From the monthly archives:

June 2011

The Almost Daily Word of Wisdom – How Knowing the History of Columbia Can Help You Ace the Performance Test

Jun

Adam Ferber is the former Examinations Director for the State Bar of California and grader of 40 California Bar and First-Year Law Students’ Examinations. He provides intensive, individualized tutoring and coaching to applicants for both exams, as well as counseling and advocacy for applicants appealing their unsuccessful exam results. Contact Adam at www.ferberbarreview.com or on Facebook at Ferber Bar Review – Student Resource Group.

“Lionel Hutz – court appointed attorney. I’ll be defending you on the charge of …Murder One! Wow! Even if I lose, I’ll be famous.” (Cartoon) lawyer Lionel Hutz

If you’ve watched television at all over the past 20 years, you probably know about the Simpsons’ hometown of Springfield (exact state still unknown). You may also know a lot about Mr. Hutz, Disco Stu, Lake Springfield, Duff Gardens and all the people and places that make the town feel like home to us as well. But how much do you know about the State of Columbia, the fictional locale of the bar examination’s performance test?

Since its establishment, along with the PT almost thirty years ago, much has come to light about Columbia. Its law offices grow by at least two every time the bar examination is given. They include Castro & Ruz, Sanquist & Davis and one particularly successful firm named after my two sons. In its state courts (including the county courts of Jackson and Galena) and the federal courts in its Northern and Southern districts, lawyers have litigated claims to sunken treasure, mistreatment of animals, forced medical treatment and theft of trade secrets. So long as the performance test is given, hitherto unknown Columbians will have their days in the sun, just as have Ralph Panine, Kai Banerjee and my personal favorite, investigator Johnny Ripka.

Why should you be interested in this history? Why should you even consider taking precious study time off just to read through the libraries and files of long-ago litigated battles in this fanciful place?

Because each time you read a performance test and the selected answers that accompany it at the Cal Bar’s Office of Admissions’ website, you are learning about how these test items are constructed, including:

- The relationship between the facts in the File and the legal authorities in the Library;

- How what would be a smooth chronological narrative in a magazine article about the dispute the PT involves is broken up and distributed through the File. And, how to reconstruct that narrative to suit your purposes.

- Exactly how Columbia’s legal community writes its settlement offers; persuasive memos.” and even, on occasion, their discovery plans. Just as Marge’s sisters, Thelma and Patty, love MacGyver, so do Columbia’s senior lawyers love carefully crafted subject headings.

To put it simply, you are honing your clinical skills. And that’s what the performance test is intended to measure!

So, even if it feels counter-intuitive, stop outlining and writing, and just read a few of these test items. And, if you have any energy left after that, you may enjoy an episode of The Simpsons.

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Failing the California Bar Examination – What to Do if You’re Are You At Risk? Part Four – Keep Your Pants on and Study Smarter!

by Dina Allam

Jun

“He who laughs has not yet heard the bad news.” Bertolt Brecht

“If one studies too zealously, one easily loses his pants.” Albert Einstein

The Almost Daily Word has lately been giving you the straight skinny on the subtle and not-so-subtle signs that you could fail the California Bar Exam, and on how to decrease that risk. You can make yourself stronger, smarter, more strategic and better prepared for what’s ahead.

Here’s another risk avoidance technique for your tool box:

Study smarter – and keep your pants on!

Almost all the Bar Exam applicants I’ve met, be they first-timers or repeaters, study “pedal-to-the-metal,” “24-7″ right up to exam time. They are all in danger of losing their pants.

Hal Pashler and Doug Roher, psychology professors and frequent collaborators, are fascinated by how people learn and remember. In their article Increasing Retention Without Increasing Study Time (2007 – Current Directions of Psychological Science) they examined two well known but poorly understood study questions: How long should one study the same material before quitting or shifting to new material, and how should a fixed amount of study time be distributed across study sessions? What they found should be a lesson to you.

- Know When to Quit

Say you’ve devoted a study session to understanding better the various degrees of murder. After an hour, you’ve been able to answer every multiple choice question you can access on the topic without error. Still, you’re concerned about forgetting what you’ve learned. Should you immediately go over the material one more time?

According to Pashler and Roher, if the Bar Exam is more than a week away, the answer is probably no. They call this continued studying of the same topic “overlearning,” or “massing.” For about a week, it produces better test results. But soon after that gains decline rapidly. Eventually, they are undetectable.

- Spacing Instead of Massing

There is a better alternative to massing: spread the total amount of study time on one topic across two study sessions separated by an interval. This is called “spacing,” and the improvement it makes on test results is considerable. “Final test performance,” say Pashler and Roher, ” depends heavily on the duration of the spacing gap, with too-brief gaps causing poorer performance than excessively long gaps.”

In two separate experiments, the professors fixed the amount of time they allowed their student-subjects to study. However, they varied what they called the “Inter-[study]-session Interval” (the “ISI”), the amount of time between study sessions. Then they measured how much of what they studied the students retained, and for how long.

In their first experiment, ISI’s varied between 5 minutes and 14 days. A one-day ISI produced the greatest improvement in test scores. In their second, where the students were asked to remember the names of a number of very obscure objects, they varied the ISI from 5 minutes to 6 months! Longer intervals produced even better results in the amount and duration of retention. The optimum ISI was 1 month!

Pashler and Roher concluded that “…[P]owerful spacing effects occur over all practically meaningful time periods. … [F]inal test performance depends heavily on the spacing gaps, with too brief gaps causing poorer performance than excessively long gaps.”

- The Take-Away

- Limit and optimize the time that you study a discrete topic. It’s time to quit when you have attained a reasonable (even if temporary) mastery of that limited topic.

- Study a separate topic (or topics) before you return to where you started. Or, better yet, take a break! With time and practice you should be able to approximate your own ISI.

Use of these study techniques may be the key, both to a successful bar exam result AND to keeping your pants on.

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Contract Defenses

by Dina Allam

Jun

Sean Silverman is an attorney and teacher who has prepared numerous students for the MBE, both in person in New York, as well as over Skype for those located outside of New York. For an indication as to his teaching style, visit his website at http://www.mbetutorial.blogspot.com. And while there, feel free to submit a question. If interested in receiving tutoring, feel free to contact him at ssilver0210@hotmail.com.

The defenses of impossibility, impracticability, and frustration of purpose are sometimes confusing in that they seem rather similar, and can be difficult to differentiate. The following explains some key differences between these defenses to enforcement of a contract.

Before getting into the differences, let’s discuss one important similarity among these ideas. Your analysis as to these issues should only begin once you’ve determined that a party to the contract is under an immediate duty to perform. If a party is under an immediate duty to perform, the duty to perform might be discharged by impossibility, impracticability, or frustration of purpose. To claim impossibility, impracticability, or frustration of purchase, you must first ensure that the non-occurrence of the event that caused the impossibility, impracticability, or frustration of purpose was a basic assumption of the parties in making the contract, and that neither party has expressly or impliedly assumed the risk of the event occurring.

In regards to impossibility, contractual duties will be discharged if it has become impossible to perform them. Note that the impossibility must be objective (it’s not enough that the duties could not be performed by a given individual, it has to be true that the duties could not be performed by anyone). The impossibility must arise after the contract has been entered into. If, in fact, the impossibility existed prior to the contract being entered into, then you would have a formation problem (most likely mutual or unilateral mistake), and you would analyze in that respect. If you do use impossibility within your analysis of a contracts question, note that if a contract is discharged because of impossibility, each party is excused from duties arising under the contract that are yet to be performed. There is, however, a problem if a party has already performed some duties prior to the impossibility. To resolve this problem, each party may sue for rescission and receive restitution.

With impracticability, it has not become impossible for a party to perform his/her duties under a contract, but instead the party to perform has encountered extreme and unreasonable difficulty and/or expenses. You would analyze impracticability in the same manner as impossibility, allowing those who have already partially performed to rescind the contract and receive restitution. Note that impracticability often comes up in UCC Sales questions when contingencies such as war, strike, embargo, or other unforeseen circumstances can excuse the seller’s duty to perform. But also note that mere increases in cost are rarely sufficient to discharge a seller’s duty to perform; this was a risk that the seller assumed.

Frustration of purpose exists if the purpose of the contract has become valueless due to some event not the fault of the party seeking discharge. Note the difference between frustration of purpose, and impossibility/impracticability. With the latter two, performance of the duties to the contract could not be performed (perhaps because the subject matter of the contract had been completely destroyed, or one of the parties had died), but here, although the contract could still be performed, contractual duties will be discharged if the purpose of the contract has been frustrated. You’ll have to ensure that an act after formation of the contract has destroyed the purpose of the contract, neither parties could have reasonably foreseen the event that destroyed the purpose, and that the purpose of the contract was realized by both parties at the time of making the contract.

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June 2011

The Almost Daily Word of Wisdom – How Knowing the History of Columbia Can Help You Ace the Performance Test

Failing the California Bar Examination – What to Do if You’re Are You At Risk? Part Four – Keep Your Pants on and Study Smarter!

Contract Defenses

Failing the California Bar Examination – Are You At Risk? Part Three – Know Thyself

Failing the California Bar Examination – Are You At Risk? Part Two – Four Questions That Only You Can Answer

The Rule Against Perpetuities

The Value of Rewriting

Failing the California Bar Examination – Are You At Risk? Part One – Consider These Statistics

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