Flashcards...

Someone posted a comment on how to do flashcards... so, for whatever it's worth, here is my method. This is the result of years of memorizing speeches for collegiate competition, and teaching classes as a grad student where I would learn the students' names the first day by going person by person and learning the names in order, building on the mental list in my head until I knew them all.

Grab the Conviser Review, sit down with a large stack of cards, and start working your way through. One topic at a time, go through the outline, and read the rule, synthesize what that means, and start working it into a SHORT statement. This will take a lot of time. It is exhausting. It sucks. And, I think it is necessary. It is both substantive review and the beginning of the memorization process.

Items that go on flashcards are:

1. Definitions. This means on the front of the card write "Definition of Contract". On the back write, "A contract is a promise or a set of promieses that courts will enforce." On the next card, write on the front, "Elements of contract", and on the back write "Offer, acceptance, consideration". Keep it simple.

2. Lists of things to remember. This means get in the things that will need to be remembered while writing an essay or thinking through an MBE. One the front of the card write "Exceptions to Knock and Announce" and on the back write a list of the exceptions. Try to order them with an acronym. I forget what I used for knock and announce, but I came up with one and it helped. Follow that card with a card for each exception, and the definition, if that is needed. Keep the cards in the same order all the time. Memorize them in the same order all the time. Your brain will remember better if you go in the same order and build on what you have learned previously.

3. Breakdowns of an issue. I attended The Bar Code's Essay Writing Intensive, so I was on board with the idea of a specific outline for how to deal with specific issues. For example, equal protection has a certain list of subissues that need to be discussed in order, so I made a flash card to help me memorize that order. But again, don't put lots of words on the flashcard. Your mind can compartmentalize and remember little bits, but too much on a flashcard makes it useless.

4. I did a larger version of flashcarding at the end, because I took the Cheat Sheets, and additional self-developed cheat sheets that I made myself (some are posted on this  blog) and the last two weeks all I did was memorize. I spent part of the day with a ream of blank paper. First I wrote out the cheat sheet, looking at the template. Then, I continued writing it over and over, starting with a blank sheet each time, until I could write it without referencing the template. Usually it would take 5 or 6 times of writing out the entire cheat sheet until I could do it on a blank sheet without assistance. I could remember first the shape of the outline on the page, and then once that shape was imprinted in my mind, I could quickly fill in the details. Then, I would build on that by adding a second, then a third, and so on. On day two, I would do all the cheat sheets from the day before (5 or so) and then add five more to the process. On day three... another 5, until the night before the exam, I sat in the hotel bar with a glass of wine and wrote every single one out with barely glancing at the templates. I am convinced that I got an 85 or 90 on the defamation question last February solely because of that process. (I knew what to do with that question after reading the first sentence.) 

The other thing I did to memorize was working through my completed flashcards in a similar fashion. Here is what I did after I had five boxes of flashcards, each topic rubber banded separately.

I would get on the treadmill with my con law flashcards and once I could state word for word what was on the back of the first card three times, I moved on to the second one. It would take one to three hours to get through a whole topic memorizing my flashcards. Then, day two, I did the con law ones and added my evidence ones. Each day got a little easier, because I would go through the topics I already knew and had about 85-90% accuracy on them (you will not get to 100% and you don't need to) and the hard part was the addition of the new topic that I hadn't yet learned. I saved the smaller topics, like community property and wills and trusts, for later days in the memorizing process because memorizing the smaller stacks was easier later after I had a huge stack of the MBE topics I already reviewed first that day.

I also carried a couple of stacks of flashcards everywhere. When I went to pick up the kids at school, I sat in my car for the ten or fifteen minutes and tried to get through as many cards as I could. If I was waiting in line at the bank, I pulled out some cards. I looked stupid, but I didn't care, because I figured it was better than looking stupid by not passing (again).

Did it suck? Yes. Was it necessary? For me, yes. I needed the comfort of knowing how I was going to address every rule and every essay topic before I walked into the exam, so that period while they were reading directions did not result in a rising anxiety that made my brain freeze up. That happened the first time around, and also the second.

Now, I can say, the second time I studied, I made those flashcards, and the third time around, I pulled them out and used them, and added some more. So, did I spend 12 hours per day any time I studied for the bar? Nope. But over time, I did all that stuff and it was worth it. The satisfaction of throwing those boxes of flashcards away was supreme also.

I also agree with Whitney Roberts when she recommended that you study by practicing essays, learning how to write essays, and do some MBEs up until two weeks before the test. Then, you focus only on memorizing. That last two weeks is crucial with so much information. And, when I spent 3-4 hours a day memorizing flashcards, and then 2-3 hours per day writing out cheat sheets to memorize them, that took a lot of time and energy. It is okay to give yourself permission just to do this. I also did 20 MBEs per day during this time. One morning each of those weeks, I did a set of 100 MBE's, timing to make sure I could make the three hours. For me, that was no problem. I usually finished in 2:10. However, at the exam, I usually took up to the last five minutes on one MBE session, for some reason.

If it sounds like a lot. It is. But, get it done, and you won't have to do it again.

Good luck. I felt your pain, the thought of all that work still makes me shudder, and I sympathize, but it's doable. When you study, focus wholeheartedly, and when you are done, stop thinking about it and relax. For me, learning to relax was the hardest part.

Sad Day...

Our doggy Molly got hit by a car last night. Not sure how someone could be driving on a road, hit an animal, especially a yellow dog, and not stop, not call the number on the poor dog's collar, nothing. Luckily, some neighbors found her collar and called us. My husband went and got her last night and buried her this morning.

She was the most sweet, joyful dog. My buddy in the kitchen. Bacon was her favorite, so weekend mornings were the time she most looked forward to, when I might be in the kitchen cooking up bacon or sausage at breakfast. She got so excited to "assist" in taking the trash out that she would treat it like a covert operation, running out to the trash cans, looking left and right, and then standing guard while my husband dumped the trash bag. She was always ready to follow wherever her people were going, or just to sit at your feet if you were ready to be lazy. She had a habit of either sitting on my foot or leaning against my leg, simply because she wanted to be near someone. She adored running through the vineyards, and was always a runner. Unfortunately, that's what led to her digging her way out of her kennel, despite all our precautions. She chose the wrong moment to run out onto Dry Creek Road. Poor girl.

I can't imagine having another dog I so thoroughly enjoyed. She may have been my husband's dog, but I can say I loved her wholeheartedly, too. She will be missed in our family.

Clients...

A very nice woman came in today for an intial consultation. She started to cry when she started explaining how she makes less because of a mandatory pay cut from the state, and she is struggling to pay the few bills she has.

I went and got her a tissue, we talked, and we figured out some things she can do to help with her financial issues.

Then I gave her her check back for her initial consultation.

My office manager/assistant was less than thrilled. She disagreed that I should be more concerned about this lady's finances than my own.

Granted, I like to pay my employees, and I like to make enough money to pay my bills, but I just cannot feel good about charging this lady for a consultation. She is hiring me to do some things for her, and that is enough.

I think there is a reason we are often called attorneys and counselors at law. You really do need to counsel people. Sometimes it's that they come in and have no idea what they can do to help their own situation and they are really at their wits end. Sometimes they are just in denial about their situation. I have had to tell people they can't afford their house. I then apologize, because I realize that's not the news they want to hear. However, usually they take it pretty well. Sometimes, I think it's what they need to hear from someone else that they trust and don't have to feel embarrassed to discuss financial issues with. Plus, I can deliver some good news about what their options are if they do walk away from the house.

So, the end result of today's experience is that I think if you cannot develop compassion, you make a crappy attorney. Even doing defense work, if you lack the ability to recognize that some people were indeed damaged, then you do your client a disservice when you fail to advise them of their exposure.

Okay, off my soapbox now.

Legal Work...

I hate it when this happens because I always feel so incompetent, but it tends to be my process in answering motions to dismiss and demurrers....

I read the other side's argument. I think, hmmm.... what was I thinking drafting the complaint that way? Why did I take that client? They have no case! Egads, I'm going to commit malpractice! I will lose my license. These people should have gotten a real lawyer...

Then I read it again and get on Westlaw, and I start to get mad, because, really, what was that other lawyer thinking when they wrote such lame drivel, disguising it as the truth of the law? Sheesh!

Then I review my work, edit out the snarky stuff, and breathe a sigh of relief. I may actually do okay on this.

Every stinkin' time.

That was my day today.

Lawyering....

I have learned that being a lawyer means that most days no one is happy. Clients, especially plaintiffs, tend to require a lot of placating. This usually centers around a result/settlement not being good enough, their bill being too expensive, or not being able guarantee or give them absolutes on their situation.

Therefore, the clients who are kind, polite, and say thank you are so appreciated. And although I do it on pretty much every single file, I look for reasons to write down the time on those clients' files.

And that's about where I'm at today. Trying to be grateful for the delightful clients, and do what I can for the grouchy, unhappy ones without taking it personally that they seem to think I am not working enough in the way of miracles for them.

Jasmine's bedroom door sign...

The New House...

Good Luck...

Just wanted to give a shout out to all the bar takers tomorrow. Good luck and kick some bar exam a**. Just get in and stay in the zone and you'll be done with this thing.

The List...

So, I figure since I just turned the big 3-5 on Wednesday, it might be good to check and see how I did on the list...

Things to do before I turn 35 (next May 27)
#1. pass stupid bar exam
#2. have garage sale
#3. learn to cook fabulous ribs
#4. lose 30 pounds
#5. compete in a cooking contest
#6. learn to play guitar
#7. get a great haircut
#8. change someone's life
#9. bake bread from scratch
#10. master every sauce in James Peterson's Sauces

So, how did I did?
bar exam: check!
garage sale: check! (I made over $700!)
ribs: check! (yum, yum)
30 pounds: oh HELL no, but I also care way, way less than I did last summer. I would like to put that on the new list in the form of "get in good physical shape" rather than a weight loss goal, for turning 36.
cooking contest: check! (Two, actually.)
guitar: well, no... maybe this year...
haircut: check! (although now I need a good color)
someone's life:... um, check? One of my employees hated her former boss and was miserable, and now loves us and her new job, so does that qualify? I'm guessing yes.
bread: semi-check. I made croissants. Is that technically bread?
sauces: half,check. I got some, but not all. Definitely all the good basic ones: cream, red wine, au jus, etc.

So, I didn't get them all. I was sorely lacking on the creative front. I think is was simply a matter of no time for cooking and hobbies, what with starting a new law firm and all. Both me and my husband were working some 70-100 hours a week for a couple of months there in between the bar and the beginning of May. Phew!

But, I managed to snag one on my list for before I turn 40...
#10. have at least one employee

Actually, I have managed two employees... so, I figure I get some extra credit for that to compensate for the ones I lagged on for 35.

List for 36?
hmmm... let me think about it and get back to you. I'm tired from the 35 list still. ;)

Recap of Studying...

So, someone was already asking for a recap of study plans... This is what I did...

First July... I graduated from law school tired and burnt out. Probably should have waited a few months and taken it in February, but I listened to every one's "advice" and plunged ahead. I started a new job in a law office and bar prep at the same time. Another mistake.

Then in February... I decided it might be time for some kind of help. I signed up for The Bar Code, which was an essay writing seminar taught by Whitney Roberts. I had used her book the previous July, but didn't adhere strictly to it while in the exam, so the areas where I veered from her approach, I got terrible scores.

I drove out to Sacramento every Saturday in January and sat there all day, going through each topic, and then during the week, I had practice essays to do that were due by a certain time. The feedback from the Bar Code was excellent. Each essay came back with tons of comments, a score that was around 50 initially, but by essay 10, climbed to 65's and 70's, and plenty of encouragement. They grade 13 or so essays. My last one, I got a 75.

Most importantly, I learned from Whitney's class how to figure out what I just wrote in terms of scoring myself. I also was advised to get my Barbri Conviser Mini Review out and make my own flashcards. They had to be done a specific way. It was exhausting and extremely time consuming. It was totally worth it. So, in January, I did essays, attended class on Saturdays, worked during the week and did flashcards, and then took two weeks in February off prior to the exam.

Those two weeks, per Whitney's advice, were for memorization and MBE prep. She was so, so right. I had my flashcards done by the first week of February, my essay writing was better, and all I had left was to focus on memorizing and getting some MBE practice in. I came up 11 points short.

When my scores came in the mail, I spoke with Whitney on the phone. She said she thought that if I had done the exact same prep and taken another bar exam other that exact configuration of essays and PTs, she thought I would have passed. I just needed "my" bar exam. So, I took some time off, and decided that all I really needed was to manage my anxiety for the next time around. So, for this February, I planned ahead to do less.

Yes, less. February 1, I started. I got a subscription to baressays.com. I already had my homemade flashcards. I already had a set of PMBR books. It was triage time. I got up every day and went to the gym, where I got on a machine and memorized for an hour. Then I went home, took a shower, and sat down at my desk. I went topic by topic, and took the highest scoring essay answer off baressays, downloaded the question, outlined it, and then took the printed -ff answer that scored well and re-typed it. Then, I went to the down the list of well-scoring past answers and did the same thing until I finished that topic. Some days this took me three hours. Some days it took four or five. It depended on how many past answers were there for that topic. For the occasionally tested topics, sometimes, I managed to start on a second topic in a day. Usually by the third or fourth essay in a topic, I was able to just start writing on my own, with only referencing the sample answer. I was also able to critique those answers where they were weak and did not follow the Bar Code "cheat sheet" approach. Some days I did a few essays and then a PT, since PTs were on there, too, and I knew I needed the exact same system for PTs to get my scores and confidence up on those. I never studied more than 6 hours a day. Never. Even if I was tempted. I left the house every single day at 3:00 p.m. to go pick up my kids from school and that was the end of studying for that day, whether I thought it had gone well or poorly.

With about 5-8 days left, I was done with all the essays and PTs. I then started with the blank sheet method of writing out my approaches/cheat sheets on a piece of paper.

I did it this way: the first time through, I used the book or my own cheat sheet that I created (see as an example the contracts ones I worked on for myself and posted back then). The by the third time writing it out, I had some of it committed to memory, but had to remind myself of some of it. I wrote it out so it looked the same on the blank page every time. Then, if I blanked on one rule, I knew exactly where my pocket of forgetfulness was in the mini-outline. For that last week, I wrote out my approaches in the morning, and did no less than 20 MBEs and no more than 40 MBEs each day.

When I arrived in Sacramento for the test, I was nervous, so that afternoon, I sat down in my hotel room and wrote out all my cheat sheets again. If they were flawless three times in a row, then I could move on to the next one. After three hours, by hand was tired, and I was only through about half of my 45-50 "cheat sheets" (some from The Bar Code book and some I made up myself modelled after Whitney's method). I then went and got dinner, and then sat in the hotel bar with a glass of wine and kept writing out approaches until they were all done and flawless. I tried to go to bed, but I was still nervous. So, I sat in bed with con law flashcards (my worst subject.) Since I hate con law, this made me tired and I was able to get to sleep by about 11:00. I did no more studying during the test at all, except Wednesday night when I realized I couldn't remember any of wills and trusts, so I went through my flashcards for that topic area to memorize.

And that's it. I am probably not a good example of how to study because I purposely did less. I went and had a nice dinner each night while I was there, with a glass of wine. I built some retail therapy into the trip and scooted over to Arden Fair Mall to distract myself and feel like I was able to have some fun, unlike the intense pressure and stress I felt the past two times. Overall, I made this February as much like a vacation as I could, and focused only on me, not on my kids or my husband or anything but my own self and my own mental health and well being. That was the right thing for me.

I went back to the way I studied in law school this time around. I was a good studier in law school. I carved out time to study, was focused and productive during that time, and then didn't worry about it most of the rest of the time. I did lots of past tests to get the gist of how each professor wrote their tests and what style they graded highly. That worked great for me in law school, where I graduated with honors, so going back to it was the best thing I ever did. I went into the test with confidence that I knew what a good PT answer was and I knew what a good essay answer was. And, I knew the law- I knew that last February, so all I had to do was refresh my memory and my MBEs would be about the same as they always had been.

For me, MBE scores did not go up the more I did practice questions. In fact, I did better on the MBE last February having done those flashcards and knowing the law really, really well than by trying to learn the law by doing lots and lots of MBEs. My MBE score, despite having done about 600 MBEs for last February, actually went up by 23 raw points. That's a huge testament to the importance of knowing the rules of law. So, that's what I did.

But don't do what I did. Do what works for you. Look at where your scores need improvement and focus there. One thing I can advise is that it is far easier to raise your overall score by focusing on the writing than by doing MBEs, so I am a proponent of focusing on getting good writing scores.

A tutor can only do so much. At some point, you have to "see" it. You have to be able to "see" what a good answer is. Someone can talk at you until they are blue in the face, but they can't do that for you. For me, re-typing other people's answers that got a good score did it in a way nothing else could. I honestly think tutors are a waste of money. Even having taken the exam three times, I think that. But, again, do what YOU need to do, not what someone else advises. Following advice despite your own inner voice is exactly what got me in the position of taking that damn exam three times.

Finally, you'll live. I did. It sucked, but I did it and got through it and the letter on Saturday that was all about admission to practice law rather than my numerical breakdown of how I didn't measure up this time was completely and totally worth it. It will be for you, too. :)

Marketing...

A note to those shamelessly marketing themselves on the comment section. I am not your marketing vehicle. This is my personal blog- read, not for commercial profit. Market yourself somewhere else.

Thank you.

Final, FINAL Recap...

There is nothing like the relief of knowing I NEVER HAVE TO TAKE THAT TEST AGAIN.

My husband already presented me with my new business cards... I just have to get sworn in on Monday or thereafter and I'm all set.

Yay.

So, to answer the questions, yes I passed. (Yipee!)

Final Recap...

OK, so I figure if there is anyone who still had essays to take, they have started already, so here it is...

As I drove down to Cal Expo Thursday morning I thought to myself, "What would I most like to see on the essays.."

Defamation would be awesome. Contracts (breach not formation issues), after I painstakingly broke down my outline, made my own little approach and wrote it out over and over again. After that... probably corps. Director Duties ideally.

But, alas, I figured my luck was to get con law, wills/CP crossover, and a professional responsibility crossover with trusts or some weird crap that would freak me out.

So, it was like the heavens parted and made way for my dream bar exam. I had none of that 'oh shit' feeling because the topics on there I had studied the crap out of. I had defamation done in 40 minutes because I didn't need to outline it. The whole essay just appeared in my mind and I struggled to get it on the page as quickly and concisely as possible. Same with the contracts one. The director one I had to actually do some recall, but again- not bad, not bad at all....

Q1: consumer protection agency publishes manual that rates attorneys and calls one an ambulance chaser who only takes easy cases. :)

Q2: developer enters conditioned contract with builder that is fully integrated. Condition technically satisfied but the oral explanation of the condition does not occur, so developer loses profitability and jumps ship. Builder gets another gig with architect, but sues developer for full value of contract.

Q3: 3 director in close corp. D1 convinces others to get corp involved in shopping mall real estate deal, despite corps stated purpose in article for running comedy clubs. D 2 and 3 change their minds later. D1 has a second opportunity to invest in another mall, thinks the others will not approve it, and invests his own money. D 2 and 3 suspect D1 is embezzling. Can they oust him? (They are not shareholders.)

I was definitely less sure on the director one. I mean I know the director duties, and I talked about ultra vires, talked about the embezzlement issue, competing ventures, corp opportunity, etc. I think I may have missed some small issue. However, that being said, I think I still did enough to get a 70 on it. Maybe it was voting. I did go through the business judgment rule for the directors investing in the mall when the corp was struggling financially, but I didn't do a full blown discussion on director voting requirements. I did do removal of a director (who can, etc.)

Then there was the PT. So much nicer than Tuesday. The last firm I worked for did tenants' rights stuff. We defended unlawful detainers, brought affirmative suits, got statutory fees, the whole nine yards. So that PT was a revamp of every discussion I ever had with every client who came in the door. And it just worked itself out so beautifully. I started a new page for every issue as I went through the library first (after reading the preliminary instructions as to what I was supposed to do), then did a brief factual discussion (very brief), following by a discussion of the client's goals. Then I got my pages in a logical order and went through my pages, working through each option for the client, starting with doing nothing, all the way down to sue without administrative pursuit and ask for prelim injunction. I got every last thing in there, both factual and law based. Finished and was able to spell check and look it over for about 2 minutes at the end before they called time.

Sigh.

And I don't think I will ever take that exam again. Honestly, I could not have gotten a better bar for me. That was "my" bar exam. If I couldn't pass that, then I may have to decide that lawyering is not for me. Plus, I just am not sure I could get up the gumption to go back again.

But I don't have to decide that right now, so I'm just not going to worry about it anymore. Real life can begin again....

Phew...

It's over. Supposedly I am not s'posed to reveal the topics until tommorrow. Just in case that's true, I'll post my recap tomorrow.

But it's done. DONE! I am done with that test. Forever.

Amen.

Tired...

Got no sleep. Woke up at 2:15 and had to figure out the cooling system in my room. Surfed channels for a while and saw the P90x guy get ripped, the Malibu Pilates ladies get sculpted, and that floor steamer clean everything. Then turned off the TV and stared at the dark for a while.

Now I'm exhausted. So I go down to get a cup of coffee (or two) in the lobby and this guy (who is a client of ours) is there. He's taking the bar, too.

I don't know what it is about some guys, but they think it's okay to touch every woman they see. That is so annoying. Keep your hands to yourself, buddy. When I'm bleary-eyed and haven't had my coffee yet, the LAST thing I want is some stranger rubbing my shoulder or back. Thank goodness I haven't showered yet, because that kind of male behavior makes me want to take one.

Men who do this, just stop please. It's not professional. And it's downright creepy.

Fun During Bar Week Hell...

This makes me laugh each and every time I watch it. Even if you are studying (well, let's face it, if you are reading blogs you are putting off studying anyway) it is only about 14 seconds and well worth it.

MBEs...

I'm glad that is over.

The morning was hard for me. Got done in the last five minutes. A lot of questions I knew the answer, sure, but some of them I just sat there and thought, "What the FUCK?!?"

I could not remember what attornment meant, even though I remember seeing it on my flashcards. Just lost that out of my brain. Don't remember if it was actually a viable correct answer, just that I remember going through my flashcards and seeing that term and thinking, "There's no friggin' way I have to know that. Next!"

And then it was there. Geez.

And that one that had the transactional immunity and the use and something else immunity? I got mad. I know you don't have a right to counsel for a grand jury, but what's with the types of immunity? That I did not know and I just got frustrated and pissed. So it took me longer this morning as a result. One good thing, being frustrated kept me from getting bored and I read every single question and every single answer and was able to rule out a lot of them, which is exactly what happened last year in the morning of MBEs. So, maybe that means I did about the same as last year on MBEs. That was a decent score, so that'd be fine. I saw that my last five questions were all B's and that made me all nervous, like I must have missed a couple of those because there's no way there are five B's in a ROW.... Ugh!

Afternoon... aahhhh. More defamation, evidence questions, crimes, easier con law questions. Again this year, there was a weird pseudo-wills question that irritated me. One had a bunch of civil procedure... That's not supposed to be on the MBE people! Give us a break!

Anyway, it's done. Tomorrow is more essays. I certainly hope that was the harder PT, so I'm looking forward to tomorrow's and getting the heck out of here.

2/3 of the way done, people!

Comment...

Ok, I tried to post a comment and Blogger won't let me, so I'm pasting it here....

Anon: No worries. I just saw your second post. I disagree about this, though...

"Thus, there would be no need to discuss the rationale for equitable relief in a fraud case here."

The cases talked on and on about how the fact that there were badges of fraud made it preferable that an action at law (for damages on a contract) would now be able to receive equitable relief.

Previously, a plaintiff had to choose. If they brought a suit at law, they were limited to legal remedies (ie. damages). If they brought a suit in equity, then they were limited to equitable rememdies (ie, SP, injunction). If there is a sufficient showing of fraud, then plaintiff is now allowed to "mix" equity and legal remedies, so to speak.

The reason for that is public policy- the judicial process is rendered futile by the fraudulent acts of the defendant. So, you have to show that there was sufficient evidence of fraud in the first place to get to the point where you can even qualify to ask for equitable relief.

Breach of contract allows you to get damages for breach, right? Well, if there is fraud, then that's a whole new ball game. That was the point the cases were making. Once you establish the fraud, you have to meet all the elements to actually get the equitable relief you are seeking. That's the test where you argue all the facts of the harm (of not getting the injunction) to plaintiff and end with the five public policy reasons for why plaintiff getting the injunction not only helps him, it helps the public interest at large, innocent third parties, other creditors who might rush the defendant, etc.

Kind of like if you submit a summary judgment motion to the court, you always start with the rationale why summary judgment can be granted. Sure the judge knows that, but you put it in there anyway to show that YOU know that and to educate the court like they are a two year old (wasn't that in a Denzel Washington movie?)

Just sayin'.

To Anon:

You may very well be correct on the evidence points- But I went back and read the call three times and it specifically said assume all appropriate objections have been made and was the evidence properly admitted. In the bar prep class and in all the practice essays I did, a question that calls for listing proper objections asks you to do just that.

I did discuss competency of the witness, lay opinion, all of that... I just got through it and had an extra five minutes, so I thought there must be something else. I figured if it was extra, they would just discount and ignore that at the tail end of my essay.

The Confrontation issue was part of my endless hearsay discussions. The whole point of hearsay is to keep out stuff that deprives the right to cross examine witnesses. This is particularly important in criminal cases.

I did not talk about Prop 8, but that's because I know that I do not ever understand where Prop 8 actually has an effect, so I figure that few points is not worth it to show that I flat out don't get what the purpose of it is.

Also on the PT- remember I wrote this recap after three glasses of wine and two hours of retail therapy, so I was long past wanting to post the entirety of my answer and probably forgot half the stuff I wrote.

After reading your comment- yes, I understand that the likelihood of success on the merits is for the underlying contract case. That's the whole argument I made. I did analysis arguing all the reasons (based on the facts) that plaintiff would be likely to succeed on that claim- the next step of that prong is that his likelihood of success paves the way for a clear right to equitable relief. Basically, if he is likely to win the pending case, he then gets by extension a right to claim irreparable harm and can get the injunction until the suit is over. This is not foreign analysis to me, as I wrote an ex parte TRO motion three weeks ago, which I won. I really think the only reason I was able to finish that PT was because I recently wrote that motion and was quickly able to grab onto the format of the argument and regurgitate the proper analysis. If that was something different, I would have run out of time and gotten it all outlined and a sentence or two under each heading like last February with that Thursday afternoon PT.

You might be right about me being wrong... However, last year when I took the bar, I left the exam saying to myself "Honestly, I think I got a 60 on this question, a 65 on that question... and a 55 on that PT and a 65 on that PT." And I was exactly right about my scores when they came in the mail.

So, should I be worried? Maybe. Am I worried. Absolutely not. Because angst and anxiety and over-analyzing how well I wrote this or how well I argued that got me taking this exam three friggin' times. If I had just blocked out the voices of all the people who said, "To pass the bar, you have to..." I would have been done a long, long time ago. I am over being hunched up with worry about how I wrote this or that.

And I honestly think my writing is better for it this time around, too. When I went back after doing some 60 to 70 essays in prep for this week, I looked at my past exam answers and saw that my writing had a hesitancy. I did a lot of "this is likely to", "may", "could" and I didn't just take a damn position. This time, I went back and made myself outline a question, then type the answer that actually got a 70, 75, or 80. And I started seeing the right way to do it in a way no one could have told me or advised me. I decided that it's kind of like drafting complaints- you can worry about it and it'll come out dismal, or you can go for it and it comes out so much better. Confidence comes across on paper, and the bar examiners like it (along with rule statements and analysis.)

So, that's partly why yesterday, especially since it was a persuasive argument, I wrote it like I would write a real first draft of an MPA. Here's the facts and here's the list of reasons why we meet the elements we have to meet and just assert every last thing you have to assert.

I was actually thinking about it this morning (although I had not seen your comment yet) while they were reading the MBE instructions and I thought yesterday after uploading my answers that I didn't use the foreign law stuff, but really I did- quite a bit. I used it for the factual analysis throughout. Three people all around me were panicking that they just didn't use it at all, so if it was hard for everybody, then it was just hard.

So, was my recap indicative of what was actually on my paper at the end of the three hours? Probably not entirely.

Was I trying to capture the gist. Sorta.

Mostly I was writing it for some catharsis and to get it clear from my mind so I could switch gears to MBE mode.

Anyway, I saw that you posted a second comment, although I have not actually read it yet, but that's really all I have to say about that. Nothing I can do about it now anyway, and hopefully I will never know what my actual score was on each essay and PT. I know I can get a 65 on an essay and still pass 'cause I have done the math, so if I dropped five points on talking about character for a paragraph at the end, oh well. I'll just have to live with myself. I was eleven points away last February and got two 60's, so I am not going to get all worked up.

Obligatory Recap...

Okay, so here it is...

Question 1: Full Professional Responsibility- conflicts of interest, fee issues, whistle
blower stuff, nothing too exotic.

Question 2: Civil Procedure: transfer of venue and discovery issues. How happy am I that I have done insurance defense PI work? Pretty happy since it asked about getting maintenance records via discovery requests and getting a physical and mental examination of plaintiff. All federal.

Question 3: California Evidence. Weird format. It looked like a transcript objection question but the call said assume all proper objections have been made. It drove me nuts. I just kept thinking- that assumes facts not in evidence, that question is leading, that question calls for speculation. I guess the idea was to mislead the people who didn't read the call. So the issues I got were the marital privileges (duh- she's his ex-wife and they were married when he supposedly did the robbery), hearsay, more hearsay, more fake you out with something that could only be hearsay but is really nothing, and then the last one I finally decided was character. She gave her opinion as to what the statement via the telephone meant and it turned out her opinion was that she thought they committed a crime, and I just had too much time, so I settled on that as the only thing that actually fit. I even threw in competency of the witness for one of them because I just jammed through it too fast and I knew they must want something else. Plus you have a criminal defendant in CA court, mercy rule, all three kinds of evidence can come in for rebuttal, yadda yadda yadda, there ya go.

I can safely say I think I got a minimum of 70 on each of those essays. If I got something less, I would be shocked(!).

Anyway, PT was (I certainly hope) the harder of the two this afternoon. Memo of Points & Authorities on a guy who was suing some foreign guy and two corporations and they were trying to transfer all the asset value of the corps to evade his reach at the time of ultimate judgment. Can he get a temporary injunction? Oh, and that just drove me NUTS. I learned TRO, preliminary injunction, and permanent injunction. The PT kept calling it temporary injunction. Get the term right people! Not that big a deal, but I kept having to be real careful to call it the same thing they called it and it just bugged.

There was all kinds of bizarre stuff in there.... some resume and declaration from an international law guy who would testify as to the rules applied in the foreign countries. A statute that talked about the correct procedure for introducing the foreign law for the court to consider. Uh.... okay. Now WTF do I do with this? It has nothing to do with getting a prelim injunction and that's what the brief is about.

There was also a third case in one of the cases, but it was overturned, so I just said that it was overturned and ignored it after that.

I was very happy that after all the writing this time around, I completely ignored all the um, "advice" about what to do on a PT. This is what I started doing for those half factual, half argument ones...

I need more time for the argument, so I immediately start writing the facts, as I read them. Typing them cements them in my mind, and I was done with the statement of the facts slightly more time than it took to read them. Then I moved on to the library and read that stuff. I ended up getting the factual stuff done in about 15 minutes, read the library for 25 minutes, outlined and just thought for 5-10 minutes, and then wrote like crazy for the rest of the time.

I spent probably 2 hours and 15 minutes just writing the argument, so I got it all in there. It wasn't the prettiest, but I figured out how to use everything I thought had any importance whatsoever. And it all had some decent analysis (not like last year's goofy con law PT that I completely f'd up.)

Like the weird statute that repeated itself. WTF? I decided to argue he was a covered by one because of the contract and so he was a present creditor, and he was covered by the one that included future creditors because he had the pending suit and he was going to prevail on the merits.

Covered 1) the issue of irreparable harm- if he can show a fraudulent transfer then he establishes irreparable harm. That took a long time to go through all those facts and analyze and then compare to the two cases. Sheesh.

Covered 2) likelihood of success on the merits, therefore he has a clear right to equitable relief. Went on and on about the rationale for equitable relief in a fraud instance, blah blah blah. Even I was bored writing it. I feel sorry for the examiners, slogging through all that stuff.

Covered 3) the public policy stuff- five friggin' public policy reasons. Went through each one, applied the reason to the case at bar. Tried to also discuss the remedies in the statutes and how they also applied but that was minimal cuz I just got low on time.

Ugh! I was exhausted when I was done.

Then I went and got some retail therapy. Now I feel much better.

Now I am going to have me a nice glass of wine, review one or maybe two outlines, if I even do that, and relax. I just feel like this is my last time doing this. If I can't pass knowing what I know, then I am just not meant to be a lawyer. I don't know what else to say about that. I used everything, argued the shit out of the facts, and knew for SURE what each rule I was writing was and why it should go right there and not somewhere else. Don't know what else to do after that...

So, I'm gonna go tomorrow and do what I can with the MBEs. I purposely do not care about riparian water rights. Ooops, gonna hafta skip that question. Also do NOT care about the RAP. Check a box and moving on.

The Thursday I'm doing the same thing I did today. Then I'm going home to open a bottle of Gary Farrell. Cuz I deserve it.

Ah...

So, I got here, had trouble settling in and writing out approaches but finally found my groove...

Went to dinner with an acquaintance who is also taking the bar. Relaxed, talked about other things, all was good.

Got back here and had a small problem settling in, but got back to it pretty quickly. Once I started having issues with hand cramps and wanting to turn on the TV, I went down to the hotel bar and ordered a glass of wine and sipped slowly while writing out approaches. Discussed the establishment and free exercise clauses as well as the relative hardships of the bar exam vs. the series seven exam with drunk guy and his friend, then continued writing approaches.

Got through all approaches with about 85-90% accuracy without looking at my master ones. Felt good about that, and still feel good about the rainbow on the way here. Not sure why.

Now I am going to read my newest issue of Bon Appetit and Eating Well and enjoy some banal television... in the morning I will again listen to my super soothing nice lady who tells me how smart and amazing I am. Seriously, someone posted it on the Cal Bar Repeaters group and this lady is so soothing- I LOVE HER. No, really- I want to have this lady in my life every day I ever have to go into court. She's so nice. She's so soothing. She's so positive.... I wish I had her all through the FIRST bar prep. I woulda passed the first time with this lady, dammit.

Anyway, not focusing on the negative... we are focusing on the positive. I am actually happy to go tomorrow and take the test. I know that sounds weird and twisted, but I'm kind of excited, like I know this is my last chance to show the examiners what I know, so I just want to get to it already.

Ahhhh...... I don't know what happened to me this time, but the bar is so much nicer and better this time. (Geez, I must sound like I'm on crack or something...)

I'll post tomorrow and we'll see if my calm continues.

Ohm...

I'm here and all checked in, but I have to spend the next couple of hours re-writing my approaches over and over to calm my nerves....

I did see a very nice rainbow that stayed in the sky the entire way into Sacramento. This made me so calm and happy... :)

Final Stretch...

Ok, so I made my husband sit there with me last night slogging through sets of flashcards... after evidence, PR, crim law, and crim pro I knew everything to about 85% retention.

I haven't focused much on con law this time around, though. Last February I did almost a week trying to thoroughly learn con law, and I really didn't get that much out of it. I know enough to write a coherent 70 point essay on speech or one of the major areas, and I know enough to get about 60% on the MBEs, and that's just gonna hafta be good enough. Con law is my one subject where I don't get better at it no matter how much I study it, so to ease my stress, this time, I said, screw it. I'll put my time where I think I can raise my scores.

Hopefully that gamble will pay off. I did reach a much quieter inner peace when studying this time. I certainly didn't like, 'cause let's face it, no one does, but I didn't hate every last waking second, either. Allocating a certain time each day and giving myself permission to be done with studying after that helped enormously. It also helped my ability to get through without feeling crazy and completely out of sorts.

I still took a stack of flashcards when I went to pick the kids up at school, and so that 15 minutes of waiting for them was not wasted. However, I did NOT try to study when they were around for the vast majority of time. I simply closed off the possibility of doing certain things, such as cleaning my house or keeping up on grocery shopping. If I didn't have dinner ready, I simply said to my husband, "I don't know what we're eating for dinner." After a couple of grouchy exchanges, he became somewhat accepting and was more helpful, allowing me downtime that I needed, and I refused to feel guilty for it.

The same is true today. I will go over to a friend's house to have snacks and watch the Oscars, and I'm not gonna feel guilty that I am not sitting at home studying. I have planned time tomorrow afternoon when I get to Sacramento- I will sit down and write out each Cheat Sheet/Approach in my stack, and then I'm going over to Arden Fair Mall to do a little shopping. I have even set aside some money for that purpose. I religiously set aside about $1,000 so I would not be worried about how to pay for lunch while I am at the bar, or how to pay for gas to get home. In so many, many ways, my stress has quieted to a slight occasional murmur, rather than a prolonged two month long, searing headache, as in past test administrations. I know that I know enough to pass this test. I know the law, I know how to write. All I need is calm and a little luck with arrangement of topics, and all will be well.

Ready?...

Am I ready? I go back and forth. One minute I feel like I just don't know it as well as last February, but then if I pull out any random set of flashcards, I know the rules, so I feel better.

MBEs are the same for me. Actually, in some ways they are easier. I don't hate them as much. By that I mean that I read one, and I have the gist of what they are looking for. However, I just don't know some of the minute rules, so I am aware that if I could remember if the measure of damages between merchants is at the time of breach (it is- I looked it up), or at the time the contract was made compared to the contract price, then getting the right answer is not a problem.

However, I know I am not going to know it all. That's just impossible and too much to expect, so I'm past even trying or panicking about that. I know my writing is soooo much better and more confident. Doing essays got to the point where I could read the question and start spilling out the answer without even thinking twice, which is how I used to be in law school. I knew I was ready for a final when I could go through past exam questions and immediately see the answer in my head as it should be laid out. So, that is fine.

PT's: I actually feel really good about those. I figure one will be factually based and I feel like I know exactly what to do with that one. The other will be more rule, argument based, and therefore harder for me to cram into the time requirements ( I like to mull over and so the time crunch always throws me), but I'm just going to do the obvious, do what I can, and make sure I cover everything I can possibly think of.

So, aside from last minute memorizing, which I know I need to continue on, I am pretty much ready. I wrote out, using my blank page method, all my approaches this morning and feel really, really good about the stuff that I KNOW that I know. And even stuff that I think I don't know, I actually mostly do. On topics, like Con Law, that I know less well, I am at about 70% rentention right now, so I think if my worst subject is at 70% solid comfort level, then there isn't much more I could expect from myself.

Most importantly, I don't want to kill myself right now, as in past last weekends before the bar. I feel pretty good. I'm actually kind of looking forward to going there, sitting down in the test room, and showing the examiners what I know and that they have made a serious error in not giving me my bar card already.

So, that's where I'm at. Hope all is well with you, dear reader. Although comments are few, I know from my site meter counts that people are reading. So, good luck to all who are sharing this experience with me, and let's go kick some bar exam ass.

I am sure I will post again, but I just feel like I am now done preparing. I have memorized, worked on my writing, and mentally prepared, so the rest is just downhill- just finalizing and cementing the work I have done. I hope the same is true for all of you.

Tired...

Ugh...

You know that feeling when you wake up in the middle of the night, as in 12:15, and just KNOW it is going to be a long night?

Well, that's what happened last night.

By 5:00 a.m., I had done all of evidence exhaustively. And I was exhausted. And I still couldn't get to sleep.

Now I get to do my evidence MBEs in a bleary-eyed haze. Sigh.

Happy Valentine's Day...

I couldn't resist...

CA/FED Civ Pro...

Here is my breakdown of the distinctions... keep in mind that I purposely left out things that I thought were not really differences. The only real example that comes to mind is the class action distinctions, as I decided that I just didn't think the differences were substantive enough to warrant learning.

Enjoy....

CA/FED Civ Pro Distinctions

CA long arm statute= constitutional limits
CA conflict of Law Rules= For Tort claims: if there is a conflict, balance the state interests
For Contract claims: if choice of law clause is enforceable, then balance the state interests
Subject Matter Jurisdiction
Fed-
1) Federal Question or
2) Diversity
CA-
1) Limited Civil= $25K or less,
2) Unlimited civil= more than $25K,
3) Small claims= under $7,500
Venue
Fed-
determines the judicial district in which an action under fed jurisdiction may be brought
Rule: proper:
1) where any defendant resides (if all in same state), or
2) where the T/O properly held/occurred
If no 1 or 2, in solely diversity cases, where any defendant is subject to PJ
If no 1 or 2, not diversity cases, where any defendant is found
CA-
determines the county in which an action within state court jurisdiction may be brought
Rule:
1) the county where where any defendant resides, where the contract performance or execution to occur, or where the tort occurred. (For corps, where the contract is to be performed, the breach occurs, or the principle place of business.)
Transfer of Venue
Fed- improper venue may be waived
Venue may be transferred “in the interest of justice”
CA- if improper, may still transfer if 1) not impartial, 2) convenience, or 3) no qualified judge in that county
Venue selection clauses unenforceable
Service of Process
Fed:
1) personal delivery,
2) leave at dwelling house or usual abode with person of suitable age and discretion residing therein, or
3) serving an agent appointed for service.
Alternate ways are
4) to follow the methods for service of process in the state where the federal court sits, and
5) if Defendant out of state, pursuant to the state’s rules where the action is pending
CA:
1) not a party and
2) over the age of 18
Options:
1) personal
2) Substituted followed by mailing
3) mail
4) publication
Immunity from Process
Fed:
1) if enter the state to appear in another action, or
2) fraud or deceit by the plaintiff
CA: no immunity
Injunctions
Fed- TRO: 10 day period if:
1) Irreparable harm
2) Must show why notice not required, and
3) Post security bond
CA TRO:
1) no time limit-expires when preliminary injunction issued or denied
2) if no notice- hearing on prelim injunction within 15 days
3) court has discretion to issue without a bond
Pleadings
Fed: Notice Pleading, must include:
1) Grounds of jurisdiction
2) Short statement of claim (fraud pled with particularity)
3) Demand for judgment for relief
CA: Fact Pleading (based on Code)
1) Statement of facts
2) Demand for judgment for relief
Pre-Answer Motion/Demurrer
Fed:
Motion to dismiss, for:
1) Lack of SMJ
2) Lack of PJ
3) Improper venue
4) Insufficiency of Process
5) Insufficiency of Service if Process
6) Failure to State a Claim for Relief
7) Failure to Join Indispensible Party
CA:
calls the 12(b)(6) motion a demurrer, works the same as the federal counterpart
Two kinds:
1) General demurrer- like 12(b)(6), can’t bring for lack of SMJ
2) Special demurrer- can bring for:
a. Lack of legal capacity
b. Other action pending
c. Defect/misjoinder of parties
d. Uncertain pleadings
e. Oral/written contract not plead
f. Not filing required certificates
Motion to Quash/Strike
Fed:
1) Motion to quash- objection to PJ, file with answer to preserve objection
2)Motion for more definite answer- must be before answering (in CA, special demurrer)
3)Motion to strike- used for any insufficient defense, redundant immaterial or scandalous material (CA has anti-SLAPP motion to strike)
Pre-Trial or Trial Procedures
Fed:
1) Must have general/special denial(s)
2) Must include affirmative defenses
3) If Rule 12 motion, answer within 20 days
4) If waive formal service, must answer within 60 days
CA:
1) General or specific denial(s)
2) If complaint verified, answer must also be verified
3) 30 days to answer complaint
4) If demurrer, must be within 10 days
Default Judgments
Fed:
is a sum certain
2) Party failed to appear, and
3) Party is not infant or incompetent
4) Notice after default required before default hearing
CA:
clerk may enter if
1) Arises out of contract or judgment
2) There is a sum certain
3) Party was not served by publication
4) Notice not required and no right to appear at default hearing
Counterclaims/Cross Complaints
Fed:
called counter claims
1) Compulsory- requires same T/O
2) Permissive- needs independent jurisdiction
3) Must reply within 20 days
CA:
called Cross Complaints
Amended Pleadings
Fed:
1) amendment to new cause of action, relates back to original complaint, must be same T/O
2) amendment to add new Defendant, if S of L not run, is permitted
3) exceptions- 1) mistake ID, within 120 days, and party knew or should have known
CA:
1) misnomer doctrine
2) Doe amendments (within 3 years of filing complaint), if:
a. Genuinely ignorant
b. Original complaint has the allegations in it
Intervention
Fed:
1) Of right- interest in property or transaction, no apparent supp. Jur.
2) Permissive- question of fact/law in common, not necessarily a direct or pecuniary interest, needs independent jurisdiction
CA:
requires “direct and immediate interest”
Discovery
Fed:
affirmative duty to make reasonable inquiry into facts and disclose information
CA:
no automatic disclosure requirement
Work Product
Fed:
discoverable upon showing of:
1) Substantial need, and
2) Avoid undue hardship
CA:
substantially the same, but language is “unfairly prejudice or result in injustice”
Case Management
Fed:
requires meet and confer to plan discovery, court makes a schedule they have to follow
CA:
case management conference will be scheduled by court within 180 days of filing c/o
Jury Trial
Fed:
7th A preserves right to jury trial in federal court if suit is:
1) Common law, and
2) Greater than $20
3) Must make demand within 20 days or waived
4) Legal claims tried first, then equitable
CA:
right exists for,
1) Common law claims
2) Gist of the action legal rather than equitable
Dismissal by Plaintiff
Fed:
as a matter of right until answer/SMJ filed or stipulation of all parties
CA:
as a matter of right until commencement of trial (unless parties agree otherwise)
Directed Verdict/Nonsuits
Fed:
called Judgment as a Matter of Law (Directed Verdict), renewed judgment as a matter of law must be filed within 10 days after entry of judgment
CA:
called nonsuit, motion made after plaintiff’s opening, may be partial (on certain issues)
Called directed verdict after all evidence is presented
Motion for a New Trial
Fed:
within 10 days
CA:
within 15 days
Same grounds, failure to move for new trial will be waived on appeal
Motion for Summary Judgment
Fed:
defendant can bring at any time, plaintiff/claimant can bring 20 days or after another party brings
CA:
any party- after 60 days since general appearance of the other party
Otherwise, both substantially the same
Relief from Judgment
Fed:
grounds
1) Mistake, inadvertence, surprise or excusable neglect
2) New evidence
3) Misconduct, fraud of adverse party
4) Void judgment
5) Satisfaction/release/discharge/prior judgment vacated or reversed
6) Generally within one year
CA:
grounds
1) Mistake, inadvertence, surprise, or excusable neglect
2) Reasonable time, not to exceed 6 months
3) Void judgment
Final Judgment
Fed:
unless judge makes express determination, order on some parties will not be final- must dispose of the whole case on its merits by rendering final judgment as to all parties and all claims
Notice of appeal within 30 days
CA:
judgment against some is final if no further issues and is immediately appealable
Notice of appeal within 60 days
Res Judicata
Fed:
final when rendered
Includes all rights from the same transaction or occurrence
CA:
final when all appeals exhausted
Includes “primary rights” (based on causes of action, ie. for personal injury, property damages, etc.)

The bar study experience....

Sometimes too much to drink isn't
enough.

CP...

CP is DONE. Four essays, and by the third I was spilling out the rules concisely, distributing assets properly, even got my intro down to a concise quick little paragraph... I'll just have to make sure Van Camp and Perreira are down in the memory bank for the three days and I'll be done...

Defamation...

Oh, and to follow up on yesterday... I notice there has been no defamation for a while. Hey, I KNOW defamation- wouldn't it be cool if that showed up in 19 days?

Just sayin'.

PR...

8 PR essays later... and I am tired. I see ethical violations EVERYWHERE.

Just sayin'.

Plus, I just disagree that it is proper in California for an attorney to have sex with his client as long as he or she reasonably believes that it will not interfere with their ability to represent the client.

I mean, how would you really know that? If they are good in bed, you'd certainly want to do better for them, but then there's the alternative.... if they suck in bed and do weird stuff that makes you think they are crazy or worse, then how could that NOT affect your representation of them?

These are the kind of thoughts that kept me from passing previously... back to rule, apply, conclude... much safer that way.

Torts...

I have now done everything that has a good score for the last five years for torts....

Too tired to type anymore... will update checklist later....

Contract Remedies...

Wow, so I have found what I should have done last February.... I did this in law school, and then followed people's dumb advice and didn't do it for the bar and my scores suffered as a result.

I got myself a subscription to baressays.com. So, each day, my schedule is this: go to gym, use the machines and look like an idiot while I go through flashcards memorizing. Get sweaty and tired, so stop by Starbucks for a nice short nonfat latte. Come home and shower, then pull up baressays and pick a topic. Today it was contract remedies: pull up question, read and outline it (the first one is hard), and then retype the best scored answer(s) on baressays that correspond to that question. Pick another question in the same topic, lather, rinse, repeat.

By the third essay, I was able to outline within five minutes and type at a FAST clip getting all the elements in no time. It also teaches me how to limit the issues to what they are looking for and not get off on a tangent or get too far down the wrong path. Also, you get in and out FAST. A LOT faster than I typically was doing in the past.

Yes, the stoooopid California Bar Exam will not beat me this time!

I'm just sayin'.

Interesting Stuff....

I came across this today and thought it might be of interest...

Contract Breach Approach...

And here is the contract breach section....

Contract Breach General Approach:

A contract is a promise or a set of promises that the law will afford a remedy if breached. Here, the issue is whether ______ breached the contract.

A party will be liable for breach of a contract when 1) there is an absolute duty to perform, 2) there is a failure to perform, and 3) the breach is material. Once these elements are met, a party will have 4) remedies for breach.

1. Absolute Duty to Perform: A duty to perform under the contract arises when 1) all conditions have been excused/extinguished 2) the duty was not discharged, and 3) there are no defenses.

a. Conditions still existing?
b. Defenses to formation

i. Statute of Frauds (marriage, year, land, executor, goods>$500,surety)

1. Memorialized writing: requires

a. Identify parties
b. Subject matter
c. Terms and conditions
d. Recital of consideration
e. Signed by charged party

ii. Unconscionability: oppression and unfair surprise

c. Defenses to enforcement

d. Non-Parties: incidental or intended/creditor or donee benificiary

e. Delegation: Generally, all contract rights may be delegated freely.

i. Elements

1. Manifest intent
2. No formalities
3. Delegator remains liable on contract

ii. Exceptions:
1. Personal judgment/skill
2. If would change obligee’s expectancy (requirement/output cases)
3. Special trust
4. Contractual restriction

f. Assignment: Generally, all contract rights may be assigned.

i. Elements
1. Manifest intent
2. Adequately described
3. Consideration not required

ii. Exceptions
1. Substantially changes obligor’s duty or risk
2. Future right on future contracts
3. If it is prohibited by law

g. Excuses to performance

i. Failure to cooperate

ii. Actual breach

iii. Anticipatory Repudiation: options
1. Sue
2. Suspend and wait to sue
3. Treat contract as discharged and rescind
4. Ignore and urge performance

iv. Inability to perform

v. Substantial performance

vi. Divisibility

vii. Waiver or Estoppel

viii. Impracticability

ix. Impossibility

2. Failure to Perform: (who failed to perform? What did they do? Was the duty to perform discharged via one of the following?)

a. Illegality
b. Novation
c. Accord & Satisfaction
d. Impossibility
e. Substituted Contract
f. Modification
g. Frustration of Purpose
h. Operation of Law/Running of Statute
i. Mutual Rescission or Release
j. Condition Subsequent
k. Impracticability

3. Material Breach: A breach is material based on the following factors:
a. Amount of benefit received
b. Adequacy of compensation
c. Extent of past performance
d. Hardship
e. Negligent or willful behavior
f. Likelihood of performance

4. Remedies for Breach:
a. Damages:

i. standard measure- expectation that permit P to buy a substitute

ii. consequential- if reasonably foreseeable at time of entering the K

b. Specific performance
c. Rescission and restitution
d. Quasi-contractual relief:

i. failed contract and

ii. unjust enrichment
1. benefit conferred
2. expectation of payment
3. knowledge of expectation of payment
4. unjust to retain benefit

Contracts...

Since contracts are one of my harder subjects, I have been working diligently on them... And, for your veiwing pleasure, I have broken down the basic contract formation question into my own little approach, boilerplate, cheat sheet, memorization key, what have you. Whatever you want to call it, I found that I really need the mental image of how a basic issue will break down and where each rule or item will go in the flow of the essay. This is also so the last two weeks I can do the blank page method of memorizing, which just means I take a large stack of blank pages and start writing out issue approaches over and over until I can do each without referencing my master one. It worked well last February and took away much of my panic at the sheer quantity of memorizing there was to do, so I plan to do that again.

I make no claim of the all-encompassing perfection of this approach, but it is how I will be going about answering any contract formation question I get....

Since it comes out small when I upload it as a jpeg image, I also copied the text into the post below. However, if you would like me to email it, I will certainly do so if ya leave a comment for me.

Enjoy.

Contract Formation...

Contract Formation General Approach:

A contract is a promise or a set of promises that the law will afford a remedy if breached. Contracts are classified by how they are formed and how they may be accepted. The law governing a contract is generally common law, but for goods, UCC Article 2 will apply.

A contract requires 1) Mutual Assent, 2) Consideration, and 3) No Defenses:

1. Mutual Assent:
a. Offer: An offer creates the power of acceptance in the offeree. The elements of an effective offer are:
i. Expression of present intent to be bound
ii. Definite and certain terms
iii. Communicated to the offeree

An offer can be terminated by: 1) the act of either party (revocation, rejection, lapse) or 2) operation of law: (death or insanity, destruction of subject matter, supervening illegality).

b. Acceptance: Acceptance requires the following:
i. Power of acceptance
ii. Communicated to offeree
iii. Not assignable
iv. Must be unequivocal (Mirror Image Rule) and
v. Is effective upon dispatch (Mailbox Rule)

2. Consideration:
a. Bargained-for Exchange:
i. Bargain
ii. Legal Value
b. Substitution for Consideration:
i. Promissory Estoppel/Detrimental Reliance: (requires)
1. Promisor reasonably expect to induce act or forebearance
2. Act or forebearance actually occurs
3. Act or forebearance is of a definite and substantial character
4. Recovery is limited as justice requires
ii. Good faith modification under the UCC

3. No Defenses: Possible defenses to contract formation include:
a. Mutual mistake:
i. Both parties mistaken
ii. Material adverse effect on the contract
b. No consideration
c. Illegality
d. Incapacity:
i. Infancy
ii. Insanity
iii. Intoxication
iv. Duress/coercion