Good Luck!

All best to those who will be taking the exam next week (the first full-length computer-based exam). More posts coming shortly after the exam to assist those preparing for July.

Florida Bar Exam Essentials (Florida Professionalism)

 The following is a sample from the chapter on Florida Professionalism from Florida Bar Exam Essentials:

Florida Bar Exam Essentials contains 1092 questions and answers just like those in the sample here. The book covers every subject tested on The Florida Bar Exam and is available for immediate download here on the blog. 

Adverse Possession (Florida)

There are lots of little nuances to know about adverse possession in Florida that don't apply in Real Property on the MBE. And most of these nuances are based on the concept of "color of title."

Occupation of property is under color of title when the occupation is founded on a written instrument or a judgment of decree of a court. If the instrument or decree is invalid then the occupation will be adverse and it might be deemed adverse possession under color of title.

Adverse Possession Under Color of Title:

In Florida, if occupation arises under color of title (see above), the property will be considered adversely possessed when it has been usually cultivated or improved or if it has been protected by a substantial enclosure. It'll also be deemed adversely possessed under color of title if the property is used for the supply of fuel or fencing timber for husbandry or for the ordinary use of the occupant. Lastly, adverse possession under color of title occurs if the property has been partly improved if the part is of a known or single farm. 

In all instances, for possession under color of title to be adverse, the instrument giving rise to color of title must adequately describe the property and be properly recorded in the official county records. If these requirements aren't satisfied, you should instead analyze under adverse possession without color of title.

Adverse Possession Without Color of Title:

Without color of title in Florida, the property will be deemed adversely possessed only if unusually cultivated/maintained/improved or protected by a substantial enclosure. Further, the possessor without color of title must have paid outstanding taxes on the property within one year after entering possession as well as made a return of the property (a filing with the property appraiser regarding the possession) and continue to pay all taxes on the property for each year of the statutory period (each year that the possessor adversely possesses the land). 

Lots of details, but I'd say the most important detail here is the requirement that adverse possession without color of title requires payment of taxes on the property. Bringing up these Florida distinctions on an essay testing an MBE subject can earn a significant number of extra points.

Charitable & Honorary Trusts

If either charitable trusts or honorary trusts show up on the essay portion of the bar exam, you'll need to know how they differ from a private trust. There are three key differences to keep in mind specifically for charitable trusts: they must have indefinite beneficiaries, they may be perpetual, and the cy pres doctrine applies. 

Charitable Trusts: To determine if a trust is a charitable trust, focus on the purpose as stated by the settlor of the trust. A charitable trust must have a purpose considered to benefit the public. For example, charitable trusts might include a purpose for advancing education or promoting public health. The class to be benefited may be limited but cannot be so limited that only a select few individuals will be benefited. If only a select few individuals will be benefited, it begins to look more like a private trust and the rules related to charitable trusts may not apply. As stated above, the beneficiaries of a charitable trust must be indefinite; the court can select the beneficiaries if none are specified by the settlor but in all cases the intent of the settlor must be ascertained so that the court can choose a purpose or beneficiary that is in accord with that intent. Those who may enforce a charitable trust include the settlor, a qualified beneficiary, or the state's attorney general.

A charitable trust may be perpetual (so that no time limit applies) and the Rule Against Perpetuities (😱) does not apply to the shifting of the beneficial interest in a trust from one charity to another charity on the happening of a condition. The Rule does apply, however, if the shift is from a private trust to a charitable trust. There might be instances in which the charitable purpose chosen by the settlor is now impracticable, unlawful, or impossible to achieve. The cy pres doctrine will allow the court to select an alternative provided that the alternative is as near as possible to effectuating the settlor's intent. 

Honorary Trusts: Honorary trust are commonly established for the benefit of pets or for the maintenance of burial places. There's no human being (as a beneficiary) to enforce these trusts so the trustee is "on his/her honor" to carry out the terms. These trusts, may, however, be enforceable by someone named in the trust instrument or by someone appointed by the court. 

Unlike with the charitable trusts mentioned above, these trusts often are burdened by time limits. Many jurisdictions will void honorary trusts if they extend for too long (often measured by the Rule Against Perpetuities). The Uniform Trust Code specifically states that an honorary trust not for the care of animals may not be enforced for more than 21 years. 

As for those honorary trusts that are set up to care for animals/pets, those trusts terminate automatically when the animal/pet dies.

Updates to Corporations Law (Florida)

In January of 2020, Florida updated its Business Corporation Act. It's very difficult to know what, if anything, among these updates will now be tested on the Florida exam but a summary of the updates can be read at the following website. Worth a read just in case Florida decides to now test these updates on the multiple choice portion of part A of the exam:

https://www.dltlawgroup.com/2019/10/29/nine-things-to-know-about-the-revised-florida-business-corporation-act/

Piercing the Corporate Veil

By way of introduction, the owners of a corporation (shareholders) are generally not personally liable for the obligations of the corporation. Likewise, the officers and the directors of the corporation are not generally personally liable. Instead, the corporation itself will generally face liability; the owners generally risk only the investment that they made in the business when they purchased their ownership interest (equity securities, etc).

How exactly is the corporate veil pierced and what does that even mean? In a basic sense, piercing the veil means that a court will disregard a corporate entity and hold individuals (rather than the corporation) liable for corporate obligations. Generally, it's the corporation's creditors who may be allowed to pierce the veil. The bar exam will require an understanding of the three ways in which that veil can be pierced:

Ignoring Corporate Formalities: A corporation might ignore required corporate formalities to such an extent that the corporation is merely the "alter ego" of the individual shareholders. If in doing so a basic injustice results, the corporate veil might be pierced and individual shareholder liability might result. Look out for situations where shareholders treat corporate assets as their own or where shareholders simply fail to observe corporate formalities. 

Inadequate Capitalization: The corporate veil might be pierced where the corporation is inadequately capitalized such that at the time that the corporation was formed, there was not enough unencumbered capital to reasonably cover prospective liabilities. 

Fraud & Avoidance of Personal Obligations: If necessary to prevent fraud or to prevent an individual shareholder from using the corporate entity to avoid existing personal obligations, the corporate veil might be pierced. Might be noted that the mere fact that an individual has formed a corporation to avoid future personal liability is not itself a reason to pierce the veil. In fact, that's a common motivation for adopting the corporate form.

Let's assume now that the veil is pierced. If so, generally the shareholders who are active in the operation of the business will be personally liable (joint and several liability). The corporate veil is often pierced in tort cases but quite infrequently in contract cases. This is because in contract cases, parties who contracted with the corporation had an opportunity to investigate the corporation's stability. Because there was that opportunity, parties in contract cases are not likely to have the benefit of piercing the veil and will instead have to collect directly from the corporation rather than from any individual shareholder.

Florida Frequency Chart

I happened upon a helpful chart that lists the frequency of each subject as it has appeared on The Florida Bar Exam over the years. Especially in these final weeks leading up to the exam, the chart could help to decide which subjects should get the most amount of study time!

The chart is found @ 

https://www.bekahwells.com/florida-bar-exam-essay-chart

Bar Exam Studying Tips (Florida)

From everything I've been able to glean, and to the best of my understanding, Florida is reverting back to the pre-October format in terms of which subjects are tested on the multiple choice component of part A of the exam. 

It's important when studying for The Florida Bar Exam to treat each of these components (essays vs multiple choice) as two separate exams. For the essays you can for sure study the subjects to gain a "big picture" perspective. Missing a detail here and there won't much affect your score; instead you have to understand the essay subjects well enough to analyze them and to draw probable conclusions as to those issues. 

But for the multiple choice, the Fla. Board gets very detailed. And you should prepare for these subjects by learning the fine details if your goal is to score high on these questions. Frankly, it'll be difficult to learn all that's required to know, but simply understanding how this part of the test differs from the essays will put you at an advantage. You can then study for each of these components of the exam in a way that's most likely to maximize your score on each component.

The subjects tested on the Florida multiple choice component are among the following (assuming that all reverts back to pre-October):

--Florida Civil Procedure

--Florida Criminal Procedure

--Florida Evidence 

--Florida Wills

--Business Associations

Insanity

There's quite a lot to know about the insanity defense should it show up on the MBE. There are different tests to determine whether at the time of the crime the defendant's mental illness should entitle the defendant to an acquittal. But in addition to that, there are also quite a few procedural details that could show up in the questions. First, the tests:

The M'Nagten Rule: Under this rule, a defendant is entitled to acquittal if a disease of the mind caused a defect of reason such that the defendant lacked the ability at the time of his actions to either know the wrongfulness of his actions or understand the nature and quality of his actions. It's important to understand that this rule applies if either the defendant didn't know that his acts were wrong or didn't understand the nature/quality of those acts.

Irresistible Impulse Test: Under this test, a defendant is entitled to acquittal only if because of a mental illness, defendant was unable to control his actions or conform his conduct to the law. Inability to control is the key here.

Durham Test (Sometimes called the New Hampshire Test): Under this test, a defendant is entitled to acquittal if the crime was a product of the defendant's mental illness. This one is quite broad. It's called the New Hampshire test because it's followed only in New Hampshire. 

The Model Penal Code Test: Under this test, a defendant is entitled to acquittal if the defendant had a mental disease or defect, and, as a result, lacked the substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law. 

Although it's essential to understand the above tests, questions are also sure to show up that deal with more procedural aspects of a claim of insanity. One area is burden of proof. All defendants are presumed sane; the defendant must raise the insanity defense. Usually once that issue is raised, the defendant must then prove insanity, and the burden to prove insanity is often by a preponderance of the evidence. Certainly worth noting, though, that the Model Penal Code instead requires that the prosecution prove that the defendant was sane, and the burden there will be beyond a reasonable doubt. Federal courts require the defendant to prove insanity by clear and convincing evidence. The defendant need not raise the insanity defense when a plea is taken; rather, a simple "not guilty" is sufficient, and that will not preclude later raising the defense. 

By not raising the insanity defense, the defendant may refuse a court-ordered psychiatric examination. If the insanity defense is raised, then refusal is not permissible. If the defendant does raise the defense and if the defendant is later acquitted by reason of insanity, he may be committed to a mental institution until cured. Confinement may even exceed the maximum period of incarceration for the charged offense. 

Lastly, it's worth noting a similar though different concept from the insanity defense called competency to stand trial. Under the Due Process Clause of the U.S. Constitution, a defendant may not be tried, convicted, or sentenced if, as a result of a mental disease or defect, defendant is unable to understand the nature of the proceedings brought against him or assist his lawyer in the preparation of a defense. Likewise, a defendant may not be executed if he is incapable of understanding the nature and purpose of the punishment,

Changes are Coming

Big changes are coming to the bar exam but not for a while. The test will be completely revamped with the new test right now set for administration in either 2025 or 2026. More updates to come here on the blog as we learn more and provided the information is available I'll also transition this website into something more relevant for the new exam.

But, again, that's quite a while away...

https://www.ncbex.org/news/ttf-prelim-recommendations/

UBE Essentials (Family Law)

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

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

A Million Views

I noticed in the statistics on this blog that it has 1 million views. Almost going on a decade that I've been posting on here and glad to see that people find it helpful! 

Hope to continue it for a long time to come....

Superpriority of Purchase Money Security Interests (UBE & Florida)

UCC Article 9 is tested more frequently than many would prefer and a key concept of the subject is the purchase money security interest ("PMSI"). This post will entirely focus on that concept.

A PMSI arises in two situations. The first is when the seller sells collateral to the debtor on credit and also reserves a security interest in the collateral. The second is when the creditor as a lender (often a bank) advances funds to allow the debtor to purchase the collateral and also takes a security interest in the collateral. If there are conflicting PMSIs, one with a PMSI as a seller will have priority over one with a PMSI as a lender.

Knowing the definition above is important but understanding the significance of these security interests is more important. PMSIs enjoy a "superpriority" which makes them superior even to prior perfected security interests in the same collateral provided that some other requirements are met. 

Once you understand the definition and the significance of PMSIs, it's then important to understand the specific rules that apply for certain types of collateral. 

Inventory:  A PMSI in inventory collateral has priority over conflicting security interests in the same inventory or proceeds of that inventory (chattel paper, instruments, or cash proceeds) if the PMSI is perfected at the time that the debtor gets possession of the inventory (filing must take place before the inventory is delivered). Further, any secured party who has perfected a security interest in the same inventory must receive written notification of the PMSI before the debtor receives possession of the inventory. The notification must state that the party providing notice expects to take a PMSI in the specifically named inventory. Might be noted that a similar rule applies to livestock collateral, but I haven't seen that one tested often if at all.

Goods Other Than Inventory:  A PMSI in goods other than inventory (for example, equipment) has priority over conflicting security interests in the same goods or in their proceeds if the interest is perfected before or within 20 days after the debtor receives possession of the goods. The key difference here is that the notice requirement for inventory is lacking for goods other than inventory. 

One final rule to keep in mind that involves PMSIs has more to do with perfecting the security interest than it has to do with priority over others who also have a security interest. A PMSI in consumer goods is automatically perfected. In other words, once a PMSI in consumer goods has attached, it is perfected.  There is no need to take any additional steps such as filing a financing statement or taking possession of the collateral which may be required for non-PMSIs. Of course, this also might play into a priority analysis since that automatic perfection could provide the secured party with priority over others who perfect their interest later.

A Blueprint for Analyzing Hearsay

Students struggle with hearsay. Frankly, it's really difficult. But it's a lot easier if you approach it systematically and you approach it that way every time you're asked to analyze it. By going through the steps, you've got a great chance of correctly determining whether evidence should be excluded because it's hearsay or whether it should potentially be admitted because it's not hearsay or because it's hearsay but an exception. 

Begin with step one. First ask if the evidence is an out of court statement. This might seem like a straight-forward inquiry but it's important to remember that a statement can be oral/written and it can also be conduct intended to be a substitute for words (for example a nod of the head). If there's no statement then there's no hearsay. 

Let's assume there's a statement. Next, ask if the statement is offered to prove the truth of the matter asserted. This is perhaps the most difficult step in the analysis. One way to make it easier is to remember the limited situations in which statements are not offered for the truth. Statements are not offered for the truth of the matter asserted if they are instead offered as verbal acts and legally operative facts (for example, words that are offered merely to show that an offer was made or that the statement constitutes defamation). In addition, statements are not offered for the truth of the matter asserted if they are offered to show the effect on the listener (for example, to prove the element of notice in a negligence case) or if the statements are offered to show what the declarant believed to be true (rather than to prove that the words themselves are in fact true). If a statement is not offered for the truth of the matter asserted then the statement is not hearsay.

Let's assume we have a statement offered for the truth of the matter asserted. Next, determine whether any exemptions apply. The exemptions are the following: (1) prior inconsistent statements given by the declarant under penalty of perjury and prior consistent statements offered to rebut a charge that the witness is lying or exaggerating or offered to rehabilitate a witness who has been impeached on other grounds; (2) statements of identification of a person as someone the witness earlier perceived; and (3) statements made or adopted by a party to the action or by a spokesperson authorized to speak for that party, statements made by the party's agent concerning a matter within the scope of the agency, statements made by the party's partner about a matter within the scope of the partnership business, or statements made by a co-conspirator of the party about a matter in furtherance of the conspiracy.

Let's assume that none of the above 3 exemptions above. Next is to ask whether any exceptions apply. The exceptions are beyond the scope of this post but there are many of them. If any of those exceptions apply, then the statement is hearsay but it's admissible due to the exception. It's important to understand this point: when an exemption applies, the statement is not hearsay; when an exception applies, the statement is hearsay but it's admissible nonetheless. 

If no exception applies, then the statement is inadmissible hearsay. 

Florida Bar Exam Essentials: Corporations

The following is a sample from the chapter on Corporations (a multiple choice subject on the Florida Bar Exam) from Florida Bar Exam Essentials:

Florida Bar Exam Essentials contains 1,092 questions and answers just like those seen in the sample here. The book covers every subject tested on the Florida Bar Exam and is available for immediate download here on the blog.