Essay Writing Advice

I always think that essay advice on the bar exam is a bit more subjective than MBE advice, so try out different advice you get from different people. Eventually, you'll hit upon the one that works best for you.

I'd say be wary of anyone who tells you that only their advice is right, and that whatever you've learned elsewhere is wrong. It doesn't seem to me to be so zero sum like that. A piece of advice I'd give (and do give to all my students) goes something like this: If the facts lay out some issue between x and y, try to avoid writing as if you've figured out the answer too quickly. For example, avoid (in the analysis) making an argument as if you're arguing in a closing argument to a jury. "x should win because..." or "y clearly has the better claim here, since..." Rather, get into the habit of: x will claim that.... on the other hand, y will claim that... Wear both hats, be a legal reporter rather than a legal advocate. Both x and y are your clients in a bar exam essay; even though one might have the better case than the other, the other has probably got something. And that "something" is likely to be on the point score sheet. When you're too quick to take a side, it's easy to get into advocate mode, and not only miss issues that would have scored you points, but possibly even try to conceal them because they don't help your case.

The Best Evidence Rule

This post will outline everything you've ever wanted to know about the Best Evidence Rule (and probably plenty that you've never wanted to know). 

The best place to start is with the rule itself: An original writing, recording, or photograph is generally required in order to prove its contents. A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or if the circumstances make it unfair to admit the duplicate.

Some definitions, therefore, are needed: 

Writing: Letters, words, numbers, or their equivalents set down in any form.

Recording: Letters, words, numbers, or their equivalents recorded in any manner.

Photograph: A photographic image or its equivalent stored in any form.

Original: An original of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by any person who executed or issued it. For electronically stored information, the original is any output readable by sight (provided it accurately refects the information). For a photograph, an original includes the negative or a print from it. 

Duplicate: A duplicate is the counterpart produced by the mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reflects the original.

Understanding the general rule is helpful, but, as anyone who has spent any time studying the MBE will realize, when there are exceptions to the general rule, those exceptions are often tested. Let's discuss some of those exceptions. 

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if all of the originals are lost or destroyed and if that is not due to an intentional act (bad faith) on the part of the proponent (the party offering the evidence). Likewise, an original is not required if the original cannot be obtained by any available judicial process. An original is likewise not required if the party against whom the original would be offered has control of the original, was at the time put on notice (by pleadings or otherwise) that the original would be a subject of proof at the trial or hearing, and fails to produce it at trial or hearing. Lastly, an original is not required if the writing, recording, or photograph is not closely related to a controlling issue. 

Sometimes, offering a large number of writings, recordings, or photographs simply might not be practical. In such cases, a summary, chart, or calculation may be used to prove the content of voluminous writings, recordings, or photographs. Even so, the proponent must make the originals (or duplicates of the originals) available for examination or copying by other parties at a reasonable time and place. 

The proponent of a writing, recording, or photograph may prove the content of that writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. Importantly, when offering the evidence in this manner, the proponent need not account for the original. 

Last bit to note is that, ordinarily, the court determines whether the proponent has fulfilled the conditions for admitting other evidence of writings, recordings, and photographs when an original is not required. In a jury trial, the jury determines whether a writing, recording, or photograph ever existed; whether one produced at trial is an original; and whether when offering evidence other than the original, that other evidence accurately reflects the content of the original. 

MBE Advice

I agree with a lot of the things that students and others say about the MBE. But one thing I tend to push back at is the oft-stated "there are usually two answers that are equally correct." What the test writers have become very good at is making it seem that that's true. But somewhere nicely hidden in the fact pattern is something, usually subtle, that makes one of those two answers that seem correct so wrong that they can't even be argued to be correct. The skill of the writers is adding that thing into the fact pattern (which is absolutely necessary, because if two answers are arguably correct the question needs to be tossed), but not adding it in a way that will tip off those taking the test. Camouflaging it. Find the golden ticket (or whatever) in the fact pattern that makes one of those seemingly correct answers not even arguably right. You'll be well on your way to mastering the test.

Common MBE Trap: Strict Liability

Questions will present in Torts where the facts will allow for strict liability. Maybe someone is selling a dangerously defective product, or is engaged in an abnormally dangerous activity, or etc.

But the facts will also tell you how careful the person acted while doing so. They used "state of the art equipment," or "took all necessary precaution" or "acted with the utmost care," or etc. Important to remember that when strict liability is at issue none of that matters. You're liable regardless of the degree of care. One way to think about this test is that if the standard of care mattered, the test writers wouldn't be so in your face about how careful the person was. They like to hide what matters and highlight what doesn't. So when you see them showing their cards, consider if they are showing you a fake deck.

Common MBE Traps: Firm Offers

You're given a fact pattern that looks like the classic firm offer under the UCC. A merchant makes an offer and, though no consideration is provided to the merchant, the merchant promises to keep the offer open. That's a valid firm offer (essentially an option contract, without the need for consideration, if certain requirements are met). Four months pass. As the test taker, you're feeling pretty good. You know the firm offer rule, and you also know that it's limited. If more than 3 months have passed, it expires. But there's a trap. Just because the firm offer has expired, doesn't mean that the offerree can no longer accept that offer if the offer has not been revoked. The expiration of the firm offer merely means that the offer is revocable, not that it was revoked. So when the offeror claims the offer has been revoked (because he's changed his mind as offeror's on the MBE tend to do) the offeror cannot use the expiration of the firm offer as the basis for revocation. If that offer was not revoked, it was open for the offerree to accept even after the expiration of the firm offer.

February 2024 Bar Exam Results

If the past is a reliable indicator, February 2024 bar exam results should begin to roll in in the final week of March. Almost all states release some data as to how the candidates in their state performed and I'll organize all that data below as it comes in.

Once scores are released, I'll post here in this post the pass percentages for each state. Listed, for comparison, will be the percentages for both February 2024 and February 2023. Also listed when available will be the number of examinees in each state who took the most recent exam. 

Alabama:

February 2024 Pass Percentage: 32%

February 2023 Pass Percentage: 31%

# of test takers: 280

Alaska: 

February 2024 Pass Percentage: 42%

February 2023 Pass Percentage: 75%

# of test takers: 45

Arizona:

February 2024 Pass Percentage: 46%

February 2023 Pass Percentage: 41%

# of test takers: 238

Arkansas:

February 2024 Pass Percentage: 50%

February 2023 Pass Percentage: 48%

# of test takers: 82

California:

February 2024 Pass Percentage: 34%

February 2023 Pass Percentage: 33%

# of test takers: 3.944

Colorado:

February 2024 Pass Percentage: 59%

February 2023 Pass Percentage: 47%

# of test takers: 254

Connecticut:

February 2024 Pass Percentage: 37%

February 2023 Pass Percentage: 35%

# of test takers: 187

Delaware:

February 2024 Pass Percentage: 47%

February 2023 Pass Percentage: N/A

# of test takers: 110

Florida:

February 2024 Pass Percentage: 41%

February 2023 Pass Percentage: 39%

# of test takers: 501

Georgia:

February 2024 Pass Percentage: 52%

February 2023 Pass Percentage: 49%

# of test takers: 238

Hawaii:

February 2024 Pass Percentage: 57%

February 2023 Pass Percentage: 54%

# of test takers: 87

Idaho:

February 2024 Pass Percentage: 54%

February 2023 Pass Percentage: 36%

# of test takers: 41

Illinois:

February 2024 Pass Percentage: 44%

February 2023 Pass Percentage: 43%

# of test takers: 738

Indiana: 

February 2024 Pass Percentage: 41%

February 2023 Pass Percentage: 50%

# of test takers: 182

Iowa:

February 2024 Pass Percentage: 53%

February 2023 Pass Percentage: 51%

# of test takers: 47

Kansas:

February 2024 Pass Percentage: 55%

February 2023 Pass Percentage: 51%

# of test takers: 60

Kentucky: 

February 2024 Pass Percentage: 46%

February 2023 Pass Percentage: 52%

# of test takers: 87

Louisiana:

February 2024 Pass Percentage: 49%

February 2023 Pass Percentage: 42%

# of test takers: 192

Maine: 

February 2024 Pass Percentage: 35%

February 2023 Pass Percentage: 36%

# of test takers: N/A

Maryland:

February 2024 Pass Percentage: 36%

February 2023 Pass Percentage: 32%

# of test takers: 377

Massachusettes:

February 2024 Pass Percentage: 49%

February 2023 Pass Percentage: 40%

# of test takers: 527

Michigan:

February 2024 Pass Percentage: 37%

February 2023 Pass Percentage: 35%

# of test takers: 343

Minnesota:

February 2024 Pass Percentage: 49%

February 2023 Pass Percentage: 45%

# of test takers: 172

Mississippi:

February 2024 Pass Percentage: 54%

February 2023 Pass Percentage: 38%

# of test takers: 54

Missouri:

February 2024 Pass Percentage: 50%

February 2023 Pass Percentage: 47%

# of test takers: 184

Montana:

February 2024 Pass Percentage: 60%

February 2023 Pass Percentage: 59%

# of test takers: 30

Nebraska: 

February 2024 Pass Percentage: 50%

February 2023 Pass Percentage: 41%

# of test takers: 50

Nevada: 

February 2024 Pass Percentage: 49%

February 2023 Pass Percentage: 53%

# of test takers: N/A

New Jersey: 

February 2024 Pass Percentage: 32%

February 2023 Pass Percentage: 33%

# of test takers: 432

New Mexico: 

February 2024 Pass Percentage: 56%

February 2023 Pass Percentage: 44%

# of test takers: 85

New York:

February 2024 Pass Percentage: 42%

February 2023 Pass Percentage: 40%

# of test takers: 3,962

North Carolina:

February 2024 Pass Percentage: 61%

February 2023 Pass Percentage: 54%

# of test takers: 28

North Dakota:

February 2024 Pass Percentage: 44%

February 2023 Pass Percentage: 43%

# of test takers: 738

Ohio:

February 2024 Pass Percentage: 49%

February 2023 Pass Percentage: 42%

# of test takers: 370

Oklahoma:

February 2024 Pass Percentage: 40%

February 2023 Pass Percentage: 37%

# of test takers: 172

Oregon:

February 2024 Pass Percentage: 50%

February 2023 Pass Percentage: 40%

# of test takers: 146

Pennsylvania:

February 2024 Pass Percentage: 48%

February 2023 Pass Percentage: 44%

# of test takers: 461

Rhode Island:

February 2024 Pass Percentage: 58%

February 2023 Pass Percentage: 44%

# of test takers: N/A

South Carolina:

February 2024 Pass Percentage: 58%

February 2023 Pass Percentage: 47%

# of test takers: 180

South Dakota: 

February 2024 Pass Percentage: 48%

February 2023 Pass Percentage: 55%

# of test takers: 27

Tennessee:

February 2024 Pass Percentage: 40%

February 2023 Pass Percentage: 36%

# of test takers: 262

Texas:

February 2024 Pass Percentage: 48%

February 2023 Pass Percentage: 45%

# of test takers: 1,120

Utah:

February 2024 Pass Percentage: 66%

February 2023 Pass Percentage: 65%

# of test takers: 92

Vermont: 

February 2024 Pass Percentage: 54%

February 2023 Pass Percentage: 66%

# of test takers: 24

Virginia:

February 2024 Pass Percentage: 66%

February 2023 Pass Percentage: 63%

# of test takers: 140

Washington: 

February 2024 Pass Percentage: 47%

February 2023 Pass Percentage: 47%

# of test takers: 304

Washington, DC: 

February 2024 Pass Percentage: 45%

February 2023 Pass Percentage: 45%

# of test takers: 667

West Virginia: 

February 2024 Pass Percentage: 45%

February 2023 Pass Percentage: 55%

# of test takers: 49

Wisconsin:

February 2024 Pass Percentage: 36%

February 2023 Pass Percentage: 42%

# of test takers: 61

Wyoming: 

February 2024 Pass Percentage: 50%

February 2023 Pass Percentage: 52%

# of test takers: 22

Good Luck!!!

All best to those who will be taking the bar exam next week! Posting here will resume soon both for the July bar exam and for the LSAT (which will soon drop the logic games from the exam).

Future Interests: A Quick Review

From x to y so long as y farms the property.
x: fee simple determinable
y: possibility of reverter

From x to y but if y doesn't farm the property then x will reclaim it. x: fee simple subject to condition subsequent y: right or re-entry From x to y for life. x: reversion y: life estate From x to y for life and then to z. x: nothing y: life estate z: remainder From x to y for life and then to z for life. x: reversion y: life estate z: remainder in life estate From x to y if y farms the property and if not then to z x: nothing y: fee simple subject to an executory limitation z: shifting executory interest From x to y if y farms the property and if not then to z for z's life: x: reversion y: fee simple subject to an executory limitation z: shifting executory interest in life estate

A Hearsay Framework

You're going to see hearsay questions on the MBE next week. Few things about the test are more certain. 

Here's an approach:

1: Is there an out of court statement?

No? This is not hearsay.

Yes? Move along to step 2.

2: Is the out of court statement offered for the truth of the matter asserted?

No? This is not hearsay.

Yes? Move along to step 3.

3: Are there any hearsay exemptions to this out of court statement offered for the truth of the matter asserted?

No? Move on to step 4.

Yes? This is admissible as non-hearsay.

4: Are there any hearsay exceptions to this out of court statement offered for the truth of the matter asserted?

No? This is inadmissible hearsay.

Yes? This is hearsay but it's admissible.

Some Quick Advice

Some bar exam advice: no need to overcomplicate anything.

Issue: What question do you hope to answer in your conclusion. Make it clear for the graders so that they can give you whatever points they give for this. Rules: Don't give them rules that aren't needed to answer the question stated in the issue. Don't leave out rules that are needed. Don't over salt, don't under salt (so to speak). Analysis: It's not now the time to decide that you're going to zealously represent one of the fake characters in the hypothetical and claim that everything the other character has said is wrong. Rather, pretend like both sides are paying you and provide any reasonable arguments that they might make. This is where all those points come pouring in. A hurricane of points. Or tornado. Some weather event. Conclusion. The conclusion pretends like it's more important than it is. Don't believe it. State something, but most of the points are already gained, or already not gained, when you get to this part of the process.

Subpoenas

There's likely to be a couple points on the MBE to grab by knowing a few things about subpoenas. 

The purpose of a subpoena is to require a person to attend a trial, hearing or deposition. But the extent to which this demand is allowable has its limits. Specifically, a subpoena can demand attendance of someone if the place at where the person will be required to attend is within 100 miles of where the person resides, is employed, or regularly transacts business in person. Don't confuse this one with a similar 100 mile "bulge rule" which instead relates to service of process. 

In addition to the above, a subpoena can demand attendance if the place at where the person will be required to attend is within the state where the person resides, is employed, or regularly conducts business in person. Importantly, though, this only applies if the person is a party to the lawsuit (or a party's officer) or if the person required to attend is a non-party and would not incur substantial expense in attending. Might be noted that this additional rule for parties to the lawsuit only applies for trials or hearings; there's no need for a subpoena to compel a party to the lawsuit to attend a deposition; others rule cover that. 

In addition to requiring a person to attend a trial, hearing, or deposition, a subpoena may also require production of documents, electronically stored information, or tangible things, at a place within 100 miles of the place where the person resides, is employed, or regularly transacts business in person. A subpoena may likewise require the inspection of premises at the premises to be inspected. 

I wouldn't anticipate a lot of questions on this topic, but it's been tested in the past. And what's been tested in the past is a good indication of what might be tested in the future. 

The Elements of an Argument (LSAT)

Understanding the elements, or components, of an argument will take you very far on the LR section of the LSAT. In some questions, you'll be asked specifically for that. The question will ask you to identify a role that a certain statement plays within the argument. Essentially, these questions are asking you to identify the element. There are 3 important elements to always keep in mind:

Premises: Premises are statements within an argument that support a conclusion (either an intermediate conclusion or a main conclusion) but are supported by nothing. 

Support ✅

Supported ❌

Main Conclusions: Main conclusions are statements within an argument that are supported by other statements (premises/intermediate conclusions) but support nothing. 

Support ❌

Supported ✅

Intermediate Conclusions: It's helpful to think of these statements as sort of hybrids between premises and main conclusions. Intermediate conclusions are statements within an argument that support the main conclusion, and are supported by other premises. 

Support ✅

Supported ✅

Property Classification & Equitable Division

When spouses get divorced, there are multiple approaches taken to divide their property. The approach to know best for Family Law on the UBE is equitable division of marital property. 

This approach requires two steps: first, property must be classified into marital property or separate property. Once it's been classified, the marital property is divided. Marital property is divided equitably, but separate property, generally, remains with the party who owned that property. The following is included within the classification of separate property:

~ Property owned before marriage

~ Property acquired by gift or inheritance 

~ Property acquired in exchange for other items of separate property

~ Income and appreciation of items of separate property. 

~ Awards for pain and suffering

~ Personal damages

~ Property acquired after an order of legal separation if the separation includes a final disposition of property.

Next, is to determine marital property. In a general sense, marital property is property acquired during the marriage. Some specific examples of marital property are employment benefits, stock options, and pension rights earned during the marriage even if these will not vest until after the divorce. 

Things can get a little more complicated, though. For example, if separate property is inextricably intertwined with marital property to the extent that it no longer makes sense to classify it as separate property, then it may be classified as marital property. Likewise, if separate property is improved with marital funds, that separate property, or parts of that separate property, might be re-classified as marital property. Also worth noting is that a pension plan can be both marital property and separate property. Only the portion of a pension earned during the marriage is marital property.

Once property has been classified as marital property, the next step is to equitably (though not necessarily equally) divide and distribute that marital property to the parties. Once the divorce is final, so too is this distribution; it's not modifiable. Quite a few factors are used by the court in determining how to equitably divide and distribute the marital property. Among the factors are the following:

~ The age, education, and earning capabilities of both parties

~ The duration of the marriage

~ The standard of living during the marriage 

~ The present income of both parties

~ The health of both parties

~ The assets, debts, and liabilities of both parties

~ The needs of both parties

~ Child custody provisions

~ Alimony considerations

~ The opportunities that both parties will have to acquire future income

~ The contribution that each party made to the acquisition of marital assets

~ The contribution that both parties made to the marriage (for example, as a homemaker)

~ Whether either party has dissipated marital property (in other words, an assessment of economic fault)

Knowing how to classify the property and then knowing how to distribute the property once it's been classified will put you in a good spot to earn points should these topics show up on the exam. 

Florida's Shift from Pure Comparative Negligence to Modified Comparative Negligence (Florida Bar Exam)

In general, comparative negligence should be considered in Florida whenever more than one party is responsible for an accident. Through comparative negligence, it can be determined both how much the payor pays and how much the payee receives. 

Florida was, prior to March of 2023, a pure comparative negligence state. Under a system of pure comparative negligence, individuals could, theoretically, recover compensation regardless of their own fault. At the extreme, a plaintiff could be 99% at fault and yet still recover when suing for negligence. Of course, practically, this would likely mean that plaintiff could deduct 1% from the amount that defendant could recover from plaintiff. It's still important to understand pure comparative negligence since that is the default rule on the MBE. 

But Florida made a change. Under the new modified comparative negligence system in Florida, individuals will be barred from recovering any compensation if they are more than 50% responsible for causing their own injuries. It's worth noting that this change does not apply to claims based on medical negligence (malpractice). 

It's not an insignificant difference. If, for example, plaintiff is deemed to be 45% responsible for his/her own injuries, then the the change has less effect. Under pure comparative the plaintiff could recover and the same is true under modified (since 45% is less than 50%). But if plaintiff is deemed to be, for example, 51% at fault, there is no recovery under this new modified system, even though there would have been recovery under the pure comparative negligence system. 

In short, continue to apply pure comparative negligence on the MBE unless the question specifies otherwise. But should you get a Torts essay on the Florida portion of the exam, apply the modified system of comparative negligence as described here.

Interrogatories

Interrogatories (Civil Procedure) is a topic on which the test writers are going to try to catch you on the nuances. There are only so many places they can go, but there are so many places they can go.

Although the parties can stipulate otherwise, unless otherwise stipulated, a party may serve on another party no more than 25 written interrogatories. Note, importantly, that interrogatories are served on parties, not non-party witnesses. 

An interrogatory may relate to any discoverable matter. It's not objectionable merely because it asks for an opinion that relates to a relevant fact, but the court may order that the interrogatory need not be answered until discovery is complete, or until there has been a pretrial conference, or etc. 

Interrogatories must be answered by either the party to whom they are directed or if that party is a public or private corporation, a partnership, or another type of business association, an officer or agent of that association. The agent or officer will furnish the requested information to the party to whom the interrogatory was directed. 

The responding party must serve its answers (or objections) within 30 days after being served with the interrogatories. Once again, this is the default, but, as is often the case, a stipulation or court order can modify the default rules. If no objection, then each interrogatory must be answered separately and fully in writing and under oath. Any grounds for objecting must be stated with specificity. Failure to object may result in waiver unless the court, for good cause, excuses that failure to object. The party answering the interrogatories must sign, and if an attorney objects to any interrogatory, that attorney must sign any objections. 

If an answer to an interrogatory may be determined by reviewing a party's business records, and if the burden of ascertaining the answer will be substantially the same for either party, the responding party may answer by specifying the record that must be reviewed in sufficient detail to enable the interrogating party to locate and identify those records as readily as could the responding party. In addition, the interrogating party must be given a reasonable opportunity to examine and audit the records and to make copies, abstracts, summaries, etc. This rather nuanced rule about business records and interrogatories has been tested in the past. 

Abnormally Dangerous Activities

When I think of Torts, I think of a spectrum of fault. On one end of the spectrum are intentional torts; these require the most amount of fault. The tort of negligence falls in the middle of the spectrum, requiring less fault than intentional torts. And then strict liability offenses fall on the opposite end: no fault is required.

Strict liability will apply to, among other things, abnormally dangerous activities (formerly referred to as ultrahazardous activities). This means that in order to prove damages when injured by another's abnormally dangerous activity, it is not required as part of that proof to show that the person engaging in that activity intended any harm. Likewise, there's no requirement to prove that the person engaged in that activity did not act as a reasonably prudent person would have acted.

Because fault is not required to prove liability here, but is required to prove liability elsewhere, it's essential to understand what is and what is not an "abnormally dangerous activity."

First, the activity deemed abnormally dangerous must pose some physical, rather than merely economic, danger to persons or property. The importance of the adjective "abnormal" cannot be overstated: the activity cannot merely pose a danger towards others: the danger has to be of such a magnitude as to be deemed abnormal.

To determine whether an activity qualifies as abnormally dangerous for application of strict liability, each of the following factors should be considered. 

~ the existence of a high degree of risk of some harm to the person, land, or chattel of others

~ the likelihood that the resulting harm will be great

~ the inability to eliminate the risk by the exercise of reasonable care

~ the extent to which the activity is not a matter of common usage

~ inappropriateness of the activity to the place where it is carried on

~ the extent to which the value of the activity is outweighed by its dangerous attributes

Though these factors are the essential component of the analysis, it's worth remembering that as with the tort of negligence, the duty to avoid causing harm is only owed to foreseeable plaintiffs. Further, the defendant's activity must be both he actual and proximate cause of plaintiff's injury. 

Although contributory negligence isn't something to consider when analyzing strict liability, the defense of assumption of risk is always worth exploring. Comparative (as opposed to contributory) negligence is a tricky one: some states have reduced plaintiff's recovery in strict liability cases where plaintiff's own careless actions were partially to blame for plaintiff's injuries.