Sunday, February 19, 2017

Good Luck!

All best to those who are taking the bar exam this week!!

Posting to resume shortly to assist those who are preparing for the July exam.


Tuesday, February 14, 2017

Eliminate

"The sculptor produces the beautiful statue by chipping away such parts of the marble block as are not needed - it is a process of elimination."

Remember the above quote when taking the MBE next week. There are no tips or tricks that are going to make this test easy but in my view it is easier to spot errors in the distractors than it is to spot the one perfect answer in any given question. Every wrong answer must be wrong for a very specific reason.

In fact, if you're looking for the perfect answer you may never find it; oftentimes the correct answer on the MBE is correct only because it is better than all of the others.

And so work your way to the correct answer by eliminating all the answers that are worse than the last one remaining.  This alone will increase your score!  Confirm that you believe it to be correct, but even if you aren't certain, be confident in that answer since it remains after the rest have been eliminated.

Friday, February 10, 2017

Constitutional Law

Lots of Constitutional Law issues here for those looking for a refresher prior to the February exam.......

https://www.scribd.com/document/338916954/Washington-vs-Trump

Spendthrift Provisions (Trusts)

A common question I often get in the final weeks before the bar exam deals with study strategy.  As the exam approaches it becomes much harder to cover everything that might potentially show up on the exam.  I think it's important to be sure not to go into the test having not reviewed a subject hoping that subject won't show up.  But it is also important, especially when time is short, to focus your studying on the subjects that are most likely to be tested.

Trusts has shown up with some real frequency on the MEE.  A spendthrift clause in a trust precludes a beneficiary from voluntarily or involuntarily transferring his/her interest in the trust.  As such, creditors are precluded from reaching the trust to satisfy their claims. Importantly, note that once income has been distributed to the beneficiary, the creditors can then reach that income; it is only the income interest that the creditors cannot reach!

There are some exceptions to note:  A spendthrift clause cannot be used shield the beneficiary from his/her own creditors where the beneficiary is also the settlor.  In other words, a settlor cannot create a trust whereby the settlor is the beneficiary of the trust with a spendthrift clause if the purpose was merely to shield him/herself from creditors  Further, claims for support, alimony, and necessities as well as claims by the government are valid and will withstand a spendthrift provision.  Lastly, any creditor can reach a mandatory distribution of income or principal if the trustee did not make that distribution within a reasonable time.

Saturday, February 4, 2017

MEE Fast Fact: Attachment (Secured Transactions)

Not only is secured transactions a very complex subject but it is tested with some frequency on the MEE.   There's plenty to say about this subject but an initial place to begin is with the concept of attachment. A security interest will not be enforced unless it has first attached.  Essentially, this means that the secured party will have no rights against the debtor unless there has been an attachment of a security interest.  And attachment requires the following:

(1): The parties (the secured party and the debtor) must agree to create a security interest.  Evidence of this agreement can be accomplished in a few ways, one of which is the creditor taking possession of the collateral (personal property of the debtor).  In addition, the interest can be evidenced by the debtor authenticating a security agreement describing the collateral.  Finally, the agreement can be evidenced by the secured party taking control of certain types of collateral.

(2): In addition to the evidence outlined above, value must be given by the secured party to the debtor.

(3): Lastly, the debtor must have ownership rights in the property used as collateral.

If all three elements above are satisfied, a security interest has attached.  That's just the beginning, but it's a good place to start.

Tuesday, January 31, 2017

Zoning

As stated earlier on this blog, any attempt to predict exactly what will be tested in the new topics in Real Property for the February exam will inevitably contain some speculation.  That said, the NCBE has claimed that additional topics in the area of zoning will be tested and two concepts I'd think worth understanding are 'grandfather clauses' and the differences between cumulative and non-cumulative zoning. 

Grandfather Clauses: Assume that at the time you purchase property it is not subject to a certain zoning regulation, and then later the regular is implemented. When you try to sell that property will the buyer be burdened by the regulation?  A grandfather clause in a zoning ordinance is a provision in which business enterprises or class of persons are exempt from the provisions of a new rule, regulation or law.  In other words, if the use was established before the implementation of the zoning ordinance then the use will be deemed a lawful prior non-conforming use.  Generally, however, it is presumed that these non-conforming uses will eventually come to an end.  So, if owning a factory in an area that is now zoned for residential use is deemed a lawful non-conforming use, it still may be prohibited to upgrade the factory as that will indicate a lack of intent to eventually abide by the new regulations. 

Cumulative vs Non-Cumulative Zoning: Under cumulative zoning, different zones or districts are ranked in hierarchy. Districts zoned for residential uses are known as higher districts or higher zones while other districts (such as those zoned for business) are known as lower zones.  Uses allowed in higher zones are likewise allowed in lower zones, but no use will be allowed in a higher zone than the zone in which it was first listed.  In other words, a person can build a single-family residence (a high zone) in all zones but retail shops (a lower zone) will be prohibited from building in an area deemed to be a higher zone such as a residential neighborhood. 

As an alternative to cumulative zoning, some jurisdictions use non-cumulative zoning.  Also known as exclusive zoning, only authorized activities will be permitted in each district.  So, in contrast to the above, under non-cumulative zoning, a person would not be permitted to build a single family residence in an industrial district.

Monday, January 30, 2017

MEE Posts Coming Soon

These days, I tutor almost as much for the Multistate Essay Exam as I do for the Multistate Bar Exam.  As such, I'd like to start posting on the essay subjects tested on the MEE (that are not tested on the MBE) as well as continue to post on the MBE subjects.    The subjects covered in these posts will be the following:

Agency & Partnerships
Corporations & LLCs
Family Law
Conflict of Laws
Secured Transactions
Wills
Trusts

As always, I hope that you find the posts helpful in your preparation for the exam!

Monday, January 23, 2017

Use Immunity and Impeachment

Came across an interesting issue in a tutoring session that I thought worth posting about:

Assume a situation in which a witness at a grand jury proceeding refuses to answer a question by claiming the 5th Amendment privilege against self-incrimination.  Use immunity is granted and the witness then answers the questions asked.  Later when the case goes to trial, the witness states something contradictory to what was stated at the grand jury proceeding, and the prosecution wants to use the previous statement at the grand jury proceeding as a prior inconsistent statement for purposes of impeaching the witness at trial. Will the fact that the witness was granted use immunity at the grand jury proceeding prevent the prosecution from using that statement during the trial to impeach the witness?

The use immunity will not prevent the opportunity for impeachment by the prosecution. A witness who testifies under a grant of use immunity is protected against use of that testimony in any subsequent criminal trial against that witness.  But since in the above hypothetical the witness was not the defendant in the subsequent trial, use immunity will not prevent offering the statement made at the prior grand jury proceeding for the purposes of impeaching that witness at trial.


Saturday, January 21, 2017

MBE Fast Fact: Remand

There are a few posts here on the blog focusing on the ability of a defendant to remove a case to federal court if the plaintiff has chosen to bring the case in state court. And no doubt, knowing the details of removal is very important for the MBE.  There are also times when after the defendant has removed the case to federal court, the plaintiff will have the opportunity to remand the case back to state court.

In general it's important to note that the first step to get the case remanded back to state court is for the plaintiff to make a motion to have the case remanded.  A case will be remanded if there is no federal jurisdiction.  But even if there is federal jurisdiction and even if the prior removal to federal court by the defendant was entirely proper, the federal court has discretion to remand a case to state court if federal jurisdiction was based on the fact that there were federal claims at the time of removal and the only claims that remain are state claims over which there is no diversity jurisdiction.

And if the case is remanded,  the order remanding the case may require payments of costs and expenses including attorney fees incurred as a result of the removal of the case to federal court.

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 @ https://www.amazon.com/MBE-Essentials-Sean-Silverman/dp/1495948706/ref=sr_1_1?ie=UTF8&qid=1483499620&sr=8-1&keywords=mbe+essentials


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 @ 

https://www.amazon.com/MEE-Essentials-1-Sean-Silverman/dp/1523494298/ref=sr_1_2?ie=UTF8&qid=1460497554&sr=8-2&keywords=sean+silverman

and @ 

https://www.amazon.com/MEE-Essentials-2-Sean-Silverman/dp/1534639209/ref=sr_1_2?ie=UTF8&qid=1475030973&sr=8-2&keywords=mee+essentials

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

Podcast

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

http://barexamtoolbox.com/podcast-episode-52-bar-exam-tips-mastering-mbe/.

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