Thursday, July 9, 2020

MBE Q & A

I answered some questions about preparing for the MBE and I hope the answers provide some insight! The link to the questions is @ https://www.makethisyourlasttime.com/mbe-strategies-sean-silverman/

Tuesday, July 7, 2020

Search Incident to an Arrest vs. Automobile Exception

Both a search incident to a lawful arrest and the automobile exception are exceptions to the warrant requirement. Though similar, the MBE is far more likely to test the differences.

Search Incident to an Arrest:

A valid arrest requires among other things that it is based on probable cause to believe that a law has been violated. Incident to such an arrest, the police without a warrant may search the person arrested and areas into which that person might reach either to obtain weapons or to destroy evidence. It is sometimes said that as per this exception, the police can search the "wingspan" of the arrestee. Also allowable is a "protective sweep" of the area if the police believe that accomplices may be present.

Importantly, the search must be contemporaneous in time and place with the arrest. This requirement is applied rather broadly when the arrest occurs in an automobile. The police may search the interior of an automobile even after securing a recent occupant of the automobile if the police have reason to believe that the vehicle contains evidence of the crime for which the recent occupant was arrested.

Contemporaneous with an arrest for intoxicated drivers, police may administer a warrantless breath test to determine the arrestee's alcohol level. In contrast, to conduct a blood test will require a warrant. Police officers may also examine a person's cell phone upon arrest but that examination does not extend to the data on a cell phone. To examine the data will require obtaining a warrant to do so.

Once at the police station, the police can make an inventory search of the arrestee's belongings pursuant to department procedures. Inventory searches of impounded vehicles are also proper. 

The Automobile Exception:

One important distinction between the automobile exception and the search incident to an arrest is that with the automobile exception the police generally can search more of the vehicle. Specifically, if the police have probable cause to believe that a vehicle contains evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item they have probable cause to search. If the probable cause extends only to the containers then only the containers in the vehicle may be searched. If a search is valid under the automobile exception, the police may tow the vehicle to the station and search it later. The search of the vehicle may extend to packages belonging to a passenger; the search is not limited to packages belonging to the driver.

Plain View:

One last consideration that would apply both to the search incident to an arrest and to the automobile exception is the exception to the warrant requirement called "plain view." In both instances, the police can make a warrantless seizure if they are in a place they are legally entitled to be and if they have probable cause to believe that items in their plain view of sight are evidence of a crime. 

Wednesday, July 1, 2020

Florida Exam Moved to August

I'm guessing at this point this may not come as news to many but Florida has postponed its test and it will be given online in August. In addition, the format has changed. 

There will be 100 multiple choice questions and 3 essays. No MBE on this exam. 


With no MBE, take some additional time to learn all the Florida-specific subjects but don't neglect the MBE subjects since they are still fair game on the essays (and, apparently, on the multiple choice questions). 

I'm sure more information will be available soon about all these changes. 

Thursday, June 18, 2020

Waste

A variety of waste is tested in Property questions on the MBE. Perhaps the one that is tested most often is permissive waste but three types of waste are fair game and this post will outline each of them. 

The overarching idea here is that there will be a life tenant and a future interest holder. The life tenant will be limited in how he/she can use the land because if used in certain ways the future interest holder will be harmed. So the idea is to figure out that balance. 

Affirmative Waste: This is sometimes called voluntary waste and these terms are interchangeable. Exploitation of natural resources by a life tenant is limited to only a few situations. A life tenant can exploit natural resources on the land if necessary for repair or for maintenance or if the land is only suitable for exploitation. If neither of those are true the life tenant is not out of luck provided that such exploitation is expressly or impliedly permitted by the grantor. Importantly, there is a doctrine called the 'open mines doctrine' which states that if mining was done on the land prior to the life tenant taking possession then the life tenant can continue mining. The life tenant, however, will be limited by only having the right to mine on mines that were already open when the life tenant took possession.

Permissive Waste: A life tenant is obligated to preserve the land and structures in a reasonable state of repair. Tested quite often is the idea that a life tenant must pay interest on mortgages (though the future interest holder is generally obligated to pay the principal). The life tenant must also pay ordinary taxes on the land and pay special assessments for public improvements of short duration. All of these obligations placed on the life tenant are limited to the extent of the income or profits generated from the land or the reasonable rental value of the land. In other words, if no income or profits are generated and if the land is such that the reasonable rental value of the property is very low, then the obligations placed on the life tenant to make any payments will be similarly low.  A life tenant is not obligated to insure the property for the benefit of the future interest holder and is not responsible for damages caused by a third-party tortfeasor. 

Ameliorative Waste: This is the one I found most interesting/strange when first learning it. Ameliorative waste is a change that benefits the property economically and yet at common law was still considered waste that was actionable. For MBE purposes, a life tenant may alter or demolish existing buildings if the market value of the future interests is not diminished and either the future interest holder does not object or a substantial and permanent change in the neighborhood conditions has deprived the property in its current form of reasonable productivity and usefulness. A distinction that might be worth noting is that a leasehold tenant (as opposed to a life tenant) will remain liable for all ameliorative waste even if the conditions stated here are satisfied.



Wednesday, June 17, 2020

Essay Writing Blueprint

When I work with students on essay writing, the first thing I send over to them is a blueprint for essay writing. I've included here a link to that blueprint to assist those who are struggling with organizing their thoughts when writing. The blueprint won't help to learn the law but it'll help to express the law that you've learned. 

Saturday, June 6, 2020

MBE Essentials (Evidence)

The following is a sample from the chapter on Evidence from MBE Essentials.



















































MBE Essentials contains 435 questions and answers just like those posted in the sample here.  The book covers every subject tested on the MBE and is available for immediate download here on the blog.







Tuesday, June 2, 2020

Character Evidence

There's a lot to know for Evidence on the MBE. Three areas that come up perhaps more than any others are character evidence, impeachment, and hearsay. This post will focus on the first of those three.

When I was first learning character evidence, I found it helpful to separate how the evidence might be offered in a civil case from how it might be offered in a criminal case. Unless character is directly at issue (for example, in a case involving defamation), evidence of character may not be offered by either party in a civil case to prove the conduct of a person.

Criminal cases are trickier. The prosecution can never initiate evidence of bad character of defendant merely to show that defendant is more likely to have committed the crime for which defendant has now been charged. Defendant, however, may introduce evidence of his/her own good character as a basis for proving innocence. To do so, a witness for defendant may testify as to defendant's good reputation for a pertinent character trait and may also give a personal opinion concerning that same trait or another pertinent character trait. In addition, a witness for defendant may introduce reputation or opinion evidence of a bad character trait of the alleged victim when such evidence is relevant to show defendant's innocence. This evidence of the victim's bad character, however, is not allowable in sexual assault cases except under limited circumstances.

If defendant chooses to offer evidence of his/her own good character, then defendant is said to have “opened the door.” Once defendant's witness has offered this evidence, the prosecution then may cross examine defendant's character witness regarding the basis for that testimony. Although defendant's witness was limited to reputation and opinion evidence, when cross examining that witness, evidence concerning specific instances of conduct is allowable to determine the basis of the testimony given by defendant's character witness. This is because defendant's character witness is subject to impeachment on that testimony. 

Rather than cross examining defendant's character witness, the prosecution may (in response to defendant's character witness) instead call its own character witness to testify to defendant's bad reputation or to give an opinion of defendant's character. In doing so, evidence as to specific instances of conduct is not allowable. Likewise, if defendant has offered evidence of a bad character trait of the alleged victim, the prosecution may counter with reputation or opinion evidence of the victim's good character for the same trait or the defendant's bad character for the same trait.

Notwithstanding the above rules, crimes and other acts of misconduct that defendant has engaged in are admissible for purposes other than to prove that defendant has the character of a criminal assuming that these crimes and/or acts of misconduct are relevant. For example, evidence of previous crimes or acts of misconduct might be offered to show that defendant had a motive to commit the crime for which the defendant is now charged. Or to prove intent if intent is at issue. It may also be offered to prove absence of mistake, identify, or a common plan/scheme. 

Importantly, to offer the evidence for any of these non-character purposes requires that there is sufficient evidence to support a jury finding that defendant committed the prior crimes or acts of misconduct. Also, the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice.


Tuesday, May 26, 2020

Florida Bar Exam Essentials: Partnerships

The following is a sample from the chapter on Partnerships from Florida Bar Exam Essentials:

















































Florida Bar Exam Essentials contains 1,092 questions and answers just like those posted in the sample here. The book covers every subject tested on the Florida Bar Exam and is available for immediate download here on the blog.

Friday, May 22, 2020

UBE Essentials: Art 9. (Secured Transactions)

The following is a sample from the chapter on Art. 9 (Secured Transactions) from UBE Essentials.
















































UBE Essentials contains 793 questions and answers just like those posted in the sample here. The book covers every subject tested on the UBE and is available for immediate download here on the blog.

Tuesday, May 12, 2020

Supplemental Jurisdiction

There's a lot to discuss about supplemental jurisdiction but it all begins with a determination as to whether the district court has original jurisdiction. In such instances (with some exception) the district court will likewise have jurisdiction over all claims that are so related to the claims already being heard by the district court that they form part of the same case or controversy under Article III of the U.S. Constitution. The way this is often stated is that the claim must arise from the same "common nucleus of operative fact" as a claim that properly invoked jurisdiction in the federal court.

There's an aspect of supplemental jurisdiction that comes up quite often on the MBE.  If the jurisdiction in federal court is based entirely on diversity of citizenship (as opposed to federal question jurisdiction) then the district courts will not have supplemental jurisdiction over claims by plaintiffs against persons made parties to the lawsuit under rules 14, 19, 20, or 24 or over claims by persons proposed to be joined as plaintiffs under rule 19. Likewise, supplemental jurisdiction will not apply as against those seeking to intervene as plaintiffs under rule 24. 

To clarify here, what this means is that although you should consider supplemental jurisdiction under the common nucleus test stated above, you should not consider it when a case is in federal court based solely on diversity of citizenship and when the claim offered as supplemental jurisdiction is by a plaintiff against impleaded parties (Rule 14), compulsory or permissively joined parties (Rules 19 & 20) or intervening parties parties (Rule 24). You also should not consider it when offered by persons who are to be compulsively joined as plaintiffs and by persons seeking to intervene as plaintiffs. (Rule 19 & 24)

Assume for now that supplemental jurisdiction is proper. Even so, the district courts might decline to exercise supplemental jurisdiction. This will be at the discretion of the court and the court might choose to decline for any of the following reasons: the claim raises a novel or complex issue of state law; the claim offered as supplemental jurisdiction substantially predominates over the claim or claims over which the district court has original jurisdiction; the district court has dismissed all claims over which it has original jurisdiction; or if there are other compelling reasons for declining jurisdiction. 

Wednesday, May 6, 2020

Advancements

Wills is a commonly tested essay subject on the UBE. It doesn't show up on every exam but it shows up more often than not. And the concept of "advancements" has shown up multiple times over the years. Thankfully, it's not too difficult. 

Not all Wills questions deal with wills; heirs can also inherit through intestate succession. Property will pass by intestate succession when (1): a decedent dies without having made a will; (2): a decedent's will is denied probate; or (3): a decedent's will does not dispose of all of his/her property either because a gift has failed or because the will contains no residuary clause. 

An advancement is a lifetime gift to an heir with the intent that the gift be applied against the share the heir inherits from the donor's estate. It's important not to presume that a lifetime gift is an advancement; that was true under the common law but is not true under the Uniform Probate Code. Under the Uniform Probate Code, a lifetime gift is presumptively not an advancement unless shown to be intended as such. Specifically, a gift is intended as an advancement only if it is declared as such in a contemporaneous writing by the donor or acknowledged as such in a writing by the heir.

Let's assume then that the elements above are satisfied and that a lifetime gift is deemed an advancement. Here's how the math works:

If found to be an advancement, the gift's value when given is added back into the estate for purposes of calculating intestate shares. After calculating shares, it is then subtracted from the recipient's share. 

An an example, let's assume that a donor ("D") has three children, A, B, & C. During D's lifetime, D advances $50,000 to A. All elements of a valid advancement are satisfied. D dies with an intestate estate of $250,000 with A, B, and C as his only heirs. 

The first step is to take the advancement of $50,000 and add it back into the estate. Once added back, the estate would consist of $250,000 + $50,000 = $300,000. Then calculate how much each heir would have received had there been no advancement. Here, each heir would have received 1/3 of that $300,000 or $100,000 each. But A has already received 50,000, so you should deduct that from A's $100,000 share.

As such, A will now receive $50,000, B will receive $100,000, and C will receive $100,000. 



Tuesday, May 5, 2020

July 2020 Exam (Update)

I don't know I would have predicted this one, but the NCBE has agreed to supply testing material to any jurisdiction that decides to move forward with a July exam.  Things could still change but if you're planning to take July and if your state has not yet postponed, you'll want to get started soon with preparing for the exam. 

Thursday, April 30, 2020

Default Judgments

There are more official Civil Procedure questions now available to work on when preparing for the MBE. With those questions comes a better understanding as to which areas the examiners like to focus on. Default judgments is one of those areas.

First, it's important to understand the difference between a default and a default judgment. When a party against whom a judgment for affirmative relief is sought fails to plead or otherwise defend (and that failure is shown by affidavit or otherwise), the clerk must enter a default. But entering a default does not equate to a default judgment.

Default judgements are a bit more complex. If the plaintiff's claim is for a sum certain (or a sum that can be made certain by computation) then the clerk, on the plaintiff's request, with an affidavit showing the amount due, must enter judgment for that amount as well as costs against a defendant who has been defaulted for not appearing. This only applies, however, if the defendant is neither a minor nor an incompetent person.

Not all of the elements above will always be satisfied. For example, there may not be a sum certain. The party must then apply to the court for a default judgment. In such instances, if the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice at least 7 days prior to the hearing on the default judgment. And a default judgment may be entered against a minor or an incompetent person only if represented by a guardian, conservator, or other fiduciary who has appeared.

The rules allow for relief from an entry of default and for default judgment. Relief requires a showing of good cause. "Good cause" is a rather broad term but some reasons to set aside an entry of default or a default judgment are that the default was not properly entered or that the required notice of the hearing for a default judgment was not timely provided.



Wednesday, April 22, 2020

The Parol Evidence Rule

There are few certainties on the MBE. But it's pretty close to certain you'll see one and probably more than one question in Contracts that requires an understanding of the parol evidence rule. Before getting into some of the exceptions, first the rule:

If the parties to a contract express their agreement in writing with the intent that the contract reflect the final expression of their agreement then any other written or oral statement made prior to the contract or contemporaneous with the contract will not be admissible to vary the terms of the contract. This rule does not apply to statements that are made after the contract has been created; those statement should instead be analyzed as contract modifications. Importantly, the rule as stated here applies only when the intent of the parties is that the contract reflect the final expression of their agreement. It's often said that for the rule to apply, the parties must intend that the contract is a final integration of their agreed upon terms.

An integration can be either complete or partial. If an integration is complete, the contract cannot be contradicted or supplemented with oral or written statements made prior to the contract or contemporaneous with it. But if the integration is partial, the contract cannot be contradicted with such statements but it may be supplemented with terms that are consistent with those in the contract. A merger clause is one way to indicate that the integration is intended as complete rather than partial, though a merger clause alone may not entirely answer that question.

The MBE is often a test of exceptions and there are quite a few here. Even if the parol evidence rule would generally apply to prevent the admissibility of certain statements, those statements may still be admissible if offered to prove that the contract was never formed due to formation defects (fraud, duress, mistake, illegality, etc.). In addition, if a party asserts that the contract was dependent upon an oral condition precedent, evidence of that condition precedent will be admissible even if the contract is deemed completely integrated.

Further, if there is uncertainty or ambiguity in the terms of the contract, evidence that will assist in interpreting those ambiguous terms will not be excluded by the parol evidence rule. And because consideration is such a vital component of a contract, the parol evidence rule will not bar evidence intending to prove that the consideration stated in the contract was not in fact paid.

The Restatement of Contracts provides for another exception worth noting. Sometimes called the "naturally omitted terms doctrine," it provides that evidence of terms that would naturally be omitted from the written agreement may be admissible notwithstanding the parol evidence rule. A term would naturally be omitted if it does not conflict with the contract and if it concerns a subject that similarly situated parties would not ordinarily be expected to include in the contract.

Lastly, there are a few points to note that are specific to the sale of goods. For the most part, Article 2 of the UCC follows the general rule: unless one of the above exceptions applies, parties cannot contradict a completely integrated written contract with prior or contemporaneous oral or written statements but they may supplement a partially integrated contract with the same. Article 2 also provides, though, that a written contract's terms may be explained or supplemented by evidence of course of performance, course of dealing, and usage of trade.

Thursday, April 16, 2020

NCBE Updates (July 2020)

The NBCE is noting whenever a jurisdiction makes a decision about whether to administer a bar exam this July. That updated information is found @ http://www.ncbex.org/ncbe-covid-19-updates/july-2020-bar-exam-jurisdiction-information/,

As of today, there are still some states planning on administering the July exam. But ultimately the NCBE will decide whether to provide those states with testing materials and that decision will be made on or about May 5th.

Will continue to update as we learn more about the fate of July....