February 2025 Bar Exam Results

Almost all states release some data as to how the candidates in their state performed on the bar exam, and I'll organize all that data below as it comes in. For the February bar exam, these scores generally start rolling in as early as the tail end of March. 

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 2025 and February 2024. Also listed when available will be the number of examinees in each state who took the most recent exam. 

Good Luck!!

All best to those who will be taking the bar exam next week! Posting to resume soon as the February '25 bar exam results roll in, along with posts to assist on both the bar exam and on the LSAT.

Character Evidence Nuances in Criminal Cases

The general rule for character evidence in a criminal case (defendant can offer reputation or opinion evidence of good character, and the prosecution can rebut that evidence) is essential to understand. But there are also a couple of nuances that you should look out for, since the MBE does test nuances. 

First is to understand that not only can defendant offer evidence of a good character for defendant's own benefit (see above), but, in limited circumstances, defendant can introduce reputation or opinion evidence of a bad character trait of the alleged victim. This is allowed only if it is relevant to show the defendant's innocence. The most likely scenario will be when the defendant is claiming self defense. To show that the alleged victim was the first aggressor, it may be necessary for defendant to offer reputation or opinion evidence as to the alleged victim's character for violence, aggressiveness, etc. 

If this evidence is offered by the defendant, the prosecution may rebut with reputation or opinion evidence of the alleged victim's good character for the same trait or the defendant's bad character for the same trait. 

It's worth noting, and this is a bit counter-intuitive, that even if defendant has not opened the door by offering evidence of the bad character of the alleged victim, the prosecution can offer evidence of the good character of the alleged victim in a homicide case in which the defendant is claiming self defense. In other words, in a case in which the defendant has claimed that the alleged victim was the initial aggressor, the prosecution can offer evidence of the alleged victim's character for peacefulness. And this is true regardless of whether the defendant has introduced character evidence of the victim's propensity for violence. 

Another nuance to keep in mind is specific to sexual misconduct cases. In any proceeding involving sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible. In a criminal case, however, specific instances of the alleged victim's sexual behavior are admissible to prove that someone other than the defendant is the source of semen, injury, or other physical evidence. Specific evidence of the sexual behavior between the alleged victim and the defendant are likewise admissible by the prosecution for any reason, and by the defense to prove consent.

In a civil case, evidence of the alleged victim's sexual behavior is admissible if it is not excluded by any other rule and if its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party. Evidence of the alleged victim's reputation for this purpose is admissible only if it has been placed into controversy by the victim.

Water Rights

This post will focus on everything you've ever wanted to know about water rights. Two doctrines will guide what you need to know about water rights: the riparian doctrine, and the prior appropriation doctrine.

Under the riparian doctrine, water belongs to those who own the land bordering a watercourse. These rights attach to all contiguous tracts held by the same owner, provided one of the tracts abuts the water. 

The riparian doctrine can be subdivided into two theories:

The natural flow theory states that a riparian owner's use of the water may be terminated if it results in substantial or material diminution of the water's quantity, quality, or velocity. The reasonable use theory, in contrast, states that all those who have riparian rights share the right of reasonable use. One riparian owner's use of the water is not enjoinable unless it substantially interferes with the use of another riparian owner's rights. Courts balance the utility of the owner's use against the harm to other owners, and to do so they use the following factors: purpose of use; extent of use; destination of water taken; alteration of the flow of the water; whether the water has been polluted; etc. 

Under both the natural flow theory and the reasonable use theory, natural uses of the water prevail over artificial uses of the water.  

The prior appropriation doctrine differs in material ways from the riparian doctrine. Under the prior appropriation doctrine, the water initially belongs to the state. The right to divert the water and use it for their own benefit can be acquired by an individual through actual use. Generally, the principal of first in time, first in right applies. The person who first uses or diverts the water will acquire the rights to that water. Worth noting that this right can be lost by abandonment. 

There are a few specific rules to note about groundwater, water beneath the surface of the earth. The absolute ownership doctrine states that the owner of the land that overlays the groundwater can take all the water for any purpose. A more limiting doctrine is the reasonable use doctrine which states that one use, exporting the water, is allowable only if it does not harm other owners who have rights in the same water. The correlative rights doctrine states that owners of the land overlaying the groundwater own the water as joint tenants and each joint tenant is allowed reasonable use. The appropriative rights doctrine looks to priority: the the first to use the groundwater will determine ownership. The Restatement has a bit to say on this as well: under the Restatement, an owner of groundwater may use the groundwater unless such use unreasonably harms neighboring landowners, exceeds the owner's reasonable share, or directly and substantially affects surface waters and unreasonably harms the users of surface water. 

In contrast to groundwater rules are the rules dealing with surface waters. Surface water is water above the surface of the earth that has not yet reached a natural watercourse, such as rainwater, water from melting snow, etc. A landowner can use surface water within their boundaries for any purpose. There are, however, some limits as to the methods by which landowners might attempt to change the natural flow of that surface water. 

The natural flow theory states that owners cannot alter natural drainage patterns. This is the most limiting theory on surface water. The common enemy theory, in contrast, states that an owner can take any protective measures to get rid of the water or divert its flow. This is the least limiting theory on surface water. Lastly, the reasonable use theory balances the right of the owner to divert the water with the rights of others not to be harmed by that diversion. 

With surface water, the key contrast is between capturing and diverting. There is no limit to the capture of surface water, but there may be some limits on diverting it. 

MBE Tip: Compensatory Damages

Compensatory damages in contract law requires, as the outlines all say, to put the non-breaching party back into the position that that party would have been in had the contract not been breached. That's correct, and worth memorizing, but understanding what it all means will make it easier to apply.

Imagine seller contracts to sell widgets (law tests love widgets) for x dollars. Buyer breaches the contract and seller finds another buyer who will purchase the widgets for .7x dollars.

The compensatory damages here (there may also be other damages) is simply x - .7x = .3x.

The reason for this is that if the non breaching party has already received .7x dollars from buyer 2, and then receives .3x in damages from buyer 1, the seller now has .7x + .3x = x. The seller bargained for x and the seller now has x dollars.

The same analysis holds true if the seller breaches. The seller contracts with the buyer to sell widgets to the buyer for n dollars. The seller breaches and the buyer is now required to purchase those widgets for 1.2n dollars. The buyer should get from the seller 1.2n - n = .2n in compensatory damages.

The buyer has spent 1.2n dollars; if the buyer receives back .2n dollars from seller 1, buyer has spent 1.2n - .2n dollars = n dollars, the amount of the original bargain.

In short, if you get back to the original number, you've gotten to the correct amount of compensatory damages.

Future Interests (a Quick Review)

X grants property to y, so long as y farms the property. Y has a fee simple determinable. X has retained a possibility of reverter. Why a possibility of reverter? Because Y might continue to farm the property, in which case x will never get the reverter. It's possible, but not definite.

X grants property to y, but if y does not farm the property, x will enter the property and reclaim it. Y has a fee simple subject to a condition subsequent. X has retained a right of re-entry.

X grants property to y for life. Y has a life estate. X has retained a reversion. Why a reversion? Because Y will not live forever, and unlike with a possibility of reverter, Y is certain to die. At some point x (or x' heirs) will get the reversion.

X grants property to y for life and then to z. Y has a life estate. Z has a remainder. X has nothing. Why does x have nothing? The life estate + the remainder = 100% of the property. There is nothing left for x.

X grants property to y, so long as y farms the property, but if y does not farm the property, then to z. Y has a fee simple subject to an executory limitation. Z has an executory interest. X has nothing. Once again 100% of the property has been granted.

X grants property to y, so long as y farms the property, but if y does not farm the property then to z for life. Y has a fee simple subject to an executory limitation. Z has an executory interest in life estate. X has retained a possibility of reverter. Z is sure to die, but x retains only a possibility of reverter, since y might continue indefinitely to farm the property. X's reversion is therefore not definite

MBE Trap: Impeachment by Conviction of a Crime

It might seem, intuitively, that impeachment for convictions of felonies that have nothing to do with truthfulness would not be allowable. Impeachment, after all, is about calling into question the credibility of a witness, and it's questionable whether having been convicted of a felony that has nothing at all do with with dishonesty calls into question a witness's credibility.

But intuition doesn't guide here. All felonies (under the Federal rules) are admissible for this purpose. Misdemeanors, on the other hand, are only admissible to impeach if they are probative of dishonesty. The trap here is to not distinguish these types of crimes (and instead to lump them into one category: impeachment by conviction of crimes).

One commonality, though, is that both types of crimes can be proven by extrinsic evidence. That is, evidence outside of cross examination. The same rule above for misdemeanors applies for impeaching a witness on a prior bad act. A prior bad act is an act that does not result in a conviction but that is probative of truthfulness.

The difference here is that unlike with the misdemeanor rule above, impeaching on a prior bad act is only allowable on cross examination: extrinsic evidence is inadmissible.

MBE Tip (Class Actions)

Imagine that class action certification is either granted or denied. If a party to that decision wants to appeal the decision, must the appellate court permit the appeal? To the contrary, must the appellate court deny the appeal until there is a final judgment in the non-class-action lawsuit?

The answer is neither. Instead, a court of appeals has the discretion to permit an appeal from an order granting or denying class action certification. That's to say, the "final judgment rule" does not apply to the denial or grant of class action certification. As to the procedure, a party must file a petition for permission to appeal with the circuit clerk within 14 days after the order is entered (with certain exceptions extending the time to 45 days if the United States (or a agency/officer of the United States) is a party to the lawsuit.

MBE Trap: Consideration

You'll come across fact patterns in which one party to a contract gets a great deal, maybe even a deal that appears unrealistic. For example, an aunt and her nephew enter into a contract for the aunt to sell her house worth $500,000 to the nephew for $50,000. Maybe the facts will throw in that the great deal is because of the love and affection the aunt feels for the nephew.

Aunt then decides to instead sell the house for more money to a purchaser who had no notice of the contract between the aunt and the nephew. Don't fall for the "inadequate consideration" trap which will imply that the nephew has no claim against the aunt. Just because one party to a contract gets a great bargain doesn't mean that there isn't a valid contract. To the contrary, contract law is intended to ensure that people get the benefit of those great bargains. And that others are bound by them. Nephew might not be able to recover the property from the purchaser of the home, but will likely have a claim for damages against the aunt for breaching the contract.

Personal Jurisdiction

There's a lot to know about personal jurisdiction for both the MBE and the essays on the UBE. 

Personal jurisdiction refers to a court's power over the defendant, and the determination has two components: first, the exercise of personal jurisdiction must fall within a state statute. In addition, exercising personal jurisdiction over the defendant must not violate the Constitution.

As to the first component, each state has a statute laying out the requirements for personal jurisdiction. Personal jurisdiction might require that the defendant is present in the forum state at the time of service, or that the defendant is domiciled in the state, or that the defendant has consented to jurisdiction, or etc. 

Although these statutes can differ, in many states a "long arm statute" allows courts to exercise jurisdiction to the full extent of the Constitution. Other statutes are more specific, providing for specific situations in which personal jurisdiction over the defendant is proper. It's important to note, though, that merely satisfying a specific state statute will be insufficient if the constitutional basis for personal jurisdiction isn't satisfied. 

The second component requires a constitutional analysis. The essential question to ask is whether the defendant has such minimum contacts with the forum state such that personal jurisdiction over the defendant does not offend "traditional notions of fair play and substantial justice." 

"Minimum contacts" seems open to interpretation, but there is some guidance. The two factors to consider are purposeful availment and forseeability. The contacts (in order to satisfy minimum contacts) must result from the defendant's purposeful availment with the forum state (a voluntary act). The defendant must reach out to the forum or target the forum. This does not, however, mean that the defendant must be present in the forum; it's possible to target a forum without making oneself present in the forum. Further, it must be true that the defendant could have foreseen that the defendant might be sued in the forum. 

Once through the analysis of minimum contacts, next is to determine if the plaintiff's claim is related to the defendant's contacts with the forum. If the claim does relate to the contacts then specific jurisdiction is at issue. With specific jurisdiction, fewer contacts (perhaps even just one contact) are required to satisfy the standard of minimum contacts since the claim relates to or arises out of the contact(s). If the claim does not relate to the contacts then general jurisdiction is at issue. With general jurisdiction, more contacts are required to satisfy the standard of minimum contacts. The contacts must be such that the defendant is essentially "at home" in the forum state. 

With specific jurisdiction, since a very limited number of contacts are required, it's also important to address whether personal jurisdiction would be fair or reasonable under the circumstances. A fairness analysis is not required with general jurisdiction since fairness is presumed if the defendant is "at home" in the forum. 

Fairness is, essentially, a due process consideration. But due process does not require that the suit will be in the most convenient forum for the defendant. Rather, to rebut fairness, the defendant must show that the forum will put the defendant at a severe disadvantage in the litigation. Also important is the state's interest and the plaintiff's interest in having the suit in the forum. In other words, the burden on the defendant should be weighed against the interest of the state and the plaintiff. 

Advice for the Final Month

The process of improving on the MBE actually begins with answering a question incorrectly while prepping for the test. Incorrect answers should be seen as an opportunity to limit what you don't know.

1: Answer a question incorrectly. 2: Extract from the answer explanation the rule statement that had you known it you would have answered the question correctly. The legal rule determines the answer to the question. 3: Spend some time not only thinking about how that legal rule would have led to the correct answer on that particular question, but also how it might show up in other fact patterns and how the rule might not apply the same way if the facts are different. This might seem involved, but still, it's all about better understanding a rule that you didn't know well enough when you answered the question incorrectly. 4: Later answer a question correctly using the rule from step 3. Never know when this opportunity will arise, but until it does you can't be sure you've learned the rule well enough. Once you start applying that rule correctly, you've limited your gaps in knowledge. That's all you can really ask for on this hellish test: limit (rather than eliminate) your gaps in knowledge!

Bar Exam Tip: (Essay Writing)

When writing a bar exam essay, think of yourself more as an analyst than as an advocate.

"X will argue that the terms of the statement were definite enough to be deemed a valid offer. Further, x will claim that a reasonable person in the position of the offeree would construe the statement as an offer to enter into an agreement. On the other hand, Y will claim that X's statement merely invites others to make an offer. Y will also claim that...."

As opposed to:

"The statement by x is an offer because...."

Simply put, under most circumstances (there could be exceptions to this general rule when there simply is no opposing argument) fight the strong urge to advocate for one of these made-up characters in the essays. They aren't paying you a fee to do so, after all. Instead, be like a legal reporter and simply explain to the graders what the lawyers on both sides will argue.

MBE Trap: Double Jeopardy

The trap in this area doesn't so much deal with the elements of double jeopardy (jeopardy attaching, decision on the merits, etc.).

Rather, it goes to something more fundamental: the requirement that the defendant be tried for the same offense twice before double jeopardy is even a consideration. The trap deals with the "same offense" terminology. Imagine the following: Offense 1 contains the elements A, B, C, D Offense 2 contains the elements A, B, C, D, E It might be tempting to think of these as two separate offenses. There's an element (element E) in offense 2 that's not in offense 1. You'll notice, though, that there is no element in offense 1 that is not in offense 2. For example, if you were to circle the element in each offense that was not in the other offense, you'd be able to circle element E in offense 2, but there would be nothing to circle in offense 1. These are considered "the same offense" for this purpose, and double jeopardy should be considered. In contrast, Offense 1: A, B, C, D Offense 2: B, C, D, E Here, if you were to circle the element in each offense that was not in the other offense, you'd be able to circle element A in offense 1 and element E in offense 2. Since you'd be able to circle an element in each offense, these are considered as separate offenses, and you should not even consider double jeopardy as a possibility.

MBE Trap: MIMIC

You’ll often be presented on MBE questions with facts indicating that improper character evidence has been offered. And that’ll be a choice in the answers: inadmissible character evidence, inadmissible propensity evidence, or something of the sort.

But before choosing that answer, make sure it’s not a trap. Just because a certain type of evidence cannot be offered for one purpose doesn’t mean it cannot be offered for another purpose. That’s an important theme throughout all of Evidence law: determining what evidence is offered is far less helpful than determining why the evidence is offered. There are five often tested non-character purposes for offering what might at first seem to be inadmissible character evidence: ~Motive ~Intent ~Mistake (it’s actually “absence of mistake,” but that would mess up the MIMIC thing). ~Identity ~Common Plan or Scheme These aren’t the only admissible purposes, though. Evidence won't be inadmissible for character purposes unless offered to prove a general character or propensity to commit the charged crime. If offered for another purpose it's admissible, unless inadmissible for another reason.

MBE Tip: Character Evidence

A few important points to keep in mind to clear up a topic that most of my students find confusing: character evidence in a criminal case:

In a criminal case, the defense can open the door with positive reputation or opinion evidence but *only if that evidence is pertinent to the crime for which the defendant has been charged. The prosecution cannot open the door with negative evidence in the way described above. That would be deemed inadmissible character evidence. But once that door has been opened, the prosecution can walk through it in two different ways. The prosecution can call on direct its own witness to rebut the defendant’s character witness. If it chooses that route, it’ll be limited to the same evidence the defense was limited to when opening the door: pertinent reputation or opinion evidence. The prosecution can instead choose to cross examine the defendant’s character witness. Here, the prosecution can rebut defendant’s character witness with reputation evidence, opinion evidence, *and evidence of specific acts by defendant. Why are specific acts allowed on cross but not on direct. The theory is that those questions are geared not towards proving the defendant’s character (which would be inadmissible character evidence) but instead towards impeaching the defendant’s character witness.