be a thousand others who got a 55 because the grader could not read.

Some of those handwritten answers had less than complete sentences and even used bullet points that looked more like an outline/graph than complete, paragraph responses. They still got high grades. However, I recall most of these coming from really old exams.

Good point, but it does make me feel less worried about my computer freezing or dying during the exam.

[THE_U]

Is the Emanuel MBE book practice questions easier than Kaplan or Barbri? I heard it's real bar exam questions but I just got 45/57 (79%) on evidence (and similar score in Con Law) and I thought to myself this has to be easier than average. I got below average on July 15 MBE so I am skeptical.

Past real MBEs seem easier because BarBri [or other prep company] has already prepared us for them. A friend of mine who was struggling with BarBri MBEs last summer, scoring in the 50s and low 60s, pretty much got 90%+ on all of the NCBE online practice exams [Speaking of which, I still don't understand how I got excess to those for free last year. Did they start charging for them only recently?] .

Basically, from what I've heard, NCBE and prep-companies are in a constant game of cat and mouse. NCBE keeps adding new wrinkles to what they test, and BarBri and other prep companies prep us for those, then NCBE changes those wrinkles again on the next exam. Supposedly they do this because everyone would be scoring too well after being prepped. Supposedly there's also some guessing games going on too, where BarBri and other prep courses try to guess what new wrinkle NCBE will test in the coming exams [Themis was all about asking questions dealing with all the deadlines in Civ Pro, I don't think there was a single question on the actual bar dealing with it.]

I don't know how you felt about the July MBE, but for me the first 100 questions felt like NOTHING that Themis had prepped me for, it was as if I was taking a completely different test that had nothing to do with MBEs. I wasn't the only one because Themis and BarBri bar-prep threads on this forum were freaking out about how unrepresentative those real questions were to anything. BarBri was in full damage control on twitter telling people to wait for the curve. That curve must have been pretty sweet because my dumbass scored a 1500/2000.

That is exactly how I felt. The morning session for me was brutal. The afternoon seemed a little more familiar but it still sucked.

[MrMustache]

Holy crap, Justice Scalia is dead. I'd discuss it with my friends, but I no longer have any friends thanks to prepping for the Bar twice.

[jackbauer10]

Holy crap, Justice Scalia is dead. I'd discuss it with my friends, but I no longer have any friends thanks to prepping for the Bar twice.

Just found this out too. Not really sure how to feel. Can't say I was a huge fan of the guy, but it's still a shock.

[MrMustache]

Delivery of Deed question.

Hypo: A gives deed to his lawyer and tells to give the deed to B. A dies before lawyer delivers. Was the deed delivered?

BarBri CMR tells me if A failed to give instruction to his lawyer, there's no delivery. [bottom of page 50]

But because in this hypo there was an instruction to deliver, it would seem that there was a valid delivery.

Themis tells me that if A delivers it to his agent (e.g., an attorney) it is treated as A retaining the deed until lawyer actually delivers it.

So under this rule, the deed in my example is not delivered.


Who's right here?

[rocket32]

Delivery of Deed question.

Hypo: A gives deed to his lawyer and tells to give the deed to B. A dies before lawyer delivers. Was the deed delivered?

BarBri CMR tells me if A failed to give instruction to his lawyer, there's no delivery. [bottom of page 50]

But because in this hypo there was an instruction to deliver, it would seem that there was a valid delivery.

Themis tells me that if A delivers it to his agent (e.g., an attorney) it is treated as A retaining the deed until lawyer actually delivers it.

So under this rule, the deed in my example is not delivered.


Who's right here?

I think the question is whether A had intent to pass the property at the moment he gave it to his attorney. So, technically (without knowing any additional facts about the Themis example) it seems like both hypos could be correct. In the Barbri example, if A gave the deed to his lawyer with instruction to deliver, he had the full intent to pass his ownership of the property when he gave the deed to his lawyer--deed is delivered. In the Themis example, if A just gave it to his lawyer to hold onto, then he did not have the intent to transfer the property at that moment--deed is not delivered.

[Sue]

Delivery of Deed question.

Hypo: A gives deed to his lawyer and tells to give the deed to B. A dies before lawyer delivers. Was the deed delivered?

BarBri CMR tells me if A failed to give instruction to his lawyer, there's no delivery. [bottom of page 50]

But because in this hypo there was an instruction to deliver, it would seem that there was a valid delivery.

Themis tells me that if A delivers it to his agent (e.g., an attorney) it is treated as A retaining the deed until lawyer actually delivers it.

So under this rule, the deed in my example is not delivered.


Who's right here?

It is all about A's intent. If additional facts say he retained the power to recall the deed, then no delivery. It would have been more clear that there is delivery if A gave the deed to B's lawyer, of course. In this case, it is not clear if lawyer is A's agent, just safekeeping the deed, or was supposed to deliver the deed because A instructed him to do so. I would say no delivery in your case. I am hoping there will be more details in the exam to decide such things.

[longhornlaw]

I'm curious, is there any advantages to handwriting the finals?

I have terrible handwriting, could I cruise through if my essays sort of, kind of, look like I know what I'm talking about even though the grader can't read it? Looking at BarEssays, some of those high-scoring handwritten essays have very little analysis.

This was my observation as well, but let's not take the small sample of handwriting with high scores on baressays as being representative. There may be a thousand others who got a 55 because the grader could not read.

Some of those handwritten answers had less than complete sentences and even used bullet points that looked more like an outline/graph than complete, paragraph responses. They still got high grades. However, I recall most of these coming from really old exams.

Good point, but it does make me feel less worried about my computer freezing or dying during the exam.

If it makes you feel better, ExamSoft wouldn't load the first morning I took the CA bar. I had to handwrite the first morning. I ended up passing, so it's certainly doable even in the face of a technical issue. It's a pain in the ass, of course, especially if you want to edit (that is, you can't).

[longhornlaw]

Delivery of Deed question.

Hypo: A gives deed to his lawyer and tells to give the deed to B. A dies before lawyer delivers. Was the deed delivered?

BarBri CMR tells me if A failed to give instruction to his lawyer, there's no delivery. [bottom of page 50]

But because in this hypo there was an instruction to deliver, it would seem that there was a valid delivery.

Themis tells me that if A delivers it to his agent (e.g., an attorney) it is treated as A retaining the deed until lawyer actually delivers it.

So under this rule, the deed in my example is not delivered.


Who's right here?

I asked the professor who runs the bar prep for my law school and he said that the CMR answer is correct - where there is an instruction to deliver, there is valid delivery.

[MrMustache]

Delivery of Deed question.

Hypo: A gives deed to his lawyer and tells to give the deed to B. A dies before lawyer delivers. Was the deed delivered?

BarBri CMR tells me if A failed to give instruction to his lawyer, there's no delivery. [bottom of page 50]

But because in this hypo there was an instruction to deliver, it would seem that there was a valid delivery.

Themis tells me that if A delivers it to his agent (e.g., an attorney) it is treated as A retaining the deed until lawyer actually delivers it.

So under this rule, the deed in my example is not delivered.


Who's right here?

I asked the professor who runs the bar prep for my law school and he said that the CMR answer is correct - where there is an instruction to deliver, there is valid delivery.

Thank you! (and you Sue, and you Rocket) This settles it!

[MrMustache]

I was feeling on a roll today, reviewing property and answering essay questions. Felt better than ever, then I made the mistake of looking at past essays on BarEssays. Property essay for February 2015, I don't understand how that 52.5 point essay scored so low!

[gtg]

I was feeling on a roll today, reviewing property and answering essay questions. Felt better than ever, then I made the mistake of looking at past essays on BarEssays. Property essay for February 2015, I don't understand how that 52.5 point essay scored so low!

I think in many cases there's a big "luck" factor involved lol depending on who grades the essay.

[DueProcessDoWheelies]

Can anyone else not stand this blonde lady who does the MBE refresher review? She just rambles and rambles. And her test-taking techniques aren't that groundbreaking