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.
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8 comments:
Good luck. With a recap like that, sounds like you hit the high points (ie, spotted the issues). It all takes me back . . . and makes me so glad I don't have to do it again.
Sorry to be a downer, but I think you missed the point of the evidence question. The bar examiners regularly state in evidence questions that all proper objections were made. That just means that when you analyze the problem, you don't have to make the counterargument for every point that, "gee, the defense waived this objection because they failed to raise it."
So your instincts on discussing leading questions, assuming facts, and calls for speculation were all correct - you should have written about them.
And there's no way that last call was a character issue. The fact that W was asked whether N explained what she meant by "pulled off a big job," then answered by what she assumed N meant, was looking for you to point out (1) W was not competent to testify what N meant, (2) what W assumed was not logically or legally relevant, and (3) this was inadmissible lay opinion.
I hope you hit the Confrontation Clause issue, too.
All's I'm sayin' is, your evidence essay don't sound like no 70 to me.
On the performance exam, simply signing a contract does not make D a present creditor. The future creditor statute is the only one that applied (77.5, not 77.6). It was under 77.5(2), the "badges of fraud," where you had to discuss the relevancy of the foreign law (that under foreign corporate disclosure law, it appeared that the Ds had gotten rid of virtually all of their assets) (I think that was 77.5(2)(e)).
For likelihood of success on the merits, that is not asking whether P was likely to succeed on his equitable claim on the merits, it was whether he's likely to succeed on his underlying contract claim on the merits. Thus, there would be no need to discuss the rationale for equitable relief in a fraud case here.
Good luck on the rest of the exam, in any event.
An apology:
I'm the same anonymous who wrote the previous comment. I don't know why I posted it. It was mean, smug, and had no point other than to hurt your feelings. The bar exam, law, and competition seemed to have brought out the worst in me.
I'm sure you did great, and I'm sure you will pass.
I apologize for the jerk post.
The fact that W was asked whether N explained what she meant by "pulled off a big job," then answered by what she assumed N meant, was looking for you to point out (1) W was not competent to testify what N meant, (2) what W assumed was not logically or legally relevant, and (3) this was inadmissible lay opinion.
I found only (2) above in the legal relevance sense an applicable strike here as the answer W gave went to what she thought now what it meant at the time and not what she thought it meant at the time.
The CEC declares:Present Mental or Physical Condition: Past tense is permissible if the declarant is unavailable and the condition is an issue in the action; cannot be used as circumstantial evidence.
May be used against third party if: 1. There is independent evidence that the declarant or third party did the activity or 2. It’s unlikely that the declarant would undertake the activity unless a third party participated.
Must not be made under circumstances that indicate a lack of trustworthiness.
Too tired to edit the above now, so I dunno...
Your quote about the CEC is a hearsay exception. It doesn't apply to W's in court statement about what she thought at that moment or some other moment. Out of court thoughts are not hearsay.
Yeah, I said the competency stuff, the lay witness stuff, discussed the prejudicial effect...
I think that question just left a lot of room for looking at it different ways. I know July of '07 I did well on that evidence essay and all kinds of people told me how I missed everything because I just kept repeating relevance and hearsay (I think it was). Shit, that 70 was the best score I got that bar! People can write different stuff and organize a few different ways and still do fine.
Your quote about the CEC is a hearsay exception. It doesn't apply to W's in court statement about what she thought at that moment or some other moment. Out of court thoughts are not hearsay.
You're right. Good thing I did not write it on the exam.
What say everyone here about Essay 2/Civpro, addressing Blinko's role in producing the maintenance records. Is joinder too "off" to raise? I did, dunno if it was right. Seems to me the t and o happened at Blinko, they could have maintained the machine, etc.
Just a thought.
Thoughts?
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