Themis Bar Review Hangout - July 2015 Exam Forum

[always_raining]

It's funny how frequently the BER is a correct answer choice in the practice MBE sessions given Themis's warning that it's often an incorrect answer choice. It's like they're trying to fuck with us.

Yeah I just did the third MBE set for evidence and there were 6 best evidence questions. ridiculous

I assume its because they want us to actually know the rule so we know when its the wrong answer, but if these are real questions then they shouldn't be showing up so often, correct?

[sd5289]

Re. the 75%+ comment above: no. And I'm only in the low 70s on a couple of subjects (Torts & Crim).

Question for all those who have done Evidence. I just hit a PQ that I cannot figure out. It's on subsequent remedial measures, specifically in product liability.

[+] Spoiler

Here's the question:

A boat owner initiated a products liability action against the manufacturer of the boat’s engine. The owner alleged that the engine manufacturer failed to warn the owner about the proper operation of a switch on the engine, and that improper operation of the switch caused the owner’s injuries. The boat owner offered evidence that the manufacturer had begun including a written warning for the switch for all boats manufactured beginning in the year after the owner’s boat was manufactured. The owner had owned his boat for five years prior to his injury.

The correct answer was: "Yes, because the manufacturer began providing the warning before the boat owner’s accident."

The incorrect answer that I chose was: "No, because evidence of the manufacturer’s warning is inadmissible as a remedial measure."

I guess I'm either just tired or am missing something. Which is it? Cause it really looks like evidence of a subsequent remedial measure to me.

I remember doing this question:

[+] Spoiler

I was stuck between both of those answers and guessed because of language of the correct response (that seems to be the trick with a lot of the practice MBE's). As i understand, the subsequent remedial measure would not be admissible if it is added after the injury. The correct answer says it was done "before" the owner's accident when they were all manufactured that year. Hope this clarifies the answer choice.

Ohhhhhhh, so you're accepting the answer choices (at least, the facts that they assert) as true?! I went back and forth on these two answers as well, but was relying on just the facts in the fact pattern to answer, i.e. coming on the conclusion that the remedial measures took place after the accident. UGH.

Also, fuck the best evidence rule. Themis: "yeah it's almost never the right answer." PQ's: "if you didn't choose best evidence rule you got it wrong sucker."

ETA: @always_raining, ah that helps a lot. Thanks! So it's if the remedial measure is basically taken in response to the accident (i.e. after the accident occurs and they know about the accident), then it's inadmissible, yes?

[always_raining]

Re. the 75%+ comment above: no. And I'm only in the low 70s on a couple of subjects (Torts & Crim).

Question for all those who have done Evidence. I just hit a PQ that I cannot figure out. It's on subsequent remedial measures, specifically in product liability.

[+] Spoiler

Here's the question:

A boat owner initiated a products liability action against the manufacturer of the boat’s engine. The owner alleged that the engine manufacturer failed to warn the owner about the proper operation of a switch on the engine, and that improper operation of the switch caused the owner’s injuries. The boat owner offered evidence that the manufacturer had begun including a written warning for the switch for all boats manufactured beginning in the year after the owner’s boat was manufactured. The owner had owned his boat for five years prior to his injury.

The correct answer was: "Yes, because the manufacturer began providing the warning before the boat owner’s accident."

The incorrect answer that I chose was: "No, because evidence of the manufacturer’s warning is inadmissible as a remedial measure."

I guess I'm either just tired or am missing something. Which is it? Cause it really looks like evidence of a subsequent remedial measure to me.

I remember doing this question:

[+] Spoiler

I was stuck between both of those answers and guessed because of language of the correct response (that seems to be the trick with a lot of the practice MBE's). As i understand, the subsequent remedial measure would not be admissible if it is added after the injury. The correct answer says it was done "before" the owner's accident when they were all manufactured that year. Hope this clarifies the answer choice.

Ohhhhhhh, so you're accepting the answer choices (at least, the facts that they assert) as true?! I went back and forth on these two answers as well, but was relying on just the facts in the fact pattern to answer, i.e. coming on the conclusion that the remedial measures took place after the accident. UGH.

Also, fuck the best evidence rule. Themis: "yeah it's almost never the right answer." PQ's: "if you didn't choose best evidence rule you got it wrong sucker."

The owner had the boat for 5 years before his injury. One year after he purchased the boat, the company started including a warning. But that's still four years before his accident.

[Raiden]

Many seem to be dominating the MBE and here I am getting a 44% on my 5th contracts MBE. Snap.

[always_raining]

Ohhhhhhh, so you're accepting the answer choices (at least, the facts that they assert) as true?! I went back and forth on these two answers as well, but was relying on just the facts in the fact pattern to answer, i.e. coming on the conclusion that the remedial measures took place after the accident. UGH.

Also, fuck the best evidence rule. Themis: "yeah it's almost never the right answer." PQ's: "if you didn't choose best evidence rule you got it wrong sucker."

ETA: @always_raining, ah that helps a lot. Thanks! So it's if the remedial measure is basically taken in response to the accident (i.e. after the accident occurs and they know about the accident), then it's inadmissible, yes?

That is my understanding, at least. Page 37 of the outline in the grey box states that as well (though does not explain the public policy behind the rule, just that the measure must be after the injury).

The worst questions IMO are the ones that explicitly tell you to assume the answer choices listed are true, and then the explanation tells you one of the answer choices is not true. WTH.

[milesdavisjd]

Many seem to be dominating the MBE and here I am getting a 44% on my 5th contracts MBE. Snap.

Nah, I'm still getting Contracts at about 50% consistently. It sort of fell off the map for me after I started working on 6 other subjects. I think we're ok though, just give yourself adequate time to focus on it in July.

[milesdavisjd]

Hi guys! Hope everyone's studying is going well.
Wanted to touch base and see how everyone is prepping these days.

Other than *trying* to keep up with the Themis schedule...here is what I do differently so far:

(1) I've set aside the practice essays for now since I don't have time. Once I'm more comfortable w/ the law and MBE, I'll start cracking the essays day and night ... repeatedly. I plan to follow this guy's advice here: viewtopic.php?f=41&t=248756.

(2) I try to do as many MBE question sets as I can on Themis. I do them open book and try to list the things I get wrong. I review afterwards.

(3) I skip the lectures and go directly to carefully studying the outlines. But since I have to do the "assessment" questions to keep going up the "Status %" for Themis, I'll try to do the assessment questions.

I'm currently on Evidence and hope to start Con Law tomorrow.

Anyone else want to contribute, or give some advice as to what I can do?

Are you far behind? If not, I suggest doing some of the essays.

I find that the essays are very helpful in learning the law. The essays are really short (20-30 minutes) and go by super fast, and I always feel like I have a better understanding of the law after I write it out and struggle with it a little. I cannot tell you how many times I have written a question out on this forum only to find that I understand it after writing it out. I don't always do the essays in the order I am told (often my schedule wants me to do an essay right after the first 17 q MBE set, which I feel like I dont know the law well enough by then.) I normally wait until at least after the second MBE set. Also, my friend last year only outlined the essays and never actually practiced writing them, and he was not able to even start the last essay on the bar exam because he never had the timing down (he still passed though). He meant to fully write the essays out closer to the bar exam but did not feel as though he had enough time.

I personally worry about running out of MBE questions. I have been told that you can run out with Themis, so perhaps doing as many as possible right now isn't great because you won't be able to practice when it gets closer to the bar exam. I could be wrong about this.

I'm not sure how helpful the lectures are. I speed them up 2X while watching, but honestly I'm not sure if it's that useful. I find that doing the lectures and then reading the outline after is helpful in pointing out specific areas that the lectures dont go over (rather than reading the outline and then doing the lectures).

The lectures for the MBE workshops are completely useless. I stopped watching them.

Wow! Thanks for this!

I'm also in the same boat... I'm putting off the essays, because I find that it's easier for me to just memorize rules of law and have done fine on the graded essays, but the MBE questions are trickier. In terms of moving forward to catch up (I'm at 30% when I should be 50%, I stupidly believed I could keep working during the first 4 weeks of study and still be on track), I'm going over the outlines, filling out the handouts, doing the assessments at the end of each chapter, doing 17 MBE questions and one practice essay and moving on. Then I'm trying to devote 3 mornings a week to review, create outlines, and completed some of the daily tasks in the directed study plan.

[oblig.lawl.ref]

Hi all! These themis graded essays are so annoying.

I feel like they expect you just to guess their preferred structure and come out on the law the exact same way. Idk if you guys have done the graded crim law one yet but I totally disagreed with conclusions of law in the model answer. I had the same problem with the model answer for the real property essay some posters discussed earlier in this thread.

It's not helpful when I feel like I address 90% of the issues and my rule statements are 90% correct and I have pretty good analysis/use of facts and then they give me a 45-50 score b/c, presumably, I didn't structure it exactly like the model exam.

Re the conclusions of law in the crim graded essay:

[+] Spoiler

So we were supposed to conclude that punching someone in the face one time constituted depraved heart murder???? In what universe? Because it was foreseeable that the guy would trip and die!? That can't be for real.

[californiabarprep]

Oh yeah, speaking of which.... what % should we be at w/ Themis by now?

[Tripl3Espresso]

Hi all! These themis graded essays are so annoying.

I feel like they expect you just to guess their preferred structure and come out on the law the exact same way. Idk if you guys have done the graded crim law one yet but I totally disagreed with conclusions of law in the model answer. I had the same problem with the model answer for the real property essay some posters discussed earlier in this thread.

It's not helpful when I feel like I address 90% of the issues and my rule statements are 90% correct and I have pretty good analysis/use of facts and then they give me a 45-50 score b/c, presumably, I didn't structure it exactly like the model exam.

Re the conclusions of law in the crim graded essay:

[+] Spoiler

So we were supposed to conclude that punching someone in the face one time constituted depraved heart murder???? In what universe? Because it was foreseeable that the guy would trip and die!? That can't be for real.

I'm pretty sure our conclusions do not have to be the same as the model answer because it all depends on how we analyze the facts. I find myself having this issue too, but I asked my grader and she said it was okay to have a different conclusion UNLESS it is one of those absolutely obvious issues that you have to conclude one way.

[+] Spoiler

I felt there was a lot of wiggle room in the graded crim law one and I concluded there was depraved heart murder because he punched him with enough force to knock him over/to crack his skull.

[always_raining]

Hi all! These themis graded essays are so annoying.

I feel like they expect you just to guess their preferred structure and come out on the law the exact same way. Idk if you guys have done the graded crim law one yet but I totally disagreed with conclusions of law in the model answer. I had the same problem with the model answer for the real property essay some posters discussed earlier in this thread.

It's not helpful when I feel like I address 90% of the issues and my rule statements are 90% correct and I have pretty good analysis/use of facts and then they give me a 45-50 score b/c, presumably, I didn't structure it exactly like the model exam.

Re the conclusions of law in the crim graded essay:

[+] Spoiler

So we were supposed to conclude that punching someone in the face one time constituted depraved heart murder???? In what universe? Because it was foreseeable that the guy would trip and die!? That can't be for real.

I havent done that graded essay yet but I have found the following in the ungraded ones: err on the side of giving people fewer rights than what seems reasonable and charging people with more crimes (by that I mean giving a lot of latitude for what is foreseeable). I did a crim pro essay where I got every analysis wrong because I wrote things about what a reasonable person would think and it turns out I'm definitely not a reasonable person when it comes to whether I would feel I was free to go or whether police have probable cause, etc. Then again I never took crim pro.

[Nelson]

Hitting a dude in the face is definitely showing reckless disregard for the value of human life. At least by the standards of 21st century society.

[oblig.lawl.ref]

Hi all! These themis graded essays are so annoying.

I feel like they expect you just to guess their preferred structure and come out on the law the exact same way. Idk if you guys have done the graded crim law one yet but I totally disagreed with conclusions of law in the model answer. I had the same problem with the model answer for the real property essay some posters discussed earlier in this thread.

It's not helpful when I feel like I address 90% of the issues and my rule statements are 90% correct and I have pretty good analysis/use of facts and then they give me a 45-50 score b/c, presumably, I didn't structure it exactly like the model exam.

Re the conclusions of law in the crim graded essay:

[+] Spoiler

So we were supposed to conclude that punching someone in the face one time constituted depraved heart murder???? In what universe? Because it was foreseeable that the guy would trip and die!? That can't be for real.

I'm pretty sure our conclusions do not have to be the same as the model answer because it all depends on how we analyze the facts. I find myself having this issue too, but I asked my grader and she said it was okay to have a different conclusion UNLESS it is one of those absolutely obvious issues that you have to conclude one way.

[+] Spoiler

I felt there was a lot of wiggle room in the graded crim law one and I concluded there was depraved heart murder because he punched him with enough force to knock him over/to crack his skull.

I know they say that but I feel like my grader essentially just does a line by line comparison of my essay to the model and grades on that. My crim law essay was almost exactly the same as the model w/ regard to issues, headings, and rule statements. The the only difference (*almost*) was how I came out on that issue and the order I treated the subjects and I got a 50.

I just can't believe the grading is an accurate representation of how they're scored on the real bar. Otherwise there is no way a couple of my friends would have passed

[oblig.lawl.ref]

Hitting a dude in the face is definitely showing reckless disregard for the value of human life. At least by the standards of 21st century society.

Seriously? So examples of depraved heart murder include: throwing bricks off a freeway overpass, shooting a crossbow with disregard for people walking behind a target, and punching a guy in the face? I feel like one of those is not like the others...

[Underoath]

Hitting a dude in the face is definitely showing reckless disregard for the value of human life. At least by the standards of 21st century society.

Seriously? So examples of depraved heart murder include: throwing bricks off a freeway overpass, shooting a crossbow with disregard for people walking behind a target, and punching a guy in the face? I feel like one of those is not like the others...

AGREE!!! I don't think one of those is reckless disregard...

[sd5289]

Hi all! These themis graded essays are so annoying.

I feel like they expect you just to guess their preferred structure and come out on the law the exact same way. Idk if you guys have done the graded crim law one yet but I totally disagreed with conclusions of law in the model answer. I had the same problem with the model answer for the real property essay some posters discussed earlier in this thread.

It's not helpful when I feel like I address 90% of the issues and my rule statements are 90% correct and I have pretty good analysis/use of facts and then they give me a 45-50 score b/c, presumably, I didn't structure it exactly like the model exam.

Re the conclusions of law in the crim graded essay:

[+] Spoiler

So we were supposed to conclude that punching someone in the face one time constituted depraved heart murder???? In what universe? Because it was foreseeable that the guy would trip and die!? That can't be for real.

I'm pretty sure our conclusions do not have to be the same as the model answer because it all depends on how we analyze the facts. I find myself having this issue too, but I asked my grader and she said it was okay to have a different conclusion UNLESS it is one of those absolutely obvious issues that you have to conclude one way.

[+] Spoiler

I felt there was a lot of wiggle room in the graded crim law one and I concluded there was depraved heart murder because he punched him with enough force to knock him over/to crack his skull.

Whoa, that's a totally different fact pattern from my graded Crim / Crim Pro essay from last week. For NY anyway, it was:

[+] Spoiler

A burglary and false imprisonment case, plus prosecution commented on defendant's failure to provide alibi to police during post-Miranda questioning where defendant just remained silent, but didn't specifically invoke. The burglary revolved around the NY distinction that burglary doesn't have to be the dwelling of another, and the prosecution closing argument issue revolved around due process fair trial rights. I felt it was pretty straightforward.

[smalogna]

Hi all! These themis graded essays are so annoying.

I feel like they expect you just to guess their preferred structure and come out on the law the exact same way. Idk if you guys have done the graded crim law one yet but I totally disagreed with conclusions of law in the model answer. I had the same problem with the model answer for the real property essay some posters discussed earlier in this thread.

It's not helpful when I feel like I address 90% of the issues and my rule statements are 90% correct and I have pretty good analysis/use of facts and then they give me a 45-50 score b/c, presumably, I didn't structure it exactly like the model exam.

Re the conclusions of law in the crim graded essay:

[+] Spoiler

So we were supposed to conclude that punching someone in the face one time constituted depraved heart murder???? In what universe? Because it was foreseeable that the guy would trip and die!? That can't be for real.

I'm pretty sure our conclusions do not have to be the same as the model answer because it all depends on how we analyze the facts. I find myself having this issue too, but I asked my grader and she said it was okay to have a different conclusion UNLESS it is one of those absolutely obvious issues that you have to conclude one way.

[+] Spoiler

I felt there was a lot of wiggle room in the graded crim law one and I concluded there was depraved heart murder because he punched him with enough force to knock him over/to crack his skull.

Whoa, that's a totally different fact pattern from my graded Crim / Crim Pro essay from last week. For NY anyway, it was:

[+] Spoiler

A burglary and false imprisonment case, plus prosecution commented on defendant's failure to provide alibi to police during post-Miranda questioning where defendant just remained silent, but didn't specifically invoke. The burglary revolved around the NY distinction that burglary doesn't have to be the dwelling of another, and the prosecution closing argument issue revolved around due process fair trial rights. I felt it was pretty straightforward.

Did you do the graded essay early???

[smalogna]

Best evidence is almost always the wrong answer....it was the right answer 3 out of 6 or 7 questions that touched upon it on my last evidence question set. Unbelievable Themis. Unbelievable.

[smalogna]

Taking NY Bar,

Kind of really stressed out that I've been getting ~60%'s (and sometimes less) on the MBE Problem Sets (except torts. Killing torts).

Are you guys all crushing it with 75%+ at this point?

Taking NY bar as well, after my second Evidence PQ set I have an overall PQ % of 65. So no not even close to 75+.

[VicariouslySuperior]

Can someone explain to me the difference between satisfaction and accord and modifying a contract?

Off the top of my head (so feel free to add or correct):

1. Agreeing to an accord never requires consideration.
2. If the accord is delivered it satisfies the K.
3. If there is no satisfaction (by delivering/performing the accord) the non-breaching party can either sue for the accord OR for breach of the original pre-accord contract.

Thanks! So then my question is, how do you know when you are dealing with an accord or with a modification situation? Because if you think it is a modified contract, then it appears to not be valid with the lack of consideration.

Well the accord is conditional and usually involves a dispute about an existing contract. A modification changes the terms of the contract and isn't conditional and requires consideration (or good faith).

Don't forget that to be an accord, you have to offer a different kind of payment than originally intended--i.e. instead of money, here's my bike/house/star wars figurine collection.

You can have an accord without having a different kind of payment. Here is a helpful link which really breaks down Accord and Satisfaction.
http://accordandsatisfaction.uslegal.com/consideration/

??? Your own link agrees with me. It says, "In accord contracts that require an amount of consideration that is less than the original, the consideration must be of a different type, i.e. instead of money, debtor offers something in kind."

And from Themis's long outline, p. 16:

"Under an accord agreement, one party to a contract agrees to accept different performance from the other party than what was promised in the existing contract. Generally, consideration is required for an accord to be valid ... When a creditor agrees to accept a lesser amount in full satisfaction of the debt, the original debt is discharged only when there is some dispute either as tot he validity of the debt or the amount of the debt, or when the payment is of a different type than called for under the original contract." (Emphasis original)

Read the last paragraph and note the "or" in the last sentence. My correction was to your statement that an accord HAS to be for a diferent type of payment. It does not HAVE to be a different payment. If there is a genuine dispute, the consideration can be for less money (not a different type of payment). See the last sentence of your post or continue reading the link I gave you past the paragraph you posted (the example given in the link specifically displays a situation where different type of payment was not required).

I was not trying to be a jerk but there are a lot of people reading this and I wanted to point out that just because it isn't a different type of payment doesn't mean it is not a valid accord.

[skrubba5025]

Taking NY Bar,

Kind of really stressed out that I've been getting ~60%'s (and sometimes less) on the MBE Problem Sets (except torts. Killing torts).

Are you guys all crushing it with 75%+ at this point?

I'm WA (UBE) not NY, but I am hitting around ~65% most of the time. Torts and Crim are consistently in the 70s but then others are in the 50s. Definitely not crushing anything consistently though.

[always_raining]

Can someone explain this Crim Pro MBE question?

[+] Spoiler

On a tip from a criminal informant who indicated that there was "a lot of drug-related" activity going on in a nearby house owned by a woman, a police officer, with no warrant, entered the woman's home and arrested the woman on a charge of criminal drug possession. The officer also seized ten bags of cocaine that were in plain view on the woman's coffee table at the time she was arrested.

Answers I was trying to decide between include: 1. The bags of cocaine constitute evidence seized pursuant to an unlawful arrest and may be suppressed at trial.
2. The woman may not be subsequently prosecuted for the crime of criminal drug possession and if she is, the unlawful arrest will constitute a defense to the crime charged.

I chose 2. The book says an invalid arrest (if done with probable cause) does not mean the person cannot be charged, but seizure of evidence can be suppressed during an invalid arrest. The informant is neither reliable and is not independently verified, so in my mind there is no probable cause to arrest, so she can't be charged either. The right answer is #1. The questions I have seen regarding informant always say they are reliable/able to be verified, and when the question does not say that, then there has been no probable cause. What am I missing?

[zot1]

FINALLY had a practice essay that almost resembled the model answer to the letter. Hoping this just means I'm getting better at essays and not that crim law is easier or that I somehow understood it better.

[Pleasye]

Can someone explain this Crim Pro MBE question?

[+] Spoiler

On a tip from a criminal informant who indicated that there was "a lot of drug-related" activity going on in a nearby house owned by a woman, a police officer, with no warrant, entered the woman's home and arrested the woman on a charge of criminal drug possession. The officer also seized ten bags of cocaine that were in plain view on the woman's coffee table at the time she was arrested.

Answers I was trying to decide between include: 1. The bags of cocaine constitute evidence seized pursuant to an unlawful arrest and may be suppressed at trial.
2. The woman may not be subsequently prosecuted for the crime of criminal drug possession and if she is, the unlawful arrest will constitute a defense to the crime charged.

I chose 2. The book says an invalid arrest (if done with probable cause) does not mean the person cannot be charged, but seizure of evidence can be suppressed during an invalid arrest. The informant is neither reliable and is not independently verified, so in my mind there is no probable cause to arrest, so she can't be charged either. The right answer is #1. The questions I have seen regarding informant always say they are reliable/able to be verified, and when the question does not say that, then there has been no probable cause. What am I missing?

You're missing that she can still be charged later based on different probable cause, she isn't immune from arrest because she was unlawfully arrested once. Also unlawful arrest isn't a defense to a crime it's just a way to keep out physical evidence.

[Tripl3Espresso]

Can someone explain this Crim Pro MBE question?

[+] Spoiler

On a tip from a criminal informant who indicated that there was "a lot of drug-related" activity going on in a nearby house owned by a woman, a police officer, with no warrant, entered the woman's home and arrested the woman on a charge of criminal drug possession. The officer also seized ten bags of cocaine that were in plain view on the woman's coffee table at the time she was arrested.

Answers I was trying to decide between include: 1. The bags of cocaine constitute evidence seized pursuant to an unlawful arrest and may be suppressed at trial.
2. The woman may not be subsequently prosecuted for the crime of criminal drug possession and if she is, the unlawful arrest will constitute a defense to the crime charged.

I chose 2. The book says an invalid arrest (if done with probable cause) does not mean the person cannot be charged, but seizure of evidence can be suppressed during an invalid arrest. The informant is neither reliable and is not independently verified, so in my mind there is no probable cause to arrest, so she can't be charged either. The right answer is #1. The questions I have seen regarding informant always say they are reliable/able to be verified, and when the question does not say that, then there has been no probable cause. What am I missing?

[+] Spoiler

Choice 2 is a misstatement of the law. I am pretty sure an unlawful arrest is not a defense to any subsequent charges. She could still be charged for the crime even if she was unlawfully arrested, and at a later pre-trial hearing it would be shown there was no probable cause for the arrest or crime charged due to the unlawful seizure of the cocaine. Ultimately, the cocaine is fruit of the poisonous tree and will be suppressed.