July 2015 California Bar Exam Forum

[redblueyellow]

Dumb question, but I'd like to make sure that I'm on the same page.

For Former Testimony, what does "party against whom testimony is now offered" specifically refer to? The FRE rule is that the party against whom testimony is now offered was not a party in the previous proceeding, but was in a privity type relationship, and had the opportunity to cross-examine for a similar interest.

Which parties are which here?

Just the adverse party. So, if Plaintiff attempts to enter former testimony, he's entering it "against" Defendant. Defendant has to have had a prior opportunity to cross.

Usually comes up in the context of a criminal suit, where victim later brings a civil action.

So that means the defendant musthave been a party to the previous action in order to have an opportunity to cross? The P, however, could have been a party, or could have been in a privity like relationship; or in CA, the no privity required if D was the declarant in the previous proceeding.

[redblueyellow]

For Statements Against Interest, under FRE, you need to have corroborating evidence if you intend on using SAI as an exculpatory device. Do you also need the same in CA? I have conflicting information as to whether corroborating evidence is needed or not in CA.

Barbri just says the CA rule is the same except you can also use statement against social interest (in addition to the FRE's allowance for statements against financial or penal interest). They note the federal rule requires corroborating evidence for criminal cases but they don't explicitly mention it's the same in CA. I assume it's the same but not 100%.

Yup, I have the social interest exception, but can't confirm the other part. BarBri 1 Leansheets 0, I guess.

Just found it. Says CA actually does not require corroboration in criminal cases.

Woo hoo! Thanks for checking, dude!

[BuenAbogado]

Will anything anyone does over the next 3 days actually make the difference between passing or failing?

[Tiago Splitter]

Will anything anyone does over the next 3 days actually make the difference between passing or failing?

I like your style

[biggestidiotalive]

I made the biggest mistake of my life. I thought I would self study for the bar, so I bought old BarBri materials from last year (July 2014). I found out today that Civil Procedure was added to the MBE. Don't ask me how I possibly could have made this mistake; I know it's the dumbest thing I could have done. Is it worth still taking the exam? How would I even study for Civil Procedure at this point?

[brotherdarkness]

I made the biggest mistake of my life. I thought I would self study for the bar, so I bought old BarBri materials from last year (July 2014). I found out today that Civil Procedure was added to the MBE. Don't ask me how I possibly could have made this mistake; I know it's the dumbest thing I could have done. Is it worth still taking the exam? How would I even study for Civil Procedure at this point?

You've got three days. Devote most of it to civ pro.

[robinhoodOO]

I made the biggest mistake of my life. I thought I would self study for the bar, so I bought old BarBri materials from last year (July 2014). I found out today that Civil Procedure was added to the MBE. Don't ask me how I possibly could have made this mistake; I know it's the dumbest thing I could have done. Is it worth still taking the exam? How would I even study for Civil Procedure at this point?

You've got three days. Devote most of it to civ pro.

Yup. You should have studied some of it for the State subjects anyway, so you can be that much out of the loop. Plus, a majority of the Q's are SMJ, PJ, & Venue. That won't take more than a couple of days to learn semi-solidly.

[Redamon1]

I made the biggest mistake of my life. I thought I would self study for the bar, so I bought old BarBri materials from last year (July 2014). I found out today that Civil Procedure was added to the MBE. Don't ask me how I possibly could have made this mistake; I know it's the dumbest thing I could have done. Is it worth still taking the exam? How would I even study for Civil Procedure at this point?

You've got three days. Devote most of it to civ pro.

That plus you've studied CivPro for the essays, so you know some of it already. Also, CivPro is just a fraction of the MBE in a state that puts more weight on essays, so even if you bombed most of the CivPro questions (which you might not), you're still in the running. Take it.

[robinhoodOO]

Dumb question, but I'd like to make sure that I'm on the same page.

For Former Testimony, what does "party against whom testimony is now offered" specifically refer to? The FRE rule is that the party against whom testimony is now offered was not a party in the previous proceeding, but was in a privity type relationship, and had the opportunity to cross-examine for a similar interest.

Which parties are which here?

Just the adverse party. So, if Plaintiff attempts to enter former testimony, he's entering it "against" Defendant. Defendant has to have had a prior opportunity to cross.

Usually comes up in the context of a criminal suit, where victim later brings a civil action.

So that means the defendant musthave been a party to the previous action in order to have an opportunity to cross? The P, however, could have been a party, or could have been in a privity like relationship; or in CA, the no privity required if D was the declarant in the previous proceeding.

Usually, yes, but not necessarily.

[robinhoodOO]

I made the biggest mistake of my life. I thought I would self study for the bar, so I bought old BarBri materials from last year (July 2014). I found out today that Civil Procedure was added to the MBE. Don't ask me how I possibly could have made this mistake; I know it's the dumbest thing I could have done. Is it worth still taking the exam? How would I even study for Civil Procedure at this point?

You've got three days. Devote most of it to civ pro.

That plus you've studied CivPro for the essays, so you know some of it already. Also, CivPro is just a fraction of the MBE in a state that puts more weight on essays, so even if you bombed most of the CivPro questions (which you might not), you're still in the running. Take it.

haha; we basically said the same thing...

[biggestidiotalive]

Is it even feasible or realistic though? I don't even have practice questions for Civil Procedure. While I did study Civ Pro for the essay section, the MBE-type questions are a lot trickier than the superficial type of questions you have to analyze in the essay section.

[brotherdarkness]

Is it even feasible or realistic though? I don't even have practice questions for Civil Procedure. While I did study Civ Pro for the essay section, the MBE-type questions are a lot trickier than the superficial type of questions you have to analyze in the essay section.

The emanuels book makes you download civ pro questions I believe. Someone must have the pdf that they can email to you.

ETA -- Civ pro is only a fraction of the MBE, as discussed above. Even if you guess on every civ pro question, you probably know enough to get a couple of them right. You've got a chance dude. Don't quit now.

[Redamon1]

Is it even feasible or realistic though? I don't even have practice questions for Civil Procedure. While I did study Civ Pro for the essay section, the MBE-type questions are a lot trickier than the superficial type of questions you have to analyze in the essay section.

I don't know how seriously you took the rest of exam prep, but 3 days from the exam, you should give it your best shot. You've studied too hard to come this close and give up. You not only have nothing to lose, but passing is actually totally possible. Yes, in three days you can get yourself into decent CivPro MBE territory. As others have said, you can use the sample CivPro questions online released by NCBE and purchase the Emmanuel book.

[Loud Kiddington]

I know there was a post with a list of CPTs you should practice, but I can't find it at the moment. Can anyone link it up?

[BuenAbogado]

Mary basick writes in her book about a hypo that the inclusion of an easement (an obvious, inquiry notice one) in a parcel transferred by warranty deed will give rise to a violation of marketability, and all 3 present as well as all 3 future if suit is brought.

Does an minor and obvious easement (in this case a gravel road the neighbor can use) really make title unmarketable and violate all 3 present warranties??

[redblueyellow]

Fed Civ Pro - Impleader (questions underlined)

If a defendant brings in a third party, the court will have supplemental JX over the claim. The court also needs personal JX over the impleaded party. On what basis does the court determine whether it has personal JX? On an essay, are we supposed to go through the traditional, long arm/minimum contacts analysis to make sure that the impleaded party is validly in the case?

An impleaded party can bring a compulsory counterclaim against the plaintiff if it stems from the same transaction or occurrence from the case the plaintiff is suing the original defendant. This would fall under supplemental JX, but what to do about PJX? Is supplemental JX available to the impleaded party regardless of who they file a counterclaim against as long as it's from the same transaction or occurrence?

But if a Plaintiff than files a claim against the impleaded party arising from the same transaction or occurrence, there must be PJX and SMJ,for the court to hear anything. Will supplemental JX apply if the claim is from the same transaction or occurrence? What if P's claim against the impleaded party is completely unrelated? My feeling is is that even if P's claims arise out of the same transaction or occurrence against the impleaded party, P will still need independent SMJ (diversity, I guess). And somehow, we'd still need to prove that the court has PJ over the impleaded party. if that is correct, is P even allowed to claim anything against impleaded defendant that is unrelated to the claim against the original defendant?

Sorry, lots of questions, but there's literally no explanation that sufficiently answers in my prep materials. The closest I got was this site, which was somewhat helpful, but didn't answer all the questions I had to a certainty.


EDIT:

Supplemental JX available for all claims except P suing TPD (any type of claim), and a permissive counterclaim from TPD against P or TPP.

Yes, the 100 mile bulge rule thing applies for PJ, but what if there's no way to serve the TPD within 100 miles of a court house? Does mail count? Holy crap, does mailed service count?! I swear if it does, or any type of service counts (mail would be ideal because the TPD is not required to be in the state where the fed dist court sits re bulge rule), then I've just wasted a lot of time. In that case, the TPD can literally be served nationwide because there will be some fed dist court where the original case is sitting, and the TPP can just pop off a third party complaint in the mail.

[SpAcEmAn SpLiFF]

I'm having trouble figuring out when to characterize actual authority as express or implied.

For example, is it implied that someone hired as an accountant would have authority to file taxes and maintain the books, or is it express by virtue of his job title?

How about for an office manager? Assuming his boss didn't expressly instruct him to go out and buy pens and stationery for the office, would it be express or implied because of his job title?

[Tiago Splitter]

I'm having trouble figuring out when to characterize actual authority as express or implied.

For example, is it implied that someone hired as an accountant would have authority to file taxes and maintain the books, or is it express by virtue of his job title?

How about for an office manager? Assuming his boss didn't expressly instruct him to go out and buy pens and stationery for the office, would it be express or implied because of his job title?

The boss has to actually tell you it's ok for it to be express. Everything else that's based on the circumstances, like your job title or the custom in that kind of position, is implied. So both of these examples are implied actual authority.

[Tiago Splitter]

Fed Civ Pro - Impleader (questions underlined)

If a defendant brings in a third party, the court will have supplemental JX over the claim. The court also needs personal JX over the impleaded party. On what basis does the court determine whether it has personal JX? On an essay, are we supposed to go through the traditional, long arm/minimum contacts analysis to make sure that the impleaded party is validly in the case?

Yep, just have to go through the same PJ analysis.

An impleaded party can bring a compulsory counterclaim against the plaintiff if it stems from the same transaction or occurrence from the case the plaintiff is suing the original defendant. This would fall under supplemental JX, but what to do about PJX? Is supplemental JX available to the impleaded party regardless of who they file a counterclaim against as long as it's from the same transaction or occurrence?

Yep, anyone can bring a counter or cross-claim if it comes from the same T/O except the plaintiff if the plaintiff is only using it to get around diversity jurisdiction. So anyone impleaded (is that a word) can bring another claim if the case is already in federal court. But as always if they are bringing in a new party the court needs personal jurisdiction over the new party.

But if a Plaintiff than files a claim against the impleaded party arising from the same transaction or occurrence, there must be PJX and SMJ,for the court to hear anything. Will supplemental JX apply if the claim is from the same transaction or occurrence? What if P's claim against the impleaded party is completely unrelated? My feeling is is that even if P's claims arise out of the same transaction or occurrence against the impleaded party, P will still need independent SMJ (diversity, I guess). And somehow, we'd still need to prove that the court has PJ over the impleaded party. if that is correct, is P even allowed to claim anything against impleaded defendant that is unrelated to the claim against the original defendant?

If the claim is completely unrelated there won't be supplemental jurisdiction. Supplemental is when it's the same T/O. As mentioned above where there is supplemental jurisdiction P can file a complaint against the impleaded party unless it's a diversity case and P is not diverse from the impleaded party. If it's unrelated (and no supp jurisdiction) then you need independent SMJ.

[Raiden]

Speaking of civil procedures, what is this new citizenship requirement that we are supposed to know for corporations. So we don't use the nerve center (corporate headquarter test)?

[brotherdarkness]

Speaking of civil procedures, what is this new citizenship requirement that we are supposed to know for corporations. So we don't use the nerve center (corporate headquarter test)?

We do use the nerve center test, if we're talking about personal jurisdiction. Venue is broader.

[robinhoodOO]

Speaking of civil procedures, what is this new citizenship requirement that we are supposed to know for corporations. So we don't use the nerve center (corporate headquarter test)?

We do use the nerve center test, if we're talking about personal jurisdiction. Venue is broader.

Correct, and Venue includes minimum contracts, where a substantial part of the acts in question occurred, or where one or more of the defendants reside (nerve center and/or incorporation).

[robinhoodOO]

Fed Civ Pro - Impleader (questions underlined)

If a defendant brings in a third party, the court will have supplemental JX over the claim. The court also needs personal JX over the impleaded party. On what basis does the court determine whether it has personal JX? On an essay, are we supposed to go through the traditional, long arm/minimum contacts analysis to make sure that the impleaded party is validly in the case?

Yep, just have to go through the same PJ analysis.

An impleaded party can bring a compulsory counterclaim against the plaintiff if it stems from the same transaction or occurrence from the case the plaintiff is suing the original defendant. This would fall under supplemental JX, but what to do about PJX? Is supplemental JX available to the impleaded party regardless of who they file a counterclaim against as long as it's from the same transaction or occurrence?

Yep, anyone can bring a counter or cross-claim if it comes from the same T/O except the plaintiff if the plaintiff is only using it to get around diversity jurisdiction. So anyone impleaded (is that a word) can bring another claim if the case is already in federal court. But as always if they are bringing in a new party the court needs personal jurisdiction over the new party.

But if a Plaintiff than files a claim against the impleaded party arising from the same transaction or occurrence, there must be PJX and SMJ,for the court to hear anything. Will supplemental JX apply if the claim is from the same transaction or occurrence? What if P's claim against the impleaded party is completely unrelated? My feeling is is that even if P's claims arise out of the same transaction or occurrence against the impleaded party, P will still need independent SMJ (diversity, I guess). And somehow, we'd still need to prove that the court has PJ over the impleaded party. if that is correct, is P even allowed to claim anything against impleaded defendant that is unrelated to the claim against the original defendant?

If the claim is completely unrelated there won't be supplemental jurisdiction. Supplemental is when it's the same T/O. As mentioned above where there is supplemental jurisdiction P can file a complaint against the impleaded party unless it's a diversity case and P is not diverse from the impleaded party. If it's unrelated (and no supp jurisdiction) then you need independent SMJ.

Tiago has it. An easy way to remember this is that a Plaintiff canNOT use supplemental jurisdiction in a diversity action against a subsequently added party. It's an exception and P must be diverse with said party (i.e. third-party defendant).

[brotherdarkness]

Speaking of civil procedures, what is this new citizenship requirement that we are supposed to know for corporations. So we don't use the nerve center (corporate headquarter test)?

We do use the nerve center test, if we're talking about personal jurisdiction. Venue is broader.

Correct, and Venue includes minimum contracts, where a substantial part of the acts in question occurred, or where one or more of the defendants reside (nerve center and/or incorporation).

I believe that, for purposes of venue, a defendant corporation is said to reside in any state where it would be subject to PJ. That's broader than the residency test for purposes of PJ.

Residency for PJ = HQ / nerve center

Residency for venue = Anywhere subject to PJ (which includes not just HQ / nerve center for general PJ, but also places where the corporation has sufficient minimum contacts for specific PJ)

[robinhoodOO]

Speaking of civil procedures, what is this new citizenship requirement that we are supposed to know for corporations. So we don't use the nerve center (corporate headquarter test)?

We do use the nerve center test, if we're talking about personal jurisdiction. Venue is broader.

Correct, and Venue includes minimum contracts, where a substantial part of the acts in question occurred, or where one or more of the defendants reside (nerve center and/or incorporation).

I believe that, for purposes of venue, a defendant corporation is said to reside in any state where it would be subject to PJ. That's broader than the residency test for purposes of PJ.

Residency for PJ = HQ / nerve center

Residency for venue = Anywhere subject to PJ (which includes not just HQ / nerve center for general PJ, but also places where the corporation has sufficient minimum contacts for specific PJ)

That is exactly what I said...