A 4-Step Approach to Hearsay Questions

A 4-step approach to dealing with hearsay on the MBE. Hearsay is to evidence what mortgages is to property what negligence is to torts, etc. They love to test it.

Step 1: Is there an out-of-court statement? If no, it's not hearsay. If yes, move on to step 2. Step 2: Is the out of court statement offered to the court to prove the truth of the matter asserted? If no, it's not hearsay. If yes, move on to step 3. Step 3: Is the statement exempted (or excluded) from the rule against hearsay? If yes, it's non-hearsay. If no, move on to step 4. Step 4: Are there any available hearsay exceptions? If yes, it's admissible hearsay, sometimes referred to as hearsay but an exception. If no, it's inadmissible hearsay.

Employee vs Independent Contractor

Although Employment Law as a subject in itself isn't tested on the UBE, the distinction between an employee and an independent contractor may show up in the subject of Agency, which is tested with some frequency on the essays, and in Torts on both the MBE and on the essays. The distinction plays on liability. An employer is more likely to be liable for the acts of his/her employee than for the acts of an independent contractor. An initial consideration is to determine employee status. Then, scope of employment must be analyzed since an employer is liable only for acts of an employee that occur within the scope of employment. 

The general test of whether a person is an employee is whether the person's conduct in performance of a service is subject to the employer's control or right to control. A number of factors are relevant to this "control" inquiry, including the following:

~Where, when, and how the work is performed. If the person, for example, has set hours and the employer is providing all the tools necessary to do the job, that lends itself to employee status.

~Is the work temporary or ongoing. Temporary work is more likely to be done by an independent contractor, but if there is no specific endpoint, employee status is more likely.

~Does the person have complete autonomy do to the work in the manner he/she sees fit? If instead, the employer directs such things, the person is more likely an employee.

~Is the person free to accept work from other businesses? If so, probably an independent contractor, if not, probably an employee. 

~Is the employer deducting taxes from payments? Employers do so for employees, but rarely for independent contractors. 

There's also some circumstantial evidence that can help guide this decision. Employees generally have company email addresses, attend staff meetings/parties, etc. In other words, if someone is treated as if the person is an employee, it may be because the person is considered an employee by the employer. 

Determining that someone is an employee rather than an independent contractor doesn't end the inquiry for employer liability, however. An employer is liable only for the acts of employees that occur within the scope of the employee's employment. Thus, scope of employment is the next element. 

Whether an employee is acting within the scope of employment depends on whether the employee's act is of a kind that the employee was hired to perform. Also important is to analyze whether the act occurs substantially within the authorized time and space limits provided by the employer, and whether the act is motivated, at least in part, to serve the interests of the employer. 

A final note worth remembering is that the fact that the act may not have been explicitly authorized by the employer is not determinative. An unauthorized act that fits the formulation above may still be deemed an act within the scope of the employee's employment. 

Character Evidence vs. Impeachment

A foundational problem that people have with Evidence on the MBE is knowing whether the question is testing impeachment or character evidence. It’s tough to apply the correct law without knowing which law they are testing!

A solution (in those questions testing either impeachment or character): ~if a witness who is not the defendant is the focus, then the question is testing the rules of impeachment. ~if the defendant who is not a witness is the focus then the question is testing the rules of character evidence. ~if the defendant who is also a witness is the focus, things are less definite. As a witness, the defendant is subject to impeachment. But as the defendant, the rules of character apply. The best approach (this actually *always applies in Evidence) is to determine the reason why the evidence is offered. The reasons for impeaching a witness, and the reasons for excluding character evidence, sit on very different policies.

MBE Trap: Voluntary Manslaughter

Probably the easiest way to understand voluntary manslaughter (under the common law) is to think of it in the following terms: voluntary manslaughter = murder + adequate provocation. In other words, first the elements of murder must be satisfied, and then if there's adequate provocation in addition to those elements, there's a case for voluntary manslaughter. 

That brings me to the trap: the test writers will instead see if you'll make the following mistake: voluntary manslaughter = murder + provocation. 

You'll notice that the word "adequate" is missing from the trap definition. They'll set up fact patterns where a person kills another because the person is "enraged" or "extremely heated" or "very angry." But those are all subjective feelings, and the word "adequate" requires that you first determine that the provocation would also have had the same effect on a reasonable person. 

The fact that someone is enraged isn't irrelevant, but it's also not dispositive. If the person is a "hot head" such that a reasonable person would not have felt that same degree of rage, then don't be so quick to reduce the crime to voluntary manslaughter. 

It's entirely possible for someone to murder another person even if the murderer is extremely angry when committing that act. 

MBE Trap: Option Contracts

There's a trap that appears with relative frequency on the MBE involving option contracts both under the common law and under the UCC. The idea is that for some reason an attempted option never comes about. Under the common law, it's generally because consideration isn't paid for the option. Under the UCC, the time limit for exercising the option has expired. The offeror, thinking that there is no option, then goes ahead and makes that same offer to another (usually someone who is not on notice of the original offer: a "BFP").

The key to not falling for this trap is to remember the following: there is a difference between a revoked offer and a revocable offer.

So, for example, imagine a situation under the common law in which the offeror promises to hold open the offer for x amount of time provided that the offeree give the offeror $100 to hold the offer open. The money is never paid. 

All this means is that the offeror is not bound to hold the offer open: it's revocable. But the fact that the offer is revocable does not mean that the offer is revoked. The offeree, even though no consideration was paid to effectuate the option, can still accept the offer, and if the offeror makes the same offer to another without first revoking the initial offer, the original offeree can accept that initial offer and then potentially sue for breach. 

The same holds for a UCC "firm offer" which is the equivalent of an option contract under the common law. Once that time has run (3 months if not modified downward by the parties) the offer becomes revocable. But it's not revoked. The offeror still must revoke the offer even when the option fails. The key difference is that the offeror is not bound to hold that offer open if no option is involved: the offeror is free to revoke, but still must do so. 

State Taxation (Florida Bar Exam)

What could be more interesting than a discussion on taxation in the state of Florida? You don't need to answer that, but Florida Constitutional Law is a *heavily tested subject, and so if taking the Florida Bar Exam, it'll be important to know it well.

There are limits on the state's right to tax. The following taxes are all relevant for the exam:

Ad Valorem Taxes: These taxes are assessed based on the value of property. Only local governments (rather than the state itself) may levy these taxes either on real estate or on tangible personal property other than vehicles, boats, airplanes, or motor homes. The Florida Constitution places a 10 mill cap on ad valorem taxes. A mill is equal to one dollar for for 1000 dollars of property value, so that cap is 10 dollars for every 1000 dollars of property value. Note, though, that the tax can be imposed by schools, counties, and cities, so the combined cap is 30 dollars for every 1000 dollars of property value. 

There are some exemptions to ad valorem taxes. Property owned by federal, state, or county governments is immune for this type of taxation. Property leased by the government for government purposes is likewise immune. Also immune is property owned by a municipality and used exclusively for municipal or public purposes. Importantly, the exemption does not apply to property owned by a municipality and leased to a profit-making venture. 

Also, it's worth noting that there is a limit on the amount of revenue (through ad valorem taxes or other taxes) that Florida can raise in any given year. Specifically, state revenues collected during the fiscal year may not exceed the revenues collected in the prior year plus an adjustment for growth. A 2/3 supermajority vote is required in both houses of the legislature to raise or impose a new state tax or fee. 

Income & Sales Tax: Although there are corporate income taxes in Florida, there is no personal income tax. There's a 6% sales tax. Local governments can also impose sales taxes which will be in addition to any sales tax imposed by the state. 

Homestead Tax Exemption:

Homestead is defined, in part, as contiguous residential property owned by a natural person up to 1/2 acre within a municipality or 160 acres outside of a municipality. When assessing the value of Homestead for purposes of taxation, there is a tax exemption which decreases the property value by $50,000. Counties or municipalities may grant an additional $50,000 exemption for those aged 65 or older with incomes of $20,000 or less. In other words, with this exemption, the property value decreases, and with that decrease in property value, the amount taxed on the property is decreased as well. 

Fees:

Lastly, it's worth understanding the difference between taxes and fees. Fees may be assessed on users of government facilities. Local governments will also use fees (in addition to taxes) to supplement revenue. Some examples might include a fee for parking in government-owned lots or the fees to use a government-owned park. Because fees are not taxes, there is less regulation. (For example, although taxation might first require legislation, a fee will not.)

Fees, however, are not without restriction. The amount of the fee must be determined using a formula based on the per capita cost of using the facility. There should be no surplus: the fee should cover the cost of running the facility; it must not be intended to generate a profit. Further, the fee must be applied toward the facility. 

The Contracts Clause

The Contracts Clause is not the most commonly tested topic within Constitutional Law on the bar exam. But it's shown up on both the MBE and on essays, so it's a good idea to go into the test with a framework for addressing it.

The Contracts Clause, in part, provides that no state shall pass any laws impairing the obligation of contracts. In determining whether there has been such an impairment, a few questions are addressed. First, whether there is a contractual relationship at issue. If so, next determine whether a state law substantially impairs that contractual relationship. If it does, determine the state's interest in doing so.

Likely, the the part of the analysis that will require the most attention is determining whether the impairment is substantial. And in making that determination, it's helpful to understand what type of state law will not substantially impair a contract. 

A state law does not substantially impair a contract if it merely tracks the contracting parties' likely intent or expectations or if it allows for either party to easily override the statutory provision. In such instances, although there might still be some degree of impairment, the impairment is not deemed substantial. Likewise, a state statute will not substantially impair a private contract if the statute relates to an area already heavily regulated by the state. The parties could have anticipated state involvement and so the impairment will not be deemed substantial. 

In contrast, a state statute does substantially impair a private contract if the statute negates a material term of the contract or negates a term of the contract that induced a party to enter into the contract. 

Once you've determined that a state statute substantially impairs a private contract, the next element to consider is whether, notwithstanding that impairment, the state statute is an appropriate and reasonable measure to serve a significant and legitimate state interest. Yet another constitutional law test to remember, and it seems like some sort of hybrid of other tests you may have already learned. 

The purpose of requiring that a state have a significant and legitimate interest is to ensure that the statute is intended to further that interest rather than to further the interest of one of the privately contracting parties. Because a state statute intended only to favor a privately contracting party will be deemed to violate the Contracts Clause. 

An Approach to Answering MBE Questions

I chose the title of this post with intention. What I'm about to outline is *an approach to answering questions on the MBE, rather than *the approach. People find different approaches useful, and even as I teach students, we work together to figure out the best individual approach. But that said, I do have a preference, and it's outlined below:

Step 1: Read the Call of the Question:

On the MBE, for the most part though not always, the test makers will assign you one of two characters. You'll either be a judge or a lawyer. A judge question is more objectively stated; the question might read something like "who should prevail?" A lawyer question, on the other hand, requires that you take a side and determine the best argument for that side. Such a question might read "what is the best argument for the plaintiff prevailing?"

Reading the call of the question will often provide you with your role. In addition, when practicing for the MBE, at least at the beginning, students will often practice subject by subject. But, on the exam, the cards are thoroughly shuffled, such that all the subjects are jumbled throughout. The call will often clue you in to the subject you're dealing with in a specific question, and that gives you a slight advantage moving on to the facts. 

In general, not reading the call of the question and jumping right into the facts is a bit like getting into a car and driving somewhere with no destination in mind. You sort of find your way as you're traveling throughout the facts. Reading the call gives you an idea of where the question is headed. 

Step 2: Read the Facts:

This here is a rather straight forward step. Before beginning to attempt to answer the question, you've got to read the facts. This step does, however, relate back to step 1. If you've determined that your role is as a lawyer, you should read the facts with an eye towards advocating for whichever "client" they've assigned you. On the other hand, we'd hope that judges would read the facts more objectively, and you should do the same if your role is as a judge in the question. 

Step 3: Eliminate the Two Worst Answers:

After reading the facts, students often begin hunting for the correct answer. Completely natural to do so, but I recommend otherwise. On the MBE, most questions present you with two roads, so to speak, in the answer choices. One road might be the "yes" road, and one the "no" road. Or one might be the "overruled" road, and one the "sustained" road. Many other possibilities as well, but the idea is that two answers point one way, and two answers point another. After reading the facts, the hope is that you'll have an idea which road the correct answer falls within. And then you should first go down the other road. 

The reason for going down the other road is that the goal is to eliminate answers, rather than to hunt down the perfect answer. On this test, there are three answers that are so wrong that they cannot even be argued by any reasonable person as correct. If any one answer other than the correct answer could be argued as correct, then the question is flawed. And these questions are under heavy scrutiny prior to making it onto the exam. Flawed questions are very rare. 

Because three answers must be so wrong that no reasonable person can argue them as correct, it's easier to eliminate wrong answers than it is to try to find the perfect answer. In fact, the perfect answer might not be there! Instead, one answer is not definitely wrong. That's worth understanding well, and it's what makes this a challenging exam. The right answer is simply the answer that is not definitely wrong. 

Go down the road where you do not believe the correct answer resides. Read those two answers, and unless they convince you otherwise (be open to this, of course), cross them out. You'll then be down to two answers, one correct, and one incorrect. 

Step 4: Eliminate One More Answer:

This is tough, no getting around it. You'll now need to travel down the road where you believe the correct answer resides, and eliminate one of the two answers residing on that road. But even with just two answers, the idea is not to spot the right one and choose it. The logic here is the same as it was in step 3. Even with two answers remaining, one of those two answers is so wrong that no reasonable person can argue it as correct. You've got to examine the two remaining answers and find something wrong with one of them. When you've found something wrong with one of the two answers, get rid of it. Only the correct answer remains. 

Step 5: Choose the Last Answer Standing:

At this point, you've eliminate three of the four answer choices. I wouldn't recommend blindly picking the answer that's left. But it's important to understand that most of the work and strategy went into eliminating the others, so the presumption should be that the answer choice left is "correct" as that word applies on this test. In other words, don't be so quick to decide that one of the answers you've already eliminated is better. The idea here is to confirm that the answer not eliminated does not have any blatant flaws. As long as the answer is not obviously wrong, and you're confident that you've found something in each of the other answers that makes each of those other answers wrong, choose the last answer standing. That answer may not be perfect, but it's perfect enough. 

July 2024 Bar Exam Results

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 July 2024 and July 2023. Also listed when available will be the number of examinees in each state who took the most recent exam. 

Alabama:

July 2024 Pass Percentage: 57%

July 2023 Pass Percentage: 54%

# of test takers: 561

Alaska:

July 2024 Pass Percentage: 66%

July 2023 Pass Percentage: 58%

# of test takers: 66

Arizona:

July 2024 Pass Percentage: 69%

July 2023 Pass Percentage: 68%

# of test takers: 505

Arkansas:

July 2024 Pass Percentage: 72%

July 2023 Pass Percentage: 70%

# of test takers: 261

California:

July 2024 Pass Percentage: 54%

July 2023 Pass Percentage: 52%

# of test takers: 8,291

Colorado:

July 2024 Pass Percentage: 80%

July 2023 Pass Percentage: 74%

# of test takers: 744

Connecticut:

July 2024 Pass Percentage: 63%

July 2023 Pass Percentage: 56%

# of test takers: 411

Delaware:

July 2024 Pass Percentage: 67%

July 2023 Pass Percentage: 64%

# of test takers: 199

District of Columbia:

July 2024 Pass Percentage: 79%

July 2023 Pass Percentage: 78%

# of test takers: 2,520

Florida:

July 2024 Pass Percentage: 65%

July 2023 Pass Percentage: 61%

# of test takers: 2,892

Georgia:

July 2024 Pass Percentage: 70%

July 2023 Pass Percentage: 70%

# of test takers: 1,181

Hawaii:

July 2024 Pass Percentage: 68%

July 2023 Pass Percentage: 63%

# of test takers: 168

Idaho:

July 2024 Pass Percentage: 71%

July 2023 Pass Percentage: 66%

# of test takers: N/A

Illinois:

July 2024 Pass Percentage: 72%

July 2023 Pass Percentage: 70%

# of test takers: 2,276

Indiana:

July 2024 Pass Percentage: 73%

July 2023 Pass Percentage: 70%

# of test takers: 466

Iowa:

July 2024 Pass Percentage: 84%

July 2023 Pass Percentage: 86%

# of test takers: 189

Kansas:

July 2024 Pass Percentage: 76%

July 2023 Pass Percentage: 77%

# of test takers: 156

Kentucky:

July 2024 Pass Percentage: 77%

July 2023 Pass Percentage: 76%

# of test takers: 366

Louisiana:

July 2024 Pass Percentage: 66%

July 2023 Pass Percentage: 70%

# of test takers: 535

Maine:

July 2024 Pass Percentage: 73%

July 2023 Pass Percentage: 68%

# of test takers: N/A

Maryland:

July 2024 Pass Percentage: 63%

July 2023 Pass Percentage: 59%

# of test takers: 838

Massachusettes:

July 2024 Pass Percentage: 76%

July 2023 Pass Percentage: 73%

# of test takers: 1,717

Michigan:

July 2024 Pass Percentage: 64%

July 2023 Pass Percentage: 55%

# of test takers: 769

Mississippi:

July 2024 Pass Percentage: 80%

July 2023 Pass Percentage: 73%

# of test takers: 151

Missouri:

July 2024 Pass Percentage: 80%

July 2023 Pass Percentage: 81%

# of test takers: 640

Nebraska:

July 2024 Pass Percentage: 79%

July 2023 Pass Percentage: 70%

# of test takers: 229

Nevada:

July 2024 Pass Percentage: 65%

July 2023 Pass Percentage: 63%

# of test takers: 359

New Hampshire:

July 2024 Pass Percentage: 75%

July 2023 Pass Percentage: 63%

# of test takers: 115

New Jersey:

July 2024 Pass Percentage: 65%

July 2023 Pass Percentage: 61%

# of test takers: 1,038

New Mexico:

July 2024 Pass Percentage: 69%

July 2023 Pass Percentage: 71%

# of test takers: 196

New York:

July 2024 Pass Percentage: 69%

July 2023 Pass Percentage: 66%

# of test takers: 10, 392

North Carolina:

July 2024 Pass Percentage: 74%

July 2023 Pass Percentage: 69%

# of test takers: 882

North Dakota:

July 2024 Pass Percentage: 69%

July 2023 Pass Percentage: 60%

# of test takers: 68

Ohio:

July 2024 Pass Percentage: 75%

July 2023 Pass Percentage: 73%

# of test takers: 1,075

Oklahoma:

July 2024 Pass Percentage: 77%

July 2023 Pass Percentage: 68%

# of test takers: 407

Oregon:

July 2024 Pass Percentage: 74%

July 2023 Pass Percentage: 69%

# of test takers: 421

Pennsylvania:

July 2024 Pass Percentage: 77%

July 2023 Pass Percentage: 71%

# of test takers: 1,497

Rhode Island:

July 2024 Pass Percentage: 67%

July 2023 Pass Percentage: 73%

# of test takers: N/A

South Dakota:

July 2024 Pass Percentage: 74%

July 2023 Pass Percentage: 74%

# of test takers: 80

Tennessee:

July 2024 Pass Percentage: 72%

July 2023 Pass Percentage: 67%

# of test takers: 759

Texas:

July 2024 Pass Percentage: 75%

July 2023 Pass Percentage: 71%

# of test takers: 3,323

Utah:

July 2024 Pass Percentage: 88%

July 2023 Pass Percentage: 92%

# of test takers: 336

Vermont:

July 2024 Pass Percentage: 53%

July 2023 Pass Percentage: 58%

# of test takers: 49

Virginia:

July 2024 Pass Percentage: 74%

July 2023 Pass Percentage: 75%

# of test takers: N/A

Washington:

July 2024 Pass Percentage: 73%

July 2023 Pass Percentage: 70%

# of test takers: 734

West Virginia:

July 2024 Pass Percentage: 72%

July 2023 Pass Percentage: 72%

# of test takers: 132

Wisconsin

July 2024 Pass Percentage: 62%

July 2023 Pass Percentage: 58%

# of test takers: 120

Wyoming:

July 2024 Pass Percentage: 65%

July 2023 Pass Percentage: 80%

# of test takers: 52

States & Territories That Have Adopted The NextGen Bar Exam

This post will be ongoing and updated as new states/territories adopt the NextGen Bar Exam. Also listed is the date of first administration.

Alaska

July 2028

Arizona:

July 2027

Colorado:

July 2028

Connecticut: 

July 2026

Florida:

July 2028

Georgia: 

July 2028

Guam

July 2028

Illinois:

July 2028

Indiana

July 2028

Iowa:

July 2027

Kansas:

July 2028

Kentucky:

July 2027

Maryland:

July 2026

Minnesota:

July 2027

Missouri:

July 2026

Nebraska:

July 2027

New Mexico:

July 2027

North Dakota:

July 2027

Northern Mariana Islands:

July 2026

Oklahoma:

July 2028

Oregon:

July 2026

South Dakota:

July 2027

Tennessee:

July 2027

Texas:

July 2028

Utah: 

July 2028

Vermont:

July 2027

Virginia: 

July 2028

Washington:

July 2026

West Virginia:

July 2027

Wyoming:

July 2027

Termination of an Easement

Assume that a valid easement has been created. Easements do not, necessarily, last indefinitely, so it must be determined how a valid easement that has been created can be terminated. And there are quite a few ways to do so. 

Estoppel pops up from time to time in multiple areas of law. Here, too, even an oral expression of an intent to abandon an easement might terminate the easement if the person burdened by the easement materially changes his/her position in reasonable reliance on the easement holder's assurances that the easement will be abandoned. 

Easements created by necessity can, likewise, terminate as soon as the necessity ends. If the land burdened by an easement (the servient estate) is destroyed, any easement on the land is terminated. 

An interesting issue that sometimes shows up on the exam is sort of a hybrid easement/eminent domain issue. Imagine that the land burdened by an easement is rightfully condemned by the government. Any easement on the land condemned is terminated. Whether the easement holder is entitled to any of the compensation required to be paid by the government is a question not entirely agreed upon by the courts. 

Another avenue for terminating an easement is through release. A release by the person benefitted by the easement to the person burdened by the easement will terminate the easement. Similarly, abandoning the easement will terminate it, but be sure that there is some physical act (rather than just an oral promise to abandon) that evidences the intent to abandon (for example, building a structure that blocks the easement).

An important method for terminating an easement is termination by merger. An easement is extinguished when title to the easement and title to the land burdened by the easement become vested in the same person. If the same person acquires ownership of both the easement and the servient estate, these merge and the easement is terminated. 

Lastly, an easement may be terminated by prescription. Here the owner of the land burdened by the easement adversely possesses the easement in such a way that the easement is terminated. The elements are similar but slightly different than the elements traditional to adverse possession. To terminate an easement through prescription, the owner of the servient estate must continuously interfere with the easement holder's right to use the easement, and that interference must be open/notorious, actual, and hostile to the easement holder. As with creating an easement by prescription, the element of exclusivity is not required. 

Confusing a Necessary Condition for a Sufficient Condition vs. Confusing a Sufficient Condition for a Necessary Condition (LSAT)

Two different answer choices might show up on the LSAT. The first says that a flaw has occurred because someone has confused a necessary condition for a sufficient condition. The other says that a flaw has occurred because someone has confused a sufficient condition for a necessary condition. These sound alike but they are different. In fact, the same question might contain both of these answers choices! 

Imagine a school teacher says, "only if you hand in the permission slip can you go on the school trip."

A student hands in the slip and thinks "I can go on the trip!"

Not exactly, no. The teacher said that handing in the slip is a necessary condition for going on the trip. The student assumed, though, that handing in the slip is all that is required for going on the trip. In LSAT lingo, the student has taken a necessary condition and confused it for a sufficient condition.

Now, instead, assume that someone says "if you score a 180 on the LSAT, you'll get into Yale Law School." A listener who scores a 175 presumes that he won't get in because he did not score a 180.

Again, incorrect. Scoring a 180, as stated, was enough to get in to Yale Law School; it was sufficient. But the listener thought it was required. Here, again in LSAT lingo, the listener has taken a sufficient condition and confused it for a necessary condition.

These two answer choices mean different things, so be sure to understand the differences!

Creation of Easements

In a recent post, I outlined the different types of easements that show up on the bar exam. But the first part of any easement analysis will be to determine whether a valid easement has been created. There are multiple ways in which that can happen, and the most straight-forward way is by grant. 

To grant an easement, that easement must be memorialized in writing and signed by the holder of the servient tenement (the land burdened by the easement) unless its duration is brief enough to be outside of the Statute of Frauds. 

A writing is not, however, required to create an easement by implication (an implied easement). Rather, implied easements are created by operation of law, and can take many forms. The first form is known as an easement implied from preexisting use (sometimes referred to as a quasi easement). Here, one person owns two lots. The person who owns both lots sells one of the lots without any mention as to whether the buyer will have an easement over the other lot. The court will imply an easement for the buyer to use the other lot if the previous use of the other lot was apparent to the buyer when the buyer purchased the land from the seller, and if it would have been reasonable for the buyer to expect that the use of both lots would continue after the sale of one of the lots to buyer. 

There are also implied easements without preexisting use. In one scenario, lots are sold in a subdivision with reference to a recorded plat or map that shows streets leading to the lots. Buyers of those lots have an implied easement to use the streets to access those lots. In another scenario, anyone with a profit a prendre (the right to take resources such as minerals or timber or etc. from the land of another) will have an implied easement to pass over the surface of that land in order to extract those resources. 

Another type of implied easement, and one that is often tested, is called an easement by necessity. This easement will be implied if a landowner (the grantor) conveys a portion of land and the buyer has no way out from the purchased land except over some part of the grantor's remaining land. In other words, the buyer is landlocked. 

If you understand well adverse possession, you'll also understand the next type of implied easement called an easement by prescription. Just as with adverse possession, to acquire a prescriptive easement requires continuous and uninterrupted use of the easement for the statutory period, open and notorious use of the easement, actual use, and hostile use. You might notice that the difference between a prescriptive easement and adverse possession is that the use need not be exclusive to acquire a prescriptive easement. To be sure, an easement will never be exclusive since by its nature someone is merely using the land of another. Title is not acquired by a prescriptive easement as it is by adverse passion. What's gained is the right to continue to use the property of another person. 

Lastly, once an easement has been created, the scope of the easement must be determined. That's easy enough if the easement was created by grant: the scope is determined by the terms of the grant. If an easement is created by implication, then scope will be determined by the conditions that created it. A standard of reasonableness is a good rule of thumb.

The landowner burdened by the easement may select the location of the easement as long as that selection is reasonable. If there are no specific limitations selected, courts assume that the easement was intended to meet both present and future needs of the person benefited by the easement. 

The landowner burdened by the easement generally may use the burdened land in any manner, provided that such use does not interfere with the easement. The person benefited by the easement must make repairs to the easement if that person is the sole user of the easement. If both the benefited person and landowner burdened by the easement are both users of the easement, court will apportion repair costs among them. 

 

Types of Easements

The topic of easements quickly becomes complex. But a great place to begin is to understand that there are two main types of easements: affirmative easements and negative easements. And then within each type, there are appurtenant easements and easements in gross. With that backdrop, it's easier to fill in the details. 

Most easements are affirmative. An affirmative easement gives the easement holder (sometimes called the dominant tenant) the right to do something on the servient tenement (the land imposed upon by the easement). 

A negative easement, on the other hand, entitles the dominant tenant to prevent the servient tenant from doing something on the servient tenement that would otherwise be permissible. Unlike affirmative easements, negative easements can be only be created expressly by a writing signed by the grantor. 

Both positive and negative easements can be either appurtenant or in gross. An easement appurtenant is one that benefits the holder of the easement in the physical use of the easement holder's own land. Think of it this way: two parcels of land are involved in an easement appurtenant, and the ability to use another's land benefits a person in that person's use of his own land. The classic example here would be when the holder of an easement is given the right of way across another's land.

An easement in gross, in contrast, benefits the holder of the easement, but the benefit is a personal or pecuniary benefit that is not related to the holder's use of the holder's own land. As an example, imagine a holder of an easement is given the right to swim on another's land. The privilege has nothing to do with the holder's own land: the land on which the holder of the easement can swim is burdened, however. 

This distinction might seem academic, but there are practical consequences. An appurtenant easement passes automatically if the holder of the easement (the person benefited by the easement) transfers the land benefited by the easement. This is true regardless of whether the easement is mentioned in the conveyance. It's said that the easement "runs with the land." 

Likewise, if the land burdened by the easement is transferred, the purchaser of the burdened land will be burdened by that easement unless the purchaser is a bona fide purchaser without notice of the easement. An easement in gross, in contrast, in not transferable (it does not "run with the land") unless it is for commercial purposes. 

The next post will focus on the various ways that easements are created. 

Depositions, Interrogatories, and Medical Exams

There's a lot to know about discovery for Civil Procedure on the bar exam. Three avenues for discovery (though this is not an exhaustive list) are depositions, interrogatories, and medical exams. Each has nuances to keep in mind. First, depositions.

The questions in a deposition can be either oral or written; both parties and non-parties may be deposed, and all are under oath while answering deposition questions. A subpoena is not required to depose a party to the lawsuit; a notice of deposition is sufficient. In contrast, a non-party must be served with a subpoena. 

Unless a non-party agrees otherwise, the farthest a non-party can be required to travel to a deposition is 100 miles from where the non-party resides or is employed. The party taking the deposition cannot take more than 10 depositions nor may the party depose the same person twice without court approval or stipulation. Depositions cannot exceed seven hours in the same day unless the court orders otherwise or unless the parties stipulate otherwise. 

Depositions serve multiple purposes: first, they can be used to impeach the deponent at trial. They can be used for any purpose if the deponent is an adverse party, and they can be used for any purpose if the deponent (party or non-party) is unavailable at trial unless that absence was procured by the party seeking to introduce the deposition testimony. 

Another avenue for discovery is interrogatories. Interrogatories are written questions that are answered in writing under oath. In contact to depositions, interrogatories are sent only to parties, never to non-parties. Although this may vary by court order or stipulation, the maximum number of interrogatories is 25, including subparts. 

Interrogatories must be answered within 30 days from the time they are served upon the recipient, and they must be answered based upon information reasonably available. Sometimes, answers to interrogatories might be found in business records. If the burden of finding such answers would be about equivalent for either party, the responding party can allow the requesting party to have access to those business records.

Another avenue for discovery is the medical exam (either physical or mental). A court order is required to compel a party (or a person in the party's custody and control) to submit to a medical exam. If making such a request, there are requirements: A party must show that the person who will be subject to the exam has a health issue that is in controversy and that there is good cause for requesting the exam. The requesting party chooses the licensed medical professional to perform the exam. 

Once the court orders a medical exam, the medical professional will write a report and then provide that report to the requesting party. The person undergoing the exam is also entitled to a copy of the report, if requested. 

If that party then receives the report, that party must (on request) produce all medical reports about the same condition by the party's own doctor. Any doctor-patient privilege that the party might have had with that doctor is waived regarding that specific medical condition. 

Class Action Lawsuits

Both procedural and substantive aspects are tested in the area of class action lawsuits. This post will cover both. 

A class action lawsuit is distinguished from other types of lawsuits in that in a class action lawsuit, representatives sue on behalf of a group.  There are four requirements that must be met to qualify for a class action lawsuit.

First, there must be so many class members that the traditional rules of joinder would not be practicable. There also must be issues in common to all class members. It also must be true that the class representative's claim are typical of the claims of the class. Lastly, the class representative must fairly and adequately represent the class. 

If the four requirements above are satisfied, next is to ensure that the action falls within an acceptable type of class action lawsuit. There are 3 acceptable types. In type 1, class treatment is necessary to avoid prejudice either to class members or to non class members. In type 2, the class action seeks an injunction or declaratory judgment because defendant treated all class members alike. In type 3, common questions must predominate over individual questions, and, thus, a class action is the more appropriate method to handle the dispute. More to say on this third one in a bit. 

Procedurally, a case is not a class action until the court grants the motion to certify it as a class action. Likewise, the court must define the class ( along with class claims, issues, and defenses) and appoint class counsel who must fairly and adequately represents the interests of the class. An immediate appeal as to the court's decision on certification (an interlocutory appeal) is allowable.

In a type 3 class action lawsuit (and only in that type), the court must notify class members that they are in a class. The purpose of the notice is to allow reasonably identifiable members of the class to opt out. The notice informs the members that they will be bound by the judgment if they don't opt out, and that they can enter a separate appearance through counsel. 

Settlement of class action lawsuits vary a bit from settlement of non class action lawsuits. Court approval is required to settle, and the court must give notice to the class members to get feedback on whether the case should be settled or dismissed. In a type 3 class action lawsuit, the court also might refuse to approve the settlement unless members are given another opportunity to opt out. 

There are a few nuances to understand about subject matter jurisdiction in class action lawsuits. Federal question jurisdiction is the same as it is for non class action lawsuits. If jurisdiction is based on diversity, only the citizenship of the class representative is considered and only the class representative's claim must exceed $75,000. 

Also worth noting is the Class Action Fairness Act ("CAFA"). Under CAFA, a federal court can hear a class action (regardless of federal question or diversity jurisdiction) if there are at least 100 class members,  any class member (not just the representative) is of diverse citizenship from any defendant, and the aggregated claims of the class exceed 5 million dollars. And under CAFA, any defendant (even one domiciled in the state where the case is brought) may remove the case from state to federal court 

Pleadings

As with so much in Civil Procedure, there's a lot to cover on the topic of pleadings. I think the best way to organize this topic is to consider what you need to know about plaintiff's complaint, and then to consider what you need to know about defendant's answer. Then, a bit about amending pleadings. To begin, plaintiff's complaint. 

There are 3 things that must be included in the complaint. First, a statement of grounds for subject matter jurisdiction. Next, a short and plain statement of the claim showing that plaintiff is entitled to relief. And, lastly, a demand for relief sought. There is one exception to keep in mind: when a complaint alleges fraud, mistake, or special damages, the complaint must be pleaded with more detail. It's said that in such instances, the complaint must be pleaded with particularity or specificity.

When stating a short and plain statement of the claim, plaintiff must plead sufficient facts to support a plausible claim. If defendant believes that plaintiff has not done that, an opportunity arises for defendant to file a 12(b)(6) motion to dismiss the complaint for failure to state a claim. 

Once the complaint has been served to defendant, defendant has 2 options. Defendant can answer the complaint, or respond by motion. Regardless, defendant must respond no later than 21 days after being served with process. That time is extended if defendant waived service; if waived, defendant has 60 days to respond from when plaintiff mailed the waiver form.

A variety of motions are available to defendant when responding to plaintiff's complaint. A rule 12(e) motion for a more definite statement is made prior to an answer and is used when the complaint is so vague or ambiguous that defendant cannot respond. A rule 12(f) motion to strike asks the court to remove redundant or immaterial things from a pleading. 

A 12(b) motion can set forth a variety of defenses. Some of those defenses are waived if not included in the first response to the complaint. Those waivable defenses are lack of personal jurisdiction, improper venue, improper process, and improper service of process.

Other defenses are not waived. Both the defense of failure to state a claim and the defense of failure to join an indispensable party can be made as late as at trial. A defense of lack of subject matter jurisdiction may be raised at any time. 

If defendant makes a 12(e), 12(f) or 12(b) motion and that motion is denied, defendant must then serve an answer no later than 14 days after notice of the denial. 

Next is the answer. In the answer, defendant either admits some or all of the allegations in the complaint, or denies some or all of the allegations. Another option is for defendant to state that there is insufficient knowledge to either admit or to deny some or all of the allegations. Any failure to deny an allegation will be deemed an admission except regarding the amount of damages.

Defendant can also raise affirmative defenses in the answer. When defendant asserts an affirmative defense, there is no need for plaintiff to respond; the allegations in defendant's answer are deemed denied. 

One final area worth discussing here is the amendment of pleadings. Plaintiff has a right to amend a complaint once no later than 21 days after defendant serves the first response. The defendant has a right to amend an answer once no later than 21 days after serving it. Importantly, if defendant's first response was an answer that did not raise a waivable defense (for example, lack of personal jurisdiction), defendant has the right to amend that response to include the defense. In other words, the defense is not waived if the answer is properly amended. 

Once the 21 days to amend is up, the rules change. To amend after this period, the amending party must seek leave of court (or get written consent from the opposing party). The court will grant leave to amend if "justice so requires". 

It's possible that a party might want to amend a pleading after the statute of limitations has run on a claim. This is possible, provided that the amended pleading relates back to the original pleading. The amended pleading will relate back to the original pleading if the amended pleading concerns the same conduct, transaction, or occurrence as the original pleading. 

The rules above relate to parties amending claims within a pleading. There may be instances, however, when plaintiff wants to amend a pleading to change a defendant. If the statute of limitations has run on the claim, then to do so, relation back will be required. Such an amendment will relate back if the amendment concerns the same conduct, transaction, or occurrence as the original claim, the new defendant had knowledge of the case such that the new defendant will be able to avoid prejudice, and the new defendant knew or should have known that, but for a mistake, the new defendant would have been named originally. Put simply, these elements require that plaintiff sued the wrong defendant first, and that the right defendant knew this. 

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