BarBri - NY Exam - July 2014 Forum

[turquoiseturtle]

Now that we all sufficiently understand (or are confused) about strict liability another question:

Can someone who understands it please explain the whole "serious injury" thing with regard to both no-fault insurance and worker's compensation? I am super confused, and I suspect its because I took bad notes while listening to the torts lecture (I needed a handout!).

My understanding is this: under both no-fault insurance and worker's compensation, that is generally your only remedy if you're involved in a car accident or injured at work respectively. Under no-fault insurance, if you have a "serious injury" you can plead that and sue in tort instead of just taking your payment under no-fault insurance. Under worker's compensation, even with a "serious injury" you cannot sue your employer. BUT under worker's comp you can always sue some third party (like the manufacturer of the machine you were injured by) and if there is a "serious injury" the third party can sue your employer for contribution (but can't if there is not "serious injury")

Am I super wrong?

you're 99% right

only things I'd clarify:

With serious injury no-fault insurance, allows victim to sue for NONECONOMIC damages (otherwise victim wouldn't be allowed to)

With Worker's Comp, Victim can sue in tort to the employer directly IF the Employer does not provide workers' comp coverage. If the Employer does have coverage, then yeah you're right only a 3rd party can get at the employer for contribution in grave injury cases (Victim is already provided for under Workers Comp from the Employer directly already under the coverage--all medical expenses and 2/3 wages/salary)

Okay, so to clarify this point. If its not a serious injury, no-fault just covers economic damages? Presumably because there aren't noneconomic from minor injuries? And then if it is a serious injury, you can sue for noneconomic damages. Is there a cap on the no-fault coverage? (that's probably too specific to be tested)

Can CPLR Article 16 and no-fault interact? The way I read no-fault you can get insurance benefits from the coverage of someone who hit you, like say if you're a pedestrian, in which case Article 16 would not limit damages against the driver because it doesn't apply to owners/drivers of cars. But you can also get benefits if you're driving a your own car and say someone negligently rolls a barrel out into the street and you crash into it. Your own insurance will cover you then, but then you can also sue the barrel roller and Article 16 could potentially limit their non-economic damage payment to you. I might be making things too complicated.

[PennBull]

You're definitely making things too complicated because an essay is not going to be that convoluted. That's like law professor shit. And if they actually put something like that on the exam you're better off memorizing your rule statements for Evidence than worrying about it

But yeah as far as serious injury/noneconomic, if the injury isn't serious (really bruised hip or whatever) you can't sue for like loss of consortium

[turquoiseturtle]

Hello all.

A contract Q: Can someone give me an example (or two) on acceptable past consideration in NY? NY says its okay if the promise is in writing, the consideration is expressly stated, the consideration can be proven and signed by the promisor.

This is referring to the consideration process and not the contract, right? How exactly would this even manifest?

ETA:
Welp: it looks like i'm basically living on another planet, and the contract for the past consideration is what the elements are for, not necessary the past consideration agreement.

So if you paint my house because you're a nice TLS neighbor, and I thank you by promising to pay you $100 in a signed writing, blah blah blah, that's a binding promise in NY but not in MBE states that don't follow the past MBR?

If you want an essay example, essay question #55 has past consideration/writing as one of the questions.

Essay question #47 also addresses the other, similar, NY distinction, which allows non-UCC contract modification with good faith and a signed writing.

[harmonep07]

Now that we all sufficiently understand (or are confused) about strict liability another question:

Can someone who understands it please explain the whole "serious injury" thing with regard to both no-fault insurance and worker's compensation? I am super confused, and I suspect its because I took bad notes while listening to the torts lecture (I needed a handout!).

My understanding is this: under both no-fault insurance and worker's compensation, that is generally your only remedy if you're involved in a car accident or injured at work respectively. Under no-fault insurance, if you have a "serious injury" you can plead that and sue in tort instead of just taking your payment under no-fault insurance. Under worker's compensation, even with a "serious injury" you cannot sue your employer. BUT under worker's comp you can always sue some third party (like the manufacturer of the machine you were injured by) and if there is a "serious injury" the third party can sue your employer for contribution (but can't if there is not "serious injury")

Am I super wrong?

you're 99% right

only things I'd clarify:

With serious injury no-fault insurance, allows victim to sue for NONECONOMIC damages (otherwise victim wouldn't be allowed to)

With Worker's Comp, Victim can sue in tort to the employer directly IF the Employer does not provide workers' comp coverage. If the Employer does have coverage, then yeah you're right only a 3rd party can get at the employer for contribution in grave injury cases (Victim is already provided for under Workers Comp from the Employer directly already under the coverage--all medical expenses and 2/3 wages/salary)

Okay, so to clarify this point. If its not a serious injury, no-fault just covers economic damages? Presumably because there aren't noneconomic from minor injuries? And then if it is a serious injury, you can sue for noneconomic damages. Is there a cap on the no-fault coverage? (that's probably too specific to be tested)

Can CPLR Article 16 and no-fault interact? The way I read no-fault you can get insurance benefits from the coverage of someone who hit you, like say if you're a pedestrian, in which case Article 16 would not limit damages against the driver because it doesn't apply to owners/drivers of cars. But you can also get benefits if you're driving a your own car and say someone negligently rolls a barrel out into the street and you crash into it. Your own insurance will cover you then, but then you can also sue the barrel roller and Article 16 could potentially limit their non-economic damage payment to you. I might be making things too complicated.

I dunno about Article 16, but what I've got is that even with no fault you can always sue for:
(1) Property damage;
(2) Wrongful death (but no-fault also has a death benefit);
(3) Basic economic losses over 50k (medical expenses + lost wages (only 2k up to a yr) + non-income producing expenses up to 25/day)
(4) Pain and suffering for serious injuries only.

[harmonep07]

Now that we all sufficiently understand (or are confused) about strict liability another question:

Can someone who understands it please explain the whole "serious injury" thing with regard to both no-fault insurance and worker's compensation? I am super confused, and I suspect its because I took bad notes while listening to the torts lecture (I needed a handout!).

My understanding is this: under both no-fault insurance and worker's compensation, that is generally your only remedy if you're involved in a car accident or injured at work respectively. Under no-fault insurance, if you have a "serious injury" you can plead that and sue in tort instead of just taking your payment under no-fault insurance. Under worker's compensation, even with a "serious injury" you cannot sue your employer. BUT under worker's comp you can always sue some third party (like the manufacturer of the machine you were injured by) and if there is a "serious injury" the third party can sue your employer for contribution (but can't if there is not "serious injury")

Am I super wrong?

you're 99% right

only things I'd clarify:

With serious injury no-fault insurance, allows victim to sue for NONECONOMIC damages (otherwise victim wouldn't be allowed to)

With Worker's Comp, Victim can sue in tort to the employer directly IF the Employer does not provide workers' comp coverage. If the Employer does have coverage, then yeah you're right only a 3rd party can get at the employer for contribution in grave injury cases (Victim is already provided for under Workers Comp from the Employer directly already under the coverage--all medical expenses and 2/3 wages/salary)

The great thing in the case of an employer that does not have coverage is that he cannot plead contributory negligence or assumption of risk as a defense.

[Guchster]

I dunno about Article 16, but what I've got is that even with no fault you can always sue for:
(1) Property damage;
(2) Wrongful death (but no-fault also has a death benefit);
(3) Basic economic losses over 50k (medical expenses + lost wages (only 2k up to a yr) + non-income producing expenses up to 25/day)
(4) Pain and suffering for serious injuries only.

Good summary.

I wouldn't waste my valuable and precious and scarce time thinking through Article 16 and no-fault provisions and the way they interact--it's a waste of time and potentially detrimental to your score to focus on it.

[harmonep07]

So, analyzing strict liability situations under NY's approach to assumption of risk may look something like: (a) when plaintiff discovers a defect, recognizes a danger of using the product in a certain way, and does so anyway, the manufacturer has a duty to the plaintiff that is even lower than strict liability; or (b) if plaintiff does not discover the defect but rather misuses the defective product in a foreseeable manner, but does so in a way that is unreasonable, the plaintiff will also have a limited recovery.

In (a) I meant to say it could be a complete defense. Although manufacturers have a duty to protect or warn against defects that could cause injury from foreseeable misuses, they do not owe a strict duty to protect persons from voluntarily using a dangerous product that they know to be dangerous.

Okay so this is my understanding of a bunch of different ways this could apply to knife manufacturer. I like having more concrete examples.

1. Obviously knives are pretty dangerous but there's no strict liability for using a normal, non-defective knife because its so obviously dangerous. This is regardless of how you're using it. If you're using it for the totally normal foreseeable use of cutting a watermelon and your hand slips and you cut yourself or if you're using it to try and shave your legs (i'm assuming thats weird and unforeseeable).

2. If the knife was faultily manufactured so that it snaps in two when someone is using it in a normal manner and flies off and hits someone: strict liability. But if it breaks when I'm shaving my legs: no liability because its crazy and unforeseeable?

3. But then if the person keeps using this clearly dangerous and defective knife and injures themselves again: no strict liability because its unforeseeable that you'd keep using something that is so obviously defective? Or maybe just comparative negligence analysis that reduces the recovery? To me this situation seems like there should be no liability for the knife maker.

My firm doesn't give bar stipends, so I've been shaving with knives since May.

[turquoiseturtle]

So, analyzing strict liability situations under NY's approach to assumption of risk may look something like: (a) when plaintiff discovers a defect, recognizes a danger of using the product in a certain way, and does so anyway, the manufacturer has a duty to the plaintiff that is even lower than strict liability; or (b) if plaintiff does not discover the defect but rather misuses the defective product in a foreseeable manner, but does so in a way that is unreasonable, the plaintiff will also have a limited recovery.

In (a) I meant to say it could be a complete defense. Although manufacturers have a duty to protect or warn against defects that could cause injury from foreseeable misuses, they do not owe a strict duty to protect persons from voluntarily using a dangerous product that they know to be dangerous.

Okay so this is my understanding of a bunch of different ways this could apply to knife manufacturer. I like having more concrete examples.

1. Obviously knives are pretty dangerous but there's no strict liability for using a normal, non-defective knife because its so obviously dangerous. This is regardless of how you're using it. If you're using it for the totally normal foreseeable use of cutting a watermelon and your hand slips and you cut yourself or if you're using it to try and shave your legs (i'm assuming thats weird and unforeseeable).

2. If the knife was faultily manufactured so that it snaps in two when someone is using it in a normal manner and flies off and hits someone: strict liability. But if it breaks when I'm shaving my legs: no liability because its crazy and unforeseeable?

3. But then if the person keeps using this clearly dangerous and defective knife and injures themselves again: no strict liability because its unforeseeable that you'd keep using something that is so obviously defective? Or maybe just comparative negligence analysis that reduces the recovery? To me this situation seems like there should be no liability for the knife maker.

My firm doesn't give bar stipends, so I've been shaving with knives since May.

Hahaha. But for real razors are insanely expensive. Way to be budget conscious.

[Guchster]

Life update and advice for those that come after us.

I've cut off Set 6 from my life after doing Set 5 last week and I've never felt better and more confident for the MBE. I now am working to finish off the mixed sets and the MBE drills. My stress levels are reduced tremendously and instead of extreme and crippling panic and fear that took away my motivation to study (because I thought, what's the point if I'm never going to score about a 60%?), I feel like things are going to work out okay.

ETA:
I would recommend set 6 if you are the type of personality that needs to feel abused, panic, and shame to find motivation to study. For all others, it's probably a better use of your time to learn klingon

[PennBull]

Life update and advice for those that come after us.

I've cut off Set 6 from my life after doing Set 5 last week and I've never felt better and more confident for the MBE. I now am working to finish off the mixed sets and the MBE drills. My stress levels are reduced tremendously and instead of extreme and crippling panic and fear that took away my motivation to study (because I thought, what's the point if I'm never going to score about a 60%?), I feel like things are going to work out okay.

ETA:
I would recommend set 6 if you are the type of personality that needs to feel abused, panic, and shame to find motivation to study. For all others, it's probably a better use of your time to learn klingon

TITCR

[TrustMeI'mAnActress]

Does anyone know what scores the student released answers for the essays in the back of the book received? (i.e., what does a "model" answer get?)

[harmonep07]

Just did essay #35. Why can a witness not give opinion testimony about the testator's capacity? I'm right that we never went over that, aren't I? I thought it was a regular evidence issue and just said that lay opinion testimony is allowed regarding things like whether someone seemed sane.

[turquoiseturtle]

Does anyone know what scores the student released answers for the essays in the back of the book received? (i.e., what does a "model" answer get?)

We had a pretty long discussion about this a couple pages back and the conclusion was that no one has any idea.

[turquoiseturtle]

Just did essay #35. Why can a witness not give opinion testimony about the testator's capacity? I'm right that we never went over that, aren't I? I thought it was a regular evidence issue and just said that lay opinion testimony is allowed regarding things like whether someone seemed sane.

I'm interested in this too. Essay question #60 has very different analysis by the two student answers. Both student answers come to the conclusion that the normal witness rules don't apply to witnesses about wills in Surrogate's Court.

Clearly it could not be the rule in NY, but my recollection from wills class was that a witness could testify about the testator's actions and things which would circumstantially support the requisite state of mind but can't specifically say "had capacity" or "didn't have capacity."

[harmonep07]

Just did essay #35. Why can a witness not give opinion testimony about the testator's capacity? I'm right that we never went over that, aren't I? I thought it was a regular evidence issue and just said that lay opinion testimony is allowed regarding things like whether someone seemed sane.

I'm interested in this too. Essay question #60 has very different analysis by the two student answers. Both student answers come to the conclusion that the normal witness rules don't apply to witnesses about wills in Surrogate's Court.

Clearly it could not be the rule in NY, but my recollection from wills class was that a witness could testify about the testator's actions and things which would circumstantially support the requisite state of mind but can't specifically say "had capacity" or "didn't have capacity."

Omg wtf is with examinee A's answer. So kitchen sinky. But first, both of these people were wrong just because, while they correctly identified that EPTL allows testimony about actions by the testator, the question clearly say it's opinion testimony, which apparently is not allowed.

Second, where did B get the rule that, generally, lay witnesses are not competent to testify as to opinions?

[turquoiseturtle]

Just did essay #35. Why can a witness not give opinion testimony about the testator's capacity? I'm right that we never went over that, aren't I? I thought it was a regular evidence issue and just said that lay opinion testimony is allowed regarding things like whether someone seemed sane.

I'm interested in this too. Essay question #60 has very different analysis by the two student answers. Both student answers come to the conclusion that the normal witness rules don't apply to witnesses about wills in Surrogate's Court.

Clearly it could not be the rule in NY, but my recollection from wills class was that a witness could testify about the testator's actions and things which would circumstantially support the requisite state of mind but can't specifically say "had capacity" or "didn't have capacity."

Omg wtf is with examinee A's answer. So kitchen sinky. But first, both of these people were wrong just because, while they correctly identified that EPTL allows testimony about actions by the testator, the question clearly say it's opinion testimony, which apparently is not allowed.

Second, where did B get the rule that, generally, lay witnesses are not competent to testify as to opinions?

I actually thought B's general rule was right. Lay witnesses can't give opinions except in limited circumstances. (i.e. are allowed to give opinions about whether someone is drunk, how fast a car was going, etc) Rule 701 of the FRE says no lay witness opinion on anything "scientific, technical or specialized." There is a list on page 19 of the CMR.

Applicable are "the general appearance or condition of a person and the state of emotion of a person." Both of those would, I think, be circumstantial evidence of whether someone was competent to sign a will. Also, as you said, lay witnesses are allowed to say whether someone was "sane or insane." But sane or insane doesn't = capacity to make a will.

Okay and I looked it up in the big NY outline book. Page 69 of the big wills outline. "Lay witnesses may testify as to actions and statements of a testator within their observation, but they may not express an opinion as to whether the testator was of sound mind." So this would follow the same rule of evidence as in general. Lay witness can say general things that lead towards one side or the other but CANNOT say outright whether or not the testator has capacity.

[pizzasodafries]

Anyone feel that learning all the filing and procedural requirements for the provisional remedies is the biggest pain in the ass out of all the materials not called Powers of Appointment?

[TrustMeI'mAnActress]

Anyone feel that learning all the filing and procedural requirements for the provisional remedies is the biggest pain in the ass out of all the materials not called Powers of Appointment?

Yes - but how relevant do we think this is? Not asking that rhetorically haha

[pizzasodafries]

Anyone feel that learning all the filing and procedural requirements for the provisional remedies is the biggest pain in the ass out of all the materials not called Powers of Appointment?

Yes - but how relevant do we think this is? Not asking that rhetorically haha

Idk, I'm not gonna memorize much so I'll make shit up

[turquoiseturtle]

Anyone feel that learning all the filing and procedural requirements for the provisional remedies is the biggest pain in the ass out of all the materials not called Powers of Appointment?

Yes - but how relevant do we think this is? Not asking that rhetorically haha

In the lecture he emphasized attachment and preliminary injunctions as being the two most important provisional remedies, but the only one I've seen tested so far in all the essays I've read is preliminary injunctions. So I would say not that important except for preliminary injunctions. That's the only one I'm very solidly committing the rule statement to memory. I'd except to see the others, if at all, in the NYMC.

[rivkah]

Do we have any theories of most likely essay questions?

The fact that we only have 5 really baffles me, so many subjects to cover in so few questions, so I'm assuming tons of cross-overs, but not all of the topics lend themselves to cross overs so that kind of gives us some hints. Thoughts on most important topics within subjects over the next few days to really streamline our time?

My vote is that there will be an essay with: spouse's elective share - mixed with out of state divorce hinging on full faith and credit - & marital property division with a faulty deed violating a right of survivorship.

[thetashster]

Life update and advice for those that come after us.

I've cut off Set 6 from my life after doing Set 5 last week and I've never felt better and more confident for the MBE. I now am working to finish off the mixed sets and the MBE drills. My stress levels are reduced tremendously and instead of extreme and crippling panic and fear that took away my motivation to study (because I thought, what's the point if I'm never going to score about a 60%?), I feel like things are going to work out okay.

ETA:
I would recommend set 6 if you are the type of personality that needs to feel abused, panic, and shame to find motivation to study. For all others, it's probably a better use of your time to learn klingon

Dude bro. What I've been tryin to tell people!

[thetashster]

Do we have any theories of most likely essay questions?

The fact that we only have 5 really baffles me, so many subjects to cover in so few questions, so I'm assuming tons of cross-overs, but not all of the topics lend themselves to cross overs so that kind of gives us some hints. Thoughts on most important topics within subjects over the next few days to really streamline our time?

My vote is that there will be an essay with: spouse's elective share - mixed with out of state divorce hinging on full faith and credit - & marital property division with a faulty deed violating a right of survivorship.

wills/trusts, domestic relations, contracts, property, ny practice, crimpro/crimlaw

[thetashster]

Anyone feel that learning all the filing and procedural requirements for the provisional remedies is the biggest pain in the ass out of all the materials not called Powers of Appointment?

Yes - but how relevant do we think this is? Not asking that rhetorically haha

In the lecture he emphasized attachment and preliminary injunctions as being the two most important provisional remedies, but the only one I've seen tested so far in all the essays I've read is preliminary injunctions. So I would say not that important except for preliminary injunctions. That's the only one I'm very solidly committing the rule statement to memory. I'd except to see the others, if at all, in the NYMC.

yeah don't be THAT kid who cites CPLR sections and filing fees. that's just rude. turquoiseturtle hit the nail on the head with what's been tested.

[PennBull]

There will definitely be an essay that combines two of crim/crimpro/evidence. They're rarely tested separately (crim has been more frequent as a solo topic)