26 February 2008

Day one of the February 2008 California Bar Exam ... oy

1: Torts (negligence, strict liability) - kid enters electrical substation and gets fried - would have been better if his bird got fried ... who the hell keeps a pigeon as a pet?

2: PR - loyalty, confidentiality, conflicts, and withdrawal more or less.

3: Crim pro (5A and 6A) and crim law (straight murder cluster - for the third time in a row, WTF?)

Response to a demmurrer/Points and authority
Wow, long, hard, weird setup, horrible in every way.

Three responses on-line so far:
"like getting California Penal Code 261(a)'ed"
"hard a fuk"
"I agree... I have no idea how I feel about PT today"
"I thought PT A was incredibly hard."


Anonymous said...

Agreed. PT-A-wful.

Holden said...

jeez, it really was bad, huh. So far one friend says "oh, come on, it wasn't that bad" and all others say it was bad to very rough.

Any idea what was really supposed to be written on it?

Anonymous said...

Glad to hear others share my feelings on Performance Test A! I'm from Florida and don't have anybody to commiserate with in regards to the exam. Thank god for the internet... Does anybody think Thursday's test will be less cruel and unusual???

Donald said...

I thought PT-A was tough as well. It was very confusing and I don't even feel that confident about my formatting. I did manage to use pretty much everything in the file and library (all of the cases and most of the statutes from what I recall), but PT is always tough. The Crim Law/Crim Pro essay was easy but I wish I had spent more time on it -- I had to rush it because I spent way too much on the torts question -- there were just a ton of issues/arguments that you could make on that one regarding neg./SL.

Anonymous said...

I'm a little confused about the 5th/6th Amendment q. If you found that the informant was NOT a state actor (and I think he wasn't), isn't that the end of the story? So it wouldn't have been much of an answer, which is why I (erroneously, I think) made him a state actor. Thoughts?

Holden said...

@Anonymous - supposedly the PT's are split between a hard setup with limited fact finding/searching (seems like Tuesday's) and another with a easier setup with more fact finding/intensive searching. But it's a crapshoot and no one really knows.

@donald - I (and others) also spent too much time on the torts question leaving less for laying out the murder cluster in question 3. There was a lot to say on 1, creative solutions, trespass, a freakin' pigeon?, etc.

@Anonymous (the other one) - if he's not a state actor then go ahead and analyze it anyway, right? Why miss out on potential points to pick up =) I think I started saying that he wasn't and then changed it so I'd have more to talk about. Most folks report that they didn't have too much too much to say on the 5A/6A issues regardless (and certainly I was wrong to include 5A/14A section on voluntariness - what a waste of time I suppose). I said it was voluntary because his fear was reasonably because (1) Vic was close enough for D to see Vic's hand in his coat and (2) the "anger" or whatever "fear" may have "rekindled" (though I wish I had been more clear - I think I basically used the word "rekindled" and that was it ... I don't even remember if I included it ... oy). Others went with M1 or M2 and some with invol manslaughter, arguments for nearly any way you want to come out, just a matter of putting down good fact analysis I guess. Then again, by opening my mouth on this I'm showing how little I know/knew.

Anonymous said...

My $.02 -

PT-A was very straightforward except for 1 thing. The easy stuff first:

3rd COA:
- Under Kursesky case, on demurrer, court must accept as true facts in complaint as alleged. Plaintiff claimed he became aware of cause of action on October 13, 2007. Accepting as true, this is w/in the 1-year SOL, unless he could have discovered it sooner through "reasonable diligence." Per Kuresky, this is a question of fact inappropriate for court to tackle at pleading stage. If court decides it anyway, Plaintiff wins b/c he enlisted law firm to sort out mess same day he fired Defendant.

- Even if SOL does apply, exceptions for "actual injury" and disability toll. Disability is easy - b/c Plaintiff was suspended, could not "physically" bring the case, so SOL tolled during that period of suspension.

- "Actual injury" was the only truly difficult part of PT-A. Key (I believe) was that Jordache case said speculative harms are not actual injury. Plaintiff alleged 3 harms - fines/fees, legal costs, lost claims now barred by SOLs. First two ARE actual injuries, so SOL on malpractice claim not tolled. But claim of damage arising from inability to prosecute claims against other defendants is speculative, therefore not "actual injury," therefore SOL is tolled, at least w/ respect to that claim of harm/damage, so 3rd COA survives to that extent.

4th COA:
- Extremely straightforward. Subject to 3-year SOL. Plaintiff alleges it discovered cause of action October 13, 2007, but even if you accept Defendant's date of November 20, 2006, lawsuit brought in February 2008 still well within SOL. Notably, Defendant's demurrer didn't raise this.

- Equitable estoppel:

Just have to argue factors (from Batt... v. Batt... case) and facts, pretty straightforward.

Anonymous said...

Sorry, didn't mean to post that twice - was copying to post over on the predictions page, as there was some talk there about PT-A analysis. Please feel free to delete double post. Sorry.

Michelle T. said...

So, obviously one had a discussion of liability-as-landowner-standard, but did people also have a section analyzing negligence under the RPP standard?

Also, was it an inherently dangerous activity, and if so, how does that work--duty, causation and damages?

Anonymous said...

Pretty sure it's a 6A violation if informant affirmatively elicits incriminating responses rather than acts as a "listening post." Pattern seemed to go out of its way to point out informant was acting at police direction and had initiated questioning. then again, it's all a blur now.

I don't even remember what I finally went with M-wise. Might have been imperfect self-defense theory of voluntary manslaughter, that he honestly, if unreasonably believed deadly force was about to be used on him.

@ $0.02: I don't really remember, now, but I think K-case spoke to accepting facts alleged in complaint as true on review.

Anonymous said...

But for 5th Amendment, analysis is different? Even if state actor, no "compelled" discrimination because not a cop? Am I the only one who missed this??

Anonymous said...

Liability as landowner should be part of a negligence duty analysis. I think. At least that was one of the duty theories I used.

As to the standard, I did a burdens-benefits Learned Hand analysis and also spoke to looking to the custom of the super-high-voltage power substation or whatever the hell it was business as to protective fencing and such. It would have cost little to erect better/higher barriers, especially since PLI was so close to a residential neighborhood. 12 year old kid had no problem climbing up that thing, so how protective could it possibly have been, barbed wire or not? Bigger signs (they were 10x14" or something) with pictures would have been a good idea, too. They just said "high voltage," if memory serves.

I hit RPP as to kids under an admittedly thin attractive nuisance analysis.

Under strict liability, if ultra-hazardous and you caused the injury, liable. I think. Heh.

Anonymous said...

@ Anon -

No, I'm sure Kursesky was addressing standard on demurrer. I quoted it word for word in my answer, and its also true in real life when a court considers a dispositive motion for judgment on the pleadings. Another person (Jack) mentioned the same thing on one of the other pages here.

Donald said...

I am still dwelling on the crim pro/crim law question from Day 1. I laid out all of the relevant murder rules but ultimately decided that he shouldn't be convicted of any due to reasonable mistake of fact. Now I am fearful that I may have read Vic's action's wrongly, but from what I saw, I thought you could make the argument that the D made a reasonable mistake of fact that negated the requisite mens rea of murder and all lesser included offenses. But no one else appears to have argued that way.

Anonymous said...

@ $0.02 -

think you're mistaken. Kuresky spoke to review of a demurrer. I don't recall a Jack, but if that's the dude who wrote us the memo, he said something closer to, "as you'll remember from law-school, when opposing a demurrer-op, you can only use facts alleged in the complaint."

You may well be right in the real world, but Kuresky, I'm fairly certain, spoke to a standard of review on appeal.

Anonymous said...

K did speaks to the review ON appeal -- clearly stated accept facts as true that are on "THE RECORD" (ei: the trial record). Then if I remember correctly it also stated that the trial court can consider facts "inferred" from the allegation as addition to the express facts when considering whether the P has met its burden.

Re: The 3rd COA (Attnys Negligence)
Also, why all of the analysis of the actual harm? I thought that was a trap. Because it applied to a different statute 366.2 (which was not one of the SOL statutes we were given) and if you look to our statute it was not the case. Our statute for the SOL on attorney misconduct (other than fraud)it explicitly stated the 1-year (from could have been discovered) or 4-years but was subject to exceptions. It then went on to list the exceptions that applied, the last subsection (I think it was (a)(4)) -- that if the lawyer conceals the facts of the harm, the one year SOL doesn't apply, but limited to four years. Also a subsections before that one that it said that the SOL for any harm/misconduct that is "on going" doesn't begin until the final date of misconduct. Thus, if he concealed the judgments until the termination of the relationship, the 4 year rule would apply regardless of the discovery "diligence" rule.

Anonymous said...

I apologize for the choppiness/inconsistent tenses of the post above. I am exhausted and failing miserably at all forms of communication.

fingercrosser said...

For PTA, I'm not sure if I oversimplified, but am curious to know whether anybody agrees and/or wrote something similar for the Jordache case.

I'll begin with a few of my preliminary observations/conclusions.

First, because Jordache interpretted the "non-fraud" statute, I believe it was only applicable to the 3rd COA.

Second, Jordache interpretted only one of the four "tolling" subsections of the statute that could have been used.

Third, in the opposing party's demurrer motion, they contend that Jordache stands for the proposition that the non-fraud statute "invariably" commences when there is an actual injury (don't remember the exact language, but I do remember the use of "invariably").

Fourth, there was another subsection in the "non-fraud" statute that allows the SOL to toll where the client relies on the attorneys advice.

And Fifth, we were asked to argue against the demurrer, which means we only had to show that we originally alleged facts in the complaint that would make a demurrer improper.

Conclusion: I argued that opposing counsel's reading of Jordache too narrowly interprets the "non-fraud" statute since it erroneously suggests that actual injury "invariably" commences the SOL period, whereas any of the other 3 subsections may also be used. Therefore, notwithstanding whether or not the subsection cited by Jordache actually tolls the SOL here, because the complaint already alleges that Plaintiff relied on Defendant's legal advice, there were sufficient facts to make demurrer improper on other grounds (i.e., b/c another tolling subsection could have applied).

Anybody agree? Did I overlook/misread something?

Michelle T. said...

My memory is that the exception regarding "ongoing" legal relationship didn't help much, because even if you use the date of the termination of the relationship (which is what the Defendant used), your SOL still expires...?

I simply said: 1) no discovery until _____, 2) even if there was discovery on Defendant's proposed date, there was no actual injury. Distinguished Jordache. 2--was very brief!

I could not make that exception that only applied to the four year statute of repose work.

Michelle T. said...

Also, I think you may be right that Jordache related to a different statute, but that doesn't make it a trap, does it? It interpreted a phrase--"actual injury"--that appeared in both statutes. ??

Anonymous said...

I just took the bar for the second time. I failed by 18 points the first time, studied my ass off for this next one, and I'm pretty certain I just failed it. I feel very dejected. Is anyone in a similar boat?

Anonymous said...

i failed by 11 points July of 2006. And have been on a 1 year hiatus from law. it was a bear to get back into the books, and it looks like i will be studying for the next july. FUCK! curve balls up the yin-yang, however i feel the pts were super easy. got 70 and 75 the last time around.

Anonymous said...

In Response to the "trap" comment I made earlier & replies:

My memory isn't so great but the SOL didn't expire because under the statutes in the code we were provided it was FOUR years b/c the attorney concealed the facts (re: the negligence action). It had not been four years since the relationship had been terminated so it doesn't matter when the injury was realized.

Anonymous said...

Didn't the facts state that the attorney agreed that actual injury didnt occur until Nov 2006, which means that for the 4 year SOL both the attorney and our client agrees that the 4 year wouldn't run any earlier than Nov 2006?

Anonymous said...

Ok....I soooo did not talk about negligence in the first essay...WTF!? I did talk about strict liability and attractive nuisance and duty owed to trespasser etc...but negligence really? I thought they were not negligent....I did talk about battery (probably not possible) and I did also talk about no deadly force for protecting property...please someone tell me that it was ok not to mention negligence...I just though they were sooo many signs put up that they were not negligent..think i'm going to hurt myself now.

Abe said...

Essay 1: well, yeah, you probably should have talked about negligence (even if as you said, to say that the signs were sufficient and why they were enough ... but it's a juicy area and plenty to discuss). But most of that would also be covered by strict negligence discussion also so maybe you didn't miss too many points there (i.e., points off for missing an issue, but not for missing analysis since most of it is similar). I mostly said "see above" for the other elements of strict liability, much of the analysis was the same really.

Nothing to worry about now though, positive thoughts, etc.

Anonymous said...

Here's hoping my battery analyis and strict liability analysis and attractive nuisance analysis was enough to make up the negligence analysis...UGH!Thanks for the comforting words though!

Anonymous said...

Negligence and Strict liability are two totally different analysis. Negligence is duty, breach, causation and damages...Strict liability is an abnormally dangerous activity not common to the area...Battery would make no sense because there was no intent...There is no such thing as strict negligence.

Anonymous said...

But as long as you said there was an absolute duty and you spoke about the causation then you will be ok for strict liability.

Abe said...

Well, now Anon@3:13, I don't believe that's the case.

Strict liability (per Conviser Mini-review) is the same as Negligence with 1 exception: There is no Stardard of Care, rather there is an "absolute duty to make safe"

Thus, complete strict liability analysis includes:
(1) Absolute Duty
(2) breach of such
(3) Causation (actual and proximate), and
(4) Damages

So the above poster hopefully will be okay (though could have gotten additional points for a standard negligence analysis also).

Anonymous said...

Agreed...honestly it would be nice that the bar graders for once in their lives passed a larger number of test takers.

Abe said...

I bet they'd like to pass more, but the reality is that it's really up to us generally ... I failed the first time but looking back and studying again left me with the feeling that I only had myself to blame and myself to rely on to beat the test.

Then again, ask me how I feel on May 17th and the answer may have changed =)

I believe the examiners and graders are neither motivated to manipulate nor sophisticated enough to created and grade tests for the purpose of failing us based on specific issues (i.e., out of state attorney, this law school or that, male vs. female, etc). Rather, they are just trying to be fair and limit the overall number of practicing lawyers (especially those who ought not be practicing) by coming up with a test that is as close as possible to fair without reaching "fairness" because, well, it's near impossible.

They beat me the first time, but I still have faith in them and in the process - hopefully with better results this time around!

Anonymous said...

Abe I'm with you, we ride the same boat my friend.

Anonymous said...

Thanks for the comfort all...I'm sure I missed some points for not going through a full blown negligence analysis although I did do a strict liability analysis per conviser mini review...again here's hoping....and I did an mbe question with the same fact pattern and the mbe answer was battery which is why i had a quick discussion about battery again although no intent. For me..I just thought they were not negligent because they had taken all those precuations and the intent argument in battery was the intent to electricute if there was a trespasser....here's hoping negligence was not 30 points...I'm sure it is possible to pass wihtout disucssing everything....UGH! This wait SUCKS!

Anonymous said...

Do we have another hebe lawyer on our hands or what? (did you pass?)