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Friday, March 1, 2024

February 2024 Bar Exam Results

If the past is a reliable indicator, February 2024 bar exam results should begin to roll in in the final week of March. Almost all states release some data as to how the candidates in their state performed and I'll organize all that data below as it comes in.

Once scores are released, I'll post here in this post the pass percentages for each state. Listed, for comparison, will be the percentages for both February 2024 and February 2023. Also listed when available will be the number of examinees in each state who took the most recent exam. 

Saturday, February 24, 2024

Good Luck!!!

All best to those who will be taking the bar exam next week! Posting here will resume soon both for the July bar exam and for the LSAT (which will soon drop the logic games from the exam).

Wednesday, February 21, 2024

Future Interests: A Quick Review

From x to y so long as y farms the property.
x: fee simple determinable
y: possibility of reverter
From x to y but if y doesn't farm the property then x will reclaim it. x: fee simple subject to condition subsequent y: right or re-entry From x to y for life. x: reversion y: life estate From x to y for life and then to z. x: nothing y: life estate z: remainder From x to y for life and then to z for life. x: reversion y: life estate z: remainder in life estate From x to y if y farms the property and if not then to z x: nothing y: fee simple subject to an executory limitation z: shifting executory interest From x to y if y farms the property and if not then to z for z's life: x: reversion y: fee simple subject to an executory limitation z: shifting executory interest in life estate

Monday, February 19, 2024

A Hearsay Framework

You're going to see hearsay questions on the MBE next week. Few things about the test are more certain. 

Here's an approach:

1: Is there an out of court statement?
No? This is not hearsay.
Yes? Move along to step 2.

2: Is the out of court statement offered for the truth of the matter asserted?
No? This is not hearsay.
Yes? Move along to step 3.

3: Are there any hearsay exemptions to this out of court statement offered for the truth of the matter asserted?
No? Move on to step 4.
Yes? This is admissible as non-hearsay.

4: Are there any hearsay exceptions to this out of court statement offered for the truth of the matter asserted?
No? This is inadmissible hearsay.
Yes? This is hearsay but it's admissible.

Monday, February 12, 2024

Some Quick Advice

Some bar exam advice: no need to overcomplicate anything.

Issue: What question do you hope to answer in your conclusion. Make it clear for the graders so that they can give you whatever points they give for this. Rules: Don't give them rules that aren't needed to answer the question stated in the issue. Don't leave out rules that are needed. Don't over salt, don't under salt (so to speak). Analysis: It's not now the time to decide that you're going to zealously represent one of the fake characters in the hypothetical and claim that everything the other character has said is wrong. Rather, pretend like both sides are paying you and provide any reasonable arguments that they might make. This is where all those points come pouring in. A hurricane of points. Or tornado. Some weather event. Conclusion. The conclusion pretends like it's more important than it is. Don't believe it. State something, but most of the points are already gained, or already not gained, when you get to this part of the process.

Subpoenas

There's likely to be a couple points on the MBE to grab by knowing a few things about subpoenas. 

The purpose of a subpoena is to require a person to attend a trial, hearing or deposition. But the extent to which this demand is allowable has its limits. Specifically, a subpoena can demand attendance of someone if the place at where the person will be required to attend is within 100 miles of where the person resides, is employed, or regularly transacts business in person. Don't confuse this one with a similar 100 mile "bulge rule" which instead relates to service of process. 

In addition to the above, a subpoena can demand attendance if the place at where the person will be required to attend is within the state where the person resides, is employed, or regularly conducts business in person. Importantly, though, this only applies if the person is a party to the lawsuit (or a party's officer) or if the person required to attend is a non-party and would not incur substantial expense in attending. Might be noted that this additional rule for parties to the lawsuit only applies for trials or hearings; there's no need for a subpoena to compel a party to the lawsuit to attend a deposition; others rule cover that. 

In addition to requiring a person to attend a trial, hearing, or deposition, a subpoena may also require production of documents, electronically stored information, or tangible things, at a place within 100 miles of the place where the person resides, is employed, or regularly transacts business in person. A subpoena may likewise require the inspection of premises at the premises to be inspected. 

I wouldn't anticipate a lot of questions on this topic, but it's been tested in the past. And what's been tested in the past is a good indication of what might be tested in the future. 

Tuesday, February 6, 2024

The Elements of an Argument (LSAT)

Understanding the elements, or components, of an argument will take you very far on the LR section of the LSAT. In some questions, you'll be asked specifically for that. The question will ask you to identify a role that a certain statement plays within the argument. Essentially, these questions are asking you to identify the element. There are 3 important elements to always keep in mind:


Premises: Premises are statements within an argument that support a conclusion (either an intermediate conclusion or a main conclusion) but are supported by nothing. 

Support ✅

Supported 


Main Conclusions: Main conclusions are statements within an argument that are supported by other statements (premises/intermediate conclusions) but support nothing. 

Support 

Supported ✅


Intermediate Conclusions: It's helpful to think of these statements as sort of hybrids between premises and main conclusions. Intermediate conclusions are statements within an argument that support the main conclusion, and are supported by other premises. 

Support ✅

Supported ✅


Sunday, February 4, 2024

Property Classification & Equitable Division

When spouses get divorced, there are multiple approaches taken to divide their property. The approach to know best for Family Law on the UBE is equitable division of marital property. 

This approach requires two steps: first, property must be classified into marital property or separate property. Once it's been classified, the marital property is divided. Marital property is divided equitably, but separate property, generally, remains with the party who owned that property. The following is included within the classification of separate property:

~ Property owned before marriage

~ Property acquired by gift or inheritance 

~ Property acquired in exchange for other items of separate property

~ Income and appreciation of items of separate property. 

~ Awards for pain and suffering

~ Personal damages

~ Property acquired after an order of legal separation if the separation includes a final disposition of property.

Next, is to determine marital property. In a general sense, marital property is property acquired during the marriage. Some specific examples of marital property are employment benefits, stock options, and pension rights earned during the marriage even if these will not vest until after the divorce. 

Things can get a little more complicated, though. For example, if separate property is inextricably intertwined with marital property to the extent that it no longer makes sense to classify it as separate property, then it may be classified as marital property. Likewise, if separate property is improved with marital funds, that separate property, or parts of that separate property, might be re-classified as marital property. Also worth noting is that a pension plan can be both marital property and separate property. Only the portion of a pension earned during the marriage is marital property.

Once property has been classified as marital property, the next step is to equitably (though not necessarily equally) divide and distribute that marital property to the parties. Once the divorce is final, so too is this distribution; it's not modifiable. Quite a few factors are used by the court in determining how to equitably divide and distribute the marital property. Among the factors are the following:

~ The age, education, and earning capabilities of both parties

~ The duration of the marriage

~ The standard of living during the marriage 

~ The present income of both parties

~ The health of both parties

~ The assets, debts, and liabilities of both parties

~ The needs of both parties

~ Child custody provisions

~ Alimony considerations

~ The opportunities that both parties will have to acquire future income

~ The contribution that each party made to the acquisition of marital assets

~ The contribution that both parties made to the marriage (for example, as a homemaker)

~ Whether either party has dissipated marital property (in other words, an assessment of economic fault)

Knowing how to classify the property and then knowing how to distribute the property once it's been classified will put you in a good spot to earn points should these topics show up on the exam. 

Friday, January 19, 2024

Florida's Shift from Pure Comparative Negligence to Modified Comparative Negligence (Florida Bar Exam)

In general, comparative negligence should be considered in Florida whenever more than one party is responsible for an accident. Through comparative negligence, it can be determined both how much the payor pays and how much the payee receives. 

Florida was, prior to March of 2023, a pure comparative negligence state. Under a system of pure comparative negligence, individuals could, theoretically, recover compensation regardless of their own fault. At the extreme, a plaintiff could be 99% at fault and yet still recover when suing for negligence. Of course, practically, this would likely mean that plaintiff could deduct 1% from the amount that defendant could recover from plaintiff. It's still important to understand pure comparative negligence since that is the default rule on the MBE. 

But Florida made a change. Under the new modified comparative negligence system in Florida, individuals will be barred from recovering any compensation if they are more than 50% responsible for causing their own injuries. It's worth noting that this change does not apply to claims based on medical negligence (malpractice). 

It's not an insignificant difference. If, for example, plaintiff is deemed to be 45% responsible for his/her own injuries, then the the change has less effect. Under pure comparative the plaintiff could recover and the same is true under modified (since 45% is less than 50%). But if plaintiff is deemed to be, for example, 51% at fault, there is no recovery under this new modified system, even though there would have been recovery under the pure comparative negligence system. 

In short, continue to apply pure comparative negligence on the MBE unless the question specifies otherwise. But should you get a Torts essay on the Florida portion of the exam, apply the modified system of comparative negligence as described here.

Wednesday, January 3, 2024

Interrogatories

Interrogatories (Civil Procedure) is a topic on which the test writers are going to try to catch you on the nuances. There are only so many places they can go, but there are so many places they can go.

Although the parties can stipulate otherwise, unless otherwise stipulated, a party may serve on another party no more than 25 written interrogatories. Note, importantly, that interrogatories are served on parties, not non-party witnesses. 

An interrogatory may relate to any discoverable matter. It's not objectionable merely because it asks for an opinion that relates to a relevant fact, but the court may order that the interrogatory need not be answered until discovery is complete, or until there has been a pretrial conference, or etc. 

Interrogatories must be answered by either the party to whom they are directed or if that party is a public or private corporation, a partnership, or another type of business association, an officer or agent of that association. The agent or officer will furnish the requested information to the party to whom the interrogatory was directed. 

The responding party must serve its answers (or objections) within 30 days after being served with the interrogatories. Once again, this is the default, but, as is often the case, a stipulation or court order can modify the default rules. If no objection, then each interrogatory must be answered separately and fully in writing and under oath. Any grounds for objecting must be stated with specificity. Failure to object may result in waiver unless the court, for good cause, excuses that failure to object. The party answering the interrogatories must sign, and if an attorney objects to any interrogatory, that attorney must sign any objections. 

If an answer to an interrogatory may be determined by reviewing a party's business records, and if the burden of ascertaining the answer will be substantially the same for either party, the responding party may answer by specifying the record that must be reviewed in sufficient detail to enable the interrogating party to locate and identify those records as readily as could the responding party. In addition, the interrogating party must be given a reasonable opportunity to examine and audit the records and to make copies, abstracts, summaries, etc. This rather nuanced rule about business records and interrogatories has been tested in the past. 





Monday, December 18, 2023

Abnormally Dangerous Activities

When I think of Torts, I think of a spectrum of fault. On one end of the spectrum are intentional torts; these require the most amount of fault. The tort of negligence falls in the middle of the spectrum, requiring less fault than intentional torts. And then strict liability offenses fall on the opposite end: no fault is required.

Strict liability will apply to, among other things, abnormally dangerous activities (formerly referred to as ultrahazardous activities). This means that in order to prove damages when injured by another's abnormally dangerous activity, it is not required as part of that proof to show that the person engaging in that activity intended any harm. Likewise, there's no requirement to prove that the person engaged in that activity did not act as a reasonably prudent person would have acted.

Because fault is not required to prove liability here, but is required to prove liability elsewhere, it's essential to understand what is and what is not an "abnormally dangerous activity."

First, the activity deemed abnormally dangerous must pose some physical, rather than merely economic, danger to persons or property. The importance of the adjective "abnormal" cannot be overstated: the activity cannot merely pose a danger towards others: the danger has to be of such a magnitude as to be deemed abnormal.

To determine whether an activity qualifies as abnormally dangerous for application of strict liability, each of the following factors should be considered. 

~ the existence of a high degree of risk of some harm to the person, land, or chattel of others

~ the likelihood that the resulting harm will be great

~ the inability to eliminate the risk by the exercise of reasonable care

~ the extent to which the activity is not a matter of common usage

~ inappropriateness of the activity to the place where it is carried on

~ the extent to which the value of the activity is outweighed by its dangerous attributes

Though these factors are the essential component of the analysis, it's worth remembering that as with the tort of negligence, the duty to avoid causing harm is only owed to foreseeable plaintiffs. Further, the defendant's activity must be both he actual and proximate cause of plaintiff's injury. 

Although contributory negligence isn't something to consider when analyzing strict liability, the defense of assumption of risk is always worth exploring. Comparative (as opposed to contributory) negligence is a tricky one: some states have reduced plaintiff's recovery in strict liability cases where plaintiff's own careless actions were partially to blame for plaintiff's injuries. 


Friday, November 24, 2023

Alimony Updates in Florida (Florida Bar Exam)

Not long ago, Florida updated quite a lot about its alimony laws. This post will outline those updates, all of which should be applied to any Family Law essay testing alimony on the Florida bar exam. 

First, perhaps the most significant change, is that Florida eliminated permanent alimony. The other types of alimony weren't entirely eliminated, but I'll note some changes. 

There are a number of factors to consider when determining an award of alimony:

~Whether the party seeking support has a need for support and whether the party that will be providing support has the ability to pay. The burden to prove both of these considerations is on the party seeking support.

~The standard of living of both parties throughout the marriage and the anticipated needs of both parties.

~The duration of the marriage. This is an important one, especially when awarding durational alimony.

~The parties' age, physical condition, and mental condition.

~The income/resources of both parties and the income earned both from marital and non marital assets.

~The earning capacity, educational levels, and employability of both parties.

~The contribution that both parties made to the marriage including childcare, career building, etc. 

~The responsibilities that each party will have after the divorce in raising their children.

Before getting into the types of alimony, a couple of definitions are required:

Short-term marriage: a marriage that lasts less than 10 years.

Moderate-term marriage: a marriage that lasts between 10 and 20 years.

Long-term marriage: a marriage that lasts more than 20 years.

The term for each of the above begins on the date of marriage and ends on the date of filing for divorce. With the above in mind, it'll be important to understand the types of alimony available in Florida as a result of recent changes:

Bridge-the-gap alimony: This type of alimony is available to assist a party in the transition from married life to non-married life.  This type of alimony cannot exceed 2 years. 

Rehabilitative alimony: This type of alimony is intended to provide education or support so that a party can become self sufficient. This type of alimony cannot exceed 5 years.

Durational alimony: Some material changes with this one. Durational alimony is alimony that is temporary. This type of alimony may not exceed 50% of the length of a short-term marriage, 60% of the length of a moderate-term marriage, or 75% the length of a long-term marriage. Under exceptional circumstances, the length can be extended, but these percentages provide a strong default rule.

To protect an award of alimony, a court might order the person paying the award to purchase or maintain a life insurance policy or bond or to otherwise secure the payment of alimony with any other assets suitable for this purpose. The court can apportion the costs to either or both parties of maintaining a life insurance policy.

Lastly, it's important to understand how awards of alimony might be modified. The court is authorized to reduce or terminate an award of alimony when the party paying the award has reached the normal retirement age (the customary age for that party's profession), assuming that the party retires or makes a good faith attempt to retire. The court will examine the following factors to determine whether modification is appropriate:

~The age/health of the person paying the award.

~The type of work by the person paying the award.

~The customary age of retirement in the profession of the person paying the award.

~The likelihood that the person paying the award will return to work, and the motivation for retiring.

~The needs of the party receiving alimony and the ability of that party to provide for his/her own needs.

~The impact that termination or reduction of alimony would have on the party receiving it.

~The parties' assets before, during, and after the marriage, and whether waste occurred of assets received at the time of divorce. 

~The income earned by both parties during and after divorce. 

~The retirement, pension, and Social Security benefits received by the parties after the marriage.

~Whether the party paying the alimony award has complied with that obligation. 

If the person paying alimony believes that modification of the alimony award is appropriate, that party may file a Supplemental Petition for Modification six months prior to the date of retirement. 






Wednesday, November 15, 2023

States That Have Adopted The NextGen Bar Exam

This post here will be ongoing and updated as new states adopt the NextGen Bar Exam. Also listed along with the state is the date of first administration.

Arizona:
July 2027


Colorado:
July 2028


Connecticut: 
N/A


Guam: 
July 2026


Iowa:
July 2027


Kansas:
July 2028


Kentucky:
July 2027


Maryland:
July 2026


Minnesota:
July 2027


Missouri:
July 2026


Nebraska:
July 2027


New Mexico:
July 2027


Oregon:
July 2026


Utah: 
July 2028


Vermont:
July 2027


Washington:
July 2026


Wyoming:
July 2027







Sunday, November 12, 2023

The Merchant's Firm Offer Rule

The firm offer rule for merchants under the UCC is one that you need to know well. It's just the kind of issue that bar examiners love to test. And the best way to understand the rule is to contrast it with similar rules that apply under the common law of contracts.  

Generally speaking, and this applies both under the common law and the UCC, an offeror can revoke an offer any time prior to the offeree accepting that offer. It's sometimes even stated that the offeror is the "master of the offer." 

Under the common law of contracts, however, the offeree can get a bit more security by preventing the offeror from revoking even prior to acceptance by the offeree. To do so, however, requires that the offeree give consideration to the offeror in exchange for the offeror's promise not to revoke the offer for a stated period of time. This agreement not to revoke the offer is itself a contract: it's called an option contract. The most important thing to remember here is that if the question involves a service (as opposed to the sale of goods) consideration must be exchanged for an option contract to apply. 

Things change with the UCC. As with the common law, an offeree might want that extra bit of security. The offeree may not want the offeror to be the master of the offer; he may want to dictate how long that offer will remain open. Under the UCC, this is still possible, and consideration is not required. 

Specifically, in limited circumstances, the merchant's firm offer rule under the UCC replaces the rule as outlined above for service contracts. Under the merchant's firm offer rule, if a merchant (one who deals in goods of a certain kind) offers in a signed writing to buy or sell goods, and the writing gives assurances to the offeree that the offer will remain open, then the offer will remain open for the time period stated. If no time period is stated in the firm offer, then the offer will remain open for a reasonable period of time not to exceed 3 months. 

A bit to remember for the firm offer rule: 

~ no consideration required

~ must be a merchant (the offeror, not the offeree)

~ must be in writing

~ offer will remain open for the time period stated in the offer

~ if no time period is stated in the offer, the offer will stay open for a reasonable time which cannot exceed 3 months. 

I've noticed over the years a slight preference for testing rules that contrast between the common law and the UCC. This would be one of them, so it's a good idea to get it down well. 


Wednesday, October 25, 2023

Family Law Added to Next Gen Bar Exam

In a bit of Next Gen Bar Exam news, Family Law has been added to the content that will be tested on the Next Gen Bar Exam. Although states will have the option of administering this new test in July 2026, Family Law will not be tested until July 2028.

The other change noted is that that states will have the option to administer the current UBE until 2028, one year later than previously announced. 

See more @ https://www.ncbex.org/news-resources/update-nextgen-exam-content-extends-availability

Wednesday, October 18, 2023

LSAT Logic Games Will Soon Go Wherever Logic Games Go To Die

The logic games on the LSAT will stick around for about 9 more months, but after that they'll be gone forever. Plenty of details on this change, all explained here directly from LSAC:

https://www.lsac.org/blog/what-to-expect-starting-with-august-2024-lsat?fbclid=IwAR3ph3fkGyz2zmzC3YkTjCt1Qo6se_YMnuPmRt2sz0FZAsPEYi_jHvgn10I

As for how that affects this blog, not all that much. I will, however, likely focus my LSAT posts on the Logical Reasoning section and on the Reading Comprehension section since those two sections are the future of the LSAT.