Thursday, October 30, 2014

Legal Analysis for Bar Exam Essays

I wrote an article a while back on effective essay writing for purposes of the bar exam. I've reprinted it below for those who may be struggling with earning points on the essays.

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I’ve been working quite a bit with students on legal writing as of late. With increased frequency, students have been seeking tutoring not to learn any specific aspect of substantive law, but rather to improve their essay-writing ability. I thought it important to write a post in that respect. Though it would be impossible to provide significant tutoring on legal writing in a blog post, this will at least serve as an introduction as to how I believe one can improve his/her score on the bar exam by improving essay-writing ability.

Let’s take a basic example of a fact pattern implicating the tort of assault. Assume that X runs toward Y holding a large ball pretending as if he is going to throw the ball at Y. X does so playfully with no intent to actually hit Y, but Y is unaware that X lacks the intent. Y is frightened as X throws the ball. The ball misses Y by only a few inches.

ISSUE: Your first step should be to state to the bar examiners the issue you are about to analyze. For example: An initial issue is whether X may be liable for assault against Y.

RULE: Next, in a new paragraph you will want to state all relevant information that you’ve learned regarding the tort of assault. You determine what information is relevant based upon how you intend to analyze later. For example, in determining the liability of X, you will later need to analyze whether, based on the facts provided, X has violated each element of assault. As such, you’ll want to state the elements of assault in your statement of the rule. If a possible defense had been implicated by the facts, then you would want to mention that defense in your statement of the rule. For our purposes here, it would be enough to state that: An actor is subject to liability to another for assault if (1) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or (2) an imminent apprehension of such a contact, and (3) the other is thereby put in such imminent apprehension.

ANALYSIS: Advice differs in this respect, but I recommend that in order to achieve the maximum number of points on a bar exam essay, you write a separate IRAC for each element you are analyzing. The IRAC of each element should form its own paragraph. So, for example, after you’ve stated your rule, you would start a new paragraph, and in that paragraph state: It first must be determined whether X intended to cause a harmful or offense contact with Y. You would analyze the provided facts and ultimately conclude that X did not intend to cause such contact with Y. In a new paragraph, you should then analyze (in IRAC form) element 2; namely, whether X intended to cause an imminent apprehension of such contact with Y. Once again you should carefully analyze the facts, ultimately coming to the conclusion (if you believe the facts warranted it) that X did intend to cause such apprehension. In the next paragraph you should analyze (in IRAC form) element 3, whether Y was put in such imminent apprehension. After analyzing the facts, you would conclude that Y was, in fact, put in such apprehension. At this point, you have analyzed each element of assault, and you are now ready to conclude.

CONCLUSION: In the next paragraph you should state your ultimate conclusion. Your ultimate conclusion (I say ultimate, because you will also have sub-conclusions for each of the IRAC’s above) should mirror the issue you’ve stated at the beginning of your analysis. Since your issue asked whether X may be liable to Y for assault, that is exactly the answer you want to address in your conclusion. So, an example of your conclusion might look like the following: Because X intended to cause an imminent apprehension of a harmful or offensive contact towards Y, and because Y was, in fact, put in such imminent apprehension of such contact, it is likely that X will be liable for assault towards Y.

In a general sense what this approach requires you to do is to take the tort of assault, divide the tort into its individual elements, and analyze carefully each element. Only once you’ve done that have you effectively addressed the issue, and once you’ve effectively addressed the issue you then state your conclusion. It’s a logical approach that may take some practice, but will earn you many points when analyzing a legal issue on the bar exam.

Hope this is helpful! Good luck!

Tuesday, October 28, 2014

July 2014 MBE Percentiles

The nationwide MBE percentiles for the July 2014 exam have been released. Here's a bit about how the numbers work: The 54th percentile was a 145 and then 15 more scaled points (160) shoots you all the way up to the 86th percentile. The top scaled score on this exam was a 185, and the lowest scaled score was a 110.

The complete chart is below. Note that the essay data only applies to the state of Illinois, so only focus on the 2nd column if you're interested only in the numbers for the MBE.

Thursday, October 23, 2014

Class Actions (Miscellaneous)

In the previous post I outlined the requirements for a proper class action lawsuit under the federal rules, and there are a few other considerations to keep in mind when preparing for the MBE. The court will determine whether to certify the class. The following will be considered by the court when making this determination: the interest of individual control; the extent and nature of litigation elsewhere on the same subject; the desirability of a joint trial; and the difficulties in managing a class action. If the court does certify the class, it must also appoint class counsel, and define the class claims, issues and defenses.

All members of a class will be bound by a judgment rendered in a class action except those in a common-question class action who notify the court that they do not wish to be bound. Only in common-question class action suits is notice to all members required so that they can opt out. In all other types of class action suits, notice is discretionary, and decided by the court. When notice is required, such notice must state the nature of the action, the definition of the class, the issues, claims and defenses, and the binding effects of a class judgment.

In regard to jurisdiction, when the class action is based on diversity, only the citizenship of the named representatives of the class is taken into account in establishing diversity. On that same note, the class representative's claim generally must exceed the required $75,000 amount in controversy. As usual, however, supplemental jurisdiction may be invoked to allow for claims that do not exceed the required amount in controversy provided that complete diversity is not destroyed.

Court approval is required before a dismissal or settlement of a class action. Notice of settlement must be provided, and in a common-question class action, the court (in its discretion) may provide the parties with a second opportunity to opt out. A fairness hearing must also be held.

Sunday, October 19, 2014

Class Action Lawsuits (requirements)

There are very specific rules for determining whether a class action lawsuit is proper. The following elements should be analyzed in making the determination as to whether a class action is appropriate.

A class action is proper if:

--The class is so numerous that joinder of all members is impracticable.

--There are questions of law or fact common to the class.

--Named parties' interests are typical of the class

--Named parties will adequately represent the interests of the absent members of the class.

In addition to all of the above, one of the following three must be satisfied:

--Separate actions would create a risk of inconsistent results or impair the interest of unnamed parties.

or

--The defendant has acted or refused to act on grounds applicable to the class and injunctive relief is appropriate for the class as a whole.

or

--Common questions of law or fact predominate over the individual issues and a class action is superior to alternative methods of adjudication.


**More info on class action lawsuits coming in the next post.

Sunday, October 12, 2014

MBE Essentials: Recording Statutes

Two questions from my book MBE Essentials on the topic of recording statutes:

Q: What are the important distinctions among the recording statutes that could appear on the MBE?

A: The three types of statutes you’ll need to be familiar with are notice statutes, race statutes, and race-notice statutes. Under a notice statute, a subsequent BFP (a person who pays value and has no notice of any prior conveyance) prevails over a prior grantee who failed to record. The result is the same even if the prior grantee, after learning of the subsequent conveyance, wins the race to the recording office. Under a race statute, notice is irrelevant, and all that is important is who wins the race to the recording office. This means that even if the subsequent grantee knows that the same property has been granted to a prior grantee, that subsequent grantee can prevail if he records before the prior grantee. Under a race-notice statute a subsequent BFP will prevail over a prior grantee if that BFP wins the race to the recording office. In other words, the subsequent grantee must have no notice of a prior conveyance and must record before the prior grantee.

Q: What’s the best way to determine what kind of recording statute is being tested when a statute is provided within the MBE question?

A: If the word “first” appears in the statute, and the word “notice” does not appear, then it is a race statute. If the word “notice” appears in the statute, but the word “first” does not, then it is a notice statute. If both the word “first,” and the word “notice” appear in the statute, then it is a race-notice statute.


**MBE Essentials contains 434 questions and answers spanning all subject areas tested on the MBE. It is available on amazon.com @ http://www.amazon.com/MBE-Essentials-Sean-Silverman/dp/1495948706/ref=sr_1_2?ie=UTF8&qid=1399472981&sr=8-2&keywords=sean+silverman

Or you can purchase and download it right here on the blog:
Buy Now

MBE Fast Fact: Joinder of Claims

The issue of joinder of claims is implicated when plaintiff has sued defendant on one claim and wants to join other claims to the same lawsuit. Joinder of claims in such an instance is allowable, though if there are multiple plaintiffs or multiple defendants, then it is necessary that at least one of the claims arise out of a transaction in which all were involved.

A few jurisdictional issues to keep in mind here. If jurisdiction is based on diversity of citizenship, then plaintiff may aggregate all claims against a single defendant in order to satisfy the jurisdictional amount. Further, once the jurisdictional amount has been satisfied in respect to one claim, other claims that do not satisfy the jurisdictional amount may invoke supplemental jurisdiction if they arise from the same common nucleus of operative facts as the claim that did satisfy the amount.

If, instead, jurisdiction is based on a federal question claim, a nonfederal claim may be joined provided it is part of the same case or controversy as the federal claim.

Friday, October 10, 2014

New York Considering the UBE

New York might be administering the Uniform Bar Exam as early as July 2015.

More @ http://www.nybarexam.org

Monday, October 6, 2014

Joinder of Parties

A lot to know about joinder as you study Civil Procedure for the MBE. This post will focus entirely on joinder of parties, and on a future post I'll write about joinder of claims. In regards to joinder of parties, it can further be subdivided into two main categories: compulsory joinder of parties, and permissive joinder of parties.

Compulsory Joinder:

There are instances in which a party should be joined to an already-existing lawsuit. A party should be joined if complete relief cannot be granted to the existing parties in the absence of the party to be joined. In addition, a party should be joined if the absence of that party may impair that party's ability to protect his own interests in the controversy. And finally, a party should be joined if his absence would expose the existing parties to a substantial risk of double or inconsistent obligations. If any of the above are satisfied, then that party must be joined provided the party is amenable to service of process, and joinder of that party will not destroy diversity or venue.

But the question is then raised as to what is the procedure if such a party should be joined but cannot be joined. When joinder is not feasible the court must decide as to whether the inability to join that party renders the action dismissed, or instead whether the action should continue without the party. Once again, the court will have some considerations to attend to when making this decision. The court will determine whether a judgment in the absence of the party would prejudice that party or the existing parties to the lawsuit. The court will also consider whether any prejudice can be effectively reduced, and whether a judgment in the party's absence would be adequate. Lastly, the court will consider the interests of the plaintiff in the action; if dismissal of the action will result in depriving the plaintiff of an adequate remedy, the dismissal will be less likely.

Permissive Joinder:

Other instances present when joinder of parties is permissive even though the requirements for compulsory joinder are not satisfied. Specifically, parties may join an existing lawsuit if some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transactions, and there is a question of fact or law common to all parties. It's important to note here that although this rule is broad, the requirements as they relate to diversity jurisdiction are not altered. In other words, if the action is based on diversity of the parties, then there must be complete diversity among the parties after additional parties have been joined

Monday, September 29, 2014

MBE Essentials: Res Judicata vs. Collateral Estoppel

Two questions and answers from my book MBE Essentials:

What is res judicata?

Under the doctrine of res judicata (claim preclusion), once a final judgment on the merits has been rendered on a particular cause of action, the plaintiff is barred from trying the same cause of action in a later lawsuit. In regards to defining “cause of action” a common approach is to require assertion of all claims arising out of the same transaction or occurrence that is the subject matter of the claim asserted by plaintiff.

What is collateral estoppel?

Under the doctrine of collateral estoppel (issue preclusion), judgment for either plaintiff or defendant is conclusive in a subsequent action on a different cause of action between them. This applies only to issues actually litigated and essential to the judgment in the first action.

**MBE Essentials contains 434 questions and answers spanning all subject areas tested on the MBE. It is available on amazon.com @ http://www.amazon.com/MBE-Essentials-Sean-Silverman/dp/1495948706/ref=sr_1_2?ie=UTF8&qid=1399472981&sr=8-2&keywords=sean+silverman

Or you can purchase and download it right here on the blog:
Buy Now

MBE Fast Fact: Rule 11

Rule 11 of the Federal Rules of Civil Procedure is implicated whenever an attorney (or unrepresented person) presents to the court a pleading, written motion, or other paper. The rule provides that whenever such a paper is presented, the presenter certifies that to the best of his/her knowledge the paper has not been presented for any improper purpose (for example, harassment, delay, etc.) In addition, it is certified that that the legal contents therein are warranted by existing law or contain an argument for the modification of existing law. It is further certified that the allegations and factual contentions therein have evidentiary support and that denials of any factual contentions are warranted by the evidence or are reasonably based on a lack of information or belief.

It's important to understand the consequences of violating the rule. Violations of Rule 11 can lead to sanctions, and the court has discretion to impose sanctions against a party who presents a paper in violation of the above requirements. The matter may be raised by the court on its own initiative or the opposing party may serve a motion for sanctions with the court. Sanctions may consist either of nonmonetary directives or monetary penalties, and the monetary penalties may include payment of expenses or attorney's fees incurred as a result of violating the rule.

Sunday, September 21, 2014

The Top Five: The Complaint and Pre-Answer Motions

The topic of pleadings is sure to be a heavily tested topic in Civil Procedure on the MBE. Here are five things to know about the complaint and pre-answer motions under the federal rules:

(1): The federal rules require notice rather than fact pleadings. Notice pleadings require less specificity than fact pleadings, though a certain level of specificity will still be required.

(2): A complaint must state the following: the grounds of federal jurisdiction, a short statement of the claim showing that the pleader is entitled to relief, and a demand for judgement for relief (which may be in the alternative).

(3): An important motion to keep in mind is a rule 12(b) motion. Here, the defendant files a motion raising any or all of the following defenses: lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficiency of process, insufficiency of service of process, failure to state a claim upon which relief can be granted, or failure to join an indispensable party. If the defendant files a pre-answer motion prior to filing an answer then these defenses must be raised in that pre-answer motion. If the defendant files an answer prior to filing a motion, then these defenses must be filed in that answer. If not filed as specified, then defendant waives these defenses, except for failure to state a claim upon which relief can be granted and failure to join an indispensable party, both of which may be raised at any time prior to trial or at trial. In addition, lack of subject matter jurisdiction may be raised at any time until all appeals have been exhausted.

(4): If a party deems a pleading to be vague, that party may raise a 12(e) motion for a more definite statement before responding to the pleading.

(5): Rule 12(f) allows a party to move to have stricken any insufficient defense or any redundant, immaterial, or scandalous matter in a pleading. This motion must also be made prior to responding to the pleading.

Monday, September 15, 2014

Preliminary Injunctions vs. Temporary Restraining Orders

An issue that is sure to come up within Civil Procedure questions on the MBE is the difference between preliminary injunctions and temporary restraining orders. A preliminary injunction is an action in equity entered by a court prior to a final determination on the merits of a case. The purpose is either to restrain a party from moving forward with a course of conduct or to compel a party to continue with a course of conduct until the case has been decided. The result of a preliminary injunction is that it preserves the status quo, and the adverse party must be given notice and an opportunity to be heard before an injunction is ordered.

It is sometimes that case that irreparable injury will occur before the hearing on a preliminary injunction can be held, and such instances may call for a temporary restraining order to preserve the status quo until the hearing takes place. Once again it's generally true that notice must be provided before a temporary restraining order may be imposed. Here though there are instances in which notice is not necessary. Specifically, a temporary restraining order may be imposed without notice to the adverse party for a maximum 10-day period if the following conditions are satisfied:

--The moving party states specific facts in an affidavit or verified complaint of the irreparable injury that will occur if the temporary restraining order is not issued.

--The moving party certifies in writing the efforts made to notify the adverse party and the reasons why notice should not be required.

--The moving party provides security to pay for any damages incurred by the adverse party if the court later finds the restraining order to have been wrongful.

**note that although a temporary restraining order may be issued without notice if the above requirement are satisfied, a person must have notice of the order before being held in contempt for violating it.

Thursday, September 11, 2014

Sample Civil Procedure MBE Questions.

The NCBE has posted sample Civil Procedure questions to assist those who are preparing for the February exam. The questions can be found @

http://www.ncbex.org/assets/media_files/MBE/MBE-Civil-Procedure-SampleTest-Questions.pdf

Monday, September 8, 2014

MBE Fast Fact: The Erie Doctrine

The Erie Doctrine is similar to the Rule Against Perpetuities in that it's notorious for being conceptually complex. But it's not too bad, and for purposes of the MBE, there isn't all that much to know.

The Erie doctrine answers the question as to whether a federal court will apply federal or state law to a case heard in federal court. Under the doctrine, a federal court in a diversity case will apply its own procedural law, but must apply the substantive law (including the rules regarding conflict of laws) of the state in which the federal court sits. That said, it's essential to determine whether a law is procedural or substantive so that you can then determine whether to apply state law or federal law.

Courts will generally use the "outcome determinative test" in determining if a law is procedural or substantive. A law that substantially determines outcome of the litigation is deemed substantive and the state law will be applied. But if a law is arguably procedural, the court will generally err on the side of applying the federal procedural law.

**Note that the Erie Doctrine is only an issue when the case is in federal court on basis of diversity jurisdiction. If instead there is federal-question jurisdiction, then federal law applies even to substantive issues as per the Supremacy Clause.

Monday, September 1, 2014

Removal Jurisdiction

Removal jurisdiction refers to removing a case that was originally filed in state court, and transferring that case to federal court. Under the federal rules, this will be allowed only if the case could have originally been filed in federal court and for cases removed on the basis of diversity, no defendant is a citizen of the state in which the action was filed.

Only defendants have the right to remove the case to federal court, but note that a defendant cannot remove a case only on the basis that he has a defense grounded in federal law. This follows from the fact that federal question jurisdiction in federal court would not have been conferred on that fact alone, so defendant will not be able to use that fact to remove the case to federal court. If there are multiple defendants, then all defendants must join in the removal. In short, before allowing for removal, ensure that either there is a federal question involved, or that there is complete diversity among the parties to the lawsuit. Watch also for situations where at first diversity does not exist, but later the non-diverse parties are dismissed from the lawsuit. If after removal of the non-diverse parties there is complete diversity, removal by defendant will be allowed.

The procedure for removal is straight-forward. A defendant seeking removal must file a notice of removal in the federal district court in the district and division within which the action is pending. A copy of the notice should be sent to the other parties and to the state court. The notice must be filed within 30 days after defendant receives notice that the case is removable, and in cases of diversity, no more than one year after the action was commenced.

Then, the plaintiff has the opportunity to file a motion to have the case remanded to the state court. The question as to whether the case should be remanded directly relates to the above; namely, the case should be remanded to state court if there was no jurisdictional basis for removing the case to federal court.

Sunday, August 24, 2014

Defenses to Negligence

The default defense to negligence on the MBE is pure comparative negligence. But often enough the questions will direct you to apply a different standard, so it's important to understand how the analysis changes when the standard changes. Three defenses you'll want to know are pure comparative negligence, modified (or partial) comparative negligence, and contributory negligence.

Let's assume the following fact situation in discussing the analysis of each. Plaintiff ("P") is injured by 3 defendants "X," "Y," and "Z." The fault (in dollar amount) of plaintiff's injury is allocated as follows:

P's fault is valued at $50,000

X's fault is valued at $30,000

Y's fault is valued at $20,000

Z's fault is valued at $10,000

Total: $110,000


Contributory Negligence: If directed in any given question to apply contributory negligence, the analysis is very straight-forward. If plaintiff is determined to have been at fault (by even the slightest amount), then plaintiff is prevented from recovering anything from any other defendant. In our example, plaintiff is $50,000 at fault, so plaintiff will recover nothing. Note that plaintiff can then raise his own defense of the "last clear chance doctrine," claiming that defendant(s) had the last clear chance to avoid the act that caused the injury. If proven, then the fact that plaintiff was contributorily negligent will not entirely prevent plaintiff from recovering.

Modified (partial) comparative negligence: Here the analysis changes. Plaintiff can recover provided that plaintiff was less than 50% at fault when taking the total dollar amount of damages into account. Here, plaintiff was determined to have been $50,000 at fault, and total damages were valued at $110,000. Therefore plaintiff was 45% percent at fault (50,000/110,000), and because that is less than 50%, plaintiff will recover for his injuries. In determining the amount of recovery, subtract the amount of damages allocated to plaintiff ($50,000) from the total amount ($110,000). Plaintiff will therefore recover $60,000. Plaintiff can recover this amount from either x, y, or z (as per the default rule of joint and several liability), and then each defendant will have a right of contribution from the other defendants if any defendant pays an amount that exceeds his own fault. So, for example, if plaintiff recovers the $60,000 from z, z will have a right of contribution of $50,000 from x and y.

Pure Comparative Negligence: This is the standard to apply if you are not told to apply otherwise. The analysis is the same as in modified comparative negligence, except that under pure comparative negligence, plaintiff can recover even if plaintiff is determined to have been more than 50% at fault. So, assume that instead of damages valued at $110,000, the total damages were valued at $90,000 and further assume that plaintiff was still determined to have contributed $50,000 to his own injuries. In that case plaintiff would be deemed 56% at fault (50,000/90,000). Even so, plaintiff would be able to recover for the remaining fault allocated to defendant(s). In this example, plaintiff would be able to recover $40,000, and once again, assuming the default rule of joint and several liability applies, plaintiff may choose among x, y, or z, when recovering that amount, and then each defendant will have a right of contribution against the others.


**Note:: If told not to apply joint and several liability, the analysis changes slightly. Plaintiff can no longer recover the full amount from any given defendant, and can only recover an amount from a defendant equal to that defendant's fault.

Sunday, August 17, 2014

The Top Five: Venue

It's important when studying Civil Procedure to understand well the difference between subject-matter jurisdiction and venue. Subject-matter jurisdiction is the power of the court to adjudicate the matter before it, while venue relates instead to a determination as to which district court should hear the case. Here are five things to know about venue when preparing for the MBE.

1. The general rule regarding venue is that venue is proper in any judicial district where any defendant resides if all defendants reside in the same state. In addition, venue is proper in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated.

2. There will be times when the standards above are not satisfied. In such instances, venue will be proper in a judicial district in which any defendant is subject to personal jurisdiction, but only if the action is based solely on diversity. If the action is not based solely on diversity, then venue will be proper in a judicial district in which any defendant may be found.

3. In determining if venue is proper it is sometimes necessary to determine the defendant's residency (such as in 1, above). For purposes of venue, an individual's residence is determined by that individual's domicile. A corporation resides in any jurisdiction in which it is subject to personal jurisdiction, and an unincorporated association (such as a partnership) resides wherever it does business.

4. Improper venue may be waived by the parties. And importantly, venue is considered waived unless timely objection is made to improper venue.

5. There are situations in which, although venue is proper, the court may still wish to transfer the case for the convenience of the parties. This is allowable under the federal rules provided that the case is transferred to a court where it could have originally been filed. The standard here is the "interest of justice," and the court to which the case is transferred must have subject-matter and personal jurisdiction over the defendant; otherwise, venue in the transferee court is improper.