July 2016 California Bar Exam Forum

[cal_pushed]

Contracts: Anyone analyze whether Dirts' non performance "on or by June 1st" was a material breach? Conclude it was? Also, did anyone analyze Builder's damages (i.e. Contract, foreseeable, certain, mitigation/ unavoidable)?

[UncleStew]

Contracts: Anyone analyze whether Dirts' non performance "on or by June 1st" was a material breach? Conclude it was? Also, did anyone analyze Builder's damages (i.e. Contract, foreseeable, certain, mitigation/ unavoidable)?

Yes re material breach. Concluded it was not bc no time of essence clause though terms indicated urgency. And he was able to hire substitute performance that completed on time suggesting lack of materiality.

Believe I hit in damages briefly but thought B repudiated and performance excused for D.

What were Ds damages?

[MsAvocadoPit]

.

[Underoath]

To everyone freaking out:

First of all, chill. It's over. You can't change your answer, so it's not worth demoralizing yourself by obsessing over all the issues you supposedly missed. Remember, you're not trying to be valedictorian of the bar exam.

Secondly, it helps to have perspective on how low your scores can actually be and still pass. Here is a site where you can plug in the scores you think you got on each essay, PT, and the MBE, to see if that would be a passing score:

https://one-timers.com/one-timers-bar-exam-calculator/

For reference, the following scores would be good enough to pass:

Essay 1: 55
Essay 2: 65
Essay 3: 55
Essay 4: 50
Essay 5: 70
Essay 6: 70
PTA: 60
PTB: 70
MBE: 120/190 (about 63% correct)

Final score: 1442

Basically, you can afford to bomb a couple of essays/PTs as long as you have one or two good ones.

WOW you have given me hope

[Underoath]

I absolutely DESTROYED essay 5 & 6. Essay 3 was probably a 60 or 65 and all the other ones were not even a 60. I hope I still passed. I was at a 1433, need a 1440. Come on California don't screw me over this time!!! :/

I feel literally about 60/40 in how I feel if I pass. Decided to come to Starbucks and continue to study. It's less pressure this way. If I pass = big deal I wasted more time studying, but if I fail I won't feel too much pressure to study all these subjects. I neglected to study California Civil Procedure or even K because it was tested twice the last administration. Can't afford this nonsense anymore. Have to study each subject.

[MsAvocadoPit]

I absolutely DESTROYED essay 5 & 6. Essay 3 was probably a 60 or 65 and all the other ones were not even a 60. I hope I still passed. I was at a 1433, need a 1440. Come on California don't screw me over this time!!! :/

I feel literally about 60/40 in how I feel if I pass. Decided to come to Starbucks and continue to study. It's less pressure this way. If I pass = big deal I wasted more time studying, but if I fail I won't feel too much pressure to study all these subjects. I neglected to study California Civil Procedure or even K because it was tested twice the last administration. Can't afford this nonsense anymore. Have to study each subject.

It is possible! I think solid 75/80 can really change things.
How did you do on MBE last time? Did you take barbri? I'm wondering if I should input my barbri score as estimate since it was pretty good, or err on safe side, enter 128?

[Underoath]

I absolutely DESTROYED essay 5 & 6. Essay 3 was probably a 60 or 65 and all the other ones were not even a 60. I hope I still passed. I was at a 1433, need a 1440. Come on California don't screw me over this time!!! :/

I feel literally about 60/40 in how I feel if I pass. Decided to come to Starbucks and continue to study. It's less pressure this way. If I pass = big deal I wasted more time studying, but if I fail I won't feel too much pressure to study all these subjects. I neglected to study California Civil Procedure or even K because it was tested twice the last administration. Can't afford this nonsense anymore. Have to study each subject.

It is possible! I think solid 75/80 can really change things.
How did you do on MBE last time? Did you take barbri? I'm wondering if I should input my barbri score as estimate since it was pretty good, or err on safe side, enter 128?

My MBE is LOW. 1367. If my MBE was higher I would have passed last time. :/ I used adaptibar this time, but purchased it with only like 5 weeks left to go so didn't do too many questions I think around like 400. But better than nothing.

[a male human]

If I pass = big deal I wasted more time studying, but if I fail I won't feel too much pressure to study all these subjects. I neglected to study California Civil Procedure or even K because it was tested twice the last administration. Can't afford this nonsense anymore. Have to study each subject.

I think this is a great mindset. And yes, you can't mess around with the examiners. Every subject is fair game. It's more about preparation than trying to game the system. They will get you if you're not prepared to be multiple levels about the "minimum competence" requirement.

[Raiden]

Just know that the hardest part of the test is over, don't make the waiting game that much harder on yourself. I know easier said than done, but now your essays are in the hands of bar graders. Who knows what they are thinking and who knows how they will grade your work. Right now, just turn off TLS, go read a book, learn a language, go end poverty. Don't worry about the bar exam come Thanksgiving. Trust me, your mental health will thank me.

[chicoalto0649]

I absolutely DESTROYED essay 5 & 6. Essay 3 was probably a 60 or 65 and all the other ones were not even a 60. I hope I still passed. I was at a 1433, need a 1440. Come on California don't screw me over this time!!! :/

I feel literally about 60/40 in how I feel if I pass. Decided to come to Starbucks and continue to study. It's less pressure this way. If I pass = big deal I wasted more time studying, but if I fail I won't feel too much pressure to study all these subjects. I neglected to study California Civil Procedure or even K because it was tested twice the last administration. Can't afford this nonsense anymore. Have to study each subject.

Meh. You'll be fine. Wouldn't worry about CA Civ Pro since there was enough FRCP to kinda balance it out. I think you could get a 65 with solid PJ and Removal analysis, plus "close enough" on the other rules.

Imagine how I felt when time was called on essays 4-6 and I looked at my outline, saw that I had my standing notes laid out beautifully for con law and realized I didn't enter it in to ExamSoft! I hope I can salvage con law with the 11th A analysis and some OK -not spot on- Procedural due process

[cal_pushed]

Contracts: Anyone analyze whether Dirts' non performance "on or by June 1st" was a material breach? Conclude it was? Also, did anyone analyze Builder's damages (i.e. Contract, foreseeable, certain, mitigation/ unavoidable)?

Yes re material breach. Concluded it was not bc no time of essence clause though terms indicated urgency. And he was able to hire substitute performance that completed on time suggesting lack of materiality.

Believe I hit in damages briefly but thought B repudiated and performance excused for D.

What were Ds damages?

Why time of essence to make it material? Isn't material breach just a matter of whether the non breaching party has received "a substantial benefit of the bargain" at the time of the breach. Breach being non performance on June 1, express term in the contract. Builder had not received a substantial benefit of the bargain at that time. Soooo, material breach?

[bnghle234]

I don't wanna talk about the test specifically on here (I'll honor the process until results come out) but, generally, did anyone else do Barbri here? If you did, did you think the whole exam was noticeably easier than Barbri's scheduled work? The MBE seemed easer, although also a bit different. There were a lot more softball questions on the real thing and each question had at least one, maybe two, answer you knew were made up and not right, while Barbri rarely had this. The essays seemed shorter than Barbri's and contained slightly less issues on average and weren't really as tricky as the issues Barbri's essays covered (or how Barbri's essays expected us to cover them). The PTs were similar, but still, the real ones had a file and library much easier to read and less dense that they seemed shorter than the ones in Barbri's PTs. Based on my scored performance on Barbri graded essays, PT, and MBE, I walked out confident I passed, but then keep thinking what if there were things I obliviously missed out.

You know that Barbri's essays and PTs are actual past exam answers, right? Barbri does not write them. I thought the PTs and the essays were in line with what Barbri provided us because they were in fact taken from past bar exams.

I'm fairly sure Barbri answers are written by Barbri... Am I mistaken? I just looked at my essay/PT workbook (2013 edition, not sure if it has changed much since), and they don't appear to be real answers. Maybe a mix?

which state?

California

all essays, aside from a few agency/partnership essays, are directly from past exams. they even note right below the fact pattern which month/year that particular essay came from.

[UncleStew]

I thought the second stem of the question, we had to analyze B damages? I'm pretty sure it asked for that. I did compensatory, consequential, and incidental analysis.

I said yes to compensatory (bc I decided D Was in breach, so made it easier) but no to consequential above the comp, bc no indication his other work got delayed past fall deadline. Determined June was not material but sept date would have been.

When I did AR/breach, I actually decided that D anticipatorily repudiated, when he refused to use other non banned equipment in face of a direct question to use said equipment and there was a total ban on the other preferred equipment. I decided to interpret ban as not temporary. Just one way to come out on things- still hitting same law and issues, so should be okay I guess?

After thinking about the Q a little bit. I did not write about D Damages... But he could have had them (but I don't remember the question asking for D damages????)
He was not allowed to take other work for an entire month, which was part of k, so maybe whatever he gave up in jobs. And it's in K so of course B had reason to know.

Vaguely remember the call but I thought the two stems were just asking about the competing claims? Anyone remember?

I think re AR that the result doesn't matter so long as argument is sound and law is right. seems to me that if he was able to retain substitute performance then the fact D failed to start right on the 1st was inconsequential. Either argument was probably ok.

I found incidental and possible consequential damages.

[2TimesTheCharm]

I thought the second stem of the question, we had to analyze B damages? I'm pretty sure it asked for that. I did compensatory, consequential, and incidental analysis.

I said yes to compensatory (bc I decided D Was in breach, so made it easier) but no to consequential above the comp, bc no indication his other work got delayed past fall deadline. Determined June was not material but sept date would have been.

When I did AR/breach, I actually decided that D anticipatorily repudiated, when he refused to use other non banned equipment in face of a direct question to use said equipment and there was a total ban on the other preferred equipment. I decided to interpret ban as not temporary. Just one way to come out on things- still hitting same law and issues, so should be okay I guess?

After thinking about the Q a little bit. I did not write about D Damages... But he could have had them (but I don't remember the question asking for D damages????)
He was not allowed to take other work for an entire month, which was part of k, so maybe whatever he gave up in jobs. And it's in K so of course B had reason to know.

Vaguely remember the call but I thought the two stems were just asking about the competing claims? Anyone remember?

I think re AR that the result doesn't matter so long as argument is sound and law is right. seems to me that if he was able to retain substitute performance then the fact D failed to start right on the 1st was inconsequential. Either argument was probably ok.

I found incidental and possible consequential damages.

They were two competing claims. It came down to whether you interpreted D's initial failing to commence performance on time and demand for more money for no additional consideration as AR creating a duty to mitigate. If you did, the court will grant B the exp damages he wanted. If you didn't, then B's repudiation would be the first AR and you would deny B recovery and grant D recovery for loss of potential business, provided he could prove that he had business to lose (you would have to argue that despite the law, there was still some kind of business D can do with his new equipment)

[rcharter1978]

I don't wanna talk about the test specifically on here (I'll honor the process until results come out) but, generally, did anyone else do Barbri here? If you did, did you think the whole exam was noticeably easier than Barbri's scheduled work? The MBE seemed easer, although also a bit different. There were a lot more softball questions on the real thing and each question had at least one, maybe two, answer you knew were made up and not right, while Barbri rarely had this. The essays seemed shorter than Barbri's and contained slightly less issues on average and weren't really as tricky as the issues Barbri's essays covered (or how Barbri's essays expected us to cover them). The PTs were similar, but still, the real ones had a file and library much easier to read and less dense that they seemed shorter than the ones in Barbri's PTs. Based on my scored performance on Barbri graded essays, PT, and MBE, I walked out confident I passed, but then keep thinking what if there were things I obliviously missed out.

You know that Barbri's essays and PTs are actual past exam answers, right? Barbri does not write them. I thought the PTs and the essays were in line with what Barbri provided us because they were in fact taken from past bar exams.

I'm fairly sure Barbri answers are written by Barbri... Am I mistaken? I just looked at my essay/PT workbook (2013 edition, not sure if it has changed much since), and they don't appear to be real answers. Maybe a mix?

which state?

California

all essays, aside from a few agency/partnership essays, are directly from past exams. they even note right below the fact pattern which month/year that particular essay came from.

The questions are directly from previous bar exams. The answers are model answers written by Barbri.

And it makes sense, often the high scoring essay will miss a few issues or get a rule wrong or incorrectly state the law.

Barbri doesn't want you reading /learning from an essay that contains potentially glaring errors.

[a male human]

I don't wanna talk about the test specifically on here (I'll honor the process until results come out) but, generally, did anyone else do Barbri here? If you did, did you think the whole exam was noticeably easier than Barbri's scheduled work? The MBE seemed easer, although also a bit different. There were a lot more softball questions on the real thing and each question had at least one, maybe two, answer you knew were made up and not right, while Barbri rarely had this. The essays seemed shorter than Barbri's and contained slightly less issues on average and weren't really as tricky as the issues Barbri's essays covered (or how Barbri's essays expected us to cover them). The PTs were similar, but still, the real ones had a file and library much easier to read and less dense that they seemed shorter than the ones in Barbri's PTs. Based on my scored performance on Barbri graded essays, PT, and MBE, I walked out confident I passed, but then keep thinking what if there were things I obliviously missed out.

You know that Barbri's essays and PTs are actual past exam answers, right? Barbri does not write them. I thought the PTs and the essays were in line with what Barbri provided us because they were in fact taken from past bar exams.

I'm fairly sure Barbri answers are written by Barbri... Am I mistaken? I just looked at my essay/PT workbook (2013 edition, not sure if it has changed much since), and they don't appear to be real answers. Maybe a mix?

which state?

California

all essays, aside from a few agency/partnership essays, are directly from past exams. they even note right below the fact pattern which month/year that particular essay came from.

The questions are directly from previous bar exams. The answers are model answers written by Barbri.

And it makes sense, often the high scoring essay will miss a few issues or get a rule wrong or incorrectly state the law.

Barbri doesn't want you reading /learning from an essay that contains potentially glaring errors.

Just to be sure my memory wasn't playing tricks on me, I took out my California Essay Exam Practice Workbook 2013 (orange book).

I opened to a page -- Criminal Law, Question 1, 2011 Summer. The answers given in the book are different from either of the selected answers here [http://admissions.calbar.ca.gov/LinkCli ... 8&mid=3289]. So at least some of the Barbri answers (and I suspect all of its answers) are engineered to be ideal solutions.

So rcharter is correct. And while I'm at it, I do recommend to people to use Barbri answers as an essential source of feedback (incidentally, I'm not a fan of Kaplan after having looked at their model answers among other things) as well as from real answers such as those on BarEssays and from the State Bar. I'm not saying you should be able to produce Barbri's model answer in 1 hour, but it would be good to use them as a reference when preparing for the bar because these answers have all the main issues and sub-issues, and sometimes organizations of the answers you can model after.

If you shoot for the ideal version, you can still "fail" and do great. Indeed, the key is to prepare beyond passing requirements so that when unexpected contingencies knock you down from several levels above minimum competence, you will still be in good shape.

[NeedAllTheHelpICanGet]

My 2 cents on the Civ Pro question:

1) while correct that FRCP doesn't seem the applicable law considering the hypo was in CA Superior Crt, the exam rules are explicit regarding the use of general principles when not expressly told to use CA law. And, despite all arguments to the contrary, the question simply did not expressly instruct the use of California law. So, like reading a clearly worded statute: do not use California law, but general principles of law.

2) and, yes, FRCP are specific federal rules, rather than general principles

But, as PT-B aptly pointed out, much of the country's local rules of civil procedure are actually based on the FRCP, so the FRCP can be used as a model of general principles. Anyway, that's what I did: stated that the FRCP is the general model for many local rules and applied the FRCP. My essay would likely have been better if I included a short sentence at the end of each rule analysis to highlight the similarity/contrast w/ CA rules of civil pro., but, I think my approach was a good compromise between not merely substituting the FRCP and also following the explicit prescription of applying general principles of law unless expressly told otherwise.

I just hope the official position reflects this, though I fear it won't. Although I think my approach was the technically correct one, I suspect the intention may have been to apply CA Civ. Pro and there was an oversight regarding the statement on applicable law.

[LAsonic]

But you wouldn't apply FRCP in a California superior court...the general principles in a California state court would be to apply California civ pro. Either way, the rules are relatively similar (minus service) and I still think you could get a 65 even if you did not know the California specific law.

[plurilingue]

There was no reason for anyone to apply the FRCP. Anyone who did made a strong argument to the bar examiners that they lack minimum competency. One could figure out within seconds that it was a California civil procedure question; I am shocked it is still being debated.

Also, the Removal question did not invoke diversity jurisdiction. Rather, it invoked alienage with regard to the claim against V. It is true that the amount in controversy requirement was not met, but for the suit against M, this was a secondary point. The correct answer there was that a federal court cannot hear that suit because it would be a suit between two parties of foreign citizenship. Answers that simply state that diversity jurisdiction wasn't appropriate because the amount in controversy requirement was not met do not demonstrate minimum competency.

My guess is that people who didn't apply California civil procedure also messed up the parts that applied the FRCP. So it goes.

[LockBox]

There was no reason for anyone to apply the FRCP. Anyone who did made a strong argument to the bar examiners that they lack minimum competency. One could figure out within seconds that it was a California civil procedure question; I am shocked it is still being debated.

Also, the Removal question did not invoke diversity jurisdiction. Rather, it invoked alienage with regard to the claim against V. It is true that the amount in controversy requirement was not met, but for the suit against M, this was a secondary point. The correct answer there was that a federal court cannot hear that suit because it would be a suit between two parties of foreign citizenship. Answers that simply state that diversity jurisdiction wasn't appropriate because the amount in controversy requirement was not met do not demonstrate minimum competency.

My guess is that people who didn't apply California civil procedure also messed up the parts that applied the FRCP. So it goes.

1. It's being debated because there were signs pointing to a CA civ pro question in february but no explicit question. People didn't apply CA civ pro last time citing the bar statements that FRCP should be applied unless told otherwise.

2. Wasn't the kid domiciled in San Diego? Whether this was enough for removal purposes or not, I believe, was a question such that it had to be discussed as well as the AIC.

[NeedAllTheHelpICanGet]

But you wouldn't apply FRCP in a California superior court...the general principles in a California state court would be to apply California civ pro. Either way, the rules are relatively similar (minus service) and I still think you could get a 65 even if you did not know the California specific law.

There was no reason for anyone to apply the FRCP. Anyone who did made a strong argument to the bar examiners that they lack minimum competency. One could figure out within seconds that it was a California civil procedure question; I am shocked it is still being debated.

Okay; so how do you reconcile the explicit instruction that, "Unless a question expressly asks you to use California law, you should answer according to legal theories and principles of general application"? Were you "expressly" told to apply California law? No; so the exception to the general rule doesn't apply. General rule: don't apply CA law, but instead use legal theories and principles of general application, which I would argue are those found in the FRCP.

I think knowing and stating the rules of civ. proc. under CA law is good, but how do you get around the instructions? At a minimum, I don't think that someone who doesn't answer using CA law should be penalized for following explicit directions. Should someone who directly goes against the instructions and applies CA law be penalized? I think probably not, but I still don't see a resolution of the instructions re being "expressly" asked to use CA law.

[UncleStew]

There was no reason for anyone to apply the FRCP. Anyone who did made a strong argument to the bar examiners that they lack minimum competency. One could figure out within seconds that it was a California civil procedure question; I am shocked it is still being debated.

Also, the Removal question did not invoke diversity jurisdiction. Rather, it invoked alienage with regard to the claim against V. It is true that the amount in controversy requirement was not met, but for the suit against M, this was a secondary point. The correct answer there was that a federal court cannot hear that suit because it would be a suit between two parties of foreign citizenship. Answers that simply state that diversity jurisdiction wasn't appropriate because the amount in controversy requirement was not met do not demonstrate minimum competency.

My guess is that people who didn't apply California civil procedure also messed up the parts that applied the FRCP. So it goes.

Not sure your analysis is correct. Moreover you seem to confuse constitutional and statutory requirements. Recall you need both for jurisdiction. If you read 28 USC 1332 --the diversity statute (contrary to your belief, this suit falls under diversity jurisdiction), you will see the threshold requirement is the AIC not citizenship. The AIC acts as a gatekeeper. Here the issue is easily disposed of bc the suit was below the 75k threshold.

[UncleStew]

But you wouldn't apply FRCP in a California superior court...the general principles in a California state court would be to apply California civ pro. Either way, the rules are relatively similar (minus service) and I still think you could get a 65 even if you did not know the California specific law.

There was no reason for anyone to apply the FRCP. Anyone who did made a strong argument to the bar examiners that they lack minimum competency. One could figure out within seconds that it was a California civil procedure question; I am shocked it is still being debated.

Okay; so how do you reconcile the explicit instruction that, "Unless a question expressly asks you to use California law, you should answer according to legal theories and principles of general application"? Were you "expressly" told to apply California law? No; so the exception to the general rule doesn't apply. General rule: don't apply CA law, but instead use legal theories and principles of general application, which I would argue are those found in the FRCP.

I think knowing and stating the rules of civ. proc. under CA law is good, but how do you get around the instructions? At a minimum, I don't think that someone who doesn't answer using CA law should be penalized for following explicit directions. Should someone who directly goes against the instructions and applies CA law be penalized? I think probably not, but I still don't see a resolution of the instructions re being "expressly" asked to use CA law.

The way I see it civ pro never involves general principles. You're applying the FRCP or state rules depending on the court. Therefore that instruction is irrelevant. Then again my analysis makes that instruction never useful. though if you applied FRCP then you were not applying general principles.

[plurilingue]

There was no reason for anyone to apply the FRCP. Anyone who did made a strong argument to the bar examiners that they lack minimum competency. One could figure out within seconds that it was a California civil procedure question; I am shocked it is still being debated.

Also, the Removal question did not invoke diversity jurisdiction. Rather, it invoked alienage with regard to the claim against V. It is true that the amount in controversy requirement was not met, but for the suit against M, this was a secondary point. The correct answer there was that a federal court cannot hear that suit because it would be a suit between two parties of foreign citizenship. Answers that simply state that diversity jurisdiction wasn't appropriate because the amount in controversy requirement was not met do not demonstrate minimum competency.

My guess is that people who didn't apply California civil procedure also messed up the parts that applied the FRCP. So it goes.

Not sure your analysis is correct. Moreover you seem to confuse constitutional and statutory requirements. Recall you need both for jurisdiction. If you read 28 USC 1332 --the diversity statute (contrary to your belief, this suit falls under diversity jurisdiction), you will see the threshold requirement is the AIC not citizenship. The AIC acts as a gatekeeper. Here the issue is easily disposed of bc the suit was below the 75k threshold.

The suit against M should first be disposed of because a federal court isn't able to hear claims between two parties that don't have US citizenship. The first gatekeeper is that the court isn't able to hear this kind of claim, not the AIC

You're correct that alienage jurisdiction has the same statutory basis -- the title of which is actually "diversity jurisdiction" (I stand corrected) -- but I think it's an incomplete answer to dispose of both claims by citing AIC, especially when removal is improper if any defendant is a citizen of a state in which the plaintiff brought the action. One could independently dispose of both claims without mentioning the AIC, though I think it was worth a sentence or two at the end. All this is to say that there was quite a bit to discuss in this section – a lot more than just citing AIC and moving on.

Also, to the person who is arguing that there was ambiguity in the civil procedure question – there wasn't. The application of California rules is matter of procedure, not of law. Thus, there was no "California law" to be applied.

Edit: Actually, unlike the FRCP, the California rules are governed by statute, so one could make an argument that it is a matter of "California law."

https://en.m.wikipedia.org/wiki/Califor ... _Procedure

Despite this hypertechnical argument, I hope the graders don't reward the test takers who screwed this up and lacked the basic judgment to answer according to the California rules. It's just common sense.

[LAsonic]

Ya...the first sentence stated that it was in a California superior court...I knew immediately that it was California civ pro. You would not apply federal rules of civil procedure if you were in a a California state court, you should not have to be told to apply California.

I understand what you are saying about applying according to legal theories and principles of general application, but in the case of this question, it was clear that the principles of general application were those for CA civ pro. This is different than, say, an evidence question where the question does not make clear whether the case is being heard in a federal or CA state court.

Also, regarding the removal portion of the question. Although it could not be removed because the AIC did not exceed $75k, wouldn't you also want to analyze the diversity of jurisdiction requirement to pick up easy points?