Themis Bar Review Hangout - July 2017 Forum

[Steve2207]

Did anyone else struggle on the graded MPT? I went 5 minutes over and submitted an answer less than 4,000 characters. I am not really sure what to do to improve my MPT’s, but if I see something like that on the Bar I am going to bomb it.

ETA: Atleast this portion of the exam is only worth 10% in my jurisdiction!

I feel you, I struggled so much too. My answer didn't come close to hitting everything that was in the sample answer. I'm in a 25% MPT state so I really need to get better at these!

I am just SO BAD at the bar exam and it's really disheartening.

Somehow, I got a 100% on it! I think my grader is going too soft on me though. If I were in a state were they are weighted higher, I would be doing alot more practice. Ithink with the MPT, its probably just a matter of practice, practice, practice.

[Puffman1234]

I'm not getting Themis' explanation below...isn't the claim against the manufacturer arising out of the same transaction in the original claim against the contractor?

[+] Spoiler

Practice: Civil Procedure MBE PQs Session 5 (34) Question ID#5007 5 of 34

A homeowner filed a complaint against a contractor for damages arising from negligent construction of an addition to the homeowner’s house. The complaint was timely and properly filed in federal district court sitting in diversity jurisdiction. Nineteen days after the contractor filed his answer, the homeowner learned that material supplied by a manufacturer and used by the contractor was defective. The next day, without leave of the court or the contractor’s agreement, the homeowner amended the complaint to add the manufacturer as a defendant in this action. The manufacturer filed a motion to dismiss the complaint against her. The manufacturer pointed out that she had no knowledge of the action nor reason to know of it prior to the homeowner’s amendment of the complaint, and that the controlling statute of limitations had expired after the original complaint was filed and before the amended complaint was filed.

Should the court grant the manufacturer’s motion to dismiss?
A Yes, because the statute of limitations had expired before the amended complaint was filed.
B Yes, because the amended complaint was filed without leave of the court or the contractor’s agreement.
C No, because the relation back doctrine applies to this amendment.
D No, because the amendment was filed within the required time period for amending a complaint as of right.

SUBMIT ANSWER

C No, because the relation back doctrine applies to this amendment.

Sorry, that's not the best choice.

The answer you selected is not the best choice in this situation.

Answer choice A is correct. Because the statute of limitations with respect to the homeowner’s claim against the manufacturer had expired prior to the time that the homeowner amended the complaint to include this claim, the court should grant the manufacturer’s motion to dismiss. Answer choice B is incorrect because a plaintiff may amend a complaint once as of right without seeking leave of the court or consent of the defendant if the amendment if made within 21 days of the service of the defendant’s answer. Here, the homeowner filed the amendment 20 days after the defendant served the answer. Answer choice C is incorrect because the relation back doctrine does not apply in this situation. The amendment added a new claim against a new defendant. The amendment did not add a new claim against an existing defendant that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading. Also, the amendment did not change the defendant against whom the claim was asserted to a defendant who knew or should have known that the action would have been brought against him, but for a mistake concerning the proper party’s identity. Answer choice D is incorrect. Even though the homeowner’s filing of the amended complaint was within the 21-day time period for filing an amendment as of right, the court should grant the motion to dismiss based on expiration of the statute of limitations with regard to the homeowner’s complaint against the manufacturer.

Well, I haven't gotten to those questions yet, but just reading FRCP 15, it looks like you can use the original filing date for relation back in three situations:

(1) The specific substantive law in question allows for relation back in this scenario; OR
(2) You DON'T change the parties, but DO change the claims against the named parties to add more that arose from the same transaction; OR
(3) You DO change the parties--but only by substitution, not by addition--and DON'T change the claims, and the substituted party knew of the original filing and knew the original action would or should have been brought against it.

So it looks like you can't use the doctrine of relation back to add NEW claims against NEW parties even if the claims arise from the same transaction. This makes sense if you think about it. You shouldn't be able to overcome the statute of limitations for claims you didn't assert, against parties you never named, just because you filed a complaint. But if you simply messed up which defendant you named, or you failed to bring up related claims against the defendant you DID name, you can relate back.

That's my read of the situation. It seems to jibe with Themis saying that the relation back doctrine simply doesn't apply when there is a "new claim against a new defendant."

[Bass]

I'm not getting Themis' explanation below...isn't the claim against the manufacturer arising out of the same transaction in the original claim against the contractor?

[+] Spoiler

Practice: Civil Procedure MBE PQs Session 5 (34) Question ID#5007 5 of 34

A homeowner filed a complaint against a contractor for damages arising from negligent construction of an addition to the homeowner’s house. The complaint was timely and properly filed in federal district court sitting in diversity jurisdiction. Nineteen days after the contractor filed his answer, the homeowner learned that material supplied by a manufacturer and used by the contractor was defective. The next day, without leave of the court or the contractor’s agreement, the homeowner amended the complaint to add the manufacturer as a defendant in this action. The manufacturer filed a motion to dismiss the complaint against her. The manufacturer pointed out that she had no knowledge of the action nor reason to know of it prior to the homeowner’s amendment of the complaint, and that the controlling statute of limitations had expired after the original complaint was filed and before the amended complaint was filed.

Should the court grant the manufacturer’s motion to dismiss?
A Yes, because the statute of limitations had expired before the amended complaint was filed.
B Yes, because the amended complaint was filed without leave of the court or the contractor’s agreement.
C No, because the relation back doctrine applies to this amendment.
D No, because the amendment was filed within the required time period for amending a complaint as of right.

SUBMIT ANSWER

C No, because the relation back doctrine applies to this amendment.

Sorry, that's not the best choice.

The answer you selected is not the best choice in this situation.

Answer choice A is correct. Because the statute of limitations with respect to the homeowner’s claim against the manufacturer had expired prior to the time that the homeowner amended the complaint to include this claim, the court should grant the manufacturer’s motion to dismiss. Answer choice B is incorrect because a plaintiff may amend a complaint once as of right without seeking leave of the court or consent of the defendant if the amendment if made within 21 days of the service of the defendant’s answer. Here, the homeowner filed the amendment 20 days after the defendant served the answer. Answer choice C is incorrect because the relation back doctrine does not apply in this situation. The amendment added a new claim against a new defendant. The amendment did not add a new claim against an existing defendant that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading. Also, the amendment did not change the defendant against whom the claim was asserted to a defendant who knew or should have known that the action would have been brought against him, but for a mistake concerning the proper party’s identity. Answer choice D is incorrect. Even though the homeowner’s filing of the amended complaint was within the 21-day time period for filing an amendment as of right, the court should grant the motion to dismiss based on expiration of the statute of limitations with regard to the homeowner’s complaint against the manufacturer.

Well, I haven't gotten to those questions yet, but just reading FRCP 15, it looks like you can use the original filing date for relation back in three situations:

(1) The specific substantive law in question allows for relation back in this scenario; OR
(2) You DON'T change the parties, but DO change the claims against the named parties to add more that arose from the same transaction; OR
(3) You DO change the parties--but only by substitution, not by addition--and DON'T change the claims, and the substituted party knew of the original filing and knew the original action would or should have been brought against it.

So it looks like you can't use the doctrine of relation back to add NEW claims against NEW parties even if the claims arise from the same transaction. This makes sense if you think about it. You shouldn't be able to overcome the statute of limitations for claims you didn't assert, against parties you never named, just because you filed a complaint. But if you simply messed up which defendant you named, or you failed to bring up related claims against the defendant you DID name, you can relate back.

That's my read of the situation. It seems to jibe with Themis saying that the relation back doctrine simply doesn't apply when there is a "new claim against a new defendant."

That makes a lot of sense...many thanks!

[lavarman84]

I'm not getting Themis' explanation below...isn't the claim against the manufacturer arising out of the same transaction in the original claim against the contractor?

[+] Spoiler

Practice: Civil Procedure MBE PQs Session 5 (34) Question ID#5007 5 of 34

A homeowner filed a complaint against a contractor for damages arising from negligent construction of an addition to the homeowner’s house. The complaint was timely and properly filed in federal district court sitting in diversity jurisdiction. Nineteen days after the contractor filed his answer, the homeowner learned that material supplied by a manufacturer and used by the contractor was defective. The next day, without leave of the court or the contractor’s agreement, the homeowner amended the complaint to add the manufacturer as a defendant in this action. The manufacturer filed a motion to dismiss the complaint against her. The manufacturer pointed out that she had no knowledge of the action nor reason to know of it prior to the homeowner’s amendment of the complaint, and that the controlling statute of limitations had expired after the original complaint was filed and before the amended complaint was filed.

Should the court grant the manufacturer’s motion to dismiss?
A Yes, because the statute of limitations had expired before the amended complaint was filed.
B Yes, because the amended complaint was filed without leave of the court or the contractor’s agreement.
C No, because the relation back doctrine applies to this amendment.
D No, because the amendment was filed within the required time period for amending a complaint as of right.

SUBMIT ANSWER

C No, because the relation back doctrine applies to this amendment.

Sorry, that's not the best choice.

The answer you selected is not the best choice in this situation.

Answer choice A is correct. Because the statute of limitations with respect to the homeowner’s claim against the manufacturer had expired prior to the time that the homeowner amended the complaint to include this claim, the court should grant the manufacturer’s motion to dismiss. Answer choice B is incorrect because a plaintiff may amend a complaint once as of right without seeking leave of the court or consent of the defendant if the amendment if made within 21 days of the service of the defendant’s answer. Here, the homeowner filed the amendment 20 days after the defendant served the answer. Answer choice C is incorrect because the relation back doctrine does not apply in this situation. The amendment added a new claim against a new defendant. The amendment did not add a new claim against an existing defendant that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading. Also, the amendment did not change the defendant against whom the claim was asserted to a defendant who knew or should have known that the action would have been brought against him, but for a mistake concerning the proper party’s identity. Answer choice D is incorrect. Even though the homeowner’s filing of the amended complaint was within the 21-day time period for filing an amendment as of right, the court should grant the motion to dismiss based on expiration of the statute of limitations with regard to the homeowner’s complaint against the manufacturer.

Well, I haven't gotten to those questions yet, but just reading FRCP 15, it looks like you can use the original filing date for relation back in three situations:

(1) The specific substantive law in question allows for relation back in this scenario; OR
(2) You DON'T change the parties, but DO change the claims against the named parties to add more that arose from the same transaction; OR
(3) You DO change the parties--but only by substitution, not by addition--and DON'T change the claims, and the substituted party knew of the original filing and knew the original action would or should have been brought against it.

So it looks like you can't use the doctrine of relation back to add NEW claims against NEW parties even if the claims arise from the same transaction. This makes sense if you think about it. You shouldn't be able to overcome the statute of limitations for claims you didn't assert, against parties you never named, just because you filed a complaint. But if you simply messed up which defendant you named, or you failed to bring up related claims against the defendant you DID name, you can relate back.

That's my read of the situation. It seems to jibe with Themis saying that the relation back doctrine simply doesn't apply when there is a "new claim against a new defendant."

That makes a lot of sense...many thanks!

Yep. I missed the same question. I don't know why, but I read it as the manufacturer being the same party as the contractor (I probably read it too fast and made assumptions). The only reason it doesn't relate back is because it's a new party (as the poster above explained). If it was the same party, it would be okay.

[Bass]

Yep. I missed the same question. I don't know why, but I read it as the manufacturer being the same party as the contractor (I probably read it too fast and made assumptions). The only reason it doesn't relate back is because it's a new party (as the poster above explained). If it was the same party, it would be okay.

How do people learn the black letter law to this level of detail....was it remnant knowledge from law school? I'm preparing using the Themis outlines (as opposed to the lecture handouts) but even then I hardly think it's possible to cover every word in the outlines, like I would need to if I was to answer this q rightly... I just skim a part if I thought I got the general gist...

[lavarman84]

Yep. I missed the same question. I don't know why, but I read it as the manufacturer being the same party as the contractor (I probably read it too fast and made assumptions). The only reason it doesn't relate back is because it's a new party (as the poster above explained). If it was the same party, it would be okay.

How do people learn the black letter law to this level of detail....was it remnant knowledge from law school? I'm preparing using the Themis outlines (as opposed to the lecture handouts) but even then I hardly think it's possible to cover every word in the outlines, like I would need to if I was to answer this q rightly... I just skim a part if I thought I got the general gist...

You don't. You're not going to learn everything. I just have tried to learn the big concepts and then learned what I could from questions that I missed that were more detailed. All you have to do is pass. If you're able to consistently pull scores in the 70% range on MBE questions by the time the bar comes around, you'll put yourself in good position to pass the entire bar in a 50% MBE state.(assuming you have a minimal level of competency with the essays)

Truthfully, if you asked me to articulate a lot of the MBE stuff, I couldn't do it well. I just hope that the answers trigger my memory of something from the lectures. It usually works. And yes, there are some remnants of law school knowledge in there.(but not a lot)

I'm actually not even using the outlines right now. I plan to go back and review the parts of each topic in the outline that I am struggling with on the PQs, but I haven't actually read any of the outlines yet. I've just listened to the lectures and done the PQs (and learn what I could from question explanations). I've found the lectures are really helpful because they teach the topics that are most often tested well. From there, I basically guess on anything that wasn't covered if I have no clue.

[CJames33]

Yep. I missed the same question. I don't know why, but I read it as the manufacturer being the same party as the contractor (I probably read it too fast and made assumptions). The only reason it doesn't relate back is because it's a new party (as the poster above explained). If it was the same party, it would be okay.

How do people learn the black letter law to this level of detail....was it remnant knowledge from law school? I'm preparing using the Themis outlines (as opposed to the lecture handouts) but even then I hardly think it's possible to cover every word in the outlines, like I would need to if I was to answer this q rightly... I just skim a part if I thought I got the general gist...

You don't need to learn everything. But you want to be familiar with rules. If you're familiar, but don't have it memorized, an answer choice may spark your memory. What I do is turn those outlines into a shorter outline of rule statements. So a 40 page evidence is a 4 page rule outline, 90 pages civ pro is 7 page rule outline. Makes it easier to review, and making the rule outline helps a lot. it takes a while, but it is good review work.

[foundingfather]

Yep. I missed the same question. I don't know why, but I read it as the manufacturer being the same party as the contractor (I probably read it too fast and made assumptions). The only reason it doesn't relate back is because it's a new party (as the poster above explained). If it was the same party, it would be okay.

How do people learn the black letter law to this level of detail....was it remnant knowledge from law school? I'm preparing using the Themis outlines (as opposed to the lecture handouts) but even then I hardly think it's possible to cover every word in the outlines, like I would need to if I was to answer this q rightly... I just skim a part if I thought I got the general gist...

You don't need to learn everything. But you want to be familiar with rules. If you're familiar, but don't have it memorized, an answer choice may spark your memory. What I do is turn those outlines into a shorter outline of rule statements. So a 40 page evidence is a 4 page rule outline, 90 pages civ pro is 7 page rule outline. Makes it easier to review, and making the rule outline helps a lot. it takes a while, but it is good review work.

would you PM me a copy/pasted one page example of your rule statements? I want to do this to get the rules down for the essay portion and so I can have some practice articulating basic rules of law but I'm not sure what format to use

i might end up just handwriting my short outlines if anything

[Mr. Blackacre]

I have a question about issue preclusion - have tried to look at past discussions of it on this thread and prior Themis threads, but I'm still confused.

Themis seems pretty insistent that issue preclusion can only be used against parties to the original lawsuit. Both MBE questions and an essay have model answers that clearly state this. On the other hand, my Critical Pass flashcards state that the modern view of issue preclusion allows using it even when someone wasn't a party to the original lawsuit. What view do the UBE graders take?

[helpappreciated]

Can someone explain why you cannot elicit a confession from a suspect but you can use deceit to get them to voluntarily confess? It sounds like the rule on eliciting a confession would exclude you from tricking the suspect from confessing.

[whats an updog]

Can someone explain why you cannot elicit a confession from a suspect but you can use deceit to get them to voluntarily confess? It sounds like the rule on eliciting a confession would exclude you from tricking the suspect from confessing.

Just getting into Crim Pro, but I don't think there is a rule against eliciting a confession. You can't coerce a confession, but you can elicit one (e.g. "Hey, why don't you confess?").

[2014applicant]

I have a question about issue preclusion - have tried to look at past discussions of it on this thread and prior Themis threads, but I'm still confused.

Themis seems pretty insistent that issue preclusion can only be used against parties to the original lawsuit. Both MBE questions and an essay have model answers that clearly state this. On the other hand, my Critical Pass flashcards state that the modern view of issue preclusion allows using it even when someone wasn't a party to the original lawsuit. What view do the UBE graders take?

My understanding is that (modern view) you can only use issue preclusion against somebody who was a party to a prior lawsuit at which the issue was litigated. You, the party seeking issue preclusion do not have to be a party to any prior lawsuit, but the party against whom you are asserting it does.

I don't think you can ever use it if neither P nor D were parties to some prior lawsuit where the same issue was litigated ... that would just be judicial precedent.

[whats an updog]

Crim Pro Question:

Ide-Don says that police cannot reapproach after Miranda has been invoked, but the lecture hand out says that after a substantial period of time, police CAN go back to the suspect, give warnings again, and seek to talk. I assume the latter is correct since Karlan seems like a top dog, but just wanted to double check with TLS

[SeewhathappensLarry]

Crim Pro Question:

Ide-Don says that police cannot reapproach after Miranda has been invoked, but the lecture hand out says that after a substantial period of time, police CAN go back to the suspect, give warnings again, and seek to talk. I assume the latter is correct since Karlan seems like a top dog, but just wanted to double check with TLS

I believe the latter is correct. It's what I learned in law school too.

[bmmccb223]

Can someone explain why you cannot elicit a confession from a suspect but you can use deceit to get them to voluntarily confess? It sounds like the rule on eliciting a confession would exclude you from tricking the suspect from confessing.

Seems like you are confusing a couple concepts here. First, when the subject is in custody, the police must provide a suspect Miranda warnings before they can say anything that might reasonably elicit an incriminating response. This would include making deceitful statements designed to elicit an incriminating response. Provided that the officers have provided Miranda warnings, then deceitful conduct on the part of the interrogators is permitted.

With regard to voluntariness of a confession under the Due Process Clause, the test is whether the suspect's will has been overborne based on the totality of the circumstances. Courts will typically find a confession involuntary when there is evidence of physical coercion, sleep deprivation, unreasonably long interrogation, etc. A confession that is involuntary under the Due Process Clause is inadmissible even if the police complied with Miranda.

[Bass]

Crim Pro Question:

Ide-Don says that police cannot reapproach after Miranda has been invoked, but the lecture hand out says that after a substantial period of time, police CAN go back to the suspect, give warnings again, and seek to talk. I assume the latter is correct since Karlan seems like a top dog, but just wanted to double check with TLS

I believe the latter is correct. It's what I learned in law school too.

It's on page 27 of the Crim Pro outlines...

1 Once right to counsel under the Miranda rights is invoked, all interrogations must stop until counsel is present.
2 But even so, if the suspect voluntarily re initiates conversation, his statements are admissible because it's voluntary, but mostly because it's not in response to custodial interrogation.
3 If there is a more than 14 days break in custody (eg suspect is released), police can reopen interrogation, but must issue fresh Miranda warnings.

[bmmccb223]

Crim Pro Question:

Ide-Don says that police cannot reapproach after Miranda has been invoked, but the lecture hand out says that after a substantial period of time, police CAN go back to the suspect, give warnings again, and seek to talk. I assume the latter is correct since Karlan seems like a top dog, but just wanted to double check with TLS

If the suspect invokes right to remain silent, the police can resume interrogation if they "scrupulously honor" the invocation (e.g. no bad faith conduct), which includes halting interrogation for a "significant time period." A time period is significant if it is over two hours.

If the suspect invokes right to counsel, the police can resume interrogation after a 14 day break from the custodial interrogation. Maryland v. Schatzer.

[michelle3908]

Yep. I missed the same question. I don't know why, but I read it as the manufacturer being the same party as the contractor (I probably read it too fast and made assumptions). The only reason it doesn't relate back is because it's a new party (as the poster above explained). If it was the same party, it would be okay.

How do people learn the black letter law to this level of detail....was it remnant knowledge from law school? I'm preparing using the Themis outlines (as opposed to the lecture handouts) but even then I hardly think it's possible to cover every word in the outlines, like I would need to if I was to answer this q rightly... I just skim a part if I thought I got the general gist...

You don't need to learn everything. But you want to be familiar with rules. If you're familiar, but don't have it memorized, an answer choice may spark your memory. What I do is turn those outlines into a shorter outline of rule statements. So a 40 page evidence is a 4 page rule outline, 90 pages civ pro is 7 page rule outline. Makes it easier to review, and making the rule outline helps a lot. it takes a while, but it is good review work.

Themis does seem to be testing some minor nuances you'd only find in the outlines, but I am going for getting the bulk of the main rules down from the lectures, because as the above poster said, you don't need to learn everything to pass. At the end of the con law lectures, Professor Jeffries (defendaaaannt guy) had some good advice which was have everything down in the lectures because that's the major BLL, and you'll get the bulk of the questions right. And you don't have to score perfectly, you can barely pass and it's still passing

[champloo]

TIL wrt diversity in SMJ, residency of state != citizenship of state.

[jennifer_42]

TIL wrt diversity in SMJ, residency of state != citizenship of state.

That seems weird. Can you explain? "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

[whats an updog]

Crim Pro Question:

Ide-Don says that police cannot reapproach after Miranda has been invoked, but the lecture hand out says that after a substantial period of time, police CAN go back to the suspect, give warnings again, and seek to talk. I assume the latter is correct since Karlan seems like a top dog, but just wanted to double check with TLS

I believe the latter is correct. It's what I learned in law school too.

It's on page 27 of the Crim Pro outlines...

1 Once right to counsel under the Miranda rights is invoked, all interrogations must stop until counsel is present.
2 But even so, if the suspect voluntarily re initiates conversation, his statements are admissible because it's voluntary, but mostly because it's not in response to custodial interrogation.
3 If there is a more than 14 days break in custody (eg suspect is released), police can reopen interrogation, but must issue fresh Miranda warnings.

If the suspect invokes right to remain silent, the police can resume interrogation if they "scrupulously honor" the invocation (e.g. no bad faith conduct), which includes halting interrogation for a "significant time period." A time period is significant if it is over two hours.

If the suspect invokes right to counsel, the police can resume interrogation after a 14 day break from the custodial interrogation. Maryland v. Schatzer.

Thanks you both kindly

[whats an updog]

Birdthistle and 11 videos of Corps are really irritating me

been a long day

[champloo]

TIL wrt diversity in SMJ, residency of state != citizenship of state.

That seems weird. Can you explain? "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

the question says that P is domiciled in state B, D is domiciled in state A, and action was filed in fed district court in state A for a wrongful death claim of $250k. the complaint alleges that "Jurisdiction is founded upon diversity, the plaintiff being a resident of State B, and the defendant a resident of State A."

the answer explanations states "Because citizenship, not residency, is the basis for diversity jurisdiction..." thus D could properly challenge P's complaint because the complaint failed to properly allege SMJ of the court.

not sure if you understood my explanation but you can check for yourself. it's question 4998. this question seems like one of those "we're gonna artificially lower scores by being dicks" types of questions.

[lavarman84]

Birdthistle and 11 videos of Corps are really irritating me

been a long day

Yea, I wasn't a fan of Birdthistle. Luckily the Corps guy was someone from my state. I liked him. I like the lecturers who keep the lectures reasonably short, get to the point, and then use examples.

[lavarman84]

TIL wrt diversity in SMJ, residency of state != citizenship of state.

That seems weird. Can you explain? "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

the question says that P is domiciled in state B, D is domiciled in state A, and action was filed in fed district court in state A for a wrongful death claim of $250k. the complaint alleges that "Jurisdiction is founded upon diversity, the plaintiff being a resident of State B, and the defendant a resident of State A."

the answer explanations states "Because citizenship, not residency, is the basis for diversity jurisdiction..." thus D could properly challenge P's complaint because the complaint failed to properly allege SMJ of the court.

not sure if you understood my explanation but you can check for yourself. it's question 4998. this question seems like one of those "we're gonna artificially lower scores by being dicks" types of questions.

I'm glad I haven't gotten that question yet. I'd be furious if I read that explanation after missing it.