BarBri Bar Review Hangout - July 2016 (UBE -NY) Forum

[bwh8813]

Are y'all watching those review videos tomorrow? I'm wondering if there's any actual benefit to them as opposed to just going through the answer explanations on my own. Inclined to skip them, but getting major Fomo

I'm on like 5/7. (Switched the video days with the last tw days). They are okay. I think you would be fine with either.

I'm using today to catch up on MEE's that I've skipped. I figured I'd start reviewing the Sim MBE tonight and tomorrow. Do the lectures give exam tips and things to look out for or are they pretty much just lectures and saying exactly what's written in the explanations? I was planning on reviewing on my own and just watching the videos for the two subjects I was <70% on.

[ArtistOfManliness]

Are y'all watching those review videos tomorrow? I'm wondering if there's any actual benefit to them as opposed to just going through the answer explanations on my own. Inclined to skip them, but getting major Fomo

I'm on like 5/7. (Switched the video days with the last tw days). They are okay. I think you would be fine with either.

I'm using today to catch up on MEE's that I've skipped. I figured I'd start reviewing the Sim MBE tonight and tomorrow. Do the lectures give exam tips and things to look out for or are they pretty much just lectures and saying exactly what's written in the explanations? I was planning on reviewing on my own and just watching the videos for the two subjects I was <70% on.

Watched them and horribly regret it.

[mvp99]

Q 15 sim exam answers

[+] Spoiler

doesn't address the issue at all that the dead brother's performance was not completed because the brother didn't perform for 10 months; the brother's estate is not liable in anyway because it's a unilateral K but he has no right to payment because 10 months was an express condition of the offer. Substantial performance is rarely used to override express conditions.

[KRose04]

Are y'all watching those review videos tomorrow? I'm wondering if there's any actual benefit to them as opposed to just going through the answer explanations on my own. Inclined to skip them, but getting major Fomo

I'm on like 5/7. (Switched the video days with the last tw days). They are okay. I think you would be fine with either.

I'm using today to catch up on MEE's that I've skipped. I figured I'd start reviewing the Sim MBE tonight and tomorrow. Do the lectures give exam tips and things to look out for or are they pretty much just lectures and saying exactly what's written in the explanations? I was planning on reviewing on my own and just watching the videos for the two subjects I was <70% on.

Watched them and horribly regret it.

Oh no! Why? Is reading the explanations the same thing?

[sublime]

I don't "regret" watching them. And I think they serve as an okay review/strategy thing, but you would be fine without, esp if you did well on the sim.

[KRose04]

I don't "regret" watching them. And I think they serve as an okay review/strategy thing, but you would be fine without, esp if you did well on the sim.

See my problem is I have to keep pausing them to write down the hints they give. Do the written explanations have those too? Because then I'll just read them. The videos are taking me forever. Btw sublime, I bought the critical pass cards. Thanks

[rmhco]

I don't "regret" watching them. And I think they serve as an okay review/strategy thing, but you would be fine without, esp if you did well on the sim.

See my problem is I have to keep pausing them to write down the hints they give. Do the written explanations have those too? Because then I'll just read them. The videos are taking me forever. Btw sublime, I bought the critical pass cards. Thanks

I'm kind of combining them with intensive outline review. Watching at higher speed, pausing to fill in blanks and looking stuff up that I've forgotten to write a comprehensive outline during the course of the lecture, plus adding in some of the exam tips. Might not work for everyone but, at least at the moment, it feels like an OK use of my time -- also, I've found the workshop analysis lectures to be some of the most helpful to me in solidifying my understanding of nuances, so if they haven't been useful to you then this strategy might not be the best!

[wwwcol]

I thought I understood permissive counterclaims and when you could bring a counterclaim arising out of a different T/O until one of the recent Barbri question sets. Now, I am wondering if the statements below, from my notes, are totally wrong/made up?

Is the rule that you can bring a counterclaim arising out of a different T/O if there is an independent basis for SMJ (diversity or fed ?), BUT the ct. has discretion to dismiss the permissive counterclaim? And if there is not an independent basis for SMJ (ie the Ct. would have to exercise supplemental jdx), the counterclaim has to arise out of the same T/O.

Same t/O is compulsory, different t/O is permissive. Every claim needs SMJ

Didn't know that court has discretion to dismiss permissive counterclaims though. Is that right?

Isn't the whole purpose of supplemental jdx that the fed ct. can hear a case it otherwise lacks SMJ to hear?

[sublime]

I thought I understood permissive counterclaims and when you could bring a counterclaim arising out of a different T/O until one of the recent Barbri question sets. Now, I am wondering if the statements below, from my notes, are totally wrong/made up?

Is the rule that you can bring a counterclaim arising out of a different T/O if there is an independent basis for SMJ (diversity or fed ?), BUT the ct. has discretion to dismiss the permissive counterclaim? And if there is not an independent basis for SMJ (ie the Ct. would have to exercise supplemental jdx), the counterclaim has to arise out of the same T/O.

Same t/O is compulsory, different t/O is permissive. Every claim needs SMJ

Didn't know that court has discretion to dismiss permissive counterclaims though. Is that right?

Isn't the whole purpose of supplemental jdx that the fed ct. can hear a case it otherwise lacks SMJ to hear?

Supplemental is part of SMJ.

But yea, supplemental is used to get SMJ over a claim that they otherwise lack Fed Q or diversity to hear.

[LionelHutzJD]

Regarding our discussion of bystander recovery under IIED, here is the response I received from Prof. Schechter:


A bystander might possible recover for INTENTIONAL infliction of emotional distress, but there would have to be INTENT.

So, how might it come to pass that I (the eventual defendant) could act directly on person X, but do so with the goal or purpose of distressing you (the eventual plaintiff)? Well, I could tie you both up, knowing that you care for X, and then shoot X in the knee cap, with the GOAL of distressing YOU. Moreover, even if it wasn't my GOAL to distress you, I might KNOW to a certainty that you would be distressed because, let's face it, seeing anyone get shot before your eyes is highly likely to be distressing to the witness.

If a defendant is acting negligently, however, then none of this would be relevant, and there could be no claim for IIMD. Keep your eye on the defendant. Is he being deliberate, or careless.

With that as general background, here is Restatement (Second) section 46 says about this after discussing the geneal rule about outrageous conduct:

(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or

(b) to any other person who is present at the time, if such distress results in bodily harm.

So, distilling this to an "exam" rule, if I act "directly" on X, you can recover for IIMD if you are present and either one of two possible "plus" factors also exist -- (1) X is a member of your immediate family, or (2) you suffer bodily harm (subsequent symptoms) from the distress.
The Restatement Comments makes the point this way:
l. Conduct directed at a third person. Where the extreme and outrageous conduct is directed at a third person, as where, for example, a husband is murdered in the presence of his wife, the actor may know that it is substantially certain, or at least highly probable, that it will cause severe emotional distress to the plaintiff. In such cases the rule of this Section applies. The cases thus far decided, however, have limited such liability to plaintiffs who were present at the time, as distinguished from those who discover later what has occurred. The limitation may be justified by the practical necessity of drawing the line somewhere, since the number of persons who may suffer emotional distress at the news of an assassination of the President is virtually unlimited, and the distress of a woman who is informed of her husband's murder ten years afterward may lack the guarantee of genuineness which her presence on the spot would afford. . . . Furthermore, the decided cases in which recovery has been allowed have been those in which the plaintiffs have been near relatives, or at least close associates, of the person attacked. The language of the cases is not, however, limited to such plaintiffs, and there appears to be no essential reason why a stranger who is asked for a match on the street should not recover when the man who asks for it is shot down before his eyes, at least where his emotional distress results in bodily harm.
Illustrations:
21. In the presence of A, a bystander, B quarrels violently with C, draws a pistol, and threatens to kill C. B knows that A is pregnant, and that it is highly probable that his conduct will cause severe emotional distress to A. A suffers severe emotional distress, which results in a miscarriage. B is subject to liability to A.
22. The same facts as in Illustration 21, except that A is concealed in an adjoining room, and B does not know of her presence. B is not liable to A.

[mvp99]

Regarding our discussion of bystander recovery under IIED, here is the response I received from Prof. Schechter:


A bystander might possible recover for INTENTIONAL infliction of emotional distress, but there would have to be INTENT.

So, how might it come to pass that I (the eventual defendant) could act directly on person X, but do so with the goal or purpose of distressing you (the eventual plaintiff)? Well, I could tie you both up, knowing that you care for X, and then shoot X in the knee cap, with the GOAL of distressing YOU. Moreover, even if it wasn't my GOAL to distress you, I might KNOW to a certainty that you would be distressed because, let's face it, seeing anyone get shot before your eyes is highly likely to be distressing to the witness.

If a defendant is acting negligently, however, then none of this would be relevant, and there could be no claim for IIMD. Keep your eye on the defendant. Is he being deliberate, or careless.

With that as general background, here is Restatement (Second) section 46 says about this after discussing the geneal rule about outrageous conduct:

(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or

(b) to any other person who is present at the time, if such distress results in bodily harm.

So, distilling this to an "exam" rule, if I act "directly" on X, you can recover for IIMD if you are present and either one of two possible "plus" factors also exist -- (1) X is a member of your immediate family, or (2) you suffer bodily harm (subsequent symptoms) from the distress.
The Restatement Comments makes the point this way:
l. Conduct directed at a third person. Where the extreme and outrageous conduct is directed at a third person, as where, for example, a husband is murdered in the presence of his wife, the actor may know that it is substantially certain, or at least highly probable, that it will cause severe emotional distress to the plaintiff. In such cases the rule of this Section applies. The cases thus far decided, however, have limited such liability to plaintiffs who were present at the time, as distinguished from those who discover later what has occurred. The limitation may be justified by the practical necessity of drawing the line somewhere, since the number of persons who may suffer emotional distress at the news of an assassination of the President is virtually unlimited, and the distress of a woman who is informed of her husband's murder ten years afterward may lack the guarantee of genuineness which her presence on the spot would afford. . . . Furthermore, the decided cases in which recovery has been allowed have been those in which the plaintiffs have been near relatives, or at least close associates, of the person attacked. The language of the cases is not, however, limited to such plaintiffs, and there appears to be no essential reason why a stranger who is asked for a match on the street should not recover when the man who asks for it is shot down before his eyes, at least where his emotional distress results in bodily harm.
Illustrations:
21. In the presence of A, a bystander, B quarrels violently with C, draws a pistol, and threatens to kill C. B knows that A is pregnant, and that it is highly probable that his conduct will cause severe emotional distress to A. A suffers severe emotional distress, which results in a miscarriage. B is subject to liability to A.
22. The same facts as in Illustration 21, except that A is concealed in an adjoining room, and B does not know of her presence. B is not liable to A.

ok IIED D must know of the relationship + presence.... and bystander recovery in NIED (that's not zone of danger)?

[LionelHutzJD]

Regarding our discussion of bystander recovery under IIED, here is the response I received from Prof. Schechter:


A bystander might possible recover for INTENTIONAL infliction of emotional distress, but there would have to be INTENT.

So, how might it come to pass that I (the eventual defendant) could act directly on person X, but do so with the goal or purpose of distressing you (the eventual plaintiff)? Well, I could tie you both up, knowing that you care for X, and then shoot X in the knee cap, with the GOAL of distressing YOU. Moreover, even if it wasn't my GOAL to distress you, I might KNOW to a certainty that you would be distressed because, let's face it, seeing anyone get shot before your eyes is highly likely to be distressing to the witness.

If a defendant is acting negligently, however, then none of this would be relevant, and there could be no claim for IIMD. Keep your eye on the defendant. Is he being deliberate, or careless.

With that as general background, here is Restatement (Second) section 46 says about this after discussing the geneal rule about outrageous conduct:

(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or

(b) to any other person who is present at the time, if such distress results in bodily harm.

So, distilling this to an "exam" rule, if I act "directly" on X, you can recover for IIMD if you are present and either one of two possible "plus" factors also exist -- (1) X is a member of your immediate family, or (2) you suffer bodily harm (subsequent symptoms) from the distress.
The Restatement Comments makes the point this way:
l. Conduct directed at a third person. Where the extreme and outrageous conduct is directed at a third person, as where, for example, a husband is murdered in the presence of his wife, the actor may know that it is substantially certain, or at least highly probable, that it will cause severe emotional distress to the plaintiff. In such cases the rule of this Section applies. The cases thus far decided, however, have limited such liability to plaintiffs who were present at the time, as distinguished from those who discover later what has occurred. The limitation may be justified by the practical necessity of drawing the line somewhere, since the number of persons who may suffer emotional distress at the news of an assassination of the President is virtually unlimited, and the distress of a woman who is informed of her husband's murder ten years afterward may lack the guarantee of genuineness which her presence on the spot would afford. . . . Furthermore, the decided cases in which recovery has been allowed have been those in which the plaintiffs have been near relatives, or at least close associates, of the person attacked. The language of the cases is not, however, limited to such plaintiffs, and there appears to be no essential reason why a stranger who is asked for a match on the street should not recover when the man who asks for it is shot down before his eyes, at least where his emotional distress results in bodily harm.
Illustrations:
21. In the presence of A, a bystander, B quarrels violently with C, draws a pistol, and threatens to kill C. B knows that A is pregnant, and that it is highly probable that his conduct will cause severe emotional distress to A. A suffers severe emotional distress, which results in a miscarriage. B is subject to liability to A.
22. The same facts as in Illustration 21, except that A is concealed in an adjoining room, and B does not know of her presence. B is not liable to A.

ok IIED D must know of the relationship + presence.... and bystander recovery in NIED (that's not zone of danger)?

It looks like under IIED, its about the D INTENDING the conduct. Under NIED, its the D being careless. Two separate theories.

Under NIED, you can recover as a bystander (if close relationship) or zone of danger (if D creates a forseeable risk of harm and you are present + a contemporaneous witness).

[BK88]

I couldn't deal with more videos so I just decided to review answers on my own.

[jj252525]

Question on today's family law essay (1)

[+] Spoiler

The instructor specifically said that spousal support amounts CAN be affected by the fault of one spouse. Yet today's model answer seems to suggest otherwise. I'm assuming it can, and this is a mistake?

Moreover, the instructor specifically noted that graders will not be looking for a laundry list of factors. Yet it almost seems like marks are being given out specifically for including a laundry list. Come on, Barbri - make up your mind

[WahooLaw24]

Question on today's family law essay (1)

[+] Spoiler

The instructor specifically said that spousal support amounts CAN be affected by the fault of one spouse. Yet today's model answer seems to suggest otherwise. I'm assuming it can, and this is a mistake?

Moreover, the instructor specifically noted that graders will not be looking for a laundry list of factors. Yet it almost seems like marks are being given out specifically for including a laundry list. Come on, Barbri - make up your mind

Was also confused on that point. Real answer is probably that states (and even individual judges) may come out differently on this issue, since those cases are so fact intensive.

[mvp99]

Should we assume tenancy by the entirety when there is a conveyance to H and W as joint tenants on the MBE? Barbri doesn't think so.

[ArtistOfManliness]

Question on today's family law essay (1)

[+] Spoiler

The instructor specifically said that spousal support amounts CAN be affected by the fault of one spouse. Yet today's model answer seems to suggest otherwise. I'm assuming it can, and this is a mistake?

Moreover, the instructor specifically noted that graders will not be looking for a laundry list of factors. Yet it almost seems like marks are being given out specifically for including a laundry list. Come on, Barbri - make up your mind

Was also confused on that point. Real answer is probably that states (and even individual judges) may come out differently on this issue, since those cases are so fact intensive.

Long outline agrees that its a state by state issue. However, our instructor's views (that fault is taken into account) is still the minority position. Typical barbri. Such a little shit.

[ArtistOfManliness]

Should we assume tenancy by the entirety when there is a conveyance to H and W as joint tenants on the MBE? Barbri doesn't think so.

Not when it's explicit "as joint tenants with the right of survivorship." Similarly, we wouldn't assume TbyE if it were to spouses "as tenants in common." Applies only when question as to the conveyance-ownership status (and only in some states).

[wthelicopt]

What are you guys thinking in terms of essay lengths?

Do you think one or two sentences to cover each part of CIRAC would be sufficient per issue?

Not confident that I can pump out a full page and a half for every essay in 30 mins. Also, is there any place we can look at "realistic" essay responses, rather than Barbri's overly long and comprehensive ones?

[KRose04]

What are you guys thinking in terms of essay lengths?

Do you think one or two sentences to cover each part of CIRAC would be sufficient per issue?

Not confident that I can pump out a full page and a half for every essay in 30 mins.

Yea this is my concern too (aside from not having any of the rules memorized yet). The summaries they give on the MEE sample answers are usually short. I'd like to know if our answers can be short too, because there's no way I can write 1-2 pages like barbri does

[LionelHutzJD]

Should we assume tenancy by the entirety when there is a conveyance to H and W as joint tenants on the MBE? Barbri doesn't think so.

Not when it's explicit "as joint tenants with the right of survivorship." Similarly, we wouldn't assume TbyE if it were to spouses "as tenants in common." Applies only when question as to the conveyance-ownership status (and only in some states).

A conveyance to H and W is presumptively a tenancy by the entirety unless it explicitly states a joint tenancy or a tenancy in common. Is this right?

[KRose04]

Should we assume tenancy by the entirety when there is a conveyance to H and W as joint tenants on the MBE? Barbri doesn't think so.

Not when it's explicit "as joint tenants with the right of survivorship." Similarly, we wouldn't assume TbyE if it were to spouses "as tenants in common." Applies only when question as to the conveyance-ownership status (and only in some states).

A conveyance to H and W is presumptively a tenancy by the entirety unless it explicitly states a joint tenancy or a tenancy in common. Is this right?

I thought if it said "with the right of survivorship" that it was a JT even if it's for a married couple

[generaltoast]

I'm really not getting how to do well on the MEE. I cant get above a 4 on the graded essays and not much reason is provided. The only critique I got on the latest civ pro essay was "could use more discussion of doing business in question 1". I got a 3.

[LionelHutzJD]

I'm really not getting how to do well on the MEE. I cant get above a 4 on the graded essays and not much reason is provided. The only critique I got on the latest civ pro essay was "could use more discussion of doing business in question 1". I got a 3.

Ugh, Barbri needs to know that "continuous and systematic activities" is completely abolished. The only test under Gen Jxn is whether the corp is at home in the forum state.

[mvp99]

had this question on Adaptibar today which said that D who sets out to kill A, thinks X is A but it's not an shoots and misses X, D is not liable for attempt to murder A. I think remember my crim law prof saying this is wrong. Factual impossibility is not a defense and it doesn't matter whether its John or Victor, murder is the killing of another. D is guilty of attempted murder of both A and X (transferred intent is not really necessary for X because A intended to kill another). But maybe I'm wrong.