As people start to prep for the February bar exam, I'll give a piece of advice that I think, if internalized and practiced, is among the best ways to improve at the MBE. When the test writers create these questions, they have one important limitation. No wrong answer can be arguable as the correct choice. They get to skirt the line on the essays; on the MBE, not so much. That's to say, if it's reasonable to argue that a wrong answer is the best choice given, then the question is fatally flawed. These questions work their way through multiple rounds to avoid these types of flaws that would cause the question to be discarded. Because this limit exists, the test writers must place something in each wrong answer that prevents it from reasonably being argued that it's the best answer. Seek out that thing. Look at each answer with an eye towards finding the thing that was placed within the answer to make it wrong. When you find it, cross it out. Even when you're down to two (and, the most common thing I hear from prospective students is "I can get it down to 2!"), find what's wrong with one of the two. Don't set out hunting for the right answer because the only thing that makes it right is that it's better than the others. Kill off the other answers until just one of them survives.
Bar Exam (February 2026) & LSAT Tutoring! MBE tutoring is available for all students. Essay tutoring is available for students taking the UBE and the Florida Bar Exam. Florida multiple choice tutoring is available for students taking the Florida bar exam. LSAT tutoring is available for all students. Tutoring is via video (Zoom, etc.) for students in all states. Reach out to me directly @ silvermanbarprep@gmail.com for bar exam tutoring and @ silvermanlsat@gmail.com for LSAT tutoring.
Tuesday, October 28, 2025
Friday, October 24, 2025
July '25 Bar Exam Results
Bar Exam results from this past July have started to roll in. Almost all states release some data as to how the candidates in their state performed and I'll organize all that data below as it comes in.
Once scores are released, I'll post here in this post the pass percentages for each state. Listed, for comparison, will be the percentages for both July 2025 and July 2024. Also listed when available will be the number of examinees in each state who took the most recent exam.
Green = a beat in 2025 compared to 2024 🙂
Red = a beat in 2024 compared to 2025 ☹️
Blue = a tie in 2024 compared to 2025 😶
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Avenues of Discovery
The avenues of discovery that are allowable in a civil case aren't all that complex, but the topic is very nuanced and fact intensive. Each type has some specifics tested on the exam. With that, let's examine each type:
Depositions:
Questions in a deposition can be oral or written. The deponent testifies under oath, and the deposition is recorded. Unlike with some other areas of discovery, both parties and nonparties may be deposed. A party, unlike a nonparty, need not be served with a subpoena; a notice of deposition is sufficient to compel the party's appearance. A nonparty must be served with a subpoena or be compelled to attend. If a party does not adequately compel a nonparty to attend the deposition, and the nonparty fails to attend, the party may be liable for costs. You might come across a term called a subpoena duces tecum. That is simply a subpoena requiring the deponent to bring requested materials along to the deposition.
There are limits to the number of miles that a nonparty will be required to travel to a deposition. Unless agreed otherwise, a nonparty cannot be required to travel more than 100 miles from where the nonparty resides or is employed. A party cannot take more than 10 depositions or depose the same person twice without court approval or stipulation. Depositions cannot exceed one day of 7 hours unless the court orders or the parties stipulate otherwise.
Depositions serve multiple purposes. Depositions may be used at trial to impeach the deponent and they may be used for any purpose if the deponent is an adverse party. They also may be used for any purpose if the deponent (party or nonparty) is unavailable for trial unless the absence of the party or nonparty was procured by the party seeking to introduce the deposition testimony at trial.
Interrogatories:
Interrogatories are written questions answered under oath. Unlike with depositions, interrogatories are sent only to parties. The maximum number of interrogatories is 25 and they must be answered within 30 days from when they are served. A party must answer each interrogatory based upon information reasonably available, and if the answers can be found in business records, the responding party can allow the requesting party to have access to those records, provided that the burden of finding the answer would be about the same for either party.
Requests to Produce:
A request to produce is as it sounds: it asks a party (not a nonparty) to produce or make available for review and copying documents or things (including if electronically stored) or to permit the requesting party to enter a designated property to inspect, measure, etc. If electronically stored, the information must be produced in the form that the requesting party specifies. That said, the party responding to the request can object.
The party disclosing the information to the requesting party must respond to the request within 30 days of service, stating that the material will be produced or objecting to its production. Note that although only parties may be served with a request to produce, a nonparty may be served a subpoena for the same purpose.
Medical Exam (Physical/Mental):
To obtain a medical exam compelling a party (or a person in the party's custody or control) to submit to a medical exam requires a court order. The requesting party must show that the person's health is in actual controversy and that there is good cause for the request. The requesting party chooses the medical professional to conduct the exam. Once there has been a medical exam, the medical professional writes up a report and gives the report to the requesting party. The person undergoing the exam is also entitled to a copy of the report. The party requesting the report must on request produce all medical reports by that party's own doctors about the same medical conditions. Doctor-patient privilege is not an excuse for not producing such reports.
Request for Admission:
A request for admission is a written request that someone admit certain matters. The responding party must respond in writing within 30 days of service of the request either admitting, denying specifically, or objecting. The responding party may also claim that although a reasonable inquiry to obtain the matter was conducted, that party cannot find enough information from which to admit or deny. A lack of a specific denial will be deemed admitted.
Overarching Principle:
There's an overarching principle to all of the above that is important to keep in mind. If new facts come to light after responding to any discovery request and those facts render the prior disclosure incomplete or incorrect, the responding party must supplement the response to include this new information.
Wednesday, October 8, 2025
Impleader vs. Intervention vs. Interpleader
Lots of words in Civil Procedure that begin with the letter I. Let's address each of them separately since, other than that common starting letter, they are quite different.
Impleader:
You'll sometimes see impleader referred to as third party practice, and there is good reason for this. An impleader claim is one where a defending party would like to bring in to the lawsuit a third party. The defending party is called the "third-party plaintiff," and the third party is called the "third-party defendant." So, there are three parties: the original plaintiff, the defendant now called the third-party plaintiff, and the third party brought in by the third party-plaintiff, called the third-party defendant.
The purpose of an impleader claim is to shift to the third-party defendant some or all of the liability that the third-party plaintiff will owe to the original plaintiff. Some words that should always come to mind when impleader is at issue are contribution and indemnity. The nature of these claims is derivative.
An impleader claim is always permissive; there is no such thing as a compulsory impleader. To implead a third-party defendant, the third-party plaintiff must file a third-party complaint naming the third-party defendant and have the complaint formally served on the third-party defendant. This must be done within 14 days of service of the answer to the plaintiff's complaint. After that, permission by court is required.
Once the third-party defendant is served, the original plaintiff may assert claims against the third-party defendant, and the third-party defendant may assert claims against the original plaintiff, provided that these claims arise out of the same facts as the original claim. It's important to ensure that subject matter jurisdiction is satisfied, but when a claim is made by a third-party defendant against the original plaintiff, supplemental jurisdiction will be a likely avenue if jurisdiction is not satisfied otherwise. Supplemental jurisdiction, however, will not be available for the plaintiff to make a claim against the third-party defendant.
Intervention:
Sometimes, a nonparty will want to voluntarily enter into the lawsuit. This nonparty might want to enter as a plaintiff to assert a claim, or as a defendant to defend a claim. Intervention can be either "of right" or "permissive."
Intervention is "of right" if the absentee's interest may be harmed if not joined, assuming that interest is not adequately represented by the current parties. Permissive intervention is allowable if the absentee's claim or defense and the pending case have at least one common question of law or fact. Though permissive intervention is discretionary with the court, it's generally allowable unless it would cause undue delay or if it would prejudice a party.
As for subject matter jurisdiction, it's important to note that if the intervenor is a plaintiff, supplemental jurisdiction will not apply.
Interpleader:
Interpleader applies if separate actions might result in double liability against a party (called the "stakeholder"). An interpleader suit permits the stakeholder to require two or more claimants to litigate amongst themselves to determine which, if any, has the valid claim. There are two separate interpleader procedures.
The first interpleader procedure is called Rule 22 interpleader. This requires either complete diversity between the stakeholder and all adverse claimants with a claim in excess of $75,000 or a federal question must be at issue. Rule 22, in other words, doesn't change what you've already learned about jurisdiction in federal court.
Statutory interpleader, on the other hand, does change a few things. Statutory interpleader requires only diversity between two of the claimants and there must be at least $500 at issue. This is sometimes referred to as "minimal diversity" to contrast it with the general rule requiring complete diversity. Service may be nationwide, and venue is proper where any claimant resides.
Thursday, September 18, 2025
A Framework for Analyzing Personal Jurisdiction
What makes the concept of personal jurisdiction complex is that the analysis contains many different components. Having a framework for analyzing it can simplify it quite a lot. Most of the analysis on a bar exam will center on the constitutional requirements but it's important to note that whether there is personal jurisdiction is a two-step analysis. The exercise of personal jurisdiction must both satisfy a state statute (often called a "long-arm statute") and also satisfy the constitutional requirements of due process.
Each state has its own statute for analyzing personal jurisdiction. Sometimes these long arms statutes are quite broad: they might say something like personal jurisdiction is allowed to the full extent to which the constitution allows it. Other times, situations are specified in which the exercise of personal jurisdiction by a given state is allowable. It's important to note that these more specific long arm statutes do not obviate the need to satisfy the constitutional requirements.
More important on a test like the Uniform Bar Exam are the constitutional requirements for a state to exercise personal jurisdiction. The question to ask here is whether the defendant has such minimum contacts with the forum state such that jurisdiction does not offend traditional notions of fair play and substantial justice. Seems simple enough? Not so fast.
To determine whether the minimum contacts standard is satisfied requires analyzing three separate components: contacts, relatedness, and fairness. Let's take each in turn.
Contacts: There must be relevant minimum contacts between the defendant and the forum state. Two factors will determine this component: purposeful availment, and foreseeability. For purposeful availment, the contact must result from Defendant's voluntary act. The defendant must target the forum state, though that doesn't mean that the defendant, necessarily, needs to have been present in the forum state. It's possible to target without being present if the defendant, for example, intentionally causes an effect in the forum. In addition, you'll want to determine whether Defendant's contacts with the forum state made it foreseeable that Defendant could be sued there.
Relatedness: After determining that there are minimum contacts using the analysis above, next determine whether Plaintiff's claim arises from or relates to Defendant's contacts with the forum state. If that type of relatedness is present then the type of personal jurisdiction is called specific jurisdiction. If that type of relatedness is not present, then the type of personal jurisdiction is called general jurisdiction.
Only if it's determined that there's specific jurisdiction, then it's time to move on to the next step analyzing whether personal jurisdiction would be fair under the circumstances. If, on the other hand, it's determined that there's general, rather than specific jurisdiction, then personal jurisdiction over Defendant is only proper if Defendant is "at home" in the forum state. A good test for "at home" is to determine where Defendant is domiciled.
Fairness: It's important to reiterate here that the fairness element is only analyzed in specific jurisdiction cases. In general jurisdiction cases where the defendant is deemed to be 'at home" in the forum state, the fairness analysis is not necessary. For fairness to be satisfied, the forum need not be the most convenient for Defendant; rather, Defendant, to prove the forum is not fair, will need to show that the forum puts Defendant at a severe disadvantage in the litigation. Further, there may be an interest that the forum state has in providing a forum for its citizens; that, too, will weight against an argument by Defendant that the forum is not a fair one. Lastly, Plaintiff's interest in having the forum state as the place of litigation must be also be considered and weighed against Defendant's claim of unfairness.
Wednesday, September 10, 2025
The UBE
This February will mark the final UBE for a small number of states. Specifically, the following:
~Connecticut ~Idaho ~Maryland ~Missouri ~Oregan ~Washington That's interesting in itself as the new test rolls out after multiple years of preparation. But more interesting, to me at least, is how this will affect states that are currently administering the UBE and intend to administer the NextGen exam beginning either in July 2027 or July 2028. The NCBE decided that the UBE beginning in July 2026 (at the time when the above states begin to administer the NextGen exam) and through July 2028 (when the UBE is officially retired) will be a sort of UBE Lite. They're not calling it that, but it seems that way to me. In July 2026 through July 2028 (though not including July 2028) the UBE will no longer test the following subjects on the essay component of the exam: Wills; Trusts, Family Law, Secured Transactions, Conflict of Laws. What it'll test is the MBE subjects + Business Associations. For this relatively short time period, studying for the UBE will require studying for the MBE + studying Business Associations. Not a bad time to take the test, frankly, for those who have had any thought of taking the UBE. This decision, I'd guess, was one the NCBE felt it had to make rather than one it necessarily wanted to make. That makes it good for the test taker.Thursday, August 28, 2025
July '25 MBE Mean Score
The July MBE mean score has been released. And it's looking good.
At 142.4, it's the highest July MBE average since 2013, not including the summer and fall tests administered in 2020. Although it's difficult from this data to glean anything material for any individual score, it does indicate that scores in general as states release them are going to be higher than in previous years. Where the MBE goes, overall bar exam scores tend to go.
Wednesday, August 20, 2025
Preemptive Rights
Sometimes a company might issue additional shares of stock, and a shareholder might reasonably be concerned that with this new issuance, the shareholder's percentage of ownership will decrease. That would, of course, be true if the shareholder retained the same number of shares in a corporation that now had a greater number of shares issued.
A preemptive right is the right of an existing shareholder of common stock to maintain his/her percentage of ownership in a company by buying stock whenever there is a new issuance of stock for money.
An example:
Assume a shareholder has 10 shares in a company with 50 shares outstanding. The shareholder, thus, owns 10 of the 50 outstanding shares, or 20% of the company's shares. Company plans to issue an additional 450 shares. With a preemptive right, the shareholder will have the right to purchase a number of shares that will allow the shareholder to retain that 20% ownership.
The company, once those additional 450 shares are issued, will have 500 outstanding shares. To retain the 20% ownership, shareholder will need to own 100 of those 500 shares. Because the shareholder already owns 10 shares, a preemptive right will give the shareholder the option of purchasing 90 of the 450 additional shares.
Importantly, preemptive rights are not the default rule. Shareholders do not have preemptive rights to purchase newly issued shares unless the articles of incorporation provide that right. And even if the articles of incorporation do provide for that right, shareholders generally will not have a preemptive right in shares that are issued for consideration other than money or for shares issued within 6 months of the corporation incorporating.
Wednesday, August 13, 2025
Post-Exam Studying
A common question I get:
“Should I start studying for the next bar exam before I’ve received my scores? I don’t think I passed!" Not among the easier questions I receive. There’s a rather simple formula dealing with time. If you’ll be working while studying, you’ll have less time to study per day and will therefore need a longer time span of studying if you plan to study the same number of hours you would have studied had you not been working. Nothing complicated about that. And so that might lend itself to the claim that, yes, you should start studying before results if (1): you’ll be working; and (2): you’re in a state that releases scores later than most or even some other states. But there’s one catch: psychology. This test demands so much from its victims that any thought that you might have passed will be percolating in the back of your mind, rendering any priority outside of studying superior. If you can overcome that human nature, and if you’re quite certain you’ll be taking the test again, starting before results makes sense.Wednesday, August 6, 2025
Satisfying Conditions (LSAT)
Assume that x happening is necessary. You can never conclude anything simply by knowing that x happened. However, you can draw a valid conclusion if you know that x did not happen.
Now assume that x happening is sufficient. You can never conclude anything simply by knowing that x did not happen. However you can draw a valid conclusion if you know that x did happen.
Example 1: To reduce blood pressure, Pam will need to moderate her salt intake. (necessary condition)
If we know that Pam moderated her salt intake, we know nothing about whether Pam reduced her blood pressure. Because it's possible that there are conditions necessary beyond that one necessary condition.
But if we know that Pam did not moderate her salt intake, it's time for us to conclude that Pam did not reduce her blood pressure. The necessary condition has not been satisfied.
Example 2: If Pam moderates her salt intake, then Pam will reduce her blood pressure. (sufficient condition)
If we know that Pam did not moderate her salt intake, we know nothing about whether Pam has reduced her blood pressure. Because it's possible that Pam can reduce her blood pressure without moderating her salt intake.
But if we know that Pam moderated her salt intake, then that's all we need to know. Pam reduced her blood pressure since the sufficient condition has been satisfied.
Thursday, July 24, 2025
Good Luck!
All best to those who will be taking the bar exam in a few days! Posting to resume soon along with pass percentages from the July '25 exam as they start to come in in late August.
Tuesday, July 22, 2025
Strategy
Those who have throughout their schooling aimed for “A’s” on exams (if not every law student ever than close to every law student ever), can have a tough time internalizing that the bar exam is the first test they’ve taken when an “A” means nothing.
Which, at first blush, might not seem so bad. Aim for the moon and maybe you’ll hit a star, or whatever that expression is. But strategy on this test dictates keeping that in mind. If aiming for an “A,” you’d have fewer “lifelines” on questions. On this test, if you see a question you don’t like, you can choose your favorite letter and come back to it if time permits. Rather than dwell on it as if the question will determine whether you get into Yale Law School or are forced to go to Harvard Law School. (Yes, that was sarcastic.) The key is to see every question, not to let the test makers determine for you which questions you see. The MBE is a game, of sorts. And games should be played strategically, determined by the nature of any individual game. Use lifelines in this game to improve your chances of success.Thursday, July 17, 2025
Compensatory Damages
Damages in Contract Law can be confusing. It's worth memorizing the following:
The goal of compensatory damages is to put the non-breaching party into the position that party would have been in had the contract not been breached. By memorizing that line, it's just some simple math that'll guide you to the correct answer. X contracted to do some work for y and the contract called for x to be paid $1,000. Y breached and x found similar work for z at a price of $700. X now has $700 from z. If x were to collect $1,000 from y, x would have $1,700. That would put x in a better position than x would have been in if the contract hadn't been breached. Too much for x, so you don't want to choose that answer. If x collects $300 from y, x will have $700 from z, and 300 y. X will have $1,000, the exact amount x would have had had there been no breach. The math checks out and you're done at least for compensatory damages.Wednesday, July 16, 2025
A Quick Distinction
~Not Hearsay: the statement is not offered for the truth of the matter asserted. It falls outside the rule against hearsay, and it’s admissible.
~Non Hearsay: the statement is offered for the truth of the matter asserted, but is excluded or exempted from the rule against hearsay, and is admissible. ~Hearsay But An Exception: the statement is offered for the truth of the matter asserted. It’s not excluded or exempted from the rule against hearsay, but is admissible even though it’s hearsay.Tuesday, July 15, 2025
Default (Article 9: UCC)
Towards the end of the life cycle of a secured transaction comes default. Default provides the right of a secured party to proceed against collateral. On the bar exam, it's almost always the case that this right is triggered by the debtor's failure to pay a debt.
One avenue for the secured party after default is to use self help and take possession of the collateral. This can only be done, however, if there will not be a breach of the peace. If the secured party breaches the peace, the secured party loses the authorization to re-possess and may actually be sued for conversion if the collateral is re-possessed. Other intentional torts like battery, assault, etc., are also on the table.
What does it mean to breach the peace? Any conduct by the secured party that has the potential to lead to violence is a breach of the peace. The standard isn't very high: if the debtor physically occupies the space where the secured party intends to acquire the collateral, that may be sufficient to prevent the secured party from using self help to acquire the collateral. If the debtor verbally objects, it almost certainly is. Merely breaking and entering onto property to acquire the collateral, however, isn't necessarily a breach of the peace if the debtor is not present on the property at the time of the breaking and entering.
Because of this limit involving breach of the peace, self help is not always available. Another avenue is to use judicial process. Replevin is a common judicial process used to acquire collateral after the debtor has defaulted. Another option is for the secured party to make equipment unusable and then to dispose of it on the debtor's property (provided doing so does not breach the peace). If the collateral is accounts, the secured party might provide notice to the account debtor to pay the secured party rather than the party that defaulted.
Once the secured party possesses the collateral, the secured party might choose to retain the collateral in full or in part. Or, the secured party might choose to sell, lease, license, or otherwise dispose of the collateral in a public or private sale. To sell the collateral, reasonable written notice of intent to sell must be given to the debtor and to any sureties on the debt as well as to any other secured parties. There are a few exceptions here: for example, notice need not be given if the collateral is consumer goods or if the collateral is perishable or its value threatens to decline rapidly. The notice must be sent within a reasonable time before sale.
The notice must adequately describe the parties and the collateral and every aspect of the sale must be commercially reasonable. That's to say, the secured party must show that it made an effort to obtain the best price for the collateral.
Even after default, the game is not entirely over for the debtor. Any time before the secured party has resold the collateral, retained the collateral through possession, or has entered into a contract for disposition of the collateral, the debtor may redeem the collateral by fulfilling all obligations secured by the collateral including paying for any reasonable expenses. Typically, to redeem will require paying off the entire debt, not least of which is because there's generally an acceleration clause in the agreement between the secured party and the debtor that requires full payment upon default.
Friday, July 11, 2025
MBE Tip
There's a saying: "if you wish to upset the law that all crows are black, it is enough to prove one single crow to be white."
On the MBE, imagine a Torts question asking if a battery has occurred. An answer choice says something like "yes, because there was a harmful contact." That's the equivalent of a black crow. It provides very little relevant information to answer the question because it doesn't tell you whether any of the elements are not satisfied.
An answer choice that says "No, because there was no contact" is the equivalent of a white crow. There's nothing else to be said if there was no contact. No contact, no battery. This isn't a Torts tip; it's a tip you can apply throughout the entire test. Any answer choice that eliminates a required element should be given plenty of consideration. An answer choice that merely tells you that one of many elements have been satisfied should be looked upon with lots of skepticism.