Bar Exam Brief » Bar Exam

Homicide on the MBE

Dina Allam — Fri, 08 Jul 2011 16:33:47 +0000

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 first thing you’ll want to do when analyzing either an essay question, or an MBE question dealing with homicide is to realize that there are 3 types of homicide. Understanding the “big picture” concepts is essential before attempting to learn the details of each of those concepts.

The three types of homicide are (1): Murder; (2): Voluntary Manslaughter; and (3): Involuntary Manslaughter. Let’s examine each.

Murder is the unlawful killing of a human being with malice aforethought. When analyzing murder, you should immediately break the crime down into four distinct categories: A: Intent to kill; B: Intent to inflict great bodily injury; C: Reckless indifference to an unjustifiable high risk to human life; and D: Intent to commit a felony. All four of these categories have one thing in common: they all satisfy the malice aforethought requirement essential for a finding of murder.

The first two are pretty straightforward, if you intend to kill someone, and you succeed, you can be guilty of murder. In addition, if you intend to inflict serious bodily harm on someone, and the person dies in the process, you can be guilty of murder. The third is a situation in which even though you might not have had the intent to kill, or the intent to seriously injure, your actions were extremely reckless, and that recklessness posed such a high risk to human life, that it, too, satisfies the requirement of malice aforethought.

Lastly, we have felony murder. You’ll want to look for a situation in which a death occurs during the commission of an inherently dangerous felony (ie,, burglary, rape, robbery kidnapping, etc.). Although the traditional concept of malice is not satisfied (the killing might not have risen to the level or either recklessness or intent to kill/injure); malice is implied from the intent to commit the underlying felony.

Next, let’s discuss voluntary manslaughter. All that is stated above in regards to the requirements for murder apply to voluntary manslaughter, with one additional element: adequate provocation. In other words, voluntary manslaughter is murder + adequate provocation. In analyzing adequate provocation, certain elements require a subjective mindset, and others, an objective mindset. Provocation is adequate only if an intense passion is aroused in the mind of an ordinary person (objective); the defendant was in fact provoked (subjective); there was not sufficient time for an ordinary person to calm down from the provocation (objective), and defendant did not, in fact, calm down (subjective). If all 4 of these elements are satisfied, a charge of murder might be reduced to voluntary manslaughter.

Lastly, let’s look at involuntary manslaughter. Involuntary manslaughter occurs when a killing results from criminal negligence on the part of defendant. Criminal negligence need not rise to the level of fault as discussed in our discussion of murder requiring recklessness. This is a fine distinction, but one that you should note carefully. Reckless indifference to the lives of others can result in murder, while criminal negligence can result in involuntary manslaughter.

Bar Graders and “the Blink Moment:” Create the Best First Impression of Your Answer (Part 2 – Topic Headings)

Dina Allam — Thu, 07 Jul 2011 18:52:37 +0000

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.

“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] 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.

[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…”

Bar Exam Graders and “the Blink Moment:” Create the Best First Impression of Your Essay Answer (Part 1)

Dina Allam — Wed, 06 Jul 2011 18:44:58 +0000

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

Say you’re an experienced California Bar Examination grader, as I was. You’ve graded essay answers for ten examinations – at least 7,000 books. You’re grading Essay #5 on the February 2009 examination. You’re calibrated to the 11 or so other graders on your team – meaning that you consistently stick to the grading standards the team reached following a day and half of deliberations. You read every word of every answer, often twice, before you assign it a grade. You take your job seriously.

Do you honestly think you can ignore your first impression of each answer, or even of pieces of the answer, when you’re grading?

I graded bar examination answers – essays and performance tests – for ten years before I went on to membership on the Committee of Bar Examiners and then to becoming the State Bar Examinations Director. To each answer I graded, I almost always had an immediate and instinctive first impression, a “Blink Moment.” Malcolm Gladwell describes this phenomenon as “…[R]apid cognition … the kind of thinking that happens in the blink of an eye. When you meet someone for the first time, or walk into a house you are thinking about buying, or read the first two sentences of a book, your mind jumps to a series of conclusions.”

I didn’t assign a grade based on that impression – I always read every word before I decided. But I couldn’t ignore my instinct either – it was my introduction to that answer – a handshake with that applicant.

If what I’ve described makes sense to you, how are you going to write an answer that makes your grader’s instinctive reaction a good one?

Further installments on this topic will give you some tips – some easy, some more difficult on exploiting your grader’s “Blink Moment.”

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

Dina Allam — Thu, 30 Jun 2011 21:25:05 +0000

“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.

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

Dina Allam — Wed, 29 Jun 2011 19:16:57 +0000

“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.

Contract Defenses

Dina Allam — Tue, 14 Jun 2011 20:26:21 +0000

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.

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

Dina Allam — Mon, 13 Jun 2011 17:23:57 +0000

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

In Parts One and Two of this installment of the Almost Daily Word, you got the straight skinny on the subtle and not-so-subtle signs that you could fail the California Bar Exam. Still reading? Good for you. You can’t change the past. But you can make yourself stronger, smarter, more strategic and better prepared for what’s ahead. We’re onto the How of it and have already discussed learning styles. Here are some “know thyself” questions you may not have considered.

- What kind of personality do I have? I’m not talking just about whether you’re outgoing or shy. Your personality is the complex of the behavioral, temperamental, emotional and mental attributes that make you the unique person that you are.

The Myers-Briggs Type Indicator is an assessment of how you perceive the world and make decisions. Despite differences in opinion concerning its validity among experts, it may be the world’s most widely used personality assessment. You can fill out a questionnaire on line that will help you understand which of 16 personality types you are and what that can mean to your Bar Exam preparation.

- What is my emotional style? “Flow” is the positive psychology first proposed by Professor Mihaly Csikszentmihalyi. In a nutshell, it is a feeling of confident and single-minded immersion in a task. When you have it you feel energized, joyful and “dialed in” to what you are doing. You can achieve it for all or part of the Bar Exam, but to do so you’ll need to harness not only your intellect but your emotions. So, what is your emotional style? Do you operate best when you are calm or when you are stimulated? Do you prepare best when you are reassured (say, by the presence of a teacher or mentor) or when you are a little nervous? How can you adjust your preparation to your emotional style bring out your flow at crunch time.

- Could I have an undiagnosed learning, or other, disability? Several times, on a hunch, I’ve asked my students who took the bar exam without accommodation whether they thought they might be learning-disabled. All of them admitted that they had. Some eventually documented, applied for and received accommodation, with good results. How to deal with a learning disability is a highly personal choice. Please remember though: If you have a disability, appropriate accommodation on the Bar Examination is a right that the law guaranties to you.

Not feeling any better after reading all this? Don’t abandon hope. More strategies are on their way in this installment of The Almost Daily Word.

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

Dina Allam — Fri, 10 Jun 2011 16:38:12 +0000

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

Part One of this installment of The Almost Daily Word of Wisdom considered whether exam-related statistics put you at risk of failing the California Bar Examination.

Those whom the statistics favor may deserve a small sigh of relief. But don’t make your swearing in ceremony plans quite yet. There’s still this “gut check” to make: four questions that only you can answer.

1- How were your written exam grades in law school?

Law school and – yes – even bar exam essay questions vary widely in difficulty. The statistics geeks among you won’t be surprised to know that every American bar examination’s statistical reliability derives from the MBE. Nonetheless, most California Bar essay questions are originally written by out-of-state law professors for their own students. You may have reason for concern come bar exam time if your law school essay grades fluctuated, were consistently mediocre or got worse regardless of your non-essay based grades. And guess what: You need to be able to write a performance test too!

2- How many clinical courses did you take in law school that required extensive writing?

This is just me, a lawyer for 36 years who writes every day, as well as a bar grader and exam director for 20 years. But I see a direct correlation between good performance test writing and good legal writing. The Performance Test’s vaunted “persuasive memo” and a”real world” points and authorities in support of a motion in for summary judgment have much more in common than you may think. If you haven’t written some real world “P’s and A’s” as a law student, you could be going into the exam at a disadvantage.

3- What percentage of the case law that was covered in law school did you actually brief?

As they are expressed in bar exam answer, legal knowledge and legal reasoning are discrete but interdependent variables. Over the course of grading 20 general bar exams, I saw answers all the time that displayed impressive rote legal knowledge but insufficient reasoning to “connect the dots.” With insufficient analytical ability when you write an answer all you’re doing is playing the notes – you need to reason like a lawyer to play a song. So if all you’ve been doing for the past three or four years is memorizing rules and holdings without the curiosity about how they relate that helps you brief a judicial case, you could lack a crucial skill.

4- (For repeaters only) – How’d you do on the MBE?

I work with many repeat takers, some for more than one administration of the exam. The ones I’d put my money on to pass on the next go-round have already achieved MBE scores at or above the “cut line.” This shouldn’t come as a surprise. The MBE is the most statistically reliable of the three measures of legal knowledge and ability (essays and performance tests being the other two) on most bar exams. The higher your MBE scores on your last exam were, the more likely it is that all you’ll need to pass is a writing tune-up. But if those MBE scores are low, improving your writing will only get you half-way there.

There’s Hope

Seeing yourself in any of these at-risk categories can’t be comfortable. There is hope however. Remember that you got yourself into and through college, and then into and through law school. Not easy, especially if you were working a job or raising a family along the way. You’ve got skills!

Moreover, there are things you can do to reduce your risk of failing and ease your mind. The Almost Daily Word of Wisdom will have some suggestions in Part 3.

The Rule Against Perpetuities

Dina Allam — Fri, 03 Jun 2011 18:46:24 +0000

The following is my advice regarding how to systematically approach a question on the MBE that requires you to apply the rule against perpetuities.

The first thing you’ll want to do is memorize the rule: No interest is valid unless it must vest within 21 years of some life in being at the creation of the interest. What this means is that certain future interests are void if there is any possibility that the interest may vest more than 21 years after the death of a relevant life. If a future interest violates the rule, generally the life estate that was created at the same time remains valid but the future interest is voided. The interest that would have passed to the future interest holder instead is usually received as a future interest of the grantor in the form of a reversion (reversions are not subject to the rule against perpetuities).

On the MBE, your mindset should be as follows:

Determine the type of future interest that is being created. This is essential because the rule against perpetuities only applies to some interests. The rule applies to contingent remainders, executory interests, and certain vested remainders subject to open. Along with reversions, the rule does not apply to vested remainders other than those subject to open.

Once you’ve determined that you’re dealing with an interest that is subject to the rule, find the measuring lives. The measuring lives are those who are alive at the time of conveyance whose life or death is relevant to the conditions occurring.

Finally, see if there is any possibility that the conditions will only be satisfied more than 21 years after the death of all the measuring lives. Remember, all that is necessary is a possibility.

As an example, assume a grant to A for life, then to the first child of A to reach 25 years old. Assume that at the time of the grant, A has a child who is 23 years old. A has a life estate, and the first child of A to reach 25 has a vested remainder. Vested remainders are subject to the rule, so you’ll need to consider it. Is it possible that the first child of A to reach 25 might reach that age more than 21 years after the measuring lives?

The measuring lives here are A, and A’s 23 year old child. What if the day after this grant, A’s child dies. A has another child, and then A dies the day after that child is born. That child (let’s call him B) will reach the age of 25 more than 21 years after any of the measuring lives (because B will reach age 25 more than 21 years of after the death of A, and A’s child). Because it’s possible for this to occur, the grant to A’s child is voided by the rule against perpetuities, and instead A is given a life estate, and the grantor is given a future interest in the form of a reversion.

If you have any follow-up questions, as always, feel free to ask them in the comments.

The Value of Rewriting

Dina Allam — Thu, 02 Jun 2011 17:41:56 +0000

There is no great writing – only great rewriting. Justice Louis Brandeis

My mother taught me to write, beginning when I was in middle school. Actually, she taught me to rewrite, and she never let up. I’d show her a draft, written out in longhand on lined paper. She’d mark it up and we’d talk. Were my topic sentences conveying enough information? Could I write them shorter and punchier? This draft-to-edit-to-discussion cycle repeated itself until we had something that was, as she’d say, “classy.”

It was a tedious way to learn, but I owe her for it – big time. In a way, it gave me my living.

If your essay and performance test grades have not been up to snuff, I recommend it for you. When you write practice essay and performance test answers, edit them yourself or with a friend. Question what you wrote. Are the statements of law clear and complete, leaving nothing to guess about? Have you dedicated enough time to lawyerly analysis of the facts in light of the law? Then rewrite an entirely new answer. Repeat this cycle until your answer is “classy.”