Sunday, May 27, 2018

Essay Writing: IRAC

Along with tutoring students for the MBE, I also work with students on essay writing. I have been a strong believer for quite some time that essay writing skills are as important as knowledge when it comes to scoring high on this part of the exam. You are already being tested on the law on the MBE; here the graders are testing something else.  And it's a skill that is very difficult to become excellent at in the short time available for preparing for a bar exam.  But you can become competent for sure and that will allow you to score many points.

For bar exam purposes I like IRAC for analyzing legal issues. It's an excellent system for analyzing issues in a short timeframe and (especially on the UBE) there isn't much time to write any individual essay.

I:  Begin with an issue statement. The issue statement should let the grader know exactly which legal issue you've spotted and intend to address with the remainder of that particular IRAC.

R: Then move on to a statement of the rule. This is where all that studying pays off because you want to be able to write a rule statement that accurately reflects the rule you've learned from your outline.  It does not need to be a direct quote from the outline, though. I often think that if a student can put into his/her own words the rule without making a misstatement of the legal principle then that indicates a good understanding. You should only write the rules that you intend to analyze in the next segment of IRAC. I don't think you'll lose points for writing rules that you won't be analyzing but you'll lose time. And when you lose time, there is a chance you will not have enough time to score other points that were available.

A: When analyzing, your entire focus should be on your rule statements. Just as it was important not to add any rules that you wouldn't later analyze, it's equally important not to analyze any rules that you didn't add above. Run through the facts and use both your rules and the facts provided by the examiners in order to draw a likely conclusion to the question you presented in your statement of the issue.

C:  Once you've analyzed the facts with the rules, you should be able to draw a likely conclusion. That conclusion might be that not enough information has been provided but often a likely conclusion can be drawn. Don't be too definite, though, unless warranted. Legal issues, especially on the bar exam, often have more than one viable side; let the graders know that you believe your analysis has led to a likely correct conclusion but, when warranted, that reasonable people might argue otherwise.

Thursday, May 17, 2018

Citizenship for Diversity Jurisdiction

Diversity jurisdiction requires that no plaintiff is a citizen of the same state as any defendant.  And so in making this determination it's first required to determine the citizenship of various parties to the lawsuit.  Things can get a bit complicated when the parties are not individuals, but remembering the following should make the determination of diversity far easier:

Individuals:  Determining the citizenship of an individual depends upon the permanent home to which that individual intends to return.  The citizenship of a child is that of the child's parents.

Corporations:  A corporation is deemed a citizen of every U.S. state and foreign country in which it is incorporated and the one U.S. state or foreign country in which it has its principal place of business.  The principal place of business is the U.S. state or foreign country from which the high-level officers direct or control the activities (often the headquarters).

Unincorporated Associations and Limited Liability Companies:  These businesses are considered to be a citizen of each state in which any member is a citizen.

Legal Representatives:  The legal representative of the estate of a decedent, an infant, or an incompetent, has the same citizenship as the decedent, infant, or incompetent.

Class Actions: Citizenship in class actions lawsuits is determined on the basis of the citizenship of the named members of the class.

Thursday, May 3, 2018

Character Evidence

Along with impeaching witnesses and hearsay evidence, character evidence ranks up there with the most troubling areas of Evidence for those preparing for the bar exam. It is simpler to understand character evidence if you distinguish the type of character evidence admissible in civil cases from the type of character evidence admissible in criminal cases.  But first there are some commonalities:

There are three methods that a person might use to offer evidence of another's character but not all three are always admissible. The three types are specific acts, opinion testimony, and reputation testimony.

Civil Cases:

The general rule here is that no form of character evidence is generally admissible in civil cases regardless of whether the offering is of a specific act, opinion, or reputation testimony.  For example if x sues y for reckless driving, it is generally not admissible for x to offer testimony that y has driven recklessly in the past if the purpose of offering such testimony is to prove that y has the character of a reckless driver. Similarly, y could not offer testimony of previous careful driving to prove that y has the character of a careful driver.  An important exception here applies to civil cases in which character is directly at issue.  For example, in a defamation case the character of plaintiff may be at issue in determining whether the statement made by defendant about plaintiff was actually false (since falsity is required for a claim of defamation). In these circumstances, character evidence is admissible.

Criminal Cases:

The defendant can offer (only by opinion or reputation testimony) evidence of the good character of defendant.  And once the defendant has chosen to do so, the prosecution may then cross examine that defense witness and may even elicit from that witness whether the witness knows about specific acts that would contradict the testimony previously offered. The prosecution, however, must limit the rebuttal to cross examination of the defendant's character witness. Extrinsic evidence to rebut the defendant's character witness is not admissible. The prosecution may also call up its own witness to testify to the defendant's bad reputation or to give an opinion about defendant's bad character once the defendant has called up its own character witness. But if the prosecution chooses this route, asking the witness about specific acts in not allowable.

Victim in a Criminal Case:

It should also be noted that except in rape cases a defendant may introduce reputation or opinion testimony of a bad character trait of the alleged victim if relevant to show the defendant's innocence.  And once this evidence has been admitted, the prosecution can 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.

Thursday, April 26, 2018


Homicide is a very important topic to know well within the larger subject of Criminal Law on the MBE.  It's not too complicated but the questions tend to be very tricky.  A good start to breaking this topic down is to understand that there are three ways to commit homicide on the MBE: murder, voluntary manslaughter, and involuntary manslaughter.

Murder: Murder is the unlawful killing of a human being with malice aforethought.  And there are four ways to satisfy the element of malice aforethought:

--Intent to kill
--intent to inflict serious bodily injury
--reckless indifference to an unjustifiable risk to human life
--intent to commit a felony.

Intent to kill is the most straightforward.  But even if x does not intend to kill y, x can be charged with murder if x intended to inflict serious injury upon y and y ended up dying.  And not even that is necessary; x can instead just act recklessly and if y dies as a result of x's recklessness that too might be murder.  Or x might be committing a felony (bank robbery, for example) and in the process might negligently kill y. That would be murder as well even though negligence doesn't rise to the level of recklessness, but only because the negligence occurred during the commission of a felony.

Voluntary Manslaughter: Voluntary manslaughter is a killing that would be murder but for the existence of adequate provocation.  Provocation is adequate if it would cause a reasonable person to lose control, if the person does in fact lose control, and if there is not sufficient time between provocation and the killing for the person to cool off.

Notice that voluntary manslaughter still requires that you analyze murder. In other words, voluntary manlaughter = murder + adequate provocation.

Involuntary Manslaughter: 

A killing is involuntary manslaughter if it was committed with criminal negligence. Some states also have a rule similar to the felony-murder rule called the misdemeanor-manslaughter rule which will allow for a charge of involuntary manslaughter if the killing occurs during the commission of a misdemeanor.

Distinguishing between involuntary manslaughter and murder can be tricky. Murder allows for recklessness while involuntary manslaughter requires criminal negligence. This is a very fine line, though recklessness requires a higher degree of fault than does negligence. With recklessness a person acts with the knowledge that what they are doing is wrong, whereas with negligence that knowledge need not be present provided that a reasonable person would have known not to act.

Thursday, April 12, 2018

Intestate Distribution

When studying the subject of Wills for the UBE you'll need to learn quite a lot about how property is distributed when there is no will directing its distribution.  This is known as intestate distribution and  there are three different methods used:

Per Stirpes: Under a per stirpes distribution, the estate is divided by the number of members of the first generation who are either alive or are survived by issue.  Each member who is alive takes their share, and the shares of deceased members drop to the next generation. The shares that drop are divided by the number of members in the next generation.

Example:  Assume that T has 5 children, A, B, C, D, and E.  Further assume that these are T's only heirs and so if alive they would each get 1/5th of T's estate. At the time that T dies, A, who had 2 children, has already died, and B, who had 1 child, has also died.  C, D, and E, each of whom has 1 child, are alive at the time of T's death.

Under a per stirpes distribution, since C, D, and E are alive, they will each take their 1/5th share. Further B's only child will take B's 1/5th share. A's 2 children will share A's 1/5th share so each will take (1/5th)/(2), or 1/10th.

Now assume that at the time T died, A, B, C, D, E have all died.  Under per stirpes, as above, the children of B, C, D, and E would each get 1/5th, and the children of A would each get (1/5th)/(2), or 1/10th.

Per Capita with Representation: This distribution is very similar to per stirpes (and is sometimes called modern per stirpes, or American per stirpes).  The difference is important, however, when as above A, B, C, D, E  have all died prior to the death of T.  Under this system of distribution, the initial division into equal shares occurs at the nearest generation of descendants which has a member living at the decedent's death.  So, if A, B, C, D, and E have all died prior to T dying then the property will be divided equally among the children of each of them.  In other words, each will get 1/6th.

Per Capita at Each Generational Level:  This is the most important one to know for purposes of the UBE since this is the system followed by the Uniform Probate Code. Under this system of distribution, the initial division of shares occurs (as with per capita at each generation) at the first generational level at which there are living takers. But here the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level.

Example:  Assume again that T has 5 children, A, B, C, D, and E. A and B are both alive at T's death.  C, who has 3 children, died prior to T dying. D, who has 2 children, died prior to T dying. And E, who has 1 child, died prior to T dying.

Under a system of per capita at each generational level, A and B will each get their 1/5th share since they are alive. Then, the shares that will be passed down by all deceased members are combined.  So, the 3/5th that remain will be combined among the 6 children of C, D, and E, and each will get (3/5th)/(6) or 1/10th each.

Friday, April 6, 2018

The Final Judgment Rule and Interlocutory Appeals

You've got to be ready for some questions about appeals on the MBE.  It shows up in a few different contexts with one context focusing on whether interlocutory orders are reviewable immediately or instead whether only final orders are reviewable. The general rule to note (sometimes referred to as the final-judgement rule) is that only final orders are reviewable, but the inquiry doesn't end there.

Certain interlocutory orders are reviewable as of right; they include injunctions, appointments of receivers, and certain admiralty, patent infringement, and property possession cases.  In addition, the Interlocutory Appeals Act allows for discretionary review when the trial judge certifies that the interlocutory order involves a controlling question of law. Review of interlocutory orders is more likely if substantial ground for difference of opinion exists, and immediate appeal from the order may materially advance the ultimate termination of the litigation. It'll also be necessary that the court of appeals agrees to allow the appeal.

Another basis for immediate appeal prior to a final order is the Collateral Order Doctrine.  For this rule to apply, the claim or issue that is the subject of the appeal must be separable from and collateral to the main suit and too important of an issue to require deferring appellate review until a final judgment on the main suit has been rendered.

A few additional points to note: an order granting or denying the certification of a class action may be reviewed at the court's discretion within 14 days after entry of the order. In addition, in rare circumstances, the final-judgement rule may be avoided through a variety of appellate writs such as mandamus (compelling a judge to act) and prohibition (prohibiting a judge from acting).

Monday, April 2, 2018

MBE Percentiles, February 2018

The Illinois Board of Bar Examiners has released the results for the February 2018 bar exam and as usual with the specific state results, national MBE percentiles have been released.

There are 175 potential raw points on the exam and the highest scaled score that one can achieve is a 200.  On this exam, a scaled score of 135 would place you in the 60th percentile of all test takers.  Just 5 more scaled points (140) would jump you up to the 71st percentile.  At the very high end, a 165 scaled score on this exam would place you in the 98th percentile of all test takers.

If you're preparing for the MBE, that 140 scaled score is an excellent goal.

The table is below:

Wednesday, March 28, 2018

MBE Fast Fact: Obscenity

"I shall not today attempt to further define the kinds of material I understand to be embraced within that shorthand description ["pornography'] and perhaps I could never succeed in intelligibly doing so. But I know it when I see it."

So said Justice Potter Stewart in a 1964 Supreme Court opinion attempting to determine whether a movie was protected speech under the First Amendment or whether it fell outside the zone of protected speech because it was obscene.

You likely won't need to define pornography on the MBE, but you will need to understand the test for obscenity since obscene speech is not protected by the First Amendment. Here's what to know:

Speech is obscene if it describes or depicts sexual conduct that taken as whole by the average person does all 3 of the following:

~ Appeals to the prurient interest in sex. A community standard will be used to determine whether this element has been satisfied.

~ Is patently offensive and an affront to contemporary community standards.

~ Lack serious literary, artistic, political, or scientific value. Notably, here rather than a community standard, a national reasonable person standard is used to determine if this element is satisfied.

Another point to note, the state may adopt a specific definition of obscenity applying to materials sold to minors even though the material might not be obscene if the intended audience were instead adults.

Tuesday, March 27, 2018

The Powers and Limitations of the President

The President of the United States as part of the executive branch of government is granted certain powers by the Constitution, but those powers are far from absolute. For purposes of the MBE it's important to understand both the powers of the President as well as the limits placed upon whoever holds the position.

The following are the key points to keep in mind:

~ The President has the power to appoint all ambassadors, other public ministers and consuls, justices of the Supreme Court, and all other officers of the United States. Congress, however, vests the appointment of "inferior officers."  It should be noted that Congress may not appoint members of a body with administrative or enforcement powers (often tested).

~ The President can remove high level executive officers (for example, members of the cabinet), and may do so at will without any interference from Congress. Congress, however, may provide limitations on the power of the President to remove all other executive appointees. If Congress itself wants to remove executive officers it may do so but only through the impeachment process.

~ The President may grant pardons for all federal offenses but not for impeachment or for civil contempt. Congress has no power to limit the pardon power of the President.

~ The President can veto an act of Congress, but that act may still become law if the veto is overridden by 2/3 vote of each house.  Importantly, the veto power only allows the President to approve or reject a bill in total; there is no right granted to cancel part of a bill and approve other parts (a line-item veto). The President has 10 days to exercise the veto power. If not exercised in that time span the bill is automatically vetoed if Congress is not in session. If Congress is in session, the bill becomes law.

~ The President may act militarily in hostilities against the United States without a formal declaration of war by Congress.  The President, however, has no power to declare war.

~The President has the power to enter into treaties with foreign nations, but such treaties require the consent of 2/3 of the Senate.  If there is a conflict between a treaty and a valid congressional act, the one that occurred most recently prevails.  A treaty, however, never prevails over the Constitution.

~The President has the power to enter into executive agreements with foreign nations, and these agreements do not require consent from the Senate.  If a state law conflicts with an executive agreement, the executive agreement prevails, but if a federal law conflicts with an executive agreement, the federal law prevails.

~ The President is given a privilege to keep certain communications secret.  But in criminal proceedings, communications involving the President will be available where a need for such information is demonstrated.

~ The President has immunity from civil damages based on any action he took within the official responsibilities of the office but there is no immunity for acts that occurred prior to taking office.

~ The President is subject to impeachment. Grounds for impeachment include treason, bribery, and high crimes and misdemeanors. A majority vote in the House is needed to invoke charges against the President, and a 2/3 vote in the Senate is necessary to convict and remove from office.

Monday, March 19, 2018

Florida Bar Exam Essentials

Working on Florida Bar Exam Essentials.  These projects take time but I hope to have at least volume 1 out (covering all Florida multiple choice subjects) prior to the July exam!

Thursday, March 15, 2018

Defective Products

There are a variety of theories upon which one might sue for products liability. Among these theories are intent, negligence, strict liability, and breach of warranty. One commonality among every theory is that there must be proof that the product sold was defective and that it was defective when it left the defendant's control.  And because this element applies to all theories of products liability, it's important to understand well the rules regarding defective products.

There are three types of defects: manufacturing defects, design defects, and inadequate warnings.

Manufacturing Defects:  These defects occur when a product emerges from manufacturing different from and more dangerous than the products that were made properly. Importantly, you should note that with manufacturing defects, it's not required that all products within a line of products suffer from the defect; instead, only certain products within the line of products suffer from the defect, and those products are more dangerous that the products that are not defective.

Design Defects:  These defects occur when all products within a line of products have dangerous propensities that render them all defective based on a design defect in the product itself.

Inadequate Warnings: Along with design defects and manufacturing defects, a product might be defective as a result of the manufacturer's failure to provide adequate warnings as to the risk involved in using the product. Be careful with this one; if the risk is apparent to reasonable users then the manufacturer is not likely to face liability for failing to warn about such apparent dangers.

Along with understanding the various defects, you should also understand how each defect is proven. For manufacturing defects, defendant will be liable if plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect. For a design defect, plaintiff must show that defendant could have made the product safer and that doing so would not have been economically or otherwise infeasible.  And for inadequate warnings it'll need to be shown that there was a lack of warning as to a non-apparent danger; for example, manufacturers are not likely to be held liable for not warning buyers about the dangers of a knife since the dangers are apparent and for the knives to perform their function requires a danger inherent to the product.

Wednesday, February 28, 2018

Florida Bar Exam Essentials

I've had quite a few requests from students for this.  Hope to get it out soon for those preparing for the Florida exam!

Saturday, February 24, 2018

Good Luck!

Best of luck to all those who are preparing for the exam next week!! Posting will resume shortly to assist those who are planning to take the test in July.

Monday, February 19, 2018

Some Advice for the Final Week

If you're studying for the February MBE or MEE, the final week is a good time to review the outlines provided by the NCBE on its website for the subjects tested on these two exams.  If you notice anything on the outline that you don't feel like you've studied enough, go back to your outlines to better understand those concepts.  If a question on the MBE pops up testing it, it'll be fresh in your mind, and if it happens to show up on an essay, you'll be glad you reviewed it!

The MBE outline is @

And the MEE outline is @

Florida has posted something similar, so if you're preparing for the Florida Bar Exam, the outlines are @  Scroll to the bottom of that page, where they are listed under "Test Specifications...."