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 tutoriing and coaching to applicants for both exams. Contact Adam at www.ferberbarreview.com or, on Facebook at Ferber Bar Review – Student Resource Group.
“I took the road less traveled by, and that has made all the difference.” Robert Frost
I’m sure you like to figure out how things work. So, let me ask you this: In all your preparation for this bar examination that will mean so much, have you ever actually tried to figure out how the performance test works? And if you could, would it change your approach to writing your answer? Would you take “the road less travelled by?”
Take “the File.” It tells a story, but it tells it all out of whack. If you were the narrator, one story might go like this. After a workout at their gym, two acquaintances go out for a beer. Tom agrees to lend Byron his car to go to a job-related meeting. The meeting happens to be at a bar though, where Byron drinks more beer. On his way back to return the car he uses the car to run an errand. Then…guess what? He hits a pedestrian, and all hell breaks loose. This performance test – PTA from the February 2005 California Bar Examination – is the result. Check it out at: http://admissions.calbar.ca.gov/LinkClick.aspx?fileticket=D8Nvfy-KI%3d&tabid=2269
While you’re doing that, think about how the File works.
This File, as do all others, scrambles a smooth, chronological narrative into out-of-order pieces. Those pieces have names: In this PT, “memorandum,” “police report,” “Medical Center” admitting form.” If you attempted to answer this question, you’d read those pieces in the “out-of-order” into which the drafters arranged them. And then you’d outline them. How?
Here’s one way that you might not have thought of. Instead of (or in addition to) your present outlining technique, reassemble the scrambled pieces into the original story. What happened first, then second, and so on. Your effort doesn’t have to be extensive - just enough to get you thinking about “the story” as well as “the facts.”
With the chronology in hand you may notice:
- That if the question calls for a summary of the facts, your summary will be more comprehensible. Moreover, it will exhibit a necessary analytical skill – giving coherence to the disaggregated “factoids” you might pick up from a police report or deposition transcript as a practitioner;
- That your answer writing efforts to use the facts will likely be more effective if you remember them in the order that you’d normally expect them to take. You may recall facts more quickly; and
- That your discussion style may be less “exam-like” and more “lawyerly,” if you’ve had even the brief chance to think about the question as a situation that occurred in real time.
Does this seem counter-intuitive to the techniques that you’ve been taught? Are you concerned that it might cost you time that would be better spent elsewhere? Both reactions are to be expected. However, if it also sounds intriguing or potentially helpful, why not try it once or twice as you prepare this month. If it works for you, you’ll be walking successfully down “the road less traveled by,” on your way to a passing grade.
Copyright 2010 Adam Ferber and www.ferberbarreview.com. Reprinted by permission.
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 tutoriing and coaching to applicants for both exams. Contact Adam at www.ferberbarreview.com or on Facebook, at Ferber Bar Review – Student Resource Group.
“Another turning point, a fork stuck in the road/Time grabs you by the wrist, directs you where to go/So make the best of this test, and don’t ask why/It’s not a question, but a lesson learned in time” -Green Day
In case you didn’t get the memo, in addition to the purposes explicitly attributed to them by bar examiners, performance tests test your ability to perform legal tasks under intense time pressure.
So while you’re muscling up for those two three-hour sprints next month, consider these strategies:
1) Outline For More Than 90 Minutes
California performance test instructions suggest that you allocate at least 90 minutes to your outline. Especially if you take the examination on your laptop, consider spending at least 100 minutes outlining. That’s because this instruction predates the use of laptops by applicants. It was composed in the days when there were only “writers” and “typists,” who were constrained by their more primitive writing tools, and it has never changed. If you have reasonable typing skills and the ability to cut and paste portions of your outline into your answers, you can probably say all you need to say in your answer in a shorter time. Extra outlining time can give you a better grasp of how best to construct your answer.
2) Leave Yourself Time to Do The Hardest Things Twice
My students reach a point of diminishing returns when they take extra test time to bolster their strengths. In fact, those strengths show up nearly as well when we cut their time. For example, the good writers write nearly as articulately in fewer words. They are better able to adapt.
However, students’ weaknesses do seem to improve with more time and attention. Do you repeat yourself when you’re stressed? Edit for a few minutes longer. Do you often start writing, only to realize that you missed something that you need to add? Leave some time (and some space) to capture that last minute insight.
Taking a few minutes away from what you’re confident of and turning them over to your weaknesses is likely to get you more “bang” from that time.
3) Take a Little Time to Relax
You heard me. Try this the next time you’re in the middle of writing a practice exam. (1) Check your time. (2) Close your eyes and breathe in to a count of seven, filling your lungs with as much air as possible. (3) With your eyes still closed, hold your breath for a count of four, and then exhale for a count of eight. Do this twice. (4) Open your eyes and check your time. If you feel clearer and better focused, then practice this exercise and prepare to use it during the exam. It will be well worth the time you spend on it.
Copyright 2010 Adam Ferber and www.ferberbarreview.com. Reprinted by permission.
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
In a comment to my previous article concerning character evidence, I was asked to write about the distinction concerning buyer and seller remedies under the UCC. This is quite a bit of information, so I will divide the content into two separate articles. This article will focus on buyer’s remedies, and the next article will focus on seller’s remedies.
Let’s first discuss buyer’s right to reject non-conforming goods. When the buyer receives goods from the seller, if those goods do not conform to the specifications as set forth in the contract, buyer can, under some circumstances, reject the goods, and then either cancel the contract or sue the seller.
Let’s assume buyer has rejected non-conforming goods tendered by the seller. The seller is then given the option within the time originally provided for performance, to cure the defect by giving reasonable notice of intention to cure, and making a new tender of conforming goods. If the buyer had accepted the goods, rather than rejected, and those goods turn out to be non-conforming, the buyer is not entirely out of luck. The buyer can still revoke his acceptance if the defect in the goods substantially impair their value, and buyer accepted the goods on the reasonable belief that the defect would be cured (and it was not cured); or if the buyer accepted the goods because of the difficulty of discovering the defects or because the seller assured buyer that the goods conformed to the contract. So, remember to consider both options that buyer has in regards to non-conforming goods: rejecting the goods, or revoking the acceptance of those goods.
Another option for buyer is to replevy identified goods. All this means is that if the buyer has already tendered full payment and the seller becomes insolvent within 10 days after receiving the buyer’s first payment, or if the goods were purchased for personal, family, or household purposes, then the buyer will be able to obtain those goods from seller, provided that those goods have been identified (ie, specific and ascertained goods currently existing).
Finally, the court may order specific performance, which will again allow the buyer to obtain the goods from seller, but in such a case, it will not be a requirement that the goods be identified; it will instead suffice if the goods are unique.
Now, let’s move on to damages. Let’s assume that the buyer has properly rejected non-conforming goods, or has revoked his acceptance of non-conforming goods. The buyer will be entitled to the difference between the contract price, and the market price or cost of buying replacement goods. The purpose here is to put the buyer in the position he would have been in had the seller tendered conforming goods. Buyer is also entitled to incidental and consequential damages, less expenses saved as a result of seller’s breach.
Another possibility is that the buyer has decided to accept goods, even though those goods do not conform to the contract. In such a situation, the buyer is entitled to the difference between the value of the goods accepted, and the value they would have had if they had conformed to the contract, plus incidental and consequential damages. Buyer must remember to notify seller as to the non-conforming nature of the accepted goods, otherwise buyer will lose his ability to collect damages for the accepted goods.
As always, should you have any questions at all, or comments about any of the information in the article, feel free to leave them in the comments section of this post, so that I can address them.
