BarReviewSolutions.com California Bar Exam Newsletter

A periodic bar review newsletter for individuals preparing for the California Bar Exam, addressing exam study strategy, our Essays In-Depth feature, and newsletter-only discounts and specials.

3 Days Until the February 2011 California Bar Exam

Thursday, February 17, 2011

Dear California Bar Reviewers,

Welcome to the latest installment of our CA bar exam newsletter. In this issue, we consider:

  • Important Upcoming California Bar Exam Dates
  • California Bar Exam-Taking Strategy: Avoid Silly Mistakes
  • California Bar Exam Essays In-Depth: Common Professional Responsibility Mistakes
  • Good Luck!

Important Upcoming California Bar Exam Dates

  • California Bar Exam: February 22-24, 2011

California Bar Exam-Taking Strategy: Avoid Silly Mistakes

For weeks, if not months, you've been preparing and reviewing for the CA bar exam, including countless hours of review and practice. However, do not forsake this personal investment in time and effort by making "silly mistakes" during the exam. Silly mistakes are those mistakes that have nothing to do with the substantive material that is tested on the bar exam, and these mistakes are all preventable, regardless of your level of bar exam preparation. The most common of these mistakes include:

  1. Time Mismanagement: Follow the suggested time limits for all components of the exam. Answer the essays in the order presented (the "hard" essay will not magically become easier 120 minutes later).
  2. Worrying About Others: Ignore what others have to say about the exam, including what will be tested and what has been tested. This can only lead to an acute condition: "bar exam paranoia."
  3. Dwelling on the Past: Remember, once an essay or performance test session is over, there is no going back. Likewise, thinking about what should have been or could have been will be of no benefit to you. Instead, focus on the task at hand.

Remember, silly mistakes are "silly" because they are easily preventable.

California Bar Exam Essays In-Depth: Common Professional Responsibility Mistakes

Our Essays In-Depth feature is an excerpt from our upcoming California Bar Exam Essay Solution On-Demand Workshop or one of our upcoming subject-specific California Bar Exam Essay Primers. In this issue, we identify common Professional Responsibility mistakes. Identification and prevention is especially germane, as Professional Responsibility is the most frequently tested subject on the California Bar Exam essays.

Common Professional Responsibility Mistakes

In our experience, there are several frequent, recurring mistakes individuals commit when writing Professional Responsibility essays, including:

  1. Failing to understand the role of ethical duties within Professional Responsibility issues. All Professional Responsibility Rules are rooted in an overriding ethical duty; otherwise, the ethical Rules, which are based upon the Duties themselves, would simply not exist. For example, the conflict of interest standards are actually tests that measure whether the duty of loyalty to a client is upheld.
  2. Failing to identify differences between ABA and CA Professional Responsibility standards.
  3. Failing to apply and distinguish differing ABA and CA standards.

The Professional Responsibility Solution: Frame Discussions Around the Duty and Utilize ABA and CA Distinctions

To avoid these common mistakes, frame Professional Responsibility issues around the overriding Duty. Then, define the duty, provide the standard(s) that measures the duty, including any CA or ABA distinctions, and apply all of the standards to the specific, pertinent facts.

For example, the duty of loyalty is a duty that a lawyer owes to a client that can be measured in one instance by the conflict of interest standard. If the facts and call of the question raise a conflict of interest issue, then you need to address how the conflict of interest standard fits within the larger duty of loyalty. We would suggest organizing such an issue in this manner:

Duty of Loyalty [Issue Heading]

[Define and explain the duty of loyalty][provide the conflicts of interest standard, noting any ABA and CA distinctions if necessary]

[Apply all of the stated law, including any ABA and CA distinctions, to the specific, pertinent facts]

[Provide a conclusion, noting any differences in the application of the ABA and CA standards]

Note, the information in the brackets above is explanatory and should be omitted or replaced with the suggested content.

Good Luck on the California Bar Exam!

We wish you the best of luck on the California bar exam. Hopefully, we've been able to impart a bit of guidance via our newsletter. If you have any questions or comments about this newsletter, then please feel free to Contact Us.

Study smart,

-The BarReviewSolutions.com Team




3 Weeks Until the February 2011 California Bar Exam

Thursday, February 3, 2011

Dear California Bar Reviewers,

Welcome to the latest installment of our CA bar exam newsletter. In this issue, we consider:

  • Important Upcoming California Bar Exam Dates
  • California Bar Exam Study Strategy: The Home Stretch
  • California Bar Exam Essays In-Depth: Common Evidence Mistakes
  • Next Issue Preview

Important Upcoming California Bar Exam Dates

  • California Bar Exam: February 22-24, 2011

California Bar Exam Study Strategy: The Home Stretch (Or, What One Does the Last Two Weeks of CA Bar Review)

If everything is going to plan, via your bar review study schedule, then the last two weeks of your review should be spent utilizing your reference system to memorize materials and practicing MBE questions, essays, and performance tests.

Memorizing, Memorizing, Memorizing...

For memorization of the materials, there are no shortcuts. It is long, tiring work. Of course, there are memorization techniques that you will become familiar with and most likely utilize (e.g., mnemonics, etc…). However, even with such memorization techniques, the memorization process is still a daunting challenge. You know better than anyone else what learning methods and memorization techniques work best for you. Use those methods that have worked in the past (e.g., during law school), eliminate ineffective methods. Avoid sticking with something that is not working, even if it is working for your friend.

Condensing CA Bar Review Materials

It is at this time that many individuals will begin condensing their reference system to create condensed/synthesized outlines for each testable subject found on the CA bar exam. If you followed this method in law school, then you will be very familiar with it. If not, condensing your outlines is akin to whittling the wheat from the shaft. Comprehensive outlines will often state the why, the how, and provide examples of a legal issue or topic. Condensed outlines simply state the what, i.e., the rule statement or elements of a testable issue in a highly abbreviated fashion. Keep in mind, condensed/synthesized outlines are a very effective tool if YOU are the one doing the condensing and synthesizing. We believe utilizing someone else’s condensed outlines eliminates almost all of the benefit received in creating condensed versions of the materials in the first place. Of course, we have all heard the tale of an individual only studying with someone else’s condensed outlines and passing the CA bar exam. However, we never hear of the many more tales of those individuals that used such condensed outlines and failed. Don’t let an exception to a rule guide your own bar exam preparation.

California Bar Exam Essays In-Depth: Common Evidence Mistakes

Our Essays In-Depth feature is an excerpt from our upcoming California Bar Exam Essay Solution On-Demand Workshop or one of our upcoming subject-specific California Bar Exam Essay Primers. In this issue, we identify common mistakes individuals commit on CA bar exam Evidence essays.

The Nature of California Bar Exam Evidence Essays

Generally, Evidence essays will ask you to determine the admissibility of prospective items of evidence. Often, an Evidence essay will be structured and presented as a multi-part question with each part corresponding to an individual piece of evidence. It is not uncommon for Evidence essays to contain as many as seven or more individual questions. This unusual structure, in comparison to other testable subjects on the CA bar exam, leads individuals to commit several common mistakes. One of these common mistakes is mishandling hearsay within hearsay issues.

Common Evidence Mistake: Hearsay Within Hearsay

Hearsay within hearsay (often referred to as "double hearsay" or "totem-pole hearsay") occurs when individual statements of a combined statement each qualify as hearsay (statement made out of court for the truth of the matter asserted). Both the Federal Rules of Evidence, Rule 805, and the California Evidence Code, Section 1201, address hearsay within hearsay. The basic premise of both the Federal and California Rule is that if each layer of hearsay meets an exception to the hearsay rule, then the evidence is admissible.

Failing to Identify Hearsay Within Hearsay

Keeping the definition of the concept in mind, an initial mistake individuals will commit is to overlook hearsay within hearsay entirely and fail to identify combined statements as individual, stand-alone hearsay statements. A common technique by the Bar Examiners to test hearsay within hearsay is to associate a verbal statement with a document (e.g., an employee's statement about a written report). If both the statement and the document are offered for the truth asserted, then they are hearsay, and both items must conform to a hearsay exception to be admissible.

Failing to Evaluate Each Layer of Hearsay Within Hearsay for Hearsay Exceptions

Even if an individual identifies the presence of hearsay within hearsay in an essay, another common mistake is failing to evaluate and analyze each layer of hearsay for possible hearsay exceptions. For example, in the statement and document example described above, and individual should evaluate possible hearsay exceptions for each layer of hearsay: the statement AND the document. Far too often, individuals will analyze only one layer of evidence (e.g., only the employee's statement or only the report) for possible hearsay exceptions when each layer should be scrutinized.

The Hearsay Within Hearsay Solution: Evaluate Combined Evidence Statements Individually

To avoid these common hearsay within hearsay mistakes on your California Evidence essays, remember to 1) initially evaluate whether the question includes a "combined statement" that qualifies for hearsay within hearsay and 2) organize each layer of hearsay within hearsay as separate issues (apply the hearsay standard to each layer of the combined statement and identify those possible hearsay exceptions that apply to each individual instance of hearsay).

Next Issue Preview

In our next issue, our Essays In-Depth feature will identify common mistakes made on Professional Responsibility essays.

If you have any questions about this newsletter or any of our products or services, then please feel free to Contact Us.

Study smart,

-The BarReviewSolutions.com Team




6 Weeks Until the February 2011 California Bar Exam

Thursday, January 13, 2011

Dear California Bar Reviewers,

Welcome to the latest installment of our CA bar exam newsletter. In this issue, we consider:

  • Important Upcoming California Bar Exam Dates
  • California Bar Exam Study Strategy: Sensible Performance Test Preparation
  • California Bar Exam Essays In-Depth: Issue Analysis, Part 3 of 3
  • Next Issue Preview

Important Upcoming California Bar Exam Dates

  • Final Filing Deadline (All Takers): January 18, 2011
  • California Bar Exam: February 22-24, 2011

California Bar Exam Study Strategy: Sensible Performance Test Preparation

An often overlooked and/or neglected aspect of CA bar exam preparation is preparing for the Performance Tests (PTs) in a sensible, effective manner. Far too often, individuals will neglect or put-off PT practice and preparation. The main reason for such neglect is that most individuals believe that their time will be better spent studying for other components of the CA bar exam instead of the PTs, as those other components (essays and MBE) test specific legal knowledge, which require prior understanding and recall. In contrast, the PTs are very much a "skills" test, examining your ability to follow instructions and organize a response in a thorough, cogent manner. Unfortunately, many individuals fail to realize that, as a test of skills, one can generally improve PT "skills" with focused, structured practice.

Conduct a Self-Evaluation of Your Performance Test Ability

For some individuals, it's a sensible decision to spend more time on substantive review of testable materials instead of spending time on PT preparation. However, such individuals should possess a demonstrated competence from previous PT-like experiences (i.e., their "skills" are already competent to receive passing scores on the PTs). To determine if you possess such competence, ask yourself questions like the following:

  • Did you ace your legal research and writing class in law school?
  • Do you write legal research memoranda, briefs, and client letters on a regular basis?
  • Are you comfortable with the time constraints and amount of material found on each CA bar exam PT?
  • If you are retaking the CA bar exam, are prior PT scores at a passing level?

If you answered no to any of the preceding questions, then you can most likely benefit from structured PT practice during your CA bar review.

California Performance Test Preparation Tips

If you possess an identified need to include additional PT practice during your CA bar review, consider some of the following PT preparation tips:

  1. Simulate exam conditions: Utilize a full, uninterrupted 3 hours to complete your practice PTs (turn off all distractions and devices).
  2. Use a hard copy: Print out or utilize an available hard copy for each practice PT.
  3. Outline PT answers: If you are pressed for time, spend 90 minutes to organize and outline an answer instead of writing out a complete answer in 3 hours. Check your outline against sample answers to confirm whether your effort is on target.
  4. Critically evaluate your efforts: Avoid the tendency to merely go through the motions of completing a practice PT. Instead, identify weaknesses in your practice answers, as well as strengths. Apply lessons learned in future efforts.

As a general rule, if you know your legal writing contains weaknesses, then you will most likely benefit from regular PT practice during your CA bar review.

California Bar Exam Essays In-Depth: Issue Analysis, Part 3 of 3

Our Essays In-Depth feature is an excerpt from our upcoming California Bar Exam Essay Solution On-Demand Workshop or one of our upcoming subject-specific California Bar Exam Essay Primers. In this issue, we complete our series on common Issue Analysis mistakes.

Issue Analysis on California Bar Exam Essays

To recap, in our last two issues, we've explained that Issue Analysis on CA bar exam essays consists of analyzing a given set of facts in light of the applicable law and reasoning to a sound conclusion. We've also identified several, common mistakes that individuals make with their Issue Analysis in the hope that you can avoid similar pitfalls on your CA bar exam. In part 3, we conclude by highlighting an additional, common mistake individuals commit when presenting Issue Analysis on their CA bar exam essays: Cursory Analysis.

Common Issue Analysis Mistake: Cursory Analysis

Another common Issue Analysis mistake is Cursory Analysis. Cursory Analysis is Issue Analysis that fails to fully, and specifically, evaluate all of the relevant, pertinent facts presented by the essay fact pattern. As explained in previous issues, your discussion of any Issue on a California bar exam essay should include an identification of the issue (e.g., via an underlined issue heading), a statement of the law, analysis, and a conclusion. The very function of any Issue Analysis is to apply the applicable legal standard(s) to the specific, pertinent facts presented by the fact pattern. The most common form of Cursory Analysis is Analysis that utilizes indirect reference to the facts.

For example, consider the common law burglary example from our last issue (the elements of common law burglary include: a) the breaking and b) entering the c) dwelling house of another d) at nighttime e) to commit a felony therein). Additionally, consider a California bar exam essay question that provides the following fact pertaining to a possible burglary charge: "the action occurred under moonlight at 2:00 am." Obviously, this fact would be relevant for the "at nighttime" element of common law burglary. However, how you utilize and integrate this fact into your essay answer will determine whether analysis of this element of the crime will include Cursory Analysis. A common approach is for an individual to address the "at nighttime" element of the possible burglary charge by simply stating "as the facts indicate, the defendant committed the act at night." However, this is a classic example of Cursory Analysis, lacking specific reference to the pertinent, relevant facts.

The Cursory Analysis Solution: Specificity of Factual Reference in Your Analysis

To avoid the common mistake of Cursory Analysis, provide specific, direct reference to the pertinent facts in your Issue Analysis. Instead of stating "as the facts indicate," as noted in the example above, explicitly state and integrate those facts into your essay answer. For example "the defendant clearly committed the act at nighttime because the act occurred at 2:00 am under moonlight" is far superior to the Cursory Analysis example provided above.

Next Issue Preview

In our next issue, our Essays In-Depth feature will identify common mistakes made on Evidence essays.

If you have any questions about this newsletter or any of our products or services, then please feel free to Contact Us.

Study smart,

-The BarReviewSolutions.com Team




7 Weeks Until the February 2011 California Bar Exam

Thursday, January 6, 2011

Dear California Bar Reviewers,

After a one week holiday hiatus, welcome to the latest installment of our CA bar exam newsletter. In this issue, we consider:

  • Important Upcoming California Bar Exam Dates
  • California Bar Exam Study Strategy: Improving MBE Exam Fitness
  • California Bar Exam Essays In-Depth: Issue Analysis, Part 2 of 3
  • Next Issue Preview

Important Upcoming California Bar Exam Dates

  • Final Filing Deadline (All Takers): January 18, 2011
  • California Bar Exam: February 22-24, 2011

California Bar Exam Study Strategy: Improving MBE Exam Fitness

A key to preparing effectively and efficiently for the bar exam is balancing reviewing/memorizing the material with improving test-taking skills, including essay writing, answering MBE questions, and completing performance tests. If you spend too much time reviewing the substantive material, your essay writing and multiple-choice fitness will be limited and under-developed.

MBE Practice With Answer Explanations

In terms of MBE exam fitness, the best way to prepare for the MBE is practicing questions and reviewing answers to missed questions. As part of your bar review, you should possess a number of practice MBE questions available to you. Remember, you need MBE questions with explanations to the answers in order to correct your incorrect answers and learn from your mistakes. Unless you are taking a diagnostic or full practice MBE, answering practice MBE questions without answer explanations is counter-productive, as you will not know why a question was answered incorrectly.

Frequency and Volume of MBE Practice

The frequency, nature, and volume of MBE practice sessions should be an elementary component of your bar review. There are several variables you should consider when undertaking practice MBE questions. First, you should spend just under 2 minutes (1:48 to be exact) on each question to mimic exam conditions. Avoid the temptation to spend 3 or even 4 minutes per question during your initial practice sessions. You will get more out of the practice if you spend 2 minutes on a question, answer it incorrectly, and then review the explanation as to why your answer was incorrect, then if you spend 4 minutes on a question and answer it incorrectly anyway. Additionally, by adhering to a per question time limit, you are constantly training yourself under exam time constraints. Besides a per question time limit, you should also consider the volume of practice questions as your bar review progresses. This should be spelled out in your bar review study schedule with each MBE practice session becoming longer while simultaneously increasing the time interval between practice sessions. For example, in the first couple of weeks of your bar review it is not uncommon to do 25-50 practice MBE questions a day in several sittings per day. However, by the last couple of weeks of your bar review, MBE practice sessions should reach at least 100 in one sitting. Of course, due to the sheer time commitment to complete 100 questions and review incorrect answers, the sessions will be less frequent than your initial practice sessions of just a handful MBE questions at a time. Remember, the difference in mental and physical effort between completing 10 MBE questions in 20 minutes and 100 questions in 3 hours is significant.

California Bar Exam Essays In-Depth: Issue Analysis, Part 2 of 3

Our Essays In-Depth feature is an excerpt from our California Bar Exam Essay Solution On-Demand Workshop or one of our subject-specific California Bar Exam Essay Primers. This week we continue our series on Issue Analysis.

Recall the Nature of Issue Analysis on CA Bar Exam Essays

In our last issue, we identified that Issue Analysis "should evidence the applicant's ability to apply the law to the given facts and to reason in a logical, lawyer-like manner from the premises adopted to a sound conclusion. An applicant should not merely show that he/she remembers the legal principles, but should demonstrate his/her proficiency in using and applying them." In part 2, we continue to identify and highlight common mistakes individuals commit when presenting Issue Analysis on their California bar exam essays.

Common Issue Analysis Mistake: Incomplete Analysis

Another common Issue Analysis mistake is Incomplete Analysis. Incomplete Analysis occurs when a portion of the legal standard is omitted entirely from the analysis of the issue. For any issue raised on a CA bar exam essay, you will necessarily include a legal standard (i.e., "the rule"). We often refer to such legal standards as "statements of the law" for an issue. Generally, the statement of the law for an issue will identify the various elements of the pertinent legal standard. Incomplete Analysis occurs when an individual omits one or more of the stated elements from the substantive analysis of the issue (note the distinct, separate nature of the statement of the law and analysis for any one issue).

For example, consider the elements of common law burglary: a) the breaking and b) entering the c) dwelling house of another d) at nighttime e) to commit a felony therein. Notice how there are 5 distinct, individual elements that must be proven in order for a charge of common law burglary to be upheld. Incomplete Analysis occurs when one or more of these 5 elements is omitted in the subsequent burglary analysis. Incomplete Analysis occurs because individuals will tend to concentrate their analysis only on those elements that are the most contentious, as determined by the facts of the question, while simply forgetting to address the less contentious elements. However, a complete treatment of an Issue requires that you address the entire legal standard in your analysis, not just a portion of the legal standard. Of course, you should concentrate your Analysis on those elements that are contentious but not at the expense of complete omission of the remaining elements of the law.

The Incomplete Analysis Solution: Verify Your Analysis Against the Pertinent Legal Standard

To avoid the common mistake of Incomplete Analysis, actively remind yourself to verify and double-check that each element of the pertinent legal standard is evaluated and presented in your analysis for an issue. Ideally, a thorough, complete essay outline will enable you to parse the legal standard into its constituent elements. Then, this verification can be as simple as crossing off each element of the legal standard from your outline as you address each one in your full, written answer.

Next Issue Preview

In our next issue, our Essays In-Depth feature will complete our evaluation of common Issue Analysis mistakes.

If you have any questions about this newsletter or any of our products or services, then please feel free to Contact Us.

Study smart,

-The BarReviewSolutions.com Team




9 Weeks Until the February 2011 California Bar Exam

Wednesday, December 22, 2010

Dear California Bar Reviewers,

Welcome to the latest installment of our CA bar exam newsletter. In this issue, we consider:

  • Important Upcoming California Bar Exam Dates
  • California Bar Exam Study Strategy: Outlining Practice Essays
  • California Bar Exam Essays In-Depth: Issue Analysis, Part 1 of 3
  • California Bar Exam Newsletter-Only Discount
  • Next Issue Preview

Important Upcoming California Bar Exam Dates

  • Final Filing Deadline (All Takers): January 18, 2011
  • California Bar Exam: February 22-24, 2011

California Bar Exam Study Strategy: Outlining Practice Essays

As we've discussed in previous newsletter issues, increasing the frequency of full, complete practice essays during your California bar exam preparation can yield tremendous benefits. Practice essays enable you to actively engage, self-test, and review the legal concepts that will ultimately be tested on the CA bar exam. In addition to full, complete practice essays, another exam preparation technique to consider is practice essay outlining.

Practice essay outlining can be an effective tool for your CA bar exam preparation. Practice essay outlining mimics the approach you would take to complete a full, complete practice essay but in an abbreviated fashion. The simple difference with practice essay outlining is that you omit the writing out of the full, complete answer. Instead, with essay outlining, you stop the process after an outline of your answer is completed and then review whether your issue spotting, organization, and overall approach were on target for the essay. The obvious advantage to this essay preparation technique is that you can complete the entire exercise in approximately 25-30 minutes (e.g., outline and read the question in 20 minutes following the 1/3-2/3 Rule and review your results in 5-10 minutes).

When employing essay outlining, there are several caveats to keep in mind. First, to be effective, the outline you create with this approach should be a complete, skeletal version of a full, written answer. Each issue in your outline should include the key points of law and key facts that impact the application of the tested legal concept. Second, do not rely upon essay outlining to the exclusion of full, written practice essays. Essay outlining should supplement, not replace, full practice essays. Third, learn from your mistakes. Just as with practice essays, critically evaluate your practice essay outlines and incorporate missed issues or misapplication of the law into subsequent review sessions.

California Bar Exam Essays In-Depth: Issue Analysis, Part 1 of 3

Our Essays In-Depth feature is an excerpt from our California Bar Exam Essay Solution On-Demand Workshop or one of our subject-specific California Bar Exam Essay Primers. This week we begin a 3-part series on Issue Analysis.

The Nature of Issue Analysis on CA Bar Exam Essays

When considering how to approach and communicate your Analysis for a given Issue, it is important to remember the nature and function of essay Analysis on the California bar exam. Keep in mind, as the Committee of Bar Examiners explain, each essay answer "should evidence the applicant's ability to apply the law to the given facts and to reason in a logical, lawyer-like manner from the premises adopted to a sound conclusion. An applicant should not merely show that he/she remembers the legal principles, but should demonstrate his/her proficiency in using and applying them." Although this guidance appears to be relatively straight-forward, in practice, individuals make a number of common mistakes in their attempt to provide such Analysis. This 3-part series is designed to highlight many of these common mistakes and identify techniques to avoid them.

Common Issue Analysis Mistake: Restating the Facts

A very common Analysis mistake is substituting a blanket restatement of the facts for actual Analysis. Generally, this error will occur immediately after an individual provides the statement of the law for an Issue. In most cases, an individual will summarize and restate the relevant facts in the place of any discussion as to how the relevant law applies to the same set of facts. In its' most severe form, an individual will simply restate all of the relevant facts and then conclude whether the legal standard previously stated in the Statement of the Law is met or not without actually applying the law to the facts. Although the relevant facts need to be cited in your answer, they also need to be analyzed. You should avoid simply restating the facts of the question, as this creates a disconnect between the pertinent facts and relevant legal standard.

The Solution: Frame Your Analysis Around the Elements of the Pertinent Legal Standard

To avoid the common mistake of restating the facts, frame the Analysis for each Issue around the elements of the relevant legal standard. For example, if the issue is the crime of common law arson, then begin your Analysis with the first element of the arson standard cited in a preceding statement of the law instead of simply restating all of the relevant facts prior to any consideration of the elements of a common law arson charge. Remember, the Analysis of any Issue is the application of the law to the facts and not merely a restatement of the pertinent facts.

California Bar Exam Newsletter-Only Discount

As a reminder, we are offering our California bar exam newsletter readers $40 off one of our online, 1-on-1 CA Tutorial Programs (Ultimate, Paced, or Fundamentals) through December 29, 2010. To obtain the discount, simply enter the code CAEARLY at checkout.

Next Issue Preview

In our next issue, our Essays In-Depth feature will continue our discussion on Issue Analysis.

If you have any questions about this newsletter or any of our products or services, then please feel free to Contact Us.

Study smart,

-The BarReviewSolutions.com Team




10 Weeks Until the February 2011 California Bar Exam

Wednesday, December 15, 2010

Dear California Bar Reviewers,

Welcome to the latest installment of our CA bar exam newsletter. In this issue, we consider:

  • Important Upcoming California Bar Exam Dates
  • California Bar Exam Study Strategy: The Testing Effect
  • California Bar Exam Essays In-Depth: Common Equal Protection Mistakes on Constitutional Law Essays
  • California Bar Exam Newsletter-Only Discount
  • Next Issue Preview

Important Upcoming California Bar Exam Dates

  • Final Filing Deadline (All Takers): January 18, 2011
  • California Bar Exam: February 22-24, 2011

California Bar Exam Study Strategy: The Testing Effect

In our last issue, we discussed the "spacing effect," a concept derived from cognitive science (loosely, the study of how human beings learn and retain information) research. This week we address a related concept: the testing effect. An evaluation of the testing effect is important for your bar review, as it demonstrates why practice essays and performance tests are so important for ultimate success on the California bar exam. Also, a brief explanation may provide additional impetus for you to faithfully integrate practice essays into your California bar exam preparation.

The Testing Effect Explained

In simplest terms, the testing effect "refers to enhanced memory resulting from the act of retrieving information, as compared to simply reading or hearing the information. The effect is also sometimes referred to as retrieval practice or test-enhanced learning." See http://en.wikipedia.org/wiki/Testing_effect. Research into the testing effect also demonstrates that an individual will know the material better, and be better prepared for an examination, if study is combined with testing versus study alone. Moreover, the testing effect increases when "feedback" for the "test" is available to the student. "Study" simply means passively reading the testable material (e.g., reading a black-letter subject outline).

Leverage the Testing Effect to Your Advantage During Your CA Bar Review

So, how can the testing effect help you prepare for the California bar exam? The significance for you is that you can improve your CA bar exam preparation, and take advantage of the testing effect, by integrating "testing" into your exam preparation instead of study alone. "Testing" can be any activity that requires you to recall ("retrieval" in cognitive science-speak) the testable concept or principle (e.g., rule of law). The "testing effect" has been utilized for many years in the form of flashcards and practice multiple choice questions for individuals preparing for bar exams.

However, one area where the testing effect has been neglected for CA bar exam preparation is the integration of full, practice essays with actionable feedback into an individual's bar exam preparation. You wouldn't dream of taking the MBE portion of the California bar exam without consistent, regular multiple choice practice questions that provide you answer explanations (this type of practice already takes advantage of the testing effect). Likewise, to take advantage of the testing effect for the essays and performance tests, we believe effective, efficient California bar exam preparation should include regular practice essays and performance tests that provide you comprehensive, actionable feedback to improve upon your mistakes.

All of our California bar exam programs are designed with the testing effect in mind, and we believe this type of essay practice with knowledgeable, actionable feedback is a major reason why individuals that complete our essay programs pass the California bar exam at a significantly higher rate than the overall passing rate.

California Bar Exam Essays In-Depth: Common Equal Protection Mistakes on Constitutional Law Essays

Our Essays In-Depth feature is an excerpt from our California Bar Exam Essay Solution On-Demand Workshop or one of our subject-specific California Bar Exam Essay Primers. This week we discuss the reasons individuals struggle with Equal Protection issues, identify common Equal Protection mistakes, and provide some guidelines for you to improve your treatment of Equal Protection when you encounter it on a California bar exam essay.

Why Individuals Struggle With Equal Protection Issues on the California Bar Exam Essays

In our experience, Equal Protection is one of the most difficult concepts/claims for individuals to understand, let alone master, while preparing for the California Bar Exam essays. Generally, the main reason for this difficulty is individuals fail to recognize that Equal Protection issues contain multiple layers of analysis. Unlike most concepts tested on the California Bar Exam essays, Equal Protection requires multiple stages/layers of analysis. For example, analysis of the appropriate level of scrutiny depends upon the nature of the preceding classification or fundamental right implicated. Additionally, individuals also struggle with Equal Protection because they simply possess no prior exposure, in law school or otherwise, to the concept (many 1L Constitutional Law classes do not cover Equal Protection).

Common Equal Protection Mistakes

Given the preceding observation that Equal Protection is an inherently complex, difficult concept for most individuals to grasp while preparing for the California Bar Exam, it is unsurprising that individuals commit a number of common, recurring mistakes in their attempts to address Equal Protection claims on the CA essays. Four common mistakes include:

  1. Failure to explain/define the nature and purpose of the Equal Protection Clause of the 14th Amendment
  2. Lack of issue organization
  3. Failure to identify multiple bases for possible Equal Protection claims
  4. Overall lack of understanding

Equal Protection Solution: Understand Multiple Layers of Equal Protection Analysis & Effective Organization

Considering these common mistakes, there are two areas individuals can address to prevent these mistakes from occurring on their CA essays: 1) understand the multiple layers of Equal Protection analysis and 2) provide effective issue organization for Equal Protection claims.

Understand the Multiple Layers of Equal Protection Analysis

Fundamentally, most individuals would improve their treatment of Equal Protection issues on a CA essay by recognizing that effective Equal Protection analysis should include 1) an identification, evaluation, and analysis of the pertinent classification or fundamental right implicated by the facts and 2) an application of the corresponding appropriate level of scrutiny. A summary understanding of the classification/fundamental rights and scrutiny dichotomy includes the following:

  • Suspect Classification (Race, National Origin, Alienage) = Strict Scrutiny
  • Fundamental Rights (Travel, Vote, Marry, hold political office) = Strict Scrutiny
  • Quasi-Suspect Classification (Gender, Illegitimacy) = Intermediate Scrutiny
  • Non-Suspect Classification (Poverty, Age, Mental Retardation, Economic Regulation)= Rational Basis Scrutiny
Effective Issue Organization is Key when Discussing Equal Protection Issues

Once the layers of Equal Protection analysis are understood, an effective organizational model is still needed for an individual to adequately address the concept in the context of a California bar exam essay question. One such model is provided below (note, this is a skeletal, issue-only model; for purposes of illustration, and for sake of economy, the components of each underlined issue have been omitted):

Equal Protection

[Define and explain nature, extent, and Constitutional source of Equal Protection; identify the elements of an Equal Protection claim (state action, classification/fundamental rights, and appropriate level of scrutiny)]

State Action

Classification/Fundamental Right

Appropriate Level of Scrutiny

[Conclusion for this basis of an Equal Protection claim]

Additional Classification/Fundamental Right

Appropriate Level of Scrutiny for Additional Classification/Fundamental Right

[Conclusion for this basis of an Equal Protection claim]

Additional Classification/Fundamental Right....

If you carefully review the above organizational model, you will see that the four common mistakes cited above have been eliminated. First, the overview statement forces you to explain and define the nature and purpose of the Equal Protection Clause of the 14th Amendment. Second, the strict, element-based organization prevents you from carelessly omitting either layer of Equal Protection analysis for any one basis of the claim. Third, this form of organization enables you to identify and organize multiple bases for possible Equal Protection claims. Fourth, if you are able to communicate this model of Equal Protection analysis, and the constituent issue components each heading above deserves, then you will demonstrate a high, passing level of understanding.

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In our next issue, our Essays In-Depth feature will begin a 3-part series on Issue Analysis.

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-The BarReviewSolutions.com Team




11 Weeks Until the February 2011 California Bar Exam

Wednesday, December 8, 2010

Dear California Bar Reviewers,

Welcome to the latest installment of our CA bar exam newsletter. In this issue, we consider:

  • Important Upcoming California Bar Exam Dates
  • California Bar Exam Study Strategy: The Spacing Effect
  • California Bar Exam Essays In-Depth: Essay Time Management
  • BarReviewSolutions.com CA Bar News & Announcements:
    • Performance Test Tutorial Now Available For 2011 California Bar Exam
  • California Bar Exam Newsletter-Only Discount
  • Next Issue Preview

Important Upcoming California Bar Exam Dates

  • Final Filing Deadline (All Takers): January 18, 2011
  • California Bar Exam: February 22-24, 2011

California Bar Exam Study Strategy: The Spacing Effect

The "spacing effect" is a cognitive science concept that helps explain how humans learn and remember information (e.g., the law tested on the California bar exam). A simplified explanation of the spacing effect is that humans more easily remember or learn information when they study the information a few times over a long period of time rather than studied repeatedly in a short period of time. See http://en.wikipedia.org/wiki/Spacing_effect.

How You Can Use The Spacing Effect to Better Prepare for the California Bar Exam

In terms of preparing for the CA bar exam, you can take advantage of the spacing effect by integrating spaced review and practice in your exam preparation. For example, if you review a subject like Torts, in week 1 of a planned 8 week review schedule, then you should integrate regular, scheduled reviews of Torts in the remaining 7 weeks of your study. This will enable you to regularly review the subject throughout the duration of your exam preparation instead of waiting to review the subject again immediately before the exam. Likewise, you can apply the spacing effect to both practice essays and practice multiple choice. At a minimum, weekly practice essays will better enable you to learn and remember proper essay technique and presentation.

By taking advantage of the spacing effect, you can make your CA bar exam review more effective and efficient. Our CA bar exam sample study schedules integrate these principles with suggestions for weekly reviews and regular practice essays and multiple choice questions.

California Bar Exam Essays In-Depth: Time Management

Our Essays In-Depth feature is an excerpt from our California Bar Exam Essay Solution On-Demand Workshop or one of our subject-specific California Bar Exam Essay Primers. This week we identify the value of time management and discuss several time management guidelines.

The Importance of Essay Time Management

The value of effective time management on the CA bar exam essays cannot be overstated. Adhering to sound time management principles can prevent a host of bar exam calamities, including the "I only had 20 minutes for the last essay" or the "I don't know what happened, I just stared at the fact pattern for 45 minutes." Problems like these can be avoided if individuals adhere to a few, simple time management guidelines.

Obey the 1-Hour Time Limit

Each essay on the California bar exam is designed and tested to be answered in 1 hour. Accordingly, and although seemingly obvious, an individual should spend no more than 1 hour per essay. The primary problem created by exceeding the 1-hour time limit on an essay is the collateral damage inflicted upon subsequent essays. For example, if you spend 90 minutes on Question 1, then you will only have 90 minutes to answer Questions 2 and 3. Since each essay is designed to be answered in 1 hour, trying to answer one or two subsequent essays in only 45 minutes places an individual at a fundamental disadvantage. You can avoid such a predicament by simply obeying the 1-hour time limit for all 6 essays.

The 1/3-2/3 Rule

Another common time management problem individuals face on an individual essay is spending either too little or too much time reading, organizing, and outlining their answers. Some individuals will read the question and begin writing an answer immediately. The result is typically an unorganized mess that omits a number of key issues. Conversely, other individuals will spend too much time reading the question, fretting and worrying, instead of simply getting down to the business of writing out an answer.

To avoid either of the above scenarios, we always espouse that individuals follow the "1/3-2/3 Rule," allocating 1/3 of their time to reading, organizing, and outlining an answer and devoting the remaining 2/3 of the allotted time to writing out the answer. For individuals that adhere to the 1-hour time limit per essay, the application of this rule results in 20 minutes for organizing an answer and 40 minutes for writing the answer.

By adhering to the 1-hour time limit per essay and following the 1/3 - 2/3 Rule, you can place yourself in a position to answer competently all 3 essays in either essay session.

BarReviewSolutions.com CA Bar News & Announcements

Performance Test Tutorial Now Available For 2011 California Bar Exam

Performance Test tutorials are now available via our February 2011 California Bar Exam Performance Test Tutoring Solution. Unlike our other California bar exam programs, which address both essays and performance tests, this program focuses only upon Performance Tests. You can learn more about our February 2011 California Bar Exam Performance Test Tutoring Solution.

California Bar Exam Newsletter-Only Discount

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Next Issue Preview

In our next issue, our Essays In-Depth feature will examine common mistakes individuals commit when addressing Equal Protection issues on Constitutional Law essays.

If you have any questions about this newsletter or any of our products or services, then please feel free to Contact Us.

Study smart,

-The BarReviewSolutions.com Team




12 Weeks Until the February 2011 California Bar Exam

Wednesday, December 1, 2010

Dear California Bar Reviewers,

Welcome to the latest installment of our CA bar exam newsletter. In this issue, we consider:

  • Important Upcoming California Bar Exam Dates
  • California Bar Exam Study Strategy: Constructive Essay Practice During Your Bar Review
  • California Bar Exam Essays In-Depth: The Importance of the Call of the Question
  • California Bar Exam Newsletter-Only Discount
  • Next Issue Preview

Important Upcoming California Bar Exam Dates

  • Final Filing Deadline (All Takers): January 18, 2011
  • Immediate Repeaters Only - Timely Filing Deadline: December 8, 2010

California Bar Exam Study Strategy: Constructive Essay Practice During Your Bar Review

For many individuals seeking to pass the CA bar exam, a primary obstacle is an inability to write passing essays, not a lack of knowledge of the substantive law tested. Generally, the cause of this inability to write passing CA essays is two-fold: 1) individuals do not write enough practice essays and 2) individuals do not practice essays constructively.

Frequency of Essay Practice

Frequency of essay practice is an important element to consider as you prepare for the CA bar exam. First, an individual can only become comfortable and familiar with the time pressures of 3 essays in 3 hours through practice. Second, an individual needs to build exam fitness to comfortably and ably answer the essays in the time provided. For some individuals, mental exhaustion by the Thursday of the CA bar exam can interfere with their ability to effectively answer the essays and performance test. However, if you gradually trained yourself to answer multiple essays in one sitting, then the multiple essays on exam day will be neither surprising nor exhausting.

Constructive Essay Practice

In addition to frequency of essay practice, your essay practice needs to be constructive. The goal of essay practice should not be simply to COMPLETE the practice answer. Instead, the goal should be to IMPROVE your practice answer. To improve your practice essays, your answers must be critically evaluated and the lessons-learned from previous attempts should be incorporated into future practice essays. Of course, critical evaluation, critique, and feedback from a trained eye can be invaluable in the process to improve your practice essays to a level that will receive a passing score on the actual exam.

Remember, ensure your CA bar exam essay practice is both frequent and constructive.

California Bar Exam Essays In-Depth: The Importance of the Call of the Question

Our Essays In-Depth feature is an excerpt from our California Bar Exam Essay Solution On-Demand Workshop or one of our subject-specific California Bar Exam Essay Primers. This week we discuss the importance of understanding the call of the essay question and some common mistakes to avoid.

Recognize the Importance of the Call of the Question

Understanding the nature and limitations of the question(s) presented on an individual essay seems to be a relatively straight-forward, easy to understand matter. However, individuals consistently ignore the limitations and parameters placed upon an essay response via the call of the question. Simple directives like "do not discuss x" are routinely ignored. But, why? In our experience, individuals committing such mistakes fail to recognize the fundamental importance of the question presented for an essay. Instead, these individuals race through the fact pattern and try to identify any and all issues without regard to whether the issues are actually germane to the question asked. Unfortunately, those issue discussions included in an essay that are not germane to the question presented simply receive no credit.

Why You Should Read the Call of the Question First

In order to avoid the mistakes described above, we always encourage individuals to read the call of the question first and prior to any reading of the fact pattern itself. There are several reasons for reading the call of the question prior to the fact pattern. First, reading the call first forces an individual to focus upon the nature and limitations of the question versus the wild issue chase described above. Second, and as described below, reading the call of the question can often provide significant insight into the subject(s) or issues tested. Third, the call of the question can provide a broad organizational framework for your answer prior to reading any of the facts. All of these benefits from reading the call first will enable you to read the fact pattern informed and with a purpose (e.g., when specific subjects or issues are identified from the call).

Reading the Call First Can Provide Significant Insight

One of the benefits provided by reading the call first is possible insight into the subject(s) or issues being tested. Although this type of insight will vary from question to question (whether subject or issue-specific), most questions will provide some level of subject or issue insight. For example, consider two different examples from recent CA bar exams:

  • A. At each of the seven indicated points, what objection or objections, if any, should have been made, and how should the court have ruled on each objection? Discuss.
  • B. Was the trial court correct in denying the motion of Don's Market to dismiss the complaint on the ground that the court lacked subject matter jurisdiction? Discuss.

Example A clearly reveals the subject being tested, Evidence. Moreover, the question also informs you that there will be 7 separate parts to your answer. In comparison, Example B identifies both the subject and specific issue tested, Civil Procedure and subject matter jurisdiction. In the Example B case, if you were to read the question first, then your subsequent reading of the facts would be highly focused and informed, looking for those facts that would support or disprove any element of subject matter jurisdiction.

Be sure your essay answers stay within the limitations provided by the call of the question and consider reading the call first to take advantage of the subject and/or issue insight such an approach can provide.

California Bar Exam Newsletter-Only Discount

For our newsletter readers, we are offering $50 off one of our online, 1-on-1 CA Tutorial Programs (Ultimate, Paced, or Fundamentals) through December 15, 2010. To obtain the discount, simply enter the code CAEARLY at checkout.

Next Issue Preview

In our next issue, our Essays In-Depth feature will examine common time management problems individuals face on California bar exam essays.

If you have any questions about this newsletter or any of our products or services, then please feel free to Contact Us.

Study smart,

-The BarReviewSolutions.com Team




13 Weeks Until the February 2011 California Bar Exam

Wednesday, November 24, 2010

Dear California Bar Reviewers,

Congratulations to those of you that passed the July 2010 California bar exam! We extend our best wishes for a rewarding career in the practice of California law. In this issue, we consider:

  • Important Upcoming California Bar Exam Dates
  • California Bar Exam Study Strategy: Improving MBE Performance Via an MBE Error Log
  • California Bar Exam Essays In-Depth: Common UCC 2-207 Mistakes
  • BarReviewSolutions.com CA Bar News & Announcements:
    • 100% Pass Rate for our July 2010 California Bar Exam Tutoring Solution: Ultimate
  • California Bar Exam Newsletter-Only Discount
  • Next Issue Preview

Important Upcoming California Bar Exam Dates

  • Late Filing Fee for February 2011 CA Bar Exam Increases From $50 to $250: December 1, 2010

California Bar Exam Study Strategy: Improving MBE Performance Via an MBE Error Log

To improve MBE performance, one technique we suggest is the creation and maintenance of an "error log." That is, a written record as to why an individual multiple choice question was missed (e.g., an individual record in a spreadsheet).

Pinpoint the Reasons for Incorrect MBE Answers

An MBE error log can help you identify why you are missing multiple choice questions. In our experience, there can be more than one reason why you miss a multiple choice question. Such reasons include misreading the question, misreading the answer options, not knowing the applicable law, or misapplying the applicable law. The purpose of the error log is to identify your weakest areas and target those areas for improvement.

Identify the Reason Why You Missed an Individual MBE Question

To create the MBE error log, you will need to thoroughly review all missed multiple choice questions to identify the reason(s) why you missed the question. Once you identify the reason(s) for a missed question, create an entry for that reason in your error log. Over time, you error log will likely identify the one or two primary reasons why you are missing the question. Then, you can concentrate on improving those areas in future practice. For example, if your log reveals that you miss 25% of all questions because you misread the answer options, then it should be made obvious that closer attention to reading these options is warranted. Identifying your multiple choice weaknesses in this manner would not be so obvious without the assistance of the error log.

Learn From Substantive Law Mistakes on MBE Practice Questions

Possible categories for missed MBE questions in your error log, as described above, are incorrect recall or application of the applicable rule of law. A corollary to your MBE error log should be a list (via flashcards, outlines, etc...) of corrected rule statements for missed MBE questions, and your CA bar review should include periodic review of these corrected rule statements.

California Bar Exam Essays In-Depth: Common UCC 2-207 Mistakes

Our Essays In-Depth feature is an excerpt from our California Bar Exam Essay Solution On-Demand Workshop or one of our subject-specific California Bar Exam Essay Primers. This week we discuss some selected, common mistakes made on Contracts essays involving UCC 2-207, often referred to as "the Battle of the Forms."

Additional Terms in Acceptance Between Merchants

The scope of our discussion is limited to instances when additional terms in acceptance between merchants is at issue in an essay. This is specifically addressed in Section 2-207(2)(a)-(c). Keep in mind, the overriding issue for any UCC 2-207 discussion is the element of Acceptance in contract formation (Offer, Acceptance, Consideration). Accordingly, when a sale of goods between merchants is present, and additional or different terms are offered in the acceptance, then this discussion will be germane. UCC 2-207 is not germane when the UCC is inapplicable (e.g. real property or services contracts) or no additional or different terms are presented in Acceptance. Furthermore, it is important to recognize that UCC 2-207(2) only applies when the parties to a contract are merchants.

Common Mistakes With UCC 2-207

In our experience, there are several discrete, recurring mistakes individuals make when addressing the issue of additional or different terms in Acceptance between merchants for the sale of goods. Two of the most common mistakes include: 1) failure to identify all 3 tests of 2-207(2) and 2) failure to adequately analyze each additional or different term.

1) Failure to Identify All 3 Tests of 2-207(2)

The Statement of the Law for any 2-207 issue between merchants should include the 3 tests of 2-207(2). These 3 tests limit the ability of additional or different terms in Acceptance to become part of the contract. If any one of these 3 tests is violated, then the additional or different terms DO NOT become part of the contract. Conversely, in order to become part of the contract, an additional or different term in Acceptance must pass all 3 tests of 2-207(2). These 3 tests include:

  • whether the Offer expressly limits Acceptance to the terms of the Offer;
  • whether the additional term materially alters the Contract; and,
  • whether notification of objection to the additional term has already been given (within a reasonable time after notice of them is received)

To effectively state the pertinent law for such 2-207 issues on your Contracts essays, present these 3 tests in your Statement of the Law for the issue.

2) Failure to Analyze EACH Additional or Different Term in Acceptance

Another common mistake for such 2-207 issues between merchants is the failure of individuals to address EACH additional or different term in their Analysis. Typically, when additional or different terms between merchants for the sale of goods is raised in an essay question, there will be more than 1 additional or different term in the fact pattern. Individuals exhibit a tendency to address only 1 of these additional or different terms and omit discussion of other such terms. This omission is the product of poor planning and outlining of the answer at the outset.

Remember, include an analysis of EVERY additional or different term in Acceptance when 2-207(2) is germane to the question presented.

BarReviewSolutions.com News & Announcements:

100% Pass Rate for our July 2010 California Bar Exam Tutoring Solution: Ultimate

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Next Issue Preview

In our next issue, our Essays In-Depth feature will discuss the importance of understanding the call of the question when organizing your essay answer.

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Study smart,

-The BarReviewSolutions.com Team




14 Weeks Until the February 2011 California Bar Exam

Wednesday, November 17, 2010

Dear California Bar Reviewers,

Welcome to another issue of our CA bar exam newsletter. For those of you awaiting July results, we are hopeful you will receive positive results. In this issue, we consider:

  • Important Upcoming California Bar Exam Dates
  • California Bar Exam Study Strategy: Creating a Reference System for Periodic Review
  • California Bar Exam Essays In-Depth: Common Negligence Mistakes
  • BarReviewSolutions.com CA Bar News & Announcements:
    • Trial Version of 1-on-1, Online CA Bar Exam Tutorial Programs Available
  • California Bar Exam Newsletter-Only Discount
  • Next Issue Preview

Important Upcoming California Bar Exam Dates

  • July 2010 California Bar Examination Pass List (Applicant-Only Search): November 19, 2010 at 6:00 pm (PST)
  • July 2010 California Bar Examination Pass List (Public Search): November 21, 2010 at 6:00 am (PST)
  • Late Filing Fee for February 2011 CA Bar Exam Increases From $50 to $250: December 1, 2010

California Bar Exam Study Strategy: Creating a Reference System for Periodic Review

A problem frequently encountered by individuals preparing for the CA bar exam is simply managing all of the testable material in an efficient, productive manner. To improve the management of the testable materials (i.e., "the black-letter law"), we always suggest that an individual create and employ a "reference system" for subsequent, periodic review of the material as the bar exam approaches. You might already be familiar with such reference systems from law school, including outlines and flashcards. The value of any reference system, regardless of its format, is that the testable material is reduced to a convenient, easy-to-review, and lightweight exam preparation tool.

An Individually Created Reference System

We have found that there are two keys to maximize the effectiveness of any such reference system. First, your reference system should be personally created by you alone. Although reviewing prior outlines or flashcards is useful in providing a general idea as to what your reference system should contain, your recall and understanding of the testable material will be vastly improved if you personally create your reference system. This improved understanding is attributable to the fact that in order to create an entry in your reference system for a particular concept, you need to synthesize and review the concept, put the concept into writing, and then review what you have written.

A Reference System You Actually UTILIZE

The second key to an effective reference system is your actual utilization of that reference system. Far too often, individuals will create or possess a reference system for the testable material but simply utilize the reference system incorrectly. Remember, the very purpose of a reference system is to provide you a convenient, easy-to-use tool for review, and ultimately memorization, of the testable material. This usage should include periodic reviews of your reference system for each subject throughout your exam preparation. Avoid the common mistake of creating an outline for a subject two months before the exam and then waiting until the week before the exam to review the outline again. Beyond increasing the frequency of periodic review, you should also actively engage your reference system when reviewing it. Instead of passively reading an outline over and over again, constantly test your ability to recall concepts and elements of the testable issue (e.g., via practice essays).

California Bar Exam Essays In-Depth: Common Negligence Mistakes

Our Essays In-Depth feature is an excerpt from our California Bar Exam Essay Solution On-Demand Workshop or one of our subject-specific California Bar Exam Essay Primers. This week we discuss some selected, common mistakes made on Torts essays when a claim of Negligence is at issue.

Common Negligence Mistakes

In our experience helping others prepare for the CA bar exam essays, a number of common, recurring problems arise for the issue of Negligence on a Torts essay. Considering Negligence is the most frequently-tested Torts claim, it is important to consider these mistakes and, more importantly, how to avoid them.

Two Aspects to Negligence Duty

As you hopefully know from first-year Torts, Duty is the initial element in a prima facie case of Negligence (duty, breach, actual cause, proximate cause, and damages). A common mistake with Duty is the failure to make the fundamental recognition that the element of Duty is actually made up of two separate but related parts, which include: 1) addressing the question of whether a Duty is owed and 2) determining the standard of care for the Duty owed.

The first part of any Duty analysis should address the primary question of whether a Duty is owed at all. Absent any special relationships that impose a Duty (e.g., parent/child), the legal standards to make this determination are the Cardozo and Andrews viewpoints on the matter of duty (as taken from the seminal Palsgraf case). The Cardozo standard espouses a duty is owed to foreseeable individuals in the zone of danger. Whereas, the Andrews standard espouses a duty is owed to all. After applying these standards, the determination can be made if a Duty is actually owed to the plaintiff.

The second part of any Duty analysis should then address the standard of care that the defendant owed the plaintiff. Absent any special duty (e.g., professional, child, etc...), the ordinary standard of care is that of a reasonably prudent person in like or similar circumstances. That is, the defendant owes a duty to the plaintiff to act as a reasonably prudent person in like or similar circumstances.

Too often, we see individuals omit one of these two parts of Duty for their treatment of the issue on a Torts essay.

Clearly Delineate the Issues of Duty and Breach

Another Negligence mistake encountered by individuals is prematurely including Breach analysis in the Duty analysis. In this case, an individual will identify the issue for discussion as Duty but then proceed to explain how the Duty was breached without first explaining whether a duty is owed or identifying the standard of care. Essentially, this mistake leads an individual to omit the analysis of Duty altogether. To avoid this same mistake, reserve the analysis for whether the Duty was upheld or not for the element of Breach and limit your Duty analysis to the two parts cited above: 1) whether a duty is owed and 2) the standard of care.

BarReviewSolutions.com News & Announcements:

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The Trial Version of our 1-on-1 CA bar exam tutorial programs is now available. The Trial is designed to introduce you to our programs without a long-term commitment or expense. Learn more about our Trial tutorial program for the California bar exam.

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Next Issue Preview

In our next issue, our Essays In-Depth feature will address common mistakes made by individuals in a Contracts essay that includes UCC 2-207 ("The Battle of the Forms").

If you have any questions about this newsletter or any of our products or services, then please feel free to Contact Us.

Study smart,

-The BarReviewSolutions.com Team




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