Tuesday, July 17, 2018

Apparent Agency

A concept that appears to be showing up on the MBE in the subject of torts originates in the law of agency. In agency law we learn that even if there is not actual authority granted from the principal to the agent, there are circumstances in which an agent can contractually bind a principal. Generally, there are requirements for apparent agency (or sometimes called apparent authority):

(1): A direct or implied representation of agency by the alleged principal.
(2): Reliance on the representation by the party alleging agency.
(3): Detrimental reliance on the representation by the party alleging agency.

And here's how it's showing up on the MBE.  Situations may arise in which a person or company is performing a job and using a product manufactured by another to perform the job. The person performing the work, however, is not an employee of the manufacturer. Although the worker is not an employee of the manufacturer it may still be possible to hold the manufacturer liable if the worker is negligent, assuming that the manufacturer acted in a way that would have led a reasonable person (the person injured) to believe that the worker was an employee of the manufacturer. The basis for holding the manufacturer liable even though the worker was not the employee of the manufacturer would be on a basis of apparent agency.

Friday, July 13, 2018

Wills on the MBE

The NCBE tends to sneak some Wills concepts into the subject of Real Property on the MBE.  Most people are already studying Wills for the essays, and here are 3 concepts that you should keep in mind as testable on the MBE as well:

Ademption:

Ademption occurs when property is specifically devised or bequeathed in a testator's will, but when the testator dies s/he no longer owns the property. The gift in the will fails but only if the gift was a specific gift that could only be satisfied by that gift. For example, if the testator leaves a watch to his son but prior to death the watch is sold, there is no longer a watch to leave to the son, so the gift has been adeemed. Note that if the testator leaves a specific item of property and then sells a portion of that property, only that portion is adeemed. Also worth noting is that ademption will not apply if the contract to sell the property that had been left in the will was entered into by the representative of an incompetent testator.

Assume that the property that was left in the will was not sold, but was instead destroyed. If the casualty insurance proceeds are not paid until after the testator's death, ademption will usually not apply; the intended beneficiary of the destroyed gift will take the insurance proceeds. Also, property condemned by the government before the death of the testator will usually not cause an ademption as to that property if the condemnation award is not paid until after the testator has died.

Anti-Lapse Statutes:

A lapse occurs when the beneficiary of a will dies before the testator dies. Under the common law, if a lapse occurred, the gift that was intended for the predeceased beneficiary was deemed void. Anti-lapse statutes prevent this result by permitting the gift to pass to to the predeceased beneficiary's living descendants under limited circumstances. Watch for situations, however, in which the will makes clear that receipt of the gift is contingent on survival of the beneficiary; if such language is in the will, the anti-lapse statute will not apply.

Abatement:

Situations arise in which the assets in the estate are not sufficient to pay all claims against the estate as well as satisfy all the gifts. When this occurs, the gifts are abated (reduced). Absent a contrary provisions, estates will generally abate in the following order: property passing by intestacy-->the residuary estate-->general legacies-->specific devises and bequests.




Monday, July 9, 2018

An Approach to Answering MBE Questions

The July exam is only a couple weeks away now. Some time ago for the Bar Exam Toolbox, I wrote an approach to answering MBE questions that might be helpful for those preparing for July.  The article can be found @ https://barexamtoolbox.com/an-approach-to-answering-mbe-questions/#more-10502

Saturday, June 30, 2018

Essay Writing Blueprint

Knowing the substantive law is essential for bar exam essay writing, but it's not enough to know the law if you struggle with presenting the law that you know to the graders. Some time ago, I created a short blueprint for essay writing on the bar exam, and it can be found @ http://mbetutorial.blogspot.com/2018/01/essay-blueprint.html

Thursday, June 28, 2018

Holdover Tenants

A common issue tested within landlord/tenant law on the MBE will present a situation in which the tenant continues to remain in possession of property after the rightful termination of the tenant's right to possess.  It's then a matter of determining the rights of the landlord.

The landlord has two choices, the first of which is to treat the tenant as a holdover tenant and evict the tenant under an unlawful detainer statute.  But often in the questions, the landlord will choose not to do so and instead will attempt to bind the holdover tenant to a new tenancy.  This is allowable as well.

The new tenancy will be a periodic tenancy and generally the terms and conditions of the expired tenancy may govern the new tenancy.  But the determination of the terms of the new tenancy will depend on the nature of the property; if commercial property, then the tenant may be held to a new year-to-year tenancy provided the original tenancy was for more than a year.  If the property is residential, the hold-over tenant will generally be held to a new month-to-month tenancy regardless of the terms of that tenant's expired tenancy.  It's allowable for the landlord to raise the rent on both the residential and commercial tenant for the new tenancy but only if the landlord notifies the tenant prior to the expiration of the original tenancy that if the tenant chooses to remain, the new tenancy will be at an increased rate.

The landlord may choose at any time to terminate the new periodic tenancy and to do so will require that the landlord provide notice at least equal to the length of the time period of the tenancy.  For example, if the periodic tenancy is month-to-month then a month notice is required. One exception to note, though, is that a year-to-year tenancy does not require that the landlord provide notice a year before termination; six months will suffice.

Saturday, June 23, 2018

Final Month Discount Code

The books I've written are especially useful in the final month of studying.  As such, I've discounted the books from now till the July exam for anyone who needs an additional resource to learn the law (30% off).

The discount code to receive the reduced price is "July" and can be typed in when ordering the books here on the blog.

Hope you find the books helpful!

Thursday, June 21, 2018

Disclosure of Expert Testimony

On the topic of discovery within the subject of Civil Procedure, there are 3 types of disclosure that you should know very well for the MBE.  Each can get a bit involved since there are general rules and exceptions to the general rules for each of them. The 3 types are initial disclosure, disclosure of expert testimony, and pretrial disclosure. This post will focus on an often-tested type of required disclosure: disclosure of expert testimony.

Disclosure of expert testimony is required. Specifically, a party must disclose to other parties the identities of expert witnesses expected to be used at trial.  As part of this disclosure, a report is generally required and the the report must be prepared by and signed by each expert witness stating his/her qualifications as well as the opinions that the expert intends to express and the basis for those opinions.

This disclosure must be made either at the time directed by the court or if no time is directed by the court (and if there is no stipulations among the parties) at least 90 days prior to trial.  There is, however, one exception to note regarding the time requirement: if the evidence to be presented by the expert is intended solely to rebut another party's disclosure of expert testimony, then it must be made within 30 days after disclosure of the evidence being rebutted.


Friday, June 15, 2018

Florida Bar Exam Essentials Volume 1

Florida Bar Exam Essentials Volume 1 is now available for download here on the blog. Volume 1 has chapters on each of the following subjects:  Federal Civil Procedure; Florida Civil Procedure; Federal Criminal Procedure; Florida Criminal Procedure; Florida Wills; Federal Evidence (with Florida distinctions);  and Contracts (with Florida Distinctions).

For those studying for the exam next month who choose to use it, I hope you'll find it helpful!!







Tuesday, June 5, 2018

MBE Fast Fact: Candidates and Campaigning

Seems to me that there is very often a question or two (in the subject of Constitutional Law) on candidates and campaigning for election.  Here are a few quick points to keep in mind:

~ States may not charge candidates a fee that results in making it impossible for indigents to run for office.

~ Ballot access regulations are not per se unconstitutional, but any regulation must be a reasonable, nondiscriminatory means of promoting important state interests.  A state may require a candidate to show reasonable support prior to allowing that candidate to have his/her name placed on the ballot.

~ The government may allocate more public funds to the two major political parties than to other minor parties for political campaigns.

Sunday, May 27, 2018

Essay Writing: IRAC

Along with tutoring students for the MBE, I also work with students on essay writing. I have been a strong believer for quite some time that essay writing skills are as important as knowledge when it comes to scoring high on this part of the exam. You are already being tested on the law on the MBE; here the graders are testing something else.  And it's a skill that is very difficult to become excellent at in the short time available for preparing for a bar exam.  But you can become competent for sure and that competence will allow you to score many points.

For bar exam purposes I like IRAC for analyzing legal issues. It's an excellent system for analyzing issues in a short timeframe and (especially on the UBE) there isn't much time to write any individual essay.

Here is what I recommend:

I:  Begin with an issue statement. The issue statement should let the grader know exactly which legal issue you've spotted and intend to address with the remainder of that particular IRAC.

R: Then move on to a statement of the rule. This is where all that studying pays off because you want to be able to write a rule statement that accurately reflects the rule you've learned from your outline.  It does not need to be a direct quote from the outline, though. I often think that if a student can put into his/her own words the rule without making a misstatement of the legal principle then that indicates a good understanding. You should only write the rules that you intend to analyze in the next segment of IRAC. I don't think you'll lose points for writing rules that you won't be analyzing but you'll lose time. And when you lose time, there is a chance you will not have enough time to score other points that were available.

A: When analyzing, your entire focus should be on your rule statements. Just as it was important not to add any rules that you wouldn't later analyze, it's equally important not to analyze any rules that you didn't add above. Run through the facts and use both your rules and the facts provided by the examiners in order to draw a likely conclusion to the question you presented in your statement of the issue.

C:  Once you've analyzed the facts with the rules, you should be able to draw a likely conclusion. That conclusion might be that not enough information has been provided but often a likely conclusion can be drawn. Don't be too definite, though, unless warranted. Legal issues, especially on the bar exam, often have more than one viable side; let the graders know that you believe your analysis has led to a likely correct conclusion but, when warranted, that reasonable people might argue otherwise.

Thursday, May 17, 2018

Citizenship for Diversity Jurisdiction

Diversity jurisdiction requires that no plaintiff is a citizen of the same state as any defendant.  And so in making this determination it's first required to determine the citizenship of various parties to the lawsuit.  Things can get a bit complicated when the parties are not individuals, but remembering the following should make the determination of diversity far easier:

Individuals:  Determining the citizenship of an individual depends upon the permanent home to which that individual intends to return.  The citizenship of a child is that of the child's parents.

Corporations:  A corporation is deemed a citizen of every U.S. state and foreign country in which it is incorporated and the one U.S. state or foreign country in which it has its principal place of business.  The principal place of business is the U.S. state or foreign country from which the high-level officers direct or control the activities (often the headquarters).

Unincorporated Associations and Limited Liability Companies:  These businesses are considered to be a citizen of each state in which any member is a citizen.

Legal Representatives:  The legal representative of the estate of a decedent, an infant, or an incompetent, has the same citizenship as the decedent, infant, or incompetent.

Class Actions: Citizenship in class actions lawsuits is determined on the basis of the citizenship of the named members of the class.

Thursday, May 3, 2018

Character Evidence

Along with impeaching witnesses and hearsay evidence, character evidence ranks up there with the most troubling areas of Evidence for those preparing for the bar exam. It is simpler to understand character evidence if you distinguish the type of character evidence admissible in civil cases from the type of character evidence admissible in criminal cases.  But first there are some commonalities:

There are three methods that a person might use to offer evidence of another's character but not all three are always admissible. The three types are specific acts, opinion testimony, and reputation testimony.

Civil Cases:

The general rule here is that no form of character evidence is generally admissible in civil cases regardless of whether the offering is of a specific act, opinion, or reputation testimony.  For example if x sues y for reckless driving, it is generally not admissible for x to offer testimony that y has driven recklessly in the past if the purpose of offering such testimony is to prove that y has the character of a reckless driver. Similarly, y could not offer testimony of previous careful driving to prove that y has the character of a careful driver.  An important exception here applies to civil cases in which character is directly at issue.  For example, in a defamation case the character of plaintiff may be at issue in determining whether the statement made by defendant about plaintiff was actually false (since falsity is required for a claim of defamation). In these circumstances, character evidence is admissible.

Criminal Cases:

The defendant can offer (only by opinion or reputation testimony) evidence of the good character of defendant.  And once the defendant has chosen to do so, the prosecution may then cross examine that defense witness and may even elicit from that witness whether the witness knows about specific acts that would contradict the testimony previously offered. The prosecution, however, must limit the rebuttal to cross examination of the defendant's character witness. Extrinsic evidence to rebut the defendant's character witness is not admissible. The prosecution may also call up its own witness to testify to the defendant's bad reputation or to give an opinion about defendant's bad character once the defendant has called up its own character witness. But if the prosecution chooses this route, asking the witness about specific acts in not allowable.

Victim in a Criminal Case:

It should also be noted that except in rape cases a defendant may introduce reputation or opinion testimony of a bad character trait of the alleged victim if relevant to show the defendant's innocence.  And once this evidence has been admitted, the prosecution can counter with reputation or opinion evidence of the victim's good character for the same trait or the defendant's bad character for the same trait.

Thursday, April 26, 2018

Homicide

Homicide is a very important topic to know well within the larger subject of Criminal Law on the MBE.  It's not too complicated but the questions tend to be very tricky.  A good start to breaking this topic down is to understand that there are three ways to commit homicide on the MBE: murder, voluntary manslaughter, and involuntary manslaughter.

Murder: Murder is the unlawful killing of a human being with malice aforethought.  And there are four ways to satisfy the element of malice aforethought:

--Intent to kill
--intent to inflict serious bodily injury
--reckless indifference to an unjustifiable risk to human life
--intent to commit a felony.

Intent to kill is the most straightforward.  But even if x does not intend to kill y, x can be charged with murder if x intended to inflict serious injury upon y and y ended up dying.  And not even that is necessary; x can instead just act recklessly and if y dies as a result of x's recklessness that too might be murder.  Or x might be committing a felony (bank robbery, for example) and in the process might negligently kill y. That would be murder as well even though negligence doesn't rise to the level of recklessness, but only because the negligence occurred during the commission of a felony.

Voluntary Manslaughter: Voluntary manslaughter is a killing that would be murder but for the existence of adequate provocation.  Provocation is adequate if it would cause a reasonable person to lose control, if the person does in fact lose control, and if there is not sufficient time between provocation and the killing for the person to cool off.

Notice that voluntary manslaughter still requires that you analyze murder. In other words, voluntary manlaughter = murder + adequate provocation.

Involuntary Manslaughter: 

A killing is involuntary manslaughter if it was committed with criminal negligence. Some states also have a rule similar to the felony-murder rule called the misdemeanor-manslaughter rule which will allow for a charge of involuntary manslaughter if the killing occurs during the commission of a misdemeanor.

Distinguishing between involuntary manslaughter and murder can be tricky. Murder allows for recklessness while involuntary manslaughter requires criminal negligence. This is a very fine line, though recklessness requires a higher degree of fault than does negligence. With recklessness a person acts with the knowledge that what they are doing is wrong, whereas with negligence that knowledge need not be present provided that a reasonable person would have known not to act.

Thursday, April 12, 2018

Intestate Distribution

When studying the subject of Wills for the UBE you'll need to learn quite a lot about how property is distributed when there is no will directing its distribution.  This is known as intestate distribution and  there are three different methods used:

Per Stirpes: Under a per stirpes distribution, the estate is divided by the number of members of the first generation who are either alive or are survived by issue.  Each member who is alive takes their share, and the shares of deceased members drop to the next generation. The shares that drop are divided by the number of members in the next generation.

Example:  Assume that T has 5 children, A, B, C, D, and E.  Further assume that these are T's only heirs and so if alive they would each get 1/5th of T's estate. At the time that T dies, A, who had 2 children, has already died, and B, who had 1 child, has also died.  C, D, and E, each of whom has 1 child, are alive at the time of T's death.

Under a per stirpes distribution, since C, D, and E are alive, they will each take their 1/5th share. Further B's only child will take B's 1/5th share. A's 2 children will share A's 1/5th share so each will take (1/5th)/(2), or 1/10th.

Now assume that at the time T died, A, B, C, D, E have all died.  Under per stirpes, as above, the children of B, C, D, and E would each get 1/5th, and the children of A would each get (1/5th)/(2), or 1/10th.

Per Capita with Representation: This distribution is very similar to per stirpes (and is sometimes called modern per stirpes, or American per stirpes).  The difference is important, however, when as above A, B, C, D, E  have all died prior to the death of T.  Under this system of distribution, the initial division into equal shares occurs at the nearest generation of descendants which has a member living at the decedent's death.  So, if A, B, C, D, and E have all died prior to T dying then the property will be divided equally among the children of each of them.  In other words, each will get 1/6th.

Per Capita at Each Generational Level:  This is the most important one to know for purposes of the UBE since this is the system followed by the Uniform Probate Code. Under this system of distribution, the initial division of shares occurs (as with per capita at each generation) at the first generational level at which there are living takers. But here the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level.

Example:  Assume again that T has 5 children, A, B, C, D, and E. A and B are both alive at T's death.  C, who has 3 children, died prior to T dying. D, who has 2 children, died prior to T dying. And E, who has 1 child, died prior to T dying.

Under a system of per capita at each generational level, A and B will each get their 1/5th share since they are alive. Then, the shares that will be passed down by all deceased members are combined.  So, the 3/5th that remain will be combined among the 6 children of C, D, and E, and each will get (3/5th)/(6) or 1/10th each.