Ronan is the leader of a religious cult in Gotham City. He holds a weekly “service” in the public park and, during his sermon, uses insulting expletives directed at persons in his audience who are not members of the cult. The audience has become boisterous and several times fights have almost broken out between members of the audience and members of the cult. After a particularly boisterous rally, the attorney for the city of Gotham obtained an ex parte injunction prohibiting Ronan from conducting any further rallies “which tend to disturb or annoy the average member of the community.” If challenged on appeal, a judge would find the injunction:

A. Valid, because the threats of imminent violence justify the injunction.

B. Invalid, because the injunction is overly broad and vague.

C. Invalid, because the injunction was obtained in a manner which violates procedural due process.

D. Invalid for the reasons set forth in B & C.

A painter, who has been in the painting and contracting business for ten years, contracts to paint a farmer’s barn. The farmer’s barn is a standard red barn with a loft. The contract contains the following clause:

“It is agreed that the work will be completed to the full and complete satisfaction of the farmer.”

Which of the following statements is correct?

A. The farmer can avoid having to pay simply by declaring that he is dissatisfied with the work.

B. The farmer will have to pay if a reasonable person would be satisfied with the work.

C. Even if a reasonable person would be satisfied with the work, the farmer will not have to pay if he is genuinely dissatisfied with the work.

D. The clause has no effect on the liability of the farmer, because it fails to set any enforceable standard of what constitutes satisfaction.

A patron sued a deli for breach of warranty of fitness and for negligence, alleging that he was poisoned by the food he ate at the deli, causing him to be hospitalized for a period of one week and to have his stomach pumped.

As part of its defense, the deli’s counsel called the manager of the deli. The manager was asked how many bean dinners he served on the day the patron took ill. He answered, “200.” He was then asked how many complaints he received. Upon objection by the patron’s counsel, the question was excluded. After a verdict for the patron, the deli appealed, alleging error in the exclusion of the question by the trial judge.

The appellate court should:

A.  Uphold the trial judge, because the question called for the hearsay opinion of the 200 diners that the beans were wholesome as shown by their failure to complain to the manager.

B.  Uphold the trial judge, because of the deli’s failure to make an offer of proof.

C.  Reverse the trial judge, because the offered testimony is not hearsay.

D.  Uphold the trial judge, because the exclusion of the evidence, even though wrong, constituted harmless error.

With our MBE Question of the Day starting up again tomorrow, I wanted to share an article I wrote about the importance of using updated questions…

The Multistate Bar Examination (MBE) is notoriously one of the most feared aspects of the bar exam.  It certainly was for me.  It was the only time in my life 6 hours didn’t seem like enough time to finish an exam.  Every second counts on the MBE, and two minutes can make the difference between passing and failing.  I drank a Red Bull during lunch break to help me stay focused.  It had its payoffs (I believe drinking Red Bull helped me pass the bar) and its consequences – I had to rush to the restroom after lunch because I didn’t want to “waste too much time.”  Because there is so much pressure on the MBE, a better name might be the mental endurance test.  No matter what you call it, it’s important that you fully understand the MBE before you take it.  Over the next few months, you’ll have the pleasure of getting to know the MBE as well as I did or maybe even better.

The MBE is the 200-question, 6-hour, multiple-choice portion of the bar exam administered on the last Wednesday in July and February.  Since the MBE tests content that is important to beginning the practice of law, the NCBE (National Conference of Bar Examiners) drafters evaluate questions on their relevance and credibility to beginning practitioners.  In recent years, the MBE has undergone many changes to become more consistent in style and format, resulting in more concise questions.  MicroMash Bar Review wants students to be aware of the several changes to the format of MBE questions that the NCBE announced and put into effect starting with the July 2009 bar exam:

1. There will be no “none of the above” or “all of the above” answer choices.
2. There will be no hypothetical fact-based answer choices (options that include “if” or “unless” statements which change the fact pattern).
3. Common nouns will be used in lieu of proper nouns when practical (e.g., “a painter,” not “Pat” or “Painter”).
4. There will be no “K-type” questions (Roman numerals in complex answer choices, e.g., I is true, but II and III are not true).
5. One question will relate to a single fact pattern, instead of a series of questions that relate to one fact pattern.

In addition, the language in the answer choices will be parallel.  That is, the test taker will have options comparing similar elements, such as four different causes of action or four defense theories, etc., rather than comparing an answer choice that has a cause of action to one that has a defense theory.

Here is an example of a “K-type” question you will no longer see on the MBE (or at MicroMash)!

What does this all mean?  In the end it really means only one thing: you should no longer be using MBE practice questions in the old format.  One of most oft-repeated pieces of advice regarding bar exam prep (and MBE prep in particular) is to practice as many MBE questions as you can, making sure to do those questions in as close to realistic test conditions as possible.  That means answering practice questions in a timed environment whenever possible.  It means finding questions that, on par, are about as difficult or as tricky as those you’ll see on the MBE.  Most importantly, it means answering only MBE questions that reflect the new question format!  Studying and practicing for the MBE with updated question formats will prepare you for the actual MBE and simulate what you’ll see on exam day.  It will also help you accurately score yourself and keep track of how much time you need to plow through the examination.

There are plenty of options available to assist you with bar prep (and MBE prep in particular).  Do yourself a favor and verify with your bar review company that their MBE practice questions are up-to-date with the current MBE question format standards.  The last thing you want is to show up on July 28^th and see questions that don’t look familiar!

MicroMash is one of the bar review companies that has updated its questions to the current MBE format.  We excluded “K-type” questions, our fact patterns no longer have multiple questions, and our answer choices have been updated so that there are no “none of the above” or “all of the above” choices in the options.

Continue visiting our blog for up-to-date “MBE Questions of the Day” starting tomorrow to help you study for the bar exam and stay tuned for more bar exam tips and tricks!

For more information on the recent changes to the MBE, please read “Recent Changes in NCBE’s Multiple-Choice Examination Programs” by Beth E. Donahue of the NCBE.

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 at www.ferberbarreview.com

“Truly successful decision making relies on a balance between deliberate and instinctive thinking.”  Malcolm Gladwell: Blink: The Power of Thinking Without Thinking

In Part 1, I postulated that the California bar examination grader who reads your answer can’t avoid a “Blink moment;” an immediate and instinctive reaction that may influence the balance of his or her grading.

You can take advantage of this tendency with topic headings that reflect the call of the question, whenever possible.  Try this exercise and see if you don’t agree.

Pretend you’re grading Essay Question 5  from the February 2009 bar exam. The call of this contracts question is:

What arguments can Developer make, and what is the likely outcome, on each of the following points?

1. Developer did not breach the contract with Builder.

2. Developer’s performance was excused.

3. In any event, Builder did not suffer $700,000 in damages.

Now pretend that you have two answers in front of you. Each answer has received a consensus grade at grader calibration sessions – one passed, the other did not.  You have 60 seconds to decide which is which. (Don’t worry…it’s never really done this way, but bear with me.)

Answer 1’s topic headings read:

-           Issue: Contract Formation

-           Issue:  Parole Evidence

-           Issue:  Mistake/Ambiguity

-           Issue:  Mitigation

Answer 2’s topic headings read:

-           Developer did not breach the contract with Builder

-           Developer’s performance was excused

-           Builder did not suffer $700,000 in damages

Which answer did you chose?

If you chose Answer 2, I’m with you.  Based on my 60-second scan, I already know two things about Answer 2 that I don’t know about Answer 1:  That it will attempt to answer the precise questions put to it in the call; and that so far at least, it’s likely to be “logical,”  “lawyer-like,”[1][1]  and better organized.  Answer 1 has shown me a recognition of the question’s subject matter – nothing else.

Finally – pretend that you are instructed to read and grade both answers. Which do you think is more likely to receive a clearly passing or superior grade?

This is where the “deliberate” part of Mr. Gladwell’s formula for good decision-making comes into play in grading.  California Bar graders read essays and performance tests carefully and base their final grading decisions on the whole answer.  It’s very possible that its author will get Answer 1 organized and fully answered. It’s as possible that Applicant 2 will fail to do much more than “channel” the questions topic headings. However, based on the topic headings alone, which answer would you “put your money on?”

By the way, have you noticed that applicants can get a head start on organizing their essay answer to promise graders good things, without actually having to know the law or even anything about the question?  If you have, then good for you.  A piece of your grader’s “Blink moment” now belongs to you.
[2][1] If these terms don’t ring a bell, I suggest you review the Instructions to Applicants that accompany each set of Essay questions.  They let you know that the Committee of Bar Examiners expects that “Your answer should evidence your ability to reason in a logical, lawyer-like manner…”

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 tutoring and coaching to applicants for both exams at www.ferberbarreview.com

Everyone has his own specific vocation or mission in life; everyone must carry out a concrete assignment that demands fulfillment. Therein he cannot be replaced, nor can his life be repeated, thus, everyone’s task is unique as his specific opportunity.”

Viktor Frankl

We can stipulate that studying for the California Bar Examination is an ordeal, not to mention taking it.  Can we please move on from there?

Everyone has an opinion concerning the best way to pass the exam.  Only one opinion really counts though – yours!

So let me ask you.  Do you have a plan – your plan and not just an imitation of someone else’s?  What kind of internal training are you going to do for those three days?  How are you going to find the strength to get you through?

My mentor right out of law school was the well-respected appellate judge whom I clerked for.  We were close, I thought, and so one day I screwed up my courage and asked him if he had any regrets about his life in the law.  His answer surprised me, and it stayed with me.  He wished, he said, that he’d been braver from the very first day of law school; that he had trusted himself more.

There’s a clue there.  While you battle through your studies and those three days this July, picture the you of the future.  What attributes of character are you going to bring to your profession? What attributes of character are you going to bring to your preparation for this examination?  The answers to those questions are every bit as important as any rule of law.

Copyright 2010 Adam Ferber and www.ferberbarreview.com.  Reprinted by permission.

Hear what MicroMash customers are saying about us! Or join in the discussion yourself.

One of the things that really keeps our fires burning here at MicroMash is hearing from our customers.  Your stories of bar exam success inspire us to create the best possible bar review products and services we can.  Not only do your stories fire us up, but they also inform the next generation of bar takers about what it was like to study using MicroMash!

Share your MicroMash Story

You may have noticed that we are not real big on pushing our products in law schools. In fact, you probably never even heard of MicroMash while you were diligently outlining your Torts class, or boning up on Civil Procedure. The reality is that we have made a conscious choice to avoid marketing our products aggressively in the schools. We prefer a lower profile approach, one that allows us to keep our costs low, which translates into savings for you.

We sincerely believe the best way for people to hear about MicroMash is through people that have already used our course. The very best products and services generate strong word of mouth and we are honored that well over 50% of our customers tell us that they heard about us from one of their friends.

It is with these things in mind that we invite you to share your MicroMash story with others. Tell us your story in the comments section below – pay it forward by sharing your thoughts and feelings about our products, our services, our company. What made you choose MicroMash? How did we compare with other services you may have used in the past? Did you find our review easy to use? Did we save you time? What about your interactions with us? Were we easy to do business with? How could we improve? What didn’t you like about us? Please share anything you would like a friend or colleague to know about us.

Win a T-Shirt!

We realize that asking you to share your experience with others is asking a lot. It takes time to think through what you liked about us, or how we could improve, and we sincerely appreciate you taking the time to do so. There is no way to fully thank you for taking the time to share your story with our readers; however, as a small token of our appreciation, we will conduct a random drawing each Friday between now and the week of the July 2010 Bar Exam. One lucky winner each week will receive a MicroMash Bar Review T-Shirt. You can see the snappy design above. We have these available in Men’s and Women’s American Apparel variety.

We appreciate your feedback.

Sincerely,

The Staff of MicroMash Bar Review

As we previously reported, Wisconsin’s diploma privilege is currently under attack in the federal courts. The diploma privilege, which allows graduates of Wisconsin’s two law schools to practice in the state without passing the bar exam, is alleged to be in violation of the Interstate Commerce Clause because graduates of Wisconsin schools are treated differently from graduates of schools in other states. The petitioners ask for summary judgment declaring that the privilege violates the clause; the obvious remedy would be to discontinue the privilege for all students.

Now, the privilege is under attack from another source: instead of requesting that it be abolished, Steven Levine, a past State Bar of Wisconsin president, filed a petition with the Wisconsin Supreme Court asking that that the privilege be extended to graduates of all law schools.

In 2007, the ABA reported that Levine has long been a critic of the diploma privilege, and has gone so far as to compare it to the “separate but equal” doctrine. This seems like a difficult argument to make; certainly in-state versus out-of-state law students would receive a lower level of scrutiny than did black versus white school children. Opponents would be hard-pressed to argue that the diploma privilege bears no rational relationship to ensuring the competency of Wisconsin lawyers—an argument based on the Commerce Clause may fare better. But, more importantly, it seems that Levine—as a former president of the state bar—would have reasons other than fairness for opposing the diploma privilege. If he feels that Wisconsin school graduates are less competent for lack of the bar exam, then why would he want to see the diploma privilege extended to all graduates? Conversely, if he feels that out-of-state students are less competent because of taking the bar exam, then we have a different problem altogether.

While it’s true that extending the privilege to all students would level the proverbial playing field, it’s hard to imagine that it would be the best option for the Wisconsin Bar. So is Levine’s argument valid, or is he simply stirring the pot?

Students graduating from Wisconsin law schools (i.e., University of Wisconsin and Marquette) are automatically licensed to practice law in that state—without passing the bar exam. This is known as the “diploma privilege” and Wisconsin is now the only jurisdiction honoring such a rule.

In his lawsuit against the Wisconsin Supreme Court and the Wisconsin Board of Bar Examiners, an Oklahoma City University School of Law student argues that the Wisconsin diploma rule violates the Commerce Clause because it creates an arbitrary distinction between two classes—graduates of Wisconsin law schools and all other law school graduates. This distinction is claimed to burden interstate commerce because graduates of non-Wisconsin schools must fulfill additional requirements to practice law in the state. Whether the diploma privilege violates the Commerce Clause apparently rides on the concentration of Wisconsin-specific law contained in the Wisconsin schools’ curriculum; if the schools are teaching Wisconsin law, then there is a valid basis to distinguish between the two groups, and the diploma privilege does not violate the Commerce Clause. The Seventh Circuit Court of Appeals sent the case back to the district court, which previously dismissed it, to decide this issue.

Aside from the amount of Wisconsin law a student learns, there are several arguments for and against the diploma privilege. On the pro side:

• The Wisconsin Supreme Court has oversight of the schools’ quality and curriculum, so presumably Wisconsin law could be taught even if it’s not being taught now
• The Wisconsin schools are free to accept those who would be likely to pass the bar (it is worth noting that both UW and Marquette are top 100 law schools)

On the con side:

• The Wisconsin Bar Exam includes both uniform and multistate topics (including the Multistate Bar Exam), which is taught at all law schools
• Wisconsin law school grads have an advantage in the job market as they do not have to wait for bar exam results

It is also arguable that, because UW and Marquette have 100% pass rates for graduates “taking” the Wisconsin bar exam, the schools’ rankings may be artificially inflated. (Of course, legitimacy of rankings is a perennial source of contention in and of itself.) However, the gravity of these numbers on the rankings is minimal—a school’s bar passage is weighted at a factor of .02.

Although I’m in no position to opine on the legitimacy of a diploma privilege, I will share this: I attended law school in Michigan, and aside from a trusts class taught by an adjunct professor, I don’t recall learning much Michigan law. I was, however, surrounded by Michigan law; I worked in a legal aid clinic in Michigan, I edited articles written by Michigan lawyers on Michigan-related topics, I was a student member of the State Bar of Michigan, and so on… Then I moved to Illinois and everything was different.

What are your thoughts on the diploma privilege? Is it a valid institution that should be continued, or even extended to other states? Or is it a historical relic that should be relegated to the dustbin of history? Tell us your thoughts in the comments…..