General Recommendations (for all test takers) · Carefully read the question and the “call of the question” (what the question asks you to do.) · Pay attention to the facts presented without assuming additional facts. · Include more than a mere conclusion when asked to explain the answer fully. · Respond to the “call of the question” (what the question asks you to do) and stay on track. · Organize your responses, and answer subparts, if any, in the order asked. · Strive for clarity and legibility in writing. · Avoid lengthy or unnecessary discussion of general or extraneous matters. Question 1 - Business Associations 1(b) Ashley's liabilities to Office Store – The most common error on this subsection was the lack of discussion on Cole's authority, either actual or apparent, to purchase furniture on behalf of the partnership. 1(c) Ashley's liability to Client – A mistake in this subsection occurred when some examinees applied the rules for other kinds of partnerships when discussing the liabilities that general partners face with regard to the torts and malpractice committed by other general partners. 1(d) Ashley's liability to Owner – A common mistake on this subsection was just answering that Ashley was not liable as a limited partner and ending the answer at that with no discussion of the circumstances present where individual liability could attach to the limited partner. 2 Validity of Security Agreement – A common error of those who did not fully answer the question was in failing to recognize that the partner was attempting to give a security interest in specific partnership property to secure a personal loan and in failing to discuss the nature of a partner‟s rights in specific partnership property. Question 2 - Business Associations An area of missed opportunity for part one of this question was in not carefully reading the question to note that it was a director‟s meeting that was called and discussing the requirements for giving notice of a director‟ meeting and for the board to take proper action on the proposed sale of assets and the proposed conversion. Many examinees did not fully answer each of the questions presented. Likewise in part two the rights of dissenting shareholders were sometimes identified to exist but not fully explained. In part three, most examinees discussed “double” federal taxation on corporate income but many did not mention the potential impact of state franchise taxes or other fees charged by the state. In summary, most examinees did fairly well; however, reading the question carefully, understanding and answering the question(s) asked, and then explaining the answer fully (to the extent time permits) remain very important. Question 3 - UCC Most examinees answered that if the maker of the check‟s negligence contributed to the alteration it might cause the maker to be liable for the full amount of the altered check but many failed to either recognize or discuss the liability of the maker in the event no negligence was found, i.e. the alteration would discharge the maker and that the bank would be able to enforce the check according to its original terms ($5.00). Many examinees did not recognize and discuss the transfer and presentment warranty issues. Numerous answers discussed holder in due course elements as a basis for erroneously concluding that HDC status extinguished any warranty liability. Almost none of the answers that did discuss HDC status recognized that it would entitle the party to enforce the check according to its original terms. Question 4 - UCC Most examinees understood that the Bank had a security interest in the four remaining computers and many recognized this to be a purchase money security interest. However, many did not discuss the sufficiency of the description of the collateral in the Bank‟s security agreement and financing statement. While the majority of the answers recognized that Manufacturer had a purchase money security interest in the two remaining computers purchased from Manufacturer, scores of answers were not aware of Manufacturer‟s obligation to notify the Bank. A majority of the examinees recognized the buyer in the ordinary course of business status as applied to buyers Iona and Harry but a substantial number incorrectly assumed that it only applied to Harry because he did not have knowledge of the Bank‟s security interest whereas Iona did. Some examinees confused the buyer in the ordinary course of business status with a BFP. Many did not distinguish between the computers (inventory) bought by Harry and the credit card authenticating machine (equipment). Question 5 – Consumer Law A substantial number of examinees had difficulty with the following: Causation and/or its significance as a defense to the claim. Of the examinees who did recognize its significance under the facts of the question, many did not explain its application. For example, many did not address the fact that the defendants‟ conduct need not be the “sole” producing cause of damages, but merely “a” producing cause that in the natural sequence of circumstances contributed to or factual caused plaintiff‟s damages. Whether privity of contract is not necessary to bring a claim under the DTPA. Lack of privity between Safe and Paul should have caused examinees to explain the issue. Only a limited number of examinees displayed knowledge of the benefit provided to consumers from not having to prove privity. The type or scope of damages recoverable under the DTPA and/or the significance of knowing and/or intentional conduct and its effect on damages. Warranties as they relate to the DTPA. For example, a relatively small number of examinees even mentioned that the DTPA does not create any warranties. Also, the best exams addressed implied as well as express warranties and detailed the applicable implied warranties. The agency relationship between Jones and Safe and the significance that it had on Paul‟s claim against Safe. Also, many examinees spent time describing consumer status under the DTPA when the question stated that examinees could assume that Paul was a consumer. Question 6 – Trusts and guardianship Among the papers scoring in the lower half on this question, the following three issues seemed to have caused the most difficulty for those examinees: A failure to fully explain the Rule Against Perpetuities and/or a lack of correct application to the facts. A failure to spot and fully explain that the Texas Property Code empowers the court to reform a trust in order to effectuate the settlor‟s purpose. Though the trust would be challenged by the RAP, the court would have the ability to promote Tom‟s purpose for the trust by the doctrine of reformation. A failure to fully explain the classification of each of the funds as well as a failure to explain why those designations were made. The explanation became important especially for the more complex funding issues. Question 7 – comments unavailable Question 8 - Wills and Administration Anti-Lapse Statute - Most examinees recognized that the anti-lapse statute would apply but did not correctly cite the statute itself. A common mistake by examinees in defining the anti-lapse statute was to state that the gift was saved because the "children" were descendants of the testator's parents. The rule states that the "beneficiary" must be a descendant of the testator's parents and leave children surviving. A significant number of examinees incorrectly concluded that because the beneficiary died "before" the will was executed, the "will" was void and the property would pass intestate. Slayer's Statute/Constructive Trust - Most examinees demonstrated some knowledge of the Slayer's Statute that would prevent Rick from benefiting from killing his brother Walter, but many examinees failed to apply the rule correctly in order to arrive at the correct distribution of Harry's estate. Many of the examinees incorrectly concluded that since Rick killed "Walter" and not Harry, the testator, he should only be prevented from benefiting from Walter's share of the estate, thus allowing him to still receive one-third of the estate but none of the share that would have gone to Walter. Question 9 – Real Property In the less successful answers to this question examinees demonstrated the most difficulty with the following issues: Part 1. · The effect of the Railroad Commission‟s approval of the subdivision plat. · Whether the dominant estate owner is liable for the reasonable and necessary non- negligent use of the surface estate. Part 2 · Whether Steve had a right to change the locks and deny access. · Whether Tammy was constructively evicted (even though the complained-of actions did not materially deprive Tammy of use of her property and Steve or his agents did not cause the complained-of actions). Part 3. · Whether a landlord may seek a distress warrant or forcible detainer action in a justice of the peace court. · Whether Steve had a statutory lien in the building materials. Question 10 – Real Property In the lower range of answers, the issues or problems that seemed to cause examinees the most difficulty on this question included the following: Part 1 · The purpose, use, and proper handling of security deposits. · The Statute of Frauds and its application. Part 2 · Whether Sid had any title to convey by his quitclaim deed. · Failing to recognize any distinction between Amy‟s $50 payment for the purchase of Redacre and her $30,000 payment for Blueacre. Part 3. · An incorrect belief that the use restriction would prohibit Amy‟s sale to Karl. · Arguing that the use restriction was unenforceable because of lack of privity. Question 11 – Family Law As to part 1, in many of the less successful answers to this question, a number of examinees did not seem to recognize that the question sought factors for imposing spousal maintenance. Many seemed to focus on emotional aspects rather than spotting the issue and giving a proper response based upon applicable law. As to the second part, many did not narrow their response to the answer called for, but instead gave broad statements of child support law and general discussion. Question 12 – Family Law In the less successful answers to this question examinees demonstrated the most difficulty with the following issues: Analysis and explanation of Joe‟s defenses Remedies to secure the return of the money, house, and car The court‟s authority to divide property in a just and right manner The nature of spouses‟ ownership interest in community property The classification of income earned during the marriage as community or separate The many factors on which a court‟s unequal division of assets may be based The effect of a finding that gifts were a fraud on the spouse The joint and several liability judgment against Missy Multi-State Performance Test (MPT) The test included a memo assignment from a senior assistant state‟s attorney requesting that examinee write a brief to the judge contesting a Motion to Quash, a memo regarding the guidelines for persuasive briefs, pending criminal investigation file notes, notes from a police interview of a now deceased witness, the Motion to Quash, a copy of the Agreement to mediate, the applicable portions of the Franklin Uniform Mediation Act (FUMA), and two cases on the subject. The assigning memorandum instructed the examinee to draft a brief in opposition to the Motion to Quash, following the guidelines provided. The assignment memo from a senior state‟s attorney asked the examinee to write a brief responding to the mediator‟s Motion to Quash the subpoena requiring her to testify. The testimony sought from the mediator was from a statement made by one party during mediation of a prior civil dispute in dissolving a partnership; the other party at the mediation, the only other witness to the statement at mediation other than the mediator, had died. The guideline memo concerning the brief required that the brief include a Statement of Facts, provide carefully crafted subject headings and apply the rule of law to the facts. It further instructed that a bare legal or factual conclusion in the heading was not sufficient. Finally, examinees were advised that their arguments should identify and analyze the applicable legal authority and persuasively argue how the facts support their position. Some examinees failed to include a Statement of Facts or subject headings. The basis for advancing the state‟s argument was Section 6(b), which set out the specific factors required for proving that the exception to the privilege should apply. Section 6(b) set forth the three factors as follows: (1) that the evidence was not otherwise available, (2) that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and (3) that the mediation communication is sought to be offered in a felony or misdemeanor proceeding. While many examinees identified the three factors, many did not sufficiently address or fully discuss factors (1) and (2) in their discussion. Some examinees focused on other exceptions that did not apply. For example, Section 6(a)(4) addressed ongoing criminal activity. Even though the facts stated that the toxicity level of the river had returned to normal and there was no evidence of further dumping or ongoing criminal activity, many examinees focused on this section to argue that the privilege did not exist due to the perceived ongoing criminal activity. That conclusion, however, required the examinee to add facts that were not given in the fact scenario or make inferences that were not supported by the evidence. This resulted in an incorrect application of the law. While many of these examinees also appropriately discussed Section 6(b), they may have, as a result, had less time to thoroughly address the central relevant issues due to a misplaced emphasis or discussion of Section 6(a). Many of the examinees identified that an in camera hearing on the motion to quash was available, but did not note that the hearing was mandatory. Many others failed to address the in camera procedural aspect. The discussion of the “availability” factor surrounded the fact that Long was deceased and Hernandez was the only witness who could testify to what was said. Answers should have noted the effect of Long‟s death in the legal analysis and discussed the fact there was no other evidence available to prove who polluted the river. Many examinees mentioned Long‟s death in passing as part of the factual narrative but did not apply that fact to the law or set forth the effect Long‟s death – and resulting unavailability to testify -- had on the argument for compelling Hernandez‟ testimony. The discussion on the “substantially outweigh” factor should have revolved around the competing arguments for „maintaining confidentiality of a mediation‟ vs. arguments that the „public policy/health/safety issues‟ should prevail in the circumstances of this case. While many examinees identified this factor, much of the analysis of this factor was often sparse and conclusory. With respect to this factor, the examinee was expected to identify the fact that the Retail case, cited by the mediator, supported the mediator‟s position, but also to distinguish it from the facts in Butler by observing that it was a civil case rather than a criminal case, that it arose in a labor context, and/or that that it had no public health issue. The Butler case was a case of first impression in Franklin. The library of cases included Rinaker, a case from the Columbia jurisdiction that has a virtually identical statute. Many examinees sought to apply Rinaker to the current situation. Many examinees did not specifically observe that this was a case of first impression in Franklin or that Rinaker was from another jurisdiction. Rinaker had the additional requirement that the court must first determine whether the mediator was competent to testify and whether the evidence was probative and needed. Many examinees cited Rinaker for the requirement of an in camera inspection, but did not identify the additional factors set forth in Rinaker. Many examinees who did identify the “competent” and “probative” elements of Rinaker often only stated the elements but failed to provide any factual application for them. Criminal Procedure and Evidence 1. While many examinees knew that a writ of habeas corpus is the remedy for someone restrained of his liberty, fewer knew that the remedy sought by a writ is to produce the detainee and show why he is in custody. Most examinees did not know that the writ is directed to the one having custody, stating instead that the writ is directed to a court. 2. Most examinees knew that the defendant should file a motion for discovery and that the trial court should grant the motion. Only a few examinees noted that production is specifically required by statute. 3. Many examinees did not respond to the call of the question, which asked what warnings the defendant‟s written statement must contain. Other examinees simply answered that the statement must contain "Miranda warnings." Some examinees correctly listed two or three of the required warnings. These warnings are that the defendant has the right to remain silent, that any statement can be used against him, that he has the right to have a lawyer present during questioning, that a lawyer can be appointed if he cannot afford one, and that he can terminate the interview at any time. 4. Few examinees correctly responded that the defendant‟s written statement must further show that he knowingly, intelligently, and voluntarily waived his rights. As with question 3, many examinees did not respond to the call of the question. 5. Most examinees correctly listed two or three of the allegations required to be stated in the motion for continuance. Specifically, the defendant‟s motion for continuance must allege the witness‟ name and address, diligence in trying to locate the witness, the facts to be proven, the witness‟ absence is not due to the defendant, the continuance is not sought for purposes of delay, and there is no expectation that delay to another day of the term will help. 6. A complete answer to this question must state that the trial court should grant the prosecutor‟s request for expert witnesses and should deny the request for all other witnesses. Many examinees responded either that the trial court should grant or should deny the prosecutor‟s request for defense witnesses and did not differentiate between expert and other witnesses. Very few examinees stated that there is virtually no reciprocal discovery in Texas criminal cases. 7. Nearly all examinees knew that the defendant decides what plea to enter. Most examinees correctly listed two or three admonishments that the court must give before accepting a felony plea of guilty. The required admonishments are the range of punishment, the district attorney‟s recommendation is not binding, no appeal may be had if the recommendation is not exceeded, non-citizens may be subject to deportation, the defendant must be competent, and the plea must be free and voluntary. 8. Many examinees knew that the records could be introduced through an affidavit from the custodian stating that the records were created by a person with knowledge or from information transmitted by a person with first-hand knowledge, that the records were made in the regular course of business, that it was regular practice to keep the records, and that the records were made at or near the time of the events. 9. Nearly all examinees knew that each side has an unlimited number of challenges for cause. However, most examinees failed to state that a challenge for cause is an objection to a particular veniremember alleging some fact that would render him incapable or unfit to serve. Instead, most examinees listed facts that would constitute disqualifications. 10. Most examinees knew that a peremptory challenge is a challenge to a juror without assigning any reason. Many examinees knew that each side is allotted ten peremptory challenges in a non- capital, single-defendant felony case. 11. The majority of examinees knew that the defendant can challenge the prosecutor‟s action with a Batson challenge. Many examinees also correctly responded that the trial court would call a new array or disallow the strikes if the prosecutor did not show that the strikes were racially neutral. A few examinees stated that the defendant should request a hearing and that race-based strikes are disallowed. 12. Most examinees knew that the defendant should make a hearsay objection and many knew that the trial court would sustain the objection. A few examinees recognized that the testimony constituted hearsay because it was a statement by someone other than the declarant offered to prove the truth of the matter asserted. A number of examinees erroneously stated that the testimony would be admissible as a statement by a party-opponent. 13. Most examinees knew that the trial court should overrule the objection. Many knew that there is no physician-patient privilege in Texas criminal cases, although many did not and instead discussed why the defendant‟s statement would fall outside such a privilege. 14. Many examinees knew that the defendant must make an offer of proof to preserve error in the exclusion of the expert‟s opinion. However, many other examinees erroneously stated that nothing needed to be done because the sustained objection on the record would be sufficient. Almost no one stated that the defendant must make the offer of proof as soon as possible but before the charge is read to the jury. 15. Almost all examinees correctly responded that the defendant can impeach the credibility of his own witness. Many knew that the defendant would do so using the witness‟ prior inconsistent statement. 16. Most examinees knew that the trial court should sustain the defendant‟s objection, but many examinees failed to recognize that the objection would be to relevancy. Many examinees knew that the evidence was inadmissible because it was not a final conviction or because it was extraneous. 17. While a number of examinees stated that the defendant must request an instruction to disregard and move for a mistrial, many examinees‟ answers included only one or the other. Many examinees incorrectly stated that the defendant did not have to do anything because his objection was sustained and he would have nothing to appeal. Only a few examinees recognized that the defendant would have to pursue an adverse ruling. 18. Most examinees knew that the defendant‟s 1980 felony conviction was inadmissible based on remoteness because it was more than ten year old. 19. Most examinees knew that the defendant would be entitled to a jury instruction that the jury may not draw any inference from the defendant‟s invocation of his privilege against self- incrimination. 20. While many examinees knew that a defendant could obtain the jurors‟ information, fewer knew that the correct procedure would be a motion for disclosure. Even fewer examinees noted that jurors‟ personal information is confidential without a court order and that the attorney or the media could get the information for good cause. Many examinees erroneously stated that the only procedure available would be a jury poll immediately after the verdict. Civil Procedure and Evidence 1. Most examinees knew the proper pleading was a special appearance challenging the court‟s jurisdiction, and that the special appearance must be filed first. 2. Most examinees recognized the International Shoe test of systematic contacts and the assumption of jurisdiction not offending traditional notions of fair play. 3. Most examinees recognized the requirements for a motion to transfer venue and when the pleading should be filed. Some examinees confused this pleading with a motion to change venue based on prejudice in the community. 4. Most examinees understood that venue would be proper in Nueces County because it was where a substantial part of the action arose. 5. While most examinees ruled correctly that the motion to transfer venue should be denied, many did not know what types of evidence may be offered to support a motion to transfer venue. 6. Many examinees did not know that a motion to non-suit and dismiss without prejudice was the proper pleading. 7. Nearly all examinees could identify five items within the scope of discovery. 8. Most examinees understood the requirements for withholding privileged material. Some examinees confused this concept with the concept of consulting versus testifying experts. 9. Most examinees knew the requirements when a further description of withheld privileged material is requested. Few examinees knew the specific deadline for responding to this request. 10. Nearly all examinees knew that Rubio‟s deposition may be taken in his county of residence. Most examinees knew that Rubio‟s deposition could be taken in a county where subpoenaed. 11. Nearly all examinees knew when an attorney could instruct a witness not to answer a deposition question. However, few examinees knew the limited situations in which a witness may confer with his attorney during a deposition. 12. Most examinees knew that the proper pleadings were a motion to sever or a motion for separate trials. Many examinees did not know the reasons why the trial court should deny a motion to sever. 13. Most examinees recognized that a Daubert motion was the proper pleading to contest whether an expert should testify, and that a Daubert motion challenges an expert‟s qualifications. 14. Most examinees knew the requirements under the rules of evidence for admitting expert testimony. 15. Many examinees were aware that the legislative continuance was no longer mandatory when the attorney/legislator was hired close to trial. Few examinees knew either what the party hiring the legislator must show to obtain the continuance or the time-frame when a legislative continuance becomes discretionary. Other examinees simply talked about the rules for a continuance based on a new material witness. 16. Nearly all examinees recognized the invocation of the “rule”, and the instructions to be given by the trial court. 17. Most examinees knew that the proper pleading was to file a motion in limine and most knew that the party must object again at trial to preserve error. 18. While most examinees understood that the witness could be impeached with her prior testimony, many examinees did not know the specific steps under rule 613 for impeaching the witness with her prior statement. 19. Some examinees confused motions for an instructed verdict or for a directed verdict with motions for summary judgments. 20. Most examinees knew when and how to present objections to the jury charge.
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