Good Luck!!

All best to those who will be taking the bar exam next week. Posting for the February 2025 bar exam and for the LSAT will resume shortly. 

MBE Tip: The Firm Offer Rule (UCC)

Assuming all other requirements (merchants, etc) are satisfied:

~ If no time is stated as to how long the offer will remain irrevocable, it'll remain irrevocable for a reasonable amount of time but not exceeding 3 months. ~ If a time less than 3 months is stated as to how long the offer will remain irrevocable, it'll remain irrevocable for that stated amount of time. ~ If a time greater than 3 months is stated as to how long the offer will remain irrevocable, it'll remain irrevocable for 3 months, but no longer than that.

MBE Tip: Strategy

The NCBE has decided on the order of the 200 (175 scored) MBE questions that you’ll see on the day of the exam. But you’re the captain of this ship.

That’s to say, you want to see every question on the exam before you get hung up on the especially tricky ones. Probably the worst strategy would be to feel obliged to spend extra time on some difficult questions and then miss a few easy questions at the end because there simply wasn’t enough time to work through them. That’s not good MBE game playing. Instead, if you come to some random question testing the difference between cooperatives and condominiums (for example) or a Civ Pro question that’s so long it could be made into a movie, pick an answer and mark it down as a question to do once you’ve seen every question on the test. Essentially, let the hardest questions be the questions you do once everything else has been seen.

Some Final Week Advice

My advice for the final week (next week) of bar prep (this is UBE specific but could apply elsewhere):

Drill lots of MBE questions. Serve a bunch of tennis balls and you get better at serving tennis balls. The same is true with the skills that are needed to score high on the MBE. Won't get those skills from a 150 page Property outline, though. Read through many of the released bar exam essays and the model answers to those essays. Determine whether you would have spotted the legal issues in the essay and if you wouldn't have, learn the law a bit better that would have allowed you to spot them. By not spending too much time writing out answers, it allows you to work through more of these essays (see the tennis ball analogy above). Continue to write some answers out if additional practice with IRAC is needed. It's kind of tough to prep for the MPT. I wouldn't want to see one of those strange things for the first time while taking the exam, though. It's a good idea to familiarize yourself with how they work before hand.

Florida Adopts the NextGen Bar Exam

Some big bar exam news out of Florida.

Florida has adopted the NextGen Exam, and will begin testing it in July 2028. At first, this seems significant. If I'm thinking about this correctly, it's the first state that had not adopted the UBE and has now signed on to this new NCBE exam.

But I find Florida's wording of this announcement interesting. They're referring to the NextGen exam as "a component of the Florida bar exam." In other words, just as the MBE was a component of the Florida exam, the NextGen will replace the MBE as that component. But, unlike the MBE, the NextGen is a full bar exam! Depending upon how much of the Florida portion the Florida Board ends up retaining, this new Florida exam might end up as daunting. All those subjects covered on NextGen + all the subjects already covered on the Florida portion of the exam will be..a lot.

Florida might cut some subjects from the Florida portion of the exam. It should do that. The NextGen is already, apparently, intended to test for minimum competence. But it's Florida, so I wouldn't hold your breath.

More on this news is @ https://www.floridabarexam.org/static/20240718_Press_Release_re_Florida_Bar_Examination.pdf

Future Interests (a quick review)

 A quick review:

From x to y and y's heirs:
y: fee simple absolute
x: nothing

From x to y for life: y: life estate x: reversion From x to y for life and then to z. y: life estate z: remainder x: nothing From x to y so long as y doesn't drink on the property. y: fee simple determinable x: possibility of reverter From x to y, but if y drinks on the property then x has the right to reclaim it y: fee simple subject to a condition subsequent x: right of re-entry From x to y but if y drinks on the property then to z y: fee simple subject to an executory limitation z: a shifting executory interest x: nothing And one last tough one: From x to y if y doesn't drink on the property and then to z so long as z doesn't drink on the property. y: fee simple subject to an executory limitation z: a shifting executory interest determinable x: a possibility of reverter That's really all you need to know on this stuff. They can always combine these to make them more difficult, but this is the foundation of it all. #MBE

Necessary Conditions vs Sufficient Conditions (LSAT)

This distinction between necessary conditions vs sufficient conditions is among the most important concepts to understand when studying for the LSAT. I plan on writing about this topic throughout multiple posts, but I wanted to start with just a quick distinction. 

Imagine the statement: 

If a student hands in a permission slip, then the student can go on the school trip. 

Now imagine a student does not hand in the slip. Would we be justified in concluding that the student cannot go on the trip? We would not be justified in concluding that. Handing in a permission slip is sufficient for going on the trip. That's to say, we know enough to know that the student can go on the trip if the student hands in the slip. But handing in the slip is not necessary for going on the trip. And so not handing in the slip tells us absolutely nothing about whether the student can go on the trip. 

Let's change it up a bit. 

A student can go on the school trip only if the student hands in a permission slip. 

Now imagine a student hands in the slip. Do we know that the student can go on the trip? We do not. Handing in the permission slip is required for going on the trip. We know that if the student does not hand in the permission slip, the student cannot go on the trip. But because the condition of handing in the slip is required rather than sufficient, by handing in the slip we know nothing. If the slip is handed in, maybe the student can go on the trip, maybe the student cannot. We do not know. 

Summary:

In short, if a sufficient condition is satisfied, we can draw a valid conclusion. If a sufficient condition is not satisfied, there is no valid conclusion to draw. If a necessary condition is not satisfied, we can draw a valid conclusion. If a necessary condition is satisfied, there is no valid conclusion to draw. 

MBE Trap: Indictments

MBE Trap:

If a Crim Pro question seems to be leading you in a definite direction ("huh, this one seems suspiciously easy") make sure to read carefully the call of the question. No matter how crazy the police act (no warrants, no miranda, no nothing), none of that matters if the call asks you whether the indictment should be dismissed. The Exclusionary Rule, to which all of the above will be very relevant, will keep a lot of evidence out of trial, but it won't affect whether the defendant will be indicted. Can indict a ham sandwich, and all that.

Essay Writing

For use in a couple weeks:

The Issue: Tell the grader the question that you hope to answer in your conclusion. It should be clear, since there are points awarded for issue spotting. The Rule(s): Imagine the # of rules needed to analyze the legal issue above is "x." Try not to include in your rule statement more than x or less than x. That said, the lesser of the mistakes is to include more than x. In other words, bringing tools to a job that you don't end up using isn't as bad as forgetting to bring tools that you can't complete the job without. But make that a goal: only the rules you need. The Analysis: Take those rules and apply them to the provided facts. Maybe the most common mistake I see when reading essays is that students will sort of think that the work of getting the rules down is over and then treat the analysis as if it's entirely separate from the rules. Refer back to the rules and mirror them in the analysis. Simply doing that will exhibit legal analysis which is exactly what you're graded on. That's why people say "if you don't know the rule, make one up." You can still get points if you analyze incorrect rules. When appropriate, argue both sides because each side will use the same rules to further their own theory of the issue. The Conclusion: Tell the grader which side from the analysis has the better case. Don't be too certain: law isn't calculus with a definite answer. Show some modesty by expressing an element of doubt unless there's absolutely a definite answer.

Res Ipsa Loquitur

Try not to make res ipsa loquitur more difficult than it has to be. In a negligence question ask:

1: whether the claimed injury is the kind of injury that generally could not have occurred unless the defendant was negligent. "The thing speaks for itself." and 2: whether the defendant was in control of whatever it is that injured the plaintiff. and 3: whether the plaintiff did not contribute to the cause of his/her own injury. If yes to all 3, do not grant the directed verdict. Plaintiff may not win the case, but shouldn't lose on that motion. If no to any of the 3, grant the directed verdict unless there's other evidence of negligence such that res ipsa loquitur will not be required for plaintiff to win the case.

A Process for Improving at the MBE

A Process for Improving at the MBE:

1: answer a question incorrectly. 2: note the legal principal that could have been used to answer the question correctly. Write (or type) it; that'll help you to better remember the rule. 3: internalize that principal, thinking about it more abstractly than how it was attached to this one specific set of facts. Abstract thinking comes easier to some than to others, but practice helps. Consider how the rule might apply to other facts. 4: answer a question correctly that contains a new set of facts by correctly applying the rule you’ve internalized in step 3. 5: keep repeating this process.

Essay Writing Tip: Memorization

I'd say that memorizing is not only not required, but it might (counterintuitively) evidence to the grader less of an understanding. Saying that an offer, for example, is a manifestation of intent to enter into an agreement, sounds nice and technical, but it's not all that obvious that there's an understanding of the significance it plays in a contract.

A bar exam essay is simply a number of legal problems that need to be solved. Solving those problems requires understanding what both lawyers will claim or how both lawyers will twist the law for the benefit of their client. Basically, be a legal reporter explaining to the viewer (the grader) how both sides will use the law to form their own argument of the case. Then, at the end, explain who you think has the better chance to win.

Advice for Studying

I'm working with a first-time bar taker who emailed me a question that I think might be a concern for other first-timers, especially. The student knows that the student is struggling in certain areas, but also has a very strict schedule (by the day, pretty much) as to what needs to be done for the prep company the student is using. Daily assignments, etc.

Essentially, the student was asking whether the student would be making a mistake by skewing, even substantially, from the schedule to focus on problem areas. I sent a long(ish) response, but my advice in short is as a first time taker one should be guided by the prep company. That company has a lot more experience with this test than the test taker does. But ultimately, do not feel guilty for following your gut instinct and skewing from that strict schedule. It's a huge burden, financial and otherwise, to have to take this test again: steer your own ship.

MBE Tip: Recording Statutes

MBE Tip:

A quick and easy way to determine in a Property question the type of recording statute: Below, let "+" indicate that the word shows up in the statute; let "-" indicate that the word does not show up in the statute. All of you've got to do is skim the statute for these words: Notice (+), First (-) = notice statute

Notice (-), First (+) = race statute

Notice (+), First (+) = race notice statute

MBE Tip: Variances

You'll probably see some zoning questions in Property. I'd say that's a safe bet, likely on the MBE and maybe on an essay. You'll want to know what what the term "variance" means in this context.

A variance is created when a local government gives a landowner permission to deviate from a zoning requirement that the landowner would others be forced to oblige. The definition is simple enough: they'll probably test on the requirements for obtaining a variance. Two notable requirements: the first is that the variance cannot deviate from the zoning plan in a way that would be contrary to the public interest. The second is that enforcement of the zoning requirement would cause the landowner unnecessary hardship. You'll want to distinguish variances from non-conforming uses (an MBE trap right there). A non-conforming use might be granted if you were using the property in a certain way before the zoning requirements took effect. If so, you may be able to continue that use for a limited time. Variances don't have either these requirements or these limitations. Probably less important, but might be worth noting the two types of variances: use variances allow the land to be used differently than the zoned uses, and area variances allow for structures on the land to look differently than structures in the rest of the zoned area.

MBE Trap: Default vs Default Judgment

You’ll need to understand the difference between a default and a default judgment, since the questions will often attempt to confuse the two. The clerk enters a default once the plaintiff has proven (by affidavit or otherwise) that the defendant has failed to timely serve an answer. 
 
A default judgment, on the other hand, is either entered by the clerk or by the court. Importantly, only the court (not the clerk) can enter a default judgment if any of the following is true:
 
~ the defendant has appeared (a broad term encompassing anything from filing a motion to otherwise acting before the court) 
 
~ the defendant is legally incompetent or a minor. 
 
~ the plaintiff’s claim is not for a sum certain (a specified set amount) or a sum that can reasonably be made certain.
 
~ the plaintiff failed to include an affidavit establishing the amount due. 
 
If any of the above is true, only the court can enter a default judgment and only if the party for whom the default judgment is sought has been served with written notice of the application at least 7 days before the hearing on the default judgment. 
 
Lastly, I’d note that a default can be set aside for good cause and a default judgment can be set aside by following the procedure under the Federal Rules for relief from a final judgment. 

MBE Tip: Double Jeopardy

The Double Jeopardy Clause of the 5th Amendment states, in part, that no person shall be put in jeopardy for the same offense twice. Essential, then, is an understanding of what is meant by the same offense, because if two offenses are not the same offense, then double jeopardy does not apply. Offenses are the same offenses unless there is an element in each offense that is not in the other.

Example 1:

Offense 1
Elements: A, B, C

Offense 2

Elements: A, B, C, D

These offenses are the same offenses because, although there is an element in offense 2 that is not in offense 1 (element D), there is no element in offense 1 that is not in offense 2. 

Example 2:

Offense 1

Elements: A, B, C, D

Offense 2

Elements: A, B, C

These offenses are the same offenses because, although there is an element in offense 1 that is not in offense 2 (element D), there is no element in offense 2 that is not in offense 1. 

Example 3:

Offense 1

Elements: A, B, C

Offense 2: 

Elements: B, C, D

These offenses are not the same offenses because there is an element in offense 1 that is not in offense 2 (element A) and there is an element in offense 2 that is not in offense 1 (element D). 

The significance here is that only in examples 1 and 2 should double jeopardy be considered. In example 3, the offenses are not the same, so double jeopardy should not be considered. 

 

MBE Tip: Comparative vs Contributory Negligence

 x negligently injures y. Y sues x, but y was negligent as well:

Can y recover from x?

x: 99% fault, y: 1% fault Contributory negligence: no Partial comparative negligence: yes Pure comparative negligence: yes x: 55% fault, y: 45% fault Contributory negligence: no Partial comparative negligence: yes Pure comparative negligence: yes x: 45% fault, y: 55% fault Contributory negligence: no Partial comparative negligence: no Pure comparative negligence: yes Important Takeaways: Even the slightest bit of negligence (see example 1) will prevent plaintiff's recovery in a contributory negligence jurisdiction. Keep an eye out for the "last clear chance" rule, though, as that might provide a basis for plaintiff to recover even using contributory negligence. For comparative negligence, the important demarcation is 50%. If plaintiff's fault exceeds that (example 3) no recovery. If not (example 2) recovery. For pure comparative negligence (the default on the MBE) y will "recover" regardless of fault. See all 3 examples above. Recovery will often consist merely of deducting y's own fault from y's recovery. I've labeled the above as "partial comparative negligence" but you might see it written as "modified comparative negligence. All interchangeable.