Thursday, July 31, 2008


On the third day of the California bar exam, my true love gave to me ... another contracts remedies essay question! Well, I guess trying to predict the frequency with which subjects will arise on the California bar exam is a bit like predicting, well, earthquakes.

The morning session was, as expected, quite a bit tougher than Tuesdays morning session, sans earthquake. But still, it wasn't what I would call "evil".

What was truly evil was the afternoon performance exam question. Never mind that the situation was set up such that it was very difficult to agree with the position we were supposed to take, but it was in essence a points and authorities memo in support of a motion in opposition to a motion to exclude evidence. We were given enough evidence only to realize that it was a "he said she said" kind of situation, with insufficient facts to really support either side. And, on top of that, there was no sample of what a points and authorities memo was supposed to look like!

Fortunately, such memos are the stuff of first year law school--except that was two years agoo!

At last, the dreaded "evil" written question has surfaced, in the last leg of this 3-day endurance test we impersonally call "the California bar exam".

Tidbits from the bar exam:

  • As we took our seats this morning, one of the proctors revealed that at one of the other testing sites, a bar applicant had been kicked out and disqualified because her phone had gone off 8 minutes before the end of a session. I don't really feel bad about that one, honestly.
  • We were told that another bar applicant had been kicked out and disqualified because when he fell asleep during the MBE, his snoring was bothering his neighbors. That's a little iffy, and I hope that wasn't true.
  • One girl started doing cartwheels just before the AM session.
  • Others were doing yoga. Wow.
  • Another girl started dancing in her seat at the end of the AM session. I wonder how she felt when she read the prompt for the PM session!

Anyway, the bar exam has been quite an experience indeed. That's really all I have to say about that. If you just finished taking the California bar exam, are near the downtown LA area, and need a stiff drink like I do, drop me a comment, and we'll figure something out!


gav said...

I didn't think the last perf. test was too bad. I mean,yeah, the facts were really against us...but it was a super easy layout, right? Just an eight point checklist. State te eight points and argue each one. The fact that the facts sucked for our side just helped us make/think of good counter-arguments (that we would then need to shoot down)... just my two cents. The MBE on the other hand...hell.

Bruce said...

Figuring out the format was the easy part. Finding the time to go through all eight points and laying out the argument, counterargument, etc., was hard, and I didn't have enough time. I had two sentences for point eight saying, hey, the guy in Clay was in for 7 hours!

I ran out of so much time, I actually ended up saying, "the people concede ..." something.

The MBE was pure evil. PT-B was as evil as any of the written portions went.

gav said...

I got some good points in on that last one about how it was only 5 hrs, but after you subtract the 40+ mins for breaks, it was really like 4hrs, which was about half the time that the Cray court found acceptable.

Remedies was ok because the questions they asked were very very specific (ie: 1.injunction?, 2.replevin? S.p.?, 3. expectation damages? anythingelse you can think of?)

The property one had a really easy issue (JT into TinC and what the rights and burdens each person had in a TinC). The only weird thing that took some hemming and hawing was what to do with the odd deed delivery to Ed.

What killed me today was the CP question. There were so mny little issues that i really ran out of time. I pretty much gave up writing rules and issue statements and was just rambling by the second half of it.

But what really killed be was the MBE. The stupid questions weren't clear about so any things. Are the talking about contrib. or comparative? What does it mean that the mortagage and the promissory note are seperated in the question? and so on. It's like everything was familiar, but none of the questions made sense. I'd usually narrow questions down to either "yes," or "no." Hah! I did real well. real well...

Bruce said...

Oh don't even get me started on the MBE. I think that's what pure evil must look like. You know how it's gonna be. I'm gonna die, I'm gonna go up to St. Peter, and he'll ask me an MBE question, and if I get it wrong, I'm going to hell, where it's MBE questions for the rest of eternity!

Anonymous said...

Curious as to what the format of the PT2 was. I honestly had no idea so I just did an intro, argument with the 8 points + totality of circumstances as a last point, and conclusion. Sort of like a memo. Will that suffice?

Bruce said...

Anonymous, that's essentially what I ended up doing, except I ran out of time for the 8 parts, so I skipped ahead and did a medium-sized paragraph on the totality of the circumstances.

Anonymous said...

Thanks man. How did you feel you did? Overall, I have a bad feeling about the whole thing. I ran through the essays and did a self assessment and I think I missed several issues.

Bruce said...

Anonymous, I wouldn't worry too much about it. Some of the most brilliant people I know from my school ended up wandering off into details that may make the examiners' eyes glaze over. In any case, yes, it was a pretty horrible exam, and I feel like you do in terms of maybe having missed issues, feeling violated on the MBE, and so forth. But there's not much we can do now, and so long as we did our best, we should just be satisfied that we're done. :)

Anonymous said...

Man, you got a good attitude. I'm contemplating studying for Feb now!!! That's how bad I feel.

Bruce said...

I guess I know when to quit. Besides, there's no point angsting myself for the next 4 months when I can always just spend December and January studying anyway. Also, I need to find a job to pay my bills with. :(

canbf said...

on the thurs perf test, I ADMIT that I advised my attorney that I did not think we could "ethically" argue that Cray was controlling and that despite there being some factual distinctions, it was extremely unlikely that a trial court would or, frankly, could disregard controlling precedent from that state's supreme court.

after reading the materials, and given the fed vs. state staire decises (how do you spell that word) issue, I thought maybe the bar examiners were seeing if we recognized that ethically you cannot argue a point of law that is not the prevailing law absent a good faith belief that the court will/should/could apply the new legal theory.

I just didn't think that we could argue that a trial court would simply disregard the supreme court ruling or that we believed the trial court would.

The sad/scary part is that after pointing out that we could try to distinguish Cray from Adams based on Cray being newer and providing more concrete factors/test, I really thought the law required/mandated that we advise the attorney that ethics probably prevented us from filing a brief, based on Cray, that stood in direct opposition to applicable suprem court precedent.

Did ANYBODY else do something this stupid?

Bruce said...

canbf, I think that's a creative way to approach it, so I hope you'll get some points for that. I believe the correct rule isn't that we should never file a brief that's unsupportable, but that we make a good faith effort to conform with the law. For my part, I had a few sections where I started sentences with, "the people concede ..." and made the arguments anyway.

Richard Koman said...

as far as part pt-b, I didn't think it was hell but it was certainly a beast. here's what I did: i formatted it as a brief, copying the format of the motion. I had one roman numeral heading and three letter subparts. A) Miranda only applies to custody; B) the 8 factors; C) distinguish from the last case.

While they intentionally gave you an unsympathetic assignment, they gave you enough precedent from Clay and Mathiason that I think you had to do your job and write the brief the boss asked for. it was ambiguous enough, even when they were accusing him, they were kind of nice about it. I conceded some of the factors, but worked the facts I had as much as possible.

Sorry to say, I dont think saying "its not ethical to make this argument" is an acceptable answer. if you really worked for the DA, would your boss be ok with such an answer? what they want to see you do is *represent your client* ... if your client is the DA, suck it up and write the motion.

on the essays ... that CP/wills question was a killer, I dont know what crap I wrote. everything else was more of less OK.

MBEs were hard ... what was with all those fucking mortgage questions?

Bruce said...

Richard, I was also perplexed as to how to approach Essay 6. I know it involved CP, and I wrote the boilerplate; but I was at a loss as to which transactions would've been wills. Fortunately, I had enough sense to look ahead at the proceeds from the sale of the condos, and disposed of that in short work.

Anyway, as I've said before, it's too late to second-guess ourselves, so let's just put it off until November. I hope we all pass. :)