The Fear Factor: Fifteen Reasons Why Applicants Fail The Bar Exam.
Many examinees become sidetracked because they read a few words into the fact pattern and assess, too quickly, the subject matter of the question the examiners' are intending to test. You have to learn how to look before you leap when tackling a bar exam question. It is also important that you know which subjects are tested together on the bar exam.
1. Criminal Law / Criminal Procedure / Evidence.
Look for the laundry list of crimes (including property crimes, crimes of passion, and strict liability crimes). Look for the two friends that commit crimes. Always know that both will not be charged with the same crime. One will be charged with burglary, the other larceny. However, the two will likely be charged with conspiracy.
Look for the situation where there are three people, too. Two will be charged with one of the same crimes, but only one will be convicted. The other person will be the conspiracy person. That is the person that decided at the last minute to abandon the crime. But make sure that he or she actually withdraws if your jurisdiction permits it. Don't forget about attempt, solicitation, entrapment and accessory before and after the fact. Watch merger of crimes, too.
Read words carefully, please. Look for words that modify other words. What do they mean?
2. Torts / Evidence.
Evidence will come up in both civil and criminal essays. We have a tendency to forget that evidence can rear its ugly head in civil matters, too.
Remember there are privileges that come up in civil cases. Remember character evidence. Though not often tested on the essay portion of the bar, don't forget habit. Don't forget hearsay in a torts/evidence question. The question usually comes in the form of some type of incident and witnesses say or do something in response to the incident
Examiners' do a good job of making certain that you have adequate information regarding the evidence portion of the exam. They will say something like admissible or inadmissible, but believe it or not, so many folk get caught up in the evidence issue that they forget the false imprisonment cause of action, that goes hand in hand with the negligence issue. Keep your eyes open for it.
3. Torts Alone.
If the question centers on torts alone, you will likely have a huge negligence action with a strict liability concern, or negligence with defamation, or negligence with an intentional tort, or two or three.
Do not forget that the tension in the rule for negligence lies in duty and proximate cause. About 5 million people have a different type of duty, and beyond that is proximate cause (which measures foreseeability). The concern you have is the superceding intervention (that new thing in the tort that happens which causes another injury in which the first defendant claims he or she is not responsible for and may not actually be liable to plaintiff. Don't forget if someone rescues the plaintiff and injures the plaintiff further, then you must start a second negligence analysis - - all over again - based on the responsibilities of rescuer.
4. Torts / Property.
Will usually fall under a landlord/tenant scenario where landlord is responsible for something to the tenant, and tenant's child, dog, friend, or boyfriend is hurt in the apartment or in the common area. Remember landlord's liability to third parties and the circumstances.
There are a number of scenarios that can make your mouth water in a torts/property question.
5. Contracts
I love common law contracts because it cuts right to the chase. All of that battle of the forms stuff is pretty much left in law school. On the examination, the question is whether the contract was formed, was their a defense to formation, and what, if any, damages are available to the plaintiff. If it is not a formation question, then their are conditions (individual or concurrent) to concern you. If not concurrent conditions, you better believe there will be a portion of the question concerning an excuse (frustration of purpose, impossibility), etc.
Don't forget damages and the calculation of the same. Remember the Hadley v. Baxendale rule - - > which says, plaintiff cannot receive more than she would have received if the contract had been performed. Thus, we won't give you more than what you are owed under the contract. That is it.
It is a lot of back and forth in a contracts question. Just deal with one person at a time. Compartmentalize. Don't try to look at Jack, Jill, Humpty Dumpty, and Little Red Riding Hood all at the same time. You will be unnecessarily overwhelmed. Look at all the things that Jack did first, then Jill's, etc.
6. Contracts / Sales
A dual contract/sales question means that one part of the question pertains to the sale of goods, and the other part of the question is based on a service of some sort (common law contracts). Mention that, and move on with the analysis. I see some folk stop to write a thesis on the common law versus sales. It is not necessary. Identify which problem facts support the sales portion of the question and which facts support the services section. Move on.
It's hard for people to remember when or if someone gave you adequate assurances that the contract will be performed. Look for failure to provide I promise language or somebody gave the other person assurances that they would fulfill the contract.
Other Popular Subject Combinations.
7. Corporations/Partnerships/Agency Theory
8. Family Law/Federal Jurisdiction
9. Family Law/Conflicts
10. Federal Jurisidiction/Conflicts
11. Constitutional Law (alone)
12. U.S. Con. Law/State Constitution
13. Secured Transactions
14. Secured Transactions/Commercial Paper
15. Commercial Paper/Sales
16. Commercial Paper/Contracts
17. Contracts/Property (I've never seen this combination).
18. Property/Torts (It happens, but it is rare).
19. Taxation/Family Law
20. Taxation/Corporation/P'ship./Agency)
21. Contracts/Leases/Sales
22. Wills, Trusts, Estates
23. Wills, Trusts, Estates/Federal Jurisdiction
24. Wills, Trusts, Estates/Conflicts
25. Wills, Trusts, Estates/Family Law.
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Hello Prof Smith. I found this posting VERY insightful. I am currently preparing to take the NY bar. I took Pieper as my bar review course, which is geared for kinesthetic learners. He dictates and we jot down the rules of law. While I can appreciate his method (because it is engaging whether I liked the material or not), I felt that we didn't spend enough time discussing strategy. I am a BIG picture learner. Once I fully understand the structure of the task at hand, I can rise to the occasion and meet the challenge. I knew that certain topics complimented each other well, i.e. corporations/contracts/sales and torts or contacts/conflicts of law, but that was about it. So thank you for the list or possbile groupings of topics. I sure appreciate it, as well as the straight talk, especially on how to approach the essays. I get what you're saying. No one has broken it down so bluntly. So thanks again.
ReplyDeleteP.S. Under #2 Torts/Evidence, what you mean by "they forget the false imprisonment cause of action, that goes hand in hand with the negligence issue"? I haven't made the connection of false imprisonment and negligence. Please explain.
Thanks.
DJ