Florida Bar Exam Essentials

I'm currently updating and revising Florida Bar Exam Essentials. Might take some time, but I hope to get it out soon! (for sure before the February exam). By request, I'll be releasing one resource covering just the multiple choice subjects, and a separate resource covering just the essay subjects. I'll also release a resource covering both components which will cover every subject tested on the Florida exam. 

MBE Essentials (Contracts)

 The following is a sample from the chapter on Contracts from MBE Essentials:

MBE Essentials contains 435 questions and answers just like those in the sample here.  The book covers every subject tested on the MBE (one subject per chapter) and is available for immediately download here on the blog.

Will Contests

There are many avenues that one can take to contest a will and for that reason there are many places the bar examiners can go to test the topic of will contests. Grounds for challenging a will include a claim that the will is defective in its execution and a claim that although the will was validly executed, it has been revoked. In addition, lack of testamentary capacity, lack of testamentary intent, undue influence, fraud, and mistake, are all grounds for contesting a will. This post will focus specifically on four of these grounds: lack of capacity, undue influence, fraud, and mistake. 

An initial issue for any will contest is a procedural one. Generally, a will contest must be filed within 6 months after the will is admitted to probate and only those whose interests would be adversely affected by the admission of the will have standing to contest it. The burden of proof is on the person contesting the will.

One ground for contesting a will is a claim that the testator lacked capacity at the time that the will was executed. A testator will lack capacity if the testator is under the age of 18 at the time the will was executed (in most states). In addition, a testator at the time of execution must have the capacity to understand the nature of the act of execution, the nature and extent of the property left in the will, and the natural objects of the testator's bounty (the closest surviving relatives). It's not enough to prove that the testator was old at the time the will was executed or that the testator was ill or that the testator had a struggling memory. It's also not enough to show that the testator has addiction issues with drugs, alcohol, etc. None of that will satisfy the standard required for lack of testamentary capacity. An adjudication of insanity, on the other hand, is evidence of lack of testamentary capacity. But that, too, is inconclusive. 

Another ground for contesting a will is by establishing undue influence. To establish undue influence, the will contestant must establish that influence was exerted, the effect of the influence was to overpower the mind and free will of the testator, and the resulting disposition in the testator's will would not have been executed but for the influence. Although the above elements must be proved (circumstantial evidence is insufficient) under certain limited circumstances a presumption of undue influence is appropriate. Such a presumption arises if there was a confidential relationship between the testator and a beneficiary and the beneficiary was active in procuring, drafting, or executing the will. If the presumption applies, then the burden will shift to the proponent of the will to rebut the presumption. 

Fraud is another ground for contesting a will. For this contest to be successful, the testator must have been willfully deceived as to the character or content of the will or as to extrinsic facts that would induce a particular disposition in the will. 

Lastly, mistake is a ground for contesting a will, and there are a few different types of mistakes to consider. Mistake in execution requires the contestant prove that the testator did not know that the instrument he/she was signing was a will. Extrinsic evidence is permissible for this purpose. Mistake in inducement, on the other hand, is not a mistake as to the nature of the instrument itself. Rather, it's a mistake involving the reasons a testator made the will. Although in certain circumstances a contestant might successfully contest a will based on mistake in inducement, it is not as strong of a case as mistake in execution. 

Ambiguity also falls under the category of mistake. There are two types of ambiguity to keep in mind. Latent ambiguity arises if a will's language is clear on its face but results in a misdescription as applied, whereas a patent ambiguity exist if the uncertainty appears on the face of the will itself. Importantly, extrinsic evidence is admissible to cure latent ambiguities but is less like to be admissible to cure patent ambiguities. A modern view has done away with this distinction and allows extrinsic evidence to cure the ambiguity in either case. 

The testator may want to control whether anyone contests the will in any manner discussed above. That's allowable through a no-contest clause. A no-contest clause is a clause in a will providing that any beneficiary who contests the will will forfeit any interest left to the beneficiary under the will. Such a clause is valid and enforceable unless the beneficiary had probable cause for contesting the will. In some states, a no-contest clause is given full effect even if the beneficiary had probable cause for contesting the will, but under the UPC (which is applied on the UBE) even if a no-contest clause in in place, the beneficiary can contest the will if there is probable cause to do so.

UBE Essentials: Corporations & Limited Liability Companies

As we enter into October, some may be starting to prepare for the February bar exam. The following is a sample from the chapter on Corporations & Limited Liability Companies from UBE Essentials.

UBE Essentials contains 793 questions and answers just like those in the sample here. The book has a chapter for each subject tested on the UBE and is available for immediate download right here on the blog.

Time, Place, & Manner Restrictions (Forum Analysis)

Students often ask which topics within a given subject are the most important topics to learn when preparing for the MBE. With some subjects this is a tougher question to answer. With Constitutional Law, however, I'm confident in saying that you'll want to know the First Amendment well.

An important distinction in this area is content vs. conduct. It is presumptively unconstitutional to place burdens on speech because of its content. (Though for sure there are exceptions to this general rule that you'll need to know for the bar exam.) When conduct rather than content is at issue, speech can be regulated by content-neutral time, place, and manner restrictions. And those time, place, and manner restrictions are the focus of this post. 

The government has the power to regulate conduct associated with speech. In determining the extent of that power, it must first be determined whether the forum involved at which the purported speech is to take place is a public forum, a designated public forum, a limited public forum, or a nonpublic forum.

Public property that has historically been open to speech-related activity is a public forum. Some public property has not historically been open to speech-related activity and yet the government has at times opened it for such activity on either a permanent or a limited basis. These forums are known as designated public forums. Whether a public forum or a designated public forum, the government may regulate speech in such forums with reasonable time, place, and manner restrictions. There are elements to determine whether these restrictions are reasonable. They must be content-neutral (otherwise we'd be dealing with a content-based restriction), narrowly tailored to serve an important government interest, and they must leave open alternate channels of communication. It's important to note that these requirements are necessary but might not be sufficient. In other words, you might find a regulation that satisfies these elements but is still deemed overbroad or vague or etc. 

Speech is easier to regulate in limited public forums and in nonpublic forums. Limited public forums are forums that have not historically been linked with speech-related activity but have been opened for a specific speech activity. As an example, think of a school auditorium that is open for a specific debate. Nonpublic forums are similar to limited public forums in that they have not historically been open for speech-related activity but unlike with the limited public forums, these nonpublic forums are never held open for speech-related activity. 

The government can regulate speech in limited public forums and in nonpublic forums provided that the regulations are viewpoint neutral (even if they are not content neutral) and if they are reasonably related to a legitimate government purpose. 

This all gets confusing quickly, but it's important to know it well. One takeaway for sure is that it's easier for the government to regulate speech in nonpublic forums and in limited public forums than it is for the government to regulate speech in designated public forums and in public forums. Once you understand that fundamental point, you can start digging deeper into the specifics of it all.

The Work-Product Privilege

In discussing the privilege for work product, it's important first to discuss some general rules about discovery. Parties may obtain initial discovery regarding any non-privileged matter that is relevant to any party's claim, or defense (unless the use would be used solely for impeachment). This includes the nature, description, location, etc., of any documents or other tangible things as well as the identity and location of people who might know of any discoverable matter. 

There are some privileges, however, that will allow a party to withhold otherwise discoverable matter, and one of those privileges is the work-product privilege. Under this privilege, certain immunity from discovery is given to materials created by the attorney for purposes of trial.

This privilege is not necessarily absolute, but it can be. Documents containing subjective thoughts. mental impressions, legal theories, and legal conclusions/opinions of a party's lawyer are given absolute immunity from discovery. In other words, these won't be discoverable by the opposing side or at least it's a near certainty that they won't be. On the other hand, other documents prepared for litigation by either party (for example, a witness statement of an unavailable witness) are still granted immunity, but this immunity is qualified. And qualified immunity can be overcome if the party seeking discovery can show both that there is a substantial need for the material and that it would be an undue hardship to obtain this material through other means.

Qualified immunity requires a balance and there are factors to guide that balance. To determine whether it would be an undue hardship to require a party to obtain the material by other means the court will determine the cost of obtaining the material through other means other than by discovery of the material. The court will also consider the finances of the party seeking discovery. And finally, in those specific instances in which the material sought is a transcript of an opposing witness's statement, the court will consider the hostility of the witness to the party seeking discovery of that statement.

July 2021 Bar Exam Stats

As results begin to trickle in, I’ll update this post with state-specific statistics from this past July. The national mean MBE score for the July 2021 exam was 140.4, a decrease of .7 points compared to the same in July 2019. More on the national average is @ https://www.ncbex.org/news/national-means-july-mbe-august-mpre/

The following is the percentage of students that passed the bar exam in a given state:

--Alabama: 52.6%

--Vermont: 54%

--West Virginia: 57.5% 

--Connecticut: 59%

--Maine: 59%

--Florida: 61%

--Georgia: 64.4%

--Arizona: 65%

--North Dakota: 65%

--South Carolina: 65.25%

--Idaho: 65.6 %

--Mississippi: 66% (unofficial but will update if official results state otherwise)

--Delaware: 66.5%

--Illinois: 67%

--Texas: 68.29%

--Indians: 69%

--Pennsylvania: 69.43%

--Louisiana: 69.78

--Hawaii: 70.2%

--Iowa: 71%

--New Mexico: 71%

--Nebraska: 72%

--Wyoming: 72%

--South Dakota: 73% 

--Oklahoma: 73%

--Ohio: 73.4%

--Washington: 73.8%

--Montana: 74%

--Colorado: 74%

--Virginia: 74.77%

--North Carolina: 75%

--Missouri: 75.5% 

--Oregon: 79%

--Utah: 86% 

Bar Exam Tutoring

Some might be thinking ahead and beginning to plan for the next bar exam. I've updated my post on bar exam tutoring options for those who would like to learn a bit more. It's @ http://mbetutorial.blogspot.com/2018/12/available-tutoring-options.html.

My contact info is here on the blog for those who would like to reach out! 

Good Luck!

All best to those in the final week of preparing for the July exam. Posting to resume next month to assist those who will be preparing for February!

Secret Trusts vs. Semi Secret Trusts

Both secret trusts and semi-secret trusts fall under the larger category of testamentary trusts. You'll know you're dealing with a testamentary trust if there's a will involved. Unlike with an inter vivos ("among the living") trust, a testamentary trust is one in which the intent of the trust and the essential terms of the trust must be ascertained from the will itself, from a writing incorporated by a reference to the will, or from the exercise of a power of appointment created by the will. Simply, look out for a will in which property is not left outright to a beneficiary of the will as might normally be the case, but is instead left to a trustee to do all the things that a trustee does with the property for the benefit of the beneficiaries.

Secret Trust: A will might make a gift which appears to be an absolute gift but was in fact made in reliance on the will beneficiary's promise to hold the property in trust for another. The way this might show up on an exam is that someone might contest the will by presenting extrinsic evidence that the will beneficiary promised to hold the property in trust for another. If the promise is proven by clear and convincing evidence, a constructive trust will be imposed on the property such that the will beneficiary will be deemed a trustee so that the only power granted to the will beneficiary over that property will be to hold the property in trust for the intended beneficiary. Note that it's irrelevant whether the promise was made before or after the will was created; in either case, a constructive trust may be imposed.

Semi-Secret Trust: A semi-secret trust is even a bit more straight forward than a secret trust. In a semi-secret trust, the will makes a gift in trust to a named trustee but fails to name any beneficiary. Without any named beneficiary there can be no trust and so the gift fails. Here, unlike in the above, a constructive trust will not be imposed. Rather, the named trustee holds the property on a resulting trust with the only obligation to ensure that the gift is transferred to the testator's heirs.

I should add that it's tough to really figure out why this second type is called a "semi-secret" trust. But that's not important; just know how it differs from a secret trust, and how each might apply to a given set of facts.

Cooperatives & Condominiums

A relatively new topic tested in Property on the MBE is the topic of Cooperatives & Condominiums. You won't see many questions on the exam in this area but it's very likely you'll see a few. 

Understanding cooperatives requires an understanding as to how title is held in the property. In a cooperative, title to both land and buildings is held by a corporation. The corporation leases individual apartments to its shareholders. Individual owners are regarded as tenants, and direct restraints on alienation of an individual is valid. 

In a condominium, each owner owns the interior of his/her individual unit. Each owner also owns an undivided interest in the exterior and an undivided interest in common areas of the condominium. Unlike with a cooperative, the ordinary rules against restraints on alienation do apply. 

You might see some questions on homeowners' associations. These associations oversee the common areas of the condominium property, and the owner of each condominium is a member of the homeowners' association. A board will manage the property and the owners will elect the board. 

Fees are required by condominium owners (generally monthly) which is paid to the homeowners' association and used for upkeep of the property and such. The monthly fees may not be sufficient to cover the required purposes in which case a special fee or special assessment may be imposed (generally not more than 1 time per year) and each owner will be required to pay that fee. 

Homeowners' associations may pass bylaws that will place requirements/limitations on the owners' use of the property. These rules are binding and either the individual owners or the homeowners' association may enforce any bylaws that were validly passed.

Florida Constitutional Law (Florida Bar Exam)

Florida Constitutional Law is always a safe bet on the Florida Bar Exam. Sometimes that bet will be wrong but it's a safe prediction, nonetheless.  Oftentimes you'll be asked to analyze the constitutionality of a Florida law and it'll be important to know all of the following.

Laws in Florida can be neither vague nor overbroad. They must be reasonably related to the general welfare. A law may cover only one subject and the subject must be briefly expressed in the act's title. A law may not be amended by reference to its title only; rather, portions of the original text must be set out in the amending act.  An enactment clause is required and it should read as the following: "Be It Enacted by the Legislature of the State of Florida." 

There are two types of laws in Florida: general laws and special laws. General laws apply uniformly throughout the state. There are also general laws of local application and these laws are limited to a geographic areas that is established by population. General laws of local application are constitutional only if the subject matter of the law is reasonably related to the population classification. Special laws apply to known specific persons places or things. Importantly, special laws must be given prior public notice or be approved by referendum. 

There are certain subjects for which the Florida Constitution prohibits special laws or general laws of local applicability. There's a long list of these subjects but in general all of these subjects share one thing in common: there's a need for uniformity throughout the state on the subject and therefore a general law is more appropriate. A few examples (though not an exhaustive list) of subjects in which uniformity is required are the following: rules of evidence; election laws; punishment for crimes; divorce and adoption laws; assessment or collection of taxes for state or county purposes; and laws regarding hunting or fresh-water fishing. 

MBE Essentials (Property)

 The following is a sample from the chapter on Property from MBE Essentials:

MBE Essentials contains 435 questions just like those in the sample here. The book covers every subject tested on the MBE (one subject per chapter) and is available for immediate download here on the blog.

The Privileges and/or Immunities Clause

There are a lot of clauses to know in Constitutional Law but among the ones you should know best is the Privileges and Immunities Clause.

Most importantly for MBE purposes is the clause falling under Article IV, also called the Interstate Privileges and Immunities Clause. The clause prohibits discrimination by a state against nonresidents of that state. "Nonresidents" here does not include corporations or aliens, and this is one way that this clause differs from the Equal Protection Clause, the Due Process Clause, and the Dormant Commerce Clause. 

The Interstate Privileges and Immunities Clause prohibits discrimination by a state against a nonresident only if the discrimination concerns fundamental rights. In this context "fundamental rights" includes commercial activities and civil liberties. 

And even if you see in a question the type of discrimination described above, you should consider whether the state had a substantial justification for the different treatment. The state will want to show that the nonresidents caused or are a significant part of the problem that the state is trying to solve and that there are no less restrictive means other than unequal treatment for solving that problem. That might provide the substantial justification that the state will need in order to defend. 

Most of the questions dealing with privileges/immunities will deal with the Interstate clause under Article IV.  But there is also another clause quite similar and it would be easy to muddle them up. There's a Privileges or Immunities Clause (notice the "or" rather than the "and") under the 14th Amendment. Under this clause, a state may not deny its citizens the privileges and immunities of national citizenship (for example, the right to petition congress for redress, the right to vote, etc.). And once again, corporations are not protected by this clause.

UBE Essentials: Wills

 The following is a sample from the chapter on Wills from UBE Essentials:

UBE Essentials contains 793 questions and answers just like those in the sample here. The book has a separate chapter covering every subject tested on the UBE and is available for immediate download right here on the blog.