_____Bar Rules Most Tested

Introduction

  • Overview of the California Bar Exam essay rules as shared by Ed from www.noblebarprep.com
  • Reference to the Amazon number one bestseller "California Bar Exam Essay Rules '20 21"
  • Introduction of an associated app for studying these rules

Conflict of Interest

  • Definition: A conflict of interest exists when a lawyer's representation is adverse to another client or there is significant risk that the representation will be materially limited due to personal interests or responsibilities to other clients or third parties.

Duty of Competence

  • Definition: A lawyer owes a duty of competence requiring possession of legal knowledge, skills, preparation, and thoroughness necessary to effectively represent a client.

Community Property Presumption

  • California Law: California is a community property state.
    • Community Property: All property acquired during marriage is deemed community property, including earnings earned during marriage.
    • Separate Property: Property acquired prior to marriage or after separation, as well as gifts, devices, or bequests, and property acquired with separate funds or profits from separate property.
    • Determining Character of Assets: Courts trace the source of funding for any asset and look for transmutation that may have converted its status.
    • Division at Divorce: At divorce, community property is divided equally, while separate property remains with the respective spouse.

Relevance in Evidence

  • General Requirement: Evidence must be both logically and legally relevant for admittance.
  • Logical Relevance: Evidence may be deemed admissible if it has any tendency to make a fact of consequence more or less probable.
    • In California, the fact in question must also be in dispute.
  • Legal Relevance: Logical evidence is legally relevant unless its probative value is substantially outweighed by dangers such as unfair prejudice, confusion of the issues, misleading the jury, undue delay, or being unnecessarily cumulative.

Applicable Law for Contracts

  • Relevant Article: Article two of the Uniform Commercial Code (UCC) covers all contracts for the sale of goods or movable items.
  • Common Law Governance: The common law generally governs unless a mixed contract exists, using the predominant purpose test for the applicable law.

Hearsay Rule

  • Definition of Hearsay: Hearsay is any out-of-court statement offered to prove the truth of the matter asserted.

Duty of Confidentiality

  • General Rule: A lawyer has a duty to keep all information relating to client representation confidential under both California and ABA model rules.
  • Disclosures Permitted Under ABA Rules: 1) If the client consents
    2) If ordered by law
    3) If needed to defend against a malpractice suit
    4) To prevent death or substantial bodily harm
    5) To prevent crime or fraud resulting in substantial financial loss.
  • California Specifics: While California allows disclosure to prevent death or serious bodily harm, it does not permit disclosures for fraud. Lawyers must counsel clients to cease illegal acts and inform authorities if they do not.

Statement by a Party Opponent

  • Definition: A statement made by a party opponent is not considered hearsay and is admissible as an exception to the hearsay rule in California.

Transmutations

  • Definition of Transmutation: An agreement between spouses to change the character of an asset.
    • Requirements for Validity: No consideration is required but must be: 1) in writing
      2) signed and consented to by adversely affected spouse
      3) clearly express a change in ownership.
  • Gifts of Insubstantial Value: Accepted; prior agreements before 1985 could be oral.

Negligence

  • Cause of Action for Negligence Components: Requires duty, breach, causation, and damages.
  • Duty: Two approaches:
    • Cardozo (Majority) Approach: Duty of care owed to all foreseeable plaintiffs in the zone of danger.
    • Andrews (Minority) Approach: Duty owed to all foreseeable plaintiffs.
  • Breach: Occurs when applicable standard of care is not met.
  • Causation: Must show that the defendant's breach was both the actual and proximate cause of injury.
    • Actual Cause: "But for" cause, meaning but for defendant's actions, the injury would not have happened.
    • Proximate Cause: Foreseeability of the injury as a result of the breach.
    • Eggshell Defense: If applicable, the plaintiff's pre-existing condition can be considered.
  • Damages Required: Personal injury or property damage must have occurred; purely economic damages are generally non-recoverable.

Valid Contract

  • Requirements for a Valid Contract: Must contain an offer, acceptance, consideration, and no defenses to formation.
  • Offer: A manifestation of intent with clear/definite terms communicated to an identified offeree.
  • Acceptance: An agreement to the offer's terms; for bilateral contracts, it is indicated by performance; in unilateral contracts, performance makes the offer irrevocable.
  • Consideration: A bargain for an exchange of something with legal value; adequacy usually not questioned, even a peppercorn suffices.

Statute of Frauds

  • Non-Enforceability of Contracts: Certain contracts are unenforceable unless in writing signed by the party to be charged:
    • Marriage-related contracts
    • Contracts incapable of performance within a year
    • Land sale contracts/leases over one year
    • Executor debt contracts
    • Contracts over $500 in value
    • Suretyship contracts.

Standing (Fourth Amendment)

  • Definition of Standing: A party must have a reasonable expectation of privacy regarding the item and place searched for standing.
  • Constitutional Standing Requirements: Must show 1) actual injury suffered 2) causation by defendant 3) ability to redress the injury in court.

Available Legal Remedies

  • Contractual Damages: Includes expectation damages, reliance, consequential, incidental damages, and restitution.
  • Nominal Damages: May be awarded but not punitive damages in contract law.
  • Specific Performance: Awarded if:
    1) Valid contract with clear terms
    2) No adequate remedy at law
    3) Mutuality of performance
    4) Court can feasibly enforce
    5) No valid defenses.

Omitted Child

  • Definition of Omitted Child: A child born or known by the testator before the creation of a testamentary instrument but not included is considered an omitted child.
    • Legal Implications: Presumed omitted accidentally and entitled to an intestate share unless intentionally included in the will or supported by transfers outside the will or if all or substantially all estate goes to the parent of the omitted child.

Subject Matter Jurisdiction (SMJ)

  • General Overview: Federal courts have limited jurisdiction and cannot hear cases unless they have SMJ.
  • Types of SMJ: 1) Federal question jurisdiction exists if a well-pleaded complaint alleges a claim under federal law, U.S. Constitution, or treaties. Raising a federal defense is insufficient.
    • 2) Diversity jurisdiction occurs when all plaintiffs are diverse from all defendants, and the amount in controversy exceeds $75,000.

Lay Witness Testimony and Opinions

  • Definition: A lay witness is a non-expert person called to testify who must have personal knowledge, take an oath, and have the capacity to perceive, recall, and communicate.
  • California Requirement: Witness must understand the legal duty to tell the truth.

Present Sense Impression

  • Definition: A statement that describes an event or condition made while or immediately after perceiving it, admissible in California whether or not the declarant is available.

Laches

  • Definition: A defense that bars recovery if there is unreasonable delay in bringing an action after discovering the injury, and the defendant was prejudiced by this delay.

Unclean Hands

  • Definition: A plaintiff is barred from recovery if they are guilty of unethical or improper conduct related to the lawsuit's subject.

Duty of Candor to the Court

  • General Rule: A lawyer must not engage in dishonest conduct. This includes:
    • Knowledge of false statements, failing to correct them,
    • Not disclosing controlling legal authority known to be adverse,
    • Offering evidence known to be false.

Expectation Damages

  • Definition: Damages that arise directly from the breach of contract, putting the non-breaching party in the position they would have been in if performed.
  • Requirements for Expectation Damages:
    1) Caused by the defendant
    2) Must be certain, foreseeable, and unavoidable.

Mitigation of Damages

  • General Rule: A plaintiff cannot recover damages that could have been avoided. Reasonable steps must be taken to mitigate losses.
  • Exceptions: Not required if it involves undue risk, burden, or humiliation.

Assumption of Risk

  • Definition: A defense in negligence; a party must voluntarily and knowingly assume the risk.

Duty of Care and Business Judgment Rule

  • General Requirements for Directors: 1) Duty to act reasonably and responsibly in relation to the corporation
    • 2) Discharge duties in good faith and in the corporation's best interest.
  • Protection from Liability: If directors meet these requirements, they are not liable for adversely affecting decisions made in that capacity.

Property Creditors and Debts

  • General Rule: Creditors may seek community property to satisfy debts incurred before and during marriage.
  • Non-Debtor Spouse's Earnings: Protected if the debt is incurred before marriage and the earnings are held in a separate account.

Anticipatory Repudiation and Adequate Assurances

  • Definition: Occurs when a party indicates they are unwilling or unable to perform a contract.
  • Options for Aggrieved Party: 1) Treat as breach and sue immediately
    2) Ignore repudiation and urge performance
    3) Ignore but suspend performance to prevent increased damages.
  • Retraction Possibility: Anticipatory repudiation can be retracted unless the aggrieved party has canceled the contract, materially changed their position, or indicated the repudiation is final.

Authentication

  • Requirement: A party must prove evidence is what it purports to be through witness testimony or maintaining a chain of custody.

Best Evidence Rule

  • General Rule: A party must provide the original document when testifying to its contents, though a photocopy may suffice.
  • California Specifics: Handwritten documents may be admissible.

Excited Utterance

  • Definition: In California, a spontaneous statement related to a startling event remains admissible whether the declarant can testify or not.

State of Mind Exception

  • Definition: A statement about the declarant's existing state of mind, emotional, sensory, or physical condition, is an exception to hearsay and admissible irrespective of the witness's availability.

Pure Comparative Negligence

  • Definition: The plaintiff's negligence does not bar recovery but will reduce the award based on their percentage of fault.

Partial Comparative Negligence

  • Definition: If a plaintiff contributes 50% or less to their injury, damages are reduced by the percentage of their negligence; however, those contributing over 51% recover nothing.

Contributory Negligence

  • Definition: This is a complete bar to recovery if the plaintiff contributed to their harm due to lack of reasonable care.

Will Execution Requirements

  • Formal Will Requirements: To be valid, a will must:
    1) Be made by a testator with capacity (18 years old and sound mind)
    2) Show present testamentary intent
    3) Be signed by the testator
    4) Be in writing
    5) Be signed in the presence of two witnesses who understand they are witnessing a will.
  • Holographic Will: A valid holographic will may be written entirely in the testator's handwriting and must adhere to:
    1) Testator鈥檚 intent to create a will
    2) Have capacity of 18 years and sound mind
    3) Handwritten material provisions
    4) Signature needed; no witness requirements.

Duty of Loyalty (Fiduciary Duty)

  • Definition for Directors: Directors owe a fiduciary duty of loyalty to act in the best interest of the corporation and without personal conflict.

Personal Jurisdiction (Traditional Basis)

  • Types of Traditional Bases: Domicile, consent, presence in the forum state during service, and waiver.

End of Economic Marital Community

  • Conditions: Occurs upon divorce, death of a spouse, or separation with intent to end the marriage.

Personal Injury Awards and Settlements

  • General Rule: If an action arose during marriage, the associated awards/settlements are community property. At divorce, they are awarded entirely to the injured spouse unless commingled or cause hardship to the other spouse.

Fifth Amendment Privilege Against Self-Incrimination

  • General Rule: Individuals have the right not to self-incriminate and must be given Miranda warnings during custodial interrogation.

Miranda Warnings

  • Requirements: Prior to custodial interrogation, a suspect must be informed:
    1) Right to remain silent
    2) Right to an attorney
    3) Anything said can be used against them in court.

Exclusionary Rule

  • Definition: Evidence obtained in violation of constitutional rights (Fourth, Fifth, or Sixth Amendments) is inadmissible in criminal cases.
  • Fruit of the Poisonous Tree Doctrine: All derivative evidence is inadmissible with exceptions:
    1) Independent source
    2) Inevitable discovery
    3) Attenuation
    4) Good faith reliance on defective warrants.

Statements Offered for Another Purpose

  • Definition: If an out-of-court statement serves a purpose other than proving the truth of the matter asserted, it is non-hearsay and admissible.
  • Mopee Cal Statement Types: Includes independent significance statements, prior inconsistent statements, or expressions of the speaker's state of mind.

Quasi Community Property (QCP)

  • Definition: Property acquired in another state that would be community property in California retains separate property nature until divorce, death, or dissolution, then treated as community property.

Equal Rights of Spouses

  • General Rule: Spouses have equal management rights over community property and may sell or encumber without consent unless specific circumstances exist.

Equal Protection Analysis

  • Equal Protection Clause: Prohibits governmental discrimination under the Fourteenth and Fifth Amendments.
    • Discriminatory Class Identification: Exists if the law is discriminatory on its face, applied discriminatively, or has discriminatory motives.
  • Standard of Review Analysis:
    • Strict Scrutiny: Fundamental rights or suspect classes (such as race) must meet a compelling government interest.
    • Intermediate Scrutiny: For quasi-suspect classes like gender, showing substantial relation to an important government interest is required.
    • Rational Basis: For most classifications (age, disability, etc.