2017 February California Bar Exam Forum

[armenianBEAUTY]

How did you guys find the Evidence essay? I ran out of time on it... I remember hitting the following:
Double hearsay
Authentication of business records
Volumeness of records
Present sense impression
Present bodily condition
Found both inner and outer declaration within exceptions
Lack of admissibility due to public policy with regard to medical expenses, with the possibility that they can be considered as party opponent admission since made before a claim
Also mentioned vicarious admission
Thoughts anyone?

Sounds like you hit all the big items. I argued vicarious admission too. But ran out of time for public policy/Med payment and use for other purposes such as impeachment and prior inconsistent statement.

Yeah ^^. Looks like it got all the major issues.

Intake Form:
Double Hearsay
Layer 1-- π's statements to nurse, Layer 2-- nurse's writing onto the form
Layer 2 comes in under the business records exception (by someone under duty to make records in ordinary course of business; has sufficient knowledge)
Most of layer 1 (minus statements about other driver) comes in under a) statements made for med diagnosis/treatment, b) part where he said he's still in pain comes in as present sense impression, c) he was rushed to the hospital and still in pain so possibly under excited utterance as well since he was still apparently under the effect of the excitement of the event

Driver's statement:
Excited utterance -- she was still under the stress of excitement of the event. she had just seriously injured π. She could fear losing job. Still on the scene of the accident.
Opposing party statement -- vicarious opposing party statement -- employee w/in scope of employment and her actions are the reason for imposing liability on ∆

Manager's statement:
Opposing party statement
Offer to pay medical bills (only protects the actual offer... not accompanying statements) Public policy...


I also did not get to blab about other uses such as impeachment... but I don't think that'll be a big deal, bc facts did not mention they were being presented for impeachment. Of course, though, the extra point they would have given for doing so wouldn't hurt.

[Lawless!]

Can someone ease my mind on the Wills essay?

I argued that the first will might not be valid because the two witnesses need to know they're signing a will. Facts said W2 didn't know about the bequests in the document but he was honored to sign anyways. This hinted that maybe he didn't know it was a will which would make it invalid for lack of witnesses.

Code Section - Prob. §§6100, et seq.
"At least 2 persons present at the same time, witnessing either signing of will or testator's acknowledgment and must understand that it is testator's will."

I went ahead and argued revocation by act and subsequent instrument anyways.

How did everyone else handle this?

My understanding is that they only have to know it's a will, not the substance of the will itself. In othe words, reading it is not required. My conclusion was valid will, but revoked by subsequent instrument.

I don't think there were facts in the essay as to whether he understood it was the will or not. Instead the facts stated he was honored to sign... Didn't say exactly what he knew what he was honored to sign. But I argued valid will bc I didn't want to do down the other road. Lol ...also a point I remembered but missed on the essay was that harmless error where you don't have the required 2 competent witnesses, so long as testator has intent to make it his will you can give evidence of his intent and admit into probate. So the witnesses issue would've been easily looked over and the Will would've been valid since there's intent to Create a will.

I believe there were facts to argue that he understood it was a will-- i.e., meaning there was enough knowledge for him to count as 1 of the 2 requisite witnesses. The neighbor said a bunch of weird things like, "I'm so honored that you decided to ask me to be involved in this process... etc." and then he signed on the will document itself right under the other witness's signature. So, yes, he did know that it was a will signing ceremony although he admitted to not knowing about the specific devises.

I never stated that the facts said he didn't know... No where in the facts did it state the witness had actual knowledge but rather the facts were vague and beat around the bush. Obviously a cue for examinees to argue using the facts. So, yes, you could argue either way. And you would have gotten the same answer because the testator had an intent to make the instrument his will. So, even if the witnesses requirement was defective, you could still show evidence of testator intent and it would be held valid. And all roads lead to a valid will.

[barexaminerssuck27]

How did you guys find the Evidence essay? I ran out of time on it... I remember hitting the following:
Double hearsay
Authentication of business records
Volumeness of records
Present sense impression
Present bodily condition
Found both inner and outer declaration within exceptions
Lack of admissibility due to public policy with regard to medical expenses, with the possibility that they can be considered as party opponent admission since made before a claim
Also mentioned vicarious admission
Thoughts anyone?

Sounds like you hit all the big items. I argued vicarious admission too. But ran out of time for public policy/Med payment and use for other purposes such as impeachment and prior inconsistent statement.

Yeah ^^. Looks like it got all the major issues.

Intake Form:
Double Hearsay
Layer 1-- π's statements to nurse, Layer 2-- nurse's writing onto the form
Layer 2 comes in under the business records exception (by someone under duty to make records in ordinary course of business; has sufficient knowledge)
Most of layer 1 (minus statements about other driver) comes in under a) statements made for med diagnosis/treatment, b) part where he said he's still in pain comes in as present sense impression, c) he was rushed to the hospital and still in pain so possibly under excited utterance as well since he was still apparently under the effect of the excitement of the event

Driver's statement:
Excited utterance -- she was still under the stress of excitement of the event. she had just seriously injured π. She could fear losing job. Still on the scene of the accident.
Opposing party statement -- vicarious opposing party statement -- employee w/in scope of employment and her actions are the reason for imposing liability on ∆

Manager's statement:
Opposing party statement
Offer to pay medical bills (only protects the actual offer... not accompanying statements) Public policy...


I also did not get to blab about other uses such as impeachment... but I don't think that'll be a big deal, bc facts did not mention they were being presented for impeachment. Of course, though, the extra point they would have given for doing so wouldn't hurt.

Impeachment is a big deal. Of course they wont mention impeachment when they are testing it. The attorney directly asked Donna during cross if she offered to pay for medical expenses in the fact pattern. Probably 5 points worth

[ur_hero]

Can someone ease my mind on the Wills essay?

I argued that the first will might not be valid because the two witnesses need to know they're signing a will. Facts said W2 didn't know about the bequests in the document but he was honored to sign anyways. This hinted that maybe he didn't know it was a will which would make it invalid for lack of witnesses.

Code Section - Prob. §§6100, et seq.
"At least 2 persons present at the same time, witnessing either signing of will or testator's acknowledgment and must understand that it is testator's will."

I went ahead and argued revocation by act and subsequent instrument anyways.

How did everyone else handle this?

My understanding is that they only have to know it's a will, not the substance of the will itself. In othe words, reading it is not required. My conclusion was valid will, but revoked by subsequent instrument.

I don't think there were facts in the essay as to whether he understood it was the will or not. Instead the facts stated he was honored to sign... Didn't say exactly what he knew what he was honored to sign. But I argued valid will bc I didn't want to do down the other road. Lol ...also a point I remembered but missed on the essay was that harmless error where you don't have the required 2 competent witnesses, so long as testator has intent to make it his will you can give evidence of his intent and admit into probate. So the witnesses issue would've been easily looked over and the Will would've been valid since there's intent to Create a will.

I believe there were facts to argue that he understood it was a will-- i.e., meaning there was enough knowledge for him to count as 1 of the 2 requisite witnesses. The neighbor said a bunch of weird things like, "I'm so honored that you decided to ask me to be involved in this process... etc." and then he signed on the will document itself right under the other witness's signature. So, yes, he did know that it was a will signing ceremony although he admitted to not knowing about the specific devises.

I never stated that the facts said he didn't know... No where in the facts did it state the witness had actual knowledge but rather the facts were vague and beat around the bush. Obviously a cue for examinees to argue using the facts. So, yes, you could argue either way. And you would have gotten the same answer because the testator had an intent to make the instrument his will. So, even if the witnesses requirement was defective, you could still show evidence of testator intent and it would be held valid. And all roads lead to a valid will.

Well, the facts did actually state that the testator explained it to them - so seemed like actual knowledge. But, obviously there's points to be made by being thorough and explaining why this mattered. It's a minor thing, and yeah, regardless the Will was valid due to harmless error/substantial compliance. Just a minor nuance.

[InterAlia1961]

On the evidence essay, Donna stated on direct that her company wasn't responsible. On cross, the plaintiff's attorney wanted to bring in the employee's statement to show the company was responsible. I don't know if I went with excited utterance or not. It seemed to me that it was an admission of fault, and the facts to support that included that she was driving the company's vehicle and delivering pizzas for the company. I also excised the offer to pay medical bills as hearsay, but allowed testimony about the visit as a party admission. I liked the evidence essay. Lots of ways to argue that one. I didn't see any double-hearsay, but maybe I missed the call of the question. I thought it was whether the court erred in admitting the hospital record. Oh well. Again. Don't worry. You can still get a passing score even if you argued the wrong issue. I know someone who argued the wrong law on an essay last time, but stuck with their wrongness all the way through. Argued the hell out of it. She passed, AND they included the answer in the release of the questions. Check out Answer B to Question Five of the Feb. 2015 exam. If you're going to be wrong, be wrong in a lawyer-like manner. Just argue until you can't argue any more....or until the hour's up, whichever occurs first.

C'mon May 12th.

[armenianBEAUTY]

Can someone ease my mind on the Wills essay?

I argued that the first will might not be valid because the two witnesses need to know they're signing a will. Facts said W2 didn't know about the bequests in the document but he was honored to sign anyways. This hinted that maybe he didn't know it was a will which would make it invalid for lack of witnesses.

Code Section - Prob. §§6100, et seq.
"At least 2 persons present at the same time, witnessing either signing of will or testator's acknowledgment and must understand that it is testator's will."

I went ahead and argued revocation by act and subsequent instrument anyways.

How did everyone else handle this?

My understanding is that they only have to know it's a will, not the substance of the will itself. In othe words, reading it is not required. My conclusion was valid will, but revoked by subsequent instrument.

I don't think there were facts in the essay as to whether he understood it was the will or not. Instead the facts stated he was honored to sign... Didn't say exactly what he knew what he was honored to sign. But I argued valid will bc I didn't want to do down the other road. Lol ...also a point I remembered but missed on the essay was that harmless error where you don't have the required 2 competent witnesses, so long as testator has intent to make it his will you can give evidence of his intent and admit into probate. So the witnesses issue would've been easily looked over and the Will would've been valid since there's intent to Create a will.

I believe there were facts to argue that he understood it was a will-- i.e., meaning there was enough knowledge for him to count as 1 of the 2 requisite witnesses. The neighbor said a bunch of weird things like, "I'm so honored that you decided to ask me to be involved in this process... etc." and then he signed on the will document itself right under the other witness's signature. So, yes, he did know that it was a will signing ceremony although he admitted to not knowing about the specific devises.

I never stated that the facts said he didn't know... No where in the facts did it state the witness had actual knowledge but rather the facts were vague and beat around the bush. Obviously a cue for examinees to argue using the facts. So, yes, you could argue either way. And you would have gotten the same answer because the testator had an intent to make the instrument his will. So, even if the witnesses requirement was defective, you could still show evidence of testator intent and it would be held valid. And all roads lead to a valid will.

You said, "I don't think there were facts in the essay as to whether he understood it was the will or not." I responded by saying, yes... there were.

[Lawless!]

Can someone ease my mind on the Wills essay?

I argued that the first will might not be valid because the two witnesses need to know they're signing a will. Facts said W2 didn't know about the bequests in the document but he was honored to sign anyways. This hinted that maybe he didn't know it was a will which would make it invalid for lack of witnesses.

Code Section - Prob. §§6100, et seq.
"At least 2 persons present at the same time, witnessing either signing of will or testator's acknowledgment and must understand that it is testator's will."

I went ahead and argued revocation by act and subsequent instrument anyways.

How did everyone else handle this?

My understanding is that they only have to know it's a will, not the substance of the will itself. In othe words, reading it is not required. My conclusion was valid will, but revoked by subsequent instrument.

I don't think there were facts in the essay as to whether he understood it was the will or not. Instead the facts stated he was honored to sign... Didn't say exactly what he knew what he was honored to sign. But I argued valid will bc I didn't want to do down the other road. Lol ...also a point I remembered but missed on the essay was that harmless error where you don't have the required 2 competent witnesses, so long as testator has intent to make it his will you can give evidence of his intent and admit into probate. So the witnesses issue would've been easily looked over and the Will would've been valid since there's intent to Create a will.

I believe there were facts to argue that he understood it was a will-- i.e., meaning there was enough knowledge for him to count as 1 of the 2 requisite witnesses. The neighbor said a bunch of weird things like, "I'm so honored that you decided to ask me to be involved in this process... etc." and then he signed on the will document itself right under the other witness's signature. So, yes, he did know that it was a will signing ceremony although he admitted to not knowing about the specific devises.

I never stated that the facts said he didn't know... No where in the facts did it state the witness had actual knowledge but rather the facts were vague and beat around the bush. Obviously a cue for examinees to argue using the facts. So, yes, you could argue either way. And you would have gotten the same answer because the testator had an intent to make the instrument his will. So, even if the witnesses requirement was defective, you could still show evidence of testator intent and it would be held valid. And all roads lead to a valid will.

You said, "I don't think there were facts in the essay as to whether he understood it was the will or not." I responded by saying, yes... there were.

And again, I said "... whether he understood it was the will or not." No way that means he did not understand the will.

[Lawless!]

Can someone ease my mind on the Wills essay?

I argued that the first will might not be valid because the two witnesses need to know they're signing a will. Facts said W2 didn't know about the bequests in the document but he was honored to sign anyways. This hinted that maybe he didn't know it was a will which would make it invalid for lack of witnesses.

Code Section - Prob. §§6100, et seq.
"At least 2 persons present at the same time, witnessing either signing of will or testator's acknowledgment and must understand that it is testator's will."

I went ahead and argued revocation by act and subsequent instrument anyways.

How did everyone else handle this?

My understanding is that they only have to know it's a will, not the substance of the will itself. In othe words, reading it is not required. My conclusion was valid will, but revoked by subsequent instrument.

I don't think there were facts in the essay as to whether he understood it was the will or not. Instead the facts stated he was honored to sign... Didn't say exactly what he knew what he was honored to sign. But I argued valid will bc I didn't want to do down the other road. Lol ...also a point I remembered but missed on the essay was that harmless error where you don't have the required 2 competent witnesses, so long as testator has intent to make it his will you can give evidence of his intent and admit into probate. So the witnesses issue would've been easily looked over and the Will would've been valid since there's intent to Create a will.

I believe there were facts to argue that he understood it was a will-- i.e., meaning there was enough knowledge for him to count as 1 of the 2 requisite witnesses. The neighbor said a bunch of weird things like, "I'm so honored that you decided to ask me to be involved in this process... etc." and then he signed on the will document itself right under the other witness's signature. So, yes, he did know that it was a will signing ceremony although he admitted to not knowing about the specific devises.

I never stated that the facts said he didn't know... No where in the facts did it state the witness had actual knowledge but rather the facts were vague and beat around the bush. Obviously a cue for examinees to argue using the facts. So, yes, you could argue either way. And you would have gotten the same answer because the testator had an intent to make the instrument his will. So, even if the witnesses requirement was defective, you could still show evidence of testator intent and it would be held valid. And all roads lead to a valid will.

You said, "I don't think there were facts in the essay as to whether he understood it was the will or not." I responded by saying, yes... there were.

And again, I said "... whether he understood it was the will or not." No way that means he did not understand the will.

[ur_hero]

Can someone ease my mind on the Wills essay?

I argued that the first will might not be valid because the two witnesses need to know they're signing a will. Facts said W2 didn't know about the bequests in the document but he was honored to sign anyways. This hinted that maybe he didn't know it was a will which would make it invalid for lack of witnesses.

Code Section - Prob. §§6100, et seq.
"At least 2 persons present at the same time, witnessing either signing of will or testator's acknowledgment and must understand that it is testator's will."

I went ahead and argued revocation by act and subsequent instrument anyways.

How did everyone else handle this?

My understanding is that they only have to know it's a will, not the substance of the will itself. In othe words, reading it is not required. My conclusion was valid will, but revoked by subsequent instrument.

I don't think there were facts in the essay as to whether he understood it was the will or not. Instead the facts stated he was honored to sign... Didn't say exactly what he knew what he was honored to sign. But I argued valid will bc I didn't want to do down the other road. Lol ...also a point I remembered but missed on the essay was that harmless error where you don't have the required 2 competent witnesses, so long as testator has intent to make it his will you can give evidence of his intent and admit into probate. So the witnesses issue would've been easily looked over and the Will would've been valid since there's intent to Create a will.

I believe there were facts to argue that he understood it was a will-- i.e., meaning there was enough knowledge for him to count as 1 of the 2 requisite witnesses. The neighbor said a bunch of weird things like, "I'm so honored that you decided to ask me to be involved in this process... etc." and then he signed on the will document itself right under the other witness's signature. So, yes, he did know that it was a will signing ceremony although he admitted to not knowing about the specific devises.

I never stated that the facts said he didn't know... No where in the facts did it state the witness had actual knowledge but rather the facts were vague and beat around the bush. Obviously a cue for examinees to argue using the facts. So, yes, you could argue either way. And you would have gotten the same answer because the testator had an intent to make the instrument his will. So, even if the witnesses requirement was defective, you could still show evidence of testator intent and it would be held valid. And all roads lead to a valid will.

You said, "I don't think there were facts in the essay as to whether he understood it was the will or not." I responded by saying, yes... there were.

And again, I said "... whether he understood it was the will or not." No way that means he did not understand the will.

Lol. This guy.

[armenianBEAUTY]

My understanding is that they only have to know it's a will, not the substance of the will itself. In othe words, reading it is not required. My conclusion was valid will, but revoked by subsequent instrument.

I don't think there were facts in the essay as to whether he understood it was the will or not. Instead the facts stated he was honored to sign... Didn't say exactly what he knew what he was honored to sign. But I argued valid will bc I didn't want to do down the other road. Lol ...also a point I remembered but missed on the essay was that harmless error where you don't have the required 2 competent witnesses, so long as testator has intent to make it his will you can give evidence of his intent and admit into probate. So the witnesses issue would've been easily looked over and the Will would've been valid since there's intent to Create a will.

I believe there were facts to argue that he understood it was a will-- i.e., meaning there was enough knowledge for him to count as 1 of the 2 requisite witnesses. The neighbor said a bunch of weird things like, "I'm so honored that you decided to ask me to be involved in this process... etc." and then he signed on the will document itself right under the other witness's signature. So, yes, he did know that it was a will signing ceremony although he admitted to not knowing about the specific devises.

I never stated that the facts said he didn't know... No where in the facts did it state the witness had actual knowledge but rather the facts were vague and beat around the bush. Obviously a cue for examinees to argue using the facts. So, yes, you could argue either way. And you would have gotten the same answer because the testator had an intent to make the instrument his will. So, even if the witnesses requirement was defective, you could still show evidence of testator intent and it would be held valid. And all roads lead to a valid will.

You said, "I don't think there were facts in the essay as to whether he understood it was the will or not." I responded by saying, yes... there were.

And again, I said "... whether he understood it was the will or not." No way that means he did not understand the will.

Lol. This guy.

hahahaha -___-

[armenianBEAUTY]

How did you guys find the Evidence essay? I ran out of time on it... I remember hitting the following:
Double hearsay
Authentication of business records
Volumeness of records
Present sense impression
Present bodily condition
Found both inner and outer declaration within exceptions
Lack of admissibility due to public policy with regard to medical expenses, with the possibility that they can be considered as party opponent admission since made before a claim
Also mentioned vicarious admission
Thoughts anyone?

Sounds like you hit all the big items. I argued vicarious admission too. But ran out of time for public policy/Med payment and use for other purposes such as impeachment and prior inconsistent statement.

Yeah ^^. Looks like it got all the major issues.

Intake Form:
Double Hearsay
Layer 1-- π's statements to nurse, Layer 2-- nurse's writing onto the form
Layer 2 comes in under the business records exception (by someone under duty to make records in ordinary course of business; has sufficient knowledge)
Most of layer 1 (minus statements about other driver) comes in under a) statements made for med diagnosis/treatment, b) part where he said he's still in pain comes in as present sense impression, c) he was rushed to the hospital and still in pain so possibly under excited utterance as well since he was still apparently under the effect of the excitement of the event

Driver's statement:
Excited utterance -- she was still under the stress of excitement of the event. she had just seriously injured π. She could fear losing job. Still on the scene of the accident.
Opposing party statement -- vicarious opposing party statement -- employee w/in scope of employment and her actions are the reason for imposing liability on ∆

Manager's statement:
Opposing party statement
Offer to pay medical bills (only protects the actual offer... not accompanying statements) Public policy...


I also did not get to blab about other uses such as impeachment... but I don't think that'll be a big deal, bc facts did not mention they were being presented for impeachment. Of course, though, the extra point they would have given for doing so wouldn't hurt.

Impeachment is a big deal. Of course they wont mention impeachment when they are testing it. The attorney directly asked Donna during cross if she offered to pay for medical expenses in the fact pattern. Probably 5 points worth

Attorney did ask Donna during cross whether she had made such an offer. Donna denied. Ended there.

Later, when π was testifying, he mentioned Donna's earlier statements/offer and the admissibility of those statements was the topic in the call.

I did not get the sense that the statements were being introduced for the purpose of impeachment, but rather, for their substantive truth bc π mentioned it right after talking about how the driver admitted fault.

I'm not grading the exam so I don't know if discussion of impeachment here would have amounted to 5 points or just 1, if any. For my sake, I hope just 1.

[Lawless!]

I argued that the first will might not be valid because the two witnesses need to know they're signing a will. Facts said W2 didn't know about the bequests in the document but he was honored to sign anyways. This hinted that maybe he didn't know it was a will which would make it invalid for lack of witnesses.

Code Section - Prob. §§6100, et seq.
"At least 2 persons present at the same time, witnessing either signing of will or testator's acknowledgment and must understand that it is testator's will."

I went ahead and argued revocation by act and subsequent instrument anyways.

How did everyone else handle this?[/quote]

My understanding is that they only have to know it's a will, not the substance of the will itself. In othe words, reading it is not required. My conclusion was valid will, but revoked by subsequent instrument.[/quote]


I don't think there were facts in the essay as to whether he understood it was the will or not. Instead the facts stated he was honored to sign... Didn't say exactly what he knew what he was honored to sign. But I argued valid will bc I didn't want to do down the other road. Lol ...also a point I remembered but missed on the essay was that harmless error where you don't have the required 2 competent witnesses, so long as testator has intent to make it his will you can give evidence of his intent and admit into probate. So the witnesses issue would've been easily looked over and the Will would've been valid since there's intent to Create a will.[/quote]

I believe there were facts to argue that he understood it was a will-- i.e., meaning there was enough knowledge for him to count as 1 of the 2 requisite witnesses. The neighbor said a bunch of weird things like, "I'm so honored that you decided to ask me to be involved in this process... etc." and then he signed on the will document itself right under the other witness's signature. So, yes, he did know that it was a will signing ceremony although he admitted to not knowing about the specific devises.[/quote]
I never stated that the facts said he didn't know... No where in the facts did it state the witness had actual knowledge but rather the facts were vague and beat around the bush. Obviously a cue for examinees to argue using the facts. So, yes, you could argue either way. And you would have gotten the same answer because the testator had an intent to make the instrument his will. So, even if the witnesses requirement was defective, you could still show evidence of testator intent and it would be held valid. And all roads lead to a valid will.[/quote]

You said, "I don't think there were facts in the essay as to whether he understood it was the will or not." I responded by saying, yes... there were.[/quote]

And again, I said "... whether he understood it was the will or not." No way that means he did not understand the will.[/quote]

Lol. This guy.[/quote]

I'm sorry, who are you and how does this concern you? Armenianbeauty didn't understand my statement and I clarified so there was no misunderstanding. Not sure how you made it your concern.

[cal_pushed]

I argued that the first will might not be valid because the two witnesses need to know they're signing a will. Facts said W2 didn't know about the bequests in the document but he was honored to sign anyways. This hinted that maybe he didn't know it was a will which would make it invalid for lack of witnesses.

Code Section - Prob. §§6100, et seq.
"At least 2 persons present at the same time, witnessing either signing of will or testator's acknowledgment and must understand that it is testator's will."

I went ahead and argued revocation by act and subsequent instrument anyways.

How did everyone else handle this?

My understanding is that they only have to know it's a will, not the substance of the will itself. In othe words, reading it is not required. My conclusion was valid will, but revoked by subsequent instrument.[/quote]


I don't think there were facts in the essay as to whether he understood it was the will or not. Instead the facts stated he was honored to sign... Didn't say exactly what he knew what he was honored to sign. But I argued valid will bc I didn't want to do down the other road. Lol ...also a point I remembered but missed on the essay was that harmless error where you don't have the required 2 competent witnesses, so long as testator has intent to make it his will you can give evidence of his intent and admit into probate. So the witnesses issue would've been easily looked over and the Will would've been valid since there's intent to Create a will.[/quote]

I believe there were facts to argue that he understood it was a will-- i.e., meaning there was enough knowledge for him to count as 1 of the 2 requisite witnesses. The neighbor said a bunch of weird things like, "I'm so honored that you decided to ask me to be involved in this process... etc." and then he signed on the will document itself right under the other witness's signature. So, yes, he did know that it was a will signing ceremony although he admitted to not knowing about the specific devises.[/quote]
I never stated that the facts said he didn't know... No where in the facts did it state the witness had actual knowledge but rather the facts were vague and beat around the bush. Obviously a cue for examinees to argue using the facts. So, yes, you could argue either way. And you would have gotten the same answer because the testator had an intent to make the instrument his will. So, even if the witnesses requirement was defective, you could still show evidence of testator intent and it would be held valid. And all roads lead to a valid will.[/quote]

You said, "I don't think there were facts in the essay as to whether he understood it was the will or not." I responded by saying, yes... there were.[/quote]

And again, I said "... whether he understood it was the will or not." No way that means he did not understand the will.[/quote]

Lol. This guy.[/quote]

I'm sorry, who are you and how does this concern you? Armenianbeauty didn't understand my statement and I clarified so there was no misunderstanding. Not sure how you made it your concern.[/quote]

Anyone argue that W2 -acted as a codicil because it neither expressly stated W1 was revoked nor fully disposed of all the assets. (Would only find this if you concluded the attempt at physical revocation was not sufficient to revoke W1)(not notifying children; existing copy; unclear intent. In such instance, both W1 and W2 probated, except where inconsistent codicil (W2) controls if court satisfied that it was executed subsequent to W1.

Anyone go this route?

[ur_hero]

Anyone go this route?

I think this is a possible creative conclusion that would definitely net some solid points, especially if you analyzed all the right facts. It would also help if you specifically argued that "this was a codicil and not a valid will because . . . "

[ur_hero]

I'm sorry, who are you and how does this concern you? Armenianbeauty didn't understand my statement and I clarified so there was no misunderstanding. Not sure how you made it your concern.

I'm free to comment in a public forum as I please - no justification required. Relax my friend.

[SUPERFEVER]

Now I can't stop thinking about whether merger doctrine will prevent bringing a contract claim on the remedies essay. Contract merges into the deed - so you can't sue on the contract anymore because it doesn't exist? Doesn't seem right, especially if there were defect in formation and the K was induced by fraud.

What do you guys think?

[ur_hero]

Now I can't stop thinking about whether merger doctrine will prevent bringing a contract claim on the remedies essay. Contract merges into the deed - so you can't sue on the contract anymore because it doesn't exist? Doesn't seem right, especially if there were defect in formation and the K was induced by fraud.

What do you guys think?

I believe that the merger doctrine only precludes suits based on the terms of the contract. A claim challenging contract formation, such as for fraud or misrepresentation should still be fair game.

That being said, I dunno whether this question was seeking a claim based on contract, tort, or both. :S

[armenianBEAUTY]

I'm sorry, who are you and how does this concern you? Armenianbeauty didn't understand my statement and I clarified so there was no misunderstanding. Not sure how you made it your concern.

ArmenianBeauty DID understand your statement and she quoted you too, but you tried to slyly distance yourself from it. Don't want to speak for him/her, but I think we were just confused why it was such a big deal for you to admit you prob missed a couple of points if you truly believed what you said -- "I don't think there were facts in the essay as to whether he understood it was the will or not."

Really, it's not that serious.

[barexaminerssuck27]

what merger clause???!?!

God, I need to stay away from TLS...... now I am worried about essay 2 lol!!!

All I wrote for Essay 2 was:

Breach of Contract (little on the misrep)
Compensatory damages (FMV - Contract Price +Consequential & Incidental - Profits saved)
Consequential Damages
Incidental Damages
Special Damages
Reliance Damages (just guessing)
Restitution
Recession
Punitive Damages
Specific Performance (one sentence saying it won't work)

Anyone did the same???? OHHHHHHH mannnnnnnnnnnnn

[InterAlia1961]

what merger clause???!?!

God, I need to stay away from TLS...... now I am worried about essay 2 lol!!!

All I wrote for Essay 2 was:

Breach of Contract (little on the misrep)
Compensatory damages (FMV - Contract Price +Consequential & Incidental - Profits saved)
Consequential Damages
Incidental Damages
Special Damages
Reliance Damages (just guessing)
Restitution
Recession
Punitive Damages
Specific Performance (one sentence saying it won't work)

Anyone did the same???? OHHHHHHH mannnnnnnnnnnnn

Easy. Someone clearly doesn't understand the merger doctrine. Yes, once the deed is delivered, any action must proceed based on the covenants in the deed, UNLESS, there is an allegation of fraud, a failed condition precedent, or patent or latent ambiguity. Then, the parol evidence rule will allow evidence to come in of a prior or contemporaneous agreement to show fraud, or the existence of a condition precedent, or to explain an ambiguity. Here, Betty the dumbass will be able to get the evidence of the condition precedent in under the parol evidence rule to show that it 1) existed and 2) failed to occur because of fraud, entitling her to 1) rescind the contract or 2) to receive restitution. She got neither in the end. The seller's statements or omissions were not concerning a material defect to the property, and Betty the dumbass ripped out her bathtub and wanted to whine because her property value dropped. No kidding.

I've failed this thing before, and it wasn't because of my performance on the essays. As long as you chose a side and argued it hard, you're good. However, if you bombed either of the PTs or the MBE, you shouldn't be overly optimistic. This time, I know I brought up all of my written scores. However, I'm a bit concerned about the afternoon administration of the MBE. So far, I know I missed 12 questions, two of them so stupidly easy a monkey should've gotten them right. Sigh. If all you're worried about is a couple of issues on a couple of essays, you're good.

[CBXCandidate]

The poster's comments regarding the merger doctrine are correct.

The question's call however was specific...discuss 1) fraud and 2) possible damages.

The meat was in the damage discussion...after proving the underlying claim of fraud they wanted to see a discussion of the four (4) types of damages and the four (4) sub-types under compensatory damages...and this was after the fraud call...so it was a racehorse.

Specifically, they wanted to see a discussion of...foreseeability, unavoidably, causation, and certainty in connection with each possible category (certainty was a discussion whether the market value was correct and certain or if the renovation was preventing it from being certain) ...the four (4) items noted alone account for 10-15 points...and are the most missed...and I know this from a former bar grader I used to prep.

As long as you caught the major issues...and possible damages by type...and discussed them, you should be fine. I don't think they wanted a full blown discussion on the merger doctrine...probably fine to mention it.

With the CBX, the graders want to see their grading grid...they don't look for what is there...and don't take points off for what shouldn't be there...as long as it's easy to spot (signposted) you are good to go...additionally, one bad essay isn't fatal...even two if you are good elsewhere.

Separately, ...and hopefully...they are a bit more liberal with the scaling this round given the new weighting on the MBE (175 v 190 scored) and all of the negative press in February regarding the high cut scores. See Google news. Not to mention the recent suicide after July's results were released.

Best of luck.

Remind yourself it's all bullshit.

[Guchster]

Remind yourself it's all bullshit.

Exactly. I reviewed various 50, 55's and comparing rule recitation (and correct statement of law) and analysis with 65's and 70's on baressays, and while a good chunk of the time there was a distinguishable difference, oftentimes they looked similar enough that I wouldn't be surprised if the scores were switched. There were many essays where I was surprised with how harsh a grader was to give a decent essay a 55 or be overly generous and award a 65 to an essay that was shit and missed a major issue or several sub-issues or had shit analysis. There was one remedies essay I saw on baressays that got a 65 but the majority of important issues seemed to be limited to a heading and one sentence containing the statement of law, application and conclusion (and sometimes not even the latter 2). In other words, just because you think you wrote a stellar essay doesn't meant you're set, and just because you think you missed important issues doesn't mean your screwed--aside from your own skewed, bias analysis of your performance, your grade is dependent on the weight assigned to certain issues, the subjective reading by the grader, the performance of your peers, etc. How many people on TLS recount stories of failed examinees doing terrible on essays they thought they nailed and getting the highest score on essays they felt the worst about?

Your essay isn't going to be graded and analyzed in a vacuum. It's going to be graded alongside hundreds if not thousands of answers left to the subjective whim of a burned out grader who wishes they invested 1/5 of a million dollars in something that didn't make them hate their life. There is a grading rubric, but each grader has tremendous discretion in determining how much weight to afford discussions regarding issues so that what works for one grader will not work for another.

At this point, you have zero control if someone is going to read your essay and give you a 55, 60 or 65, and honestly it could very well vary depending on which grader gets your essay, what time of day they look at it, whose essays they read immediately before yours and whose essays they read afterward, and how much weight they decide to afford certain issues over others in determining who passes and who does not.

One bad essay isn't going to tank you. Chances are other people also had a few bad essays compared to you so the score will even out if it is an outlier, and if you truly are worse at essay writing, spotting issues, or don't know the law than 40% of your peers, it's going to show on the other essays and affect your ability to craft a decent PT.

[SUPERFEVER]

Remind yourself it's all bullshit.

It's going to be graded alongside hundreds if not thousands of answers left to the subjective whim of a burned out grader who wishes they invested 1/5 of a million dollars in something that didn't make them hate their life. There is a grading rubric, but each grader has tremendous discretion in determining how much weight to afford discussions regarding issues so that what works for one grader will not work for another.

This ^ 100%

[InterAlia1961]

The poster's comments regarding the merger doctrine are correct.

The question's call however was specific...discuss 1) fraud and 2) possible damages.

The meat was in the damage discussion...after proving the underlying claim of fraud they wanted to see a discussion of the four (4) types of damages and the four (4) sub-types under compensatory damages...and this was after the fraud call...so it was a racehorse.

Specifically, they wanted to see a discussion of...foreseeability, unavoidably, causation, and certainty in connection with each possible category (certainty was a discussion whether the market value was correct and certain or if the renovation was preventing it from being certain) ...the four (4) items noted alone account for 10-15 points...and are the most missed...and I know this from a former bar grader I used to prep.

I wouldn't be so sure. There was no fraud. There wasn't even any misrepresentation. Even if Seller did lie, it wasn't a material fact and didn't affect the property itself. Ditto on the murder. Expectation damages and consequential damages were discussable, but easily disposed of because Seller had defenses that warranted a solid discussion. Betty could also ratify the contract, presuming she could prove fraud, which she could not, in which case she could ask for restitution. Again, Seller had solid defenses. The question asked what the possible remedies were and whether she would prevail. Damages and restitution, and no to both. Again, no one here, not even the person who used to tutor a grader, knows what the grading rubric looks like this time. I don't know a grader, but I do know someone who passed with a wrong answer. And if the State Bar is to be believed, it was a passing answer, even if it was wrong.

If I don't pass it this time, I'll try again. I'll keep trying until I pass it. It's just a test. I can take as many times as I want.

[CBXCandidate]

.