Adaptibar user hangout for Feb 2017 exam? Forum

[cnk1220]

I always feel so dumb when the correct answer turns out to be one I eliminated.

LOL! In the beginning when I first started I'd be like *this is definitely incorrect...starts giggling at how stupid B sounds...strikes B out immediately*

...turns out B is correct.

[DueProcessDoWheelies]

So I remember a subtle civ pro rule I saw on a question some time ago... but I can't for the life of me remember the specifics of it.

It involved involuntary dismissal. Like if one party seeks a venue transfer more than 2 or 3 times, the court will dismiss the case automatically. Either that or the court will automatically dismiss a case if it gets removed, then remanded, then removed again.

Does anyone remember this specific rule?

[cnk1220]

I think you're talking about the exceptions when involuntary dismissal is not a decision on the merits?

So IVD: generally IVD would be considered a decision on the merits and bars P from refiling (like you fucked up P so you suck so no more tries for you), but then I think exceptions are improper venue and lack of PJX won't prevent P from refiling because they won't treat it as a decision on the merits.

I could be wrong, but that's all I remember about IVD.

[cnk1220]

So I remember a subtle civ pro rule I saw on a question some time ago... but I can't for the life of me remember the specifics of it.

It involved involuntary dismissal. Like if one party seeks a venue transfer more than 2 or 3 times, the court will dismiss the case automatically. Either that or the court will automatically dismiss a case if it gets removed, then remanded, then removed again.

Does anyone remember this specific rule?

I answered you above^^ forgot to quote you.

[Impishee]

Alright, did the 2013 exam and got 89/100 (at 2.5 minutes over, so probably a few less). Feel okay, but I know some of the questions were repeats from practice and there was no Civ Pro (should have seen if I could have mixed some in, but didn't think until afterward).

That said, I was wondering if some of y'all might know answers for some of these questions (thanks very much for any help):

Fed Civ Pro:
- Can a class action class certification have immediate appealability? (I think my lean sheets say yes, but the Adaptibar lecture says no).
- Do jury verdicts generally need to be unanimous for Civ Pro? I think they do (I was confusing this with crim law/crim pro where I think split decisions are okay unless there are only 6 jurors).
- For statutory interpleader, is the diversity requirement that the stakeholder and a claimant OR is it that there needs to be diversity between two claimants (i.e. doesn't matter whether there is diversity on both sides of the claim).
-FRCP normally allows 21 days safe harbor to correct a Rule 11 issue right? (again, lean sheets seems to say this is only state level, but I don't think that's correct).
- For Offensive use of Collateral Estoppel, I have notes from the Adaptibar lecture that this is "generally not permitted" (Ex: Nonparty in 1st case is now a plaintiff in 2nd case, Kelly tries to sue company XYZ and wins. Then Jim tries to sue XYZ and tries to collaterally estop XYZ from denying liability.) Does this "generally not permitted" mean Jim generally won't be able to collaterally estop XYZ from denying liability?. I also see there are modern rules here where it actually could be allowed (if not unfair, full and fair opportunity, party could forsee multiple suits, and Jim couldn't have been easily enjoined, etc). Just want to make sure I understand both.
- For Defensive use of Collateral Estoppel, it looks like this is where Kelly tries to sue XYZ for products liability. Kelly loses. Now Kelly sues ABC for same products liability. Since Kelly lost before, this would mean DEF could collaterally estop J from bringing the claim. Does this still count for if it appears that ABC is actually guilty instead of XYZ? (So, basically, sorry Kelly, shoulda brought your claim against the right party the first time?)

Contracts:
- What's your general rule for remember UCC/common law in contracts? I generally think of UCC where at least one party is a merchant and the contract is for the sale of goods. Just running into a few odd rules, but is that generally correct?

Evidence:
- For hearsay, if a person is testifying on the stand regarding something someone said to them out of court, is that out-of-court statement said by the other person generally admissible (since the person heard the statement which was directed at them, and even though they didn't say the statement, they are on the stand to testify/be cross-examined), or is that one that would need to be brought in under an exemption or exception?
- For prior inconsistent statement, when is that generally allowed for only impeachment v. when allowed for substantive evidence?
- Is admitting a witness' opinion testimony for a defendant's truth and honesty generally allowed? Or, can it only be permitted in a civil trial where character is issue and in criminal trial where the defendant 'opened the door'?

[cnk1220]

Alright, did the 2013 exam and got 89/100 (at 2.5 minutes over, so probably a few less). Feel okay, but I know some of the questions were repeats from practice and there was no Civ Pro (should have seen if I could have mixed some in, but didn't think until afterward).

That said, I was wondering if some of y'all might know answers for some of these questions (thanks very much for any help):

Fed Civ Pro:
- Can a class action class certification have immediate appealability? (I think my lean sheets say yes, but the Adaptibar lecture says no).
- Do jury verdicts generally need to be unanimous for Civ Pro? I think they do (I was confusing this with crim law/crim pro where I think split decisions are okay unless there are only 6 jurors).
- For statutory interpleader, is the diversity requirement that the stakeholder and a claimant OR is it that there needs to be diversity between two claimants (i.e. doesn't matter whether there is diversity on both sides of the claim).
-FRCP normally allows 21 days safe harbor to correct a Rule 11 issue right? (again, lean sheets seems to say this is only state level, but I don't think that's correct).
- For Offensive use of Collateral Estoppel, I have notes from the Adaptibar lecture that this is "generally not permitted" (Ex: Nonparty in 1st case is now a plaintiff in 2nd case, Kelly tries to sue company XYZ and wins. Then Jim tries to sue XYZ and tries to collaterally estop XYZ from denying liability.) Does this "generally not permitted" mean Jim generally won't be able to collaterally estop XYZ from denying liability?. I also see there are modern rules here where it actually could be allowed (if not unfair, full and fair opportunity, party could forsee multiple suits, and Jim couldn't have been easily enjoined, etc). Just want to make sure I understand both.
- For Defensive use of Collateral Estoppel, it looks like this is where Kelly tries to sue XYZ for products liability. Kelly loses. Now Kelly sues ABC for same products liability. Since Kelly lost before, this would mean DEF could collaterally estop J from bringing the claim. Does this still count for if it appears that ABC is actually guilty instead of XYZ? (So, basically, sorry Kelly, shoulda brought your claim against the right party the first time?)

Contracts:
- What's your general rule for remember UCC/common law in contracts? I generally think of UCC where at least one party is a merchant and the contract is for the sale of goods. Just running into a few odd rules, but is that generally correct?

Evidence:
- For hearsay, if a person is testifying on the stand regarding something someone said to them out of court, is that out-of-court statement said by the other person generally admissible (since the person heard the statement which was directed at them, and even though they didn't say the statement, they are on the stand to testify/be cross-examined), or is that one that would need to be brought in under an exemption or exception?
- For prior inconsistent statement, when is that generally allowed for only impeachment v. when allowed for substantive evidence?
- Is admitting a witness' opinion testimony for a defendant's truth and honesty generally allowed? Or, can it only be permitted in a civil trial where character is issue and in criminal trial where the defendant 'opened the door'?

.

[dxchpwd]

For self assessment and being real, please share your progress
I am only using Adaptibar
60% correct. 600 questions. Approx. 2 minutes per question and didn't start state specific subjects yet(50%). (I'm a repeater).

Am I screwed?

[applepie123]

Does anyone know where Adaptibar gets its civ pro questions?

[cnk1220]

Does anyone know where Adaptibar gets its civ pro questions?

Simulated. Civ Pro started in Feb. 2015, nobody has actual released MBE Qs yet.

[DavidRW3344]

My name is David and I am licensed in NY & NJ. Haven't looked at MBE for some time. I am using Adaptibar and am interested in linking with another Adaptibar user for review.

[Sonny1211]

Finished all the questions for an overall average of 71%. There are disparities in my scores in that on civ pro I am at 60%, 85% on crim and evidence and 65% on the rest.

I am now assessing weak areas but overall I have a timing issue, barely make the mark. Hoping that when I do questions on paper I could speed up? Hopefully not slow down! Any tips on adressing timing issues?

[Impishee]

This feels like a weird question I should know the answer to, but for Civ Pro, minimum contacts analysis (purposefully availed/gen/specif, etc) only applies for long-arm statute analysis right? It doesn't apply if the forum has personal jurisdiction through consent, domicile, or presence in the forum state correct?

[cnk1220]

Does anyone know why Qs with "none of the above" and "all of the above" are still appearing in Adaptibar? These Qs were clearly removed from bar exams back in '09 when the format changed. Although Adaptibar claims to have updated their Qs I just had a Q with "none of the above" as an answer choice.

I'm a little annoyed now esp. with the extra $$$ I paid to have "real mbes" that claim to have been updated.

[DisCo]

This feels like a weird question I should know the answer to, but for Civ Pro, minimum contacts analysis (purposefully availed/gen/specif, etc) only applies for long-arm statute analysis right? It doesn't apply if the forum has personal jurisdiction through consent, domicile, or presence in the forum state correct?

My understanding (could be totally wrong) is that MPFFRCS (min contacts = purposeful availment + foreseeability; fairness = relatedness + convenience + state interest ... mostly just typed that out to make sure I remember it lol) applies for the constitutional analysis. The statutory analysis (i.e., long-arm statute) includes items such as presence in the forum state, domicile, consent, and other requirements of the long-arm statute. So, you should basically always discuss MPFFRCS as the Constitution applies everywhere, and then discuss the statutory analysis depending on the state's long-arm statute.

[Impishee]

Okay, that's interesting, thanks! My barbri book (mini conviser) has this chart that lists "statutory" PJ as "present, domiciled, consent, or long-arm statute." Then it lists the "constitutional analysis" for MPFFRCS. So, I think I see what you're saying, but yeah I just wasn't putting it together. So, if I'm understanding this correctly:

First: Statutes generally give in personam JX over D's who are present, domiciled, or consent to the forum state. Long-arm statutes give the PJX up-to the constitutional limit. (So, analyze which one you're looking at first and note that statutory PJX is required.)

Second: Note constitutional PJX is required as well and do the MPFFRCS analysis even if that turns out to be (as an example of one small part of MPFFRCS): "The defendant has purposefully availed himself of State X's laws by being domiciled in State X's jurisdiction and can reasonably foresee being haled into court in State X because he lives there" etc.

[Impishee]

Does anyone understand this testimonial evidence thing? I'm trying to find an example if anyone has one...

"Constitutional issues: Even if not inadmissible b/c of hearsay, the confrontation clause can make statement inadmissible against D in a criminal case. Testimonial statements are inadmissible unless the declarant is unavailable AND the D had an opportunity to cross the declarant when the statement was made."

What are the implications of this?

[Impishee]

Also, I have "Speaker's knowledge of facts" in nonhearsay for evidence on my leansheets. If anyone could shed some light on that, I would be insanely grateful.

[DisCo]

My 0.02:

Does anyone understand this testimonial evidence thing? I'm trying to find an example if anyone has one...

"Constitutional issues: Even if not inadmissible b/c of hearsay, the confrontation clause can make statement inadmissible against D in a criminal case. Testimonial statements are inadmissible u

Also, I have "Speaker's knowledge of facts" in nonhearsay for evidence on my leansheets. If anyone could shed some light on that, I would be insanely grateful.

nless the declarant is unavailable AND the D had an opportunity to cross the declarant when the statement was made."

What are the implications of this?

This relates to the 6th Amendment right to confront witnesses. A statement that would otherwise be admissible may not be admissible if it would impinge on the ability of a defendant to confront the witness. i.e., if the witness is suddenly MIA (unavailable) AND there was a previous opportunity to cross examine the witness ("confront"), then the statement is okay. If a witness goes MIA and there wasn't a prior opportunity to cross (confront) the witness, then the statement is inadmissible because it would violate the defendant's 6th Amendment right to confront his/her witnesses.

Also, I have "Speaker's knowledge of facts" in nonhearsay for evidence on my leansheets. If anyone could shed some light on that, I would be insanely grateful.

This is basically that if a witness saw something (or knows something) firsthand, s/he can testify to it. It's not hearsay, because the witness knows it firsthand. e.g., if you saw a car accident, you testifying about the car accident wouldn't be hearsay because you saw it firsthand. You're not using an out of court statement to prove the matter asserted because there is no out of court statement.

...
Correct me if I'm wrong, anyone. I never took Evidence.

[rkrawchu]

Impishee, tried my best to answer your Qs:

Fed Civ Pro:
- Can a class action class certification have immediate appealability? (I think my lean sheets say yes, but the Adaptibar lecture says no).
Yes, class action certifications can be appealed within 14 days of the certification.
- Do jury verdicts generally need to be unanimous for Civ Pro? I think they do (I was confusing this with crim law/crim pro where I think split decisions are okay unless there are only 6 jurors).
In federal courts, jury verdicts need to be unanimous regardless of whether it is a civil or criminal case. State courts get more leeway (can have a 9-3 decision, but 6-person juries ALWAYS must be unanimous, even in state court)
- For statutory interpleader, is the diversity requirement that the stakeholder and a claimant OR is it that there needs to be diversity between two claimants (i.e. doesn't matter whether there is diversity on both sides of the claim).
Just two claimants have to be diverse. Stakeholder's citizenship is irrelevant.
-FRCP normally allows 21 days safe harbor to correct a Rule 11 issue right? (again, lean sheets seems to say this is only state level, but I don't think that's correct).
Yes, 21 days is the time the other side has to correct or withdraw their pleading.
- For Offensive use of Collateral Estoppel, I have notes from the Adaptibar lecture that this is "generally not permitted" (Ex: Nonparty in 1st case is now a plaintiff in 2nd case, Kelly tries to sue company XYZ and wins. Then Jim tries to sue XYZ and tries to collaterally estop XYZ from denying liability.) Does this "generally not permitted" mean Jim generally won't be able to collaterally estop XYZ from denying liability?. I also see there are modern rules here where it actually could be allowed (if not unfair, full and fair opportunity, party could forsee multiple suits, and Jim couldn't have been easily enjoined, etc). Just want to make sure I understand both.
Offensive collateral estoppel generally not permitted unless: defendant had full and fair opportunity to litigate, multiple suits foreseeable, plaintiff could not hvae joined in the first action, and no inconsistent judgments would result.
- For Defensive use of Collateral Estoppel, it looks like this is where Kelly tries to sue XYZ for products liability. Kelly loses. Now Kelly sues ABC for same products liability. Since Kelly lost before, this would mean DEF could collaterally estop J from bringing the claim. Does this still count for if it appears that ABC is actually guilty instead of XYZ? (So, basically, sorry Kelly, shoulda brought your claim against the right party the first time?)
Yeah I think she is collaterally estopped because she could have joined ABC in the first action? As long as plaintiff had a full and fair opportunity to litigate in the first action she will be estopped.

Contracts:
- What's your general rule for remember UCC/common law in contracts? I generally think of UCC where at least one party is a merchant and the contract is for the sale of goods. Just running into a few odd rules, but is that generally correct?
Just watch out for cases where no merchants are involved but its still a sale of goods. It will still be governed by UCC.

Evidence:
- For hearsay, if a person is testifying on the stand regarding something someone said to them out of court, is that out-of-court statement said by the other person generally admissible (since the person heard the statement which was directed at them, and even though they didn't say the statement, they are on the stand to testify/be cross-examined), or is that one that would need to be brought in under an exemption or exception?
That is hearsay. It would have to be brought in under an exemption or exception if it is being introduced for the truth of the matter asserted within the statement.
- For prior inconsistent statement, when is that generally allowed for only impeachment v. when allowed for substantive evidence?
Only for impeachment unless it was under oath, then it can be brought in for both impeachment and substantive purposes. Or if it was a party opponent who said it it can also come in for substantive purposes under the admission by party-opponent exemption.
- Is admitting a witness' opinion testimony for a defendant's truth and honesty generally allowed? Or, can it only be permitted in a civil trial where character is issue and in criminal trial where the defendant 'opened the door'?
A witness's opinion testimony is only allowed as to a pertinent character trait of Defendant. So if defendant is on trial for assault, then the witness can say he is a peaceful person. The witness can't just say he is truthful unless the defendant's credibility is first attacked. In a civil trial, character evidence is always allowed if character is the issue of the case (e.g. defamation)

[Impishee]

Thank you both very much! Trying to tie-up some of these areas before game day. Really appreciate it.

[Impishee]

Contracts:
- What's your general rule for remember UCC/common law in contracts? I generally think of UCC where at least one party is a merchant and the contract is for the sale of goods. Just running into a few odd rules, but is that generally correct?
Just watch out for cases where no merchants are involved but its still a sale of goods. It will still be governed by UCC.

Also, for this part, I am trying to wrap my head around this. Just had an adaptibar question this morning that hit what you said. There were two people (non-merchant) where one was selling a car to the other. The answer was derived from the UCC. I'm trying to rectify that, "basically the UCC is for all sale of goods contracts, regardless of whether they are merchants" with the fact that my lean sheet for contracts says that a UCC writing requirement requires only the "quantity" term but that a "sales" contract requires only "price and description".

Maybe if anyone has an example of a sales contract that isn't for the sale of goods, that would help. I know it doesn't apply for service K's.

[rkrawchu]

The only sales contract that appears on the bar that wouldn't be for a sale of goods would be a land sale contract. So that is where you must have a price and description of the land.

[Impishee]

Okay, phew, sorry for the concern re: the UCC. I see it's only for the sale of goods and then there are just extra rules for merchants in certain cases (firm offer, parole evidence, warranty of merchantability, additional terms, etc.) Thanks for talking it out with me. Can't wait for all this shit to be done. Here's to the final push!

[Impishee]

One last question, for contract assignments, does the assignor remain liable for breaches by the assignee? Ex: O and D have a contract. D assigns all the rights and duties of the K to E. Is D still liable if E breaches? Is it that the assignee is primarily liable and the assignee is secondarily liable (so they could both be sued by O for E's breach? (Not the delegatee issues, just the assignor/assignee analysis). Thanks.

[Impishee]

Well, that felt gross, but glad it's over. One section of the MBE felt like adaptibar had close enough questions. The other, I felt like it was much more uncharted waters. Blech. We'll see. How is everyone feeling?