Archive for the BarBri Category

California Bar Exam Contracts Overview And Short Outline

Posted in BarBri with tags , on May 30, 2012 by George

Overview Contracts Checklist

‒        “Armadillos From Texas Produce Bad Rally Towels”

  • Applicable Law
  • Formation of Contract
  • Terms
  • Performance/Excuse thereof
  • Breach
  • Remedies
  • Third Party Rights

Contract Essay Strategy

‒        1) Read Call of the Question FIRST.

‒        2) Write Down Checklist

‒        3) For Ks, be prepared to argue alternatives!

  • Define all legal terms

I. DOES THE UCC APPLY?

‒        UCC or Common Law? Which law applies?

  • UCC governs Ks for the sale of goods. (Because “goods” is a legal term, you should define it). Good are moveable tangible items
  •  Common law governs contracts for services.
  • Mixed goods/services- apply predominate factor test.

‒        Merchants?

  • If UCC problem, then in a separate paragraph determine if the parties are merchants if facts give rise to the issue.

II. IS THERE A VALID CONTRACT?

‒        A. Offer: An offer is a manifestation of a present intent to contract demonstrated by a promise, undertaking or commitment, stated in definite and certain terms, and communicated to an identifiable offeree.

‒        B. Merchant’s Firm Offer or Option Contract?

  • Tip: Only raise if an issue and you should raise it before you discuss termination of the offer issues.

‒        C. Has the offer been terminated? (note- “Termination of Offer” should not be your head note. Your head note should be of the issue, for example: Revocation.)

  • Lapse of time
  • Revocation: A revocation is evidence by words or conduct of the offeror terminating the offer. It’s effective upon receipt except when it’s irrevocable due to an option contract, merchant’s firm offer, or when there’s detrimental reliance.
  • Rejection: Words or conduct of the offeree rejecting the offer. It’s effective when received. Counteroffer acts as rejection
  • Termination by operation of law
  • Death or insanity of either party
  • Destruction of subject matter of the contract
  • Supervening illegality
  • D- Death / Destruction of subject matter / Disability
    I- Illegality / Insanity
    R- Rejection by offeree
    T- Time, lapse of
    C- Counteroffer
    A- Acceptance
    R- Revocation by offeror

‒        D. Acceptance: An acceptance is an unequivocal assent to the terms of the offer made by one with the power of acceptance.

  • Method of acceptance: promise to perform, starting to perform, or complete performance
  • Mode of acceptance: manner authorized by offer or any reasonable manner
  • Effective upon dispatch
    • mailbox rule
    • limits on mailbox rule

‒        E. Consideration: Consideration is a bargained for exchange of legal detriment or legal benefit

  • Things to consider:
    • adequacy generally irrelevant
    •  past consideration
    • “pre-existing” duty rule
    • part payment to settle existing debt
    •  payment to settle legal claim
    • payment of debt barred by statute of limitations
    • Promissory estoppel or detrimental reliance as a substitute for consideration

‒        F. Defenses to formation

  • 1. Statute of frauds
    • Applies to MY LEGS (marriage, Ks that cannot be performed within 1 year, land, executor, goods worth $500 or more, and surety)
    • Tip 1: Always raise if K formation is an issue.
    • Tip 2: If an exception applies, then for best organization you should first conclude K fails for SOF and then separately head note and IRAC the applicable exception(s).
    • Exceptions for Goods rule: remember SWAP: Specially made goods, Written confirmation (Merchant’s Confirmatory Memorandum), Admission in court, and Performance)
    • 2. Mistake
    • 3. Illegality
    • 4. Lack of capacity
    • 5. Unconscionability
    • 6. Duress
    • 7. Fraud

III. TERMS OF THE CONTRACT

‒        Additional Terms

  • Under common law, acceptance must mirror the offer.
  • Under the UCC, an acceptance which adds terms to the offer is valid. Between merchants, the additional terms become part of the contract unless they materially alter the contract, unless the offeror objects, or unless the offer is limited to its terms. UCC § 2-207

‒         Ambiguous Terms

  • Court will apply ordinary meaning per K rules of construction
  • Custom and usage in the industry
  • Course of dealing between the parties

‒        Parol Evidence Rule

  • Evidence of prior or contemporaneous negotiations and agreements that contradict, modify, or vary contractual terms is inadmissible if the written contract is intended as a complete and final expression of the parties.

‒        Modification

  • Additional consideration needed under the common law
  • Under UCC, no consideration needed so long as in good faith
  • Modification may need to satisfy Statute of Frauds
    • Oral modifications?

IV. THIRD PARTIES RIGHTS OR OBLIGATIONS

‒        Third Party Beneficiaries

  • 1. Intended or Incidental TPB?
  • 2. Creditor or Donee TPB?
  • 3. Have rights vested?
  • 4. Who can sue whom?
    • TBP v. promisor
    • promisee v. promisor
    • TBP v. promise

‒        Assignment of Rights

  • Assignments are generally valid unless they materially alter the obligor’s duty or risk, or unless they are prohibited by law
  • Does obligor have defenses against assignee?
  • What happens when there is more than one assignment of the same right?

‒        Delegation of Duties

  • Delegation of duties is permitted except where prohibited by the contract, where the duties involve personal judgment and skill or where the delegation would change the obligee’s obligations. Obligee may sue delegator and delegatee.

V. Anticipatory Repudiation

A. Rule

In cases where the other party’s words, actions, or circumstances make it clear that he is unwilling or unable to perform, the aggrieved party may: (i) sue immediately, (ii) suspend his own performance and wait and see until the due date, (iii) treat the repudiation as an offer to rescind and treat the contract as discharged, or (iv) ignore the repudiation and urge performance.

B. Adequate Written Assurances

If reasonable grounds for insecurity arise regarding the other party’s performance then you may in writing demand adequate assurance of due performance. Until you receive this, you may suspend your own performance. If none is given within a reasonable amount of time (not over 30 days), you may treat the contract as repudiated.

VI. PERFORMANCE

‒        Conditions

  • Types of conditions
    • Express, implied, or constructive
    • Precedent, concurrent, subsequent

‒        Satisfaction of conditions

‒        Defenses to Nonperformance

  • Excuse of conditions
    • Wrongful prevention
    • Voluntary disablement
    • Anticipatory repudiation
    • Waiver
    • Estoppel
  • Discharge of duties
    • Impossibility
      • death or physical incapacity
      •  illegality
      • destruction of subject matter
      • objective standard.
      • Impracticability
        • extreme and unreasonable difficulty that was unanticipated
        • subjective test
        • Frustration of purpose
        • Rescission
        • Novation
        • Accord and satisfaction

VII. BREACH

‒        Is the breach major or minor? Note: If minor, then the non-breaching party is still obligated to perform. His/her performance is not excused.

VI. DAMAGES & REMEDIES

‒        Expectation Damages- benefit of the bargain.

  • If UCC, then consider Cover

‒        Consequential Damages

  • Must be foreseeable, certain, i.e. not speculative, and unavoidable. Look for the words “loss revenues”, “new business” to raise issue.

‒         Incidental Damages

‒        Liquidated damages

  • actual damages difficult to calculate at the time the contract was formed and amount is a reasonable forecast of damages

‒        Punitive damages

‒        Duty to Mitigate

‒        Restitution- Quasi-K

  • Tip: Make sure to raise Quasi-K anytime K formation is questionable.

‒         Specific Performance

  • Tip: Mini-IRAC the elements if it is specifically asked for in the call or fact pattern or if it is jumping off the page as a major issue. If it is not a major issue, then just raise and discuss in one paragraph.

‒        Recission

‒        Reformation

USF Law School: July 2011 California Bar Results

Posted in BarBri, Law, Law School, University of San Francisco on January 9, 2012 by George

The students of graduating class of 2011 from the University of San Francisco Law School recently got their bar results back for the July 2011 California Bar Exam and I am happy to report that 74% of first time students who sat for the examination passed!

Below is a historical perspective of how USF Law Students have fared on the California Bar Exam since 2008:

February 2011
FIRST-TIMERS                    REPEATERS
Took   Pass     %Pass                   Took   Pass     %Pass
18          9            50                        40       24           60

July 2010
FIRST-TIMERS                     REPEATERS
Took   Pass     %Pass                   Took   Pass     %Pass
146      111          76                       25          8         32

February 2010
FIRST-TIMERS                     REPEATERS
Took   Pass     %Pass                   Took   Pass     %Pass
23        13           57                         39       20          51

July 2009
FIRST-TIMERS                     REPEATERS
Took   Pass     %Pass                   Took   Pass     %Pass
165      134         81                          31       10         32

February 2009
FIRST-TIMERS                     REPEATERS
Took   Pass     %Pass                   Took   Pass     %Pass
15          7             47                       34         17         50

July 2008
FIRST-TIMERS                     REPEATERS
Took   Pass     %Pass                   Took   Pass     %Pass
199      174        87                          32       14          44

February 2008
FIRST-TIMERS                     REPEATERS
Took   Pass     %Pass                   Took   Pass     %Pass
14           10          71                        38       19           50

*All statistical data derived from Cal Bar Website

10 Things Shorter than Waiting for CA Bar Results

Posted in BarBri, Law, Law School, University of San Francisco on November 4, 2011 by George

Kim Kardashian’s recent  72 day marriage and the subsequent popular twitter hashtag #ThingsLongerThanKimsMarriage, lead me to think about the relationship between time and bar results, and how absurdly long California law student have to wait. This year, it will take 113 days for someone who took the July 2010 exam to get their results on November 18th! That’s almost 4 months! Thus, without further ado here’s my top 10 #ThingsShorterThanCABarResults.

10. 2011 NBA playoffs – 57 Days.

The playoffs lasted almost half of the time that a law school student waits for their bar results. Interesting to know that the California bar exam results takes twice as long for NBA to determine a league Champion. Now that’s Endurance!

9. The Falklands War – 42 Days.


The Falklands war was fought in 1982 between Argentina and the United Kingdom over the disputed Falkland Islands, South Georgia and the South Sandwich Islands. The Falkland Islands consist of two large and many small islands in the South Atlantic Ocean east of Argentina, and their name and ownership have long been disputed. The war was triggered by the occupation of South Georgia by Argentina on 19 March 1982 followed by the occupation of the Falklands, and ended when Argentina surrendered on 14 June 1982.

8. President William Henry Harrison’s Term in Office – 32 Days.

He only served one month, from March 4 until April 4, 1841. He was the first president to die in office and he would not have gotten his bar results during his time as U.S. president either.

7. Circumnavigating  the Globe – 50 Days.

Bruno Peyron of France circumnavigated the globe from January to March 2005, for a total of  50 days 16 hours 20 minutes 4 seconds. That means he could have circled the globe TWICE in this boat and still not have gotten his results. Absurd.

6. Walking Across the United States – 81 Days.

Mark Baumer was 26 years old when he walked from Tybee Island, GA to the Pacific Ocean in Santa Monica, CA, going through GA, AL, MS, LA, TX, NM, AZ, and CA. He left on May 10, 2010 and finished eighty-one days later on July 29, 2010.  That would be quite the post bar vacation!

5. Flying to the Moon and Back to Earth – 5 Days.

The Apollo 13 astronauts were launched April 11th 1970 at 2:13 pm from the Kennedy Space Centre. They flew around the Moon and landed in the Pacific Ocean April 17th 1:07:41 pm. It took them 5 days, 22 hours, 54 minutes to fly to the Moon and back to the Earth. That means someone could theoretically travel to the moon and back over 17 times while they wait for their bar results.

4. Time to Build a Rolls Royce – 105 Days.

Rolls Royce Motor Cars are manufactured via a “bespoke” process on a mechanized and computerized assembly line, but most of this process of putting the components together are done by hand. A RR engine is put together usually by one person and by hand. It takes approximately three and a half months from order and deposit to delivery depending on production priorities.

3. Time it took Google+ to Reach 20 Million Users – 24 Days.

Whilst there’s little doubt that Google+’s growth is impressive, it’s probably also worth noting that it did have a considerable head-start on both Twitter and Facebook, which were both starting from scratch. Also, imagine how many users it will gain while someone will wait for their bar results in 113 days!

2. The Number of  Days in the Movie Groundhog Day – 42 Days.

I love the film Groundhog Day and there are widely conflicting reports of how long Phil Conners was trapped in the time loop. However, in the film there are 42 accountable days in the film. I guess if you were stuck in that time warp, you still wouldn’t know whether you passed the California bar.

1. Kim Kardashian’s Marriage to Kris Humphries – 72 Days.

The marriage that inspired this post also is no. 1 on this list. Who knew you could get married and divorce all while you wait for your bar exam results to come back!

This Form is Your Form

Posted in BarBri, Law, Video on July 25, 2011 by George

Bar Turtle

Posted in BarBri, Law, Law School on July 20, 2011 by George

My favorite animal is the turtle. The reason is that in order for the turtle to move, it has to stick its neck out. There are going to be times in your life when you’re going to have to stick your neck out. There will be challenges and instead of hiding in a shell, you have to go out and meet them.

I will be a turtle sticking my neck out during the bar exam.

How to Celebrate Finishing the Bar Exam

Posted in BarBri, Law on July 7, 2011 by George

The Good, The Bad, and the BarBri

Posted in BarBri, Law, Pictures on July 6, 2011 by George

Getting your post-graduate education force fed to you in thirty-five 4-hour long classes is bad enough, but having to endure a whole new crop of students really pours salt in the wound. Though I’m sure every law school has a group of insufferable ego monsters, Barbri found a way to unearth some real county-fair blue ribbon winners in my class. They are often hard to detect until class begins and then once it does you are perilously trapped in their surrounds having to endure their awfulness.

For those of you who have any idea what kind of person I am talking about… I know, and I am sorry – it is a nessesary evil to this profession. But for those of you who may find yourself one day in a Barbri class somewhere you can better know, spot, and avoid these types with these easy to follow illustrations: