Free Chapter: Florida Bar Exam Essentials (Torts w/Florida Distinctions)

When an MBE subject shows up on the Florida essay portion of the Florida Bar Exam, the bar examiners expect to see lots of Florida law if applicable. 

Specifically, the board tells us:

"When Florida law varies from general law, the question should be answered in accordance with Florida law."

I've added a free sample downloadable here on the blog (right side of the page) of the Torts chapter from Florida Bar Exam Essentials to show how I've approached separating what needs to be known for the essays from what needs to be known for the MBE. 

Logic Games Strategy (LSAT)

For some, the Logic Games section of the LSAT comes naturally; for others, not as much, and for some, not at all. I probably fall in that middle category; I was not a natural like some others, but I did have a bit of innate ability which motivated me to want to get better at them. 

I've wondered what might make someone a natural at this skill. I don't have the answer, but one thing I noticed as I improved at these games is that I stopped seeing the rules as independent of each other and started seeing them as more of a system. Maybe this is a bit like a chess player seeing patterns on the board that aren't seen when just beginning to learn the game. Whatever the reason, I believe that people should work at this specific skill to improve their ability. I'll try to explain.

You'll be given a list of rules and most likely you'll notate each rule as you read each of them. Work on not viewing these rules as independent but instead trying to deduce how each rule plays itself into the larger system created by the rules as a whole. Sometimes this will be obvious. You might have a rule that says x is before y and then a second rule that says y is before z. Most people know that the following:

x...y 

y...z 

is not as helpful as 

x...y....z

But those are the easy ones. Where you start to get better at these games is when you're always considering how the rules play off each other, even when it's not nearly as obvious as my example above. And this won't only be true for sequencing games; it'll be true for grouping games, hybrid games, etc. 

This will take practice but with practice it'll take less practice. Your brain will begin to group the rules into smaller systems, and even group those smaller systems into a larger all encompassing system. I suppose that some just do this naturally, and that might account for why some are naturals at all this. But if you're not a natural, this is a skill that can be learned; work at it and you might even begin to enjoy the process! 

February 2023 Bar Exam Results

Still some time before results start trickling in for February 2023. It's not uncommon for some states to release scores in later March. Almost all states release some data as to how the candidates in their state performed and I'll organize that data below.

Once scores are released, I'll post here the pass percentages for each state as they release them. Listed, for comparison, will be the percentages for both February 2023 and February 2022.

Good Luck!!

All best to those preparing for the February bar exam next week. Posting for both the LSAT and the bar exam will resume soon after the bar exam next week. 

IRAC Simplified

Not to over-simplify, but the crux of what you're trying to do with bar exam essays is the following. And if you do it well, with enough knowledge of the law, you're going to score high. For each issue you've spotted:

1: tell the graders the question you hope to be able to answer in your conclusion. 2: provide the graders with the law you'll need to answer that question from step 1. More law than you need loses time, less law than you need loses points. Aim here for the perfect balance.

3. Take that law from step 2 and bring in the facts that the graders have provided you. It's the combination of the law from step 2 and these facts that allow you to answer the question you've asked in step 1. Analyze each element of the legal rule as if taking apart an engine and examining each individual component. That's essentially what legal analysis is, analyzing components of legal rules.

4. Through your analysis in step 3, answer the question you asked in step 1.

It's IRAC, nothing new here. And it's perfect for a bar exam.

Essay Answer: February 2015 UBE: Real Property

When I work with students on essay writing, as part of that program I provide students with my own answers to any essays I assign. I'm going to provide those answers here on the blog as well. Note that the questions will need to be purchased directly from the NCBE @ https://store.ncbex.org/mee-bar-exam-value-pack/. Included here are answers I've written to those previously administered essays. 

February 2015: Real Property

An initial issue is whether the acts by the man, the sister, and the buyer were sufficient to allow them to acquire title by adverse possession to the ½ acre tract that they possessed. There are a variety of factors required to acquire title by adverse possession. The possession must be exclusive, actual, open and notorious, hostile, and must be continuous for at least the statutory period. To be actual, the possession must be consistent with how a property owner would use the land. Open and notorious requires that the acts would put a reasonable person on notice that the property has been possessed by another. To be hostile generally requires that the possessor is possessing the property without the owner’s permission. To be continuous, periods of possession can be aggregated provided that those aggregating their periods of possession are in privity with each other. Privity requires that there is a relationship among the possessors arising due to transfer, descent, bequest, etc. 

 

The facts state that the possession was exclusive. In addition, we are told that the possession included acts such as building and occupying a cabin as well as planting, harvesting, and maintaining a garden. Such acts are consistent with how a property owner would generally use the property. Further, the cabin and garden would have been very noticeable to a reasonable person. Not only were they visible, but when the owner previously acquired the land, it had been vacant. It is no longer vacant, and this is something that would have been easily ascertainable when viewing the property. There is no indication that the property was possessed with the consent of the owner; rather, the facts indicate otherwise. There is a question as to whether the property was possessed continuously for the statutory period since neither the man, the sister, nor the buyer possessed for the full 10 years. The man and the sister, however, were in privity due to testamentary succession. The sister and the buyer were likewise in privity due to voluntary transfer.

 

The elements of adverse possession appear to have been satisfied since the possession seems to have been exclusive, actual, open, notorious, and hostile. In addition, because there was privity between the man, the sister, and the buyer, they can tack on the time they possessed to satisfy the requirement that possession is continuous for the statutory period. Because all elements appear to have been satisfied, it is likely that the man, the sister, and the buyer combined to acquire title by adverse possession and since the buyer is currently in possession, the buyer likely has title by adverse possession to the ½ acre tract.

 

Next, it should be determined whether the buyer has acquired title to the other unpossessed 2 ½ acres of property. Constructive adverse possession provides that if a possessor begins to adversely possess property under color of title then even if the possessor possesses only a portion of the land, the possession will constructively extend to possession of all the land. Color of title requires that the possessor enter the property with an instrument (such as a deed) which would create in the mind of the possessor the possibility that the possessor has title to the property. 

 

Here, neither the man nor the sister had a deed to the property when possessing it. The buyer did have a deed and has a better argument for color of title, but the buyer’s possession only amounted to 7 years which is less than the statutory period requires. 

 

Thus, because there was no color of title throughout the statutory period, it is not likely that the doctrine of constructive adverse possession will apply. And if the doctrine does not apply, then title will only extend to the portion of the property that was actually possessed, the ½ acre. 

 

Next is to determine whether the buyer is entitled to damages from the sister. A warranty deed contains a variety of covenants, and among them are the covenant of seisin and the covenant of the right to convey. Both of these covenants guarantee to the purchaser of the property that the seller has ownership rights as to the conveyed property. If a seller does not have such ownership rights, the covenant is breached.

 

Here, the sister purported to convey a general warranty deed to the buyer. She purported to convey all of the property and not just the property that was actually possessed by the man and the sister. As per the above, it is not likely that title was acquired to any property that was not possessed and so when the sister purported to convey it she was claiming to own property that she did not actually own. 

 

Therefore, because the sister purported to convey title to property that she did not actually own, it is probable that she breached the covenants in the general warranty deed. And as such, the buyer should be entitled to damages for that breach.

 

The final issue is to determine whether the buyer can compel the company to remove the sewer lines that are beneath the property that the buyer purchased. When a person acquires title by adverse possession, the person who acquired the title receives no greater rights than the original owner who is now barred from claiming ownership.

 

As per the facts, the original owner of the property granted a properly-recorded easement to a private sewer company. There is no indication that when the man, the sister, and the buyer possessed the property they did so in a way that might have adversely possessed the easement. To the contrary, there is no indication that any of them were aware that the easement existed.

 

Thus, the original owner of the property was subject to an easement which was not likely extinguished by the fact that that property above the easement was adversely possessed. And because the original owner of the property was subject to the easement, the buyer as well will likely be subject to the easement on the property that the buyer now owns.

 

Judicial Notice

Although it's not a topic tested extensively, it seems to me the rare MBE that doesn't include at least one question on judicial notice. There are a few things to know on this topic: the first is the kinds of facts that might be judicially noticed. Next is the procedure for taking judicial notice of a fact. Lastly is the timing of judicial notice and some differences depending on whether the case is civil or criminal. 

Here's the crux: A fact that is not subject to reasonable dispute might be judicially noticed. But then, what renders a fact not subject to reasonable dispute? A fact is not subject to reasonable dispute if it is generally known within the trial court's territorial jurisdiction or if it can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned. 

Assume the above applies. If so, the court may take notice on its own. On the other hand, if a party requests judicial notice (and the fact to be noticed is as outlined above) the court must take judicial notice of that fact.

As for when judicial notice is appropriate, this rule is very broad. The court may take judicial notice at any stage of the proceeding. On timely request, a party is entitled to be heard on both the propriety and nature of the fact to be judicially noticed. If the court takes judicial notice without notifying a party, that party is still entitled to be heard on the same. 

Lastly, and this last point is tested often, in a civil case, the court must instruct the jury to accept the judicially noticed fact as conclusive. In contrast, in a criminal case, the court must instruct the jury that it can (but is not required to) accept the judicially noticed fact as conclusive. 

Excluding Witnesses from the Courtroom

With 175 scored questions on the MBE, no one questions seems all that significant. But it's nice to get them right. You'll probably see one question on excluding witnesses from the courtroom. Here's what's to know:

At any party's request, the court *must order witnesses excluded so that they cannot hear other witnesses' testimony. Without such a request, the court may do so. But under no circumstance may the court order the following witnesses removed:

--a party to the lawsuit (if the party is a natural person) --an officer/employee of a party that is not a natural person (for example, a business) who has been designated as representative of that party (for example, the manager of a business) --any person who is essential to a party presenting a claim/defense

--a person authorized by statute to be present All that is to say there is a mandatory component to removal, a discretionary component to removal, and then 4 exceptions to both the mandatory and discretionary components to removal.

Essay Answer: July 2017 Florida Bar Exam (UCC 3/9)

When I work with students on essay writing, as part of that program I provide students with my own answers to any essays I assign. I'm going to provide those answers here on the blog as well. The question that corresponds to this answer is found on page 39 @ https://www.floridabarexam.org/__85257bfe0055eb2c.nsf/52286ae9ad5d845185257c07005c3fe1/f9219c0da8c322cc8525824e00736741

July 2017: Florida Bar Exam:

First, it should be determined whether any security interest has attached since a security interest is enforceable only once it has attached. Attachment occurs when there is an authorized security agreement for value but only if the debtor also has rights in the collateral. The security agreement must be signed by the debtor and must reasonably identify the collateral. Attachment can also occur if the creditor takes possession or control of the collateral. 

 

Here, we should begin with Uncle’s security interest. Debbie had rights in the antique car, and value was provided by Uncle. We are told that a promissory note was signed but there is nothing in the facts to indicate that a security agreement was signed between the parties. A question will be whether the promissory note is sufficient evidence to indicate that the parties agreed to enter into a security agreement. The words “as collateral” were used in the agreement between Debbie and Uncle which points in favor of treating this agreement as a valid security agreement.  

A similar question involves First Bank. Debbie had rights in the collateral and value was provided by the bank. The facts do not tell us that a security agreement was signed, but unlike with Uncle, here we are told that a financing statement was entered into between Debbie and First Bank. That should suffice. 

 

Thus, there are still some important questions to examine but it appears that a security interest has attached both as to the Debbie/Uncle agreement and as to the Debbie/First Bank agreement.

 

Next, it should be determined whether the potentially attached security interests have been perfected. To acquire priority over third parties, an attached security interest must be perfected. There are five methods to perfect a security interest: filing, taking possession of the collateral; control; automatic perfection; and temporary perfection. In addition, in Florida, a security interest in motor vehicles can be perfected only by notation on the vehicle’s certificate of title indicating that there is an existing security interest. As to filing, a security interest may be perfected by filing (either written or electronically) a financing statement indicating the collateral that is the subject of the security interest. There’s an exception for car dealerships which does not apply here. 

 

Beginning with Uncle, we are told that, as required, the car’s title was mailed to the Department of Highway Safety and Motor Vehicles, and that Uncle received a new title listing him a lien holder.  Next, as to her arrangement with First Bank, Debbie filed a financing statement naming herself as the debtor and listing the collateral as all cars and all merchandise listed as sale in the museum now owned or later acquired. First Bank did not note its security interest on the certificate of title for the cars it is using as collateral. In Florida, this will pose a problem for First Bank.  

 

Thus, it seems likely that the security interest held by Uncle has been perfected, but the security interest held by First Bank is likely to have not been perfected. 

 

The next issue is to determine the priority of the various security interests potentially held by Uncle and First Bank. In addition, it should be determined what rights the party with priority has upon default. A perfected security interest generally prevails over an unperfected security interest. When there are two unperfected interests, the first to attach has priority. When there are two perfected security interests, they will rank according to time of filing or perfection whichever is earlier. A buyer generally takes free of an unperfected security interest in the same collateral if the buyer gives value and receives delivery of the collateral without knowledge of a prior existing security interest. After default, a secured can sell, lease, license, etc., the collateral, provided that the debtor and other secured parties are given notice. If disposing of the collateral, it should be disposed in a commercially reasonable manner. 

 

Here, as per the above analysis, it seems that Uncle has a perfected security interest, and First Bank does not. If that’s correct, then Uncle will have priority over First Bank. Priority would grant Uncle the right to dispose of the car used as collateral for Uncle’s loan since Debbie has defaulted. Uncle would also have priority over Buyer since Uncle’s security interest was perfected. First Bank does likely have a valid security interest in eight of the cars (all cars other than Uncle’s collateral and the car sold to Buyer.) Buyer would likely have priority over First Bank as to one of the cars since the facts provide nothing reliable to suggest that Buyer knew of First Bank’s unperfected security interested at the time that Buyer purchased the car for $25,000. 

 

Thus, is it probable that as between Uncle and First Bank, Uncle has priority over the one car used as collateral for Uncle’s loan. First Bank has a security in the interest in 8 of the cars. Buyer has rights over First Bank in the car that Buyer purchased. Both Uncle and First Bank will likely be able to dispose of their collateral since Debbie has defaulted on all loans.

 

We should now move on to Carlos. Consignments are covered under Article 9 of the UCC if the consignor delivers goods to a merchant for the merchant to sell. The merchant must deal in goods of that kind, not operate under the name of the consignor, not be known by creditors to be substantially engaged in selling the goods of others, and not be an auctioneer. The goods must be valued at least $1,000 and must not be classified as consumer goods immediately prior to delivery to the merchant. A consignor is generally treated as a secured party holding a purchase-money security interest (“PMSI”) in inventory.

 

Here, Debbie is likely to be considered a merchant for purposes of the goods sold since she deals in antiques. She does not operate under Carlos’s name nor do the other limitations apply to her. The goods sold are likely inventory (goods held for sale) and presumably are valued at more than $1,000 since one sold for $5,000.  

 

It seems, then, that UCC 9 should apply to the arrangement between Debbie and Carlos. And as for attachment, applying the elements as stated above for attachment, it appears that Carlos has an enforceable security interest in the antiques. That security interest would likely be deemed a secured PMSI in inventory as per the rules of consignment.

 

We should now determine, as between First Bank and Carlos, who has priority in the antiques. A PMSI in inventory prevails over other security interests in the same collateral provided that the PMSI is perfected by the time the debtor receives possession of the collateral and the PMSI holder sends notice to all conflicting holders of security interests in the same collateral.

 

Here, there are no facts to indicate that Carlos sent any notice to First Bank, and assuming Carlos did not, he will not be able to rely on the PMSI rules for priority. So, we must evaluate this under the more general rules. First Bank perfected its security interest in the antiques when it signed its financing statement and that happened before the consignment with Carlos. As per the above, when there are two perfected security interests, the first to perfect has priority. 

 

Thus, it appears that although Carlos has a valid security interests in the antiques, First Bank will have priority over Carlos as to those antiques. First Bank should therefore have the right to dispose of those antiques upon Debbie’s default. 

 

The next issue involves the money received by Debbie from the sale of the gas station pump. A perfected security interest in collateral will remain temporarily perfected as to any proceeds of that collateral for 20 days from the time that a security interest in the proceeds attach. Perfection will continue beyond 20 days if the financing statement covering the original collateral was filed, the proceeds may be perfected by filing in the same office in which the financing statement was filed, and the proceeds are not acquired with cash proceeds.

 

Here, as per the above, First Bank had priority over the antiques. The money received for the antique sold would be deemed proceeds of the antiques. 

 

Thus, at the least temporary perfection will accrue to First Bank for the proceeds of the antiques. Some more facts would be helpful in determining whether that perfection will extend beyond 20 days or whether First Bank will need to take additional steps for extension. If First Bank is deemed to have priority over Carlos, Carlos may be forced to rely on contract law if he hopes to recover. 

 

Next, there are a few Article 3 UCC issues to address. The first is whether the check given to First Bank for the sale of the gas pump is negotiable and whether it was negotiated. For a check to be negotiable it must be in writing and signed by the maker/drawer, contain an unconditional promise or order to pay a fixed amount of money. It must be payable to order or bearer, payable on demand or at a definite time, and must not state any additional undertaking or instruction. Negotiation is delivery by a person other than the maker or drawer to a person who then becomes a holder of the instrument. If the instrument is payable to order, then negotiation requires that the instrument is indorsed (generally signed by the person negotiating the instrument).

 

Here, Debbie sold the pump and accepted a check. It was signed and contained an order to pay $5,000 to the order of Debbie Debtor, Carlos Consignor. It was payable on demand and contained no additional undertaking or instruction. There was both a transfer and an endorsement since Car Buyer signed the check making it payable to Debbie and then gave the check to Debbie. 

 

Thus, it appears the check is negotiable and that the check was negotiated from Car Buyer to Debbie.

 

Next is to determine if Debbie is a holder in due course of the check. To become a holder in due course, one must take the instrument as a holder, for value, in good faith without notice of wrongdoing on the part of the person transferring the instrument.

 

Here, Debbie, a holder of the check, provided value (the car). She likewise took the check in good faith. That would not be true if she knew that William had a claim against Car Buyer, but the facts provided us no reason to think that’s so. 

 

It thus appears that Debbie is a holder in due course. 

 

We should not determine whether First Bank has any liability for cashing the check. The issuer of a check (here, First Bank) must pay a check when the check is presented to the issuer. The issuer can, however, refuse to pay if a valid defense to payment exists. A customer of a check may order to stop payment of a check unless the check is a certified check. That isn’t to say that a bank cannot stop payment of a certified check; rather, a bank is not required to do so.

 

Here, after receiving William’s request, First Bank stopped payment by dishonoring the check. First Bank was in its right to do so, even if it was not required to do so. 

 

Thus, even though Debbie will likely be deemed a holder in due course, First Bank should have no liability towards either Debbie or towards Car Buyer for dishonoring a check subject to a “stop payment” order. 

Florida Bar Exam Essentials: Article 9 UCC: Secured Transactions (Sample)

Lots of people are reasonably concerned about Article 9 UCC (as well as Article 3 UCC) showing up on the Florida exam this month. It's been a while, but Florida can be especially difficult to predict. Below is a sample from the chapter on this subject from Florida Bar Exam Essentials. The book in its entirety is available for immediate download here on the blog. 

Essay Answer: July 2015 UBE (Torts)

When I work with students on essay writing, as part of that program I provide students with my own answers to any essays I assign. I'm going to provide those answers here on the blog as well. Note that the questions will need to be purchased directly from the NCBE @ https://store.ncbex.org/mee-bar-exam-value-pack/. Included here are answers I've written to those previously administered essays. 

July 2015: Torts

An initial issue is whether the friend might be liable to the boy on a theory of negligence. Generally, when determining if a child has breached a duty of care for purposes of establishing negligence, the child’s conduct will be judged against the standard for a child of like age, experience, and intelligence. However, the standard changes when the child is engaged in an adult activity or a hazardous activity normally only engaged in by adults. In those circumstances, the child may be held to the standard of an adult. And that standard will dictate that if the child acts differently than a reasonable adult would have acted under similar circumstances, the child may breach a duty of care. In addition to a breach of duty of care, a finding of negligence requires both cause in fact, proximate cause, and damages. Cause in fact requires that but for the act, the injuries would not have occurred. Proximate cause requires that the acts presented a reasonable foreseeability of harm. 

 

Here, the friend is 10 years old and if held to the standard of a child it is unlikely that the child’s acts would have skewed from the acts of a reasonable child to the extent required for a finding of negligence. The friend here was, however, driving a motorized vehicle (a snowmobile) which is an activity generally only engaged in by adults. The facts tell us that the snowmobile was used in a rocky, forested area. Further, we’re told that the friend turned off the trail into a trail not designated for snowmobiles. A reasonable person would have been likely to understand the dangers of doing such a thing especially since the facts make clear that such places often contain hazards that may not be readily visible. In addition, but for the friend deciding to turn off the trail, the injuries that occurred would not have occurred, and those injuries are the exact injuries that one might expect from this decision.

 

Thus, because the friend was engaged in an adult activity and because it’s likely that the friend’s acts skewed sufficiently from how a reasonable adult would have acted, it’s likely that the friend may have breached a duty of care to the boy. Both cause in fact and proximate cause appear to have been satisfied here, and so it is likely that there may be a finding of negligence against the friend if brought by the boy.

 

Next, it should be determined whether the landowner might be liable to the boy on a finding of negligence.  A landowner owes a duty of care to those on the landowner’s property, but that duty is often dependent upon the how the person on the landowner’s property is classified. A trespasser is one who enters the property of another without a privilege to do so. If, however, a reasonable person in the position of the person who enters the land would believe that there has been consent to do so, then the person may be deemed a licensee rather than a trespasser. If a person is classified as a licensee, the landowner will generally owe that person a duty to reveal hidden dangers of which the licensee would reasonably be unaware, assuming that the landowner knows or should know of those dangers. 

 

Here, the facts indicate that the boy and the friend had no privilege to enter the landowner’s property so they might be trespassers. The landowner, however, did not make it obvious that the land was not open to the public since the “no trespassing” sign was not visible. It should be further determined whether it should have been reasonably foreseeable to the landowner that others might mistake the land to be open to the public because if a reasonable person in the position of the landowner should have realized this and failed to do so, then it may have been reasonable for others to believe they had the right to enter which would make the others licensees rather than trespassers.

 

Thus, determining the duty owed by the landowner to the boy requires a determination as to whether the boy and the friend should be classified as trespassers or licensees. The facts leave open both of these possibilities. If a licensee, a duty of care is owed, but if trespassers, further analysis is required.

 

Next, assuming the boy and the friend are deemed to be trespassers, it should be determined whether the attractive nuisance doctrine might apply. Under this doctrine, a possessor of land is subject to liability for physical harm caused to a trespassing child when the harm is caused by artificial conditions on the land and the land is such that children often trespass so that the possessor of land knows or has reason to know of the probable trespass. In addition, the possessor must know or have reason to know that the condition on the land poses a risk of death or serious physical injury to the trespassing children. It also must be true that the children because of their age do not recognize the risk involved and that the utility of the condition as well as the burden of eliminating it is slight compared to the risk involved in keeping the condition on the property. Finally, it must be true that the possessor of the land does not exercise reasonable care in preventing harm to the trespassing children.

 

Here, the landowner was aware that the logging trail intersected the snowmobile trail, and that many children would utilize the snowmobile trail. Further, the landowner knew that any sign that might deter a child from deviating into the logging trail could easily become obscured by snow. The risk to anyone, especially a child, who deviated as such was significant and obvious. The boy and his friend did not recognize the danger of the hidden chain. The burden of eliminating the risk is small; all that would be required would be a sign warning of the danger that would not be obscured by the snow. And the risk of harm was significant. The landowner faced with these facts might argue that because the kids were engaged in an adult activity, the attractive nuisance doctrine should not apply.

 

Thus, if the boy and his friend are deemed to be trespassers, the attractive nuisance doctrine might still allow them to recover from the landowner. The landowner’s argument that the doctrine should not apply because the kids were engaged in an adult activity will be a valid argument, but ultimately may not avoid recovery for the children. 

 

The next issue is to determine whether the woman had a duty to the boy for which the boy might recover. Generally, there is no duty to come to the aid of another. Someone who decides to help another may then have a duty of care to render assistance if the failure to continue exercising care increased the risk of harm beyond the risk that would have existed had care never been given and if the person receiving the care relies on the other exercising reasonable care. 

 

Here, it’s important to determine whether the woman increased the risk of harm beyond that which would have existed had she not called for help. That does not appear to be true.  Had the woman not called for help, not only would the harm not have been less, but it likely would have been worse. Had she not called for help, the same injuries that occurred likely would have occurred and it’s reasonable to assume that certain injuries were prevented that might have occurred as well. 

 

As such, it is not likely that the woman will face any liability to the boy since it does not appear that she breached a duty of care owed to the boy. 

 

Lastly, it should be determined the consequences of recovery for the boy if it’s determined that the boy was also negligent and thereby partially caused his own injuries. At common law, if a plaintiff was negligent and the negligence at least partially caused his own injuries, the plaintiff would be precluded from any recovery for those injuries. This is called contributory negligence. But many states now apply comparative negligence in which a negligent plaintiff is not entirely barred from recovery; rather fault is apportioned and damages are awarded accordingly.

 

Here, we are told that the boy was an experienced snowmobiler and so it’s entirely reasonable to assume that the boy would have been aware of the all the risks here in allowing his friend to drive the snowmobile. But the boy did not bear the entire risk—the risk and fault here would be apportioned among both the boy and the friend.

 

Thus, even if the boy is deemed partially at fault for his own injuries, that is not likely to prevent recovery entirely. More likely is that damages will be awarded with a consideration of the various degrees of fault for all who failed to exercise adequate care. 

Evidence Tip

Assume defendant, an accountant, has been charged with fraud for allegedly helping a client file false tax returns. The prosecution offers evidence of the defendant’s involvement in an earlier scheme to help a different client file false tax returns. 

Is that evidence admissible?

 

It depends. If the prosecution is offering the evidence to show that the defendant has the character of someone who would commit tax fraud, then no. That’s exactly the kind of propensity evidence that does not get admitted. Improper character evidence. 

 

But what if the defendant has claimed that this was all an honest mistake. And the prosecution is offering this evidence of defendant’s involvement in a prior scheme to rebut that “honest mistake” defense. The theory is that multiple identical mistakes are not likely. Then the evidence may well get admitted. 

 

I bring all that up for one reason. Evidence makes a lot more sense when you ask why the evidence is offered, rather than what evidence is offered. Asking what evidence is offered here isn’t helpful; that evidence likely gets admitted for one purpose, and likely does not get admitted for another.  Always ask why and the subject starts to make a lot more sense. 

*note: the above implicates what is commonly referred to as the MIMIC rule. But go a step further to understand rather than just memorize. 

Florida Bar Exam Essentials: Property Distinctions (Sample)

Another subject on Florida Bar Exam essays for which it'll be important to know MBE distinctions is Property. Below is a sample from the chapter on Property covering Florida distinctions from Florida Bar Exam Essentials. The book is available in its entirely for immediate download here on the blog. 

Florida Bar Exam Essentials: Florida Torts Distinctions (Sample)

Along with covering every subject tested on the Florida Bar Exam, Florida Bar Exam Essentials covers the Florida distinctions you'll need to know for the MBE subjects tested on the essay portion of the exam. A sample from the chapter on Torts is covered below, and the book is available for immediate download here on the blog at a discounted rate through the February exam. 

Essay Answer: February 2017 UBE: Agency

When I work with students on essay writing, as part of that program I provide students with my own answers to any essays I assign. I'm going to provide those answers here on the blog as well. Note that the questions will need to be purchased directly from the NCBE @ https://store.ncbex.org/mee-bar-exam-value-pack/. Included here are answers I've written to those previously administered essays. 

February 2017: Agency

An initial matter is to determine who is liable to the chip manufacturer: the inventor, the woman, or both the inventor and the woman. For an agent to be liable to a principal for a contract entered into with a third party, the agent must have actual or apparent authority to enter into that contract. This is true regardless of whether the agent discloses to the third party that the agent is acting on behalf of a principal. Stated otherwise, even if the agent makes such a disclosure, the principal will not be liable absent actual or apparent authority on the part of the agent. Actual authority exists when the principal causes the agent to reasonably believe (either through spoken or written communication) that the principal desires the agent to act on the principal’s behalf. Apparent authority exists when the principal causes a third party to reasonably believe (again, through spoken or written communication) that the principal has agreed to have the agent act on the principal’s behalf. When an agent purports to act on behalf of a principal even though that agent has no authority to do so, any third party who suffers damages will recover from the agent alone. 

 

Here, both actual and apparent authority are lacking. The facts do not provide any indication that the inventor (the principal, here) caused the woman (the agent, here) to reasonably believe that the inventor desired the woman to purchase these specific computer chips. To the contrary, the inventor told the woman to purchase series A chips, not series B chips. To be sure, actual authority would exist as to the purchase of series A chips, but it does not exist as to the series B chips that the woman purchased. And as to apparent authority, there is likewise nothing in the facts to indicate that the principal manifested to the chip manufacturer that the woman had been directed to act for the inventor. The woman disclosed to the chip manufacturer that she was acting on behalf of the inventor, but that alone will not suffice for apparent authority. Because the woman did manifest her authority to act on behalf of the inventor, she will be liable on that contract with the chip manufacturer on a theory of warranty. She purported to act on behalf of a principal even though she had neither actual nor apparent authority to do so.

 

Accordingly, the likely result here is that the woman alone will be liable to the chip manufacturer on the contract between the woman and the chip manufacturer. Because the woman had no actual or apparently authority to enter into that contract on behalf of the inventor, the inventor is unlikely to face liability. 

 

Next to determine is who is liable to the blue-lens manufacturer: the inventor, the woman, or both the inventor and the woman. An undisclosed principal is a principal whose existence is not known to a third party. An agent who purports to act on his/her own behalf with a third party but in fact is acting with the actual authority of an undisclosed principal will be liable to third parties. In addition, the undisclosed principal will also be liable to third parties for any acts taken by the agent that the agent had the actual authority to perform. 

 

Here, the woman had actual authority from the inventor to purchase blue lenses at a price not to exceed $300 per unit. The woman purchased the lenses for $295 per unit. Because she did so with the actual authority of the inventor, the inventor will be held liable on this contract between the woman and the blue-lens manufacturer. And this is true even though the inventor was undisclosed and not known to the third party. The woman is also liable because she purported to act on her own behalf with the blue-lens manufacturer even though she was acting with the actual authority of the inventor. 

 

Thus, as to the contract for the blue-lenses, both the woman and the inventor will likely be held liable to the blue-lens manufacturer. 

 

Last to determine is the extent of liability to the shutoff-switch manufacturer. When a third party contracts with a person and the third party knows that the person is acting with the authority to act for a principal, but the third party is unaware of the identity of the principal, that principal for whom the agent is acting is known as a partially disclosed principal. A partially disclosed principal will be held liable on contracts entered into with agents if those agents acted with actual or apparent authority on behalf of the partially disclosed principal. Even if the agent does not have actual or apparent authority to act on behalf of a partially disclosed principal, the principal might still be liable if the principal ratifies the acts of an agent. Ratification occurs if the principal’s conduct justifies a reasonable assumption that the principal consents to the act performed by the agent on the principal’s behalf. Ratification, however, doesn’t absolve the agent of liability. The agent might be liable since the agent warranted to the third party that the agent had the authority to act on behalf of the partially disclosed principal. 

 

Here, the inventor would be deemed a partially disclosed principal since the woman told the shut-off switch manufacturer that she was acting on behalf of a principal, but she did not reveal the identity of the principal. The inventor accepted the shut-off switches and then used them in the production of the mowers. In doing so, it’s reasonable to think that the inventor consented to the woman entering into this contract with the shut-off manufacturer and as such the inventor ratified that contract between the woman and the shutoff-switch manufacturer. The inventor will be liable, but that will not prevent liability as well on the part of the woman since the woman did warrant to the shut-off switch manufacturer that she had the authority to act on behalf of the inventor. 

 

As such, it is probable that both the woman and inventor will be held liable to the shutoff-switch manufacturer. 

 

LSAT Timing Tip

The following applies to all sections but I think it's especially applicable to the reading comprehension section of the exam. Many people struggle with timing and they'll rush through the sections with the goal of answering all the questions in a given section. 

The better approach, until you feel that you can answer all the questions without also feeling like you're rushing through the questions quicker than you'd like, is to set a goal of answering most of the questions correctly, and accepting that a certain number of questions will be guessed. 

For example, take the reading comprehension section, the section for which I believe this advice is most applicable. The section is 35 minutes in length. Assume you decide ahead of time that your goal will be to answer the questions correctly in the first 3 passages rather than the questions in all 4 passages. That'll probably mean answering 19 or 20 questions as opposed to, say, 27 questions. If you're able to achieve that goal, you then move on with whatever time remains and try to pull a couple of points from that final passage. Also, it's not too unlikely that you'll guess correctly on a few of them. 

In other words, if achieved, you'll score solidly on that section and likely you'll score better than if you had the goal of getting through every question. With that you might have rushed through the first 3 passages so that you could get to the 4th and in doing so made many more errors along the way. 

The above is a strategy. The point is to say that there are multiple roads to scoring very well on this exam, and some of those roads are less intuitive than others. But be creative, and play towards your strengths.