Sunday, January 15, 2017

Expert Witnesses

Expert witness questions can show up both in Evidence questions and in Civil Procedure questions. In Evidence, the questions are likely to focus on such topics as the qualifications to be an expert witness, the bases of testimony for an expert, and the proper subject matter for expert testimony.

For Civil Procedure, it's important to go into the exam understanding the obligations that a party has towards the opposing party if a party intends to use an expert witness at trial.  Knowing the following should put you in a good position to answer these questions correctly:

A party using an expert witness must automatically supply to the opposing side a written report containing all of the following:

(1):  A complete statement of all opinions the expert witness will express and the basis and reasons for those opinions.

(2):  The facts or data considered by the expert witness in forming the opinions that the witness will express.

(3):  Any exhibits that will be used to summarize or support the opinions that the expert witness will express.

(4):  The expert witness's qualifications, including a list of all publications authored in the previous 10 years.

(5):  A list of all other cases in which, in the previous 4 years, the witness testified as an expert either in trial or by deposition.

(6): A statement of the compensation to be paid to the expert.

Sunday, January 8, 2017

Accretion vs. Avulsion

Even though I've been teaching the MBE for many years now, occasionally I'll come across a distinction in a question that surprises me.  It may seem rather insignificant with so much else to know in the area of Real Property, but a testable (and tested) distinction is that between avulsion and accretion.  Here's what's to know:

Both of these concepts deal with the fact that the natural effects of water upon land has the potential to change the nature and extent of the land in a way that might affect real property rights.

Accretion: A key point to keep in mind regarding accretion is that the changes to the land happen over a lengthy period of time.  For example, if you were to view over a long period of time the bank of a river or the shoreline of a lake you would notice that the water from the river or lake was depositing soil on the bank or the shoreline.  And this deposit of soil is known as accretion.  Importantly for the MBE, land formed by accretion is generally recognized to be owned by the owner of the bank or the shoreline upon which the accretion occurs.

Avulsion:  An important distinction between avulsion and accretion is one of time.  Whereas accretion takes place over a long period of time, avulsion is a sudden change in land (for example by depositing soil far downstream) brought about by water.  It may result in addition or removal of land from a bank or shoreline.  Importantly, the law generally provides that soil removed by avulsion remains the property of the original owner.

There is one other point worth noting about avulsion.  There may be a situation in which a stream acts as a boundary between two parcels of land.  Avulsion might cause that boundary to shift, and when it does the law generally holds that the landowners will retain the property that they owned before the shift in the course of the stream if the shift is due to avulsion.

Tuesday, January 3, 2017

MBE Essentials: Contracts

The following is a sample from the chapter on Contracts from my book MBE Essentials:

Q:  What is the Statute of Frauds?

A:  Certain agreements must be in writing, and the Statute of Frauds sets forth specifically the types of agreements that apply. The agreements are the following: promises by executors or administrators to pay the debts of the estate out of their own funds; promises to answer for the debt of another (often called surety agreements); promises made in consideration of marriage; promises creating an interest in land (heavily tested in property questions); promises that cannot be performed within one year; and agreements for the sale of goods for $500 or more. There must be a memorandum that evidences these contracts, and the memorandum must identify the party to be charged (the party claiming that there was no contract), identify the subject matter of the contract, identify the material terms and conditions of the agreement, recite consideration, and contain a signature of the party to be charged or his agent.

Q: What are some situations in which the Statute of Frauds is deemed inapplicable even though the contract would normally fall within its reach?

A: The most commonly tested fact patterns in this respect deal with the sale of goods and the sale of land. Most Statute of Frauds questions on the MBE will involve these types of contracts. In regards to the sale of land (common law), the statute will not apply if there is performance that unequivocally indicates that a contract has been performed. The rationale here is that if we have this evidence available, then there is no need for a writing, and the need for a writing is the entire basis behind the statute. Two of the following are required to remove a contract for the sale of land from the statute: payment from one party to the other (either full or partial payment), possession by the buyer of the property that was the subject of the contract, or valuable improvements on the property by the buyer. In regards to the sale of goods for over $500 (UCC), the statute will not be applicable if one merchant sends to another merchant a confirmation regarding their oral agreement, and the recipient does not object within 10 days of receipt (the “confirmatory memo rule”). In addition, the statute is inapplicable if the goods were specifically made for the buyer and not suitable for sale in the ordinary course of business. The statute will also not apply if the party claiming the defense admits in his pleading or court testimony that a contract was formed, or if the contract is in fact performed (fully or partially) by the party claiming the defense. The rationale behind these exceptions is identical to the rationale in regards to the sale of land. With adequate evidence of the contract at hand, we need not require that the original contract be in writing to enforce it.

QIs consideration required to modify a contract?

A: This will depend on whether the question is testing the common law or the UCC. Under the common law, modification of a contract does require consideration, however under the UCC, consideration is not required to modify a contract. If the modification falls within the statute of frauds, then the modification must be in writing.

Q: What is the difference between an intended third-party beneficiary, and an incidental third-party beneficiary?

A: First, for our discussion of third party beneficiaries, assume that the promisor enters into a contract with the promisee and that the promisee promises to perform for the third-party beneficiary. An intended (rather than incidental) beneficiary is one who is identified in the contract, receives performance directly from the promisor, or has some relationship with the promisee to indicate an intent to benefit.

MBE Essentials contains over 430 questions and answers covering all subjects tested on the Multistate Bar Exam.  The book is available for purchase on Amazon @

Tuesday, December 27, 2016

MEE Essentials: Secured Transactions

The following is a sample from the chapter covering the subject of Article 9 of the UCC (Secured Transactions) from my book, MEE Essentials.  

q:  What does it mean to perfect a security interest?

a:  To review, attachment establishes the secured party’s rights to the collateral as against the debtor.  Attachment, however, may not be enough. Issues may arise in which multiple parties (for example, multiple creditors) have rights to the same collateral.  To acquire maximum priority in the collateral over the other parties, the secured party must perfect. There are five ways to perfect a security interest:  filing; taking possession of the collateral; taking control of the collateral; automatic perfection; and temporary perfection. Note that perfection is not complete until attachment is complete, so when analyzing perfection of a security interest ensure that the elements discussed previously regarding attachment are satisfied.

q:  How does one perfect a security interest by filing?

a:  A person may file a financing statement that contains the debtor’s name and mailing address, the secured party’s name and mailing address, an indication of the collateral covered by the financing statement, and a description of the real property if the financing statement is real property related collateral.  Minor errors in the debtor’s name will not invalidate a financing statement but seriously misleading errors will.  If the debtor makes a name change to the financing statement and the name change is seriously misleading then the financing statement is only effective against collateral acquired prior to the name change and within 4 months after the change.  Further, a lack of mailing address either of the debtor or the secured party will not necessarily prevent the financing statement from being accepted.  As with a security agreement discussed earlier, the financing statement may contain a broad description of the collateral (for example “equipment”) and unlike a security agreement, a financing statement may also contain a supergeneric description of the collateral (for example “all assets”).

q: Where is a financing statement filed?

a: Generally, filing must be done centrally in the office of the secretary of state. Filing for security interests in timber to be cut, minerals, and fixtures is local in the county where a mortgage on real estate is filed.  Note that once filed, filing is effective for four years.  A continuation statement can only be filed within six months before the lapse of the filed statement

q: How does one perfect a security interest by possession?

a: First, note that security interests in most type of collateral can be perfected by the secured party taking possession of the property but security interests in general intangibles, nonconsumer deposit accounts, nonnegotiable documents, electronic chattel paper, certificate of title goods, and accounts cannot be filed by possession. When a security interest is perfected by possession, the security interest is perfected from the moment of possession and continues as long as possession is retained. Where the collateral is in the hands of a bailee, the secured party is deemed to be in possession from the moment the bailee authenticates a record acknowledging that it is holding the collateral for the benefit of the secured party.

MEE Essentials (2 volumes) contains over 800 questions and answers covering all subjects tested on the Multistate Essay Exam.  The book is available for purchase on Amazon @

and @

Tuesday, December 20, 2016

MBE Fast Fact: Modification of Contracts

Whenever the rules differ between the common law of contracts and the UCC, an added level of difficulty exists within the question.  One topic that stands out in this regard deals with modification of contracts, and two types of questions that show up quite a lot within this topic deal with the need for consideration to modify a contract and the need for a writing to modify a contract

Consideration:  Under the common law of contracts, a contract cannot be modified unless the modification is supported by new consideration.  The UCC, however, differs.  Under the UCC, good faith promises of new and different terms than were stated in the original contract between the parties are valid even if those new and different terms are not supported by any additional consideration.

Writing:  Generally, and under the common law of contracts, a written contract can be modified orally.  And furthermore, under the common law, even if a written contract expressly provides that a contract may be modified only by a writing, the parties may still orally modify the contract. Under the UCC, though, any modification must be in writing if the contract as modified falls within the Statute of Frauds.  What this means is that if the contract as modified is for $500 or more (thereby falling within the UCC Statute of Frauds), the modification must be evidenced by a writing.  If, however, the contract as modified is for less than $500, then no writing is required.

One other point worth noting is that the parole evidence rule will not prevent the admissibility of evidence dealing with the modification of a contract.  This is because the parole evidence rule only applies to exclude from evidence written or oral statements made prior to the writing as well as oral statements made contemporaneously with the writing if those statements are going to contradict the writing and if the writing was intended as the final expression of the bargain between the parties.  But modifications fall outside the scope of the parole evidence rule because by their nature they occur after the written agreement has already taken place (as opposed to prior to or contemporaneously with the writing).

Friday, December 9, 2016

Equitable Conversion

I've written a bit about equitable conversion here on the blog.  The general rule is important to note but an additional point that comes up in the practice questions is worth noting as well.  As is usual, the more practice questions you work through, the more angles you'll see as to each issue that could be tested, and the less likely it'll be that you'll face too many 'curve balls' on the exam. There are two components to doing well on the MBE: knowing the law and knowing how to apply the law.  As difficult as this test may seem, when you improve at these two components you will see your scores go up quickly and significantly.

Under the doctrine of equitable conversion, the risk of loss of realty passes to the buyer as soon as a contract of sale is executed between the buyer and seller.  But there is an additional point worth noting.  Even in those jurisdictions that choose not to follow the doctrine of equitable conversion (so that risk of loss would remain on the seller until title or possession is transferred to buyer), if there is destruction of an immaterial part of the realty prior to the time that the seller transfers title or possession to buyer, the seller can still enforce the contract but the price will be abated to account for the damage.  In other words, even though the risk of damage to the property remained with the seller, the buyer will not be able to use the fact that the property was damaged as a way to get out of the contract--the seller will still be able to enforce the contract because the damage was immaterial.

Finally, a growing number of states have adopted the Uniform Vendor and Purchaser Risk Act.  Importantly, this Act negates the doctrine of equitable conversion as it relates to risk associated with loss.  In other words, the risk of loss is retained by the seller in jurisdictions that follow this Act.

Thursday, December 1, 2016


Very good advice on a podcast from the Bar Exam Toolbox regarding the MBE can be found @

In general, these podcasts provide some really great advice and information.

Tuesday, November 29, 2016

MBE Fast Fact: Privileges in Federal Court

I'm sometimes asked by students about how to apply rules regarding privileges in Evidence questions on the MBE since the Federal Rules of Evidence have no specific privilege provisions.   Privilege in the federal courts is governed by common law principles as interpreted by the courts.  There are some privileges, however, that are currently recognized and should always be applied on the MBE.  These include the attorney-client privilege, spousal immunity, the privilege for confidential marital communications, the psychotherapist(or social worker)-client privilege, and the clergy-penitent privilege.

Further guidance is provided by rule 501 of the Federal Rules of Evidence.  That rule provides that in the trial of a civil proceeding in which state law provides the rule of decision, the rules of privilege shall be determined in accordance with state law.  In other words, in such an instance (where state law governs the rule of decision), if a state law recognizes a given privilege, the federal court must recognize the privilege as well.

Tuesday, November 22, 2016

Wharton's Rule

It's likely that when preparing for the MBE and working through criminal law you'll come across a rule called Wharton's rule   I've noticed in working with students that the rule is tough to pin down and can get a bit convoluted.  But understanding the policy behind it helps to simplify it. 

Wharton's rule states that there can be no conspiracy to commit a crime unless the agreement to commit the crime involves at least one person who is not essential to the commission of the crime to which the conspirators agreed.  An example should help:

The crime of bigamy is committed when a person marries someone while already legally married to another.  Assume that x agrees to marry y even though y is already married to z.  Further assume that this marriage then takes place.  

The crime of bigamy has been committed but because conspiracy does not merge with the crime, an additional question is presented as to whether conspiracy to commit bigamy was committed when the agreement took place.  Bigamy requires at least two parties though (in this case x and y) and so Wharton's rule states that because the crime requires two people, conspiracy to commit the crime will require that at least 3 people agree to commit it.

And the policy behind this rule has a rational basis.  If it weren't the case that at least 3 people were required for conspiracy to commit bigamy then every time bigamy was committed there would also be a conspiracy to commit the crime.   And so since the crime of bigamy in this case could not have been committed by either x or y acting alone, neither x nor y can be found guilty of conspiracy to commit the crime. 

Monday, November 14, 2016

The Right to Travel

In the most recent post, I wrote about the fundamental right to vote.  Another fundamental right that shows up in MBE questions (not all that frequently) is the fundamental right to travel. And to reiterate, these fundamental rights are important both for substantive due process and for equal protection. In either case, if a law impairs such a right, the law will only be valid if it passes strict scrutiny.

An individual has a fundamental right to travel from state to state and to be treated equally after migrating to the new state.  It's important to note, though, that not every restriction on the right to cross state lines is an impairment on the fundamental right to travel.   An example to illustrate a restriction that would not be an impairment on the fundamental right to travel would be a penalty incurred by a parent who has abandoned his/her children by leaving the state and not paying child support.  In addition, often states will impose durational residency requirements for receiving certain benefits within the state.  It's questionable whether strict scrutiny is necessary here (in other words, it's questionable if such a residency requirements is an impairment on the fundamental right to travel).  It's probably best to keep the following in mind:  A one-year residency to receive full welfare benefits is invalid, as is a one-year residency to receive state-subsidized medical care.  Likewise, a one-year residency to vote in state is invalid.  On the other hand, a 30-day residency requirement to vote in state is valid, as is a one-year residency to obtain a divorce.

Note also that international travel is not a fundamental right.  It's best instead to apply rational basis scrutiny to ensure that any regulations impairing international travel are not arbitrary.

Thursday, November 3, 2016

The Right to Vote

Fundamental rights are important both in terms of the Equal Protection Clause and in terms of substantive due process.  If these rights are denied to everyone the correct analysis is substantive due process; if, on the other hand, they are denied to some individuals rather than everyone, then the proper analysis is equal protection. In either case, though, whenever a fundamental right is at issue, the proper analysis is strict scrutiny.  In other words, any government action that is going to affect a fundamental right must be necessary to serve a compelling government interest.

One such fundamental right is the right to vote, and there are a few key things to keep in mind regarding this specific fundamental right:

Residency Requirements:  Reasonable time periods for residency are valid.   Though reasonableness can be tough to evaluate, 30 days residency has been held to be valid for purposes of voting.

Property Ownership:  Conditioning the right to vote on ownership of property is almost always invalid. One exception deals with special purpose elections (voting for officials who do not exercise normal governmental authority but instead deal with matters of special interest in the community).

Poll Taxes: Poll taxes are unconstitutional.

Primary Elections: States may require early registration to vote in primaries. States cannot, however, prohibit political parties from opening their primary elections to anyone, whether or not registered with the party.

One Person One Vote: This principle applies whenever any level of government decides to select representatives to a governmental body by popular election from individual districts.  An exception, again, is for special purpose elections.

Gerrymandering: Race and other suspect classifications cannot be the predominant factor in drawing the boundaries of voting districts unless the plan satisfies strict scrutiny.

Tuesday, November 1, 2016

Helpful Link

Not too long ago the Federal Rules of Civil Procedure were updated and these updates are now tested on the MBE.  A good percentage of the testable content deals with discovery (especially that of electronically stored information), but the Amendments span a wider area than just discovery.  A very helpful summary of the information can be found at the following link:

Saturday, October 22, 2016

The Top Five: Eminent Domain and Leasehold Estates

Eminent domain questions come up with some regularity, especially so because this topic can be tested both in Property and in Constitutional Law.  A subtopic that comes up requires an understanding as to what happens to a leasehold if leased realty is taken by eminent domain.  The following are some points to remember:

(1):  If leased property is taken by eminent domain, the leasehold and the reversion merge in the taker  (often the state) and so the leasehold is terminated.

(2):  Once the leased property is taken by eminent domain there is no longer an obligation for the lessee to pay rent.

(3):  Both the lessor and lessee will be entitled to "just compensation" once the property has been taken by eminent domain.

(4):  The measure of "just compensation" provided is as follows:  The lessor is entitled to receive the value of the leased property (including the value of rent to be received) minus the value of the leasehold interest that has already been conveyed to the lessee.  The lessee is entitled to receive the value of the leasehold.

(5):  In a sense, the lessee benefits from the eminent domain as the obligation to pay rent ceases. As such, the rent that the lessee otherwise would have been required to pay is generally deducted from the value of the leasehold when determining the amount at which to compensate the lessee.

Saturday, October 15, 2016

Property Owners’ Associations and Common Interest Ownership Communities

Changes are coming to the MBE in February 2017 in the subject of Real Property.  The only guidance we have is the update provided by the NCBE, though unfortunately it's quite vague.  From now till February, though, I intend to post information and links that might clarify the areas mentioned as updated Real Property content, though necessarily there is a bit of guesswork that goes into trying to determine what exactly might be tested.

One such update states that the test will now include questions on property owners associations and common interest ownership communities.  Questions on the topic of common interest ownership communities may likely test the differences between condominiums and cooperatives, and some helpful information regarding this distinction can be found @

Regarding property owners' associations, an excellent link explaining the basics of homeowners' associations can be found @

Thursday, October 13, 2016

Preparing for the Florida Bar Exam

It's about that time to start preparing for the February bar exam.  My tips for getting started are published @