Saturday, January 13, 2018

Tips for Preparing for the MBE


The following was my response to a question posed on a bar exam message board regarding how best to prepare in the remaining time for the February MBE. 

(1): Train yourself so that the entire purpose of any question is to eliminate the answers that you know to be incorrect rather than to pick the answer that you know to be correct. After having taught this test for many years, I am certain that it is easier to spot the wrong answer than it is to pick the right answer. This is because the right answer isn't always entirely right (frustrating!) but rather it is more right than the others. You should set out to eliminate answers until there is only one answer left. Know the law well enough to know why the answers are wrong and you are well on your way to a significantly increased score.  

(2): When implementing this strategy, you will still answer some questions incorrectly.  When that happens, note the rule of law that had you known you would have answered the question correctly. The MBE is all about testing the same legal issues over and over again while hiding the legal issues within varied fact patterns. Your goal should be to fully understand the rule of law so that the next time that an identical issue is tested within a different fact pattern you'll be able to use that rule to eliminate wrong answers and ultimately choose the "correct" one. 

(3): Work on endurance and speed in the final month leading up to the exam. Performing well on this test requires more than memorizing legal knowledge. Or in language that you might recall from preparing for the LSAT, memorizing legal knowledge is a necessary condition to performing well, but not a sufficient condition. If there is one problem with the big bar-review companies (and for the most part I think they do a fine job), it's the percent of time dedicated to memorizing law at the expense of working on other variables such as test-taking strategies, endurance, speed, etc. You wouldn't learn how to play chess with competence by dedicating all of your time to studying the rulebook to the game. The same applies to the MBE; you've got to practice playing the game to increase your skill level. 

Friday, January 12, 2018

Essay Blueprint

I've included here a note I send to students when we first start working together on essays that outlines my recommendations for effectively analyzing legal issues. Thought the blog readers might find it helpful as well!


ESSAY BLUEPRINT:
For every issue that you spot in your initial read-through of the fact pattern, you should create an IRAC to analyze the issue. So, for example, if you spot 7 issues in the initial read-through, you should create 7 IRAC’s to analyze all those issues.

And each IRAC should contain the following.
(1): A statement of the issue. You should be concise with the issue statement; the idea here is merely to allow the graders to know that you’ve spotted an issue that they have placed into the facts.

(2): Rule statements: In the same paragraph in which you stated your issue you should state all of the law that you will need to later analyze the issue. Think ahead, here. All of your later analysis should be supported by some rule of law, so write down all of the law that you’ll need to later analyze the facts. Then skip a line.

(3): Analyze the facts using the rules you’ve stated in step 2 above. First, provide the graders with transition words such as “here,” or “as per the facts,” or “in this case.” The words aren’t important but it’s important that you let the graders know that you are moving on from stating the law to analyzing the facts. Then begin to analyze. This is where many of the points are earned; you want to use the rules that you previously wrote down in step 2 and attach them to the facts provided in order to solve the issue that you stated in step 1. Then skip a line.

(4): Provide the graders with another transition word such as “thus,” “therefore,” or “accordingly,” and then draw a conclusion that follows from your analysis in step 3.

A very simple example:
The issue is whether x committed a battery against y. Battery is the intentional harmful or offensive contact of another with causation. Contact is harmful if it causes injury or pain and it is offensive if it would be considered offensive by a reasonable person. The contact with the plaintiff can include anything connected to the plaintiff.

Here, we are told in the facts that y suffered an injury after x forcefully shoved y into the wall. This contact which was direct against y since x shoved y would likely be deemed harmful since y was injured when he broke his arm. Furthermore, the contact would likely be deemed offensive since a reasonable person in the position of y is likely to be offended by the forcefulness of the contact. In addition, it is not disputed that the injury to y was caused only by x’s act of shoving y into the wall.

Thus, because contact was made directly from x to y, and because x caused y harm by acting in a way that was both harmful and offensive, it is likely that a court would find that a battery was committed. 

Thursday, January 4, 2018

MBE Fast Fact: Cruel & Unusual Punishment

Regarding Criminal Procedure, by far the most important amendments to understand well for the MBE are the 4th, 5th, and 6th.  But every test has its curveballs and you could likely see questions on the 8th Amendment's prohibition against cruel and unusual punishment as well.

It's tough to pin down exactly what is meant by "cruel and unusual" but a helpful definition defines it as punishment that is grossly disproportionate to the seriousness of the crime committed.  Here are some important points to keep in mind that apply this principle:

--After a conviction for murder, the death penalty can be imposed only under a statutory scheme that gives the the judge or jury enough information and guidance in making the decision.  The statute cannot be vague and all mitigating evidence must be considered.

--The death penalty cannot be imposed for the crime of rape if the rape was neither intended to result nor did result in death.  In addition, the death penalty will not be imposed upon one convicted of felony murder unless the felony murderer acted with reckless indifference to the value of human life.

--A prisoner cannot be executed if the prisoner is insane at the time of execution, even if the prisoner was sane at the time that the crime was committed.

--The death penalty cannot be imposed upon a person who is intellectually disabled.

--Execution of those who were under 18 at the time they committed the offense violates the 8th Amendment.  Similarly, a mandatory life imprisonment without the possibility of parole on a person who was a minor at the time the offense was committed would be cruel and unusual pubishment.

Thursday, December 28, 2017

Preliminary Injunctions vs. Temporary Restraining Orders

There are quite a few similarities between preliminary injunctions and temporary restraining orders.  And like with so many other concepts in Civil Procedure, the differences among similar concepts are likely to be tested.  Here are some points to keep in mind so that you can distinguish between these different types of injunctions.

Preliminary Injunctions: 
It's often stated that a party will seek a preliminary injunction to preserve the status quo while the suit is pending.  The adverse party (the party that will be burdened by the injunction) must be given notice and an opportunity to be heard.  There are some specific elements that must be satisfied before a preliminary injunction will be granted. It must be true that the plaintiff will suffer irreparable harm if the injunction is not granted. Further, the harm to the plaintiff must outweigh the harm to the defendant and the plaintiff must show that s/he is likely to be successful on the merits of the action.  Finally, it must be true that public interest favors granting the injunction. The granting of a preliminary injunction is within the equitable discretion of the judge and this is why the element requiring irreparable injury is important to analyze carefully. If the party seeking the injunction has an adequate remedy at law (for example, if money damages will suffice), it is unlikely that the preliminary injunction will be granted.

Temporary Restraining Orders: 
There are times when irreparable injury might occur if required to wait for the hearing on a preliminary injunction. In such instances, a party may seek a temporary restraining order to preserve the status quo until the hearing on the preliminary injunction. Again, there are some requirements to keep in mind. The adverse party (the party that will be burdened by the order) must generally be given notice. Importantly, though, a temporary restraining order that will last a maximum of 14 days may be imposed without notice if the following three elements are satisfied: the party seeking the order states specific facts in an affidavit or verified complaint of the irreparable injury that will occur if the order is not granted; the party seeking the order certifies in writing the efforts made to notify the adverse party and the reasons why notice should not be required; and the party seeking the order provides security to pay for any damages incurred by the adverse party if the court later finds the adverse party to have been wrongfully restrained.

It's worth noting that although a temporary restraining order may be issued without notice of a hearing under some circumstances, a person must have actual notice of the order before that person may be held in contempt for violating it.

Tuesday, December 19, 2017

210 additional MBE Practice Questions

The NCBE has released an additional 210 official MBE practice questions.  The bad news, no answer explanations with the questions.  The good news, *finally* some more official Civil Procedure questions to work through.

http://www.ncbex.org/news/mbe-study-aid/

Tuesday, December 12, 2017

Trespassers

Lots of trespassers on the MBE.  And as such there are some rules to know so that you can apply them to questions testing the many different angles that the writers of the test can choose to focus on in the questions.

In these questions the trespasser will be the plaintiff suing the landowner for damages resulting from harm caused to the trespasser. Step one is to determine whether the trespasser is discovered or undiscovered.  If the trespasser is undiscovered (or unanticipated), then the landowner has a duty to refrain from willful or wanton misconduct.  In other words, not much of a burden here on the landowner to prevent harm to those who are entering the landowner's land without consent from the landowner and without knowledge as to their entering. No amount of negligence will suffice.

On the other hand, there will be times when a landowner knows that trespassers have been on his/her land in the past and these trespassers are known as discovered trespassers.  The burden, though still rather slight, is increased here since the landowner has knowledge of the entrance.  If the landowner maintains an artificial (as opposed to natural) condition on the land and if that condition is unlikely to be noticed by a discovered trespasser (for example, if it's concealed), then the landowner must either make that condition safe or warn the trespassers of the condition but only if the condition involves a risk of death or serious bodily harm to the trespasser.  If the landowner carries on dangerous activities on the land, then the landowner should exercise reasonable care in the exercise of such activity.

Lastly, the rules change if the trespasser is a child.  A landowner should exercise ordinary care to avoid foreseeable risk of harm to children caused by dangerous conditions on the property.  Note that here a distinction is generally not made between artificial and natural conditions as it was above.  The landowner here may be liable if the plaintiff can show that there was a dangerous condition on the property that the landowner should have been aware of, the owner knew or should have known that children frequent the area, the condition on the land is likely to cause injury, and the expense of remedying the situation, on balance, would be reasonable when compared to the magnitude of the risk posed.  This specific rule as it relates to trespassing children is known as the attractive nuisance doctrine.


Thursday, November 30, 2017

Forum Analysis (First Amendment)

Every subject on the MBE has its hot topics (topics that are heavily tested on the MBE) and one of those topics within Constitutional Law is the First Amendment. Entire courses in law school are dedicated to this one amendment and so the depth makes it especially difficult to prepare for during the short bar prep period.  But a very helpful start when tackling this topic is to understand the difference between content-based restrictions on freedom of speech, content-neutral restrictions on freedom of speech and restrictions on freedom of speech that primarily affect conduct related to speech rather than the content of the speech itself. The focus here will be on the latter but first a bit about content-based restrictions, and content-neutral restrictions.

For the most part (with some exceptions) content-based restrictions on freedom of speech are presumptively unconstitutional.  To be valid, restrictions on content must be necessary to achieve a compelling government interest. Content-neutral restrictions require a lower level of scrutiny; namely, such regulations are generally subject to intermediate scrutiny whereby they must advance important interests unrelated to suppression of speech and must not burden more speech than necessary.

Unlike with content-based and content-neutral regulations on speech, the government generally does have the power to regulate conduct associated with speech.  But that power is not absolute and will depend very much on the forum in which the speech is taking place. And that's where forum analysis comes in.

Public Forums and Designated Public Forums: Public forums are reserved for those areas that have historically been open to speech-related activities (streets, sidewalks, etc.). In addition, there are areas that have historically not been open to speech-related activities but which have been been open by the government for speech-related activities on a limited basis (schoolrooms, recreations groups, etc.), and these are known as designated public forums. The test for public forums and designated public forums is the same: the government may regulate speech in these forums with reasonable "time, place, and manner" regulations that are content neutral, narrowly tailored to serve important government interests, and leave open alternate channels of communication.

Limited Public Forums and Nonpublic Forums: Unlike with the forums mentioned above, there are areas that the government has not historically opened for speech-related activity but which are opened for a very specific activity (for example, opening up a school gym to host a debate). These areas are deemed to be limited public forums.  There are also areas that are have not historically been open for speech-related activity and are not open for such on even a limited basis (jails, military bases, etc.), and these are known as nonpublic forums. There is more leeway here for government regulation; specifically, the government can regulate speech in such forums provided that the regulation is viewpoint neutral and reasonably related to a legitimate government purpose.

**note:  There are some outlines that interchange the words "limited" and "designated" public forums.  These forums are quite similar and if there is any distinction to be made it is that with a designated public forum, the forum has been open more frequently for speech-related activity, whereas with a limited public forum, the forum is generally open for a very specific purpose.




Friday, November 10, 2017

Legal Analysis

Most if not all people sitting for a bar exam have heard of the acronym "IRAC."  When analyzing a legal issue it's said that you should first state the issue, then state the rule that will resolve the issue, then analyze the rule, and finally draw a conclusion based on the analysis.  I highly recommend this approach for a bar exam; it's clear, and efficient.

But it's not a skill that comes easy, which is why many people struggle with bar exam essays.  Many of the points to score on essays come from the analysis aspect of IRAC and to perform well at legal analysis requires lots of practice.  The analogy I often use to explain how best to analyze a legal rule is to treat the rule as if it were a car engine, or a television set, or a computer, and if your goal was to figure out whether the piece of electronics contains all the necessary parts or if there is something missing that is preventing it from working properly.  Only once you've analyzed all the parts could you be confident in drawing a conclusion as to whether the item contains all the parts required for it to work properly.

For example, let's take a simple intentional tort, battery.  A common definition that one might read for this tort is that battery is a harmful or offensive contact with the person of another without the other person's consent.  To analyze this rule you need to look at each individual part of the the rule. Break the rule up into its component parts. Was the act harmful or would it be deemed offensive by a reasonable person? Was there a contact? Was the contact with the person of another? Did the other person give consent to this contact? Was there perhaps some kind of implied consent? Etc.

Once you've addressed all of the individual components of the rule, and only once you've addressed them, are you then prepared to conclude whether or not there has in fact been a battery.

That, in short, is legal analysis. It'll take you far on a bar exam in which the objective is to score points because the approach will allow you to analyze the rules in a way that it'll make it difficult for the grader not to award them!


Thursday, November 2, 2017

The Privileges and Immunities Clause (Art. IV vs The 14th Amendment)

As anyone who has or is preparing for the bar exam knows (or will know once it's covered) there are two privileges and immunities clauses.  Although the Privileges and Immunities Clause of Article IV is tested far more often, it's good practice to understand the differences so that you don't confuse them in the questions on the exam.  Let's focus on those differences:

Privileges and Immunities Clause of the 14th Amendment:

This is the one that students have told me they've been advised not to worry too much about. I agree with that advice, and yet questions pop up on occasion.  States may not deny their citizens the privileges and immunities of national citizenship.  Some examples of these rights are the right to petition Congress for redress of grievances, the right to vote for Federal officers, and, importantly, the right to interstate travel. Note that corporations are not protected by this clause.

Privileges and Immunities Clause of Article IV: 

This is tested far more often and as such there is more to discuss here.  The Privileges and Immunities Clause of Article IV prohibits intentional discrimination by a state against nonresidents of the state when the discrimination concerns fundamental rights such as rights relating to important commercial activities or rights relating to civil liberties.  Note well this qualification, though:  if the discrimination applies to a right that is not commercial and does not involve civil liberties (for example the right of nonresidents to pay the same amount as residents for a recreational hunting license) then this clause is not the correct one to analyze.

But let's assume that the right does affect an important commercial activity or civil right. In that case, the state law regulating that right might still be valid but only if the state has a substantial justification for the different treatment of residents and nonresidents.  The state will want to show that the nonresidents either caused the problem or are part of the problem that the state is attempting to solve and that there are no less restrictive means by which the state might undertake to solve the problem.

Here, as in the Privileges and Immunities Clause of the 14th Amendment, corporations are not protected.  In additions, Aliens are not protected.

Friday, October 20, 2017

Contract Damages

Contract damages can quickly become confusing since there are so many of them and each tends to apply in specific situations. This post will provide a short summary of some of the most commonly tested damages:

Compensatory Damages: These damages pop up all the time on MBE questions. Essentially the goal is to put the non-breaching party in the position s/he would have been in had the contract not been breached.  You may see different terms here that all amount to compensatory damages. For example, expectation damages, benefit-of-the-bargain damages, etc., are all forms of compensatory damages. Assume that x contracts to purchase 100 widgets from y at a price of 2$ per widget. Y breaches and x has to go out and buy the 100 widgets from z for a price of 3$ per widget. X has now spent 100$ more (300$ rather than 200$) than x would have spent had y not breached the contract so x gets to collect 100$ from y in compensatory damages. After collecting the 100$ from y, x will have paid 200$ (300$-100$) which is exactly what x expected to pay when entering into the contract with y. Or, stated otherwise, x is in the position x would have been in had y not breach the contract.

Reliance Damages: You should consider reliance damages when compensatory damages are too speculative to measure.  Reliance damages will award the plaintiff the cost of performing the contract rather than any expectation the plaintiff may have had. In other words, reliance damages are designed to put the plaintiff in the position the plaintiff would have been had the contract never been formed rather than in the position the plaintiff would have been had the contract been performed but had not been breached.

Consequential damages: Consequential damages are damages that a plaintiff might receive in addition to compensatory or reliance damages.  These damages are recoverable only if at the time the contract was made a reasonable defendant would have foreseen the damages as a probable result of the breach.  The key word here is foreseeability and that word should always appear in an analysis of consequential damages.  Note that in a contract for the sale of goods (UCC) only the buyer may receive consequential damages.

Incidental Damages: When working through a UCC question you should consider incidental damages. These damages include expenses reasonably incurred by the buyer and seller in a contract for the sale of goods.  For example, the buyer might recover for expenses incurred by inspecting the goods or holding the goods after they were rightfully rejected, while the seller might recover for expenses incurred storing, shipping, or re-selling goods that were wrongfully rejected by the buyer.

Liquidated Damages: These are the damages that the parties stipulate to in the event of a breach.  These damages must be in an amount that is reasonable in view of the actual or anticipated harm caused by the breach. If the amount is deemed unreasonable, the courts will construe the liquidated damages clause as a penalty and will not enforce the clause.

Wednesday, October 11, 2017

UBE Essentials: Corporations & LLCs

Attached is a sample page from the chapter on Corporations and LLCs from my book UBE Essentials.  UBE Essentials contains chapters on every subject tested on the UBE and is available on Amazon @ https://www.amazon.com/UBE-Essentials-Sean-Silverman/dp/1544887574/ref=sr_1_1?ie=UTF8&qid=1507770681&sr=8-1&keywords=ube+essentials



Wednesday, October 4, 2017

An Approach to Answering MBE Questions

I wrote a post for the Bar Exam Toolbox outlining my approach to answering MBE questions.  Hope you'll find it helpful!  Read more @
https://barexamtoolbox.com/bar-exam-toolbox-blog/

Tuesday, September 26, 2017

MBE Percentiles (July 2017)

As they do each administration, the Illinois Bar Examiners have released nationwide MBE percentiles for the July 2017 exam.  My thoughts on the numbers:

The data we don't have is the number of points that any given raw score was scaled up to achieve any given scaled score.   Looking at the data, a 140 scaled score would place in you in the 47th percentile in July 2017. In comparison, a 140 scaled score would have placed you in the 69th percentile on the February 2017 exam.  This indicates that on average students scored higher in July 2017 than in February 2017 since the same scaled score places you in a lower percentile in July.

Some other points to note: A 145 scaled score would place you in the 58th percentile, a 150 the 68th percentile, and a 155 the 78th percentile. The 90th percentile requires somewhere between a 160-165 scaled score. The top percentile listed (99th) required a 175 scaled score and the lowest percentile (1st) was a scaled score of 105.


Friday, September 22, 2017

Shareholders' Lawsuits

Lots of people struggle with the subjects that fall under the category of "business associations."  Corporations is one of those subjects and it's tested frequently on the Multistate Essay Exam.  A large number of the questions dealing with corporations include issues regarding shareholders, and this post will address one of those issues.

Direct Actions by a Shareholder:

There are times in which a shareholder might feel that a fiduciary duty was breached by either a director or an officer of the corporation and that the shareholder is affected directly by the breach.  The shareholder (rather than the corporation itself) is affected directly if the shareholder suffers the most immediate and direct damage and if the defendant's duty of care ran directly to the shareholder rather than to the corporation. If a shareholder sues in such a situation that is known as a direct action by the shareholder, and considerations are important because in a direct action by the shareholder, recovery is for the benefit of the individual shareholder and not the corporation.

Derivative Actions by a Shareholder:

I see derivative actions tested a bit more frequently than direct actions.  In a derivative action, the shareholder is asserting the corporation's rights (rather than the rights of the individual shareholder).  Recovery here generally goes to the corporation rather than to the shareholder, and yet interestingly the corporation is still named as the defendant.  There is a process here to keep in mind if a shareholder is to bring a derivative action.

The shareholder must have been a shareholder at the time of the act or omission complained of or must have become a shareholder through transfer by operation of law from one who was a shareholder at that time. In addition, the shareholder must adequately and fairly represent the interests of the corporation.  Assuming these requirements are satisfied, the shareholder must make a written demand on the corporation to take suitable action and the derivative proceeding may not be commenced until 90 days have elapsed from the date of that demand.  The 90-day requirement will not be enforced, however, if the shareholder has been notified that the corporation has rejected the demand or if irreparable injury to the corporation would result if required to wait 90 days.

If a majority of directors (at least 2) who have no personal interest in the controversy find in good faith after reasonable inquiry that the suit is not in the best interest of the corporation, then the suit may be dismissed on motion by the corporation.  To avoid such dismissal, the shareholder will have the burden to prove that the decision was not made in good faith after reasonable inquiry.  The burden will shift to the corporation, however, if it's not true that a majority of directors had no personal interest in the controversy.  In that case, the corporation will have the burden to prove that the decision was made in good faith after reasonable inquiry.

Once the derivative action has ended, the court may order the corporation to pay the plaintiff's reasonable expenses if it finds that the action has resulted in a substantial benefit to the corporation. If, however, the court finds that the action was maintained without reasonable cause, the court may order the plaintiff to pay reasonable expenses to the defendant.