First of all I want to wish you all the very best of luck in your studies and I want to thank you for following my blog. I am truly humbled by the responses from examinees who have sent emails – thank you so much. If you would like to reach me directly, please feel free to send me an email at: firstname.lastname@example.org
If you have been following my blog you will know that I do not really like to call my “predictions” predictions. I do NOT claim to be able to predict the bar exam. I have simply come up with what I call essay scenarios that I think might be worth considering.
I do NOT have a crystal ball! Still, I find it useful from a brain exercise standpoint, to envision and practice different potential scenarios.
Please understand that my students who pay to take my course do not appreciate it if I release our “predictions” weeks in advance to the world. They pay for the privilege of our insights – at least they see it that way. So it simply isn’t fair to give away part of what they pay for to everyone else for free. In past rounds I have not made this available outside of our course.
A bit about the “Predictions”
First of all, I do not claim (nor would I ever claim) that I could predict what is going to be tested on the bar exam. However, I do think it is worthwhile to think about some possible essay scenarios when studying in the coming days. I also think that it makes sense to spend some time on topics that we have not seen on the exam in some time. However, any topic could show up on the bar exam. And, you should expect to see some of the topics that were tested on the February 2017 bar exam, to repeat on the July 2017 bar exam. Typically two or even three subjects will repeat from one bar exam to the very next bar exam. Also, in the past, out of six essays you would expect to see testing of about 8 topics (this allowed for cross-over essays). With only five essays, I would still expect to see at least one or two (maybe even more) cross-over essays.
Note: if a topic does not make my list, that does NOT mean it is not going to show up on the bar exam. You need to be prepared for EVERY topic. My coverage below is simply a suggested emphasis and by no means should you interpret this to mean that something should be excluded from your studies. ALL subjects are testable and all subjects can repeat, back to back, from one bar round to the next. You can almost bet that if you decide to leave a subject alone, that it will appear on the exam.
Why should I review past exams today? Reviewing past exams – right before the actual exam – will improve your chances of spotting the correct issues. Anytime you review an essay (and study the answer) it is really is a substantive review. By reviewing 3 or 4 Civil Procedure essays in a row, you will have a much better understanding of how to approach the subject if it shows up on the exam.
By the way, I believe Civil Procedure is likely (see “Short List” below). Of course, it may or may not be there. But, if it is, it would probably be nice to know that this may be the beginning (finally) of a trend toward California Civil Procedure. If it is, Notice and Code Pleading create a nice federal and California distinction point. The issue of additur (where a judge increases a jury award) also creates a nice federal and California distinction point. In cases of additur, it is available in California but NOT in federal courts as it violates the 7th Amendment right to a jury trial. Many things are “due” or “up”. All of this being said – no one can predict this exam. Nor should you direct your studies away from a topic because it isn’t on someone’s list of predicted topics. That would be very, very foolish.
So all of that being said, here are a few thoughts on what I think could be tested:
The old, 3-day exam versus the new, 2-day exam and what it potentially means in term of subject coverage: In the past, when there were 6 essays, the Bar Examiners historically tested 8 or 9 topics (spread out over the 6 essays). Now that there are only 5 essays, I think you can still expect to see 7 to 9 topics tested as the examiners frequently test cross-over exams.
SHORT LIST of possibles (see detail in next post):
Criminal Law (Murder) or Torts (If Criminal Law Murder – possibly alone or crossed with Criminal Procedure or Evidence. If Torts – most any area if possible – but longest ago in terms of testing are Negligence and Products Liability.
Constitutional Law (Possibly First Amendment or Dormant Commerce Clause)
Professional Responsibility (look out for attorney advertising or assisting a non-lawyer in the unlicensed practice of law, and ALWAYS duty to avoid conflict of interests and duty of loyalty, more details in the “Detail” post)
Civil Procedure (jurisdictional issues are most commonly tested, but Res Judicata and Collateral Estoppel are a bit due. Also look out for: issues of remittitur/additur, pleading issues (like notice and code pleading), 7th Amendment right to a jury trial as these issues can come up as short answer, tack-on issues. The last time Civ Prop was tested (July 2016) California Civil Procedure came up for the very first time. This may be the beginning (finally) of a trend toward California Civil Procedure. If it is, Notice and Code Pleading create a nice federal and California distinction point. The issue of additur (where a judge increases a jury award) also creates a nice federal and California distinction point. In cases of additur, it is available in California but NOT in federal courts as it violates the 7th Amendment right to a jury trial.
Community Property (Possibly valuation of separate property business, personal injury award, time rule for determining community property interest of pension, retirement or reimbursement for education or license. Always be on look out for transmutation issue).
*Property or Contracts
If Property: (possibly landlord/tenant or landlord/tenant crossed with covenants and equitable servitudes). Property was last tested on the July 2016 bar exam. At that time, I was predicting either Easements (specifically in the land sale contract area) or Landlord/Tenant. Since the bar tested easements in the land-sale context that round, I am leaning more towards a Landlord/Tenant exam (if you see property at all on the essays) and possibly crossed over a non-assignment or non-sublease clause and covenants (for example, a covenant restricting what can be done on the land, a sublessee takes possession and starts breaching the covenant. Can the covenant be enforced against the sublessee? Is there another remedy available – perhaps enforcing the restriction as an equitable servitude? Don’t freak out. Just know that if there is a covenant on your exam that you should discuss both covenants and equitable servitudes as these most always go together. This is a scenario, in the landlord/tenant context that we have not seen tested in a while and as a result, it may be due.
If Contracts: While both of these topics are possible, I am leaning towards a possible: “either Property or Contracts” on this upcoming exam. Property and Contracts are a bit hard to predict for this bar round given the testing on the February 2017 exam. While neither Property or Contracts was really tested outright on the February 2017 exam essays, the bar examiners sort of tip-toed in the areas of both Property and Contracts (I am talking about the Tort/Remedies exam that tested Fraud and Misrep and Remedies).
Possible Repeat topics: (Remember – historically the California bar examiners repeat two or three topics from one bar round to the next. This includes the expected Professional Responsibility essay, which is rarely skipped).
Remedies as a possible repeat topic: Say what? Yes, it could repeat, anything can repeat. Remedies is on many bar exams back to back. What was not tested last bar round in Remedies: Injunction or Contract Remedies
Evidence as a possible repeat topic/crossover topic: Possibly as a cross-over with another topic – for example: Marital/Spousal Privilege, Attorney-Client Privilege or Hearsay issue crossed over with another subject. Be sure to know these privileges and rules and especially know the California/Federal distinctions in Marital and Spousal Privilege.
Professional Responsibility usually repeats (as listed above) Note: Per the California State Bar Examiners own rules, PR will be on either the essay portion or on the performance test every bar round).
Criminal Law and Criminal Procedure possible repeat topic. Even though this subject made the main list of possibles, it really would be (if tested) a repeat. But, it has been so long since murder has been tested that I believe it is highly likely it will come up within the next year. It may be more likely to be on the February 2018 bar exam. BUT, if it were me taking the exam this July, I would most definitely be prepared for Criminal Law Murder or Criminal Law Murder with Criminal Procedure.
Keep in mind that anything can be tested. Do not dismiss any topic. First Amendment Speech was once tested three times back to back. Many other subjects have been tested three times in a row. Anything is possible. However, the above “predictions” are what I believe may be more probable essay scenarios for the July 2017 bar exam.
Remember that you can accomplish so much in these final hours. Tomorrow, you will be relying in part on short term memory, so make certain that you study well and review writing approaches. I am always stunned at how some examinees will say: “If I don’t already know it now, it is too late”. That could not be more untrue. It is NOT too late. Study essay approaches and read essays!
I wish all who are studying for this exam the very best of luck!
Bar Exam Guru
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If you have read past postings, you will know that I believe it is not wise to base your studies on essay predictions. Instead, you should prepare for all subjects equally. However, this does not mean that it isn’t a good idea to know what has been tested in recent examinations or to develop a sense of which topics or combinations of topics might be likely scenarios on the upcoming exam. This just makes sense. You should know the test you are about to take extremely well.
Each bar round our students take a three-day, simulated bar exam. The exam is given under exam conditions. We use real bar exam questions for the exam. In preparing this mock bar exam, I review the past 6 bar administrations. I do this to determine which topics I will include in that bar round’s mock exam. I choose exam topics that I have not seen in recent administrations as I believe that these may have a greater likelihood of showing up on the next bar exam.
One of the certain things about the California bar exam essay section is this: each bar round the examiners repeat one or two (and sometimes even three) of the subjects that were tested on the prior bar exam. Usually it is at least two subjects that repeat. If you look at the past bar exam administrations you will see proof that the subjects repeat from one round to the next. As a result, it makes trying to predict the next set of essay subjects to be tested unrealistic. In addition, it means that you would be foolish to think that if a subject were just tested on the July 2008 bar exam, that this subject would not show up on the February 2009 bar exam.
Since the same subject will often be tested on the essay exam from one round to the next, it is important to review the past exams not in terms of which subject was tested (i.e., Torts, Criminal law, Criminal Procedure, Wills, Contracts etc.) but, instead in terms of which topic within a subject was most recently tested (i.e., Defamation? Negligence, Murder, 4th Amendment, 8th Amendment, Will formation, codicil, undue influence, Contract Formation, Common Law, UCC, Remedies, Conditions etc.).
This is what I look at when I am preparing our simulated bar exam for our students. And, this is also the same source that I go to in order to provide “predictions”. I try to be very careful with the word prediction in the bar exam context. First of all, it is misleading to even suggest that someone could predict the bar exam essay topics. But, if the bar examiners were going to test Property again on the February 2012 bar exam (it was tested on day three of the July 2011 bar exam) then perhaps the examiners would be more likely to test areas within landlord/tenant or easements.
Similarly, it would make sense that if the bar examiners have historically, over many years, tested certain areas, and one of those areas has been glaringly absent in recent years, then perhaps the examiners will test it soon. Just seems to make sense, doesn’t it? Well, I think it does. Still, this being said, I do not believe that you should place a great deal of stock or reliance on what anyone might predict for the exam. If it helps you think about possible scenarios, fine. But, if it is something that you use to direct your studies away from less predicted subjects or less likely expected subjects, then it is nothing short of dangerous. Be prepared for every subject and each topic within each subject.
Okay, I am not going to provide a list today of predictions. I will, however, pass along some of what I address in my lectures about areas that are probably worth a little extra attention simply because the bar examiners have not tested these areas in some time.
As I teach each subject in our bar review course, I let our students know which areas of that topic were tested recently and which areas have not been tested recently.
Then as the bar draws even closer, we spend time reviewing additional essays that have tested these very topics (the topics that have not shown up in a while). It is not that all will show up on the next administration, or that it would be wise to study only these areas. However, I know that our students reap a great deal of confidence from this exposure simply because when they do arrive at the exam and open their essay booklets, they will inevitably see some of these areas tested in exactly the same way on exam day. This is a great confidence builder.
Still, I constantly reinforce with my students that anything can be tested (for example, First Amendment speech and Murder essays have shown up back to back on not just two administrations, but three in a row in some years). Other topics have repeated in this same fashion. Therefore, while predictions are very tempting not only to make but to rely upon, it is not a good way to decide which subjects to review or study harder. Instead, study all of the subjects, of course.
I will do my best to provide postings about some of these subject areas that I believe the bar examiners might be more inclined to test on the upcoming February 2012 bar exam.
Incidentally, I do not intend to pass along every point that I make in my lectures regarding the essay predictions. I do not think that my students would think that was fair as they chose to enroll in Bar None Review and paid the associated fees. But, I will provide some information here when I can and to the extent that I think is both helpful and fair.
Thank you for reading and please feel free to leave a comment here on my blog or to email me directly at: email@example.com
Good luck in your studies!
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