Wednesday, December 5, 2018

Amendments to Pleadings

In the subject of Civil Procedure, we can't get around the fine details. And there are many that you'll need to know when answering questions about amending a pleading. Such questions are implicated when, for example, a complaint is served and then the party that filed the complaint decides an amendment is needed.

The rule here is that a pleading may be amended once within 21 days of its service.  If the pleading is one to which a responsive pleading (for example an answer to a complaint) is required, then the original pleading may be amended within 21 days after service of the responsive pleading or pre-answer motion.  After this one amendment, however, leave to amend is by consent or by leave of court which must be freely given.

And then assume a pleading is amended. The next question is whether the amended pleading will relate back to the time period of the original pleading. For purposes of statutes of limitation, an amendment to a pleading that arises from the same conduct, transaction, or occurrence that was set forth in the original pleading generally is deemed filed on the date that the original pleading was filed.  This is important since it's possible that the date of the amended pleading might occur after the expiration of the statute of limitations on the claim that is the subject of the complaint. But by relating back to a time period prior to the expiration of the statute of limitations, that is no longer an issue.

Note also that an amendment naming a new adverse party will relate back if, within the time for service of process, the new party had sufficient notice of the action to avoid prejudice and knew or should have known that but for a mistake concerning the new party's identity, the new party would have been named in the original pleading.

Saturday, November 24, 2018

UBE Essentials: Article 9

Many people find Article 9 of the UCC to be a difficult subject, perhaps the most difficult subject tested on the Uniform Bar Exam.

It is very difficult and it's a chapter in the book UBE Essentials available here on the blog.

Wednesday, November 21, 2018

Florida Bar Exam Essentials Volume 3

When Florida Bar Exam Essentials Volume 3 is released, it'll have chapters on the following subjects: Partnerships & LLCs; Corporations; Criminal Law (w/Florida distinctions); Juvenile Delinquency; Family Law; Negotiable Instruments; and Florida Professionalism.

And Volumes 1 & 2 are available now for those preparing for February!

Thursday, November 15, 2018

Formation of a Partnership

There's a lot that can be tested in Partnership law on the UBE. As an initial matter, though, you'll want to know how a partnership is formed. And to understand that, you'll need to know both what is required and also what is not required.

A partnership is formed when when two or more people associate to carry on as co-owners of a business. Interestingly, no formal agreement is required to form a partnership.  In other words, the intent to associate may be implied from conduct. Worth noting though that the Statute of Frauds will generally require a writing if the partners wish to agree to remain partners for more than a year. 

Because no formal agreement is generally required, it may be difficult to determine whether a partnership actually exists, and the courts will generally look to the intent of the parties which can be established by observing whether profits were shared. Sharing of profits raises a presumption of partnership unless the share was received as payment for a debt, services rendered, rent payments, etc.  Courts will also look to other factors such as whether property is held in joint tenancy, and whether the parties have designated themselves as partners, but none of these factors will be as dispositive as a determination that profits were shared. 

As to the required capacity, anyone who is capable of entering into a binding contract may enter into a partnership. If someone lacks such capacity, that person will be liable only to the extent of his capital contributions. Provided there are at least two others wishing to form a partnership, the partnership may still exist without that person unless steps are taken to dissolve it. 

A partnership formed to achieve an illegal purpose is void, and unless otherwise agreed upon, no one can become a partner without the express or implied consent of all other partners. 

Friday, November 9, 2018

MPRE: Lawyer Fees

Lawyers have got to get paid, and the MPRE tests quite a few rules regarding the fees that lawyers charge for their services.  Below are the important points to keep in mind heading into the test:

~ When a lawyer is agreeing on a fee with a client, the agreement should preferably be in writing and made early in the lawyer-client relationship.

~ A court will not enforce an agreement for an unreasonably high fee, but whether a fee is unreasonably high is determined by quite a few factors. Some factors to keep in mind are the following: the time and labor required; the novelty and difficulty of the legal questions; the skill required; whether the lawyer will be precluded from other work; the average charge from other lawyers in the community; the amount of money at stake in the case; the experience, reputation, and ability of the lawyer, whether the fee is fixed or contingent, etc.

~ A lawyer may require payment to be made in advance but any unearned fees must be returned if the lawyer is fired or withdraws from representation. If the advance was a true retainer, however, then it need not be returned. A lawyer may accept property in return for services provided that the property does not constitute a proprietary interest in the cause of action or the subject matter of the litigation.

~ A lawyer may permit the client to pay a fee by credit card or to finance fees by bank loan or by an interest-bearing promissory note. If the local law permits, a lawyer is not precluded from obtaining an attorney's lien to secure payment of a fee.

~ Contingent fees are permissible but not in criminal cases or in domestic relations cases when the contingency is based on the securing of a divorce or the amount of alimony or support. They are also impermissible when based on the amount of a property settlement in a domestic relations case.  Contingent fees must be reasonable in amount and must not be used if the facts of the case make it unreasonable to do so. Contingent fee agreements must be in writing signed by the client and the writing must spell out how the fee is to be calculated, the litigation and other expenses that will be deducted from the recovery, whether deductions for expenses will be made before or after the fee is calculated, and the expenses that the client will be required to pay.

~ If a lawyer receives funds out of which the lawyer's fee is to be paid and the client disputes the fee, the lawyer must retain the funds in a client trust account until the dispute is resolved.  A lawyer should not split fees with other lawyers except for other lawyers in the same firm or former lawyers of the firm (retirement agreements, etc.) Lawyers may split fees with lawyers outside the firm, however, if the total fee is reasonable, the split is in proportion to the services performed by each lawyer (or a different proportion if each lawyer assumes joint responsibility), and the client agrees in writing to the split.

~ A lawyer must not pay a referral fee to another lawyer who did not work nor assume responsibility for the case. A lawyer may, however, set up a reciprocal referral arrangement in which each lawyer agrees to refer clients to the other lawyer provided the clients referred are informed of the arrangement.

Tuesday, November 6, 2018

Exam Data

The National Conference of Bar Examiners ("NCBE") has some data on its website as to the most recent bar exams.  I'm including some here, and more can be found @

Thursday, November 1, 2018

The Ethical Duty of Confidentiality

The MPRE is just about a week away, so I thought a post on a very commonly tested area could be helpful.  The area is the duty of confidentiality and the first thing to know about this topic is that it is different than the attorney-client privilege. A full recap of the privilege is beyond the scope here but most importantly it should be noted that the attorney-client privilege is a rule of evidence law that prevents the government from compelling privileged communications between the attorney and the client. The ethical duty of confidentiality, in contrast, prevents an attorney (or someone under the attorney's supervision) from voluntarily disclosing  confidential information. It applies in quite a few contexts in which the attorney-client privilege does not apply.

Though it's important to understand when the duty of confidentiality applies, for purposes of the MPRE, it'll be even more important to understand when it does not apply. As usual, the exceptions are tested more than the rule. The following exceptions to the ethical duty of confidentiality should be known well; in general under the following circumstances the attorney may disclose confidential client information, though the attorney is not required to make such disclosure:

~ The client has given informed consent or the attorney has implied authority from the client to reveal the information.

~ Revealing the information will protect the attorney against a claim of malpractice or will allow the attorney to avoid a disciplinary violation. In addition, the attorney may reveal information if not doing so will imply complicity with the client in illegal acts.

~ Sometimes an attorney may need to disclose enough of the client's information to the extent necessary to obtain legal ethics advice. Doing so is proper.

~ An attorney may reveal a client's confidential information to the extent required by law or court order.

~ If an attorney reasonably believes the revelation of confidential information from the client will prevent reasonably certain death or substantial bodily harm, such information may be revealed.

~ If an attorney reasonably believes the revelation of confidential information from the client will prevent the client from committing a crime or fraud that is reasonably certain to result in substantial financial harm to someone, the attorney may reveal the information provided that the client is using or has used the attorney's services in the matter.

~ An attorney may disclose limited client information to detect or resolve potential conflicts of interest when the attorney changes firms, when firms merge, or when a law practice is being purchased. With this exception, it should be noted that the disclosure must be limited to the minimum necessary to detect the conflict and the disclosure should not be made if doing so might prejudice the client.

Thursday, October 25, 2018

Florida Bar Exam Essentials Volume 2 (sample)

Below is a sample from the chapter on Florida Constitutional Law from Florida Bar Exam Essentials Volume 2.  The book is available in its entirety here on the blog:

Saturday, October 20, 2018

Florida Bar Exam Essentials Volume 2

Florida Bar Exam Essentials Volume 2 can now be downloaded right here on the blog. Included in this volume are the following subjects: Federal Constitutional Law, Florida Constitutional Law, Torts (with Florida distinctions); Dependency; Trusts, Property (with Florida distinctions); and Article 9 Secured Transactions.

Thursday, October 11, 2018

An Explanation of the Erie Doctrine

The Erie Doctrine is definitely among the topics tested on the MBE that students believe to be the most difficult.  It's tough but if analyzed systematically you'll be able to answer these difficult questions correctly.

The Erie Doctrine aims to clarify whether a federal court in a case that is in federal court based on diversity of citizenship will apply its own federal law or instead apply state law to an issue in the case. A federal court in a diversity case will apply its own procedural law, but it must apply the substantive law of the state in which the court sits.

Step one in the analysis is to ask whether there is a federal law on point (for example, a Federal Rule of Civil Procedure). If there is, and provided it is valid, the federal rule should be applied. Oftentimes, the federal court will have to decide whether to apply state or federal law to a given issue, and that's where the Erie Doctrine provides some guidance.

If the issue is procedural, a judge can decide to apply federal law when determining that issue. If the issue is substantive, state substantive law rather than federal law will be used to decide the issue. It's not easy to determine whether the issue is procedural or substantive but the test to make that determination is called the outcome determinative test.  An issue is substantive rather than procedural if the issue substantially effects the outcome of the case.  The court will also balance the interests so that if the state has a great interest in having its own law applied, the issue might be deemed substantive and state law will apply. Finally, there is the goal of deterring forum shopping: if failing to apply state law would increase litigation in the federal courts, and if the increase would be due to the fact that the federal law is likely to provide a favorable judgment, the issue might be deemed substantive so that state law applies.

For purposes of the MBE, there are some issues that are clearly substantive. These include statutes of limitations, rules for tolling statutes of limitations, choice of law rules, and elements of a claim or defense. On these issues apply state law.  It's possible that a state statute or rule may contain both substantive and procedural elements; in such cases, the federal courts will apply the state law to the substantive elements, and the federal law to the procedural elements.

If it's determined that a federal court will apply state law, it will apply the substantive law that would be applied by the highest court in the state.

Thursday, October 4, 2018

Purchase Money Resulting Trusts

There are a few different types of resulting trusts that could show up in a trusts essay on the essay section of the UBE.  The one I'd most expect to see is a purchase money resulting trust.

You should consider a purchase money resulting trust whenever a person (call him "x") furnishes consideration for the acquisition of real or personal property, but with x's consent title is taken in the name of another person (call him "y"). No trust has actually been created in the traditional sense, but the idea here is to presume that if the facts are as stated above, then x is the beneficiary of a trust and that y is a trustee of a trust and is merely holding the property for the benefit of x.  For a purchase money resulting trust to be presumed, the consideration paid by x for the purchase of the property must be supplied at or before the time that y takes title to the property.

The burden will be on x to prove by clear and convincing evidence that he supplied the consideration.  Once x has met this burden, a resulting trust will be presumed. Y can then rebut by showing that no trust was intended. Y might, for example. present evidence that the payment from x was a gift or a loan to y to satisfy a debt that x owed to y.

An exception to keep in mind is where there is a close personal relationship between x and y. In that case it will be presumed that there was a gift from x to y and no trust will result. As with the above, this presumption is also rebuttable, this time by x. "Close personal relationship" can be be tough to define, but the notes indicate that a parent, grandparent or spouse would satisfy the definition, whereas an uncle, aunt, brother, sister, child, or grandchild would not.

Monday, October 1, 2018

MBE Percentiles: July 2018

Illinois has once again released some MBE percentiles and I've posted them below. Some interesting data points: a scaled 140 on this exam would place you in the 49th percentile and just 5 more scaled points to a 145 would jump you 12 percentile points to the 61st percentile. A 150 scaled score on this exam places you in the 71st percentile.

On the extremes, a 105 scaled score places you in the 1st percentile, and a 170 scaled score in the 98th percentile.

Thursday, September 27, 2018

MBE Fast Fact: American Rule vs. English Rule

It's reasonable to have not heard of the difference between the American Rule and the English rule as it relates to landlord/tenant law. I hadn't either and it doesn't show up much in the outlines. But it does show up on the MBE so it's worth noting the distinction.

The American rule states that a landlord is obligated only to deliver legal possession, and not actual possession, of a leased premises to a tenant.  So, if a tenant arrives at the start of a lease to find a previous tenant still in possession, it is the tenant who will be required to sue for eviction, and not the landlord.  Provided the landlord met all legal obligations regarding the new tenant's lease, the fact that a previous tenant has held over and remained in possession will not give the new tenant the right to cancel the lease or refuse to pay the landlord rent for the time that the new tenant is out of possession.  The American rule survives in only a few jurisdictions.

In contrast, under the English rule, if we accept the same circumstances as above, the tenant may cancel the lease, since the landlord is obligated not only to provide legal possession to the tenant, but actual possession as well.  The landlord would then have standing to sue the previous tenant who refused to vacate the property.

Tuesday, September 25, 2018

Call for Topics

Are there topics that I have not yet posted about that you'd like to see posted? Leave me a message in the form on the right side of the page and I'll post about the topics here on the blog!

Monday, September 17, 2018

Results by Law School

The results of the July 2018 Florida Bar Exam have been released and we now know which schools performed best and worst.  The top spot once again goes to FIU College of Law. Year after year they post the highest percentage of passing students. And for this exam, the school that performed worst on the exam is Nova Southeastern University.

More @

Statistics for July 2018 MBE

The national average for the July 2018 MBE was 139.5, a decrease of about 2.2 points from the July 2017 exam.  More info @