Themis Bar Review Hangout - July 2016 Forum

[bsktbll28082]

MBE PQs keeps trying to distract me with random latin terms I've never heard before - "malum in se misdemeanor"??

'Wrong in itself' misdemeanor. Like, battery. Inherently bad/evil.

[unidentifiable]

anyone feel like, at this point, its just like studying the same thing over and over again?

[Easy-E]

anyone feel like, at this point, its just like studying the same thing over and over again?

That's studying for ya.

But also the Themis mixed MBE sets straight up repeat questions so yes very much so.

[Robb]

Anyone care to clarify factual/legal impossibility & mistake of law/fact as defenses in criminal law? TIA

My understanding is:

Mistake of law is a defense if
(i) one relied on a high level government interpretation of the law (e.g., an appellate court or the attorney general says something is not a violation of the law)
(ii) lack of notice (i.e., the statute is not made reasonably available) or
(iii) the mistake goes to an element of a specific intent crime

Mistake of fact is a defense for
(i) a specific intent crime if the mistake is honest;
(ii) a general intent crime if the mistake is honest and reasonable; and
(iii) a specific intent crime under no circumstance.

Legal impossibility is a defense to conspiracy or attempt if the supposed crime agreed to/attempted is not actually a crime. (Note: if it would have been a crime were the facts as the defendant believed them to be, it is not a defense to attempt. E.g., I put sugar in my oatmeal, under the impression that sugar is an illicit substance, but I am not guilty of using an illicit substance; by contrast, I try to kill someone who is already dead, and I am still guilty of attempted murder, but not murder.) Factual impossibility is never a defense.

I think you mean "a strict liability crime under no circumstance" right?

Oops, yep! Edited.

[Vantwins]

just missed what should have been an easy question -

2 merchants contracting under UCC do not have to sign the K, but if it's an irrevocable firm offer, it must be signed by the offeror.

is that right??

R: offer by a merchant to buy or sell goods in a signed record that by its terms gives assurance that it will be held open is not revocable for lack of consideration, during the time stated or if no time is stated for a reasonable time (30 days), but can't exceed 3mo; must be signed by the offeror.

-if the firm offer time lapses, it may still remain open unless the offer is revoked/terminated by the offeror; or offeree does something that indicates its rejection of the offer.

Thanks!

[ndp1234]

anyone feel like, at this point, its just like studying the same thing over and over again?

So over it. Lost all motivation. Might be time to take the test already

[unidentifiable]

How about a little insight on this:

I heard, somewhere (i don't remember, maybe reddit; maybe here?) that it could be useful to wake up the morning of the MBE and do like 10-15 practice questions.

Do you think that's a good idea?

I think it would be a good way to get in the zone that morning -- to have multiple choice on the mind. But, I also think it could a confidence destroyer if I do don't do so well. Well, it would destroy confidence if I LET it destroy confidence.

I'm trying to balance that in my mind.

[ndp1234]

It would be motivating if our percentages came up in green when we exceed the target like when it comes up in red if we don't.

[BigZuck]

How about a little insight on this:

I heard, somewhere (i don't remember, maybe reddit; maybe here?) that it could be useful to wake up the morning of the MBE and do like 10-15 practice questions.

Do you think that's a good idea?

I think it would be a good way to get in the zone that morning -- to have multiple choice on the mind. But, I also think it could a confidence destroyer if I do don't do so well. Well, it would destroy confidence if I LET it destroy confidence.

I'm trying to balance that in my mind.

Do the questions but don't grade them/look at the answers. Whether you get them right or not is irrelevant, you're just trying to kickstart your brain

[rambleon65]

How about a little insight on this:

I heard, somewhere (i don't remember, maybe reddit; maybe here?) that it could be useful to wake up the morning of the MBE and do like 10-15 practice questions.

Do you think that's a good idea?

I think it would be a good way to get in the zone that morning -- to have multiple choice on the mind. But, I also think it could a confidence destroyer if I do don't do so well. Well, it would destroy confidence if I LET it destroy confidence.

I'm trying to balance that in my mind.

Do the questions but don't grade them/look at the answers. Whether you get them right or not is irrelevant, you're just trying to kickstart your brain

I think doing a problem set you've done already (a long time ago) could be helpful to get the juices flowing.

[mu13ski]

How about a little insight on this:

I heard, somewhere (i don't remember, maybe reddit; maybe here?) that it could be useful to wake up the morning of the MBE and do like 10-15 practice questions.

Do you think that's a good idea?

I think it would be a good way to get in the zone that morning -- to have multiple choice on the mind. But, I also think it could a confidence destroyer if I do don't do so well. Well, it would destroy confidence if I LET it destroy confidence.

I'm trying to balance that in my mind.

I was planning on doing this. I did this the morning of the LSAT with a logic game that I had already done before.

[Sheeit]

How about a little insight on this:

I heard, somewhere (i don't remember, maybe reddit; maybe here?) that it could be useful to wake up the morning of the MBE and do like 10-15 practice questions.

Do you think that's a good idea?

I think it would be a good way to get in the zone that morning -- to have multiple choice on the mind. But, I also think it could a confidence destroyer if I do don't do so well. Well, it would destroy confidence if I LET it destroy confidence.

I'm trying to balance that in my mind.

It doesnt sound like a bad idea. It always takes me a couple of questions to get in the swing of it first thing in the morning.

[Hmasterflex]

How about a little insight on this:

I heard, somewhere (i don't remember, maybe reddit; maybe here?) that it could be useful to wake up the morning of the MBE and do like 10-15 practice questions.

Do you think that's a good idea?

I think it would be a good way to get in the zone that morning -- to have multiple choice on the mind. But, I also think it could a confidence destroyer if I do don't do so well. Well, it would destroy confidence if I LET it destroy confidence.

I'm trying to balance that in my mind.

I might try this. For the full MBE sim, I had some preworkout and did some jumping jacks. I was ready
Maybe crank up "i'm the one" by flux pavilion. whatever you feel

[xdeuceswild81xx]

Personally, I picked out 7 questions to review the morning before the MBE, one from each subject. Not going to see if they are correct or not, just doing 1 of each to get the juices flowing some.

[Hmasterflex]

Themis conveyance reasoning:

"grantor delivered deed to his attorney" - he absolutely had the intent to deliver

"grantor delivered deed to his attorney, who put it in his desk" - nope

Digiorno Doctrine

[Vantwins]

MBE PQs keeps trying to distract me with random latin terms I've never heard before - "malum in se misdemeanor"??

'Wrong in itself' misdemeanor. Like, battery. Inherently bad/evil.

Thanks! I have a feeling that won't be a right answer on the exam. And I clerked for a judge who was on a misdemeanor docket in DC and handled at least 100 misdemeanor cases in VA and this term never came up!

On a random note, I love that Advanced Sales is really just more contracts.

[ndp1234]

Themis gonna Theme (from Optional Evidence Set 6):

[+] Spoiler

A plaintiff has sued a defendant, alleging that she was run over by a speeding car driven by the defendant. The plaintiff was unconscious after her injury and, accompanied by her husband, was brought to the hospital in an ambulance.
At trial, the plaintiff calls an emergency room physician to testify that when the physician asked the plaintiff's husband if he knew what had happened, the husband, who was upset, replied, "I saw my wife get run over two hours ago by a driver who went right through the intersection without looking."

Is the physician's testimony about the husband's statement admissible?

Answers:

No, because it relates an opinion.
Correct Answer: No, because it is hearsay not within any exception.
Yes, as a statement made for purposes of diagnosis or treatment.
You Selected: Yes, as an excited utterance.
Rationale:

Answer choice B is correct. The statement is offered to prove liability for the accident. As such, it is not a statement made for purposes of diagnosis or treatment. Moreover, the statement was made two hours after the accident, so it is very unlikely that the husband (who was not himself an accident victim) was under a continuous state of excitement between the time of the accident and the time he made the statement. Therefore, the statement is not admissible as an excited utterance, and no other hearsay exception applies. Answer choice A is incorrect. An out-of-court statement is not inadmissible simply because it contains an opinion. Statements of opinion by out-of-court declarants may be admitted if they qualify under a hearsay exception and otherwise satisfy the rules governing opinion testimony of in-court witnesses. This statement, however, is hearsay not within any exception and is inadmissible. Answer choice C is incorrect. The husband's statement is making an accusation of fault for the accident. Such a statement is not pertinent to the diagnosis or treatment of the plaintiff, as is required by the hearsay exception. No other hearsay exception applies, so the statement is inadmissible. As discussed with respect to answer choice B, because the husband made the statement two hours after the accident, it is very unlikely that the husband (who was not himself an accident victim) was under a continuous state of excitement between the time of the accident and the time he made the statement.

Time shouldn't be the dispositive factor for an excited utterance, stress is. Or so I thought.

But I forgive them this time because that set was basically testing if you know the BLL without crazy analyses to crazy facts.

[AlanShore]

For the "scale" thats used to determine our score - is this scale uniform/national? or does it differ state by state for the MBE?

[Hmasterflex]

For the "scale" thats used to determine our score - is this scale uniform/national? or does it differ state by state for the MBE?

I think each state scales its own resident takers. Texas uses the "equipercentile" method of scaling. Whatever the F*** that means.

I just hope I do as well on the actual MBE as i did on the simulation, as unjustified as my score was. I'm gonna tank on the essays

[unidentifiable]

For the "scale" thats used to determine our score - is this scale uniform/national? or does it differ state by state for the MBE?

I think each state scales its own resident takers. Texas uses the "equipercentile" method of scaling. Whatever the F*** that means.

I just hope I do as well on the actual MBE as i did on the simulation, as unjustified as my score was. I'm gonna tank on the essays

wtf texas

[Fivedham]

I reached Rudy Giuliani at the convention levels of rage at this question in the 100 paper MBE set:

[+] Spoiler

A contractor purchased a furnace from a distributor of heating systems, after the distributor recommended the furnace based on the contractor’s stated needs. The bill of sale between the distributor and the contractor stated, “All warranties, express or implied, are hereby disclaimed.” The contractor installed the furnace in an office building. Due to a manufacturing defect, the furnace failed to heat the building as it should have. The contractor was sued by the owner of the office building.

Can the contractor assert a claim against the distributor for breach of the implied warranty of merchantability?

Answers:

No, because there is no implied warranty of merchantability for sales between merchants.
No, because the distributor disclaimed this warranty.
Yes, because furnace failed to heat the building.
Yes, because the contractor relied on the distributor’s judgment.
Rationale:

Answer choice C is correct. Goods that are not fit for the ordinary purpose for which such goods are used are not merchantable. As a merchant seller of the furnace, the distributor can be liable for breach of the warranty of merchantability. Answer choice A is incorrect because the implied warranty of merchantability applies when the seller is a merchant. It applies even where the buyer is also a merchant. Answer choice B is incorrect because a general disclaimer is not sufficient to disclaim the warranty of merchantability. Answer choice D is incorrect because reliance on a seller’s judgment is not a requirement of the implied warranty of merchantability, and a warranty of fitness for a particular purpose may be disclaimed in general language.

WTF, NCBE? They're asking SPECIFICALLY about the implied warranty, which CAN be disclaimed in a conspicuous writing. I still don't get why I was wrong.

[BigZuck]

I reached Rudy Giuliani at the convention levels of rage at this question in the 100 paper MBE set:

[+] Spoiler

A contractor purchased a furnace from a distributor of heating systems, after the distributor recommended the furnace based on the contractor’s stated needs. The bill of sale between the distributor and the contractor stated, “All warranties, express or implied, are hereby disclaimed.” The contractor installed the furnace in an office building. Due to a manufacturing defect, the furnace failed to heat the building as it should have. The contractor was sued by the owner of the office building.

Can the contractor assert a claim against the distributor for breach of the implied warranty of merchantability?

Answers:

No, because there is no implied warranty of merchantability for sales between merchants.
No, because the distributor disclaimed this warranty.
Yes, because furnace failed to heat the building.
Yes, because the contractor relied on the distributor’s judgment.
Rationale:

Answer choice C is correct. Goods that are not fit for the ordinary purpose for which such goods are used are not merchantable. As a merchant seller of the furnace, the distributor can be liable for breach of the warranty of merchantability. Answer choice A is incorrect because the implied warranty of merchantability applies when the seller is a merchant. It applies even where the buyer is also a merchant. Answer choice B is incorrect because a general disclaimer is not sufficient to disclaim the warranty of merchantability. Answer choice D is incorrect because reliance on a seller’s judgment is not a requirement of the implied warranty of merchantability, and a warranty of fitness for a particular purpose may be disclaimed in general language.

WTF, NCBE? They're asking SPECIFICALLY about the implied warranty, which CAN be disclaimed in a conspicuous writing. I still don't get why I was wrong.

It wasn't disclaimed in a conspicuous writing. it was a general disclaimer. That's not enough.

[rambleon65]

Themis gonna Theme (from Optional Evidence Set 6):

[+] Spoiler

A plaintiff has sued a defendant, alleging that she was run over by a speeding car driven by the defendant. The plaintiff was unconscious after her injury and, accompanied by her husband, was brought to the hospital in an ambulance.
At trial, the plaintiff calls an emergency room physician to testify that when the physician asked the plaintiff's husband if he knew what had happened, the husband, who was upset, replied, "I saw my wife get run over two hours ago by a driver who went right through the intersection without looking."

Is the physician's testimony about the husband's statement admissible?

Answers:

No, because it relates an opinion.
Correct Answer: No, because it is hearsay not within any exception.
Yes, as a statement made for purposes of diagnosis or treatment.
You Selected: Yes, as an excited utterance.
Rationale:

Answer choice B is correct. The statement is offered to prove liability for the accident. As such, it is not a statement made for purposes of diagnosis or treatment. Moreover, the statement was made two hours after the accident, so it is very unlikely that the husband (who was not himself an accident victim) was under a continuous state of excitement between the time of the accident and the time he made the statement. Therefore, the statement is not admissible as an excited utterance, and no other hearsay exception applies. Answer choice A is incorrect. An out-of-court statement is not inadmissible simply because it contains an opinion. Statements of opinion by out-of-court declarants may be admitted if they qualify under a hearsay exception and otherwise satisfy the rules governing opinion testimony of in-court witnesses. This statement, however, is hearsay not within any exception and is inadmissible. Answer choice C is incorrect. The husband's statement is making an accusation of fault for the accident. Such a statement is not pertinent to the diagnosis or treatment of the plaintiff, as is required by the hearsay exception. No other hearsay exception applies, so the statement is inadmissible. As discussed with respect to answer choice B, because the husband made the statement two hours after the accident, it is very unlikely that the husband (who was not himself an accident victim) was under a continuous state of excitement between the time of the accident and the time he made the statement.

Time shouldn't be the dispositive factor for an excited utterance, stress is. Or so I thought.

But I forgive them this time because that set was basically testing if you know the BLL without crazy analyses to crazy facts.

I think by "excited utterance," it is looking for more of a reactionary statement where the infirmities of hearsay are diminished. Two hours is a long time for something to be reactionary and presumed to be honest / reliable / trustworthy.

[rambleon65]

I reached Rudy Giuliani at the convention levels of rage at this question in the 100 paper MBE set:

[+] Spoiler

A contractor purchased a furnace from a distributor of heating systems, after the distributor recommended the furnace based on the contractor’s stated needs. The bill of sale between the distributor and the contractor stated, “All warranties, express or implied, are hereby disclaimed.” The contractor installed the furnace in an office building. Due to a manufacturing defect, the furnace failed to heat the building as it should have. The contractor was sued by the owner of the office building.

Can the contractor assert a claim against the distributor for breach of the implied warranty of merchantability?

Answers:

No, because there is no implied warranty of merchantability for sales between merchants.
No, because the distributor disclaimed this warranty.
Yes, because furnace failed to heat the building.
Yes, because the contractor relied on the distributor’s judgment.
Rationale:

Answer choice C is correct. Goods that are not fit for the ordinary purpose for which such goods are used are not merchantable. As a merchant seller of the furnace, the distributor can be liable for breach of the warranty of merchantability. Answer choice A is incorrect because the implied warranty of merchantability applies when the seller is a merchant. It applies even where the buyer is also a merchant. Answer choice B is incorrect because a general disclaimer is not sufficient to disclaim the warranty of merchantability. Answer choice D is incorrect because reliance on a seller’s judgment is not a requirement of the implied warranty of merchantability, and a warranty of fitness for a particular purpose may be disclaimed in general language.

WTF, NCBE? They're asking SPECIFICALLY about the implied warranty, which CAN be disclaimed in a conspicuous writing. I still don't get why I was wrong.

It wasn't disclaimed in a conspicuous writing. it was a general disclaimer. That's not enough.

edit: duplicative, see newest post.

[Fivedham]

I reached Rudy Giuliani at the convention levels of rage at this question in the 100 paper MBE set:

[+] Spoiler

A contractor purchased a furnace from a distributor of heating systems, after the distributor recommended the furnace based on the contractor’s stated needs. The bill of sale between the distributor and the contractor stated, “All warranties, express or implied, are hereby disclaimed.” The contractor installed the furnace in an office building. Due to a manufacturing defect, the furnace failed to heat the building as it should have. The contractor was sued by the owner of the office building.

Can the contractor assert a claim against the distributor for breach of the implied warranty of merchantability?

Answers:

No, because there is no implied warranty of merchantability for sales between merchants.
No, because the distributor disclaimed this warranty.
Yes, because furnace failed to heat the building.
Yes, because the contractor relied on the distributor’s judgment.
Rationale:

Answer choice C is correct. Goods that are not fit for the ordinary purpose for which such goods are used are not merchantable. As a merchant seller of the furnace, the distributor can be liable for breach of the warranty of merchantability. Answer choice A is incorrect because the implied warranty of merchantability applies when the seller is a merchant. It applies even where the buyer is also a merchant. Answer choice B is incorrect because a general disclaimer is not sufficient to disclaim the warranty of merchantability. Answer choice D is incorrect because reliance on a seller’s judgment is not a requirement of the implied warranty of merchantability, and a warranty of fitness for a particular purpose may be disclaimed in general language.

WTF, NCBE? They're asking SPECIFICALLY about the implied warranty, which CAN be disclaimed in a conspicuous writing. I still don't get why I was wrong.

It wasn't disclaimed in a conspicuous writing. it was a general disclaimer. That's not enough.

Themis outline: "Unless the circumstances indicate otherwise, the warranty [of merchantability] can be disclaimed by use of “as is,” “with all faults,” or similar language that makes plain that there is no implied warranty. The disclaimer may be oral, but it must use the term “merchantability” and must be conspicuous if in writing"

Is that disclaimer not similar to "as is/with faults" and making it plain?
Edit: I see it now, there has to be the word "merchantability." But Themis should clarify that in the outline, it makes it seem like that only applies to oral disclaimers.