Conclusions on Essays

A student asked a question that I thought was important enough to address here. 

Definite conclusions are not necessary on a bar exam. There may be times when a conclusion is definite (I'm thinking of, say, an issue asking whether diversity jurisdiction is satisfied), but the fact that some conclusions are definite does not mean that you've done something wrong if some of your conclusions are indefinite. In fact, and this is something that over the years, I've seen students struggle with, the bar exam writers are looking for nuance: they are looking for answers that understand and respect the complexity in a given legal issue and aren't so quick to advocate for one side winning, even if the question tells you that you represent a specific party in the lawsuit. Most answers do have one side that is stronger than the other, and the conclusion is an opportunity to let the graders know that you recognize that. But not all answers. For some, the best conclusion is that more information is needed to draw a conclusion. When you get into advocacy mode and decide that in order to convince the graders that you've come up with the right conclusion you've got to downplay any strengths of the opposing side, you end up leaving many points on the table. Get those points; they'll benefit you more than they'll benefit the table.

Bar Exam Essay Writing Tips

The framework here does take time and effort to get good at. But, (and I don’t mean to say that this is the only way to write a bar exam essay), it’s the approach I teach to maximize scores.

Spot the legal issue. Let the graders know you’ve spotted it. Clearly and succinctly. Write down the legal rule(s) that will help you to analyze the legal issue. Here’s the part that takes practice. Although you’re writing down the full rule(s), you have to work on seeing the individual components of the rule. Not the engine, each component of the engine. Certain components might need their own definitions. In your mind, that rule has to break up into component parts, because legal analysis requires analyzing each component part of a rule. Might come naturally for some; others might need lots of practice. Analyze each component part of the rule by explaining how both sides will claim that the individual component benefits them. So, for example, “contact” is a component of battery in Torts. If it’s questionable if contact was made, explain what both sides will say about this. It may true that as to a specific component, the argument only runs one way. Don’t force those; that’s fine, too. Once you’ve analyzed each component (when applicable), bring all the components back together to draw a probable conclusion as to how the issue you’ve spotted will likely be resolved.

Self Defense

A helpful way to learn self defense is to separate the defense into situations in which non-deadly force is allowable from situations in which deadly force is allowable. There's more to say about deadly force, but first, non-deadly force. 

A person who is not initially at fault may use such non-deadly force as the person reasonably believes is necessary to protect against the imminent use of unlawful threat upon that person. There is no duty to retreat prior to using non-deadly force. 

It's worth noting the word "reasonably" above. A word like that turns this test into one that focuses not on the subjective perception of the person claiming self defense, but instead asks whether a reasonable person would have believed that the non-deadly force was necessary. This objective standard also applies when deadly force is involved. You'll see the word "reasonably" used often in this post. 

The use of deadly force for self defense has a bit more complexity to it. A person may use deadly force  only if the person is without fault and is confronted with unlawful force. Further, the person claiming self defense must reasonably believe that imminent death or great bodily harm is threatened upon that person. 

There is generally no duty to retreat before using deadly force (and this is the majority rule to apply by default on the UBE), but the minority view is that a person must retreat before using deadly force if retreat can be done safely. But even the minority view does not require retreat if the attack occurs in the victim's home, the attack occurs while the victim is making a lawful arrest, or the assailant is in the process of robbing the victim.

Occasionally, an initial aggressor will claim the privilege of self defense. If one is the initial aggressor, one may not use force (deadly or non-deadly) in defense unless the initial aggressor withdrew from the confrontation and communicated to the other the desire to withdraw, or if the victim of the initial aggressor suddenly escalates a confrontation by the initial aggressor and the initial aggressor has no opportunity to retreat. 

The above sets forth all the rules for self defense that you'll need to know, but there are a few topics that are adjacent to self defense, and worth noting. Occasionally someone might claim a privilege to defend others rather than oneself. A person can defend others if the person reasonably believes that the other has the legal right to defend himself. The person defending the other can use the degree of force that the person reasonably believes the other has the legal right to use. 

Lastly, a person can use non-deadly force to defend their dwelling if the person reasonably believes that such conduct is necessary to prevent or terminate another's unlawful entry into or attack upon the dwelling. Deadly force is never allowable to defend the dwelling, but it may be used to prevent a violent entry into the dwelling if a person reasonably believes that the use of force is necessary to prevent a personal attack on themself or on others or to prevent a felony in the dwelling. 

A Common UBE Trap:

An agent will inform a third party that the agent is acting for the principal, even though the agent has no actual authority to act for the principal. It might seem, then, that the agent has apparent authority to act since it would be reasonable for a third party to think that the agent, apparently, has the right to act. But it's important to remember that apparent authority exists only if the principal holds out the agent as possessing that authority to act. The trap here, used time and again on the UBE, is to treat apparent authority as having been met because of words or conduct by the agent towards a third party.  

The policy here that will help you to remember this distinction is to remember that the principal will be bound by the agent's apparent authority. Because the principal will be burdened, the principal will need to be the cause of that burden. 

A Note on Homicide

Words like “first degree murder,” “second degree murder, “premeditation,” and etc., shouldn’t even enter your thoughts when answering a homicide question on the UBE. Of course, a statute (or the Model Penal Code, or etc.) can appear in a question which modifies things, but if applying the default, common law, rules, those classifications do not exist.

Rather, there are four ways to commit murder and they don’t deal with degrees.

~You can intend to kill someone and the person dies as a result.

~You can intend to cause serious bodily harm towards someone and cause the person to die.

~You can act recklessly and cause the person to die. (Check your heart; it might be depraved!)

~You can engage in an enumerated felony and kill someone during that engagement (felony murder).

That’s it: nothing more, nothing less. Unless there’s a statute.

Contract Law Tip

x owes money to y.

y forgets to collect, such that the statute of limitations has run. x, for moral reasons or otherwise, puts in writing that he’ll pay the debt even though he’s no longer legally obligated to do so. You might be thinking that x owes nothing to y. The theory might be that when x promised to pay a debt he no longer owed, that was a gift, not a contract. Everything you’ve ever learned about consideration in contract law would lead you to that result. Not so much. If a debtor promises to pay a debt that’s been barred by the statute of limitations, the debtor will be bound to pay the amount promised (which could differ from the amount of the original debt) provided the promise is in writing. Filed under “contract law is weird.”

Past Recollection Recorded vs Refreshing Recollection

There are some concepts on the bar exam that are so similar that students tend to confuse one for the other. The concepts of refreshing recollection (sometimes referred to as present recollection revived) and past recollection recorded would make that list. Although they have some similarities, it's far more likely that the differences will be tested.

Refreshing Recollection:

Witnesses may use any writing or object for the purpose of refreshing their recollection in order to testify. To avoid hearsay obstacles, witnesses generally may not read from the writing while testifying. By not reading from the writing while testifying, they are not introducing the writing into evidence, and that avoids the potential hearsay problem. 

Whenever a witness has used a writing to refresh his/her memory while the witness is testifying, an adverse party is entitled to have the writing produced at trial, cross examine the witness about the writing, and introduce portions of the writing relating to the witness's testimony into evidence. If, instead, the witness refreshed his/her memory at some time other than while testifying, an adverse party is entitled to the above only if the court allows it. That's to say, these safeguards are mandatory if the memory is refreshed while testifying; if not, they are discretionary. 

In a criminal case, if the prosecution fails to produce or deliver a writing that the prosecution used to refresh a witness's recollection, the judge must strike the witness's testimony. A mistrial might also be appropriate, at the discretion of the judge. 

Past Recollection Recorded: 

There will be instances when witnesses state that they have insufficient recollection of an event to testify truthfully about that event even after they have consulted a record in an attempt to remember the details. In these instances, the record itself may be offered into evidence, but now we've also got a hearsay issue since the record is an out of court statement and it's offered for the truth of the matter asserted (the content of the record). 

The hearsay problem is avoided (that's to say, there's an exception), provided a proper foundation is laid. The foundation must include all of the following:

~ The witness has insufficient recollection to testify fully and accurately even after consulting the record. 

~ The witness had personal knowledge of the facts in the record when the record was made. 

~ The record was made by the witness, under the witness's direction, or adopted by the witness. 

~ The record was made when the matter was fresh in the witness's mind. 

~ The record accurately reflects the witness's knowledge. 

When a proper foundation is laid, the record may be read into evidence and heard by the jury. The record may not, however, be admitted into evidence as an exhibit unless offered by the adverse party. 

Evidence Tip

When answering Evidence questions:

What evidence was offered?

Why was the evidence offered?

By the above, what I mean is that although some evidence is always admissible or always inadmissible, mostly the same evidence will be admissible for some purposes, and inadmissible for others.

A statement might be admissible to impeach but not to prove the truth of the matter asserted. A person’s predilections might be admissible to prove motive but not to prove character. The fact that someone fixed something after another was injured by that thing might be offered to prove ownership of the thing, but not to prove negligence.

Etc., etc., etc.

If you’re not asking “why,” you’re missing the ball on this subject. You’ll get some questions right, regardless, but the traps that the NCBE has set will ultimately get the best of you

Essays on the UBE

People often spend time trying to figure out what the writers of the UBE are looking for on the essays. This is right from the horse's mouth (the horse is the NCBE).

Note the adjective "probable" in "probable solution." This isn't a calculus test. Don't exert a lot of mental energy trying to come up with the absolute correct answer: the path to getting to a likely answer is where most point are earned.

 

Life Estates

There are a lot of nuances that are tested about life estates. But first, it's important to understand what a life estate is. 

A life estate is an estate measured by the life or lives of one or more people. The estate terminates upon the death of the holder(s) of the life estate. Often, a life estate is measured by the life of the grantee, but not always. A life estate may also be measured by a life other than the grantee's life. For example, a grantor can grant a life estate to x for the life of y. 

Nobody lives forever, at least not yet. For that reason, whenever a life estate is granted, a future interest is included with that life estate. For example, "to x for y and then to z" will grant to x a life estate, and to z a remainder. "From x to y for life" does not include a remainder, so that grant includes a reversion back to the grantor once y dies. 

Often tested in the context of life estates are the obligations that a life tenant has to those who will later receive the property (the future interest holders). In general, the life tenant is entitled to all ordinary uses and profits from the land held during the life tenant's life. But the life tenant must not commit waste. There are three types of waste. 

Voluntary waste occurs when the life tenant's actual, overt conduct causes the property value to drop. For example, if a life tenant depletes a property's natural resources, that might be deemed voluntary waste. Exploitation of natural resources is generally limited to situations in which such exploitation is necessary for repair or maintenance of the land, or when the land is suitable only to such use. It might also be proper if the grantor (who granted the life estate) expressly or impliedly permitted such use. If mining was done on the land prior to the life estate, the life tenant can continue to mine any mines that are already open. This is called the Open Mines Doctrine (not a lot of creativity in coming up with that name!) 

Permissive waste occurs when a life tenant fails to comply with their obligations to keep the land from falling into disrepair. The life tenant must preserve the land and keep all structures on the land in a reasonable state of repair. The life tenant also must pay ordinary taxes on the land, though this is limited to the extent of the total income/ profits generated from the land or the reasonable rental value of the property. 

The life tenant also must pay interest on mortgages burdening the land (distinguish this from the principal which is generally paid by the future interest holder), and pay special assessments for public improvements of short duration. Improvements of longer duration are generally apportioned among the life tenant and the future interest holder. A life tenant is not responsible for insuring the property for the benefit of the future interest holder, nor is a life tenant responsible for damages caused by third party tortfeasors. 

Ameliorative waste might be the most counterintuitive of them all. Ameliorative waste is a change to the property made by the life tenant that benefits the property economically. The life tenant cannot enhance the property's value in this way unless consent is given by future interest holders. The idea here is that there may be sentimental value lost even if property value increases. A change will not be deemed ameliorative waste, however, if the market value of the future interest is not diminished and either the future interest holders do not object or a substantial and permanent change in the neighborhood conditions deprives the property in its current form of reasonable productivity or usefulness. 

A final point is that a life tenant can renounce his/her interest in the life estate after receiving the interest by will or inheritance. If a life tenant renounces, the future interest following the life estate is generally accelerated so that the future interest becomes a present possessory estate. 

Future Interests

The topic of future interests is not a topic that most students enjoy. They didn't like it in law school, and having to study it for the bar exam reminds them about why they didn't like in law school.

But one thing that will clear up quite a lot of the angles tested on this topic is to remember that possession and ownership are two very different things. If x has a life estate and y has the remainder, x has both a possessory interest in that life estate (because x can possess it now, until x dies), and an ownership interest. Y doesn't have a possessory interest, because y needs to wait for x to die before y can possess. But y does have an ownership interest. Y owns the remainder. 

Simplest way to say this: you can own something even if you can't possess it. And it's that ownership interest that plays into so many of these questions. When y tries to convey that interest during y's life, or devise that interest by will, or etc., it's temping to think y can't do that because it's not y's property till x dies. But it is y's property. Y owns it, but cannot, for now, possess it. Separate the concepts of ownership from possession and you're on your way to better understanding this topic.

Essay Writing Tip

On bar exam essays, don’t give yourself too much of a burden in figuring out how these made up legal issues should ultimately be resolved. If you find yourself taking time to ponder that question like a juror deliberating a case, you’re not strategizing in a way that will earn you maximum points.

Rather, think of yourself as a legal analyst with the job of explaining to the grader how each side will use the relevant legal rule(s) to further their own claims. “X will claim that…” “Y will respond, however, by claiming…” You’ve got to wear both hats in the analysis, as if both sides are paying you to advocate for them. The points will come pouring in. There may be exceptions to this. You can’t make nonsensical arguments just to make them. There are some legal issues (in a subject like Civ Pro, or Evidence, or etc.) that are too straight forward to employ this technique. Can’t argue that y will claim that 1 + 1 = 11. But the secret here is that most bar exam issues are written like moot court arguments. Testing whether people will advocate when appropriate, but also spot and state the weaknesses of their own positions when warranted. Those who do that well knock it out of the park.

Public Policy Exclusions in Evidence Law

Certain types of evidence that would otherwise be admissible are excluded for reasons of public policy. What makes this area tricky is that evidence even if excluded for public policy considerations might be admissible for other reasons. In other words, this evidence is not irrelevant. It's relevant but excluded for specific purposes. So, it's important to understand not just what evidence is offered, but why the evidence is offered. Keep that in mind for other aspects of Evidence as well. 

One public policy consideration concerns liability insurance. Evidence of a party's insurance against liability (or no insurance against liability) is not admissible if the purpose of offering the evidence is to show whether the party acted negligently. It is, however, admissible to prove ownership or control, or to impeach a witness (often for bias). 

It's also admissible as part of an admission of liability. In other words, if in the same statement someone admits liability while also affirming insurance coverage, the affirmation of insurance is admissible.

Another public policy involves subsequent remedial measures. Evidence of repairs or other precautionary measures made following an injury is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning. It is admissible to prove ownership/control, or to rebut a claim that a precaution was not feasible. It's also admissible to prove that the opposing party has destroyed evidence. 

The next public policy consideration involves civil settlements and settlement negotiations. Evidence of a settlement or an offer to compromise a civil claim is not admissible in any case to prove or to disprove the validity or amount of the disputed claim. Likewise, this type of evidence is not admissible to impeach a witness by prior inconsistent statements or by contradiction. It is, however, admissible to impeach a witness for bias.

Not only is the evidence of a settlement or offer to compromise inadmissible for these purposes, but any statements made in the course of negotiation or in the course of settling are also inadmissible for these purposes. For this public policy exclusion to apply, there must either be a claim or some indication that a party was going to make a claim. The claim also must have been in dispute as to either liability or to amount. 

The next public policy exclusion involves plea discussions. The following are all inadmissible in any criminal or civil case against the defendant who made the plea or participated in plea discussions: offers to plead guilty; withdrawn guilty pleas (make sure the guilty plea was withdrawn before applying this exclusion); pleas of no contest; and statements of fact made during any of the previously mentioned pleas. 

Last up is the public policy exclusion for payment of and offers to pay medical expenses. Evidence that a party has paid or offered to pay an injured person's medical, hospital, or similar expenses is inadmissible to prove liability for the injury. Here, though, statements made in connection with these payments are admissible. This is a distinction to note: with the settlement negotiations connected statements are inadmissible, but with payments of medical expenses only the statements about having paid or having offered to pay such expenses are excluded. 

Sometimes an offer to pay a medical expense might be embedded within a larger settlement offer; in that case apply the more restrictive exclusion rule for offers to settle so that connected statements to the offer are also inadmissible. 

Roadmap for Preparing for the Florida Exam

I send this roadmap to my Florida students, and I thought it might help the readers on here as well! There are three components to this exam, and each component has some unique nuances:

1: The MBE Component 

The key here is to focus on two things: the subject you're working on in a given week, and the subjects you've already worked on. Of course, at some point (after you've worked through 7 MBE subjects) you're only left with subjects you've already worked on. 

The best preparation for the MBE once you've taken a bit of time to learn the subject by reading the outline, watching videos, or etc., is to work through practice questions. Practicing questions teaches you the skills you'll be using when taking the test. Every time you answer a question incorrectly, note the rule statement that had it been known you would have answered the question correctly. The MBE, essentially, tests the same rules over and over again, but they hide those rules in different fact patterns. So the idea here is to get a question wrong, note the rule statement, and then later apply that same rule statement, this time correctly, to a new fact pattern. This is the crux at improving at this component of the exam. The more questions you get through, the better!

2: The Essay Component 

This component of the test is a bit more focused on substance than skills, though skills still do play a role. A large majority of the subjects tested on the essay component are the same subjects tested on the MBE. For example, on the essays you could see Contracts, Property, Torts, and Constitutional Criminal Procedure (to a lesser extent Criminal Law). It's far less likely you'll see Civ Pro or Evidence on the essays since the Florida versions of these subjects are tested on the Florida Multiple Choice component, and if you see Constitutional Law it's likely to have a heavier focus on Florida Constitutional Law. When you do get an MBE subject tested on the essays, it's helpful to add in any Florida distinctions that apply. 

In addition to the MBE subjects, you might get an essay on Family Law, and a small part of one of the essays will focus on Florida Professionalism (essentially, the Model Code of Conduct, but specific to Florida). 

The best way to prepare for this section of the exam is to know well your outlines in these subjects (the fine details aren't as important as they are when taking a multiple choice exam). In addition to studying the outlines, it's helpful to look over old essays which provide model answers that the graders have chosen to release. I often recommend to students to read an essay question and outline the issues that you would have spotted if that had been your essay. Then review the model answer to see how many issues you spotted. 

Along with practicing spotting legal issues, it helps to write a couple answers as well to practice the IRAC format. Writing answers for a bar exam is very formulaic. I think of it almost like a math formula. Better not to be too creative here. 

All the old Florida essays are available to review @ https://www.floridabarexam.org/__85257bfe0055eb2c.nsf/52286ae9ad5d845185257c07005c3fe1/437db985ef81578885257c0c006546a5

3: The Florida Multiple Choice Component:

This component of the test includes the following subjects: Florida Civil Procedure (which will include a few questions on Florida Rules of Judicial Administration); Florida Criminal Procedure; Florida Wills; Florida Trusts; Business Entities ( Corporations, Partnerships, and Agency); UCC 3 (Commercial Paper); UCC 9 (Secured Transactions); and Florida Evidence. Not all of these will be tested: every test includes Florida Civil Procedure/Florida Criminal Procedure, and then a few others are chosen from the remaining testable subjects.

Many find this to be the trickiest part of the test to prepare for, but it's common wisdom that it's not as beneficial to practice for this section in the same way that one should practice for the MBE. These questions, rather than cleverly setting out to trick the test taker, are instead just testing fine nuances of the law. And the nuances can get very fine. So, studying the outlines in the specific subjects listed above with an eye for remembering as many details as possible will allow you to score high on this section. 

I hope that helps some! 

MBE Strategy

As people start to prep for the February bar exam, I'll give a piece of advice that I think, if internalized and practiced, is among the best ways to improve at the MBE. When the test writers create these questions, they have one important limitation. No wrong answer can be arguable as the correct choice. They get to skirt the line on the essays; on the MBE, not so much. That's to say, if it's reasonable to argue that a wrong answer is the best choice given, then the question is fatally flawed. These questions work their way through multiple rounds to avoid these types of flaws that would cause the question to be discarded. Because this limit exists, the test writers must place something in each wrong answer that prevents it from reasonably being argued that it's the best answer. Seek out that thing. Look at each answer with an eye towards finding the thing that was placed within the answer to make it wrong. When you find it, cross it out. Even when you're down to two (and, the most common thing I hear from prospective students is "I can get it down to 2!"), find what's wrong with one of the two. Don't set out hunting for the right answer because the only thing that makes it right is that it's better than the others. Kill off the other answers until just one of them survives.