2019 February California Bar Forum

[flawedargument]

What was the Joint Tenancy issue? Were the magic words for creating a JT used...?

Issue was that condo was QCP. I may have messed this up but said that property could have passed entirely to the son depending on wife's election choice. If not, wife likely tenants in common with son?!

People keep saying there was property law crossover though. As in the MBE subject property. Am I just completely missing that? I get the CP/QCP debate though.

[Omgzomb]

What was the Joint Tenancy issue? Were the magic words for creating a JT used...?

Issue was that condo was QCP. I may have messed this up but said that property could have passed entirely to the son depending on wife's election choice. If not, wife likely tenants in common with son?!

People keep saying there was property law crossover though. As in the MBE subject property. Am I just completely missing that? I get the CP/QCP debate though.

It was a minor issue b/c the H tried to convey an interest to his son by creating a JTROS in the prop with the son. Definitely did not feel like a major issue that needed a full analysis,but rather something that would grant extra points if addressed properly.

Don’t sweat it. These all felt like race horse style questions that required lots of issue spotting. Lots of things available to make up for potentially missed issues. As an attorney applicant I felt sad that I used “see rule/see analysis above” so much.

[thizzinmybrainsout]

What was the Joint Tenancy issue? Were the magic words for creating a JT used...?

Issue was that condo was QCP. I may have messed this up but said that property could have passed entirely to the son depending on wife's election choice. If not, wife likely tenants in common with son?!

People keep saying there was property law crossover though. As in the MBE subject property. Am I just completely missing that? I get the CP/QCP debate though.

There were a handful of colorable MBE Property Issues worth raising/discussing (albeit perhaps tangentially) - Joint Tenancy, Present/Future Interest - but more I think it was how those Property concepts interacted or were implicated vis-a-vis the other subjects (Comm. Prop, Wills/Trusts, etc.)

[JakeTappers]

Yes, now that it's over, first of all - Congrats everyone. Kickback, chillout, and (try to) enjoy the fact that it's in the books. Hopefully the last time - but if not, use it as a learning experience and kick ass J19.

I was unsuccessful my first try in J18. My initial impressions - that seemed much tougher than July. And that's notwithstanding the fact that I prepared WAY MORE for this test than I did for July.

The MBE seemed to have an odd mix of seemingly "gimmie" questions and some really dense, oddly presented ones - for example, IMHO quite a few instances of "pick the least incorrect of the following 4 answers" where the (what I thought to be) correct choice was, like, nominally applicable.

I used every minute of the AM and PM sessions, and had to go faster than I would have liked to for the last ~5-10 each session. And I completed nearly 2k practice MBE Q's in preparation for Feb., and at the end of my prep was consistently 70%+ over the last 500 or so. In other words, I def considered MBE to be my strong suit heading in - largely because CA Essays can be such a mind-f*ck and the grading is, let's face it, stupidly inconsistent/ambiguous/unreliable to predict.

Pretty much agree except I finished with tons of time. Almost 45 minutes in the PM. I went back and started to re read things and just kept changing over and over on 101 and was just like no. I’m leaving. I know I got the removal/remand ones wrong, some strange crim pro ones (strong suit of mine) and probably the property ones. I counted at least 75 that I really didn’t feel confident about. And that’s after getting around 70% on adaptibar 2000 (as well as 77+ on all four practice exams, 77% in February, and 85+ over the last week or so). They weren’t even the usual “down to two” usually - I would be down to three. Or just all four.

Felt rarely confident yesterday that I had done enough to pass. Not sure anymore.

How does it work if everyone did poorly on MBE? Lol. Seriously though...

[mycrookedwand]

Was there anything about the call to 3–I think it said “special damages”—that requires additional analysis? I really just said if the breaches weren’t enough LL could recover, minus the time tenant couldn’t access or rights were otherwise infringed and mitigation.

Also wasn’t sure to make of the fact it was 9 month furnished. I know that gives rise to tort liability but there wasn’t really one here. Similarly, wasn’t sure the effect of the “sure if that’s how you feel” comment. Did nothing with it I don’t think

I argued surrender vs. abandonment for the whole giving keys back and “sure if that’s how you feel.” I said it was likely surrender so no prospective rent for LL.

I completely blanked on the furnished apartment rules. Can’t remember what BS I wrote to try to incorporate it into the analysis. Was the nuisance tied to that? I brought up nuisance but abandoned drawing much of a conclusion on it bc I was stumped on LL’s liability.

[Heyall]

What supprised me about the MBE today was that a contract question about the $1,100 was repeated verbatim from an old question in the last Emannuel book.


Anyway, does anyone have a prediction or comment about the potential curve? I need uplifting news .

[ovcovc]

What supprised me about the MBE today was that a contract question about the $1,100 was repeated verbatim from an old question in the last Emannuel book.


Anyway, does anyone have a prediction or comment about the potential curve? I need uplifting news .

I have The Multistate Goat and also had exactly this question in it.

This is just from published past MBE questions

[Blueplanet]

How did find the MBE exam overall? Easy, hard, OK?

[JakeTappers]

What supprised me about the MBE today was that a contract question about the $1,100 was repeated verbatim from an old question in the last Emannuel book.


Anyway, does anyone have a prediction or comment about the potential curve? I need uplifting news .

Not to double up but can just about anyone explain to me how the curve works? I know there’s a national component and scaling etc but basically what does it mean for us lol

[barexaminerssuck27]

I URGE EVERYONE to stop freaking yourself out!

The essays were made to be a racehorse! Just cause you didn't get an issue and someone else does, it doesn't mean the other person got all your other issues! The essays were meant to be like this. Anyone who finished early failed.

It is over and done with. You get sleep. Go out with friends. Go to the movies.

Again, it DOESNT mean you failed use just cause someone spotted an issue and you missed it.

I am done!

[flawedargument]

My PT organization is more like:

FACTS
ARGUMENT
1. Forfeiture is appropriate because it is not mandated by the statute
2. Exoneration is not justified because Defendant willfully disappeared, Surety failed to attempt to locate Defendant, and the non-appearance was prejudicial to the State
- trial court has discretion
- state the factors and analyze each
CONCLUSION

I messed up essay 1 though...I guess not enough coffee in the morning, and I ended up not recognizing that the joint tenancy was invalid even though I correctly characterized the condo as QCP. This also led to the non-discussion of the omitted child issue.

Oh wow The omitted child issue didn’t even cross my mind. fml.

I caught it and blabbered a bit but to be fair i don't think its a huge issue. The kid was omitted from the will but was preexisting and otherwise taken care of, at least to some degree. I said that and about not falling under the parent exception and then basically was just like he still gets just the residuary trust, basically.

They hadn't tested CP 4 times in a row ever, so I really did not study for it AT ALL. Thinking back now, the condo was QCP, obviously, but who gets it? Doesn't W take the entirety? Same with the house in State X (unless the codicil was valid)?

jaketappers i think you were right about these in your first post
in the end, wife gets everything
the kid has a future interest under the trust
bill gets nothing
creditors get nothing

EXCEPT in my version this result was reached because condo is CP, not QCP
There had to be a difference between the house in State X and the condo, and I figured it was because condo was in california. I wasnt even sure.
But IF the condo was QCP, the above result would not be reached. QCP = SP in life, CP at death. If condo was QCP then conveyance woudl be valid and Sid would take as a surviving JT.
The reason he does not take is that Hank had no right to make the conveyance, because it was CP. Already during his life. (NOT QCP).

State X house, however, is pure QCP. He would have had power to convey it in life, although he didn't. He also had power to will a half of it as his at-death CP share (QCP treated as CP at death), but he didnt and Sid's attempt fails because conservator, although he can technically sometimes execute a codicil, can't invent new beneficiaries. That's like the opposite of conserving)

+Why don't ya'll stop with the omitted kid, only a kid born afterwards is omitted and this was a pre-existing kid. You can disinherit whomever you want, if you do it knowingly.

I really wish the above analysis were correct.. then I could sleep easier because that’s how I approached it. But on reflection I think property purchased in CA while living in a non-community property state is QCP, not CP

[JakeTappers]

You know, I was really adamant that I was going to take every fact and consider “why” and that is a perfect example. Had to be a difference between condo and house. And you’re right, I think: “In the divorce context, quasi-community property includes all real estate wherever it is located. In the death context, quasi-community property real estate includes only real estate within California.”

So, def missed that. Probably a 55 coming my way. Fuckkkkkkkkkkk

[jptx]

Note that when taking the abbreviated attys exam, the CA Bar automatically assigns the nationwide MBE average score to each examinee. But the nationwide average is usually a failing grade (under 140) in terms of the CA cut score. So in essence, those out-of-state attys must score higher than the minimum passing score on the essays (to make up for the failing MBE grade) in order to pass the exam.

This phenomenon is reflected in the pass rates for -out-of-state attys. Examinees taking the abbreviated atty exam have around a 32% passing rate. While out-of-state attys taking the full bar exam have a 50% passing rate.

I don't think this is right. They say they "scale" the essays by assigning them MBE-style scores on the same distribution (curve) as the the MBE scores of California test-takers that day. For full exam applicants, the scaled essay score is averaged with their MBE score. For attorney applicants, your score is simply your scaled essay score.

There is a lot of conflicting info out there and on here about this.

Scaling is confusing, and based upon certain assumptions that may or may not be true. The cut score is not scaled, this is why sometimes 60% pass sometimes 40% pass. Scaling is not the same a grading on a curve. There are separate scaling exercises as it concerns the California bar. The NCBE engages in complex statistical analysis of their questions from examination to examination, to correct for difficulty variations from MBE test to MBE test. The NCBE insists that a scaled score of say 150 in July 2018 is the same level of achievement as a scaled score of 150 in July 2010. The data that they rely on in making this analysis is not public. The fact for purposes of California, is that scaled scores of the mean score on the MBE has been declining nationally and in California since 2008. http://www.ncbex.org/statistics-and-res ... tatistics/

California says it scales essay scores to the mean MBE scores of California MBE takers. http://www.calbar.ca.gov/Admissions/Exa ... on/Scaling. The assumption is that the mean MBE measures the strength of test takers. This assumption may be partially correct, but would have statistical flaws in that the pool of MBE takers and essay takers is different (attorneys taking the one day don't take the MBE). While really beyond what I am trying to say here, statisticians recognize that utilizing a mean alone for statistical analysis of can lead to flawed conclusions. It also may not account for a shift in skill set(the pool is more skilled writing essays than multiple choice) or an extreme number of very poor (or excellent) test takers.

More importantly, scaling mixes two styles of grading. Essay scores are, for lack of a better word, subjective category scores. The description I have seen is:
40 – This score is only given if the taker barely wrote anything.
45 – Extremely poor answer,
50 – Very poor.
55 – Needs much improvement, but hit some issues.
60 – Not quite passing,
65 – A passing answer.
70 – Very good answer.
75 – Close to flawless.
80 – Awe inspiring.
100 – The top 2 answers selected to be on the California State Bar’s website.

If a grader is assigning a category score, he/she is already scaling in their own mind. The score will again be scaled to the California MBE mean, and if you take the attorney exam, the one day essay scaled score is doubled (doubling the scaling effect) to calculate the final score. Scaling will make a difference for people who without scaling are close to the cut score (between 60 and 65 on each question). Playing with the https://mberules.com/california-bar-exa ... alculator/ with different numbers demonstrates the scaling effect. It think it is likely that scores are heavily clustered between 60 and 65 on each question. It is this cluster that scaling might make a difference between pass and fail. It is subtle, but there is a statistical disadvantage for the attorney exam if the California mbe mean is low. In the July 2018 exam, 50% of attorneys who took the two day passed, but only 32% of those who took the attorney's exam passed.

[Ksapatlawyer]

Reading through the posts, I get that there were plenty of crossover questions on the essays. What were the subjects covered for Essays 1-5 on day one?

[JakeTappers]

Reading through the posts, I get that there were plenty of crossover questions on the essays. What were the subjects covered for Essays 1-5 on day one?

Wills/Trusts/Community Property (with Joint Tenancy) - 1 (true hybrid of the first three, basically)
Torts (neg/premises/defenses) - 2
Real Prop (LL/T) - 3
Evidence (with underlying negligence action)/Civ Pro - 4 (almost a transcript type with sets of testimony and what was admissible, what wasn't; then SMJ)
Prof Resp - 5 (like July, a pure PR; I noticed decorum/fairness (threats and improper lit) as well as unauthorized practice of law and assisting in it, couple other random things)

Possible I missed something big though.

[Underoath]

Torts had animals, a dog bite and a chimpanzee

[JDJM6215]

Good essays. I was so happy with the tort Q, RP was pretty straight forward. I did rather a lot of typing but ran out of time on the PR.

My thoughts? This was very hard compared to July's, and I almost passed that one, 1434 prior to the reread, which screwed me out of a bunch of points and averaged me to fail by 33 points. I studied hard and felt prepared. Adaptibar total was over 3000 but the MBE sucked. I used every minute and I was so brain dead last night. I just don't know if I did enough but feel pretty good today that it is behind me. Since I do not know how I did, I'm taking a short break, one month off. Then I'm going to practice essays and MPQs starting April so that if I'm not successful this time I'll be prepared for July.

[Censino1]

Anyone mentioned Conflict of Interest and competence issue in PR?

[Cherry805]

I didn't discuss conflict of interest, but did mention competence.

[JakeTappers]

I didn't discuss conflict of interest, but did mention competence.

I'd be interested to hear what duties people talked about. I couldn't find a conflict of interest or loyalty (other than filing possibly baseless lawsuits that you are presumably billing for); but I wrote about fairness (threats/lawsuits), represented third parties, unauthorized practice of law/assistant (as well as supervision). But I couldn't think of ways to get fees/loyalty/conflicts, the other usual things in.

[JakeTappers]

Good essays. I was so happy with the tort Q, RP was pretty straight forward. I did rather a lot of typing but ran out of time on the PR.

My thoughts? This was very hard compared to July's, and I almost passed that one, 1434 prior to the reread, which screwed me out of a bunch of points and averaged me to fail by 33 points. I studied hard and felt prepared. Adaptibar total was over 3000 but the MBE sucked. I used every minute and I was so brain dead last night. I just don't know if I did enough but feel pretty good today that it is behind me. Since I do not know how I did, I'm taking a short break, one month off. Then I'm going to practice essays and MPQs starting April so that if I'm not successful this time I'll be prepared for July.

Congrats! Same on studying. Did you do anything other than negligence/strict liability/nied possibility/defenses on negligence?

[lawschoolgradz1]

Can anyone tell me how they set up the PT? I found it pretty difficult to even understand what they were asking in the beginning. Did anyone do Facts?

[maureenwct]

I think the PR question tangentially focused on retainers - at least I mentioned that, as it was a new firm, a new retainer should have been executed, and the client needed to understand that there was no fee splitting (or the portion of the bill owed to the former firm), but that the firm had reorganized and reformed into a new entity. I went on about the distinctions between retainers between the ABA and California; this was my 'make it fit' attempt because I knew those rules well.

I also said that there existed a conflict between the loyalties to the client and to the former member of the firm on the part of the current attorney, as evidenced by her decision to rehire a disbarred counsel, and provide her with what seemed to be supervisory authority and legal decision making over the former client. I also said that there could not be a blanket statement to ignore an existing court order, that the penalties for that failure could be criminal, and that one is effectively counseling a criminal act; on reflection, that was a stretch, because I should have said that perhaps the order to do a service (play a sport) was inappropriately entered because the court will not usually police injuctions of that type.....

I was rambling at that point bc I elected to do the PT before the PR essay, and left myself only 45 minutes on the PR.

If anything, I really learned that a few more minutes of thinking despite the time ticking away might have produced a better ansswer.

[maureenwct]

For what it is worth - on the PT, I wrote a facts section, a summary of my argument, and then each argument - which was likely a little repetitive. I don't think I distinguished the other cases in detail, but just said - 'unlike X or similar to Y, which is a bit too conclusory.

[JakeTappers]

Can anyone tell me how they set up the PT? I found it pretty difficult to even understand what they were asking in the beginning. Did anyone do Facts?

A couple people, including myself, have addressed this above, but mine was:

FACTS
LEGAL STANDARD (basically was just to quote some of the cases favorable to the position and cite them)
ARGUMENT
Forfeiture is a matter of the courts discretion (discussing statute, mostly)
X case does not demand a different conclusion
All factors weigh in favor of forfeiture
- deliberate conduct;
- factor 2
- factor 3, etc.
CONCLUSION