Monday, April 14, 2014

MBE Fast Fact: Delinquency Proceedings

The rights of the accused is a common topic for MBE questions in the subject of Criminal Procedure, and that topic includes the rights of juveniles. Though there isn't all that much to know on this topic, the following is important in preparing for potential questions:

A child is entitled to the following rights during a delinquency proceeding:

--Written notice of the charges with sufficient time to prepare a defense.

--The assistance of counsel. A child is entitled the same 6th amendment rights as an adult.

--The opportunity to confront and cross-examine witnesses.

--The right not to testify if testifying might subject the child to self-incrimination.

--The right to have guilt established beyond a reasonable doubt.

On the opposite end, it's important to note that the Supreme Court has held inapplicable to delinquency proceedings the right to trial by jury.

Sunday, April 13, 2014

February Results

Best of luck to all those awaiting Florida Bar Exam results to be released tomorrow!

Friday, April 11, 2014

MBE Essentials: Proximate Cause

My MBE preparation book, MBE Essentials, will soon be available in paperback in addition to the downloadable file available here on the blog. In addition, on occasion I'll be posting questions from the book. Today's question is on the subject of proximate cause.

How does the concept of proximate cause act to limit liability?

You’ll want to divide cases in which there was a direct cause of the harm from cases in which there was an indirect cause of the harm. In direct-cause cases there is an uninterrupted chain of events from the negligent act to the plaintiff’s injury. Defendant will be liable for all foreseeable harmful results only. In an indirect-cause case, an intervening force comes between defendant’s negligent act and plaintiff’s injury (for example an act of a third party). You should first determine whether that intervening force was foreseeable (or dependent). If so, defendant will be liable for all foreseeable harmful results resulting from the foreseeable intervening force. Some common situations here are rescuers and doctors who perform medical malpractice while treating the plaintiff injured by defendant’s negligent act. It’s a bit trickier when the intervening force is unforeseeable (or independent). The general rule is that defendant will not be liable for injuries caused by an unforeseeable intervening force (these are often deemed superseding forces) unless defendant’s negligence increased the risk of harm from these unforeseeable forces.

MBE Essentials contains 434 questions and answers covering all subjects tested on the MBE, and can be purchased and downloaded @

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Monday, April 7, 2014

February 2014 MBE Percentiles

Some states have already released February 2014 bar exam results, and many more are releasing shortly. The nationwide MBE percentiles for the February 2014 exam have been released, and they look pretty standard. For example, the 50th percentile was right around a 140 scaled score, and that jumps up to the 80th percentile if the raw score is 150. The data, as usual, supports the idea that you should be aiming for above a 140 scaled score on the MBE, to achieve an above-average score.

The complete chart is below. Note that the essay data only applies to the state of Illinois.

Monday, March 31, 2014

Specific Intent Crimes

One of the first distinctions to focus on when studying Criminal Law for purposes of the MBE is the distinction between specific intent crimes and general intent crimes. There are two primary reasons for ensuring you understand this distinction; the first is that the mere existence of a specific intent crime cannot be conclusively imputed simply by learning that a person has done an act. In other words, there is a common element that must be proven when analyzing all specific intent crimes, and that element is the existence of the specific intent. As an example, a classic specific intent crime is first-degree premeditated murder. It's not enough for the prosecution to prove that x performed the act of shooting y; the prosecution will have to prove as well that x shot y with the intent to kill him.

In addition to the above, another reason for identifying specific intent crimes is because some defenses (the often tested question in this context deals with voluntary intoxication), apply only to specific intent crimes.

There is a lot to memorize when preparing for the MBE. Here is yet another list you should know. The following lists the specific intent crimes for purposes of the MBE:

First Degree Premeditated Murder
Assault (intent to commit a battery)
False Pretenses

Sunday, March 23, 2014

Marketability of Title

When preparing for the MBE, you're sure to come across questions testing the concept of marketable title. Because the examiners test this concept in a variety of ways, it's important to know it well. And the first thing to understand is that there is an implied warranty in every land-sale contract that at closing the seller will provide the buyer with marketable title.

Questions often require a determination as to whether title is marketable, and the best way to address such questions is to understand what types of defects cause title to be deemed unmarketable. Defects in the chain of title can render title unmarketable, as can adverse possession. The adverse possession questions show up often, so note carefully that on the MBE, title acquired by adverse possession is not marketable, despite the fact that modern law is generally to the contrary. Though you should always look for twists in the questions in which the examiners tell you to apply modern law, the default rule is that because a purchaser of land acquired by adverse possession may be forced to defend in court his rights to the land, the title is deemed unmarketable.

Further, a variety of encumbrances on land will deem the title to that land unmarketable. These encumbrances include mortgages, liens, easements, and covenants. In regards to mortgages, you'll come across questions in which there is a mortgage on the property that is the subject of the sale, and buyer claims that title is unmarketable. Seller will have the right to satisfy the mortgage up until the time of closing, and can use the proceeds of the closing to satisfy the mortgage. Therefore, oftentimes the closing itself will render title marketable.

An easement that reduces the value of the property renders title unmarketable. Distinguish this from an easement that benefits property (for example a utility easement allowing others to service the property) which generally will not render title to that property unmarketable provided the easement was visible and known to the buyer when the seller and the buyer agreed to the sale.

Finally, note the rule regarding zoning regulations and their effect on marketability of title. Generally, zoning restrictions do not effect the marketability of title, as the regulations are not considered encumbrances. An existing violation of a regulation, however, is far different, and if there is an existing violation of a zoning regulation, then title to the property on which the violation is taking place will not be deemed marketable.

Monday, March 17, 2014

How It's Tested: Evidence Law

Evidence law can be very complex. It's not enough to know the various concepts but in this area especially it's important to know how the concepts play off each other.

For example, let's take a simple factual situation involving a car accident. Assume that plaintiff sues defendant for injuries sustained when defendant injured plaintiff. Plaintiff claims that defendant drove through a red light and hit him as he was crossing the street. The speed limit was 45mph, and in his case-in-chief, defendant claims he was well within that limit, traveling at a constant 40mph. Plaintiff then calls as a witness a police officer who testifies that immediately after the accident, the defendant told him he was traveling 55mph at the time of the accident.

Quite a few areas of Evidence law come into play here. First it must be determined whether the statement by the police officer is admissible against defendant. Clearly the statement made to the police officer is inconsistent with the statement made during defendant's case-in-chief so that statement is admissible to impeach defendant on a prior inconsistent statement. But it still has to be determined if, in addition to admitting the statement for purposes of impeachment, the statement is admissible as substantive evidence against defendant. That's a bit tougher as prior inconsistent statements are admissible as substantive evidence if the prior statement was made under oath at a prior proceeding, but the statement by defendant that he was traveling at 55mph (ie, the prior inconsistent statement) was not made under oath at a prior proceeding. As such, it may be tempting to pick an answer choice that says the statement is admissible but only for purposes of impeachment.

But there is one more point to consider. The statement was made by defendant, and defendant is a party to the action. Certain statements are admissible as admissions by party opponents. Admissions are the the words or acts of a party-opponent offered as evidence against him. Because this prior inconsistent statement was made by defendant, a party opponent, it satisfies that exception to the rule against hearsay and will be admissible against defendant both to impeach, and as substantive evidence against him.

The best way to learn Evidence law is to work through practice questions. The outlines will provide you with the foundation, but only through practicing what you've learned will you gain the necessary skills to properly apply the law.

Monday, March 10, 2014

MBE Fast Fact: Arrests

An interesting issue that comes up in Criminal Procedure questions involves the police following the defendant into his home after an arrest, and then seizing evidence found in the home using as the rationale an exception to the warrant requirement such as the Plain View Doctrine. The twist here is that generally the police need a warrant to enter the home, and so if the police are not in the home legally, then the Plain View Doctrine does not apply, and any evidence seized as a result of the illegal entry could be suppressed at trial.

But the result is otherwise. It is well established that the police may accompany the defendant into the home following his arrest so that the defendant may obtain identification, retrieve his belongings, etc. Once inside the home, certain safety precautions can be employed by the police. So, for example, if the defendant after his arrest is accompanied by an officer and the officer looks in the closet prior to allowing the defendant to retrieve clothing, the Plain View Doctrine will apply if the officer then views evidence of a crime. The evidence is admissible even though the officer did not have a warrant to enter the home.

There are important limitations here, however. The officer would not have reasonable grounds for doing a protective sweep (ie., looking throughout) the entire home unless the officer had reasonable and articulable suspicion that accomplices were hiding throughout the home and might pose a danger.

The Fourth Amendment is all about balancing the rights of the accused with the need for effective law enforcement. The questions can get very tricky but, as always, learn from each question the relevant rule of law, as you can be sure it'll be tested again.

Tuesday, March 4, 2014


Taking the MPRE this month?

Unfortunately, unlike with the MBE, there are not many official tests out there with which to practice, but one such test can be found on the NCBE website, and it's highly recommended as a study tool. It's at:

Sunday, March 2, 2014

Tenancy at Sufferance

When taking the MBE, it's important to keep the various tenancies distinct in your mind, and in regards to a tenancy at sufferance, it applies in only one specific situation. You should consider this tenancy whenever a tenant "holds over" (remains on the premises) at the end of a valid lease.

Once the tenant remains on the premises at the completion of a valid lease thereby creating a tenancy at sufferance, the landlord has a few options. The landlord can either evict the tenant or hold the tenant to another term. A question may arise as to what type of tenancy will be created if the landlord chooses the latter option and holds the tenant to another lease term; most courts hold the tenancy is a periodic tenancy, and the period will generally be the same as was created in the tenant's previous lease. So, if tenant had a month-to-month tenancy prior to holding over, the landlord will be entitled to require the tenant to pay rent for another month if tenant remains on the premises after the completion of the lease. Many courts are reluctant, however, to hold the tenant to a new tenancy for years, even if the previous lease called for that tenancy. In such instances, the majority calls for creating a new month-to-month tenancy, at least in regards to residential tenants.

Note that it's not always entirely clear in the questions as to whether the landlord has chosen to hold the tenant to a new periodic tenancy. A good indication that the landlord has in fact chosen to hold the tenant to a new periodic tenancy is if the landlord accepts rent from the tenant after the completion of the original lease.

Sunday, February 23, 2014

Good Luck!

At least the the studying is over!

Best of luck to those taking the bar exam next week! Posting to resume shortly to assist those preparing for the July exam.

Friday, February 21, 2014

Civil Procedure Subject Matter Outline

Not that this is at all important to anyone taking the MBE next week, but for future reference, the NCBE has released the subject matter outline for the Federal Rules of Civil Procedure which will be added to the MBE in February of 2015. The release in its entirety is below:

Examinees are to assume the application of 1) the amendments to the Federal Rules of Civil Procedure through 2012; and 2) the sections of Title 28 to the U.S. Code pertaining to jurisdiction, venue, and transfer. Approximately two-thirds of the Civil Procedure questions on the MBE will be based on categories I, III, and V, and approximately one-third will be based on the remaining categories II, IV, VI, and VII.

I. Jurisdiction and venue
A. Federal subject matter jurisdiction (federal question, diversity, supplemental, and removal)
B. Personal jurisdiction
C. Service of process and notice
D. Venue, forum non conveniens, and transfer

II. Law applied by federal courts
A. State law in federal court
B. Federal common law

III. Pretrial procedures
A. Preliminary injunctions and temporary restraining orders
B. Pleadings and amended and supplemental pleadings
C. Rule 11
D. Joinder of parties and claims (including class actions)
E. Discovery (including e-discovery), disclosure, and sanctions
F. Adjudication without a trial
G. Pretrial conference and order

IV. Jury trials
A. Right to jury trial
B. Selection and composition of juries
C. Requests for and objections to jury instructions

V. Motions
A. Pretrial motions, including motions addressed to face of pleadings, motions to dismiss, and summary judgment motions
B. Motions for judgments as a matter of law (directed verdicts and judgments notwithstanding the verdict)
C. Posttrial motions, including motions for relief from judgment and for new trial

VI. Verdicts and judgments
A. Defaults and involuntary dismissals
B. Jury verdicts—types and challenges
C. Judicial findings and conclusions
D. Effect; claim and issue preclusion

VII. Appealability and review
A. Availability of interlocutory review
B. Final judgment rule
C. Scope of review for judge and jury

Tuesday, February 18, 2014

February 2014 Bar Exam

Best of luck to those in their final week of studying! The end is in sight........

Thursday, February 13, 2014

MBE Fast Fact: The Contract Clause

You should consider the Contract Clause (Constitutional Law), whenever a fact pattern presents a state enacting a law that retroactively impairs existing contractual rights. States are prohibited from enacting such legislation; specifically, state legislation that substantially impairs an existing private contract is invalid unless the legislation both serves an important and legitimate public interest, and is a reasonable and narrowly tailored means of promoting that interest. This is essentially the intermediate scrutiny test that runs throughout Constitutional Law, though the wording is slightly different.

Importantly, note that the clause does not prohibit states from enacting laws that impair contracts that have yet to be entered into. Further, a distinction is made to the above rule when there is legislation that impairs an already-existing contract to which the state is a party (as opposed to a contract consisting only of private parties). When the state is a party, a stricter level of scrutiny applies. Though the notes do not go into much detail here, the general rule of strict scrutiny should apply to such legislation, and especially so if the state legislation reduces the contractual burdens of the state.

Monday, February 10, 2014

Essay Writing

Though this blog is primarily geared towards assisting with the MBE, I work quite a lot with students to improve their analysis for purposes of bar exam essay writing. A little while back I wrote a piece about my philosophy on how to effectively analyze a legal issue for purposes of scoring points on bar exam essays, and those taking the exam in a few weeks may find it helpful. It can be found at: