4 Weeks Until the California Baby Bar Exam

Hello,

Welcome to the latest issue of our weekly FYLSX Newsletter. Hopefully, if you plan on taking the October 2010 California Baby Bar Exam, your exam preparation is well underway. If not, substantial time remains to fully prepare for the October exam. As a reminder, if you have been considering one of our full essay preparation programs, then time remains for you to complete either our Paced or Fundamentals program. In this issue, we consider:

A. Exam Study Strategy: Checklists (Part 3 of 3)
B. Essays In-Depth: Malice
C. Newsletter Discount
D. Next Issue Preview

A. Exam Study Strategy: Checklists (Part 3 of 3)

This week we complete our discussion of issue checklists. In previous issues, we discussed the nature and importance of issue checklists for your exam preparation and illustrated a sample checklist. This week we demonstrate how to utilize an issue checklist in action with a mini-question.

Sample Checklist Refresher

If you recall, last week we provided a sample checklist for intentional torts (minus defenses). For sake of economy and illustrative purposes, we will use this same sample checklist and limit the "universe of testable law" for our mini-question to Intentional Torts only (again, omitting defenses). As a reminder and caveat, the purpose of both the sample checklist and this mini-question is to illustrate the nature of checklists and their application in a concise, easy to understand fashion. Any Torts checklist(s) you rely upon for the actual exam should cover the entire testable subject. Our sample checklist for Intentional Torts included the following:

• Assault
• Battery
• False Imprisonment
• Infliction of Emotional Distress
• Trespass to Land
• Trespass to Chattels
• Conversion

Mini-Question:

"D works with A and B. During a normal workday, D had a heated argument with A over a malfunctioning printer and the best method to fix the malfunction. During the argument, D picked up a toner cartridge and threw it at A. A covered her head with her hands and ducked to avoid the cartridge. The cartridge missed A but hit B who was passing by the printer room in an adjacent hallway. The toner cartridge broke B's wrist. The toner cartridge was the property of D, A, and B's employer.
What intentional tort claims, if any, do A and B have against D? Discuss."

How Our Sample Checklist Can Help You Answer This Mini-Question

Keep in mind, the function of an issue checklist is to provide you one method to help you identify "issues" germane to the question presented. For purposes of this question, the "issues" are "intentional tort claims" (again, for sake of economy, discussion of pertinent defenses is omitted). Also, you should recognize the limitations of issue checklists. Such checklists do not include the elements of the "issues" (i.e., the rule statements that naturally accompany their discussion in an actual essay answer). Instead, in this variation of an issue checklist, the sole purpose is to assist in the identification of legal "issues" germane to the question presented. Also, of course, you will need to be able to recall any checklist from memory during the actual examination.

Looking at our sample checklist above, we know there are only 7 possible intentional torts claims in our universe of mini-question Torts law. Since the question only asks for intentional tort claims, and knowing there are only 7 such claims, we can quickly evaluate our checklist to see if any of these intentional torts fit within the question. Quickly, we can eliminate most of the 7 intentional torts. Since the facts state that the toner cartridge was the property of their employer, we know (or should know) all property-related intentional torts can be omitted, including Conversion, Trespass to Chattels, and Trespass to Land (remember, we are looking for claims A and B might have against D and not the claims of the employer). Also, since no emotional distress was mentioned in the facts and neither A nor B were forced against their will to stay in one location, we can eliminate both Infliction of Emotional Distress and False Imprisonment. The only claims that remain from the checklist are Assault and Battery. Since we know (or should know) a Battery can include objects put into motion by a defendant, then the throwing of the toner cartridge will suffice for the inclusion of Battery in our answer. Also, since we know (or should know) apprehension of an imminent battery is an Assault, then we can include Assault in our answer based upon A's covering her head and ducking (in most cases, one only covers their head under imminent apprehension of something hitting their head). At this point, our checklist should now resemble something like this:

• Assault
• Battery
• False Imprisonment
• Infliction of Emotional Distress
• Trespass to Land
• Trespass to Chattels
• Conversion

The stream of consciousness narrative of the preceding paragraph should only take you a few minutes on an actual exam utilizing a full checklist. Even if Assault and/or Battery was apparent to you after reading the question, and prior to considering the checklist, you could still utilize the checklist as a verification tool and to ensure no other issues are omitted from your answer. Then, after identifying Assault and Battery as the claims germane to the question presented (i.e., "the issues"), you would continue organizing the answer to this mini-question by creating an essay outline (please note, we provide a complete illustration of the essay outlining process in our FYLSX Essay Solution: Workshop).

B. Essays In-Depth: Malice

Our Essays In-Depth feature is an abbreviated excerpt from our Essay Solution: Workshop or one of our subject-specific Torts, Criminal Law, or Contracts FYLSX workshops. This feature is designed to identify common mistakes individuals make on their FYLSX essays and provide solutions to correct such mistakes. If implemented, these solutions will result in higher scores on your essays. This week we identify and remedy common problems individuals encounter when discussing Malice as an element of Murder on a Criminal Law essay.

Common Problems With Malice Within a Murder Issue

In our experience, there are several recurring, common mistakes individuals commit when discussing the concept of Malice within the issue of Murder, including:

1. NOT treating Malice as an independent sub-issue of Murder; far too often, individuals will gloss over or summarily conclude Malice is or isn't present without further explanation or Analysis.*
2. Failing to present all 4 forms of malice.
3. Failing to identify and explain when multiple forms of malice may be applicable.

Solving These Common Malice Problems

Recognizing these common problems with Malice, consider the following solutions:

1. Treat Malice as an independent sub-issue within any Murder discussion. Remember, Malice is an essential element of a charge of Murder since murder is a homicide with malice aforethought.
2. List and identify all 4 forms of Malice prior to any Analysis* of the pertinent forms of Malice. The 4 forms of Malice include: intent to kill, intent to cause serious bodily harm, willful and wanton disregard for human life ("depraved heart"), and felony murder.
3. Identify and evaluate all plausible forms of Malice. Your Analysis* of Malice should include all plausible forms of Malice for the facts presented. For example, if intent to kill and felony murder are both applicable, based on the facts, then a discussion of both, and not just one, is needed.

Ultimately, any Malice discussion should convey to the grader that you know the 4 forms of Malice and know which forms of Malice apply in the instant case, explaining fully how the pertinent forms of malice apply. (*Please note, the above-asterisked concepts are fully defined, explained, and illustrated in our FYLSX Essay Solution on-demand workshop, which is available as a stand-alone program or included as part of all of our 1-on-1 FYLSX essay preparation programs.)

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D. Next Issue Preview

In our next issue, our Essays In-Depth feature will address common problems with the integration of UCC principles in Contracts essays when the UCC is the applicable law. As a reminder, if you've missed a previous issue, all of our previous FYLSX newsletter issues are available on our site. If you have any questions about this newsletter or any of our programs, then please feel free to Contact Us.

Study Smart,

-the BarReviewSolutions.com Team