210 additional MBE Practice Questions

The NCBE has released an additional 210 official MBE practice questions.  The bad news, no answer explanations with the questions.  The good news, *finally* some more official Civil Procedure questions to work through.

http://www.ncbex.org/news/mbe-study-aid/

Trespassers

Lots of trespassers on the MBE.  And as such there are some rules to know so that you can apply them to questions testing the many different angles that the writers of the test can choose to focus on in the questions.

In these questions the trespasser will be the plaintiff suing the landowner for damages resulting from harm caused to the trespasser. Step one is to determine whether the trespasser is discovered or undiscovered.  If the trespasser is undiscovered (or unanticipated), then the landowner has a duty to refrain from willful or wanton misconduct.  In other words, not much of a burden here on the landowner to prevent harm to those who are entering the landowner's land without consent from the landowner and without knowledge as to their entering. No amount of negligence will suffice.

On the other hand, there will be times when a landowner knows that trespassers have been on his/her land in the past and these trespassers are known as discovered trespassers.  The burden, though still rather slight, is increased here since the landowner has knowledge of the entrance.  If the landowner maintains an artificial (as opposed to natural) condition on the land and if that condition is unlikely to be noticed by a discovered trespasser (for example, if it's concealed), then the landowner must either make that condition safe or warn the trespassers of the condition but only if the condition involves a risk of death or serious bodily harm to the trespasser.  If the landowner carries on dangerous activities on the land, then the landowner should exercise reasonable care in the exercise of such activity.

Lastly, the rules change if the trespasser is a child.  A landowner should exercise ordinary care to avoid foreseeable risk of harm to children caused by dangerous conditions on the property.  Note that here a distinction is generally not made between artificial and natural conditions as it was above.  The landowner here may be liable if the plaintiff can show that there was a dangerous condition on the property that the landowner should have been aware of, the owner knew or should have known that children frequent the area, the condition on the land is likely to cause injury, and the expense of remedying the situation, on balance, would be reasonable when compared to the magnitude of the risk posed.  This specific rule as it relates to trespassing children is known as the attractive nuisance doctrine.

Legal Analysis

Most if not all people sitting for a bar exam have heard of the acronym "IRAC."  When analyzing a legal issue it's said that you should first state the issue, then state the rule that will resolve the issue, then analyze the rule, and finally draw a conclusion based on the analysis.  I highly recommend this approach for a bar exam; it's clear, and efficient.

But it's not a skill that comes easy, which is why many people struggle with bar exam essays.  Many of the available points on essays come from the analysis aspect of IRAC and to perform well at legal analysis requires lots of practice. The analogy I often use to explain how best to analyze a legal rule is to treat the rule as if it were a car engine, or a television, or a computer. Imagine that your goal was to figure out whether the piece of electronics contains all the necessary parts or if there is something missing that might prevent it from working properly. Only once you've analyzed all the parts could you be confident in drawing a conclusion as to whether the item contains all the parts required for it to work properly.

For example, let's take a simple intentional tort, battery.  A common definition that one might read for this tort is that battery is a harmful or offensive contact with the person of another without the other person's consent.  To analyze this rule you need to look at each individual part of the the rule. Break the rule up into its component parts. Was the act harmful or would it be deemed offensive by a reasonable person? Was there a contact? Was the contact with the person of another? Did the other person give consent to this contact? Was there perhaps some kind of implied consent? 

Once you've addressed all of the individual components of the rule, and only once you've addressed them, are you then prepared to conclude whether or not there has in fact been a battery.

That, in short, is legal analysis. You first take the rule apart. You then examine each component of the rule. Once you've done so, you put the rule back together and explain what you've concluded. It'll take you far on a bar exam in which the objective is to score points because the approach will allow you to analyze the rules in a way that it'll make it difficult for the grader not to award them.

An Approach to Answering MBE Questions

I wrote a post for the Bar Exam Toolbox outlining my approach to answering MBE questions.  Hope you'll find it helpful!  Read more @
https://barexamtoolbox.com/bar-exam-toolbox-blog/

MBE Percentiles (July 2017)

As they do each administration, the Illinois Bar Examiners have released nationwide MBE percentiles for the July 2017 exam.  My thoughts on the numbers:

The data we don't have is the number of points that any given raw score was scaled up to achieve any given scaled score.   Looking at the data, a 140 scaled score would place in you in the 47th percentile in July 2017. In comparison, a 140 scaled score would have placed you in the 69th percentile on the February 2017 exam.  This indicates that on average students scored higher in July 2017 than in February 2017 since the same scaled score places you in a lower percentile in July.

Some other points to note: A 145 scaled score would place you in the 58th percentile, a 150 the 68th percentile, and a 155 the 78th percentile. The 90th percentile requires somewhere between a 160-165 scaled score. The top percentile listed (99th) required a 175 scaled score and the lowest percentile (1st) was a scaled score of 105.

Shareholders' Lawsuits

Lots of people struggle with the subjects that fall under the category of "business associations."  Corporations is one of those subjects and it's tested frequently on the Multistate Essay Exam.  A large number of the questions dealing with corporations include issues regarding shareholders, and this post will address one of those issues.

Direct Actions by a Shareholder:

There are times in which a shareholder might feel that a fiduciary duty was breached by either a director or an officer of the corporation and that the shareholder is affected directly by the breach.  The shareholder (rather than the corporation itself) is affected directly if the shareholder suffers the most immediate and direct damage and if the defendant's duty of care ran directly to the shareholder rather than to the corporation. If a shareholder sues in such a situation that is known as a direct action by the shareholder, and considerations are important because in a direct action by the shareholder, recovery is for the benefit of the individual shareholder and not the corporation.

Derivative Actions by a Shareholder:

I see derivative actions tested a bit more frequently than direct actions.  In a derivative action, the shareholder is asserting the corporation's rights (rather than the rights of the individual shareholder).  Recovery here generally goes to the corporation rather than to the shareholder, and yet interestingly the corporation is still named as the defendant.  There is a process here to keep in mind if a shareholder is to bring a derivative action.

The shareholder must have been a shareholder at the time of the act or omission complained of or must have become a shareholder through transfer by operation of law from one who was a shareholder at that time. In addition, the shareholder must adequately and fairly represent the interests of the corporation.  Assuming these requirements are satisfied, the shareholder must make a written demand on the corporation to take suitable action and the derivative proceeding may not be commenced until 90 days have elapsed from the date of that demand.  The 90-day requirement will not be enforced, however, if the shareholder has been notified that the corporation has rejected the demand or if irreparable injury to the corporation would result if required to wait 90 days.

If a majority of directors (at least 2) who have no personal interest in the controversy find in good faith after reasonable inquiry that the suit is not in the best interest of the corporation, then the suit may be dismissed on motion by the corporation.  To avoid such dismissal, the shareholder will have the burden to prove that the decision was not made in good faith after reasonable inquiry.  The burden will shift to the corporation, however, if it's not true that a majority of directors had no personal interest in the controversy.  In that case, the corporation will have the burden to prove that the decision was made in good faith after reasonable inquiry.

Once the derivative action has ended, the court may order the corporation to pay the plaintiff's reasonable expenses if it finds that the action has resulted in a substantial benefit to the corporation. If, however, the court finds that the action was maintained without reasonable cause, the court may order the plaintiff to pay reasonable expenses to the defendant.

July 2017 Florida Bar Exam

Some data by school for passage rates on the July 2017 Florida Bar Exam:

Solicitation

Some of the most difficult questions within the subject of Criminal Law are found within the topic of inchoate offenses.  Within these offenses are the following crimes: solicitation, conspiracy, and attempt.

Like most aspects of Criminal Law, the elements will guide the analysis.  The following are the aspects of solicitation that often pop up in the questions and therefore should be known well:

Solicitation requires that a person incite, counsel, advise, urge, or command another to commit a crime with the intent that the person solicited commit the crime.  The fact that the person must intend that the other commit the crime makes this a specific-intent crime.  Importantly, it is not required that the person solicited actually respond affirmatively and commit the crime.  So, for example, if x commands y to commit a crime and x intends for y to actually commit that crime, the fact that y denies x's command has no bearing on the analysis as to whether x has committed the crime of solicitation; the crime is in the command itself.

It is also not a defense that the person solicited is not convicted of the offense solicited, nor is it a defense that the offense solicited could not in fact have been successful.  Withdrawal is always worth considering in Criminal Law, and with solicitation most jurisdictions have held that withdrawal is not a defense.   One important defense to note, however, is a situation in which the solicitor could not have been found guilty of the completed crime because of a legislative intent to exempt the solicitor.  For example, a minor female cannot be guilty of solicitation for the crime of statutory rape by urging an adult male to have intercourse with her because the legislative intent is to not find the minor guilty of statutory rape in such a situation once the crime is completed.

Let's assume that the person solicited actually completes the solicited crime. In such an instance both the person solicited and the solicitor can be held liable for that completed crime.  Similarly, if the person solicited commits acts which would qualify for the crime of attempt, both the person solicited and the solicitor can be liable for attempt. And finally if the person solicited agrees with the solicitor to commit a crime but then chooses not to commit it, don't forget that both the solicitor and the person solicited might be liable for conspiracy. In all of these circumstances, though, the solicitor will not be liable both for the solicitation and the completed crime.  The crime will merge with the solicitation so that the solicitor will be liable either for the solicitation or the completed crime but not for both.

***Note: Although the default rules on the MBE require a knowledge of the common law, its important to note that under the Model Penal Code one can renounce (i.e., withdraw from) the solicitation if the solicitor prevents the commission of the crime such as by persuading the person solicited not to commit the crime.

MBE Scores Slightly Up

The national average score on the July 2017 Multistate Bar Exam rose 1.4 points over the July 2016 average.
http://www.thelegalintelligencer.com/id=1202797426585/1

Automatic and Temporary Perfection of a Security Interest

To review, there are 5 ways to perfect a security interest as per the rules in Article 9 of the UCC.  The previous 2 posts have discussed 3 of those ways (filing, possession, and control), and this post will discuss the remaining 2, automatic perfection, and temporary perfection.

Automatic Perfection:  The rules you'll need to know about automatic perfection are very limited.  Only a purchase money security interest ("PMSI") in consumer goods is automatically perfected.  A seller of goods has a PMSI when the security interest is retained to secure at least part of the purchase price of the goods.  So, if a seller of consumer goods lends money to the buyer and retains a security interest to secure that loan (i.e., ensure repayment) then that security interest will be automatically perfected with no further action required to perfect it.  It's important to note that not all PMSI's are eligible for automatic perfection.  If the PMSI is in inventory or equipment, for example, then you should not apply the rule regarding automatic perfection; it should only be applied to consumer goods.  In addition, there is an exception for motor vehicles to keep in mind:  a security interest in motor vehicles can be perfected only by notation on the vehicle's certificate of title.

Temporary Perfection:  The first place to begin when discussing temporary perfection of a security interest is with proceeds.  A security interest in proceeds from original collateral is continuously perfected for 20 days from the debtor's receipt of the proceeds.  This is automatic perfection but the security interest will become unperfected after 20 days unless the statutory requirements are followed.  The security interest, however, will continue beyond the 20 days if:

(1): The security interest in the original collateral was perfected by filing a financing statement, a security interest in the type of collateral constituting the proceeds would be filed in the same place as the financing statement for the original collateral, and the proceeds were not purchased with cash proceeds of the collateral.

or

(2): The proceeds are identifiable cash proceeds.

or

(3): The security interest in the proceeds is perfected within the 20-day temporary perfection period.

In addition to proceeds, there are a few other types of security interests eligible for 20-day temporary automatic perfection.  The first deals with instruments, negotiable documents, and certificated securities.  Where new value is given under an authenticated security agreement for instruments, negotiable documents, or certificated securities, perfection is valid for 20 days after attachment; nothing further is required to perfect temporarily.

In addition, where a creditor has perfected a security interest by possession and delivers to the debtor instruments, negotiable documents, certificated securities, or goods in the possession of a bailee, perfection will continue for 20 days after which the creditor must re-perfect (since the creditor no longer has possession).

An example here might be helpful:  Assume that the creditor possesses a promissory note as collateral for a loan given by the creditor to the debtor.  The note has been perfected by possession but at some point the creditor must give the note to the debtor so that the debtor can present it for payment.  Perfection of the security interest will not be lost on that note the moment that the creditor stops possessing it, but the creditor will need to perfect (for example file or re-possess) the note within those 20 days or else lose perfection.

Perfection of a Security Interest by Possession or Control

In the last post I discussed how one might perfect a security interest by filing a security agreement.  There are 5 ways in total to perfect a security interest, and this post will be focus on 2 of the remaining 5, possession and control.

Possession:

Security interests in most types of collateral can be perfected by possession.  There are some types of collateral, however, that cannot be perfected by possession and they should be kept in mind.  The types of collateral that cannot be perfected by possession are general intangibles, non-consumer deposit accounts, non-negotiable documents, electronic chattel paper, certificate of title goods, and accounts.  In other words, to perfect a security interest in these types of collateral will require perfecting by a method other than possessing the collateral.

If perfecting by possession, the security interest will be perfected from the moment of possession and will continue as long as possession is retained.  When the collateral is being possessed by a bailee, possession will begin the moment a bailee authenticates a record acknowledging that it is holding the collateral for the benefit of the secured party.

Control:

As with possession, there are certain types of collateral that can be perfected by control, and here they are rather limited. They are non-consumer deposit accounts, electronic chattel paper, and investment property. Regarding non-consumer deposit accounts, a bank in which a non-consumer deposit account is maintained will automatically have control over the deposit account.  If the secured party is not such a bank, it may obtain control over a non-consumer deposit account by putting the deposit account in the secured party's name or by agreeing in an authenticated record with the debtor and the bank in which the deposit account is maintained that the bank will comply with the secured party's orders regarding the deposit account without requiring the debtor's consent.

As to electronic chattel paper (chattel paper stored in an electronic medium such as a computer), it is controlled when a system is put in place to show the transfer of interests in the chattel paper which reliably establishes the secured party as the assignee.

And finally, there is investment property.   One can gain control over a certificated security (such as a stock or bond represented by a certificate) by taking possession of the certificate if it is in bearer form.  If, however, the certificate is in registered form, the secured party must take possession and the certificate must be indorsed to the secured party or registered by the issuer in the name of the secured party.

If the investment property is a securities account rather than a certificated security, then one will obtain control over that account if the owner of the account instructs the securities intermediary that the secured party has the same rights in the account as the owner or if the owner instructs the intermediary that the intermediary may comply with the secured party's orders without the owner's further consent.

Perfection of a Security Interest by Filing

Once a security interest has attached, it's then important to determine whether the requirements for perfecting that security interest have been satisfied.  By perfecting the interest a party will have priority over most other third parties (though well known by anyone who has studied this subject, there are exceptions).

There are five ways to perfect a security interest. Throughout the next five posts I'll be reviewing each in detail.  If an essay question shows up on the bar exam testing secured transactions, the probability is quite high that an issue dealing with perfection will be included. 

The five methods to perfect a security interest are as follows:

(1): Filing

(2): Taking possession of the collateral

(3): Control

(4): Automatic perfection

(5): Temporary perfection

To file a security interest requires filing a financing statement which can be filed either electronically or in writing.  The financing statement must contain 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 if the financing statement covers real-property-related collateral a description of the real property, the name of the record owner, and an indication that it is to be filed in the real property records. 

A minor error in the debtor's name will not invalidate a financing statement but seriously misleading errors will. If the debtor's name becomes insufficient and therefore seriously misleading (because, for example, the debtor changes his/her name) then the financing statement will only be effective against collateral acquired by the debtor before the name became insufficient and within 4 months after.  After that point, the secured party must re-file using the debtor's correct name. 

If the filing office chooses to accept a financing statement that does not contain the debtor's address, the statement is effective despite the lack of address.  The financing statement must indicate the type of collateral covered by the statement but it may do so broadly (for example "equipment").  It may even include a "supergeneric" description such as "all assets."

The debtor must authorize the financing statement in an authenticated record either before or after it is filed.  Filing should be done centrally in the office of the secretary of state.  One exception to the place of filing deals with filing for security interests in timber to be cut, minerals and fixtures. Those interests should be filed locally in the county where a mortgage on real estate is filed. 

Filing is valid for 5 years.  A continuation statement may be filed which will extend this 5 year period for another 5 years but may only be filed within 6 moths before the lapse of the first 5 year period.  

Next up will be a post on another method for perfecting a security interest: taking control of the collateral.

And, yes, I know that is the worst cliffhanger ever. :) 

Good Luck!

I'm sure many can relate to this.  Good luck next week, and posting to resume shortly to assist those preparing for the February 2018 exam!

Service of Process (Out-of-State Defendants)

A recurring question has been coming up with my tutoring students over the last week, so I thought it a good idea to address it on the blog.  It deals with the federal rules for service of process of out-of-state defendants and the rule can definitely be a bit complex.

The rule regarding service of process to a party (an individual) served in the same state in which the court sits is straight-foward enough:  any person who is 18 years old and not a party to the action may serve process at the defendant's usual place of abode with one of suitable age and discretion who resides there.  In addition, service may be upon an authorized agent of the defendant. There are slightly different rules if dealing with an organization (for example, a corporation), a minor, etc.

But the rules change when the person to be served is outside of the state in which the federal court sits.  First look to the long-arm statute of the state in which the federal court sits. The long-arm statute might guide as to the rules regarding serving a person out of state.  In addition, there is a specific rule for serving third-party defendants (impleader, rule 14), and indispensable parties (rule 19).  The rules provide that third-party defendants or parties required to be joined may be served if served within 100 miles from the place where the action is pending.  This is sometimes referred to as the "bulge provision."

Finally, out-of-state service may be permitted if permitted by federal statute and for cases that involve a federal question (only a federal question, so this provision does not apply to cases that are in federal court based on diversity) if a defendant is served with process and is not subject to general jurisdiction in any state, provided that the defendant also has sufficient contacts with the United States and that jurisdiction is not prohibited by statute.

Worth keeping in mind as we approach the July exam.....

One Week Left

https://giphy.com/gifs/seinfeld-finish-line-BDagLpxFIm3SM

MBE Fast Fact: Complaints

It's important to understand the standard for complaints in a civil case.  As per the Federal Rules of Civil Procedure, a complaint must state: (1) the grounds of federal jurisdiction; (2) a short statement of the claim showing that the pleader is entitled to relief; (3) a demand for judgment for relief which may be in the alternative. Importantly, the facts stated in the complaint should support a plausible and not just possible claim.  Seems like a rather fine distinction to make, but the MBE tends to test such things.

One other point to note: if alleging fraud or mistake, then the standard stated above is slightly modified. Here, a party must state with particularity the circumstances constituting fraud or mistake.  For example, when alleging fraud, the complaint should specifically state the precise misconduct that constitutes the fraud.

Final Stretch

Final 2 weeks of prep for the July exam.

MBE Fast Fact: Diversity Jurisdiction & Limited Partnerships

When determining the citizenship of a limited partnership for purposes of diversity, be sure to assess the citizenship of all partners, general and limited.  For example, assume the plaintiff is suing a limited partnership in federal court on a state-law claim. Plaintiff is from state A, 4 general partners are from state B, and 3 limited partners are from state A.  Because there are limited partners who are citizens of the same state as the plaintiff, diversity is destroyed and there will be no subject matter jurisdiction over this claim in federal court.  Importantly, it's not only the citizenship of the general partners that are assessed when making this diversity determination.

Electronically Stored Information

Discovery is an area that should be known well when preparing for Civil Procedure on the MBE.  A specific sub-topic within the larger topic of discovery deals with discovery of electronically stored data.  Nothing too complicated here, but certainly worth taking the time to understand the following:

The parties in a civil case are required to preserve electronically stored data.  A party can request of the other party the form in which the electronically stored data should be produced, and the responding party must use that particular form unless it objects. If the party does object, the court will then determine if the objection is valid.  It may be the case that the requesting party does not specify the specific form in which the electronically stored data should be produced; in that case the responding party may use any form in which the information is maintained or a form that is reasonably usable by the requesting party.

Issues may arise in which one party claims that another has destroyed electronically stored information.  A party must take reasonable steps to preserve electronically stored information.  Importantly, if the party satisfies that standard of reasonableness then no sanctions may result from the destruction of the information.  In addition, if unpreserved electronically stored information can be restored, then no other remedial measures (such as sanctions) will be imposed.

If, on the other hand, the data cannot be restored and the discovering party is prejudiced by the lack or restoration the court may order remedial measures but such measures can be no greater than necessary to cure the prejudice.

Note that if the disclosing party acted with intent to deprive the discovering party of the electronically stored information, the court may take additional remedial measures such as presuming the lost information was unfavorable to the disclosing party and/or instructing the jury that it may or may not presume that the information was unfavorable to the disclosing party.  In addition, the court can dismiss the action or enter a default judgment against the party who destroyed the electronically stored data.

The 2 Components to Excelling on a Bar Exam

I tell my students all the time that there are two components to excelling on a bar exam.  The first is to know the law and the second is to know how to apply the law that you've learned.  Over time, I've come to realize that there is more likely to be a deficiency in the second component. That isn't to say that people do not go into the test not knowing the law well enough, but rather that more people go into the test understanding the law better than they understand the skills required to apply the law that they've learned.    

In addition to writing essays and having them reviewed, I highly recommend reading over as many of the model answers to previous essays as time permits.  Quite a few are provided for free at the link below and more recent essays can be purchased on the NCBE website.

http://www.ncbex.org/exams/mee/preparing/

Further, a bit of guidance is provided on the test itself as to how you should aim to style your answer. On the MEE, there will be the following instructions:

Read each fact situation very carefully and do not assume facts that are not given in the question. Do not assume that each question covers only a single area of the law; some of the questions may cover more than one of the areas you are responsible for knowing.

Demonstrate your ability to reason and analyze. Each of your answers should show an understanding of the facts, a recognition of the issues included, a knowledge of the applicable principles of law, and the reasoning by which you arrive at your conclusions. The value of your answer depends not as much upon your conclusions as upon the presence and quality of the elements mentioned above.

Clarity and conciseness are important, but make your answer complete. Do not volunteer irrelevant or immaterial information.

Answer all questions according to generally accepted fundamental legal principles unless your testing jurisdiction has instructed you to answer according to local case or statutory law. 

Alienage Jurisdiction

Questions on the MBE come up quite often testing your understanding of diversity jurisdiction.  One of the difficulties of this topic is that there seems to be an endless amount of angles to test.

Here's one more:

As a quick review, diversity jurisdiction requires diversity of citizenship in which the dispute involves citizens of different states within the United States.  No plaintiff can be a citizen of the same state as any defendant or diversity will be destroyed and jurisdiction in the federal court will be improper unless there is another basis for claiming that subject matter jurisdiction is proper (such as federal question jurisdiction.)

A lesser known rule allows for subject matter jurisdiction over alienage cases in which the dispute is between a citizen of a U.S. state and a citizen of a foreign country. Importantly, this basis for jurisdiction will not apply if the citizen of the foreign country (an "alien") has been admitted to the United States for permanent residence and is domiciled in the same state as the U.S. citizen. In other words, when such occurs, diversity is destroyed just as it would be if the case involved a plaintiff and defendant, both of whom were citizens of the same U.S. state.

It should also be noted (and this comes up in questions as well) that there is no subject matter jurisdiction over cases by an alien against an alien; there must be a citizen of a U.S state on one side of the suit to qualify for alienage jurisdiction.

Appeals: A Quick Summary

Quite a lot to know about appeals when preparing for Civil Procedure questions on the MBE. I've written a bit about this previously but this post will summarize the important points to keep in mind:

The federal courts have subject-matter jurisdiction over appeals from all final decisions of the federal district trial courts.  However, as a general matter the federal courts do not have subject-matter jurisdiction over appeals from interlocutory matters (those matters that have not reached final judgement) of the federal district trial courts.

But there are exceptions, and one important exception deals with injunctions.  The federal courts, for the most part, do have subject-matter jurisdiction over appeals from interlocutory orders that grant, deny, or modify an injunction.   And in addition to this specific rule regarding injunctions, the collateral order doctrine provides that a federal trial judge's interlocutory order is reviewable if it conclusively determines claims of right distinct from and collateral to the rights asserted in the action and would be effectively unreviewable if the litigant were required to wait for an appeal.

Regarding the scope of review by a federal court, an alleged error at trial is reviewable on appeal only if preserved on the record.  And even if an error is preserved, it may be unreviewable if a court determines that the issue preserved constitutes harmless error (an error that does not affect the substantial rights of the parties).

Finally, as to the standard of review by an appellate court, this will depend upon whether the alleged error at trial concerned an (1) interpretation of law, (2) an exercise of the court's discretion, or (3) a finding of fact.

Specifically, the appellate court will exercise de novo review of a trial court's conclusions of law. In other words, the appellate court will exercise its own judgment on decided legal issues.  If reviewing a trial court's discretionary ruling that do not implicate legal issues, an appellate court will overturn such discretion by the trial court if the appellate court determines that there has been an abuse of discretion or plain error.  And when reviewing findings of fact by the trial court, an appellate court will only overturn such factual findings if such findings were made by a court (not a jury) and if such findings are clearly erroneous.

Working Through Practice Questions

Probably the advice that I give most often to students is that when an MBE question is answered incorrectly, note the specific rule that the question was testing.  And by note I mean write it down somewhere and divide these rules by subject.  So, for example, all Property rules together, all Contracts rules together, etc.

Another way to think about this is that each question is designed to test an abstract legal concept. The MBE tests abstract legal concepts through the use of concrete fact patterns.  The fact patterns will always change but the abstract concepts will remain the same.

And so the goal is to fully understand the abstract concept that was tested in any given question.  If you answered a question incorrectly and you did so because you did not fully understand the concept that was tested in that question then the next time that concept is tested in a new fact pattern it's likely you'll answer it incorrectly again.

Essentially, learning the concept provides you with the foundation to answer correctly future questions testing that concept regardless of whatever facts are provided in a given question.

MBE Fast Fact: The Right to a Speedy Trial

Though not tested all that frequently in Criminal Procedure questions, the right to a speedy trial is tested enough that I recommend knowing a couple of key points here. This right attaches once a person has been formally accused of a crime by the government. If the right is violated, the result will be a complete dismissal of the charges against the accused. There is a balancing test that courts use to determine whether the right has been violated. Consider the following factors in any question testing the right to a speedy trial:

--The length of the delay
--The reason for the delay
--The defendant's assertion of his or her right to a speedy trial
--The prejudice to the defendant resulting from the delay.

Regarding that last factor, there are quite a few ways that defendant might be prejudiced by the delay.  Perhaps evidence is lost and the loss is caused by the delay. In addition, an undue delay might cause witnesses to be less able to recollect facts that will form the basis of testimony.  Even excess anxiety caused to the defendant resulting from the delay will suffice.

MBE Fast Fact: The Taxing Power

I remember my Constitutional Law professor in law school mentioning that Constitutional Law can be broken down into two main areas: powers and limitations. I think he had a point.

There are quite a few congressional powers and one of those powers is the power to tax.  Specifically, Congress has the power to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and general welfare. And so with this rule in mind, it follows that a congressional act purporting to be a tax will be upheld if it raises revenue or if it was intended to raise revenue as raising revenue is deemed to be providing for the common defense and general welfare.

In addition, as long as Congress has the power to regulate the activity taxed, the necessary and proper clause can form a basis for Congress to tax that activity.

So, in short, it's best to remember that if Congress has the right to regulate an activity (as per a power granted to it in the Constitution) then the tax is very likely to be upheld as per the necessary and proper clause.  But even when Congress does not have the power to regulate an activity taxed, a tax will likely be upheld if its dominant intent is to raise revenue.

MBE Percentiles (February 2017)

MBE Percentiles have been released for the February 2017 exam. The maximum scaled score on the MBE is 200 scaled points. For this exam a scaled score of 140 would place you in the 69th percentile.  Five more scaled points to a 145 is a jump of 12 percentile points to the 81st percentile.  To score in the 90th percentile would require a scaled score between 150-155.  Finally, the top percentile (99th) required a scaled score of 165.

Source of data @ https://www.ilbaradmissions.org/feb-2017-percentile-equivalent-charts

Types of Collateral

Article 9 of the UCC (Secured Transactions) is difficult.  The complexity makes it daunting in the relatively short time available for students to learn it for the bar exam. But an important first step in getting a grip on this subject is to understand the different categories of collateral that can form the basis of a security interest.  The rules throughout this subject will often refer back to these categories (for example, some rules only apply to consumer goods, a type of tangible collateral) and building this foundation by simply understanding the types of collateral can set you up to far better understand the subject as a whole.

In total there are 3 main categories with sub-categories within each one to keep in mind.  The three main categories are tangible collateral, intangible collateral, and proceeds.

I:  Tangible Collateral (often referred to as "goods"):

(1):  Consumer goods:
These are goods bought or used for personal, family, or household purposes.

(2):  Inventory:
These are goods held for sale or lease and goods consumed by a business.

(3):  Farm products:
These are goods used or produced in farming that are in the possession of or used by a farmer.

(4): Equipment:
These are goods that do not fit within any of the 3 above categories.

II:  Intangible Collateral

(1): Instruments:
Instruments include notes, drafts, and certificates of deposit.

(2):  Documents:
Documents include bills of lading and warehouse receipts.

(3)  Chattel Paper:
Chattel paper are records evidencing both a monetary obligation and a security interest in specific goods or a lease of specific goods.

(4):  Accounts:
These are rights to payment for goods, services, etc.

(5):  Deposit Accounts:
These are savings accounts, passbook accounts, etc.

(6):  Investment Property:
These include stocks, bonds, mutual funds, brokerage accounts, etc.

(7):  Commercial tort claims:
These are tort claims filed by organizations and tort claims filed by an individual that arose out of the individual's business and do not involve personal injury.

(8):  General intangibles:
These are intangibles not fitting within any of the above 7 types of intangibles.

III: Proceeds

Proceeds include whatever is received upon the sale, exchange, collection or other disposition of collateral or other proceeds.  Insurance payable by reason of loss or damage to collateral is also deemed to be proceeds unless it is payable to someone other than the debtor or secured party.

The Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA")

An area of some complexity that shows up in Family Law is jurisdiction for child custody cases.  And when I'm working with students who are preparing for the MEE, it's an area we spend some time on because it's important to know it well should it show up on the exam.  In other words, it could amount to a large percentage of the points in any given essay.

The Act to understand well in this regard is the Uniform Child Custody Jurisdiction and Enforcement Act which is far too many words and so after mentioning it once in an essay, just call it the UCCJEA.  The purpose of the Act is to avoid jurisdictional disputes with courts of other states in matters of child custody and visitation as well as promote interstate cooperation. It also aims to facilitate the interstate enforcement of custody and visitation orders.

And so a question may be raised in a fact pattern as to which state has jurisdiction to initially enter or to modify a child custody or visitation order.  First, we look to the home state of the child. A child's home state is the state in which the child lived with a parent (or a person acting as parent) for at least six consecutive months immediately before the commencement of the proceeding.  If the child is less than six months old then the home state will be the state where the child has lived since birth disregarding temporary absences.  A court in the home state of the child will have jurisdiction to enter or modify a custody or visitation order

It's possible, though, that a child had a home state (had been living in the state for at least 6 consecutive months) and within the last six months has moved out of state.  A court in the state that was recently the child's home state will have jurisdiction to enter a custody order if a parent or person acting as a parent continues to live in that state.

Further, it's also possible that no state will satisfy the home state test as stated above.  If no state has or accepts home state jurisdiction then a court will have jurisdiction to enter or modify a custody or visitation order if that court sits in a state in which the child and at least one parent (or persons acting as parents) have a significant connection and if substantial evidence concerning the child is available in that state.

When analyzing jurisdiction for these purposes, I would first look to apply the home state rules and then move on to the significant connection test if necessary.  And then note that the court that made the initial custody or visitation determination has exclusive continuing jurisdiction over the matter until neither the child nor the child's parents (or persons acting as a parent) continue to reside in the state or the child no longer has a significant connection with the state and substantial evidence relating to the matter is no longer available in the state.

Even if a court has jurisdiction as outlined above, the court may choose to decline jurisdiction if it determines that it is an inconvenient forum under the circumstances and that a court in another state is a more appropriate forum.  Finally, note that under some extreme circumstances, a court may have temporary emergency jurisdiction even if the general jurisdiction rules as outlined above are not satisfied.  This should be applied sparingly, though; a court will have temporary emergency jurisdiction if the child has been abandoned or if it is necessary in an emergency to protect the child because the child, the child's sibling(s), or the child's parent is threatened with or subjected to abuse.

Actual, Apparent, and Inherent Authority

If you happen to get a Partnerships essay on the MEE, the chances are quite high that Agency issues will be mixed within.  And a very common Agency issue deals with the authority that an agent (for example a partner in a partnership) has to act for the principal (for example, the partnership).  This post will review three types of authority that should be known well going into the exam:

Actual Authority:  Actual authority is the authority that the agent reasonably believes s/he possesses based on the principal's dealings with the agent.  This type of authority may be express or implied.  Express is pretty straight-forward; look for an agency agreement and if the authority is stated within that agreement then express authority has been granted to the agent.  Implied authority is that which the agent reasonably believes s/he has as a result of the principal's actions even if there is no express agreement stating as such.

Apparent Authority: Apparent authority arises from the reasonable beliefs of third parties.  In other words, if a principal directly or indirectly holds out another as possessing certain authority and such holding out induces reasonable reliance by another that the agent has such authority, the agent will have apparent authority to act on behalf of the principal even if as between the agent and principal the definition of actual authority (either express or implied) has not been satisfied.  One way to think about this is that the principal will be estopped from denying that the agent has authority to act for the principal if the principal has acted in a way that would lead a reasonable person to believe that such authority was in fact granted.

Inherent Authority:  Even if the agent has no actual or apparent authority, the agent might still have the inherent authority to act on behalf of the principal.  Sometimes, courts wish to protect innocent third parties rather than the principal when an agent acts on behalf of the principal.  As such, the law will hold the principal liable for the acts the agent.  A very common example of inherent authority is respondeat superior in which an employer will be held liable for the acts of an employee that occur within the scope of the employee's employment.

There is more to say on this topic for sure (for example, how authority is terminated.)  Future posts will delve deeper into this commonly tested area.

Limited Liability Companies

Limited Liability Companies ("LLC's") is a trendy topic on the MEE.  So much so that the most recent update to my book MEE Essentials will contain a more in-depth discussion of this topic.  A foundational area to understand here is the differences between member-managed LLC's and manager-manager LLC's.

Member-Managed LLC's:
With this type of management structure, each member owes to each other member as well as to the LLC duties of care and loyalty.  In addition, each member must discharge their obligations consistent with good faith and fair dealing. Most importantly to remember here is that there are obligations that members have that they do not necessarily have under other management structures such as will be listed below (under manager-managed LLC's).

Regarding the duty of loyalty, a member must account to the LLC for any benefit derived in connection with the LLC's business and must refrain from dealing adversely with the LLC (unless the transaction is deemed fair by the LLC).  Further, the members must refrain from competing with the LLC's business.  These acts, however, may be authorized even though they would generally violate the duty of loyalty if authorization is provided by the other members after full disclosure has been provided to the other members.

Under the duty of care, members must act with the care that a person in a like position would exercise under similar circumstances, in a manner reasonably believed to be in the best interest of the LLC.  This standard shows up elsewhere and is known as the 'business judgement rule.'

Manager-Managed LLC's:
Here, the duties of loyalty and care are different for managers and members.  Although both retain the obligation of good faith and fair dealing, only the managers are subject to the duties of loyalty and care as discussed above for member-managed LLC's.  Further, only the members may authorize or ratify an act by a manager that would otherwise violate the duty of loyalty.

Lastly, it should be noted a member-managed LLC is presumed unless the operating agreement of the LLC provides otherwise.

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.

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.

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.

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.

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!

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.

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.

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.

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.