Wednesday, August 17, 2016

Standards of Review

Though the NCBE has not yet released any official Civil Procedure questions (that have actually shown up on previous exams) there are enough practice questions now floating around so that we can have a pretty good idea of the topics that are of special importance.   One topic that is showing up often requires an ability to specify what standard of review an appellate court should employ. In general, sometimes the appellate court gives great deference to the trial judge's ruling while in other circumstances far less is given.   Specifically, the following standards should be understood well for federal civil procedure questions:

De Novo:  This standard applies for questions of pure law.  If the issue reviewed by the appellate court is an issue of law, the appellate court will conduct a "de novo review."  Essentially, this means that the court will analyze the issue from scratch without giving any deference to the trial court's analysis.

Clearly Erroneous:  This standard applies for questions of fact.  Questions of fact decided by the trial court must not be set aside unless clearly erroneous.  Here, more deference is given to the trial court; the appellate court must give due regard to the trial court's decision regarding questions of fact.

Abuse of discretion:   When decisions are committed to the trial court' discretion, the appellate court will not reverse such discretionary decisions unless the appellate court believes that the trial court has abused its discretion.  This standard gives the greatest deference to the trial court.

Harmless Error Doctrine:  Though this isn't a standard of review in the same sense as the above three, it's worth noting as it is a means of assessing the seriousness of any errors that may be found by an appellate court.  Under this doctrine, even if the appellate court decides that a particular trial court's ruling was incorrect, the appellate court will not reverse the trial court's decision if the appellate court believes that the error was unlikely to have changed the outcome of the trial.


Friday, August 12, 2016

Revisions in Real Property for February 2017

It's still quite early to be gearing up for the February 2017 exam.  But there are some changes to keep in mind for those who intend on beginning their preparation soon. The changes that will take place for the first time in February are in the subject of Real Property and the NCBE has provided some guidance on its website:

Effective with the February 2017 administration, there will be changes to the Real Property scope of coverage for the MBE and the MEE. The Real Property topics will be slightly reordered and revised.
New topics will include conflicts of law ; property owners’ associations and common interest ownership communities ; drafting, review, and negotiation of closing documents ; and persons authorized to execute real estate documents.
Minor modifications will include providing specific examples of rules affecting future interests; including security deposits in termination of tenancies; providing more detailed zoning topics; and including as separate topics transfers of restrictive covenants, transfers of easements, profits, and licenses, and acceleration of loans before foreclosure.
Note that the following Real Property topics will no longer include (1) application of Article 9 of the Uniform Commercial Code to fixtures or (2) abatement of devises.
For the revised scope in this subject, see the most recent subject-matter outline @ http://www.ncbex.org/pdfviewer/?file=http%3A%2F%2Fwww.ncbex.org%2Fdmsdocument%2F184

Sunday, July 24, 2016

Good Luck!

Best of luck to all those who will be taking the exam this week!!

Posting to resume shortly to assist those who are preparing for the February 2017 exam.  And for information about tutoring, e-mail me at Silvermanbarprep@gmail.com.






Friday, July 15, 2016

Final Weeks

Be sure to push hard in these final few weeks!  They tend to be the most important of the entire study period.....


Sunday, July 10, 2016

Collateral Estoppel

Collateral estoppel applies to prevent a person in a civil case from re-litigating an issue.  Once a court has decided an issue of fact or law necessary to its judgment, that decision will preclude re-litagation of that issue in a suit on a different cause of action involving a party to the first case.  A topic within this area that has been showing up in practice questions is that of mutuality.

Traditionally, collateral estoppel only applied where the party seeking to employ collateral estoppel and the party against whom collateral estoppel was being employed were both parties to the previous lawsuit.  If this were true it was said that there was mutuality among the parties.  This requirement has been abandoned by most courts in most circumstances.  For purposes of the MBE, you should understand 4 ways in which collateral estoppel may be used:

Defensive mutual collateral estoppel:  This is when collateral estoppel is used by the defendant from the first suit against the plaintiff from the first suit regarding issues that were previously litigated against the defendant in the first suit.

Defensive non-mutual collateral estoppel:  This is when collateral estoppel is used by a new defendant in a later suit regarding issues that were previously litigated against the plaintiff by a former defendant in a previous suit.

Offensive mutual collateral estoppel:  This is when collateral estoppel is used in a later suit by the plaintiff from the first suit against the defendant from the first suit regarding issues that had already been litigated in that first suit.

Offensive non-mutual collateral estoppel:  This is when collateral estoppel is used by a new plaintiff in a later suit against the defendant from a previous suit regarding issues that were previously litigated against that defendant in the previous suit.

Sunday, July 3, 2016

MBE Fast Fact: Trespass to Chattel

Intentional torts tend to be relatively straight-forward but there is one aspect of trespass that can be counter-intuitive and so I thought it worth mentioning. Trespass to chattel is the intentional interference with the plaintiff's chattel resulting in damages. The intent requirement can cause some problems here. For this purpose, intent consists of a desire or knowledge that the chattel will be involved without regard to whether the defendant actually knows that the chattel belongs to the plaintiff, or that the plaintiff's rights are being violated.

In other words, if defendant takes a coat thinking that it belongs to the defendant but in fact belongs to plaintiff, that mistake alone is not enough for the defendant to claim that the defendant did not have the requisite intent to commit this tort. Defendant intended to take the coat, and the intent to take the coat is enough. It's worth noting that these same types of questions can come up in questions testing trespass to land. If someone walks onto the property of another thinking that the land is his own, the requisite intent for trespass to land is still satisfied if there was an intent to enter the land.

Sunday, June 26, 2016

Past Recollection Recorded

One of the *many* hearsay exceptions that must be remembered is the one involving past recollection recorded. But before understanding the particulars you'll need to be able to read the fact pattern and understand from reading the facts that this exception is implicated. Look for a situation where a witness states that there is insufficient recollection of an event to enable testifying to the event fully and accurately.

And this is true even after the witness on the stand has had an opportunity to consult a writing that might aid in remembering the event. The writing may then be read into evidence but because it is an out of court statement offered for the truth of the matter asserted there is a hearsay problem. And the way to get around this hearsay problem is to satisfy the elements of the exception for this particular hearsay problem. The elements here amount to the foundation that must be laid to offer this kind of statement into evidence, and the foundation is as follows:

(1): The witness at one time had personal knowledge of the facts in the writing.

(2): The writing was made by the witness or under his/her direction, or it was adopted by the witness.

(3): The writing was timely made when the matter was fresh in the witness's mind.

(4): The writing is accurate.

(5): The witness now has insufficient recollection to testify fully and accurately.

Note that whenever a witness has used a writing to refresh his/her memory as stated above, an adverse party is entitled to have the writing produced at trial. An adverse party is also entitled to cross-exaimine the witness regarding the writing and to introduce portions relating to the witness's testimony into evidence.

Friday, June 17, 2016

MEE Essentials Volume 2

For those who have ordered MEE Essentials Volume 1, I hope that you're finding it to be a helpful supplement as you prepare for the July exam! My intent is to have MEE Essentials Volume 2 available prior to the July exam and this volume will contain the following subjects:

--Family Law

--Wills

--Secured Transactions

--Trusts

--Torts

--Criminal Law

--Criminal Procedure

--Evidence


If you're interested in ordering Volume 1, it can be found @ https://www.amazon.com/MEE-Essentials-1-Sean-Silverman/dp/1523494298/ref=sr_1_1?ie=UTF8&qid=1466223268&sr=8-1&keywords=mee+essentials+volume+1

Thursday, June 9, 2016

The Top Five: Diversity Jurisdiction

There is so much material to cover regarding jurisdiction in Civil Procedure that it's easy to overlook some of the finer points. Here are 5 potentially testable aspects of jurisdiction that may not stand out when reading the outlines:

(1): Just as citizens of different states will satisfy the diversity requirement for diversity jurisdiction so too will a citizen of the United States and an alien. Jurisdiction is denied, however, if the alien has been admitted to the United States for permanent residence and is domiciled in the same state as the US citizen.

(2): Diversity of citizenship must exist as of the time that the suit is instituted. In other words, diversity need not exist at the time that the cause of action arose, and diversity is not defeated if after commencement of the action a party later becomes a citizen of the same state as his/her opponent.

(3): When determining the citizenship (for purposes of diversity) of a corporation, you must consider both the states in which the corporation is domiciled (can be more than 1), and the state in which the corporation has its principal place of business (can be only 1). A factor to strongly consider when determining where the corporation has its principal place of business is to look to where it has its headquarters. In contrast, for unincorporated associations (such as partnerships), the association is considered for purposes of diversity jurisdiction to be a citizen of each state of which any member is a citizen.

(4): For class action lawsuits, diversity is determined on the basis of the citizenship of the named members of the class only.

(5): The legal representative of the estate of a decedent, an infant, or an incompetent is deemed to have the same citizenship as the decedent, infant, or incompetent for purposes of determining if diversity exists.

Saturday, June 4, 2016

State Taxation of the Federal Government

As you're preparing for the exam you're certain to come across some questions in Constitutional Law testing the concept of state taxation of the federal government. The general rule to note is that a state may not tax federal instrumentalities without the consent of Congress. The key point here is that a state cannot tax the federal government or its agents in a manner that is going to prevent the federal government from performing its federal functions. But then there are those nondiscriminatory taxes (a very common issue that shows up is when the state requires federal employees to pay state income taxes) that are perfectly valid provided that they do not unreasonably burden the federal government.

But the reason for this post is that a less common rationale for providing the federal government with a basis for avoiding state taxation comes up in the questions and it should be considered as a correct answer choice.

The Necessary and Proper Clause in the Constitution gives Congress the power to make all laws necessary and proper for executing any power granted to the federal government. Though it seems like a bit of a stretch, the right to make all laws necessary and proper for executing any power granted to the federal government has been held to include the power of the federal government to grant itself immunity from state taxation.

Wednesday, May 25, 2016

MBE Fast Fact: Negative Evidence

A term I encounter often in the practice questions is "negative evidence." It's likely to show up in an evidence question involving products liability and the following example illustrates how the concept comes up:

Assume that x is in a car accident and asserts a personal injury claim against the car manufacturer claiming that a defect in the car caused the accident. At trial, the defendant calls a witness to testify that although he is in charge of hearing all complaints for the car company regarding product safety, there has never been a complaint similar to the one that plaintiff is claiming caused the accident, and many thousands of cars identical to plaintiff's have been sold. Is the absence of similar complaints admissible evidence to prove that the plaintiff's complaint in this case is unwarranted? In other words, is this "negative evidence" admissible?

If a proper foundation is laid, evidence that a particular product has been used many times without accident is admissible as circumstantial evidence that its condition is not dangerous. You'll want to ensure that the conditions under which the product was previously used are identical to those that exist at the time of the accident that is the subject of the current case and that the witness would have heard if there had been any previous accidents.


Sunday, May 15, 2016

MBE Fast Fact: "Then Existing State of Mind" Exception

One of the many exceptions to the rule against hearsay is the "then existing state of mind." How this generally plays out in questions is that statements of the declarant's intentions are deemed to fit within this exception. In addition, these statements may be relevant to establish that the declarant acted in a way that was consistent with the stated intentions.

It's important to keep in mind, however, that these statements are relevant only to establish the conduct of the declarant him/herself; they are not relevant to establish the conduct of others. So, for example, assume that two defendants are being tried together and a witness testifies on behalf of both defendants. If the witness testifies to a conversation he had with defendant 1 and in doing so testifies to a statement made by defendant 1 that both defendant 1 and defendant 2 intended to be in another state the day that the crime was committed, the statement will be admissible insofar as it helps to establish that defendant 1 was in the state that he claimed to have intended to be in on the day of the crime, but the statement will not be admissible to infer the same about defendant 2.

Wednesday, May 11, 2016

MBE Percentiles (February 2016)

Nationwide MBE percentiles for the February 2016 exam have been released. The lowest scaled score listed (105) would place you in the 1st percentile of test takers, while a scaled score of 165 or higher would place you in the 99th percentile or above 99 percent of all those who took this exam.

The 50th percentile fell close to a scaled score of 135.

Monday, May 9, 2016

2015 Civil Procedure Amendments

There has definitely been some concern regarding the changes to the Federal Rules of Civil Procedure scheduled to be tested for the first time in July 2016. I came across an excellent concise summary of the information that needs to be known for the exam. It can be found @ https://www.orrick.com/Events-and-Publications/Pages/Summary-of-December-2015-Amendments-to-the-Federal-Rules-of-Civil-Procedure.aspx