Fault (Torts)

You're working on a Torts question for the MBE. You see a young child get hit by a car, and you're ready to pick the answer claiming liability for the driver.

Was the driver at fault?

The child is now suffering from serious injuries and will suffer from those injuries for the remainder of his life.

Was the driver at fault.

The child's grandmother watched the child get hit by the car and now is suffering from severe and extreme emotional distress.

Was the driver at fault?

My point: The MBE writers will throw at you all the harm. But liability here doesn't result from harm; it results from fault. There are, of course, instances in which no fault is required for liability (see, for example, a person who owns a pet 🐅 ), but it would be fair to think of that as the exception to the rule, since there aren't all that many instances of strict liability. Animals, abnormally dangerous activities, and products.

In every Torts question, look for the fault.

Perfection (Article 9 UCC)

Next up in the lifeline of a secured transaction is perfection. Attachment gives the secured party rights against the debtor. Perfection will give a creditor rights superior to other creditors (as well as rights superior to other third parties other than creditors).

There are five ways to perfect a security interest: filing a financing statement; taking possession of the collateral; taking control of the collateral; automatic perfection; and temporary perfection.

A few of those ways should look familiar: taking possession of the collateral or taking control of the collateral was an element of attachment for some creditors. That means that if the other elements of attachment are satisfied, it may well be true that taking possession or control of the collateral will both attach a security interest, and perfect a security interest, all at the same time.

There’s actually quite a lot of nuance that goes into each of those ways to perfect a security interest. Will get into that in later posts. But the easiest one is automatic perfection. For purposes of the bar exam it would be enough to remember that perfection is automatic for a PMSI in consumer goods. A PMSI in consumer goods is perfected the moment it attaches.

Attachment (Article 9 UCC)

A few things about the subject of Secured Transactions on the bar exam: it's a subject that many students find challenging, and it's a subject that's tested with a high frequency. Not the greatest combination for those preparing for the exam.

I have a memory from a number of years ago when a student (I still think it was a clever joke, but I didn't want to ask in case he was serious) said to me "I have just one question to ask about Secured Transactions. What's a secured transaction?"

I'm writing up a resource to assist students with the subject but highly doubtful it'll be offered by July. So instead, I'll post occasionally on here leading up to July on this subject.

Best place to begin is with attachment, since that's sort of the starting line in a Secured Transactions essay. Attachment gives the creditor rights against the debtor.

It's all about the elements, and there are three elements to attachment: (1): the parties must agree to create a security interest; (2): value must be given to the debtor by the secured party; and (3): the debtor must have rights in the collateral (for example, ownership rights, or even just possessory rights).

Numbers 2 and 3 are straight forward: they are what they say. As for the first element, there are three ways to evidence that such an agreement has taken place: (1) the creditor takes possession of the collateral; (2) an authenticated security agreement is signed by the debtor; or (3): the creditor takes control of the collateral.

That third element might seem a bit suspect. Why control if you can take possession? But control is available when possession is not possible. For example, you can't possess electronic chattel paper (a type of collateral) so the option is available to instead take control of it.

There are nuances to some of the stuff above, but that's very much the framework for attaching a security interest. The next step from there would be to get some rights against creditors who might claim priority (rather than just the debtor): that's where perfection comes in.

Larceny

Someone walks into a store and decides to steal a coat. The person picks the coat up off the rack and realizes it's not a coat worth stealing. Returns it to the rack and leaves the store without the coat.

Larceny?

In life, nobody is getting charged with a crime for thinking about stealing a coat. On the MBE, yes, pick the answer that says it's larceny.

You're tested on theory, not reality. And, in theory, the elements of larceny have been ticked off. The intent to take and permanently deprive another of the other's property is satisfied. And, as for the taking and carrying away element, do enough of these questions and you'll realize that it doesn't require much. Merely picking the coat up off the rack will suffice.

Sometimes reality needs to be set aside to score points on the MBE. Don't pick the trap(!) answer: attempted larceny.

An Approach to Analyzing Hearsay

An approach you can apply to every hearsay question on the MBE:

1: Is the witness testifying to a statement that was made out of court.

No? Then it's not hearsay.

Yes? Then move on to the next step.

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

No? Then it's not hearsay.

Yes? Then move on to the next step.

3: Is the statement exempted from the rule against hearsay?

Yes? Then it's an admissible non-hearsay exemption.

No? Then move on to the next step.

4: Do any of the hearsay exceptions apply to the statement?

No? Then it's inadmissible hearsay.

Yes? Then it's hearsay, but it's admissible.

*That final point is worth reiterating. When you have an exception to the hearsay rule, that doesn't make the statement not hearsay or non hearsay. Rather, it's more accurate to say that some hearsay is admissible.

Peel Back the Onion

One thing about the MBE, it's going to test the exceptions. Think of studying for the MBE like peeling back an onion (and not just because of the crying thing). The first layer is the general rule, and sometimes that's as far as you'll need to go. But, mostly, you'll need to peel back layer 2 (the exception), layer 3 (the exception to the exception), etc. Most will know that under the UCC, a contract for the sale of goods priced at $500 or more is not enforceable without a writing. Layer 1. But instead of just knowing that, you need to know when a contract priced at $500 or more is enforceable without a writing at the time of agreement (deeper layers). There are 4 circumstances: ~if a merchant sends a written confirmation memo to another merchant stating the terms of the previous oral agreement, and the recipient does not object to that written memo within 10 days of receipt. ~if the goods are specially manufactured for the buyer, and not suitable for sale to others, provided that there has been a substantial beginning to the manufacturing of the goods, or substantial commitments for their procurement. ~if a party against whom enforcement is sought admits in pleadings, testimony, or etc., that a contract has been entered (not enforceable beyond the quantity admitted). ~if the goods were received and accepted, or if payment has been made and the goods were accepted. Under none of the 4 above circumstances is a writing required at the time of agreement even if the agreement is for goods priced at $500 or more. Peel back the .

Negating Required & Sufficient Conditions (LSAT)

If it rains prior to 1pm today, then the game is cancelled. But it's now after 1pm and it has not rained. Thus, the game is not cancelled. ❌

If it rains prior to 1pm today, then the game is cancelled. The game is not cancelled. Thus, it did not rain prior to 1pm today. ✅ 

The first example does not follow logically, but the second example does. Why? A perfectly acceptable answer is that the second example contains the contrapositive, and the first example does not. Although that's fine, it's a bit technical. 

A more thorough understanding requires knowing the difference between necessary and sufficient conditions. In the first example, raining prior to 1pm today is sufficient for guaranteeing that the game is cancelled. But just because something is sufficient for guaranteeing another thing, doesn't mean that it's necessary for the occurrence of the other thing. In other words, there could very well be reasons other than rain for why the game is cancelled; knowing that it did not rain does not allow drawing any conclusion about the cancellation of the game.

In the second example, the game being cancelled is a required or necessary condition once we know that it rains prior to 1pm today. It has to happen. And so because it's required once we know that it rains, knowing that the game was not cancelled allows for us to know with certainty that it did not rain prior to 1pm today. 

Negating a sufficient condition does not allow for drawing the conclusion drawn here. Negating a necessary condition does. 

This is why the following holds. 

Imagine an "if --> then" statement: x --> y

~x --> ~y ❌

but

-y --> ~x ✅

Character Evidence

Witness for the defense opens the door by offering good character evidence (reputation or opinion) of a trait pertinent to the crime for which defendant is tried. This is bad for the prosecution; the jury has just heard something good about the defendant. The jury might like the defendant now! What can the prosecution do? There are two options, and it's important to keep these options separate because they aren't identical. ~The prosecution might choose to cross examine the character witness. If it does that, it's not bound by reputation evidence or opinion evidence. It can offer specific instances of conduct to rebut the witness's prior testimony. ~The prosecution might choose to call up its own witness on direct to rebut the defendant's character witness. In that case, though, it'll be bound by reputation or opinion evidence. Why the difference? For a bar exam, the most important thing is to remember that there is a difference. But, at least for me, the "why" behind legal rules has been the way I've learned law.  

When cross examining the character witness, it's not only about the character of defendant; it's also about the credibility of the character witness. And it's entirely proper to impeach that character witness by asking about these types of specific acts.  

Memorizing

Someone on Reddit, while feeling overwhelmed with all of the law required to memorize for the bar exam, asked how to go about doing that.

You really want to get to the point where if a client came into the office and had a question for you (imagine it's one of the multiple questions at the end of an MEE fact pattern), the client would leave the office satisfied that his/her question was adequately addressed.

This is an important distinction from memorization. You don't need to write that an offer is a manifestation of intent to enter into yadda yadda. You just have to be able to address the law in a way that makes sense to you, so that you can use that law to then analyze whatever question was asked.

Try to understand the law in a way that doesn't require you to necessarily pull it from your memory. Take the time to understand it until you feel you'd be able to explain it to someone who understands it less than you do.

Double Jeopardy (Same Offenses)

Assume the following:

Offense 1: Elements A, B, C

Offense 2: Elements A, B, C, D Double Jeopardy requires not trying defendant for the same offense twice. Are these the same offenses? Yes. It may seem not with D in offense 2, but not in offense 1. But in order to be separate offenses there must be an element in each that is not in the other. There is no element in offense 1 that is not in offense 2. Consider a Venn Diagram. A, B, and C would fall within the intersection of the diagram, D would fall within the portion of a circle that only includes offense 2, and nothing would fall within the portion of a circle that only includes offense 1. Nothing falling only in the offense 1 circle is the tell that these are the same offenses (for this purpose).

Hearsay & The Confrontation Clause

There are similarities between the policies underlying the 6th Amendment's Confrontation Clause and the policies underlying the rule against hearsay.  But it's important to understand that even if a statement falls within a hearsay exception, the 6th Amendment still gives defendants the right to confront witnesses against them. 

Another way of saying this is that the use of an out-of-court statement by the prosecution might still violate the defendant's 6th Amendment rights even if that statement would not be excluded by the rule against hearsay.

Specifically, admitting an out-of-court statement offered by the prosecution will violate a defendant's 6th Amendment rights even if the statement falls within a hearsay exception if (1): the statement was testimonial; (2): the witness who made the statement is unavailable to testify at trial; and (3): the defendant has not had an opportunity to cross examine the witness before trial. 

What kind of statements are testimonial? It's been noted that statements made to a police officer in the course of an investigation are often testimonial. In addition, statements that a witness reasonably believed would be used as a part of a criminal prosecution, it has been suggested, are likewise testimonial.

It's also important to note what type of statements are not deemed testimonial. Although statements made to the police to assist in an investigation are generally deemed testimonial, statements made to the police to assist in an ongoing emergency are considered non-testimonial. This is an objective test: the relevant question is whether the circumstances objectively indicated that the primary purpose of the police interrogation was to enable the officers to meet an ongoing emergency. If so, the statements should not be deemed testimonial, and thus would not be excluded by the Confrontation Clause of the 6th Amendment. 

There are elements to help determine whether the objective test rendering statements non-testimonial is satisfied. To determine the element of "ongoing emergency" the following factors are relevant: the nature of the dispute; the scope of the potential harm to a victim; the threat to additional identifiable victims; the existence of a more generalized threat to the public; whether the suspect was armed as well as the type of weapon used by the suspect, if armed; and whether the suspect remained at large. 

Elements 2 and 3 for determining whether a statement might violate the Confrontation Clause if admitted at trial are more straightforward than element 1. Element 3 is self explanatory, and element 2 defines "unavailable" as it's defined elsewhere. Unavailable means that the declarant is in a specific situation preventing the declarant from testifying. Importantly, a witness might be unavailable in this context even if the witness is present in court. For example, a witness might rightfully refuse to testify based on the 5th Amendment's privilege against self incrimination.

Florida Rules of Civil Procedure (Amendments)

At the start of the year, there were a variety of amendments to the Florida Rules of Civil Procedure. Quite a few of these amendments seem to me to fall within the content tested on the multiple choice portion of part A of the exam.

A well-written summary of these changes is available @ https://www.wshblaw.com/publication-the-calm-before-the-storm-amendments-to-the-florida-rules-of-civil-procedure-set-to-take-effect-in-2025

Bar Exam Essay Writing Tip

When you think you’ve come upon the “answer” that the test writers are fishing for on a given legal issue, ask yourself whether you’d entirely give up on that issue if you were getting paid to argue the other side.

If you would not entirely give up on the issue, argue the point you’d argue for your client. Not a great argument, but still a plausible one? Let the graders know that as well. These essay questions are often written not to extract an answer as if it were an AP Calculus exam, but instead to determine whether the candidate is able to appreciate the uncertainty. “On the other hand” (the concept more than those words) will take you far on bar exam essays. Sometimes there is no uncertainty. But more often than not, the questions are written to trap people into the instinctive drive to give the answer they think is the correct, and only, one.

Per Stirpes Distribution

 What does "per stirpes" even mean if it shows up in a Wills essay?

Essentially, the term explains at which level the estate of a decedent should be divided for purposes of inheritance (or intestate distribution). Assume the decedent has 4 children, A, B, C, D. And that C predeceases the decedent. Each child of the decedent has 2 children. Under a policy of per stirpes, the first step is to divide the estate by 4 since there are 4 children. A, B, and D will then get their 1/4th share. C also gets a 1/4th share (this is the key, give the deceased child the share), though because C is dead that 1/4th share passes to C's 2 children and each gets a (1/4)(1/2) share or a 1/8th share). So, the end result would be that A, B, and D get 1/4th, and the 2 children of C get 1/8. One way to check your work (as high school math teachers always used to say) is to add up all the shares. They should sum to 1 if you've calculated correctly. 1/4 + 1/4 + 1/4 + 1/8 + 1/8 = 8/8 = 1 A way to understand per stirpes is to understand how this would contrast if a different policy of distribution applied (and there are a variety of policies that could apply on a bar exam). It could have been true that C's 2 children share equally with the living children of the decedent. In that case, the calculation would merely be to divide the estate by 5 so that each gets 1/5. C's 2 children would like this since 1/5 > 1/8. The living children of the decedents not so much, since 1/5 < 1/4.

Buyer in the Ordinary Course of Business vs. Buyer of Consumer Goods

There are two important provisions in UCC 9 (Secured Transactions) that deal with buyers. Both provide a buyer with protection even against those who have perfected a security interest. But along with that similarity, there are some material differences to keep in mind. 

A buyer in the ordinary course of business is a person who, in good faith, and without knowledge that a sale violates the rights of a third party, buys goods in the ordinary course from a seller who is in the businesses of selling goods of that kind. 

And being a buyer in the ordinary course comes with some privileges. With exception for a person buying farm products from someone in the farming business, a buyer in the ordinary course takes free of a security interest created by the buyer's seller. And, importantly, this is true even if the seller's security interest is perfected, and even if the buyer knows of the existence of that security interest. 

In addition to protection for buyers in the ordinary course, there are also protections for buyers who purchase consumer goods. Buyers of consumer goods are buyers who buy goods from a person who used or bought the goods for use primarily for personal, family, or household purposes. 

Just as with the buyers in the ordinary course, buyers of consumer goods are privileged with some protections, though the requirements for those protections differ. For a buyer of consumer goods to take free of a security interest (even if that security has been perfected) the buyer must buy the consumer goods without knowledge of the security interest, and must buy the goods for value. Further, the buyer must buy the goods primarily for the buyer's personal, family, or household purposes, and must buy the goods before there has been the filing of a financing statement covering those goods. 

That's to say, if a seller took the step of filing a financing statement to perfect a security interest, then that will prevent a buyer of consumer goods from having better rights in those goods than the seller. This is one reason why it can benefit a seller to file a financing statement even if the code allows, for example, for automatic perfection: doing so is an additional layer of protection. 

Also, an important distinction to keep in mind here is that with a buyer in the ordinary course, the buyer will have better rights than a perfected seller even if the buyer knows of the perfected security interest. In contrast, with a buyer of consumer goods, for the buyer to benefit, the buyer must be without knowledge of the security interest.