3 Weeks Until the February 2011 California Bar Exam

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.

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Study smart,

-The BarReviewSolutions.com Team