INTRODUCTION

Defendant John Davis respectfully moves the Court to exclude the handwritten transcript of text messages prepared by Officer Robert Powers and offered by the State to prove the content of communications between Mr. Davis and Sally Cameron. The State seeks to introduce the transcript to prove that Mr. Davis and Ms. Cameron arranged the sale of cocaine—the very heart of the conspiracy charge. Columbia Rule of Evidence 1002, the original documents rule, requires the State to produce the original text messages, or a true counterpart, to prove their content. Because the State cannot produce the originals and because no exception under Columbia Rule of Evidence 1004 saves the transcript, the transcript must be excluded.

ARGUMENT

I. Rule 1002 Bars Use of the Handwritten Transcript Because the State Offers It to Prove the Content of the Text Messages.

Columbia Rule of Evidence 1002 provides that "[a]n original writing, recording, or photograph is required in order to prove its content, unless these rules provide otherwise." The text messages are "recordings" or "writings" within Rule 1001 because they consist of "letters, words, numbers, or their equivalent" set down or recorded electronically.

The State plainly offers the transcript "to prove its content." The State's stated theory is that the texts "show that Ms. Cameron routinely connected Mr. Davis with individuals wishing to purchase cocaine, and that Mr. Davis then met with the buyers." Conviction of conspiracy requires proof of an agreement to commit the underlying offense. The transcript is being used to establish that very agreement—the words spoken between the alleged co-conspirators. The exact wording matters: every reference to "C," "blow," "snow," "stuff," and "shipment" is essential to the State's argument that the messages discuss cocaine. This is precisely the situation Rule 1002 governs.

The Columbia Supreme Court drew this line clearly in State of Columbia v. Susan Jones (2016). There, a detective's notes and testimony about emails between Jones and her co-conspirator were admitted "solely to establish the fact that Jones was in communication with the co-conspirator, and not to prove the content of the emails." On that record the Court affirmed because Rule 1002 was not implicated. The Court emphasized, however, that "if testimony attempts to prove the contents of the document, such testimony is not admissible unless the original document is provided or an acceptable explanation for its absence is given."

This case is the opposite of Jones. The State is not offering the transcript merely to show that Mr. Davis and Ms. Cameron communicated; it is offering it to prove what they said and that what they said was an agreement to distribute cocaine. Rule 1002 squarely applies, and the original messages are required.

II. Officer Powers's Handwritten Transcript Is Not an "Original" Under Rule 1001(d).

Rule 1001(d) defines an "original" of a writing or recording as the writing or recording itself, or any counterpart "intended to have the same effect by the person who executed or issued it." For electronically stored information, an "original" includes "any printout—or other output readable by sight—if it accurately reflects the information."

A handwritten transcript prepared days later by a third-party officer is none of these things. It is not the text messages themselves; it is not a counterpart issued by Mr. Davis or Ms. Cameron; and it is not a printout or machine-generated output of the electronic data. It is, at best, a witness's recollection committed to paper. Officer Powers conceded that he made no electronic copy and printed nothing—he wrote the messages by hand "over the course of two days, in between a couple of witness interviews and some other things that were happening." A handwritten reconstruction is the very kind of secondary, error-prone evidence that Rule 1002 was designed to exclude. As the Jones court observed, "[t]he exact wording of a document is often of great importance, and a slight variation in wording can sometimes result in a substantial change in meaning."

III. No Exception Under Rule 1004 Permits Admission of the Transcript.

Rule 1004 excuses production of an original only where: (a) all originals are lost or destroyed and not by the proponent acting in bad faith; (b) the original cannot be obtained by judicial process; or (d) the writing is not closely related to a controlling issue. None of these exceptions saves the State's transcript.

A. The Originals Are Unavailable, but the Loss Is Attributable to the State.

The State will argue under Rule 1004(a) that the messages are lost because Ms. Cameron's phone was set to auto-delete after two weeks, the cell phone provider no longer had the data, and Mr. Davis destroyed his own phone before arrest. But the controlling fact is that Ms. Cameron's phone was in police custody when the messages were deleted. Officer Powers seized the phone pursuant to a warrant and placed it in the police evidence locker. He admitted he had no training in handling electronic evidence ("Everyone in my department pretty much has to figure these things out for themselves"), and that he made no printout, photograph, screenshot, or forensic image despite having the phone in his physical possession. The technology to do so is widely available; his explanation that "we don't have any way of printing out texts from a cell phone" is not credible and reflects, at minimum, negligent disregard for the standard of care.

B. The State Has Not Met Its Burden to Justify the Loss Under Grimes.

State of Columbia v. Brian Grimes (2018) controls the analysis where evidence has been lost while in government custody. Grimes requires the court to "balance the quality of the government's conduct against the degree of prejudice to the accused." The government bears the burden of justifying its conduct, and the court must consider "whether the evidence was lost or destroyed while in its custody, whether the government acted in disregard for the interests of the accused, [and] whether it was negligent in failing to adhere to reasonable standards of care for police and prosecutorial functions."

The facts here mirror Grimes. There, travelers checks were placed in a "secure vault at the central police station" and then "subsequently disappeared and no explanation has been offered for their loss." The Court of Appeal reversed the trial court's denial of the motion in limine because "[t]he State was unable to meet its burden of justifying its conduct, since it offered no explanation for when or how the travelers checks disappeared." Here likewise, the original text messages were lost while the phone was in police custody, and Officer Powers offers no explanation other than that the phone happened to auto-delete after he had already had it in his possession—a fact he learned only when he "went back to have another look at it." The State has offered no explanation for why no printout, screenshot, or forensic image was made before the deletion occurred. Under Grimes, the State has not justified its conduct.

C. Mr. Davis Will Be Severely Prejudiced.

Grimes identifies three prejudice factors: "(1) the centrality of the evidence to the case and its importance in establishing the elements of the crime, including motive or intent; (2) the reliability of secondary or substitute evidence; and (3) the probable effect on the jury from absence of the evidence."

Centrality. The text messages are not peripheral—they are the heart of the State's conspiracy case. To convict, the State must prove an agreement between Mr. Davis and Ms. Cameron to distribute cocaine. The transcript is the only direct evidence of that agreement. As in Grimes, where the travelers checks were "central to the theft charges," the texts here are central to the conspiracy charges.

Reliability of Secondary Evidence. The transcript is profoundly unreliable. Officer Powers admitted he prepared it over two days, while juggling "a couple of witness interviews and some other things that were happening," interrupted by "phone calls, meetings, [and] people coming by my desk." He admitted he had no training in handling electronic evidence. He had no electronic copy or photograph against which to verify accuracy. When asked whether he could "testify to the accuracy of this transcript," he could only say: "Well, I think it's pretty accurate, yeah." That hedged answer underscores the risk of error.

Effect on the Jury. A handwritten transcript by a police officer—presented as the verbatim record of a defendant's words in a drug case—will carry powerful weight with a jury, while Mr. Davis has no ability to confront the actual messages, examine their context, or test the accuracy of Officer Powers's transcription. As Jones warned, "[o]ral testimony about the contents of a writing may also be subject to greater risk of error than testimony about the writing." A handwritten transcript compounds that risk.

D. The Transcript Is Closely Related to a Controlling Issue.

The State cannot rely on Rule 1004(d). The transcript goes to the central issue in the case—whether Mr. Davis agreed to distribute cocaine.

CONCLUSION

The State seeks to convict Mr. Davis of conspiracy by introducing a handwritten transcript prepared days after the fact by an officer with no training in electronic evidence, while the original messages were lost from a phone in police custody, and where no printout, photograph, or forensic image was ever made. Rule 1002 prohibits this. The exceptions in Rule 1004 do not apply because the State cannot justify the loss and Mr. Davis will be severely prejudiced under the Grimes balancing test. Mr. Davis respectfully requests that the Court grant the motion in limine and exclude Officer Powers's handwritten transcript.

Respectfully submitted,

Office of the Public Defender

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California is a community property state. Property acquired by either spouse during marriage while domiciled in California is presumptively community property (CP). Property acquired before marriage, or acquired during marriage by gift, devise, or descent, is the acquiring spouse's separate property (SP), as is the rents, issues, and profits of SP. Tracing back to an SP source rebuts the general community presumption. The economic community begins at marriage and ends at the date of separation.

Harvey and Wanda married in 2016 in California. Wanda's $100,000 inheritance from her father in 2015 is her SP because it was acquired before marriage and by inheritance. Harvey opened the restaurant in 2010, before marriage, so the restaurant began as Harvey's SP.

1. The Car

Wanda used $30,000 of her inheritance—pure SP funds—to buy herself a car during the marriage. Tracing the purchase to an SP source rebuts the general community presumption. The car is therefore Wanda's SP.

The fact that "Harvey loved the car and drove it often" does not transmute the car into community property. Under California law, a transmutation of property between spouses is not valid unless it is made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. Harvey's frequent use is not such a writing. The car remains Wanda's SP.

2. The Framed and Signed Football Jersey

Wanda used $20,000 of her SP inheritance to buy Harvey a framed and signed football jersey from his favorite player and gave it to him after their honeymoon. This is an interspousal gift from Wanda to Harvey using Wanda's SP funds.

A gift of personal property between spouses generally requires a writing to satisfy the transmutation rule, but California recognizes a narrow exception for tangible articles of a personal nature used solely or principally by the spouse to whom the gift is made and not substantial in value taking into account the circumstances of the marriage. A signed football jersey from Harvey's "favorite player" is a tangible article of a personal nature used principally by Harvey. Whether $20,000 is "not substantial in value" depends on the parties' circumstances—Wanda was unemployed at the time, and the gift came from a $100,000 inheritance, so $20,000 is roughly 20% of her separate estate. A court might find this is substantial. If so, the writing requirement is not satisfied and the jersey would remain Wanda's SP.

If, however, the court finds the jersey is "not substantial in value" given the circumstances, the personal-gift exception applies and the jersey is Harvey's SP. The most likely outcome turns on the trial court's view of the parties' overall circumstances; given the inheritance size and her unemployed status, the better view is that the gift is substantial and the jersey remains Wanda's SP, although a court could reasonably conclude otherwise.

3. The House

The house was purchased during the marriage for $500,000, with title taken in Harvey's name only. Wanda contributed $50,000 of her SP inheritance as the down payment. The mortgage was in Harvey's name and was paid from Harvey's restaurant earnings. Earnings from a spouse's labor during marriage are CP, even if generated by an SP business; the labor itself is community labor. Mortgage payments from restaurant earnings are therefore community-funded.

Title in One Spouse's Name

Title in Harvey's name alone does not change the character of property acquired during marriage with community funds. Property acquired during marriage is presumptively CP regardless of how title is taken. Even though title is in Harvey's sole name, the house was acquired during marriage with mixed SP (Wanda's $50,000) and CP (Harvey's earnings on the mortgage) funds.

Apportionment of the House — Moore-Marsden

When CP funds are used to pay down a mortgage on property acquired during marriage with mixed contributions, the community acquires a proportional ownership interest equal to the portion of the principal reduction attributable to community payments. The community is also entitled to its proportional share of any appreciation. Under the Moore-Marsden formula, the court divides ownership between SP and CP based on each estate's contribution to the principal (down payment plus principal reduction), and apportions appreciation in the same ratio.

Reimbursement of SP Down Payment

Wanda's $50,000 SP down payment also entitles her to direct reimbursement under California law, without interest or appreciation, unless she waived this right in writing. Reimbursement comes off the top before division.

Stop Paying the Mortgage

Harvey moved out and stopped paying the mortgage at separation. Post-separation mortgage payments by either spouse are typically that spouse's separate obligation, and post-separation appreciation is generally allocated based on which spouse's funds and possession sustained the asset. Harvey may also be required to account to the community for any exclusive use of the home post-separation, or, conversely, be entitled to credits for any post-separation payments he did make on community debt.

Disposition

Wanda receives reimbursement of her $50,000 SP down payment. The community has a proportional interest in the house equal to the portion of principal paid down with community funds, with proportional appreciation. Harvey's name on title alone does not defeat the community interest.

4. The Restaurant

Harvey opened the restaurant in 2010, before marriage. It is Harvey's SP. The threshold value at marriage was $100,000; during the marriage, while Wanda also worked at and helped manage the restaurant, the value rose from $100,000 to $500,000; after Wanda stopped working, a celebrity's social-media post doubled the value overnight to $1 million.

Apportionment — Pereira and Van Camp

When community labor enhances the value of one spouse's separate-property business, the community is entitled to a share. California uses two alternative formulas, and the court chooses the one that achieves substantial justice on the facts.

Pereira applies when the increase in value is primarily due to the spouse's personal efforts and skill. The court allocates a fair return on the SP capital (typically the legal rate of interest, compounded over the relevant period) to SP and treats the remainder as CP.

Van Camp applies when the increase is primarily due to the unique character of the SP asset—market forces, capital, or goodwill independent of the owner's labor. The court values the community labor at a reasonable salary, deducts community living expenses already paid, and allocates the remainder to SP.

Applying to the $100,000 → $500,000 Increase

This increase occurred while Wanda worked at and helped manage the restaurant; both spouses' labor during marriage is community labor. Harvey's labor was also community labor. Pereira likely fits because the growth from $100k to $500k during the period of active management appears tied to the spouses' efforts. The community is entitled to the residual after a fair return on Harvey's $100,000 SP capital.

Applying to the $500,000 → $1,000,000 Increase

This doubling occurred "soon after Wanda stopped working" and was caused by a celebrity's social-media post—a market force unrelated to either spouse's labor. This is passive appreciation of an SP asset. Under Van Camp logic, the community is entitled only to the value of community labor (which was zero in this period), and the remainder of the appreciation is Harvey's SP.

Disposition

The restaurant remains Harvey's SP, but the community has a substantial claim against the increase from $100,000 to $500,000 during the period of Wanda's labor. The post-separation, market-driven doubling from $500,000 to $1,000,000 is Harvey's SP.

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A federal court must have subject matter jurisdiction. The two principal bases are federal question jurisdiction and diversity jurisdiction. Because the complaint alleges only state-law negligence, only diversity is available.

Complete Diversity

Diversity jurisdiction requires complete diversity—no plaintiff may share citizenship with any defendant. A natural person is a citizen of the state of his domicile. A corporation is a citizen of every state where it is incorporated and the state of its principal place of business under the nerve-center test.

Plaintiffs Peggy and Owen are "lifelong residents of California," so both are domiciled in California. Defendant Dan is "a citizen of Nevada." Defendant NBL is "Nevada Bus Lines, Inc."—a Nevada corporation whose facts strongly suggest its principal place of business is Nevada. There is complete diversity: California plaintiffs versus Nevada defendants.

Amount in Controversy

The amount in controversy must exceed $75,000. Peggy alone seeks $100,000 (medical expenses and pain and suffering), which clears the threshold. Owen seeks $50,000 for property damage, which does not.

A single plaintiff may aggregate all claims against a single defendant, but two plaintiffs cannot aggregate their claims against a common defendant unless they assert a common, undivided interest. Peggy and Owen have separate, individual claims, so Owen cannot aggregate with Peggy.

However, supplemental jurisdiction allows a federal court to hear claims that form part of the same case or controversy as a claim within the court's original jurisdiction. The Supreme Court has held that supplemental jurisdiction extends to additional plaintiffs' claims that fail to meet the amount-in-controversy requirement, so long as at least one plaintiff satisfies the amount and complete diversity is preserved. Owen's claim arises from the same accident as Peggy's, and complete diversity is preserved. Owen's $50,000 claim therefore comes in by supplemental jurisdiction.

The federal court has subject matter jurisdiction over both claims.

2. Personal Jurisdiction

Personal jurisdiction requires both a basis under the forum state's long-arm statute and consistency with constitutional due process. California's long-arm statute extends to the full limit of due process. Due process requires that the defendant have minimum contacts with the forum such that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.

NBL

NBL operated a bus that transported "master bingo players from Thousand Oaks, California, to a bingo tournament." NBL therefore purposefully availed itself of the California market by routing buses into California. The accident occurred in Los Angeles, California. Specific personal jurisdiction exists where the defendant's purposeful contacts with the forum gave rise to the claim. NBL transported passengers into California, and the alleged tort occurred in California. The claim arises out of and relates to NBL's California contacts. Specific jurisdiction over NBL is proper.

Dan

Dan was driving the bus into California in the course and scope of his employment when he caused the accident. By voluntarily driving into California and committing a tort there, Dan purposefully directed his conduct at California. A defendant who drives into a forum and causes injury there is subject to specific jurisdiction in that forum. Personal jurisdiction over Dan is also proper.

The exercise of jurisdiction over both defendants is fair: California has a strong interest in adjudicating accidents that injure its residents on its highways, plaintiffs have an interest in litigating at home, and Nevada is geographically adjacent. There is no due-process violation.

3. Service of Process on Dan

Under the federal rules, an individual within a judicial district of the United States may be served by:

(1) Following the law of the state where the district court sits (California) or the state where service is made (Nevada); or

(2) Doing any of the following: (a) delivering a copy of the summons and complaint to the individual personally; (b) leaving a copy at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (c) delivering a copy to an authorized agent.

Larry "slid a copy of the complaint under the front door of Dan's house" when no one was home. This satisfies none of the federal alternatives: it is not personal delivery; it is not delivery to a person of suitable age and discretion residing at the dwelling; and it is not delivery to an authorized agent. Both California and Nevada law similarly require either personal service or substituted service that involves leaving the papers with another person and following up with mailing. Sliding papers under a door is not authorized by either state.

The fact that Dan eventually received the complaint when he came home does not cure improper service. Actual notice does not substitute for compliance with the rules on service of process. Dan was not properly served. (Dan's filing of an answer without raising the defense of insufficient service may, however, waive the objection if not raised in the answer or by pre-answer motion.)

4. Motion to Compel — Document Production

Under the federal rules, parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. Proportionality factors include the importance of the issues, the amount in controversy, the parties' relative access to information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense outweighs the likely benefit.

Plaintiffs request "all documents from the past 10 years related to claims for injuries and property damage caused by NBL's drivers." This is a broad request. Whether it should be granted depends on the underlying claim against NBL.

Relevance

Plaintiffs allege NBL is liable as Dan's employer—presumably under respondeat superior. For respondeat superior, the only relevant facts are that Dan was an employee acting within the scope of employment. Prior accidents by other drivers are not relevant to that theory.

If, however, plaintiffs assert (or amend to assert) negligent hiring, training, supervision, or retention, then prior accidents become highly relevant: they tend to show notice to NBL of a pattern of unsafe driving and the foreseeability of accidents like this one.

Proportionality and Scope

Even where relevance exists, the ten-year, all-driver scope is broad. A court would likely narrow the request—for example, to a more limited time period (such as three or five years) and to incidents involving similar conduct (driver fatigue, falling asleep, collisions). Courts routinely tailor overbroad discovery rather than denying it outright.

Ruling

The court should grant the motion in part. To the extent plaintiffs assert a negligent-supervision-type theory, prior NBL driver-caused incidents are relevant, and some discovery should be permitted. The court should narrow the request to a reasonable time frame and to incidents involving similar driver-error conduct, balancing relevance against burden. To the extent plaintiffs assert only respondeat superior, the request is largely irrelevant and should be denied as disproportionate.

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False or Misleading Communications About a Lawyer's Services

Both California and the ABA prohibit a lawyer from making a false or misleading communication about the lawyer or the lawyer's services. A communication is misleading if it contains a material misrepresentation of fact or law or omits a fact necessary to make the statement, considered as a whole, not materially misleading.

Rex's sign contains several misleading representations.

"State Bar-Certified Real Estate Attorney." A lawyer may not communicate that he is "certified" as a specialist in a particular field unless he is in fact certified by an organization accredited by the State Bar, and the certifying organization is clearly identified. In California, real estate is not a specialty recognized for lawyer certification at all. Rex is therefore making a false claim of certification, which is both materially misleading and a direct violation of the rules on communicating specialty status.

"Rex Jones and Associates." Rex is a "solo law practitioner." A name implying multiple lawyers when in fact there is only one is misleading. The rules on firm names prohibit names that create a false impression of the size or nature of the practice.

"1-800-BIG-FIRM." The phone number reinforces the false impression that Rex's practice is a large firm. This is misleading.

Solicitation and Sign Placement

Posting an advertising sign in the lobby of Realty-Co is permitted advertising rather than prohibited in-person solicitation, because Rex is not personally communicating with prospective clients in real time. However, both the ABA and California prohibit a lawyer from giving anything of value for recommending the lawyer's services, with limited exceptions for the reasonable cost of permitted advertising. The fact that Rex's sign is placed "free of charge" raises the inverse concern: a lawyer must not allow a non-lawyer to use the lawyer's services in a way that creates a relationship resembling a partnership or fee-sharing with non-lawyers.

If Rex's relationship with Realty-Co involves any reciprocal referral arrangement—whether Rex feels obligated to direct clients to Realty-Co in exchange for the free advertising space—that would violate the prohibition on referral arrangements, the prohibition on fee-sharing with non-lawyers, and the duty to avoid conflicts of interest because his independent professional judgment would be compromised. On these facts the sign placement appears to be a gratuitous accommodation by his former partner, but Rex must be careful that no quid pro quo develops.

Failure to Disclose Material Information to Clients

A lawyer owes the client a duty of communication: he must keep the client reasonably informed about the status of the matter and provide information necessary for the client to make informed decisions. California in particular requires a lawyer to disclose to the client whenever the lawyer is sued for malpractice in the matter, has been disciplined, or has malpractice insurance issues that could materially affect the representation. More broadly, a pattern of malpractice suits is information a reasonable client would want to know. Rex has been sued four times for malpractice in the past 18 months. His belief that the suits are frivolous and that there have been no judgments does not excuse non-disclosure. Rex has violated his duty of communication.

Conclusion as to Rex

Rex has violated the rules on misleading communications, false claims of certification, and misleading firm names through his sign, and the duty of communication by failing to disclose the malpractice suits to his clients.

2. Nancy's Ethical Violations

Unauthorized Practice of Law (Multijurisdictional Practice)

Both the ABA and California prohibit a lawyer not licensed in the jurisdiction from establishing an office or systematic and continuous presence for the practice of law, or from holding out to the public as licensed in the jurisdiction.

The ABA approach permits an out-of-state lawyer in good standing to practice in another jurisdiction on a temporary basis where the services arise out of or are reasonably related to the lawyer's practice in the home jurisdiction, or where the services are for a client the lawyer represents in the home state. California, by contrast, takes a stricter approach. California has historically held that an out-of-state lawyer who appears in a California real estate transaction—even temporarily—engages in the unauthorized practice of law unless admitted pro hac vice (which is unavailable for a transactional matter) or otherwise authorized.

Nancy is licensed only in Arizona. She is "temporarily representing her client in California in the real estate transaction," and her client is an Arizona resident who happens to own one property in California. Under the ABA approach, this is likely permissible temporary multijurisdictional practice because the matter is reasonably related to her Arizona practice and her client is an Arizona resident. Under California law, however, Nancy may be engaged in the unauthorized practice of law because she is performing legal services in California for compensation without a California license.

Failure to Disclose Prior Disbarment

Although Nancy is "now in good standing" in Arizona, she was previously disbarred there. A lawyer admitted in another jurisdiction has a continuing duty in connection with bar admission and disciplinary matters not to make false or misleading statements, and a broader duty not to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. If Nancy did not disclose her prior disbarment to her client (the Arizona seller), or to anyone evaluating her authority to act in California, she may have violated her duty of candor and her duty to communicate material information to the client. A reasonable client would want to know that the attorney representing him in a real-estate transaction had previously been disbarred.

Holding Out

By representing a seller at a California real estate closing, Nancy implicitly holds herself out as authorized to practice in California. Both the ABA and California prohibit a lawyer not admitted in the jurisdiction from holding out to the public or otherwise representing that the lawyer is admitted to practice in that jurisdiction. By appearing at the closing without disclosing her Arizona-only status, Nancy creates a misleading impression.

Conclusion as to Nancy

Nancy has likely engaged in the unauthorized practice of law in California and has failed in her duties of candor and communication by not disclosing her prior disbarment to her client. Under ABA standards her conduct may fall within the temporary-practice exception, but California's stricter approach to multijurisdictional transactional practice exposes her to discipline.

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Contract law in the United States is governed by two parallel bodies of authority. The common law governs contracts for services and for real estate. The UCC governs contracts for the sale of goods. Where the contract is mixed, courts apply the predominant-purpose test and choose one body to govern the entire transaction.

This case involves the sale of a violin—a movable, tangible item—and is therefore a contract for the sale of goods. The UCC governs. Moreover, both Sam (a "well-known dealer in valuable musical instruments") and Betty (owner of a "high-end music store" who has previously bought stringed instruments from Sam) are merchants who deal in goods of the kind, which triggers the heightened merchant standards under the UCC.

Betty's Arguments

1. Breach of Express Warranty

An express warranty arises from any affirmation of fact or promise made by the seller that relates to the goods and becomes part of the basis of the bargain. A description of the goods also creates an express warranty that the goods conform to the description.

Sam telephoned Betty and told her the violin "was made by Enrico Rocca in the early nineteenth century." This is a specific affirmation of fact about the violin's identity and provenance, not mere puffery. The price—$200,000 versus the $5,000 value of a replica—shows the Rocca attribution was the basis of the bargain. The lab-confirmed truth is that the violin is a recent replica, not a genuine Rocca. Sam therefore breached an express warranty.

2. Breach of Implied Warranty of Merchantability

A warranty that goods are merchantable is implied in a contract for sale if the seller is a merchant with respect to goods of that kind. Merchantable goods must, among other things, pass without objection in the trade under the contract description. A replica violin sold under the description "Enrico Rocca" does not pass without objection in the antique-violin trade. Sam, a merchant in valuable instruments, breached this implied warranty.

3. The "Sold As Is" Disclaimer Does Not Defeat the Express Warranty

Sam will rely on the contract clause that the violin was "sold as is, without warranty of any kind, express or implied." Expressions like "as is" generally exclude implied warranties. However, words creating an express warranty and words disclaiming it are to be read as consistent if reasonable, and where unreasonable, the disclaimer is inoperative. Courts uniformly hold that an "as is" clause cannot disclaim an express warranty that is part of the basis of the bargain. The express warranty arising from the Rocca description therefore survives the "as is" clause. The disclaimer may, however, defeat the implied warranty of merchantability.

4. The Parol Evidence Rule and the Merger Clause

Sam will rely on the merger clause, arguing that the contract is fully integrated and that Sam's prior oral statement on the telephone is excluded. Under the parol evidence rule, terms intended by the parties as a final expression cannot be contradicted by prior agreements, but they may be explained or supplemented by consistent additional terms unless the writing was intended as a complete and exclusive statement.

Betty has several responses. First, the writing here is sparse: a one-line description ("violin") and a price ("$200,000"). The oral statement that the violin was a Rocca explains the description "violin" rather than contradicting it. Second, the parol evidence rule does not bar evidence of fraud, misrepresentation, or mistake. If Sam knew or had reason to know that the violin was not a Rocca, his statement is fraudulent or negligent misrepresentation, which is admissible regardless of the merger clause. Even an honest mistake (mutual mistake of fact) is admissible. Third, the handwritten word "violin" was inserted into a preprinted form by Sam himself; ambiguity in a form contract is construed against the drafter.

5. Misrepresentation / Mutual Mistake

Even apart from warranty, Betty has equitable grounds for rescission. Sam represented the violin to be a Rocca; that representation was false; Betty justifiably relied; and she was damaged. Although Sam "sincerely believed" the violin to be a Rocca, an innocent material misrepresentation still supports rescission. Alternatively, if both parties believed the violin to be a Rocca, there was a mutual mistake about a basic assumption of the contract that materially affects the agreed exchange (a $200,000 price for a $5,000 replica), justifying rescission under standard contract doctrine.

Sam's Arguments

Sam will argue: (i) the contract is fully integrated and the merger clause excludes the telephone description; (ii) the "as is" clause disclaims all warranties, both express and implied; (iii) he sincerely believed the violin was a Rocca, so there was no fraud; and (iv) Betty, as a merchant in stringed instruments, should have inspected before purchase and bears the risk because there is no implied warranty as to defects an examination ought to have revealed.

Who Will Prevail

Betty will likely prevail. The Rocca description is an express warranty that the "as is" disclaimer cannot defeat. The merger clause does not bar evidence of misrepresentation or mutual mistake. Even if Sam acted in good faith, the parties contracted on the shared—and false—assumption that the instrument was a genuine Rocca. The disparity between the $200,000 contract price and the $5,000 actual value confirms that the Rocca attribution was the basis of the bargain.

Remedies

A buyer who rightfully rejects or revokes acceptance may cancel the contract and recover the price paid plus damages. Betty timely revoked acceptance: the nonconformity (forgery) substantially impairs the violin's value, and her acceptance was reasonable because the defect was difficult to discover without expert appraisal. She is entitled to rescission and refund of the $200,000, plus consequential damages such as appraisal fees.

In the alternative, she may keep the violin and recover damages for breach of warranty—the difference between the value of the goods as accepted ($5,000) and the value they would have had as warranted ($200,000), or $195,000—plus incidental and consequential damages.

Betty is likely to recover rescission and her purchase price.

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Life Estate and the Doctrine of Waste

A life tenant has the right to use and possess the property during the life estate but owes duties to the holder of the future interest—here, Reed, the remainderman. The doctrine of waste protects the remainderman from acts that unreasonably impair the value of the property.

There are three types of waste. Voluntary (affirmative) waste occurs when the life tenant takes affirmative action that materially reduces the value of the property, such as removing valuable timber or destroying structures. Permissive waste occurs when the life tenant fails to make ordinary repairs or pay carrying charges. Ameliorative waste occurs when the life tenant materially alters the property in a way that, although it may increase value, changes its fundamental character.

Voluntary Waste — Cutting Trees and Renovation

Linda cut down valuable mature trees and privacy hedges. Mature trees are typically considered part of the realty, and their unauthorized removal by a life tenant is classic voluntary waste, particularly where, as here, the trees were "valuable." Linda's renovation reduced the home's square footage from approximately 5,000 to 2,000 square feet and "significantly reduced the value of the structure." This is the paradigm of voluntary waste: an affirmative act by the life tenant that materially diminishes the value of the remainder interest.

Ameliorative Waste — Conversion to a Florist Shop

Even if the renovation had increased the value of the property, the conversion of a residence into a commercial florist shop is a fundamental change in the character and use of the property. At common law, such a change constitutes ameliorative waste and is actionable by the remainderman, especially where, as here, the change is unwanted by the future-interest holder. Modern courts sometimes permit ameliorative waste when the surrounding neighborhood has changed so completely that the original use is no longer practicable, but on these facts the subdivision remains residential in character.

Remedies

Reed may sue for damages measured by the diminution in value of the remainder interest. He may also seek an injunction to prevent further waste—for example, to halt any further renovation or tree removal. In some jurisdictions, a remainderman may recover treble damages for willful waste such as the wrongful cutting of trees. Reed should pursue both monetary damages for the trees and reduced square footage and an injunction against any further commercial alteration.

B. Validity of the Developer's Residential Deed Restrictions

The developer conveyed each lot in the 15-home subdivision by a recorded deed stating the conveyance was for "residential purposes." The question is whether this restriction is enforceable as either a real covenant (running at law) or an equitable servitude (running in equity).

Real Covenant Running with the Land

For the burden of a covenant to run at law, the parties must intend the covenant to run; the covenant must touch and concern the land; there must be horizontal privity (between original parties at the time of conveyance) and vertical privity (between the original covenantor and successor); the covenant must be in writing; and the successor must have notice (actual, constructive, or inquiry).

Here, the developer included the restriction in each recorded deed, which evidences intent that it bind successors. A residential-use restriction directly affects the use and value of the land and clearly touches and concerns. Horizontal privity exists because the developer included the restriction in the original conveyances. Linda took by devise from Olivia, satisfying vertical privity. The recorded deed gives all subsequent owners constructive notice. The covenant therefore runs at law.

Equitable Servitude — Common Scheme

A residential-use restriction is also enforceable as an equitable servitude. The required elements are intent, touch and concern, notice, and—where enforcement is sought against a non-signatory—a common scheme of development. Where a developer subdivides land and conveys lots subject to substantially uniform restrictions, courts infer a common scheme that creates implied reciprocal servitudes binding all lots.

Here, the developer placed the same "residential purposes" restriction in every deed for the 15 lots, which establishes a common scheme. The restriction is recorded, so all owners are on constructive notice. The deed restriction is therefore valid and enforceable as both a real covenant and an equitable servitude.

C. Nancy's Claim Against Linda

Nancy, a neighbor in the subdivision, has standing as a co-owner under the common scheme to enforce the residential covenant against Linda. The operation of a florist shop—a commercial enterprise with a business license, customer parking, and renovated commercial space—plainly violates the "residential purposes" restriction.

Linda's Defenses

Acquiescence and Waiver. Linda will argue that five other businesses—two coffee shops, two clothing stores, and a dry cleaner—have operated out of homes in the subdivision for over ten years without objection. Acquiescence applies where the plaintiff has tolerated similar violations by others, which can bar her from enforcing the covenant against this defendant. Whether acquiescence applies depends on the similarity and visibility of the prior violations.

Abandonment. Where violations of a covenant have been so widespread and substantial that the original purpose of the common scheme has been defeated, courts hold the covenant abandoned and unenforceable by anyone. Five commercial uses in a 15-home subdivision—one third of the lots—is substantial. A court could reasonably find the residential character of the subdivision has been so eroded that the covenant has been abandoned as a whole.

Changed Conditions. If the character of the neighborhood has changed so radically that the original purpose of the restriction can no longer be achieved, the covenant becomes unenforceable. Here, with one third of the homes already operating commercial businesses for over a decade, Linda has a strong argument that the residential character has so deteriorated that enforcement would be inequitable.

Laches. Nancy and the other owners have not complained for over ten years. Unreasonable delay coupled with prejudice to the defendant supports a laches defense, though laches typically applies to the parties who failed to act, not necessarily to a current defendant.

Conclusion on Nancy

Although the covenant is facially valid and Linda's florist shop violates it, Linda has substantial defenses based on acquiescence, abandonment, and changed conditions. Given that one third of the lots have operated commercial businesses for more than ten years without objection, a court is likely to find the covenant has been abandoned or that the changed-conditions doctrine bars enforcement. Nancy is therefore unlikely to succeed on her claim.

（约 1,050 words）

接下来的流程是提交给董事会去决策，再交最高法院批准，但我们知道这基本都只是走流程，所以已经可以说是尘埃落定——正如我上周在两场交流会上预测的那样。

旧考试窗口还在​

目前几个重要州的时间线大致是：

1. Illinois会在2028年2月第一次实施NextGen UBE，所以2027年7月会是它最后一次Legacy UBE。
2. New York会在2028年7月第一次实施NextGen UBE，所以2028年2月会是纽约最后一次旧版UBE。
3. California如果最终按CBE建议在2028年7月采纳NextGen UBE，那么2028年2月会是最后一次现行加州bar。

这也意味着，准备旧考试的同学其实还有窗口。对现在的加州bar和纽约UBE，我们的课程已经非常成熟，尤其是选择题、论文写作、PT和考前押题，都已经有足够多轮考试反馈。随着NCBE和各州把主要精力转向NextGen，旧考试的题库和命题逻辑反而可能趋于稳定，押题也会更有章法。

但窗口不会一直存在。对2026、2027年准备上岸的同学来说，最现实的策略不是等改革完全落地，而是趁旧考试还熟悉、课程体系还成熟、备考路径还清楚，尽量在改制前解决问题。

NextGen不见得比现在的加州bar更难​

NextGen不是简单的“选择题+论文+PT”，而是把选择题、短答案、法律研究、客户咨询、drafting、PT这些东西揉在一起，考得更像一个综合任务。它也会出现select two这种多选题，不再是所有选择题都四选一。

但是，如果和现在的加州bar相比，NextGen反而可能是一种难度的回归。原因很简单：现在的加州bar难在两个地方，一是加州自己论文和PT的评分弹性很大，二是加州特色科目和写作风格对外国考生非常不友好。NextGen虽然题型更新，但科目范围更集中，评分和命题也会更全国化、标准化。对很多中国考生来说，这未必是坏事。

所以我现在的判断是：NextGen比传统UBE难，但不见得比现在的CABAR难。

加州特色部分大概率不会是“UBE选择题+加州论文”​

NextGen UBE官方结构是三段三小时考试，总共九小时，题型包括standalone multiple-choice questions、integrated question sets和performance tasks。

这意味着加州很难用一种特别粗暴的方式引入它，比如“UBE考全国选择题，我们继续自己出几篇加州论文”。如果这样做，既破坏NextGen UBE的完整性，也会影响分数可转移性和全国统一考试的意义。

所以，如果加州未来真的要保留California component，我更倾向于认为它会类似纽约NYLE那种地方性要求：在主考试之外，加一个单独的线上课程、线上测试或者低风险的加州法组件。它当然也可能设计得更复杂，但从CBE这次的表述看，加州特色部分目前还只是“向最高法院寻求指导”，不是已经确定要在2028年7月主考试里塞回加州论文。

这对备考策略的影响很直接：未来的重点应该放在UBE和NextGen本体上，而不用担心加州永远保留一套完全独立的论文体系。

我们已经开始NextGen和UBE课程开发​

课程开发这件事，我倒没有特别担心。

我们一个月可以开发完OLQE课程，一天可以把NYLE课程做出来，所以对于NextGen这个还有2年才会被学员首次接触到的考试，课程开发的时间可以说还极为宽裕。我们会提前拆解题型、整理科目边界、积累样题和训练方法，不会等到2028年考前几个月才开始慌。

到2028年7月，家庭法、公司法、信托、遗嘱会变成大法，选择题也有可能出现。我们的新课程安排也会按这个节奏来：除了很快就能生成的AI课，我们会陆续上架人工（也就是我自己）精讲的公司法、家庭法、遗嘱和信托，而且我会按照NextGen和技能题的逻辑来做。我们始终认为备考方向比单纯堆内容更重要。

对UBE Transfer考生来说是好消息​

加州目前通过分数是1390，这个分数其实就是UBE乘以5。即使不考虑论文对非母语考生来说逆天的难度，依然约等于UBE的 278分，这比最高的德州270还高，更远高于华盛顿州的260分。那么以后如果可以通过加州考UBE，即使依然维持最高分（但也不能太夸张吧？就按照目前德州等同的270好了）其他州的Transfer大门可能是开的，比如，可能依然可以通过等同260分的成绩转换到华盛顿州。当然，NextGen UBE自己的分数会是500-750的新分制，具体怎么和旧UBE对应还要看各州规则。反过来，纽约州考到了加州分数说不定也可以直接转过来，and vice versa, 而不像现在如果想纽约/加州双持基本只能考两次，或者JD先考加州+加州执业几年转到某一个州+某一个州执业5年转到纽约州（纽约和一大堆州签了互惠，但不包括加州）这种十分狭窄的方法。对于绝大多想双持的LLM来说，无论我把小众州说的多么稀缺（其实我真心这么认为，我自己就打算在明年注销加州，只在华盛顿州执业），大部分人可能还是想纽约/加州双持，对他们来说可能是个好消息。

目前外国律师的通过率还没有出来，但肯定比去年的24.7%低，因为只考论文的律师通过率出来了：只有43.4%，要知道这是已经在其他州执业的律师、在今年2月已经把一些久考不过的苦主捞上岸的情况下，依然比去年7月低了5%，说明加州Bar官方有意在把论文往下压。

有意压论文的证据还包括这次MBE的平均分创新高、外加Phase One加分的加持，但整体通过率和去年几乎持平。往年几乎见不到的40、45分甚至0分，今年出现在多张试卷上。如果论文完全说不通，今年是可以被打0分的，这让以往“50保底，瞎猫碰几个55-60，然后把选择题堆到1600+”这种莽过的策略行不通了。有学员去年每篇论文全部照抄题目都获得了50分，今年认真准备，虽然收获几篇60，但也有40，加起来没比去年高多少。Facebook上就有选择题接近1600但论文被打了一篇0分挂掉考试的。我已经看了将近100篇论文的给分，今年没有那种瞎给65甚至75分的情况了，只有几篇我觉得给高了，绝大多数时候我觉得如果放到往年可能可以多给个5分。今年7月，文笔不好分数很难超过60，如果这是趋势，对文笔不好的考生会很不利。

我还是愿意强调选择题对这个考试的重要性，对于大多数挂的学员，选择题还是不够火候，建议以“遍”为单位刷题（特别是我们考前的自编题）。选择题1600也就打败了全国80%的考生而已，这对我们的学员来说不是什么难事儿。

有几个学员的选择题已经拉到了1500+，关于这部分学员需要改变一下，再硬拉MBE的性价比已经不高了。此时论文写作是一道绕不过去的砍。我看了他们的论文，知识点是会的，但是文笔太糟糕了。建议用AI辅助学习一下基本的英语语法，我可能会参考BarMD的方法出几个PT的课程，并在明年对写作投入更大的精力。

总之如果说纽约的结果是一个惊喜，加州的结果可以用没有什么太多意外来形容（虽然放去年估计还可以多过几个人）。说明只要加州Bar不乱搞，结果相对可以被预测。对于所有发成绩给我的学员，我都会逐一回复，不管你是准备明年2月还是7月再战，或者转向纽约，我都会给出中肯的建议。

粗略用AI点了一下通过名单，大约有40个留的内地地址，其中有一多半都是我的学员。除此之外还有不少学员留的北美地址。今年依然有一些光看我们开源材料就通过考试然后来感谢我们的非学员。再次恭喜通过考试的各位。

Duty of loyalty

A lawyer owes a duty of loyalty to their client and must abide by the client's decisions concerning the objectives of the representation. While the lawyer controls the tactical and strategic means of achieving those objectives, the client retains ultimate authority over fundamental decisions. In a criminal case, the decision of whether to accept a plea offer rests exclusively with the client.

Here, Dan made a clear and informed decision to accept the prosecutor's plea offer, thereby setting the objective of his case. Linda’s personal philosophy that all clients should go to trial is not a permissible reason to override her client's explicit instruction. By moving for a continuance against Dan's wishes, she substituted her own judgment for her client's on a matter reserved for his ultimate authority.

Therefore, Linda violated her ethical duty of loyalty by failing to abide by her client's fundamental decisions.

Duty Upon Withdrawal

When terminating representation, a lawyer must take reasonable steps to protect a client's interests. This includes giving reasonable notice and ensuring the client is not abandoned at a critical stage of the proceedings without the opportunity to secure new counsel.

Here, Linda sought to withdraw at the very moment her client intended to enter his plea. This withdrawal, which was caused by her own refusal to follow Dan's instructions, left Dan unrepresented at a critical juncture. Her actions failed to protect Dan's interests and effectively abandoned him before a crucial court appearance. Linda might argue that her withdrawal was a strategic attempt to secure more time for Dan's case, believing the judge would not proceed with the plea without counsel present. However, this argument would likely fail. The proper recourse for a lawyer whose motion is denied is to object on the record to preserve the issue for appeal, not to engage in the controversial act of withdrawal, which potentially violates the duty of loyalty and abandons the client.

Therefore, Linda violated her duty to protect her client's interests upon withdrawal.

Pat

Duty to Disclose Exculpatory Evidence

A prosecutor's primary duty is to seek justice, not merely to obtain a conviction. This role as a minister of justice imposes a special, affirmative duty to make timely disclosure to the defense of all known evidence that tends to negate the guilt of the accused or mitigate the offense. This obligation is continuous and applies even after a guilty plea has been entered.

Here, The accident report concluding the sun was a dangerous hazard was material, exculpatory evidence. It directly supported Dan's lack of intent and was highly relevant to sentencing. Pat's decision to conceal this report after Dan had already pled guilty was a knowing violation of his duty to disclose favorable evidence.

Therefore, Pat violated his ethical duty to disclose exculpatory evidence.

Duty of Fairness to the Opposing Party

A prosecutor has a duty to act fairly toward criminal defendents, which includes honoring promises made as part of a plea agreement. A defendant waives fundamental constitutional rights in reliance on the prosecutor's promises, and a subsequent breach of that agreement is fundamentally unfair.

Here, Pat offered, and Dan accepted, a plea agreement that included a recommendation for a five-year sentence. In reliance on that promise, Dan pled guilty. By later arguing for a sentence based on an "intentional act," Pat effectively reneged on his end of the bargain, thereby acting unfairly toward Dan, who had already performed his part of the agreement.

Therefore, Pat violated his duty of fairness to the opposing party by breaching the plea agreement.

Duty of Candor to the Court

A prosecutor, like all lawyers, owes a duty of candor to the court and must not engage in conduct involving dishonesty.

Pat's argument to the judge that the evidence was "consistent with an intentional act" was a severe breach of his duty of candor. He made this assertion while knowingly possessing an expert accident report that provided strong evidence to the contrary. His argument was therefore a deliberate misrepresentation to the tribunal.

Therefore, Pat violated his duties of candor to the court.

Judge

Accept Dan’s guilty plea

A judge must ensure any guilty plea is knowing, intelligent, and voluntary. This requires a direct inquiry with the defendant on the record to confirm they understand the rights they are waiving and the consequences of their plea. If a defendant is unrepresented, the judge has a heightened duty to ensure any waiver of the right to counsel is valid.

Here, The judge accepted Dan's plea "without further inquiry" immediately after his attorney withdrew and while Dan was emotionally distressed. This was improper. The judge failed to confirm whether Dan wanted new counsel appointed and failed to conduct the necessary colloquy to ensure the plea was truly voluntary and intelligent under the circumstances.

Sentencing

Furthermore, if a judge decides to reject the sentence recommendation after a defendant has already entered a plea in reliance on it, the judge must give the defendant the opportunity to withdraw their plea.

Here, The judge decided to reject the five-year sentence recommended in the plea bargain. At that point, the proper procedure was to inform Dan of this decision and ask him if he wished to withdraw his guilty plea and proceed to trial. Instead, the judge held Dan to his plea while denying him the benefit of the bargain, which is fundamentally unfair.

（题目没问，可选）
Duty of Competence

While a judge is a neutral arbiter and is not expected to investigate the facts of every case, they must be proficient in the law they are tasked with applying. The judge's actions in this case demonstrated a significant lack of competence in basic criminal procedure. The combination of errors—improperly accepting a plea from an unrepresented defendant, failing to conduct the required inquiries, and failing to apply the correct procedure for rejecting a plea bargain—reveals a pattern of fundamental mistakes. Such a series of errors in a serious felony case suggests the judge was not sufficiently competent to preside over the matter.

Therefore, The judge breached his ethical duty to perform his judicial role with the required competence.

(900-1000 words)

First, the court must confirm its jurisdiction. Under Article III, a plaintiff must have standing to sue, which requires an injury-in-fact, causation, and redressability. Doug has standing because he suffered a direct financial injury (the denial of the PRP) that was caused by the challenged statute, and a court order could redress this injury by requiring his application to be reconsidered under constitutional standards.

The second jurisdictional issue is the Eleventh Amendment, which grants states sovereign immunity from suits in federal court. However, the Eleventh Amendment does not bar suits against state officials for prospective injunctive relief to stop a violation of federal law. Doug's suit is permissible as long as he names the state official responsible for administering the PRP as the defendant and seeks only to enjoin the enforcement of the unconstitutional provisions, which is a classic form of prospective relief.

The Due Process Clause of the Fourteenth Amendment

The Due Process Clause protects against the deprivation of life, liberty, or property without due process of law. Its substantive component protects certain fundamental rights, including the right to travel. The right to travel includes the right to migrate and settle in another state. While the right is fundamental, the Supreme Court has held that states may impose reasonable durational residency requirements as a condition for receiving state-funded benefits, such as in-state tuition or welfare. Such requirements are generally upheld under rational basis review so long as they are not intended to "penalize" the right to travel but rather to ensure that the recipient is a bona fide resident.

Doug's claim would focus on the statute's requirement that out-of-state residents live in State A for one year to establish residency for PRP eligibility. This requirement implicates the fundamental right to travel. However, the Supreme Court has consistently upheld one-year residency requirements for receiving state benefits like subsidized higher education. The state's purpose is not to deter migration into the state but to ensure that these significant financial incentives are directed toward bona fide residents who are more likely to have a lasting connection to the state, thereby furthering the program's goal of retaining physicians. This is a legitimate state interest, and the one-year waiting period is a rational means of achieving it. It does not create an insurmountable barrier but merely delays eligibility.

Therefore, the federal court should rule that the one-year residency requirement does not unconstitutionally burden the right to travel and thus does not violate the Due Process Clause.

The Equal Protection Clause of the Fourteenth Amendment

The Equal Protection Clause prevents states from denying any person within their jurisdiction the equal protection of the laws. The level of judicial scrutiny applied depends on the nature of the classification. Classifications based on race are subject to strict scrutiny, requiring the government to prove the classification is narrowly tailored to achieve a compelling government interest. Classifications based on state residency or socioeconomic background are subject to rational basis review, requiring only that the law be rationally related to a legitimate government interest.

Here, the statute explicitly uses race as a factor for admission. This is a racial classification that triggers strict scrutiny. While the state's goal of improving healthcare in underserved communities is compelling, using race as an explicit factor is almost certainly not narrowly tailored. Following the Supreme Court's decision in Harvard, government programs cannot use race as a determinative factor in awarding benefits. The state could achieve its goals through race-neutral means, such as focusing exclusively on an applicant's socioeconomic status or experience in underserved communities, which only need to pass rational basis review. The use of race as a standalone criterion is a direct and unconstitutional form of racial preference.

Therefore, the federal court should rule that the use of race as an admission factor violates the Equal Protection Clause because it fails strict scrutiny.

The Privileges or Immunities Clause of the Fourteenth Amendment

The Supreme Court interpreted the Privileges and Immunities Clause of the Fourteenth Amendment very narrowly. It protects only those rights related to national citizenship, such as the right to travel between states, to petition the federal government, and to access federal courts and seaports. It does not protect against state infringement of most civil or economic rights.

The federal court should rule that the PRP statute does not violate the Privileges and Immunities Clause of the Fourteenth Amendment and dismiss this claim.

The Privileges and Immunities Clause of Article IV, Section 2

The Privileges and Immunities Clause of Article IV provides that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." The Supreme Court has made clear that the primary right protected by this clause is the right of a citizen of one state to pass through or reside in any other state for the purposes of pursuing a "common calling" or earning a livelihood.

The critical question is whether attending a state medical school with a state-funded subsidy constitutes the pursuit of a livelihood protected by the clause. It does not. The act of being a student and receiving a state-funded education is preparatory to a profession, but it is not the practice of the profession itself. The PRP statute does not prevent Doug from earning a living in State A; it does not bar him from getting a medical license after graduation, setting up a practice, or competing on equal terms with State A doctors. It only denies him a financial subsidy for his education.

Therefore, the federal court should rule that the PRP statute does not violate the Privileges and Immunities Clause of Article IV.

(938 words)

When individuals pool resources, engage in a business for profit, and share in its management and profits, they form a general partnership by default. Partners in a general partnership are personally, jointly, and severally liable for all partnership debts. A corporation is a separate legal entity and is not automatically liable for pre-incorporation contracts made by its promoters. However, a corporation can become liable if it "adopts" the contract, either expressly or implicitly. The promoter who signed the contract (Ann) remains personally liable unless released by the creditor through a "novation."

At the time of the Delta loan, Ann, Bob, and Claire were operating ABC Shoes as a general partnership. They each provided capital, participated in daily operations, and agreed to split profits equally. Ann signed the loan papers on behalf of this partnership. Therefore, the partnership itself is liable for the debt. As general partners, Ann, Bob, and Claire are each personally, jointly, and severally liable for the full $30,000. Delta could sue any one of them or all of them for the entire amount. ABC Inc., which was formed later, would only be liable if it adopted this pre-existing debt. The facts do not indicate any such adoption.

In Conclusion, Ann, Bob, and Claire are personally liable for the Delta loan. ABC Inc. is not liable unless it can be shown that it adopted the loan.

Echo Loan

A fundamental principle of corporate law is limited liability. A validly formed corporation is a distinct legal entity responsible for its own debts and obligations.

Here, The Echo loan was made to "ABC Inc." after it was validly incorporated. Ann signed the note in her official capacity as "President". There are no facts to suggest any grounds for piercing the corporate veil, such as commingling of funds or fraud.

Therefore, only ABC Inc. is liable for the Echo loan.

The Big Shoe Co. Contract

A corporation is bound by the acts of its agents, such as a corporate officer, if the agent was acting with legal authority. This authority can be actual (express or implied) or apparent. Implied actual authority is the authority that an officer reasonably believes she has as a result of the position she holds. Apparent authority exists when the corporation's actions lead a third party to reasonably believe the officer has authority to act on the corporation's behalf.

Here, Ann signed the contract as "ABC Inc. by Ann, President." Although she lacked express actual authority because she did not consult Bob or Claire, she almost certainly possessed both implied and apparent authority. As the president of a retail shoe store, Ann has the implied actual authority to enter into contracts for the purchase of inventory, as this is an act reasonably necessary to carry out her duties and run the business. Furthermore, by holding Ann out as its President, ABC Inc. created apparent authority. Big Shoe Co. was entitled to reasonably rely on Ann's title and believe that she had the authority to bind the corporation in an ordinary business transaction like purchasing inventory. Because Ann acted with at least implied and apparent authority, her signature bound the corporation. As with the Echo loan, the corporate veil protects the shareholders from personal liability.

Therefore, Only ABC Inc. is liable for the contract with Big Shoe Co.

Peter’s Injuries

Under the doctrine of respondeat superior (or vicarious liability), an employer is liable for the torts committed by an employee acting within the scope of their employment. The employee who committed the tort remains personally liable as well. The corporate veil generally protects shareholders, officers, and directors from personal liability for the torts of a corporate employee.

Here, Fred was an employee of ABC Inc. At the time of the accident, he was "driving to pick up inventory," which is a task squarely within the scope of his employment. Because Fred was acting within the scope of his employment when he negligently injured Peter, his employer, ABC Inc., is vicariously liable for Peter's injuries. Fred, as the active tortfeasor, is also personally liable for his own negligence. Peter may sue either ABC Inc., Fred, or both. The corporate form shields Ann, Bob, and Claire from personal liability for a tort committed by a corporate employee.

While ABC Inc. is vicariously liable to Peter, the law generally gives an employer a right of indemnification against the employee who committed the tort. This means that after paying Peter's damages, ABC Inc. could potentially sue Fred to recover the amount it paid.

In Conclusion, ABC Inc. and Fred are liable for Peter’s injuries. Ann, Bob, and Claire are not personally liable.

(776 words)

Liability of Ollie

To establish a claim for negligence, a plaintiff must show that the defendant owed a duty of care, breached that duty, and that the breach was the actual and proximate cause of the plaintiff's damages. Under the principles of premises liability, a landowner’s duty is determined by the status of the person entering the property. An individual present for a business purpose, such as an athlete playing in a rented venue, is considered a business invitee. To such an invitee, a landowner owes the highest duty of care: the duty to maintain the premises in a reasonably safe condition, which includes the obligation to conduct reasonable inspections to discover and either repair or warn of any hidden dangers.

Here, Yvonne was a player on a team that rented the field, clearly establishing her status as a business invitee to whom Ollie owed this high duty of care. Ollie performed an inspection of the field on the afternoon before the game but did not inspect it again prior to the start of play. A jury could determine that this was a breach of his duty. Given that a field accessible to the public could have new hazards appear overnight, a reasonably prudent landowner preparing for a contact sporting event might have conducted a final inspection on the day of the game. Ollie’s failure to do so allowed the broken glass, a hidden danger, to remain on the field.

Therefore, because Ollie owed a duty of care to Yvonne as an invitee and likely breached that duty by failing to reasonably inspect the field, leading directly to her injuries, a court would likely conclude that Ollie is liable for negligence.

Liability of Barry

A coach, by virtue of their position of authority and their role in directing play, owes a duty of care to all participants in a sporting event, including opponents. This duty requires them to refrain from encouraging or directing their players to engage in conduct that is reckless or falls outside the scope of risks ordinarily associated with the sport.

Here, Barry's actions constituted a clear breach of this duty. He specifically instructed Kate to "play more roughly," knowing that she was a "very aggressive player" with a history of starting fights as a result of such instructions. This was not a standard coaching tactic; it was an affirmative act that foreseeably created an unreasonable risk of injury to opposing players.

In conclusion, by intentionally encouraging reckless conduct that exceeded the normal risks of the game, Barry breached his duty of care to Yvonne. As this breach directly and foreseeably caused her injuries, a court would find him liable for negligence.

2

Yvonne's Claim Against Kate

The tort of battery is defined as an intentional act that causes a harmful or offensive contact with another person.

A primary defense to battery is consent. In the context of athletic contests, participants are understood to consent to contacts that are a normal, foreseeable part of the game, even if those contacts might otherwise constitute a battery. However, this consent is not unlimited; it does not extend to acts of violence that are unrelated to the normal play of the game or that occur outside the course of play. While Yvonne did consent to being tackled, bumped, and even knocked down within the course of play, Kate's punch falls far outside the scope of that consent.

Another defense to battery is self-defense. However, it is a well-established rule that mere words or verbal provocation are not legally sufficient to justify a physical attack. Here, Yvonne's question may have provoked Kate, but this verbal taunt provides no legal defense for Kate's physical retaliation.

As all the elements of battery are met and no valid defense exists, Yvonne will be successful in her suit against Kate for battery.

Kate's Claim Against Yvonne

See ruls above.

Yvonne pushed Kate immediately after Kate had punched her. It was objectively reasonable for Yvonne to believe that she might be subject to further attack. Her response—a single push—was a reasonable and proportional use of force intended to create distance and prevent further harm. The action was defensive in nature rather than retaliatory.

Because Yvonne’s push was a justified act of self-defense in response to Kate's initial attack, she is privileged in her action. Accordingly, Kate's claim against Yvonne for battery will fail.

3

The rules for allocating damages among multiple tortfeasors differ by jurisdiction. The majority rule is joint and several liability, under which each defendant may be held responsible for the entire judgment, leaving it to the defendants to seek contribution from one another. To resolve the contribution claim, a jury would be required to allocate the percentage of fault between defendents.

Therefore, Yvonne can collect her entire damages award from either Ollie or Barry. Whichever defendant pays the full amount will then be able to sue the other for contribution to recover the portion of the damages that corresponds to the other’s percentage of fault as determined by the jury.

(848 words)

The Farm Trust is a charitable trust, as it is established for the benefit of the public, specifically the "general benefit of the City." Charitable trusts are subject to different rules than private trusts and are favored by the law, meaning courts are reluctant to terminate them.

Standing: The Attorney General vs. a Party with a Special Interest

As a general rule, the state Attorney General has the exclusive power to enforce a charitable trust on behalf of the public. A member of the general public, even one who may benefit from the charity, typically lacks standing to sue.

However, a critical exception exists for a person who holds a "special interest" in the trust. This special interest arises when the trust instrument provides that upon the failure of the charitable purpose, the assets are to be distributed to a specific, non-charitable beneficiary. This provision, often called a "gift-over" clause, gives that named beneficiary a direct, albeit contingent, property interest.

Here, the will states that if the trust should "fail, for any reason," its assets are to be given to "the children of my granddaughter Betty." Betty's only child, Darcy, is the sole contingent beneficiary of this clause. This gives Darcy a special interest sufficient to confer standing to argue that the trust has, in fact, failed and that her interest should therefore vest. Betty, acting on Darcy's behalf, can properly bring this petition before the court.

Precatory Language vs. Mandatory Direction

The will states that Grandma preferred the farm be used as an active organic-certified farm without chemical pesticides. The word "preferred" is generally considered precatory language, meaning it expresses a wish or a desire rather than a legally binding command. It is a guideline for the trustee, not a condition subsequent that would cause the trust to fail if not met. The primary and overarching purpose of the trust is for the "general benefit of the City." As long as the farm continues to operate for the city's benefit, this primary purpose is being fulfilled.

The Doctrine of Cy Près

Even if the organic farming provision were considered a primary purpose, its failure would not automatically terminate the trust. When a charitable trust's specific purpose becomes impossible, impracticable, or illegal to perform, a court can apply the doctrine of cy près (from the French for "as near as possible"). This doctrine allows the court to modify the trust and direct the assets to a new charitable purpose that approximates the settlor's original intent.

Because the trust's general charitable purpose remains viable, the court will favor modifying the trust's administrative terms over terminating it. Termination would frustrate Grandma's primary intent, whereas modification would preserve it.

B. The Petition to Dissolve the Ancestry Trust

A fundamental principle of trust law is that a trust will not fail for want of a trustee. While Tom, as trustee, engaged in serious misconduct and subsequently died, these events are not grounds for terminating the trust itself.

Upon Tom's death, the office of trustee became vacant. The trust instrument did not name a successor. In such a situation, the court has the inherent authority to appoint a successor trustee to continue administering the trust according to its terms. The trust's purpose—to distribute income annually to Tom's successors in interest (his estate until closed), Betty, and Carol—remains perfectly achievable.

Since the trust's purpose has not been fulfilled, become impossible, or been rendered illegal, there are no grounds for its termination. The proper judicial remedy is to appoint a new trustee and ensure the trust's assets are restored.

C. The Order to Compel Tom's Estate to Repay the Trust

A trustee owes the trust and its beneficiaries the highest duties of loyalty and care. The duty of loyalty strictly prohibits a trustee from using trust assets for their own personal benefit, a practice known as self-dealing.

When Tom wrote a check from the trust's assets to pay his personal medical debt, he directly violated his duty of loyalty. His intention to repay the trust is legally irrelevant to the fact that a breach occurred. The loss to the trust is the amount of money he took.

A trustee is personally liable for any financial loss to the trust resulting from their breach of duty. This liability does not disappear upon the trustee's death. The claim for the misappropriated funds becomes a debt of the trustee's estate. The successor trustee, once appointed, or a beneficiary (like Betty) has the right to bring an action to "surcharge" Tom's estate, which means compelling the estate to make the trust whole for the loss he caused.

Therefore, Betty's petition on this point is proper, and the court will grant the request to order Tom's estate to repay the full amount he misappropriated from the Ancestry Trust. This action is necessary to restore the trust principal and ensure its proper administration for the beneficiaries.

（823 words）

我们第一时间在学员群内通知大家查分，袁律和小林随即陆续收到参加了本次考试的学员发来的好消息。截至目前，本次考试学员通过率接近80%！远超NY官方发布的外国考生46%的通过率！

我们由衷地为成功的学员感到骄傲！许多学员特别反馈，我们提供的备考服务在实战中“非常有效”“非常贴近真实”“逻辑清晰、考点分明”。感谢大家的认可，我们也非常开心和荣幸能陪大家共度这一段努力的经历并见证大家取得好成绩。

对于暂时失利的学员，我们也将协助进行针对性分析、定位薄弱环节，为下一次的冲刺做好准备。

所以在美国停留了三周，平均每个工作日拜访了一所法学院。临行之前还被安排了拍摄vlog的任务，所以你可以在B站和小红书看到大概十几所法学院的现场视频和简单介绍。当然，每天一所的访问也不会有什么深入了解，但我已经从排名、天气、学费、生活成本、社团活动、就业、移民等方面尽可能介绍了一些我所知道的，希望对明年申请LLM的法学生们提供一些帮助。

让人欣慰的是，很多人在我去之前就已经知道了我。没有什么比直接被人认出来更开心的事情，如果有，那就是当面夸我教得好或者长得帅了。

即便本次访问是市场性质的，但我是个i人，当面推销这种事情我做不出来。所以在USC的两场交流会上介绍课程的部分也是一笔带过。9月13日线上那场也会是同理。让大部分新入学的法学生知道我的存在，我已经非常满足，至于是否要选我反而并没有那么重要，用服务、教学和通过率说话就可以了。所以我回国之后，短期内不会有太多宣讲活动了，我会把从现在到明年2月考试之间的时间用来专心做内容。

最后感谢在各法学院遇到的学员和非学员们，期待明年7月纽约州的考场再次相遇。

近期很多网友学员看到袁律的美国名校法学院探访系列vlog后都来问，袁律来美国啦？待到什么时候呀？来都来了，什么时候开美国交流会呀？

朋友们！你们要的线下交流会来啦！

感谢多方邀请和协助，在9月开学季，我们将在USC连开两场交流会，欢迎大家来现场交流！

第一场​

时间：美西9月4日 2:00PM-3:50 PM 地点：USC 法学院 Room 130

第二场​

时间：美西9月5日 10:00 AM-12:00 AM 地点：USC 法学院 Room 101

两场内容完全一样，任选一场参加即可

讲座内容​

• 各州考试的申请资格，选课注意事项 - 10分钟

• 考试内容 - 10分钟

• 复习方法 - 10分钟

• 附带聊聊执业和移民的问题 - 不超过5分钟

• 袁律课程的介绍 - 不超过5分钟

• 剩下的时间留给答疑

不需要提前报名！欢迎Walk-in!

欢迎分享/转发给身边的小伙伴，一起来参加！

有任何问题都欢迎随时联系助手号咨询！

很抱歉我们无法给到更多折扣：我们的服务本就性价比很高，而今年又新增了很多内容，可以保证你未来2-3年不需要再购买其他任何材料。而且在入学季提供折扣，也是鼓励大家早点开始听课和刷题：每年都有很多到6月甚至7月才来报名课程的LLM学员，这个时候再来报名，无论花多少钱、报名多少家的课程，如果前期不是已经做了大量的备考，大概率已经无法通过考试（JD会好很多）。

但如果从现在开始准备明年7月（或许2月都来得及，如果你已经是国内律师，可以考2月加州），尤其是纽约的话，只要方法正确大概率都可以通过。我们的课程在报名后立刻开通，答疑全年无休，就算圣诞、元旦和除夕也依然保持12小时内回答的惯例。对于大部分LLM来说，本来就只有不到1年的时间，课业又繁重（而且课程和考bar没什么太大关系），我们始终认为，LLM无论什么时候开始准备考bar都不算早。

今年的开学季还有如下活动。

袁律师线下见面​

如果你是9月美国LLM新生，希望获得关于考Bar面对面的建议，有机会在8月底或者9月初在学校见到袁律！目前确定会去的学校包括：USC，Northwestern，Chicago, WUSTL，Penn State，NYU，Boston，Georgetown，Stanford，UCB和UCLA.

我们还会在稍晚的时候在香港大学、香港中文大学、香港城市大学和北京大学国际法学院线下宣传。

如果你的学校不在清单中，或者虽然在清单中但想知道袁律师具体什么时候来贵校，请联系助手。

线上宣讲​

我们定于美国时间9月13日（周六）在腾讯会议（美东：EST 9月13日晚上9点；美中：CST 9月13日晚上8点：美西：PT 9月13日下午6点）为LLM进行更详细地介绍考试内容、资格申请和备考方法。大约半小时介绍内容，半小时答疑。

袁骏律师邀请您参加腾讯会议

会议主题：线上LLM考bar分享会

会议时间：2025/09/14（周日） 09:00 中国标准时间 - 北京

点击链接入会，或添加至会议列表：https://meeting.tencent.com/dm/DF2MwwPGxQDe

#腾讯会议：240-366-285

根据需求的变化，也可能提前有其他针对具体院校的线上或线下介绍会。

再次强调，袁律师的课程本来就已经非常便宜，除了开学季以外没有其他优惠活动，线下见面、线上宣讲也不会有折扣了。只会回答专业方面的问题。

考场收获最大的就是关于教研重要性体会。前期刷UWORLD已经是所有人的共识（有一些非学员仅仅因为我不断强调UWORLD的重要性就来感谢我），但最后两个月最重要的复习季应该干什么则是我在免费课里没有说的。而且，每个学员的水平不一样，给出的建议自然也不尽相同。NCBE最新的200题已经是将近5年前放出的（而且这200题偏难怪，和考场上知识点重合度不高），在此之后UWORLD几乎没有什么变化。再上一批的210题就要追溯的2017年（这次反而契合度很高）。随着时间的推移，考场上的热点已经不再是UWORLD这些机构能掌握的了——大型培训机构比如Barbri或许可以掌握，但他们本来就并不十分应试，更不屑于在课堂上一再强调所谓近期的热点。所以真正能给华人律师给出相对准确的热点的，也就只剩那么两家机构。所以我最近看到突然有一些新人想进入来卷这个行业——实在是没有必要，第一是你很难卷过我，好好干律师比干我这行赚多了，第二是如果你刚进入这个行业，根本不知道考场上喜欢考什么，如果真的收到了学员，我是捏把汗的。 对论文来说，我一直的观点是短期内无法快速提升，考前只需要2-3周时间准备。大部分备考的学员发了论文来改，我对每个人会提出具体的建议。目前我发现PT有必要单独介绍一些重点，加上现在我已经对过去几年的PT如数家珍（改论文改出来的熟练），所以我会在下一阶段考虑PT的教研。至于小论文，合作机构SmartBarPrep的材料已经很好。我给一个JD学员介绍国内律师备考的方法是背rules而不是用自己的话陈述rules直接给他惊呆了。我不反对背rules或许有唬住考官的奇效，但那太痛苦了。

对选择题来说，除了那25个测试题，答案只有对或者错，不存在模棱两可。考前答疑群里一定要把所有提出的问题彻底辩明白。除非的确是实务上存在争议并不会出现在题目中的知识，否则任何人答错了——包括我在内——必须被纠正，不留模糊的空间。考场上遇到了就一定要选中正确答案，这是选择题教研的核心。 所以考出来，Reddit等论坛老外对题目叫苦不迭，而我的学员并没有太大意外。完全出乎意料的知识点有没有？不可避免的有，但很少。大部分考场上遇到但UWORLD里面没有或一笔带过的知识点在考前一个月内被非常科学的教研手段弥补了。最终大家都是带着几乎完备也没有错误的知识体系上考场。所以，即使还要等3个月才出分，我已经可以断言11月学员们会带来喜人的成绩。

我今年花了2个月时间就单单准备考前的教研，而不是去更新已经比较老的精讲视频，现在看来时间花的非常值。当然，我会更新那些老视频，但那并不是我课程的重点——虽然学员付费后第一时间收到的是教材和视频课，但那只是你的课费买到的相对不重要的东西。教研才是我课程的竞争力。作为北师大的学子，我本科和硕士相当一部分课程是学习如何把人教懂，相信不会有人在这方面轻易领先我。答疑和批改论文本来也是核心竞争力，但现在有了AI，大部分时候比我自己答疑和批改要详细和耐心，我的角色目前只是调教AI、输入学生的问题，以及检查AI回答的正确性了（或许很快连这都不需要了）。现阶段，和AI的配合或许算是我的核心竞争力之一吧。 所以，这也是为什么我这次一定要去洛杉矶的原因，为考生服务固然重要，但更重要的是在考后coffee chat的只言片语中记录和思考明年的教研。

（如果明年换Kaplan出题，请不用担心，没有人比我更懂Kaplan的教研，虽然他们自己的示范题都一堆错误着实让人捏把汗）

时间：7月26日 13:00 - 16:00

地点：星巴克，200 Broadway Ste 4, Oakland, CA 94607

7.28 Anaheim交流会​

时间：7月28日 13:00 - 16:00

地点：星巴克，1800 S Harbor Blvd Ste 101, Anaheim, CA 92802

上述两场不会分享和考试本身（考题）有关的信息，可以解决技术问题和领一些文具。请大家以在酒店复习为主。饮品仅限蒸汽奶或热巧克力。

7.29（考试day 1） Pasadena现场考务​

早上和中午，Pasadena门口给大家提供帮助（学员优先）

7.30（考试day 2） Ontario现场考务​

早上和中午，Ontario门口给大家提供帮助（学员优先）

7.30 Ontario交流会​

时间：7月30日 17:30 - 随缘结束（营业时间到24点） 建议吃完晚饭过来

地点：星巴克，111 N Vineyard Ave Ontario, CA 91764

7.31 Pasadena交流会​

时间：7月31日 9:00 - 随缘结束 但不会持续到午饭

地点：星巴克，300 E Colorado Blvd, Pasadena, CA 91101, USA

8.1 USC交流会​

时间：8月1日 13:00 - 16:00

地点：星巴克，3584 S Figueroa St, Los Angeles, CA 90007

Q & A​

Q：学员和非学员都可以来吗？

A: 都欢迎。但文具优先供应给学员。

Q：不在交流会期间需要技术支持，如何联系？

A: 请联系助手号。学员可以在群里呼叫袁律师。

Q：会不会有考过的学员前来分享经验？

A: 欢迎即将考过的你前来分享经验。

这次加州通过率确实很高。我的学员通过率在75%左右，这比加州整体的55%还要高出不少。往年我的学员通过率通常介于外国律师通过率和整体通过率（包括JD）之间，这次算是一个突破。中国地区考生这次表现也确实亮眼，有学员查了留中国地址通过的有98人，这还不包括那些留美国地址的华人LLM。

但对于这种高通过率，我想强调调分是主要因素。我教的好不好，大家自有公论，但和2月这次的通过率峰值没有绝对的直接关联。我教的再好，今年7月通过率也不大可能超过50%。所以，2月这次机会，抓住了就是幸运，没抓住也不必过于纠结，应尽快调整心态，着眼未来。

通过的关键是什么？还是选择题。和我沟通的未通过学员，多数是UWorld一遍都没完成，少数是刷完一遍但投入不够。当然，也有极个别刷了两遍UWorld仍未通过的情况，这可能涉及到刷题，但属于绝对少数。

不刷UWorld能不能通过？理论上可行，尤其2月份只要论文表现尚可也能通过。但对多数中国考生而言，单纯依靠论文通过考试，难度不小。我的学员中，论文突出让我觉得选择题可以不怎么学的有，但人数不多，而且基本都是JD。所以，想稳定通过，还是要靠选择题。这次2月未通过的成绩单，论文固然有不足，但选择题的表现是决定性的。

点击查看加州2月论文点评

纽约​

纽约方面，学员通过率略少于一半。此外还有两到三成的学员分数在260-266这个区间，加上这部分学员通过率就很可观了。对于这部分学员，我们一直在探讨用这个分数去申请那些接受260分标准的州的执照，毕竟NY的华人律师数量远超这些州，这意味着即便拿到了NY Bar，后续的职业发展路径可能会更拥挤。因此，对于部分考生而言，与其在NY这座“独木桥”上竞争，不如考虑用一个尚可的成绩，去一个执业压力相对较小的州，过几年如果确有需要，可以考虑transfer到DC或WA等大州，不失为一种更具性价比的选择。

让我比较欣慰的是，LLM学员的数量有所增加，虽然在LLM群体中选择我的课目前仍然是少数，但是个积极的信号。恳请各位LLM学员务必在班上多多宣传。

关于备考和未来的一些看法​

选择题是核心：这一点我反复强调。无论是加州还是纽约，这本质上是一个选择题决定结果的考试。选择题分数够高，通过的确定性就大得多。

论文的投入回报：我目前也在尝试AI辅助批改论文，希望能提高效率。但实话实说，考前一两个月集中攻克论文，分数提升的上限通常在40-50分。而选择题，如果方法得当，短期内提升100多分并非不可能。所以，备考后期，主要精力还是应该放在选择题的错题整理和知识点巩固上。论文可以每天分配少量时间练习，掌握基本技巧即可。

经验贴的参考价值：今年2月加州通过的经验，参考性可能有限，核心就是UWorld刷透。很多学员写了经验分享，我没有发在公众号，部分原因也是不想在平台过多提及或比较友商。他们大多在小红书有分享，大家可以自行搜索。

考试趋势展望：今年7月是NCBE命题。明年加州若回归Kaplan，大家也不必担心。我对Kaplan的真题体系比较熟悉，甚至超过NCBE。Kaplan的模拟题可能风格独特，但真题相对会常规且简单一些。核心还是掌握好选择题。

再次恭喜2月通过的学员。

7月换回NCBE​

加州确定今年7月换回了NCBE的题目，也就是今年7月加州和纽约的考题会一样，大概率也不存在什么用电脑做选择题了（NCBE似乎要求必须纸质题、纸质回答）。

至于题目风格，其实我更喜欢求变一些，因为今年2月过后其实我更了解Kaplan了。同样喜欢求变的考生也不用担心，和Kaplan的合同还没有结束，明年2月和之后的考试有望又换回Kaplan.

临时资格​

理事会批准向加州最高法院提交以下针对2025年2月加州律师资格考试未通过者或退考考生的补救计划：

1. 《规则9.49》临时执业计划的扩展与延期（该计划允许法学院毕业生在持牌律师监督下开展法律执业。参与者仍需通过律师考试并满足其他准入要求才能获得正式执照。）

   a. 该计划修订后适用于两类人群：未通过2025年2月加州律师资格考试的考生，以及在考试前退考的考生。

   b. 计划有效期延长至实施后两年或2027年12月31日（以较晚者为准）。此截止日期适用于现有计划参与者及新增群体。

   c. 加州律师协会可向参与者收取合理申请费，用于覆盖计划实施及管理成本。

2. 美国执业律师特许准入通道

   a. 若《商业与职业法典》第6062条修订后允许美国执业律师免试获取加州执业资格，律师协会应制定"宣誓准入admission on motion"程序，适用于美国其他司法辖区持照且无不良记录的律师。（以AB 1522法案通过为前提，法案授权CBE为执业满4年的外州律师制定免试准入方案，未满4年者需参加差异化考核。）

   b. 过渡期内，律师协会应为符合以下条件的律师制定并实施快速特许准入程序：其他美国司法辖区持照且无不良记录，并曾参加或退出2025年2月加州律师资格考试者。

关于重新评估2月考生诉求​

包括：

• 取两轮阅卷较高分而非平均分
• 为接近及格线考生设立申诉机制
• 允许仅重考2025年7月实务测试（PT）并替换2月成绩（中国考生不要轻易尝试这个）
• 核查考生反映的答案错配、考试便利措施被拒等问题

费用豁免政策​

Board of Trustee审议并通过了考试委员会关于费用豁免的提议。具体包括如下内容：

1. 批准将2月会议通过的2025年7月律师资格考试费用豁免政策扩展适用范围，即支持以下三个考试中最早参加的场次——2025年2月律师资格考试的退考考生或未通过该次考试的考生首次报考的场次：2025年7月、2026年2月或2026年7月；
2. 允许已使用费用豁免来申请2025年7月律师资格考试的考生退考，并将该费用豁免转用于2026年任一场次的律师资格考试。

试考出分和加分延期政策​

去年11月试考结果发送给参加试考的考生。

拟向最高法院提议，试考除了可以给2025年7月加20分，也可以转用于2026年任一场次的律师资格考试。但依然只能调分一次，2月调过的7月就不能再调了。

Larry accepted payment from Carla's mother (M) on the condition that M be informed of all aspects of the divorce, including Carla's confidential statements to Larry. This information is protected under the duty of confidentiality. Sharing such information requires the client's informed consent, which is advisable to confirm in writing (and often required under California rules for waivers). Agreeing to M's demand, especially without C's valid informed consent, would compel Larry to reveal confidential information obtained during the representation. Larry likely violated his duty of confidentiality by agreeing to the mother's condition for payment without proper client consent.

Duty Regarding Third-Party Payment​

Lawyers must not accept payment from a third party unless the client gives informed consent (which must be informed written consent in CA), there is no interference with the lawyer's independent professional judgment or the client-lawyer relationship, and client confidentiality is maintained. M's condition directly links payment to the disclosure of confidential information and potentially interferes with L's independent judgment by creating an obligation to the payer. Accepting payment under these conditions without meeting all requirements, especially regarding informed written consent and non-interference, constitutes an ethical breach. Larry likely violated the rules governing acceptance of payment from a third party.

Duty Regarding Termination and Scope of Representation​

Larry sent Carla a disengagement letter after the divorce but simultaneously offered future assistance on related matters and kept her file open. He later provided ongoing legal advice on new issues (tax, support, visitation). This created ambiguity about whether the attorney-client relationship truly ended or continued, at least for post-divorce matters. An attorney has a duty to clearly communicate the status and scope of representation. Failing to definitively terminate the relationship, especially while continuing to provide legal advice, makes it likely Carla remained a current client for some purposes. Larry likely violated his duty to clearly define the scope and status of the attorney-client relationship.

Duty Regarding Sexual Relationships with Clients​

Larry entered into a consensual sexual relationship with Carla after her divorce was final. Both ABA and California rules strictly regulate or prohibit sexual relationships between lawyers and current clients. Given the ambiguity regarding termination and Larry's ongoing legal advice, Carla could reasonably be considered a current client when the sexual relationship began. If so, Larry violated ABA rules. The relationship also creates significant risks under California rules, particularly regarding potential undue influence given Carla's dependency and the potential impact on Larry's professional judgment. Larry likely violated ethical rules by entering into a sexual relationship with someone who was arguably still a current client.

Duty of Competence​

Larry, primarily a divorce lawyer, provided ongoing advice to Carla on tax, child support, and visitation matters. A lawyer must provide competent representation, possessing the necessary legal knowledge, skill, thoroughness, and preparation. If Larry lacked expertise in tax law, providing advice in that area without becoming competent or associating with a competent lawyer constitutes a breach of this duty. Larry likely violated his duty of competence by providing advice in areas outside his primary expertise, such as tax law.

Duty Regarding Business Transactions with Clients​

Larry entered into a partnership agreement with Carla, wherein he provided capital and she ran the business. This constitutes a business transaction with a client (likely current, given ongoing advice and relationship). Such transactions require strict compliance with ethical rules: terms must be fair, fully disclosed in writing; the client must be advised in writing to seek independent legal counsel and given the chance to do so; and the client must give informed written consent to the terms and the lawyer's role. Larry drafted the agreement, suggested Carla could have her mother (not independent counsel) review it (not in writing), and obtained Carla's signature based on trust. This fails to meet the requirements for written disclosure, written advice to seek independent counsel, and properly documented informed written consent. Larry clearly violated the strict rules governing business transactions with a client.

Duty of Loyalty (Conflicts of Interest)​

Larry's personal, sexual, and business relationships with Carla created significant conflicts of interest. His personal interests (romantic and financial) could materially limit his ability to exercise independent professional judgment when advising Carla, whether on the partnership or other legal matters. He failed to obtain the necessary informed written consent to proceed despite these conflicts (required if the conflict is consentable, which is questionable here given the multiple intertwined personal and financial interests). Larry likely violated his duty of loyalty by engaging in relationships and transactions that created conflicts of interest without proper client disclosure and consent.

(750 words)

Governing Law​

This case involves an employment contract, which is a contract for services. Therefore, the common law of contracts governs, not the Uniform Commercial Code (UCC).

Contract Formation​

A valid contract requires mutual assent (offer and acceptance) and consideration.

• Offer: Delta High's principal telephoned Phil and offered him a one-year temporary position as head of the science department at a salary of $80,000.

• Acceptance: Phil initially stated, "I'm only interested if I can be head of the science department." This could be seen as setting a condition or clarifying the offer he was willing to accept. The principal responded, "Perfect! ... half-time teaching and half-time administration." This likely constituted a specific offer for the Head of Department role with mixed duties. Phil then unequivocally stated, "I accept." This appears to form a contract based on the specific terms discussed orally (Head of Department, $80k, mixed duties, Aug '23 - June '24).

• Consideration: Phil promised his services (teaching and administration), and Delta High promised to pay $80,000. Valid consideration exists.

Based on the phone call, there appears to be mutual assent to a contract for Phil to serve as temporary Head of the Science Department with both teaching and administrative duties.

Statute of Frauds (SoF)​

The Statute of Frauds requires certain types of contracts to be evidenced by a writing signed by the party to be charged to be enforceable.

The SoF applies to contracts that, by their terms, cannot be fully performed within one year from the date of their making. Phil's contract was formed around March/April 2023 and was set to run from August 2023 to June 2024. Performance would conclude more than one year after the initial agreement was made (e.g., March 2023 to June 2024 > 1 year). Therefore, this contract falls within the SoF and requires a sufficient writing.

Effect of the May Form​

Delta High might argue the May form constitutes the written contract, making prior oral evidence inadmissible under the Parol Evidence Rule and potentially defining the terms. However, this argument is weak. The contract was formed during the phone call when mutual assent was reached. The form arrived later, initiated by Delta High primarily for payroll purposes. Although signed by the principal when sent, Phil only signed and returned it later as requested. Therefore, even with both signatures eventually, the form doesn't automatically supersede the prior oral agreement as a fully integrated writing intended by both parties to be the final expression of their deal, especially regarding the crucial job role. It appears more administrative or, at best, a unilateral attempt by Delta to introduce terms (like "duties at the discretion of the School") that contradict the specific, agreed-upon Head of Department role. Phil can argue the oral agreement is the contract and the form either fails to satisfy the SoF regarding the essential term of his position or its contradictory terms are ineffective modifications.

Promissory Estoppel as an Exception to SoF​

Even if the SoF is not satisfied by the oral agreement combined perhaps with the form, Phil might argue for enforcement based on promissory estoppel. This requires: (1) a promise made by the defendant; (2) defendant's reasonable expectation that the plaintiff would rely on the promise; (3) plaintiff's actual and reasonable reliance on the promise to their detriment; and (4) injustice can only be avoided by enforcing the promise.

Here, (1) Delta's principal promised Phil the Head of Department position. (2) Delta should have reasonably expected Phil to rely, especially since obtaining administrative experience was his stated goal. (3) Phil detrimentally relied by taking a one-year leave of absence from his job at City High based on Delta's promise. (4) Injustice would result if Phil is left without either job for the year due to his reliance on Delta's promise.

Therefore, Phil has a strong argument for promissory estoppel to overcome the SoF defense due to his clear detrimental reliance.

2. Phil's Available Remedies​

If Phil prevails, he would likely be entitled to remedies designed to compensate him for the breach, primarily expectation damages.

Expectation Damages​

Expectation damages aim to put Phil in the financial position he would have been in had Delta High performed the contract. Generally, this means receiving the value of the promised salary ($80,000) minus any amount Phil earned (or reasonably could have earned) through mitigation efforts. Phil had a duty to mitigate his damages by seeking comparable employment. He rejected Delta's teaching-only offer and a $40,000 coaching job at City High, ultimately taking a $30,000 gardening job. A key issue is whether the $40,000 coaching job was comparable employment; Phil can argue it wasn't, given his goal of gaining administrative experience. If his mitigation (taking the $30k job) was reasonable, damages are $80k - $30k = $50k. If rejecting the $40k job was unreasonable, damages are $80k - $40k = $40k.

Specific Performance​

Specific performance is an equitable remedy compelling a party to perform their contractual obligations. It may be available when monetary damages are inadequate to compensate the non-breaching party. Here, Phil's expectation damages calculated as his lost salary less mitigation, appear fully adequate to compensate him for the financial loss caused by Delta High's breach. Furthermore, specific performance is particularly unnecessary here because the contract was only for a one-year temporary position, a relatively short duration, making monetary compensation a more practical and suitable remedy.

Conclusion​

Phil's most likely remedy is expectation damages. These would likely be calculated as his promised $80,000 salary minus his actual earnings from the gardening job ($30,000), resulting in $50,000. This assumes his rejection of the $40,000 coaching job constituted reasonable mitigation because coaching was not comparable employment given his specific career objectives and the nature of the promised position at Delta High. If a court were to find the coaching job was sufficiently comparable and his rejection unreasonable, his damages would be limited to $40,000.

(950 words)

The primary question regarding Lender's mortgage is whether Carlos took title to the house subject to it. The jurisdiction operates under a race-notice recording act. This type of statute protects a subsequent purchaser who pays value for property, takes without notice of a prior conflicting interest, and records their own deed before the prior interest is recorded. When Barry bought the house from Allison, Lender's mortgage had not yet been recorded. Barry paid market price, satisfying the value requirement. Nothing suggests Barry had actual knowledge or was on inquiry notice of the mortgage. Because Lender's mortgage was unrecorded when Barry recorded his deed, Barry also lacked constructive notice. Since Barry was a bona fide purchaser for value without notice who recorded first, he acquired title from Allison free and clear of Lender's unrecorded mortgage under the race-notice statute.

Later, Barry sold the house to Carlos. By the time Carlos finalized his purchase, Lender's mortgage had been recorded for several weeks. In a jurisdiction using a parcel index system, this proper recording provided constructive notice to the world, including Carlos, regardless of whether he actually knew about it. Therefore, Carlos himself does not qualify as a bona fide purchaser without notice relative to Lender's mortgage.

However, Carlos is protected by the Shelter Rule. This common law doctrine allows a grantee who acquires property from a bona fide purchaser (like Barry) to stand in the shoes of their grantor. Carlos takes the same protection against the prior interest (Lender's mortgage) that his grantor, Barry, enjoyed. The purpose of this rule is to ensure the BFP (Barry) can freely transfer the good title he obtained. Even though Carlos had constructive notice of the mortgage when he purchased, he acquired title from Barry, who had already defeated Lender's interest under the recording act. Consequently, Carlos took title to the house free from Lender's mortgage, and Lender's action against Carlos should fail.

2

Carlos's Potential Claims Against Barry Under the General Warranty Deed Carlos received a general warranty deed from Barry. This type of deed contains several covenants, or promises, about the quality of title being conveyed. These typically include present covenants (breached, if at all, at the time of conveyance) like the covenant against encumbrances, and future covenants (breached upon later interference) like the covenant of quiet enjoyment and the covenant of warranty.

Carlos might consider claiming Barry breached the covenant against encumbrances because Lender's mortgage existed and was recorded when Barry sold the house to Carlos. However, an encumbrance must typically be a valid claim against the property to breach the covenant. As established above, due to Barry's status as a BFP who recorded first, Lender's mortgage was legally unenforceable against the title Barry acquired and subsequently conveyed to Carlos. An unenforceable lien generally does not constitute a breach of the covenant against encumbrances. Similarly, Barry did own the property (seisin) and had the right to convey it free of Lender's claim. Thus, the present covenants were likely not breached.

Carlos might also look to the future covenants due to Lender's lawsuit. The covenants of quiet enjoyment and warranty promise that the grantee will not be disturbed by, and the grantor will defend against, lawful claims of superior title. While Lender's lawsuit is certainly a disturbance to Carlos's possession, the claim itself is not lawful or superior against Carlos's title, thanks to the Shelter Rule. Because Lender's claim should ultimately be defeated, Barry's obligations under the future covenants likely have not been triggered. Therefore, Carlos probably has no successful claim against Barry under the general warranty deed based on Lender's mortgage or the resulting lawsuit.

3

The question of Barry's liability for the air conditioning unit turns on whether the unit was a fixture or remained personal property. A fixture is an item of personal property that has been attached to real property in such a way that it becomes legally regarded as part of the real property itself, passing with the land to a buyer. Courts determine fixture status by looking at the method of attachment, the item's adaptation to the use of the property, and, most importantly, the objective intention of the party who installed it.

Here, the AC unit was installed by Allison to improve kitchen ventilation. It was "screwed to a bracket mounted through an exterior wall." This method suggests a fairly permanent installation requiring penetration of the building structure, and its removal would likely leave holes or other damage. The unit was adapted to the house's use by providing cooling and ventilation. Objectively, installing such a unit suggests an intention to make a permanent improvement to the habitability and value of the house. In disputes between a seller and buyer of real estate, courts often presume that items attached in this manner by the owner were intended to remain with the property unless specified otherwise. Since the sales contract between Barry and Carlos was silent on the unit, the analysis points towards it being a fixture.

As a fixture, the AC unit became part of the real property that Barry owned and subsequently contracted to sell to Carlos. Barry's removal of the unit the day before closing, without any agreement allowing him to do so, meant he failed to deliver the property in the condition agreed upon (which includes fixtures). Therefore, Barry is likely liable to Carlos for the value of the air conditioning unit he improperly removed.

(900 words)

Under California law, a will or part of a will can be revoked by a subsequent testamentary instrument or by a physical act performed by the testator with revocatory intent. Physical acts include burning, tearing, canceling, obliterating, or destroying the will or a portion thereof. Here, Tammy's act of crossing out the "$10,000" figure qualifies as a physical act of cancellation or obliteration, which effectively revoked the original $10,000 bequest.

The issue then becomes the effectiveness of the handwritten "$20,000" figure. While Tammy clearly intended to increase Natalie's gift, this handwritten interlineation does not meet the formal requirements for executing a valid will or codicil under California law. It lacks the necessary witness signatures (unless considered a valid holographic modification, which requires the material provisions to be in the testator's handwriting – here, only the amount, initials, and date are handwritten, likely insufficient). Therefore, the attempt to bequeath $20,000 is invalid.

The situation – where a testator revokes a gift intending to replace it with another that ultimately fails – triggers the doctrine of Dependent Relative Revocation (DRR). DRR operates under the presumption that the testator would prefer the original gift to stand rather than have the revocation take effect if the intended replacement fails. It applies when the revocation is conditional upon the validity of the new disposition. Here, it seems highly probable that Tammy crossed out the $10,000 only because she believed she was effectively substituting it with $20,000. Her intent was clearly to benefit Natalie, likely more generously. She would presumably not have wanted Natalie to receive nothing, which would be the result if the revocation stood alone. Because the attempted $20,000 gift is invalid, DRR allows the court to disregard the revocation (the crossing out) as being dependent on a mistaken belief (that the new amount was validly bequeathed). Consequently, the court will likely reinstate the original provision, and Natalie will receive the $10,000 initially specified in the validly executed will.

2

The primary goal in will interpretation is to ascertain and effectuate the testator's intent. While the plain meaning of terms is a starting point, California law permits the consideration of extrinsic evidence to interpret a will's terms, even if they are not ambiguous on their face, to determine the testator's intent.

Here, the term "coin collection" presents a latent ambiguity when applied to the specific property Tammy owned and how she maintained it. Several pieces of evidence suggest Tammy intended Frank to receive the medals. First, she stored the medals together with the coins in the same album. This physical integration suggests she viewed them as a single collection or unit for practical purposes, regardless of technical definitions. Second, and more significantly, the album contained a typewritten note signed by Tammy stating she wanted Frank "to take care of her album" after her death. While this note likely cannot be formally incorporated by reference into the will (as the will doesn't mention it and it may not have existed when the will was signed), it serves as powerful extrinsic evidence of Tammy's intent regarding the album's contents. Her specific reference to the "album" strongly implies she intended Frank to possess everything within it, which includes both the coins and the medals.

Although most collectors differentiate between coins and medals, Tammy's personal classification and intent, as evidenced by her storage practices and the separate signed note directed at Frank concerning the album, are paramount. The court will likely find that Tammy used the term "coin collection" loosely to refer to the entire contents of the album she curated. Therefore, prioritizing Tammy's specific intent demonstrated through extrinsic evidence, the court will likely rule that Frank inherits both the coins and the medals contained within the album.

3

California has adopted the doctrine of cy pres by statute, allowing a court to modify the terms of a charitable trust if its original purpose becomes impossible, impracticable, unlawful, or wasteful. For cy pres to apply, the court must find that the testator had a general charitable intent, broader than the specific purpose stated. If the intent was solely limited to the narrow purpose which has failed, the trust would fail, and the funds would pass to the testator's heirs or under the residuary clause (though here, this is the residuary clause).

Courts often presume a general charitable intent unless the will clearly indicates otherwise. Tammy dedicated her entire residuary estate to this trust, suggesting a significant commitment to a charitable cause related to RG syndrome and eyesight. While "finding a cure" is specific, it falls under the broader category of combating eye disease and promoting eye health. The absence of a gift-over provision (specifying what happens if the trust purpose fails) further supports the inference of a general charitable intent.

Here, the court must determine if NTC's proposed modification – funding ophthalmology scholarships – aligns with Tammy's general charitable intent and is "as near as possible" to the original purpose. Supporting education in ophthalmology directly relates to eye health and the prevention or treatment of eye diseases like RG syndrome, albeit through a different mechanism (education vs. research for a specific cure). It benefits the same field of medicine and ultimately aids those with vision impairment. This proposed purpose appears to be a suitable and analogous application of the funds within Tammy's likely general charitable intent to combat eye disease.

Therefore, the court is likely to find that Tammy possessed a general charitable intent related to eye health, that the original purpose is impossible, and that NTC's proposed modification is appropriate under the cy pres doctrine. The court will likely grant NTC's petition to change the trust's purpose to establishing ophthalmology scholarships.

(920 words)

The analysis begins with Rob's first statement, "Yes, it was me," made in the restaurant. Rob will argue this statement is inadmissible under the Fifth Amendment based on Miranda v. Arizona. He was clearly subjected to a custodial interrogation without the requisite warnings. Officer Otto, uniformed and armed, ordered Rob not to move and to keep his hands visible. Under these circumstances, a reasonable person would not feel free to leave, establishing custody. Officer Otto's direct question about whether Rob was the robber constituted interrogation, as it was reasonably likely to elicit an incriminating response. Since Rob was subjected to custodial interrogation without being advised of his rights to remain silent and to counsel, his confession must be suppressed as a violation of his Fifth Amendment privilege against self-incrimination. While the prosecution might suggest this was merely an investigative detention or invoke the public safety exception, the level of restraint indicates custody, and the question asked pertained directly to guilt rather than an immediate safety threat like the gun's specific location, making these counterarguments weak. Therefore, this initial confession is likely inadmissible in the prosecution's case-in-chief.

2

Next, we consider Rob's statement at the police station revealing the location of the stolen money. This statement occurred two hours after the initial encounter, following proper Miranda warnings and an affirmative waiver by Rob. Rob will argue this statement should also be suppressed as "fruit of the poisonous tree," tainted by the initial Miranda violation. He might contend that the unwarned confession psychologically compelled the later one, or that the police employed an improper "question first, warn later" tactic.

However, courts generally permits the admission of a statement obtained after proper Miranda warnings and waiver, even if preceded by an unwarned but voluntary statement. Here, there is no indication Rob's initial statement was coerced. Furthermore, the significant time lapse (two hours), the change in location (from restaurant to police station), and the formal administration of Miranda rights serve to attenuate the connection between the initial violation and the subsequent, warned confession. This break in the stream of events distinguishes the situation from the deliberate, continuous interrogation strategy. Thus, Rob's voluntary waiver after receiving proper warnings likely renders his statement about the money admissible.

3

Regarding the gun found in the briefcase, Rob will challenge its admissibility under both the Fourth and Fifth Amendments. Under the Fourth Amendment, he will argue Officer Otto conducted a warrantless search of the briefcase, in which Rob had a reasonable expectation of privacy. He will contend that no warrant exception applied. A search incident to lawful arrest (SILA) might be questionable if the search preceded the formal arrest, or if the briefcase was deemed outside Rob's immediate control once Officer Otto confronted him. Rob might also argue the gun is suppressible as physical fruit derived from the unwarned statement under the Fifth Amendment. The prosecution, however, has compelling counterarguments. The Miranda rule does not require suppression of physical evidence discovered due to a voluntary but unwarned statement. Furthermore, under the Fourth Amendment, the prosecution can argue the gun would inevitably have been discovered through lawful means. This doctrine provides a strong basis for admitting the gun, irrespective of the timing or exact justification for the search at the restaurant.

4

Finally, the admissibility of the stolen money seized from Rob's apartment depends largely on the admissibility of his second statement. Rob will argue that if his statement revealing the money's location is suppressed, then the search warrant based on that statement lacks probable cause, rendering the search unlawful and the money inadmissible under the Fourth Amendment's exclusionary rule. However, as previously discussed, Rob's second statement made at the station after a valid Miranda waiver is likely admissible. Because this statement lawfully provided the probable cause presented in the affidavit, the resulting search warrant was valid. The officers' search of Rob's apartment was conducted pursuant to this valid warrant, conforming to Fourth Amendment requirements. Therefore, the stolen money seized during this lawful search is almost certainly admissible. The connection to the initial unwarned statement is sufficiently attenuated by the subsequent valid waiver and the intervening judicial authorization of the warrant.

In conclusion, while Rob is likely to succeed in suppressing his initial statement "Yes, it was me" due to a Miranda violation, his subsequent statement about the money, the gun found in the briefcase, and the stolen money recovered from his apartment are all likely to be deemed admissible against him at trial.

(765 words)

• 福建户籍

• 白本

• DS-160填表瑕疵，本次因为人数过多，我们无法一一审核学员的DS-160表格，只是尽可能提供了填表指南和答疑

• 有过拒签记录，且本次出境理由和上次不符的

我们积累了宝贵的美签团签经验，并预计会在下半年在广州再举办一次团签。欢迎大家届时报名参加。建议被拒签的学员提前去周边国家刷刷旅游记录。

我们辅导学员美签填表、预约、面谈，不额外收费。希望参团的学员请在3月16日24点之前将名字报给助手。DS-160表可以后填写。还没有注册加州考试资格（registration application）的申请人要尽快寄出无处分证明，争取在面谈之前收到通知邮件并打印。暂时还不需要（现在也没开放）报名考试。

我自己只兼职准备了一个月，但我有信心能通过今年1月的考试。如果没有能通过，也绝对不是说我就没有水平教这个课，而是因为我准备的时间实在太短。

刚才7点出成绩，SQE1通过了，分数还不算低。和我一起考的助理林律师也过了。这进一步说明不仅我有水平来教这个课，我们团队的整体水平也是到位的。

去年在各城市开交流会，很多学员提到了SQE，还有一些学员在学习一段时间后深感USBAR的困难，于是我总在琢磨如何做可以不辜负学员。在努力完善USBAR教学方案的同时，就有了开设SQE课程这个计划。助理林律师也很支持（她也是我USBAR的第一批学员）。可以说，没有USBAR的学员，就不会有新生代SQE的平台。

12月初从美国回来，开完杭州和深圳两场交流会后，断断续续学了一个月左右，分别在1月15日和1月23日参加了FLK1和FLK2. 林律师比我学习的时间长点，但她琐事也很多，整体复习时间应该是差不多的。今天好几个学员提醒我说要出成绩了，还有很多学员在不知道我是否通过的情况下就陆续报课，非常感动，就不一一感谢了。

这篇文章并不是鼓励大家无脑来报课，或许SQE1很容易，SQE2豁免也容易，但始终记得雅思7.5是绕不过去的。PTE可能比雅思容易一些（我打算立刻报名去裸考试试，这次真的不见得过了），但也不见得容易太多。所以，这篇主要还是提醒大家，报课不要冲动。

但如果你愿意报课，我当然是倾囊相授我的学习方法，助大家一次通过这个还算比较简单的考试。最近写讲义发现的确有很多没学明白，但依然没有影响我较高分通过考试。所以，今年备课我并不会精益求精，而是希望教会大家如何能像我一样不花太多时间就用巧劲通过这个考试。

我已经建好了新生代SQE的网站和sqeinfo这个微信公众号。

文末附上我的详细成绩单。

我从做培训到现在2年左右的时间多次提到无论怎样强调UWORLD的作用都不为过，现在我依然坚持这个观点。在2月考完之后，我已经对Kaplan的出题风格有了全面的了解，并已经在细微之处根据Kaplan的观点修改了教材。加州考生目前的建议同样是刷UWORLD. 经常刷UWORLD的同学会知道今年2月加州是偏简单的。至于Kaplan的网站自编题和紫皮书，我会在学员群里更加具体的建议。

7月考试之前我会安排和今年2月风格非常接近的模拟题和知识点。

我没有收UWORLD的推广费用。事实上这两个优惠码要的还有点颇费周折。

UWORLD包含了NCBE官方放出来的几乎所有真题，其中以2017年的210个分科目的题和2021年的200个不分科的模拟题为代表（210个题散落在1800个题左右的QBank中，200个题在单独的菜单栏Assessment里），也包含了更早的OPE（Online Practice Exam）1-4，或者说OPE 860. 但其中不乏有一些有争议的题目，请参考NCBE和UWorld中的错题（一）、NCBE和UWorld中的错题（二）、NCBE和UWorld中的错题（三）和NCBE和UWorld中的错题（四）。

好在现在还有补救机会，我们看到的程序是，Donna希望这次董事会原则上同意此事，并在3月14日的考试委员会上继续讨论此事，随后（大概在4月）又回到董事会，或者寻求合同委员会寻求批准合同。所以，这次董事会的意见就非常重要。

现在我们可以做的事情包括：

1. 直接写信给Donna，她的邮箱在加州律协官网可以查到；

2. 写信给董事会秘书，[secretariat@calbar.ca.gov](mailto: secretariat@calbar.ca.gov)；

3. 参与3月5日的董事会，Zoom参与链接在https://calbar.zoom.us/j/83006962134，每个人大概有3分钟发言的机会。人在加州也可以线下参加，地点包括

180 Howard Street,San Francisco, CA 94105
1215 Truxtun Avenue, 4th Floor, Bakersfield, CA 93301
888 Brannan Street, San Francisco, CA 94103
39 Waterline Pl, Richmond, CA 94801
501 W Broadway, Suite 900, San Diego, CA 92101
21515 Hawthorne Boulevard,Torrance,CA 90503
931 10th Street,Modesto,CA 95354
1690 W. Shaw Avenue, Fresno, CA 93711
1414 K Street, Sacramento, CA 95814
10000 Washington Boulevard, Culver City, CA 90232
255 North Forbes Street, Lakeport,CA 954530

时间是加州3月5日下午2点，国内3月6日早上6点，鉴于3.2议程开始的不会那么早（甚至有可能拖到第二天），不必那么早起床。

希望发言的可以提前在这个网站注册：https://docs.google.com/forms/d/e/1FAIpQLSdLaUdpKFVcSYdOyUalHv_-6ky5pBvbhbEqbMG5hhBqOeOGXw/viewform

如何发言可以参考这个视频：https://www.youtube.com/watch?v=cZ67o8poJLI&t=3300s

议程是 3.2 Discussion and, if Appropriate, Approval of Supplemental Contract Amount for ProctorU, Inc, dba Meazure Learning for Live, Remote Proctoring and Test Center Services (Bar Exam, First-Year Law Students’ Exam, and Legal Specialization Exam Administrations) in 2025 and Discussion and, if Appropriate, Approval of Alternative Vendor for Live, Remote Proctoring and Test Center Services for Administration in 2025 (Bar Exam, First-Year Law Students'Exam, and Legal Specialization Exam Administratioins)

要求开放7月远程考试选项的理由包括

1. 最高法院批准的是远程/线下考试，改成纯线下考试需要加州最高法院的再次批准；

2. 许多人因为改成远程考试，但无法负担去加州的费用，或者因为工作等原因，已经提前花费了不少精力准备这个考试，包括参加可以加分的phase one，改成线下对这部分人有不公平的影响；

3. 许多人退出2月考试是基于对7月继续在线考试的信赖；

4. 线下方案可能都已经来不及让原定于7月底的考试顺利进行，包括租赁场地、开发新的软件等。

你还可以自己想一些和自己情况相结合的理由。

“[T]oday the Board of Trustees authorized a waiver of the application fee for the July 2025 bar exam for applicants who are unsuccessful on the February 2025 bar exam despite their good faith efforts and thosewho withdrew from the exam. Staff are directed to develop parameters within this general framework.”

所以，下面两类人可以得到7月考试费的waiver：

1. 二月真心考试，但没有过；

2. 二月退考的人（还有退款）。

下面解释这个单词waiver，它就是完全免费的意思。如果没有后面的parameter，我甚至觉得没有必要解释waiver这个意思。但parameter让我觉得会不会有一个减免的公式，而不是完全免费。我查了一下，waiver就是完全免费的意思。至于parameter，是具体细则和框架，比如什么叫做真心（good faith）考试。

所以如果光看新闻字面的意思，2月退考的人不仅全额退款，还可以免费考7月，而且还可以加（up to）80分。这都什么神仙state bar，不是要入不敷出了么，这么做不破产？当然，这只是我对这封邮件字面意思的解释，具体细则还是要等加州后续的“parameters”.

估计又要劝退一些本来没打定注意要退考的人。

我当年考试的时候基本是把UWorld当圣经在用，压根没有发现任何不妥之处。而现在这个系列可以写到第三篇，说明学员水平越来越高，学的也越来越细。

上面这段出自《NCBE和UWorld中的错题（三）》。现在这个系列居然出到了第四篇，只能说各位学员都有责任（手动狗头）。四篇错题集下来，在如此多的学员用高倍放大镜观察下，NCBE放出来的1500个左右的题，只有不到5个有争议，确定答案出错的题只有2-3个。此外还有大概不到10个题（主要是堕胎）因为法律的演变过时了，可以说NCBE的出题水平非常厉害。相比之下Kaplan的两本自编题库已经被学员打成了筛子。Barbri也没好到哪去。包括UWorld自编的600多个题，有争议的也有好几十了。Emanuel最严谨，几乎没有错题，但它除了民诉只收录官题，而且只收录最没有争议的那种（Emanuel是会收录题目的）。

顺便再吐槽下Kaplan，加州目前就放出来25个样题，有争议的至少有5个。还有几个虽然实务上可能是对的，但反知识点，故意为难考生。最近突然更新了一版，改掉了3个题目，最欣慰的是把警车内对话是否挑起嫌疑人供述的答案改掉了，说明至少还是听劝。我在点评这25个题的时候就说过，直接和最高法院判例反着来，就离大谱。

下面是两个是UWorld将NCBE真题改编后的题。

以A bartender was removing the restraining wire from a bottle of champagne开头的一个题，酒保开瓶盖伤到了自己。NCBE把陪审团认为即使有足够的警告、酒保还是会伤到自己放到了题干中，这样很容易就选中没有事实上的因果关系，毫无争议。UWorld似乎希望给这题增加难度，魔改了一下，但改完之后C看起来更对一些，我认为改的很不好。

以A landowner who owned a large tract of land in the mountains开头的一个题，UWorld在原题A选项后面加了个and therefore was a trespasser. 加了之后逻辑变得非常奇怪，不会改建议别改。但这题选B是没有问题的。

下面是一些UWorld的纯自编题。

以A man and a woman were law school classmates who had competed for the positionof editor of the law review开头的一个题，考诽谤的特权（qualified privilege），答案选即使有特权，但被告有恶意，依然要负责。但另外一个答案“诽谤言论是虚假的”当然也是诽谤成立的要素，C和D都是对的。

以A man lives in a small community where there is only one judge开头的一个题，答案认为诽谤了一个法官。从纯普通法上来说是对的，但完全没考虑宪法问题。我们抛开法官大概率是一个public figure不论。既然是一个和公众利益相关的问题，我认为可以选B，必须证明有actual injury才成立诽谤. [Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)]

以A disgruntled science teacher had recently been fired from her job at the local high school开头的一个题，也是考诽谤，结合了上面两个题的漏洞，不再赘述。回想先前也有好几个有争议的自编诽谤题，或许这些题都是同一个人出的。

以A landowner contracted in a signed writing to sell a 500-acre tract of farmland to a farmer开头的一个题，认为房地产卖家可以寻求特殊履行，但完全没有交代为什么金钱救济不足够，答案解释每一块土地都是不同的，但这只对买家来说才是对的。我看了判例，的确有一些州认为买家有的救济卖家也有才算公平，但并没有形成主流观点。即使允许卖家要求特殊履行，通常也要证明无法卖出（普通法救济不足够）。我认为正确答案应该选B.

以A building owner sued a company that manufactures and sells water filtration systems开头的一个证据题，拍了照片，还传摄影师来作证，都无法证明照片有proper foundation，实在是没有办法说服我。

以A brother knew that his sister was suffering from an advanced form of bone cancer开头的一个刑法题，我不明白一个故意犯罪为什么突然按照过失理论分析起了事实上和法律上的因果关系。即便如此，C如果是对的，D也一定是对的。

以A builder purchased 10 acres of undeveloped land开头的一个题，zoning规则没有例外当然也是开发商不能盖房的原因之一。

• SQE1考试答疑群（目前仅限2025年7月，视情况延长）。该考试在北京、上海、广州、深圳、香港等世界主要城市举办；该考试会在7月14日至18日期间考第一天（FLK1），7月21日至25日考第二天（FLK2）。

其他任何服务都不作承诺。当然，如果我后续推出其他内容，第一批学员自然都可以享受到。这些服务可能包括：

• 视频讲解（可能）

• 中文教材（可能）

• 我的自编题库，和我对官方170个题的讲解（可能）

• 如果你选广州、深圳考区，考前一天的线下密集培训；如果你选其他城市，可以看该培训的直播（可能）

我还要一如既往像劝退考US bar一样劝退SQE，请移步我美国法考介绍页面的考这破bar有什么用部分，我全部可以照搬来SQE这边。甚至，移民英国比美国更难，比如英国就没有加拿大、澳大利亚、墨西哥公民成为solicitor可以直接去工作的政策。前天我在深圳参加SQE交流会，一位来自新加坡的律师就告诫大家说这个对大部分人没什么用，不要当“证书收集家”，虽然他自己就有好几个证。

当然我还是要介绍如何成为英国律师。

SQE1是我即将开设的课程，它考两天（相隔刚好一周，每天180个单选题，五选一，153分钟做90个，休息50分钟后做剩下90个，每天大约早上8点开考，下午2点结束），考试费1888英镑（约15000人民币）。没有主观题。

SQE2以申请豁免为主，只提交纸质材料，费用也只要265英镑。这个目前我也在研究，但在中国担任2年律师之后基本没啥问题。我知道有人收4000人民币做这个，后期我也会开设这个业务，价格应该也在这个附近。如果你要飞去英国参加SQE2的口试，好处是不用额外考英语，但我目前和可预见的未来不会提供任何培训服务，因为我自己豁免。

SQE2豁免通过（永久有效）之后还有一个大问题，就是要提交雅思A类的7.5或者同等的英语成绩才能成为英国律师。如果说SQE1比加州bar要容易很多，这个反而比加州bar难。我有好些学员，我知道英语估计考不了7，甚至考不了6.5，但通过恐怖的选择题正确率通过了加州bar. 不幸的是，英语没有办法短期提升。你如果现在是雅思6分的水平，或许可以通过疯狂刷题通过加州bar，但要考到雅思7.5，可能需要至少2-3年的努力。英国律协承认另外一个考试PTE，据说比雅思简单，但我也在摸索，应该不会比雅思简单太多，英语不好的话依然有可能需要漫长的道路才可以拿到78.

雅思和PTE也可以在国内主流城市参加考试。所以如果你通过豁免这条路，你不用去英国就可以成为英国律师。就像前天英格兰和威尔士律协主席在深圳说的那样，你甚至不必离开深圳就可以成为英国律师。

英国律师，分为出庭律师（barrister）和事务律师（solicitor），或者，用香港的叫法，是大律师和律师。目前也在淡化他们之间的区别，在你成为solicitor之后，可以直接在基层法院出庭。如果继续通过一个考试，就可以享受和barrister一样的在更高级别的民事法庭出庭；或者通过另一个考试，就可以享受和barrister一样的刑事出庭权；或者你两个都通过（其实并不难），就可以享受和barrister完全一样的出庭权。只是作为“小律师”依然不能戴那顶酷似方便面帽子，不过大部分民事法庭，甚至包括最高法院的礼仪已经不戴wig. 是的，如果你通过了这两个额外的考试之一，就可以在英国最高法院出庭（我相信大部分人对出庭并不感兴趣）。

最后是我对SQE1的理解和我课程的价格。我相信英语尚可的人通过至多2个月的全职准备，或者4-6个月兼职准备，尤其是在我的帮助下，完全可以一次性通过这个考试。我自己只兼职准备了一个月，但我有信心能通过今年1月的考试。如果没有能通过，也绝对不是说我就没有水平教这个课，而是因为我准备的时间实在太短。美国bar的学员知道我的理论水平，所以我愿意先给已经或者即将报名美国bar课程的学员一个打骨折的早鸟价格作为SQE课程的启动资金：

费用

2025年6月30日之前，US Bar学员报名SQE课程，收取2000元人民币。

非学员收取5000元人民币。

再次劝退

请不要图便宜或者图一乐报名这个课程，确保自己的英语离雅思7.5分不远再来考虑这个课程，请知悉每考一次需要15000人民币左右的费用，请知悉考出来成为了solicitor也没什么用。

所有关于这个课程和英国律师的更详细的资料，会陆续在网站和公众号推出。

根据前天现场律协主席对我的提问的回答，成为英国律师后，不执业只维持资格的费用很低，大概每年40英镑的费用保留名字在名册里面（on the roll），如果不交费被删了名字，也可以交差不多的费用恢复名字。执业的话，要交的执业证年费397英镑，比加州便宜不少。但正儿八经执业是要交执业险的，这个费用就不好说了，一般都是律所帮你交。

功夫不负有心人，今天加州终于邀请了部分遇到技术问题的考生参加1月17日星期五举行的补考。

补考安排:

• 考试时间: 1月17日星期五（仅此一天）
• 考试时间段: 全天可选
• 报名方法和截止日期: 接下来几天Meazure Learning会邮件通知

强烈建议:

• 不要使用工作或学校的电脑，因为它们可能存在防火墙或权限问题。确保电脑有摄像头和麦克风
• 访问网页确认您的电脑符合最低系统要求：https://www.calbar.ca.gov/Portals/0/documents/admissions/Examinations/February-2025-Bar-Exam-FAQs.pdf
• 下载Guardian 浏览器
• 检查垃圾邮件或垃圾邮件文件夹中的Meazure Learning邮件: testingsupport@meazurelearning.com 或 support@meazurelearning.zendesk.com

没有收到邮件的务必查收下垃圾邮箱。

对于Phase One补考结束后，已经报名2月考试的考生，该如何选择？要不要弃掉2月考试，既参加Phase One又参加Phase Two，从而在7月考试中加上（up to）80分？

无法评估自己水平的学员可以联系我提供建议。你或许看到7月考试的经验分享中有一篇的作者是我4月建议放弃，但7月通过了考试的学员，但他本科是清华大学的工科生（我上个月在深圳交流会上才知道）。如果我提前知道这条信息，或许会重新给出建议。此外，他在我言语的刺激下考前集中留了全职的时间冲刺，查分后估算也并没有超过分数线多少。大部分情况下，我提前对学员水平进行的判断是准确的，就算不准，也是考前我觉得能过的人几分或者十几分惜败。

不过依然申明，如果我强烈建议你退考，最终7月也没有Phase Two，不要来怪我。

虽然我真心觉得部分考生如果没有（up to）80分的加持，短期想要通过这个考试就很难了。不要浪费这宝贵的机会。

请注意，如果三思后决定取消考试，请在1月17日补考结束后（否则又没考上就白取消了）、2月11号deadline前（否则会因为No Show依然浪费了40分的加分）。

如果没有参加Phase One，我不会建议你放弃2月考试，毕竟现在取消也不会退钱，也没有（up to）40分会被浪费，参加考试毕竟是宝贵的经验。

深圳：12月01日（周日）晚上18:00-21:00，广东新生代律师事务所，南山区东滨路永新时代广场2号楼6层前台会议室

方式：纯聊天，没有presentation. 你可以随时来、随时走。

内容：众所周知袁律师一般不推荐人考bar，只是一旦你决定考，他会全力辅助你。所以建议把问题重点放在如何通过考试（纽约/加州bar），而不是要不要报名考试。

由于国际旅行的不确定性，杭州场来之前还是先在群里看看是否取消。

接下来几个月袁律师会把重点放在准备2月考试上，2月底之前可能不会有其他交流会了。

Q & A

Q: 会不会有通过的学员分享经验？

A: 可能没有。

Q: 有什么吃喝/ 礼物？

A: 来的人送饮品一杯。现场有加州可能要用到的FD-258指纹卡和纽约可能用到的纯黑鼠标垫，需要的人可以领取（送完为止）。

Q: 可不可以请袁律师吃饭？

A: 袁律师在减脂，不吃晚饭。也请不要带礼物过来，不方便带走。

伯克利：请在11月28日14:00-14:30之间过来，结束时间根据来的人数和话题待定，地址：Caffè Strada，2300 College Ave, Berkeley, CA 94704

方式： 纯聊天，随时来，随时走。不收费、不需要预约。

因为国际旅行的不确定性，来之前还是先在群里看看是否取消。

来的人送饮品一杯和UBE考试会用到的黑色鼠标垫一张（送完为止）。

请不要带礼物给袁律师，不方便带走。

加州出成绩当天则着实带给我了惊喜，考前我留意的大多数人都通过了，还有一些不觉得能过的也过了（你们会在这篇公众号的下方看到他的文章）。今年7月我的学员中通过加州的有25-30人，数倍于去年。本来我感觉通过率似乎超过50%，过了几天才发现原来很多没有通过的人不会第一时间说话，甚至根本就不说话。最后统计了下，学员中通过加州的比例在40%左右，只比以往略高，这才意识到自己原来已经有这么多学员了。

但我有理由相信明年7月会达到一个新高，因为我培训技术在持续增长（而且，增长的不慢），学员也越来越卷。最后只要再小小地降个up to 80分就可以了（狗头）。我都无法想象如果今年就可以降80分我能有多快乐（9号早上帮一个学员查成绩，比给我自己查还紧张）。

但是我还是想说一下加州论文乱给分的问题。如果我学员通过很少，那我这么抱怨可以说是给自己教不好找的借口，但学员通过人数远超过我的预期，我想我有资格说这个话。今年7月的论文明显有一些压分，往年可以上60甚至65的情况，今年莫名其妙给了55、50甚至45. 有好几个我很看好的学员因此拿到了1350-1390之间的分数。还有一些类似成绩的粉丝在出成绩后报课，我看完论文之后也觉得分给低了。他们这些人都是已经可以通过的水平，如果是去年7月可能甚至不需要降分。而明年降40-80分，如果评分模式不变，那通过考试则是如探囊取物一般。只可惜了额外几个月的心力憔悴和一万多的考试费用。

当然，也有一些论文给了不合理的高分，但最近两年每次出成绩我都会点评论文，今年7月整体给分是偏低的。

可以看出，选择题才是通过cabar的法宝。我想我有好几个批改论文时深感无力的学员，一定是靠着恐怖的选择题正确率通过的。而那几个很可惜的学员，无一不是写作能力尚可，没有时间集中突击选择题，只希望能用平均60分的论文加一个平均的选择题成绩通过。奈何今年7月的给分结构并不利于他们，如果不是对论文有十足的理解，仅仅一个平均或者略高的选择题成绩还不够。

我还想表达一下对明年网考的担忧。虽然网考让考生成本大大降低，但放出的25个题有大概1/3是有争议的，甚至干脆就是错的，质量远远不如NCBE（我已经在B站放出了讲解这25个题的视频）。还有几个题虽然没有错，但考点设置地过于奇怪。这种本应该引以为傲的示范题都如此儿戏，考场上会有多少考生冤死在这种错题上，我已经无法想象。除了题目的质量糟糕，试考的技术问题就更加混乱了。考前测试莫名其妙的检测不通过，考试的时候来自印度的监考人无休止地换人，重启电脑，断线。有的人可以用身份证通过认证，有的人又必须要护照以至于拿到护照的时候已经错过考试。还有考官在监考的时候看电视、睡觉。也有太过负责的考官在考试的时候频繁提醒考生离摄像头过远、过近（这其实很影响考生状态）。要知道这已经是把原本应该一起考试的学生分到了十几个时间分别考试，时间也缩短到了一个半小时。而正式考试是所有人在同一时间，需要至少12个小时的不断连。我真心建议有条件的考生还是选择去加州线下考试才省心（而且我担心Phase Two可能要线下参加）。

最后恭喜今年通过的学员，祝大家在执业的旅途中一帆风顺。出于对实务的抵触，我目前并没有给通过的学员设立宣誓群（我觉得大家还是相忘于江湖比较好），宣誓有关的问题可以直接问我或者助手。

和这篇文章一起推送的是几名通过学员的心得，感谢他们的分享。鉴于每个人的基础不同，参考也只是有限。但我还是要提一下那个UWorld刷三遍并统计通过率的同学。如果你也如此上心地准备这个考试，何愁通不过呢？

费城：11月14日13:00-15:00，Starbucks，3401 Walnut St, Philadelphia, PA 19104

纽约：11月15日13:00-15:00，Starbucks，45 West 4th Street, New York, NY 10012

波士顿：11月16日13:00-16:00，Starbucks，700 Commonwealth Ave, Boston, MA 02215

方式：纯聊天，没有presentation. 你可以随时来、随时走。不收费、不需要预约。美国交流会人预计不会太多，你愿意来的话，可能就你一个人。交流会主题暂定纽约州（UBE）考试，也可以聊聊加州bar、绿卡和就业等问题。

因为国际旅行的不确定性，来之前还是先在群里看看是否取消。

来的人送饮品一杯和UBE考试会用到的黑色鼠标垫一张（送完为止）。

请不要带礼物给袁律师（美国境内航班一般没有免费托运行李额）。

众所周知，不同于加州，要成为纽约州的律师，除了报名参加考试的资格要求更加严苛外，要想走到宣誓这一步，前面还有很多需要闯过的难关。不仅需要通过NY BAR（UBE）和MPRE，还要通过NYLE，并且还需要完成50小时的Pro Bono公益服务。

Pro Bono是必须的吗？​

是的，现在要想成为纽约州律师，NY BAR（UBE）+MPRE+NYLE+50小时Pro Bono+各类申请材料缺一不可。除非您是美国其他州律师，仅仅是来纽约州pro hac vice。

什么时候完成Pro Bono？​

在递交admission申请前完成即可。但是注意，NY BAR的有效期是三年，如果超过了这个时间，需要重新考试。所以如果可以，请尽快完成吧。

开始的时间，可以从LLM入学时间的前一年就开始Pro bono工作并计入50小时。

Pro Bono能不能在中国国内完成？​

可以在美国其他州或其他国家完成50小时的合格工作。所以，在中国境内也可以完成。

50小时的公益工作必须是与法律相关的，需要在申请时详细说明工作的性质和情况。

（提示：完成这些工作时还没有成为执业律师，要避免去做那些必须是有执照的美国执业律师才能做的事情（此刻请回想一下MPRE的考试内容）。但是可以在执业律师的指导下进行法律检索、填写表格等等。）如果是中国律师，那么提供免费法律咨询、无偿代理公益案件，都可以计入这50小时。

我是法学院学生，在law school clinic做的能不能计入pro bono？​

所有在符合条件的law schook clinic工作的时间都将被认可，但你用于教学培训的时间不应超过实际使用法律技能的时间。此外，旅行或通勤时间不计入在内。获得学术学分并不会导致计时的失效。

我做的其他工作（如调解/参与问卷调查/填报税单/翻译等）是否可以计入pro bono?

需要看情况。重点是完成这些工作是否是为了帮扶贫困或低收入人群。比如翻译工作，单纯的为贫困或低收入人群提供翻译服务并不能计入（不是law-related），但是如果翻译是您正在做的pro bono的项目的一部分，那么提供口译或翻译服务的事实不会使原本符合条件的工作时间失效（但只有legal service的时间可以计入）。

如何完成Pro Bono要求​

1. 找到Pro bono项目

如果是在美国，法学院通常都会有Pro bono的机会给大家，平时可以关注一下公告栏和及时查收邮箱、各类网站信息。

如果是在国内，可以寻找提供免费提供法律咨询等服务的公益团体。可以联系助理获取相关联系咨询方式。

2. 完成Pro bono工作并填写表格。

需要为每个用于满足公益服务要求的项目填写一份表格（Form Affidavit of Compliance），建议在完成每个符合条件的公益工作项目时填写此表格。样表可以参考这里，但建议实际填写时以BOLE发布的最新版本为准。

一份表格是一次工作项目，50小时可以通过几份表格（几个项目）来累计，提交时需要一并提交。

每个表格的第三页都需要该项目的指导律师/法官（在该司法管辖区执业）签字（这个部分不需要公证人签，只需要指导律师签字）。

3. 公证。

表格需要找公证机构进行公证（表格第二页需要公证人签字）。

在美国的话，有的法学院会提供免费的公证服务，可以关注。如果没有的话，也可以选择美国当地的公证服务，比如银行，UPS等等，可以就近选择。

如果是在中国国内，目前比较常用的可以找大使馆预约notary服务（申请宣誓成为加州律师的宣誓公证也可以找美国大使馆进行公证）。

最后，祝大家顺利完成Pro bono！

Expectation Damages

Expectation Damages are awarded to put the plaintiff in the position they would have been in if the contract had been performed as expected, without fraud. For the Jaguars baseball, Perry could have received 5,000 on the open market but was misled into selling it for 20, resulting in a loss of 4,980. For the Sluggers baseball, Denise sold it for 10,000 but misled Perry into accepting only 2,000, resulting in an 8,000 loss. Therefore, the total expectation damages amount to $12,980.

Reliance Damages

Reliance Damages compensate for expenses the plaintiff incurred based on the defendant's promise, essentially treating the situation as if the contract had never been made. In this scenario, there is no indication of any reliance expenses incurred by Perry that would justify reliance damages.

Consequential Damages

Consequential Damages damages cover losses caused by the defendant’s wrongful conduct that were a foreseeable result of the breach. In this case, the expectation damages adequately compensate Perry for his financial losses, thus obviating the need for consequential damages.

Incidental Damages

Incidental Damages cover additional costs incurred directly because of the breach, such as costs related to sales and advertisements. There is no evidence of incidental damages in this scenario.

Liquidated Damages

Liquidated Damages are pre-agreed damages specified in the contract for breach. There is no mention of such damages in the contract between Perry and Denise.

Punitive Damages

Although contracts generally do not warrant punitive damages, fraud cases like this one might. However, courts typically exercise caution in awarding punitive damages in contract disputes, and more information about state-specific laws and court inclinations would further influence this discussion.

Nominal Damages

Given the significant expectation damages available, Perry has no need to pursue nominal damages, which are symbolic amounts awarded when a legal wrong has occurred without a corresponding loss.

Conclusion

Generally, the damages a plaintiff can claim include either expectation or reliance damages, along with consequential and incidental damages, less any avoidable losses.

Here, Perry is entitled to recover $12,980 in expectation damages, representing the difference between what he received and what he should have received for the baseballs, absent Denise's fraud.

Replevin

Replevin allows the recovery of specific personal property and is available if (1) the defendant is wrongfully withholding personal property, (2) that the plaintiff has a right to possess.

Replevin would allow Perry to recover possession of the Jaguars baseball directly. Since Denise still has the Jaguars baseball, replevin could be a straightforward remedy to address his loss related to that item.

Equitable Lien

An equitable lien is available if a defendant: (1) wrongfully acquired title to property, and (2) would be unjustly enriched if allowed to keep the property.

Perry could seek an equitable lien on the Voy car to secure payment of the $8,000 he was defrauded of in the sale of the Sluggers baseball. However, it would only cover the direct loss amount, not any increased value.

Constructive Trust

A constructive trust is an equitable remedy used to prevent unjust enrichment resulting from wrongful conduct, which in this case, is fraud.

This remedy could be applied to the Voy car, given Denise's fraud in using the proceeds from the Sluggers baseball to purchase the car. A constructive trust would treat Denise as if she were holding the car in trust for Perry, allowing him to claim actual ownership of the vehicle. This is particularly advantageous here due to the car's appreciation in value.

(550-600 words)

In California, a juror can be disqualified for cause if there is a reasonable likelihood that their judgment could be influenced by bias or a financial interest in the outcome of the case.

Juror #5 disclosed that she worked as a Motor engineer before retiring five years ago. While past employment could suggest potential bias (due to possible loyalty or insider knowledge), the substantial lapse of time since her departure may lessen concerns of bias.

Juror #5 also owns 50 shares of Motor stock, constituting 2% of her total financial assets. While owning stock in a party involved in a case can suggest a financial interest in the trial's outcome, the small shareholding (only 2% of her assets) means any financial impact from the litigation outcome might be insignificant.

Crucially, Juror #5 stated that she could be fair and impartial. Courts give weight to a juror's assertion of impartiality unless compelling evidence suggests otherwise. Considering all relevant factors, the court likely did not err in seating Juror #5.

A directed verdict is proper only when there is no genuine dispute of material fact, meaning that even when evidence is viewed in the light most favorable to the non-moving party, no reasonable jury could reach a different conclusion.

Here, the issue of whether the misuse was foreseeable is a factual question for the jury, based on the evidence presented. Moreover, even if Palma could convincingly argue that no reasonable jury could conclude the misuse was unforeseeable, she would still need to demonstrate that no reasonable jury could find the product was not defective. To obtain a directed verdict, Palma must establish that a reasonable jury could only find that the seat was defectively designed and that any misuse was foreseeable. This sets a high bar.

Therefore, addressing only the foreseeability of misuse is insufficient for securing a directed verdict, particularly when the product's defectiveness remains disputed. The court appropriately denied the directed verdict motion, as both issues of defect and foreseeability were rightfully submitted to the jury.

A motion for a new trial must be filed within 28 days after the entry of judgment. Here, Palma filed her motion within 28 days of the jury's verdict, suggesting timeliness.

Palma's motion is partly based on newly discovered evidence in the form of Motor's safety test reports, which indicate severe injuries were likely regardless of seat angle. For this to justify a new trial, Palma must demonstrate that the evidence was not discoverable through reasonable diligence during the original trial. In this case, if Motor intentionally hid these reports, Palma may argue that she could not have obtained them despite reasonable efforts, thus satisfying this requirement. Additionally, Palma needs to show that this evidence is crucial - had this evidence been available during the trial, the outcome would likely have been different. As the evidence appears to demonstrate that misuse was not the cause of the injuries, this evidence could have influenced the jury's decision, and thus was crucial.

Another basis for granting a new trial is evidence of fraud, misrepresentation, or misconduct by the opposing party. Palma provides evidence that Motor intentionally concealed safety test reports, potentially constituting fraud or misconduct. If the court finds that Motor engaged in such behavior and that it impacted the outcome of the trial, this could warrant a new trial.

(500 words)

目前初步统计，只要用正确的方式报名了Phase One，都收到了有资格参加的邮件，中签率100%. 所有选择线上考试的考生都被允许纯线上，选择线下参加Phase One的学员统计数量不足。

没有及时报名的也不用灰心，明年7月可能还会有Phase Two. 而且不参加试考本身并不会降分，考试难度、通过率预计都不会有显著变化。

成功报名Phase One的同学也建议临时抱下佛脚。虽然说心理学评估，但正确率越高肯定加分越多的。

下面回答几个群里问的非常多的几个问题。

Phase One是否可以同时给2月和7月加分？

不可以。Phase One只能给明年参加的第一次考试（first attempt）加分。所以袁律师一再建议考7月的，不仅因为7月惯例通过率就比2月高、7月我们对题型更加熟悉，最主要是因为7月有可能史无前例降两次最多80分。如果参加2月，就失去了7月（可能的）额外降最多40分的机会。虽然本次驳回了Phase Two，但你们也看到了只要State Bar想做什么，法院的程序性驳回基本只是刷存在感而已。

如果没有抽中Phase One，也不在乎1700刀的话，的确可以报名2月考试，但完全可以等抽签名单出来之后再决定。抽签名单肯定会在11月8日试考之前出来，如果拖到11月再报名法考，顶多也就是50美元的罚金。

是否可以确定完全线上考试？

我们认为是的。

虽然加州一再强调不保证考生选择线上/考试中心的方案会得到尊重，但线上几乎没有成本，而线下反而需要考试中心有足够的位子（就算有，也是一笔开销），所以顶多是不会尊重选择考试中心的学员。

我们现在可以接受只能参加网考的学员参加课程。如果网考的选择没有得到尊重（可能性很小），我们可以全额退款。

那这样是否认为可以不用办美国签证？

是的。参加加州法考不需要签证。参加MPRE可以报名塞班岛的考位（我们会在学员群里提醒考位的开放），同样不需要美国签证。职业道德审查、宣誓都不需要前往美国。

但是，如果被美国拒签过，在通过美签之前就不可以去塞班了。建议美签通过率存疑的学员至少等去塞班考过MPRE再尝试美签。

考试题型是否有变化？

没有。但选择题换出题机构肯定会有风格上的变化，可以通过刷Kaplan自编的模拟题进行熟悉。

论文目前还没有换出题机构，风格不会变化（但2026年之后可能会换成Kaplan）。

明年7月和未来是否依然网考？

在可预见的未来会继续网考。但考试的题型可能会有变化。

是否可以选择在美国以外的地方，比如中国大陆、中国香港参加线下考试？

我们认为不行。这样有透题风险。也不能指望考试中心深夜上班。

即使网考，也只能提前3-5天在国内倒时差、深夜考试。虽然省去了长途奔波的费用，但历史经验表明这个也挺折腾的，最好在国内订酒店。

Contingency agreements in tort cases are generally permissible, but they must be provided in a written contract that clearly outlines the fee structure. Furthermore, the ABA requires that fees be reasonable, and California stipulates that fees must not "shock the conscience." Although we don't know the specific contingency percentage, attorney fees take into account numerous factors. Generally speaking, a lawyer's fee constituting up to 30% of the total settlement is considered reasonable. Here, there is a valid contingency fee agreement, so there is no issue of professional misconduct.

When August sent a written settlement demand for $500,000 to Len and learned that Len had not communicated it to Davis, August did nothing. This is the first potential ethical issue. The duty of diligence requires a lawyer to zealously represent clients and take actions to secure their interests, and the duty to report requires reporting possible ethical violations by the opposing party, e. g. failing to inform the client of a settlement offer. However, Len's inaction may not necessarily be unethical if there is a possible arrangement between the opposing client and lawyer that demands above a certain amount need not be disclosed to the client. If such an understanding exists, not informing the client might be ethically permissible. From August's perspective, he cannot directly communicate with the opposing client (which will be discussed infra). He can not question Len about not informing their client either, as this could be protected by the opposing lawyer's duty of confidentiality. Since August did not have many better options due to Len's inaction, we do not have enough information to definitively determine if August's inaction constitutes ethical misconduct. Of course, as a general practice, making a phone call to ensure that Len received and understood the demand letter might be more appropriate.

Next, August instructing his own client to communicate with the opposing party is another problematic issue. Ethical standards clearly prohibit direct client-to-opposing client communication without the opposing lawyer's consent, as this is designed to prevent lawyers from using their legal knowledge to create an unequal communication advantage. However, client-to-client communication does not have this issue - even if such communication is instigated by a lawyer. Therefore, instigating a client to directly communicate with the opposing client does not violate ethical standards. Nevertheless, if a lawyer has their client deliver their signed demand letter to the opposing client, this could potentially breach the duty of fairness to the opposing party.

The ABA allows fee sharing between lawyers provided that the division is proportional to the work performed or risk assumed. California does not even require proportionality. The rules also mandates that fee sharing must not increase the total fee charged to the client. Here, it appears that August and Rita shared both work and risk, and the overall fee for the client did not increase.

The most apparent problem with August and Rita's arrangement is the lack of prior client consent for such a fee-sharing agreement. The ABA requires "informed consent, confirmed in writing" for changes in fee-sharing arrangements, while California requires "informed written consent." By not obtaining the client's prior consent, August and Rita violated their duty of communication with the client.

Rita's statement that she "knew" Dani raises potential conflict of interest concerns. Whether this acquaintance is due to a familial connection, fiduciary duty, or a prior attorney-client relationship, each could impair Rita’s ability to represent Paul effectively and may cast doubt on the legitimacy of the settlement agreement.

Rita settled the case without obtaining Paul’s consent at the time of settlement. Although the settlement amount of $500,000 was previously agreed upon by Paul, seeking Paul’s confirmation would have been a more appropriate and cautious practice.

From Len's perspective, there was no agreement with Davis to disregard demands above a certain amount. Therefore, failing to communicate the $500,000 settlement demand to the client constitutes a violation of his duty of communication.

The attorney-client relationship is a fiduciary one based on independent contract principles where the client is responsible for decisions regarding objectives, and the attorney is responsible for means and manners. While an attorney does not need to consult the client on every strategic decision, significant matters must be communicated to the client for them to make informed decisions. The settlement amount is a crucial aspect of a civil case, and no matter how unreasonable the attorney might perceive an offer, it must be communicated to the client to allow them to decide independently. Therefore, Len’s ethical duty would have been to inform Davis of the settlement demand.

(750-800 words)

Executory Interest

Under the terms of Olivia's conveyance of Lot B to Barry, the clause states: "If at any time, Barry, his heirs, successors or assigns shall use the premises for any purpose other than as a personal residence, said Lot B shall immediately vest in fee simple in Zach or his surviving descendants." This language gives Barry a fee simple determinable, while granting Zach an executory interest. This means that if the land is used for anything other than a personal residence, the ownership automatically transfers to Zach. After Zach's death, his granddaughter, as his surviving descendant, inherits this executory interest, assuming that this jurisdiction has abolished the common law Rule Against Perpetuities (RAP).

Rule Against Perpetuities

According to the traditional Rule Against Perpetuities (RAP), a future interest must vest, if at all, no later than 21 years after the death of a relevant life at the time the interest was created. In this case, the executory interest that Zach holds could potentially violate the RAP because the condition - using Lot B for "any purpose other than as a personal residence" - might occur beyond 21 years after the death of Zach or any other relevant person who was alive at the time of the interest's creation. Therefore, Zach's executory interest might be invalid under the RAP.

If the executory interest is deemed invalid due to the RAP, the executory interest would be replaced by Oliver’s reversionary interest, as reversions are not subject to the RAP. This means that if the condition is breached, the property would revert back to Oliver's estate (or her successors) rather than vesting in Zach's descendants.

Wait and See Rule

Few jurisdictions directly abolish the RAP; instead, many adopt the "wait and see" rule. This rule assesses whether the interest actually vests within the period defined by the RAP—21 years after the death of a relevant life in being. Although Zach passed away 60 years ago, Barry is still alive. Therefore, under this jurisdiction's specific "wait and see" rule, it is possible that the executory interest does not violate the RAP, as Barry's continued survival means the vesting period might still fall within allowable limits.

In summary, if the RAP remains unmodified in the jurisdiction, Darla may have nothing, and Lot B goes to Simon. If the jurisdiction has abolished the RAP or adopted a "wait and see" rule, Darla might have held an executory interest in Lot B before Developer began constructing an office building. Once the condition was breached by the non-residential use, her interest converted into a fee simple. This fee simple, however, is subject to Simon's easement, which will be discussed later.

Easement by Implication

An easement by implication is established when: (1) A single tract of land is divided by a common owner; (2) There is a preexisting use by the grantor benefiting the land prior to the division; and (3) The use is reasonably necessary for the enjoyment of the dominant parcel. The existing Use must be apparent and continuous at the time the tract is divided.

Here, Olivia originally owned both Lot A and Lot B, fulfilling the single tract division requirement. The dirt road existed and was apparent and visible before the division, constituting a preexisting use benefiting Lot A. The road is necessary for Simon's access to the highway, as no alternative exists without significant expense. Simon likely has an easement by implication over the dirt road on Lot B.

Easement by Necessity

An easement by necessity is established when: (1) A single tract of land is divided by a common owner; and (2) The access provided by the easement is absolutely necessary for the use of the property. That easement terminates when the necessity ceases.

In this case, by dividing the original tract and conveying Lot B to Barry, Olivia inadvertently deprived Lot A of direct access to the public highway. This division creates an absolute necessity because there was no other access to the highway. An easement by necessity would be created and remain unless and until an alternative means of access is established.

Easement by Prescription

Even if an easement by implication or by necessity was not created when the land was divided, Simon can still acquire an easement by prescription. An easement by prescription is established when the possessor’s use of the land is: (1) open and notorious; (2) continuous; (3) hostile; and (4) for the statutory period, which is typically between 7 to 20 years.

Here, Simon has regularly used the dirt road for 30 years, satisfying the open, continuous and the statutory duration requirements. If he did not originally acquire an easement by implication or necessity, then his use of the land was without Barry's permission, meeting the requirement of hostility. Therefore, Simon can claim an easement by prescription over the dirt road on Lot B.

Merger

In conclusion, Simon has obtained an easement over the dirt road by implication, necessity, or at least by prescription. This easement remains intact regardless of the sale of Lot B to Developer or if transferred to Darla through her executory interest. However, if the Rule Against Perpetuities applies and causes the executory interest to fail, resulting in a reversion to Olivia's estate and thereby uniting ownership of both Lot A and Lot B in Simon, the easement would merge and thus be extinguished.

(850-900 words)

Refusal to Operate in the Low-Priced End of the Market

Alex and Baker's decision to refuse to operate in the low-priced end of the market is protected under the business judgment rule (BJR). This rule shields board members from liability for decisions made in good faith, with the care that a reasonably prudent person would use, and with the belief that the decisions are in the best interests of the company.

Alex and Baker, as directors of Pick, had the discretion to make subjective judgments about market profitability as long as these decisions were not excessively arbitrary or capricious. Here, their refusal to focus on the low-priced end of the market was based on an evaluation of market conditions, which they believed mirrored the overall decline in the stock market, seemed to fall within the scope of the BJR.

Furthermore, their decision was informed by hiring an analyst just two months prior. This analyst examined the potential of entering the low-priced market segment and concluded that it was not a profitable avenue for the company. By relying on this professional analysis, Alex and Baker demonstrated due diligence and a reasonable basis for their decision, fulfilling their duty of care as directors.

Thus, simply choosing not to pursue the low-priced end of the market does not constitute a violation of their responsibilities or breach of their duty of care.

Denying Written Demand That the Board Take Remedial Action

The protection of BJR is not absolute. Directors may still be held personally liable if they refuse to take actions that are clearly beneficial to the company based on improper motives or without a reasonable basis.

In this instance, we lack detailed information on how the Board arrived at their decision or the specific reasons behind their refusal to take remedial action concerning E-Save. If the Board reasonably believed that taking action against E-Save would somehow harm Pick, perhaps by triggering costly litigation or reputational damage with little chance of success, their decision could be defended under the business judgment rule.

It is also important to consider the internal dynamics of the Board's decision-making process. Without knowing whether the vote was unanimous or split, it is possible that Alex or Baker, dissented in the decision. If this were the case, the dissenting director might not be held personally liable even if the decision falls outside the protection of the BJR.

To conclude, determining whether Alex and Baker should be held accountable for the Board's decision requires more information.

Duty of Care

As discussed above, Cate, like other directors, is generally protected under the BJR. Moreover, even if the decision to refuse to operate in the low-priced end of the market turns out to be an arbitrary mistake which does not shield from the BJR, Cate opposed that decision, and therefore, she is not personally liable.

However, BJR does not apply to or protect directors who: (1) have a conflict of interest; (2) not act in good faith; or (3) engaged in fraud or illegality.

Here, if Cate participated in denying the shareholders' written demand that the Board take remedial action, she is less likely to be protected by the BJR. Cate has an inherent conflict of interest, as she personally formed E-Save. Her involvement in this decision could be construed as self-serving, potentially prioritizing her interests over those of Pick. Therefore, Cate's actions could potentially lead to a violate of duty of care if it is determined that her decision-making was influenced by conflicting interests rather than Pick's interests.

Duty not to compete

The duty of loyalty requires that a director or officer not compete with the corporation or pursue opportunities that belong to the corporation. A corporate opportunity is any opportunity that the corporation has an interest or expectancy in. However, one may pursue a corporate opportunity if they: (1) first present it to the Board; and (2) the Board decides not to pursue the opportunity.

In this case, Cate did present the opportunity to focus on the low-priced end of the market to Pick's Board, but the Board chose not to pursue it. Therefore, Cate might argue that her decision to start E-Save does not violate her duty of loyalty, as she followed the necessary protocol by first offering the opportunity to Pick. The shareholders might contend that even though it initially declined to focus on the low-priced market, this segment still falls within Pick's line of business, and Cate cannot independently start a competing venture without first resigning from the Board.

The outcome primarily depends on the specific facts, but courts are likely to find that Cate should not have started a company that directly competes with Pick's business, particularly because it clearly overlaps with Pick's potential business interests, even though her proposal to focus on this market segment was rejected by the Board.

Duty to Refrain from Voting on Decisions with Conflicts of Interest

Even if Cate did not violate the prohibition against competing with the company, her participation in the decision to deny remedial action, if she was involved, would indeed constitute a violation of her duty of loyalty. This duty prohibits a board member with a conflict of interest from voting on matters in which they are conflicted. Consequently, her vote should be deemed invalid, and she may be personally liable for any resulting damages due to her conflicted involvement in the decision.

(850-900 words)

西安：11月3日（周日）晚上7:00-8:30，CoCo都可(万和城店)，新城区长缨西路1号万和城购物中心五层

重庆：11月5日（周二）晚上7:00-8:30，一只酸奶牛(解放碑魁星楼店)，渝中区解放碑街道临江路4号名义层12层平台

成都：11月6日（周三）晚上7:00-8:30，霸王茶姬(春熙路店)，锦江区春熙路KFC楼下

广州：11月9日（周六）下午6:00-晚上9:00，星巴克(保利香槟花园店)，天河区珠江新城华利路46-52号保利香槟花园

方式：纯聊天，没有presentation. 你可以随时来、随时走。你一个人来袁律师就和你一个人聊，人多了就一起聊。

内容：众所周知袁律师一般不推荐人考bar，只是一旦你决定考，他会全力辅助你。所以建议把问题重点放在如何通过考试（纽约/加州bar），而不是要不要报名考试。

Q & A​

Q: 会不会有通过的学员分享经验？

A: 成都场可能会有一次考过的加州律师来。广州场可能会有当天得知自己通过的考生前来。其他城市可能会有已经参加过，但等待11月9日成绩的人来。

Q: 有什么吃喝/礼物？

A: 来的人送饮品一杯。现场有加州可能要用到的FD-258指纹卡和纽约可能用到的纯黑鼠标垫，需要的人可以领取（送完为止）。

Q: 可不可以请袁律师吃饭？

A: 袁律师在减脂，不吃晚饭。也请不要带礼物过来，不方便带走。

10月2日的在线问答在（北京时间）凌晨举行，我没有参加直播，但把语音转录了下来，现在把其中一些大家可能最关心的问题记录一下。

Q: 我报名了试考，是否会被抽中？

目前“只有”3400人报名试考，而试考一共有4300个位子，排除掉重复提交的profile，可以说只要你报名，大概率可以被抽中试考。

Q: 试考在哪一天？

11月8日或者9日。一旦你被抽中，会给你一个链接选择喜欢的时间（或许还包括考试方式），先到先得。

Q: 试考多少个题？

2个小时左右完成45个左右的单选题。似乎比正式考试宽松一些。

Q: 我还没复习/回答的乱七八糟，也可以加分吗？

和我之前的观点一致，试考的评分由心理学家完成而不是阅卷人。所以只要你认真回答（而不是乱答），多少可以获得一些加分。

当然我也没有否认试考的正确率越高，获得的加分可能也越高。但总比不参加试考一分也加不上好。

Q: 如果获得加分，2月没过，7月是否还可以再加一次？

目前他回答的是“2025年的第一次尝试”，那么如果2月挂了，7月就不能再次获得加分。 我依然建议大家准备7月考试，有机会降两次分，还更加熟悉题型和套路。

Q: 如何监考？

没理解错的话，真人通过摄像头监考，考试中心自带真人监考。 但明确否认了用AI监考。

Q: 考试中心位于哪里？

考试中心的合作商不是MPRE的皮尔逊，而是Meazure Learning. 如果你在加州，可以搜一下离家近的。

Q: 是否提供纸质论文考试？

我没听错的话，目前无论是在家考还是去考试中心考试都提供手写论文的选项。说实话我听到这里缓缓打出了几个问号。

Q: 选择题是否完全和MBE一样？

回答声音很小，但应该是肯定的答案。不会考加州科目。

Q: 论文是否会换风格？

不会。之前我不知道在哪看到论文也是Kaplan出题，但这次在线会议明确至少2025年论文的风格完全不会改变，难道加州之前的论文就已经是Kaplan在出题？ 总之，这两个问题传递的一个信息（也是他们一再强调的）就是完全不要改变复习方法，之前的复习方法依然有用。

Q: 是否会有复习资料？

这个月会发放study guide，试考的题目还没有决定是否release，但主持人认为这是一个好主意。

Q: 如何知道我被加了多少分？

至少挂了的人会知道被加了多少分，以及加了多少分后依然没有过。 和以往一样，通过的人不会知道具体分数。

借此机会回答几个大家普遍关心的问题，在近期几场交流会有很多人提出。

Q: 报名试考的Applicant Number是什么

点击Admin Portal上方的Status可以看到，如果你不小心填成了Case Number，建议重新报名一次。

Q: 是否要选accommodation？

这个单词是指给残疾人或者其他（因为医疗原因）需要特殊设备的人替代安排的意思，如果你不需要，就选No.

Q: 是否报名试考一定会抽中，以及什么时候知道是否被抽中？

这两个问题的答案目前都不确定，可以在10月2日的在线视频会议中提出。我会参加这个会议。

Q: 如果抽中11月初的试考，2月没考过，7月是否可以再次获得降分？

不确定，可以在10月2日的在线视频会议中提出。

Q: 袁律师建议考2月还是7月

7月。有三个原因：

1. 7月有可能被抽中Phase Two，有机会降分两次；即使11月这次没有抽中，也有机会降分一次；
2. 2月的感官难度本来就比7月高（在考虑进2月repeater大幅拉低了整体通过率之后依然如此）；
3. 2月去考的人基本都是小白鼠，7月我们会更加熟悉考试题型。

当然，有可能小白鼠考试大放水，通过率反而高。但至少7月你的准备会更加充分，我的培训也会更加有针对性，而不是像现在所有的历年真题都不再有参考价值。

如果上一个问题的答案是肯定的，而你不怎么在乎1700美金的话，当然可以2月先考一下试试。

Q: 所以，一定会换Kaplan以及网考？

这个问题的答案依然是不确定的（即使10月1日开放报名会让考生选择在家用自己的电脑考试），因为最高法院已经程序性驳回，不排除会进一步程序性驳回，甚至实质性驳回。但目前加州在大张旗鼓准备网考和试考，似乎他们觉得加州最高法院的通过只是时间问题。

律协对此的应对措施是9月30日开会通过后尽快再次提交动议。但律协并没有推迟原本打算在10月1日开始的报名。律协更没有任何回到NCBE时期在展览中心考试的意思，甚至律协（似乎是首次）表明届时会让学员选择是打算网考还是线下考试。看起来律协认为最高法院最终能通过动议只是时间问题。

律协同时表示试考和降分的计划也没有打算任何改变。

原文：https://www.calbar.ca.gov/Admissions/Examinations/California-Bar-Examination/Notice-to-2025-Bar-Exam-Takers

谁可以参加试考​

并不是所有注册了报名资格的考生都收到了试考邮件，甚至可以说，目前只有很少的人收到了这个邮件。

但是，没有收到的邮件也可以直接报名参加试考，链接：https://fs22.formsite.com/sbcta/SBCExperimentP1/index

截止日期是10月13日（必须在这之前获得考试资格）。

加州官网可能允许所有报名的人参加试考，也可能随机抽选。

非常奇怪的是，试考和7月考生出成绩是同一天，而成绩是当天加州时间下午6点（国内11月9日上午10点）出来。理论上不应该把试考时间安排在下午6点之后，也不应该指望刚挂掉的考生怀着沉重的心情去试考。

那可能是让无论考没考过的人都要怀着忐忑的心情试考。

但邮件强调了repeat takers可以参加考试。所以今年7月已经考过bar的考生如何安排，还要等进一步消息。

是否网考​

消息很早就已经确定会“远程举办考试”，也就是会在“家里用自己的电脑考试”和“去类似皮尔逊的考试中心考试”中二选一。之所以部分人还在观望，是不知道这个二选一究竟是考生自己选，还是加州帮我们选。如果加州帮我们选了只坐落在加州的考试中心，那机票酒店一分钱也少不了，和去会展中心考试并没有太大区别。

这次试考明确了考生可以在两种方式中二选一，但因为位子有限，“并不保证考生的选择会得满足”。从逻辑上看，只有考试中心的位子会有限，网考的服务器并不会因为一个考生更愿意在家考试而减轻负担，所以猜想只有在考试中心试考的选择可能不会被满足。

即便如此，我们依然不希望你看到这个消息就冲动报课，请翻到新生代USBAR首页的劝退部分多看看。无论如何也无法前往加州现场考试的潜在学员，也建议继续等确定可以在家考了再报课。

是否可以用于加分​

参加试考可以在2025年2月和7月的考试中获得最多40分的adjustment. 虽然adjustment字面上可能是加分或者减分，但显然不能给考生减分（官方通告也明确了这点），所以只可能是加分。

不确定的是怎么加分，是一律加40分，还是根据试考的成绩加分。如果一律加40分，那就是把1390降到了1350. 考虑到加州前几年有从1440降低到1390的先例，这对明年考生来说是一个重大利好。

加分的提议要等待加州最高法院的批准，历史经验表明该院不怎么会拒绝state bar的提议。

是否会遇到法律挑战？从理论上来说，只是给参加试考的考生加分，没有给其他人减分。未能参加试考的考生即使感到些许不公平，似乎也没有起诉的standing.

但未能参加试考的考生的投诉信肯定是要收一些的，这也是该政策最不稳定的因素。

作为弥补，我们猜想加州会允许这部分人参加第二次试考同样获得加分。

还没有报名考试资格，现在是否来得及​

现在邮寄无处分证明，10月13日之前大概率可以通过考试资格从而报名试考。

用法本+LLM报考的潜在考生，建议抓紧时间做学历认证。

请记住，依然不确定是否所有报名的人都有资格试考。不要冲动报名。

考什么​

少于2个小时的单选题。从时间来看，应该在50-70个单选题左右。

Phase One是什么意思​

来看个生活大爆炸的小视频：https://b23.tv/47v6K2W

有没有Phase Two​

That CA bar can tell you.

第二次试考会在2025年7月考试的第三天（大概率是2025年7月31日）举行，到时候估计也会给这些人加点分，所以如果你没有决定好2月还是7月，可以考虑下7月。

7月的试考会探索：

1. 网考还是在家中考试？这意味着2026年有可能回归线下？
2. 不同时间限制的考试，以及
3. 是否允许有限开卷。

政策原文和免责​

https://www.calbar.ca.gov/Admissions/Examinations/California-Bar-Exam-Experiment

因为这是突发消息，出稿仓促，可能会有政策解读的错漏。请以官网英文最新消息为准。

提炼卖课须知里面关于英语写作的内容，大概就是：

1. 我是数学老师，不是英语老师，我自己不是主修英文专业的，也没有留过学；

2. 英文学习，尤其写作，是一个超长期的过程，无法做到短期提高；

3. 建议英语不好的同学可以先学英语，不用急着买我的课。

写作十分不好，依然要考过，据我所知也不是没有办法，就是把选择题提高到一个十分恐怖的正确率。但这很难，目前学员中也就只有那么一两个能做到。

如果英语写作的文笔好，这个考试会简单很多，因为本来就有五成以上的通过率，比国内法考高多了。华人本来就擅长考试，只要英语写作好，想挂都难。

既然我一再强调我不教英语，本来也没有必要写这一篇文章。但最近问写作的学员越来越多。我寻思着如果专门是为了考bar学英语，或许可以更有针对性提高阅读和法律写作。加上随着语言大模型的发展，英文学习可能有比传统去培训机构报班有了更高效的学习方式。所以寻思着还是介绍几个对考bar写作或许有帮助的英语学习方法。

先学选择题​

先把选择题学完再准备写作是绝大多数人的备考方式，也是我推荐的。众所周知很多法律单词平时并不会接触到，即使英语本身很好，碰到这些单词也会不知所云。但你如果去抱着法律英语词典啃，又会学到一些考试根本用不到的法律英语。只有在选择题全过完之后才会知道哪些法律英语单词是重要的以及他们分别是什么意思。这样写作时才能信手拈来。

多看真题和参考答案​

加州的历年真题和精选答案我放在了首页可以随时下载，这个是备考加州必须要看的。至少要看10年，建议最好看20年。当然，也是选择题过完之后再看。

看这个有两层含义：

1. 对于文笔不好的，通过阅读提高英文文笔；

2. 更重要的，学习遇到一个题目应该如何找到焦点（issue spotting），以及对于某个焦点应该如何论述。所以如果文笔没有问题，读中文又显著快于英文的（我是这样），我会建议后期直接看机器翻译版的就行。

纽约论文对文笔的要求低了很多，答对就行，所以建议看NCBE公布的解析（SmartBarPrep有售）。这些解析反过来对选择题也很有帮助，可以看出NCBE对论文考点的理解也体现在了选择题的巧思中。可惜明年加州整体换Kaplan出题，NCBE的思路对加州就无效了。

NCBE的解析毕竟过于冗长，如何在半小时内得到一份简短的高分答案，可以看各州公布的模范论文（一般在各州律协官网可以下载）。

借助语言大模型训练自己的文笔​

对文笔最有帮助的还是练，练完让老师改。现在我们有了最好的老师：语言大模型，绝对比任何英语老师都要更细心、更有耐心，表达也更加地道。

国内免费我目前推荐Deepseek.com，手机号注册就可以免费用，不比GPT 3.5差。

GPT 4o固然很好，但特别难访问。有三重障碍：国内需要梯子，注册需要美国手机和信用卡，外加Openai本身也想方设法限制大陆和香港用户访问。

如果想不搭梯子用一些先进的，可以考虑开源大模型，Llama-3.1-405B就已经不逊于GPT 4o.

当然我也没有指望各位律师们在自己的电脑上部署一个开源大模型。Anakin.ai这个网站部署了主流开源大模型的接口，这就包括上面Llama-3.1-405B。Anakin每天有一些免费名额，付费也比GPT 4o便宜，目前不用梯子就可以访问。

如果你第一次用语言大模型，我推荐下面一些提示词：

1. 我刚写了一篇文章，能帮我改改语法错误吗？请把你修改的地方加粗。

2. 请把这个句子改成更通顺精准的法律英语表述的方式。

3. 请你按照法律语言的习惯进行修改，尽量保持原文的意思不变，但改掉明显不符合逻辑或法律的地方。

先用免费的Deepseek试试，熟练后觉得已经无法满足自己的需求再用其他开源或闭源模型。

注意现在语言大模型的发展日新月异，可以加我们交流群随时关注避免落伍。

我自己已经是离开大模型就不会写（英文的）法律文书了。

近期友商开始陆续宣传此事，我也有必要说明下：从明年2月开始，加州大概率会网考了。也就是在家中、用自己的电脑、不用办美签就可以考。

这篇文章就是提醒那些美签不容易通过的申请人可以暂缓办理。毕竟考bar不需要美签，但如果美签被拒签过一次，今后就再也无法免签去塞班了（无论何时被B1/B2拒签过的申请人必须持有有效的美签才可以进入塞班）。而MPRE是无法网考的，疫情期间可以在北上广考，疫情后没了。现在唯一免签考MPRE的方式就是去塞班。

MPRE虽然不难，但美签被拒就只能眼睁睁看着bar的有效期经过也无法宣誓，bar也就白考了。

具体网考的细节和费用还是会在10月1日开放2月考试报名时公布。至于明年7月或者更晚的考试会不会继续网考，如果2月考试不出什么幺蛾子的话也是大概率事件。

北京：9月21日（周六）下午6:00-晚上9:00，Tims天好咖啡（乐成中心店）

武汉：9月23日（周一）下午6:00-晚上8:00，茶颜悦色（万象城店）

方式：纯聊天，没有presentation. 你可以随时来、随时走。你一个人来袁律师就和你一个人聊，人多了就一起聊。

内容：众所周知袁律师一般不推荐人考bar，只是一旦你决定考，他会全力辅助你。所以建议把问题重点放在如何通过考试（纽约/加州bar），而不是要不要报名考试。

Q & A​

Q: 会不会有通过的学员分享经验？

A: 可能会来，但不确定什么时候。如果你全时段都在，或许会见到一两个。

Q: 有什么吃喝/礼物？

A: 来的人送饮品一杯。现场有纯色鼠标垫和加州可能要用到的FD-258指纹卡，需要的人可以领取（送完为止）。

Q: 可不可以请袁律师吃饭？

A: 袁律师在减脂，不吃晚饭。也请不要带礼物过来，不方便带走。

变化的原因并不是要变难或者加入更多加州元素，仅仅是因为State Bar入不敷出，希望改成网考、考试中心以节省成本。对比纽约州以低得多的考试费用却完全没有类似的顾虑，不得不感慨下西部物价尤其是房租实在是太贵了，租几天会展中心就快把State Bar租垮了。

再次强调multiple-choice questions就是单选题，加州不会换成多选或者不定项选择。

题型不会有显著变化。每科25个题（刑诉、刑法算一科）+25个测试题是不会改变的，培训方式也不会变。出题风格可能会有变化，但会尽量保持和NCBE一致。我一直认为Kaplan自编的1200+题量偏少，解析质量也暂不明确，UWorld作为第一遍刷题的策略绝对是不会错的。复习时间少的同学可以将Kaplan的自编题作为主要题库来刷，我接下来一年也会主要研究这些题（UWorld的题这两年下来我基本看个开头就能知道学员要问什么了）。

原文网址：https://www.calbar.ca.gov/About-Us/News/News-Releases/state-bar-kaplan-sign-five-year-california-bar-exam-development-contract

之所以只招挂所律师，是因为我实在是没什么业务。执业3年只代理过一个案子，还是为了拍照（对，就是我的微信头像）才答应帮同事开的一个没什么争议的和解庭。如果你有案源，固然欢迎；没有案源，挂在我这里也没有什么损失：这就是我所的第一个好处：不收管理费。

我所在深圳，目前有着全国最低的社保费用。说是今年7月要上调到和广东省一致，但不知道出于什么原因至今依然维持在1000元左右一个月（包括个人部分和律所部分）。据我所知，这是其他一线城市的二分之一甚至三分之一。

如果你恰好有一些案子，我所会给你提供你想要的一切后勤：收发信件，电子盖章，年审跑腿，每年要求的学分。当然还有，我自己也深受其害的无理投诉，我所一定和你站在一起。

如果你案子很多，目前我们的税点也是业界最低的，加起来不超过10%。

作为程序员，我可以在能力范围内帮你解决一些电脑问题。我实习期间曾经在两周内用程序立了8000多个案件。

简而言之，0管理费，低社保，低税点，不用来上班。但也有一些缺点：没什么名气，必须上深圳社保，办公室虽然有，你估计也看不上。

最后，来挂我所可以享受考Bar培训的8折优惠（但今年8.1之前报名的就不享受了），这条主要是为了符合考bar大群的群规（与考bar合理相关）。

考纽约州（和其他UBE的州）的同学不用看下面的内容。

我在上一篇类似的文章中说过，无论怎么强调UWORLD对考试的帮助都不为过，相信所有通过考试（尤其是加州）的学员和非学员都深有感触。现在，加州要换Kaplan出题的声音很大，学员每天问是否要换Kaplan的题目刷，但我依然认为，第一遍还是要以刷UWORLD的题为主。原因如下：

1. UWORLD中大部分都是争议极少的NCBE真题，很难挑出什么错误，自编题就可以看出错误一大堆；

2. UWORLD题量够，能覆盖大部分考点；

3. UWORLD解析稳定、简洁、易懂。两个题如果考同样的知识点，UWORLD考点分析（规则描述、表格、图片）大概率是相同的，经常刷题的（尤其是以Emanuel为蓝本的）学员会知道这多么重要。

Kaplan的1200多个自编题同样有一些价值，可以作为UWORLD的补充题库。需要注意的是，如果换Kaplan出题，是否就一定从目前他们官网的题库中出题？或者至少风格类似？这恐怕也是我们目前的一厢情愿。毕竟今年7月同样是NCBE出题，就有很多考生感受到了风格的变化，200题+210题+过去几年真题覆盖面少了，考点更灵活了，问法更奇怪了。所以即使换成Kaplan出题，也不见得就一定和他们目前官网的自编题库思路一致。

所以，关键还是要真正把知识点学懂，最好还能理解一些规则背后的原理以应付没见过的考点。无论怎么出题，每科25题+25个测试题是不会变的，考点也不会变（two years’ notice is required for any change to the bar exam that would require substantial modification of the training or preparation for the passage of the examination）。更不会像某些人怀疑的那样出什么多选题：我从来没见过美国有什么考试用多选题这种反人类的考法。在英语中，Multiple Choice Questions就是单选题的意思，我甚至不知道有什么词组用来专门表示多选题。

再次强调我没有收上述两家机构的钱。我也在怀疑，Kaplan虽然号称退出加州市场，但他们如何禁止加州考生以其他州考生的名义报名他们家的培训。

但最近有个语法问题已经影响到了学员做选择题，而且是让我哭笑不得的冠词问题，我认为有必要单独发文说一下。

说冠词难，英语里面只有三个冠词：a, an和the. 其中a和an又是一样的，约等于只有两个冠词。但如果说冠词容易，因为中文里面没有冠词，所以中国考生在写文章的时候很容易在本应该加冠词的时候漏掉冠词，或者在不应该加冠词的时候加上冠词——我自己也无法完全克服这个问题。

好在今天讨论的问题更简单一些，仅仅是阅读的时候区分定冠词和不定冠词就可以了。他们的区别是，定冠词 “the” 用于指代特定的、已知的事物，而不定冠词 “a” 和 “an” 用于指代非特定的、未知的事物。这本是小学英语的内容，但最近很多学员掉坑里。小技巧是，如果还是不好分辨，可以把不定冠词换成all或者any试试，就能看出明显的错误。

我们来看这个选项：

No, because a dismissal does not operate as an adjudication on the merits.

这句话的意思是，一个驳回起诉的裁定，不代表对案件进行实质审理。如果它错的还不明显，可以翻译为“任何驳回起诉的裁定，都不是对案件的实质审理”。这明显是错的。我们知道法官可以直接在裁定中注明带偏见驳回起诉，视为对事实进行了实质审理。用友商的话说，这是“法律叙述错误的选项”，根本不用看题目就不能选。如果你去纠结题目中驳回起诉的裁定恰恰是带偏见的，应当视为对案件的实质审理，那你就掉入了冠词陷阱。如果把这个选项中的a换成the，那么这个驳回起诉的裁定才特指题目中的裁定，那么它就是一个正确的选项。

再来看这个选项：

Yes, because the hearsay rule does not exclude out-of-court statements if a declarant testifies and is available for cross-examination.

这个选项的意思是，一个证人只要出庭作证并接受交叉盘问，hearsay规则并不会排除这个证人的庭外证词。这是错的离谱的表述。如果你没看出这错得离谱，那么hearsay还没学好，赶紧回炉重造。知识点是，证人即使出庭作证，那么他的庭外陈述依然是hearsay，必须要符合一种hearsay的例外，才可以被采纳。

但很多学员纠结说这个证人出庭了，所以他先前的指认属于hearsay的例外（exclusion）。学的很好，但这个选项错在它的冠词是泛指一切证人的a，而不是特指题目中证人的the.

反过来一个非常类似的题，体现了有学员对定冠词也理解不到位。来看这样一个选项：

Yes, because the eyewitness's statement of identification as reported by the officer is not excluded by the hearsay rule.

这个学员说C是错的，因为目击证人先前的指认，必须还要求他出庭作证才符合hearsay的例外（exclusion）。

知识点很扎实，但还是对冠词理解不到位。如果这里冠词是an，那就错了，但冠词是the，特指题目中已经出庭作证的证人，所以它恰恰是正确选项。

最后，名词的复数形式也应当视为不定冠词。有个题问证人先前的犯罪是否要被采纳，这个选项说：

Yes, because prior convictions are probative of a witness's character for truthfulness.

这里convictions没有冠词了，因为它是复数，可以视为有冠词a，泛指所有的定罪。那么翻译一下，就是先前的定罪对反驳证人的诚信有证据价值。如果错的不明显，可以翻译成任何先前的定罪都对反驳证人的诚信有证据价值。如果你依然觉得错的不明显，那就是证据法学的还不够细。考点是只有重罪和与诚信有关的犯罪才有证据价值。和诚信无关的轻罪是没有证据价值的。[FRE 609(a)]

所以即使题目中的犯罪记录可以采纳，这题也不能选择这个选项。把“prior convictions”改成“the conviction”就是对的。

A federal court, in the exercise of its diversity jurisdiction, is required to apply the substantive law of the state in which it is sitting, including that state's conflict of law rules. Meanwhile, the federal courts apply federal procedural law.

当一个问题不确定是程序法还是实体法的时候怎么办？最高法院也早有判决，如果有联邦程序法条直接相关，那么就视为程序问题，应当适用联邦法[Hanna v. Plumer, 380 U.S. 460 (1965)]。理论上颁布这个判例的时候，联邦程序法还有违宪的可能，但发展到今天，最高法院从来没有推翻过任何一条程序法（Applying that test, we have rejected every statutory challenge to a Federal Rule that has come before us. [Shady Grove Orthopedic Associates, P. A. v. Allstate Ins. Co., 559 U.S. 393 (2010)]）。这事也就这么定了下来。

If a right is arguably procedural, federal procedural rules will apply if they are on point, even if there is a conflicting state law.

离考试已经没有几周，这两条规则你应当已经烂熟于心。那本文介绍三个不起眼的“联邦程序法反过来适用州法”的情况，考试的时候遇到要知道怎么选。

首先是送达，FRCP明确规定在其列举的几种送达方式（一般是亲手送达、留在住处、送达公司的一些规定）以外，符合送达州或者法院坐落州的送达方式也可以。所以210个题里面有个题，很多学员问为什么送达明明是程序法，这里却可以适用法院坐落州法，只因FRCP就是这么规定的。别说可以适用法院坐落州法，哪怕不符合联邦法列举的其他送达方式，也不符合法院坐落州的送达方式，只要符合送达人所在州的送达方式也是可以的。

然后是relation back，如果你学的更好一点，会知道relation back视为程序问题适用联邦法，这是因为FRCP对relation back有明确规定：允许回溯。但FRCP并非一味允许回溯，它分为加案由回溯和加被告回溯，两种回溯的规则各有一点不同。

加案由回溯，联邦的要求是基于same T/O或者州法允许，举两个例子：

A起诉B过失，之后诉讼时效经过，然后基于同一案由追加严格责任，州法不允许回溯，但联邦允许回溯（同一案由），可以追加。

A起诉B过失，之后诉讼时效经过，然后基于不同案由追加违约，州法允许回溯。虽然不符合联邦的same T/O，但州法允许，也可以追加。

上例你可能会想，为什么不是同一个案由也可以追加？留作课后习题。

加被告回溯是最麻烦的，如果题目告诉你州法允许，那就简单了。

A起诉B过失，之后诉讼时效经过，过了一年发现其实应该起诉C，于是修改起诉状追加被告C。州法允许回溯，可以追加。

如果州法不允许，联邦法也可以追加被告，但就有了下面两个要求：

1. 在起诉后90天内修改起诉状；

2. 新的被告对起诉知情，知道或应当知道自己应当是正确的被告（之一）。

这类题目在UWorld里面反而很多，这里只介绍一个题：以Ten months after surgery in a hospital开头的题，细心的同学发现修改诉状加入新的当事人并主张relation back的时候，已经超过了FRCP规定的90天。这是因为这个题2014年放出，当时FRCP的规定还是120天，2015年改成了90天。

送达和回溯这两类情形的诀窍是，联邦和州法只要符合任何一个，就是符合程序的；反过来，必须联邦法和州法都不符合，才是程序上不可行的。

第三类是preclusion，这个一度让人十分困惑。我们知道，preclusion的效果一律看前案而不看后案，这是宪法Full Faith and Credit Clause和相关法条带来的效果。所以，如果A州dismiss with prejudice并规定一事不再理，B州自己的法律即使认为“一事可以再理”，也不能再审理这个案例。反过来，如果A州dismiss with prejudice并规定可以在另外一个州继续起诉，B州即使自己认为“一事不再理”，也必须受理。

但preclusion通常是个民诉考题，不是宪法考题。民诉题一般是基于联邦法院的，联邦法院遇到这个问题应该看什么法律呢？要分三步走。

1. 因为在联邦法院审理，所以适用联邦法。210个题里面以A car manufacturer produced a car that was sold nationwide开头的题，虽然最后的确是落到了州法上，但“因为是在联邦法判决，所以适用联邦法”才是唯一正确的选项。

2. 根据Erie原则，时效问题和preclusion问题应当转而看法院坐落的州法。

3. 如果该州认为，因时效问题dismiss with prejudice后可以在另外一个时效没有经过的州继续起诉，那么联邦法院作出的dismiss with prejudice，和州法院作出这样的裁定也不会有什么不同，另外一个州必须尊重。

[Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001)]

我做培训就发现，“考试没什么用”这个理论是无法劝退考生的（写在报名须知里都无法劝退）。OLQE也是一样，哪怕香港律师会年费高很多，考试比CA Bar还要难很多，考到之后来香港执业也不比美国容易多少，但依然有很多人前仆后继来考。至于费用，虽然今年翻了一倍，但因为路费便宜，反而和CA Bar差不多。

但我考这个可能真的有用。我这人不是很专一，虽然我现在做培训做的热火朝天，但过几年就未必了，说不定去当律师。而我有香港身份，如果有证是真的可以在香港执业。就算我不执业，考了这个可以继续做香港OLQE培训，反正劝不退，不如加入。

所以年初心血来潮，乍一看似乎加州执业2年就可以申请，于是安排助手准备了一堆文件。这一准备起来才发现里面坑非常多，各种学历、翻译、宣誓、签字。我分别找律师朋友和翻译朋友刻了两个符合要求的章子用于认证和翻译各种文件，比较常见的坑我先列一下：

1. 推荐信不仅要证明执业，还要证明执业的是什么法律，比如，“在中国执业”是不够的，还要证明“执业领域是中国法律”。

2. 如果执业领域不是中国法律，比如“在中国从事美国法律”，需要司法局开证明允许在中国从事美国法律。

3. 推荐信一定要注明推荐人和你没有亲属关系。

4. 一般来说都要纸质的certificate of good standing和attorney's license. 深圳也就罢了，对于美国这种一般不需要license的地方，如果不想提供，必须证明他真的不发给license，但加州只要交钱是可以发license的. 于是又花钱找加州律协给我DIY了一个律师证（似乎DIY的要快，official的反而慢，但我也不知道有什么区别，所谓DIY也并没有让我选样式）转运回来。

5. 要好几封律师推荐信，认识超过多少年，执业超过多少年，凑齐这些人并不容易。

如果说这些仔细看guide还可以准备出来，或者至少有补交的机会。那没有法学学历的坑就并没有办法规避。我看到Rule里面的确是要法学学历的，但guide里面语焉不详。似乎只要大陆法执业5年，或者普通法执业2年，就一定可以考。至于没有法学学历可不可以申请豁免？不知道，也问不出来。可能前人没有做过吧，那我只能吃一下螃蟹了。报名费涨了一倍也没有办法，去中行开了6600港币的汇票，3月和厚厚的一沓材料一起亲手送到律协。吐槽下，在香港大街上找个卫生间很不容易，需要下个找卫生间的APP。这个APP告诉我律师会最近只有对面商场3楼有一个，但10点之前居然是锁着的。好在律师会开门后可以找前台小姐姐要钥匙上厕所。

中途很多考友遇到了上面1-5中的各种问题要求补料，但我没有，表扬一下助手看材料真的很仔细。

但5月直接来了个大的，要求补交法学学历。这真的补不出来，直接回复没有。

于是上周拒了，理由如下：

The OEEC noted your email of 6 May 2024 informing the Law Society that you had not attended any law school, neither in a common law nor a non-common law jurisdiction. You are unable to provide any academic transcript relating to your completion of the core courses as required under rule 4 of the Overseas Lawyers (Qualification for Admission) Rules ("OLQE Rules"). The OEEC resolved that you are not eligible to sit the OLQE in 2024 on the basis that you failed to satisfy the academic requirements under rule 4 of the OLQE Rules.

还贴心地附上6600的收据，顺便告诉我可以再交3000复议。合着光借钥匙上个厕所就收6600还不够黑，还要贴3000进去。

不过也算是省钱了，因为如果通过报名资格，考试费又要两万多。培训费也省不了，一般来说要7万左右。会费据说一年一万左右（一般律所交，有不同程度豁免）。大多数人即使考到也并没有办法去香港执业，这钱比加州要肉疼很多。

我是不会再交一分钱给律师会了。这件事情就这样告一段落。

近日，我们联系到了UWORLD销售部门，要到了MBE15UWORLD和MBE10UWORLD，分别用于2025年2月的半年套餐（今年8月1日用到明年2月底）和早鸟套餐（现在用到明年2月底），折后分别是356.15美元和476.10美元。后者除了比前者多用2个月，还有一次重置所有题目二刷的机会，但只有10%而不是15%的折扣。

无论怎么强调UWORLD对考试的帮助都不为过，相信所有通过考试（尤其是加州）的学员和非学员都深有感触。

UWORLD一共有2000多个题，只看到1800个题的同学可以点开左边Assessment，这200个题是NCBE在2021年放出来的真题，价值很高。目前没有任何机构能把真题收录到UWORLD这样齐全的程度。

UWORLD全题似乎有一套打水印的PDF售卖（售价似乎还不菲）。作为程序员，爬虫是我高中就会的东西，对我来说没有任何稀奇。

我认为，打印这5000多页费时费力，且没有办法很好地统计正确率、整理错题，更不会像APP一样可以随时随地用碎片时间刷题，实在没有必要为了省这一点钱肥了盗版商的腰包。何况那水印看着也膈应人。

明年2月加州考试可能换Kaplan的题目，那么可以考虑UWORLD+Kaplan自编题（约1200题）组合的方式。我会像点评UWORLD自编题那样，对这1200题中有争议的自编题进行点评和解析。

我没有收上述两家机构的钱。

以Ten months after surgery in a hospital开头的题，细心的同学发现修改诉状加入新的当事人并主张relation back的时候，已经超过了FRCP规定的90天。这是因为这个题2014年放出，当时FRCP的规定还是120天，2015年刚改成了90天。UWorld没有发现这个问题，姑且算是UWorld的锅。

以A business incorporated in State A hired an advertiser living in State B and a lawyer living in State C to help the business's advertising efforts in a foreign country开头的一个题，venue的两个优先都不合适，只能用兜底，而兜底的规则是“对任何一个被告有PJ的司法区”，所以B说因为这个司法区对两个被告都有PJ，和A说因为其中一个被告住在这个司法区，都不够好。正确的答案描述为at least one of the defendants are subject to personal jurisdiction in State B会比较好。

以A man died, leaving a will that devised his land to “my wife for life, remainder to my son and the heirs of his body. But if my son dies without children, then the land shall go to my nephew.” 开头的一个题，说这是fee tail，所以my son后面整个无效，应视为fee simple. 这是不对的，“and the heirs of his body”划掉不看，是房地产的做题技巧没错，但But开头的这句话没有办法不看。事实上这是一个fee simple subject to executory limitation，虽然归邻居没有错，但说the son持有fee simple是错误的。

以A shopping mall located near an interstate highway exit is surrounded by a paved parking area开头的一个题，讲述地主明明摆放了“NO TRESPASSING”的牌子，却反而把侵入者变成了anticipated trespasser的故事。这让地主怎么做都是错的，不放牌子说人家没警告，放了牌子说人家有期待。正确的理解参考Barbri的outline: if the owner has posted "no trespassing" signs, this might serve to convert these “anticipated” trespassers into “undiscovered” trespassers.

以A tenant entered into a one-year agreement to lease a two-bedroom home from a landlord for $1,000 per month开头的题，核心是租客违约，房东及时租出去，能否主张租金差价600块。UWorld认为多数州不将anticipatory repudiation理论运用到租约上，所以无法主张差价。MBE会避开这种实务上争议很大的题。即便如解析所说，题目也没有问“现在”房东能主张多少，房东完全可以等到原来的租约结束再主张差价，就不需要用到anticipatory repudiation理论。

以A defendant was charged with sexual assault开头的一个题，希望引入被害人先前希望和被告人发生性行为的庭外陈述。答案认为这是“specific instances of a victim's sexual behavior”，十分牵强。其实用then-existing state of mind就很好解决了hearsay的问题，如果不行，用被告人宪法权利的兜底条款也必须能选对。这题选C（because the testimony goes to the issue of consent）是没有错误的。

加州我没有挨个问去参加考试的人（也不是所有人去考了都会告诉我），目前统计的通过率居然超过纽约。在放榜通过的22个留大陆+香港地址的考生中（北京4、上海7、深圳2、绍兴1、成都1、长沙1、惠州1、丹阳1、香港4），有超过1/3是我的学员，加上看我免费课自学并主动告诉我的超过一半。还有另外一些学员留的美国地址。注意我从开始卖课到现在差不多一年半，主要也就培训了去年7月和今年2月两届考生，有理由相信今年7月的战绩会更好。

我对2月的战绩本来是相对保守的，因为2月真的比7月难。从通过总人数看，虽然留大陆+香港地址的人比去年多5个，但去年疫情刚放开，很多人不敢报名。所以说难度即使不大于去年2月，至少也是相当的。成绩出来之后通过率大大超过我的预料。对自己的培训方法有效而窃喜的同时，也感慨学员付出了我看见的和没有看见的努力。恭喜通过的学员。

为什么说2月比7月难？有人会说，2月repeater多，通过率自然低，这的确是2月通过率低的主要原因，所以光从相对较低的通过率无法证明2月真的难。

我每年都会第一时间看学员的论文和分数，同样质量的论文，去年7月就比今年2月给分要厚道，去年7月除了第4题居然会给出40-45这样的分数（也是因为考生确实在瞎写），其他几题多写一点就会给55分，但今年2月文笔不好就只给50。整体而言，我个人观感是同样质量的文章，7月可能要多拿10-15分的裸分。也就是平均每科多给2分左右。

不要觉得2分不多，下面这个算法会让你直观感受到论文每一分都对成绩提升巨大，而2月会放大60分以上的帮助，反之7月会缩小58分以下的后腿。

将裸分转化为1300左右的分数，就是简单地乘以一个系数，再减去一个系数。去年7月的公式是：Raw × 4.3264 – 456.46，今年2月的公式却是Raw × 4.6246 - 576.51. 如果所有文章都拿62分（434），60分（420），58分（406）或56分（392），会在去年7月拿到1421、1361、1300、1239，但是在今年2月分别是1431、1365、1301、1236。

总之，如果能在7月指望老师多给几篇论文60甚至65分这样的分数，对通过考试帮助特别大。同时，如果文笔就是不好，MBE也要冲着1500分往上去准备。

MBE的调分是不是也比去年7月更难？从部分学生两次考试的成绩对比来看，难了不止一点。但很可惜，统计样本不足（加州通过的学生不公布成绩），就先不下结论了。

顺便说一下MPRE. 今年3月MPRE的调分显然比去年8月和11月厚道，通过率回到了当年在国内可以考的那几次。出分的时候大群小群都沸腾了，甚至有人考出141这样逆天的分数。而去年8月、11月挂的人很多，学霸考不到100分的也大有人在，还出现了通过bar居然没有过MPRE这种倒反天罡的现象。

Contracts for the sale of goods are governed by the Uniform Commercial Code (UCC), while most other types of contracts fall under common law. Here, the applicable law is the UCC since the contract involves the sale of maple toppings.

A contract forms based on mutual agreement, even if that agreement is oral. When Brian and Sam verbally agreed that Sam would immediately supply 500 gallons of maple topping at $20 per gallon, a contract was formed. However, the UCC requires that contracts for the sale of goods valued over $500 must be in writing to be enforceable. Although they had an oral agreement, it could not be exnforced because it did not meet the UCC's Statute of Frauds requirement.

Moving forward, Brian sent Sam a purchase order on his standard form for 5,000 gallons of maple topping at $20 per gallon, to be delivered to Brian’s place of business in two weeks. This is a definite offer under the UCC with clear terms regarding quantity, price, and delivery time. Despite not reflecting the quantity initially discussed, it is still a valid and legally binding offer under the UCC. Sam’s subsequent written acknowledgment, which restated the items in Brian’s purchase order, constitutes a proper acceptance, indicating his willingness to be bound by the terms of the offer.

Therefore, an enforceable contract was established between Sam and Brian for 5,000 gallons of maple topping at $20 per gallon, to be delivered in two weeks. This contract meets the requirements of the Statute of Frauds and is enforceable. Sam’s argument might be that the contract does not accurately reflect their initial oral agreement. However, the purpose of the Statute of Frauds is to prioritize written over oral agreements to avoid disputes over unverifiable terms not captured in writing. In fact, fhe parol evidence rule specifically prevents the introduction of oral negotiations prior to or contemporaneous with the written contract from contradicting written agreement terms.

Most importantly, Brian's order does not specify that it is a continuation of the initial oral agreement. Although he might personally believe it to be so, contract formation is based on the outward expressions of the parties, not their internal thoughts. Thus, the order could very well represent a new offer, making Sam's argument likely to fail.

The only possible way Sam could prevail is if he could prove that there is a mistake, such as a mutual mistake where both parties intended to form a contract for 500 gallons and the mention of 5,000 gallons was due to a clerical error. It could also be a unilateral mistake where he intended to form a contract for 500 gallons and Sam had reason to believe this could be the case, due to their previous oral agreement. In such instances, he could seek reformation, an equitable remedy, to adjust the contract quantity to 500 gallons and reduce his losses.

2

Under the UCC, perfect tender is required, which includes delivery of goods at the specified time. Therefore, when Sam failed to deliver the 5,000 gallons of maple topping within two weeks as specified in the purchase order, he breached the contract.

Brian is claiming $100,000 in lost profits as compensatory damages, which are expectation damages intended to put the injured party in the position they would have been had the contract been performed. To claim such damages, it must be shown that the breaching party could have foreseen these losses at the time the contract was made.

The information provided does not specify enough details to determine whether these losses were foreseeable. However, it is likely reasonable to assume that in the food industry, the failure to deliver a key ingredient like maple topping on time could foreseeably lead to significant losses due to the inability to produce and sell finished food products. This type of loss, considering the role of the ingredient in production and its impact on sales, would generally be considered foreseeable.

Therefore, even if the claimed damages are equivalent to the contract amount, Brian might still have a plausible case for recovering these lost profits if it can be demonstrated that such losses were foreseeable to someone in Sam's position at the time the contract was formed.

(703 words)

The 6th Amendment guarantees the right to have an attorney present during critical post-charge stages of criminal proceedings. Live line-ups are considered such critical stages, while unfortunately, photographic identifications are not.

Regarding the 5th Amendment, it protects the right to have an attorney present during custodial interrogations. The showing of photographs to Tessa was not a custodial interrogation, so the 5th Amendment does not apply.

Therefore, the court correctly denied Dan's motion to suppress the photograph on this basis.

CA Prop 8

Under California's Proposition 8, all relevant evidence is admissible in criminal cases, but evidence that violates constitutional rights, impermissible character evidence, and hearsay are still excluded.

Statement to the defense investigator

Relevance

Evidence is considered relevant if it has the tendency to make a fact more or less likely than it would be without the evidence. Legal relevance additionally considers whether the probative value of the evidence is substantially outweighed by the risk of prejudice, undue delay, or redundancy. Tessa's previous contradictory description to the defense investigator directly challenges her reliability and accuracy, making this statement relevant.

Hearsay

The statement given to the defense investigator is considered hearsay because it is an out-of-court statement being offered to prove the truth of the matter asserted. Under California's Proposition 8, while all relevant evidence is generally admissible, hearsay remains inadmissible unless it falls under an established exception.

Prior Inconsistent Statement

For a prior inconsistent statement to be admissible, it must have been made under oath. In this case, if Tessa’s statement to the defense investigator was made under oath, it could potentially be admissible as substantive evidence.

Former Testimony

The former testimony exception requires that the testimony was given under oath and that the witness is unavailable to testify at the current proceedings. Since the witness is available, her statement does not qualify under the former testimony exception.

Impeachment Evidence

Although the statement may not be admissible as substantive evidence, it directly contradicts Tessa's court testimony about the suspect's appearance, which is a crucial issue rather than a collateral matter. Thus, it can be used to impeach her credibility.

In summary, the testimony given to the defense investigator can be admitted for the purpose of impeaching the witness. The judge may instruct the jury that it should only be considered for impeachment purposes.

The photograph with Tessa’s signature

Hearsay

The photograph signed by Tessa, identifying Dan as the suspect, constitutes hearsay because it is an out-of-court identification used to assert that the person depicted is the robber.

Prior Identification

A witness's prior identification of a suspect is generally excluded from the hearsay rule and is admissible as substantive evidence.

Legal Relevance

Resolving the hearsay issue does not conclude the inquiry into the admissibility of the photograph. The defense might argue that since one identical photograph has already been admitted, introducing another photograph with Tessa's signature could be unnecessarily cumulative or prejudicial.

This argument is unlikely to prevail because the signature on the photograph can enhance the credibility of the prior identification in the eyes of the jury. It emphasizes Tessa's certainty and commitment at the time of identification, which is a critical aspect of her testimony. While any evidence can naturally cause some prejudice to one party, under Proposition 8, it should be admitted as long as it does not cause undue or unfair prejudice.

The ATM Records

Relevance

The ATM records are highly relevant to the case as they potentially contradict Dan's alibi.

Hearsay

ATM records are not assertions made by a person, and are not considered hearsay.

Authentication

The records have been properly authenticated by Chet, the custodian of records from Credco, who testified that they were produced as part of the regular course of business, and establishes a reliable basis for the creation and maintenance of these records.

Given these factors, the ATM records are likely admissible as they are relevant, not considered hearsay, and have been properly authenticated.

(680 words)

The House

Initially, the house was Wendy's SP, gifted to her by her aunt. However, by deeding her SP into a jointly titled asset, it may have transformed into CP, a process known as a transmutation.

A transmutation must be made in writing, although it does not require consideration. When Wendy added Henry's name to the title, it must have been formalized in writing to meet the Statute of Frauds in the real property transaction process. By making this change, even without explicit documentation presented in this scenario, it is presumed that the property became CP.

Before 1987, any SP-to-CP transmutations were considered gifts. However, in 1987, California passed the anti-Lucas legislation. Now, Wendy is entitled to reimbursement for her separate property contributions towards the house at the time she changed the title.

To conclude, the house is considered CP, but Wendy should be reimbursed for one-half of the value of the property at the time she converted it from her SP by adding Henry's name to the title.

The Loan

In California, debts incurred during a marriage should be repaid using CP and the borrowing spouse's SP. This is true even if only one spouse, such as Henry, is the borrower. Therefore, when Henry forged Wendy’s signature to obtain the loan, the obligation to repay still involves both spouses' CP and Henry’s SP. However, since Wendy was unaware of the transaction, her SP is not obligated unless the expenses were for necessities, which is not the case with an auto repair garage purchase. Therefore, the debt should be settled using the couple's CP and Henry's SP.

Clarifying the debt responsibility does not conclude this matter. Here, Henry’s actions of forgery and unauthorized property purchase violated his marital fiduciary duty of loyalty. This breach could influence the court to allocate more debt responsibility to Henry, thereby protecting Wendy due to his misconduct.

The Garage

The auto repair garage, purchased with the loan under both spouses' names, is considered CP regardless of whose name appears on the documents.

Henry might argue that since he forged Wendy's signature, her obligation to the loan could be invalidated, suggesting that the garage should be classified as his SP. This argument does not stand. As discussed supra, both spouses' CP are responsible for the loan, so there is no reason for that property purchased with such a loan to be considered SP, especially when the garage is indeed titled in both their names.

The Investments

The termination of the marital relationship, and thus the cessation of the accumulation of community property, occurs when spouses decide not to continue their marriage, which in the case of Henry and Wendy, is marked by Wendy's declaration that the marriage was over. Therefore, Wendy's investments made after the permanent separation is SP.

(536 words)

Lawyers are prohibited from soliciting substantial gifts from clients. Allison might argue that season tickets are not a substantial gift, but given that such tickets generally cost several thousand dollars, they are typically considered significant. Allison might also argue that the tickets were part of her legal fees and not gifts, but this argument raises other serious issues. In criminal cases, contingency fees are strictly prohibited. Therefore, Allison’s condition of receiving season tickets only if she prevails in the case clearly violates this rule. Moreover, ABA requires that any contingency fee agreement must be in writing, while California law mandates that any legal fees exceeding $1000 also be documented in writing. The request for any legal fees should have been explicitly included in the retainer agreement rather than verbally requested after the fact.

Therefore, Allison violated ethical standards by inappropriately soliciting gifts from a client.

Payments to Wilfred

Paying witnesses for their time, including transportation, lost wages, and accommodation expenses, is generally permissible. Lawyers can also compensate witnesses for the time spent in preparation for testimony. Therefore, the payments to Wilfred for his testimony and preparation time per se do not raise ethical concerns. However, ethical issues arise from Allison's condition that these payments were contingent on Wilfred refusing to meet with the prosecution prior to the trial. Lawyers cannot ethically restrict third parties from providing information to the opposing party unless these third parties are relatives, employees, or agents of their client. In this case, there is no evidence to suggest that Wilfred has any such relationship with Davos, making Allison's stipulation a breach of the duty of fairness to the opposing party.

Payment to Eileen

Compensating expert witnesses for their time and expertise is a common and acceptable practice in legal proceedings. Again, paying Eileen, an experienced video technician, a reasonable hourly rate for her testimony at trial per se is not a violation of professional ethics.

Presentation of Eileen’s expert opinion

Attorneys must not submit information to the court that they know to be false, as this violates their duty of candor to the tribunal. In this case, Allison’s actions in influencing Eileen to provide testimony that contradicted their earlier agreement - that the video showed strong evidence of assault - constitutes a serious ethical breach. This act of soliciting Eileen to alter her opinion for trial purposes suggests an intent to deceive the court.

Moreover, while preparing witnesses, attorneys should facilitate the expression of the witness's own opinions and knowledge, rather than instructing them on what to say. Allison’s involvement in changing Eileen’s testimony could be viewed as suborning perjury, especially if it is proven that Allison encouraged Eileen to testify in a manner that was knowingly contrary to her actual expert opinion.

Allison might argue that an expert witness’s testimony is merely an opinion, not a statement of fact. However, even opinions must be genuinely held by the expert. Encouraging an expert to assert an opinion that does not reflect their true professional judgment not only undermines the judicial process but could potentially raise issues of perjury if the expert’s testimony is proven to be intentionally misleading. Thus, this manipulation of expert testimony could also breach the ethical duty to abide by the law.

Allison’s statements in closing argument

While it is Allison's duty to zealously advocate for her client, this does not include the license to mislead the jury or court. By stating that there was no assault, if contrary to the evidence presented, Allison potentially breaches this duty. However, Allison might defend her statement by claiming that she merely said, "the video showed that there was no assault" framing it as an opinion based on the interpretation of the evidence, rather than a direct assertion of fact. This is a close call and typically, the state bar may accept such a framing in closing arguments as it reflects an argumentative interpretation rather than a factual declaration.

However, the phrase "in my own opinion" used in her closing argument presents a clear issue. It is inappropriate for attorneys to insert their personal beliefs into arguments; they are required to maintain a professional detachment and rely solely on evidence and law to make their case. Expressing a personal belief about the client’s innocence oversteps this boundary and could be seen as a breach of duty of fairness to the opposing party.

(754 words)

Standing and Jurisdiction

Chemco clearly has standing to sue as it has suffered an imminent and concrete injury due to a decrease in its sales resulting from the enactment of the Organic Act by State X. However, the Eleventh Amendment does indeed restrict the ability of private parties to bring a state to federal court without the state’s consent. Fortunately, the Eleventh Amendment does not bar equitable suits against state officials in their official capacity to enjoin the enforcement of a state statute. This represents Chemco’s only viable option for initiating a lawsuit in federal court without the consent of the state.

Dormant Commerce Clause

The Commerce Clause of the U.S. Constitution not only grants Congress the power to regulate commerce among the states, but also has a dormant aspect, meaning that state laws that impose an undue burden on interstate commerce are often deemed unconstitutional.

Recently, the U.S. Supreme Court held that California's law requiring only humanely raised pork to be sold within its borders did not violate the Dormant Commerce Clause (DCC), despite effectively precluding most out-of-state pork from its markets. The controlling opinion in this case adopted a novel approach, holding that the DCC primarily targets discriminatory laws. The Court concluded that the intent of the pork law was not to disadvantage out-of-state businesses in favor of in-state businesses.

Here, Section 1 of the Organic Act does not explicitly discriminate against out-of-state businesses; it merely bans certain sales within the state. This ban applies equally to both in-state and out-of-state businesses, suggesting that it likely does not violate the DCC.

Due Process Clause

The Due Process Clause protects two categories of substantive rights: (1) rights explicitly guaranteed by the first eight Amendments of the Constitution, and (2) fundamental rights that, while not explicitly mentioned in the Constitution, are "deeply rooted in this Nation’s history and tradition" and "implicit in the concept of ordered liberty."

Here, the sale of chemical products is obviously not a fundamental right. Therefore, the regulation of such products through the Organic Act does not inherently violate the Due Process Clause.

Equal Protection Clause

The Equal Protection Clause prohibits states from denying any person equal protection of the laws, but classifications not involving suspect or quasi-suspect classes are subject to a more lenient standard known as rational basis review. Under this standard, the law need only be rationally related to a legitimate government interest.

Here, the classification of crops as organic or non-organic does not implicate any suspect or quasi-suspect classifications. It is tied to agricultural practices and aims to preserve the existence of small farms and to 'protect' those farmers' 'way of life.' While this purpose might seem modest, it still aligns with legitimate governmental objectives such as promoting sustainable agriculture and supporting local economies.

Under rational basis review, the burden of proof falls on the challenger, in this case, Chemco, to demonstrate that the legislation is not rationally related to any legitimate government interest. Thus, it is unlikely that Chemco can successfully challenge the legislation under the Equal Protection Clause.

2

Standing and Jurisdiction

See the rules above. Suing the state government in Federal Court would be barred by the Eleventh Amendment.

Dormant Commerce Clause

Section 2 discriminates against businesses outside of State X, and will be discussed infra.

3

Dormant Commerce Clause

The Supreme Court has recognized that if a state government is itself a market participant, it may not be subject to DCC restrictions. A&L Berries and Organic Produce could argue that merely receiving state funding does not necessarily qualify these businesses as state participants.

This is a close call, but it must be emphasized that if these businesses are not considered participants of the state government, then Section 2 is likely in violation of the DCC. This is because a provision that discriminates against out-of-state businesses on its face can only pass the DCC test if it serves a legitimate non-economic interest of the government and there are no feasible alternatives. This strict scrutiny-like test is nearly impossible to pass.

Privileges and Immunities Clause

Article IV of the Constitution provides that "the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." The Supreme Court has held that denying out-of-state residents the opportunity to engage in livelihood-related commercial activities violates the Privileges and Immunities Clause, even if the state itself is a market participant.

State X may have violated the Privileges and Immunities Clause, but A&L Berries and Organic Produce do not have standing to sue because Privileges and Immunities Clause does not protect corporations.

In summary, Section 1 of the Organic Act is probably constitutional, while Section 2 may have violated both the Dormant Commerce Clause and the Privileges and Immunities Clause. However, addressing the plaintiffs' standing and the 11th Amendment issue appears to pose considerable challenges before the federal court can consider the merits of this case.

(841 words)

深圳：4月8日（周一）下午6:00-晚上9:00，南山区东滨路永新汇大厦2号楼6层前台会议室

方式： 纯聊天，没有presentation. 你可以随时来、随时走。你一个人来袁律师就和你一个人聊，人多了就一起聊。此外，袁律师不会说粤语。

内容： 众所周知袁律师一般不推荐人考bar，只是一旦你决定考，他会全力辅助你。所以建议把问题重点放在如何通过考试（纽约/加州bar），而不是要不要报名考试。

Q & A​

Q: 会不会有通过的学员分享经验？

A: 除了袁律师自己，没有。

Q: 有什么吃喝/礼物？

A: 广州送星巴克饮品一杯，深圳现场一些小零食和饮品。此外，来的人送考试可能用到的纯色鼠标垫一张和FD-258指纹卡两张。

Q: 可不可以请袁律师吃饭？

A: 袁律师在减脂，不吃晚饭。也请不要带礼物过来，晚上不方便带走。

香港： 3月11日（周一）下午6:00-晚上8:00，星巴克(东亚大楼)，湾仔轩尼诗道23-29号（上二楼）

方式： 纯聊天，没有presentation. 你可以随时来、随时走。你一个人来袁律师就和你一个人聊，人多了就一起聊。此外，袁律师不会说粤语。

内容： 众所周知袁律师一般不推荐人考bar，只是一旦你决定考，他会全力辅助你。所以建议把问题重点放在如何通过考试（纽约/加州bar），而不是要不要报名考试。

Q & A​

Q: 会不会有通过的学员分享经验？

A: 除了袁律师自己，没有。

Q: 有什么吃喝/礼物？

A: 来的人送咖啡饮品一杯，考试可能用到的纯色鼠标垫一张和FD-258指纹卡两张。

Q: 可不可以请袁律师吃饭？

A: 袁律师在减脂，不吃晚饭。也请不要带礼物过来，晚上不方便带走。

相比NCBE的真题几乎没有错误，UWorld的自编题就有一些值得商榷的。更多的时候，自编题光顾着考某个特定的考点，而忽略了题目/选项中其他的问题。即便如此，UWorld也是我最推荐的题库，没有之一。它不仅收录真题最全，题量最大，解析也最简明易懂。即使偶有错误，但大方向没有问题，和真题的风格十分接近。想比之下，其他机构其实惨不忍睹，学员经常拿Barbri的MPQ和MSE两本书来虐我，里面的题不仅错误更多，而且考察的方向十分诡异。Emanuel也是很好的题库，但民诉有一些自编题，做过的就知道酸爽。

以A student had weekly sessions with a psychotherapist开头的题，讲述心理医生在普通法下必须要披露病人可能对第三人造成的伤害，否则可能构成过失侵权。D选项对心理医生同时违反法条的解释非常牵强，参考一下即可。

以One weekend, a retired man conducted a garage sale at his home开头的题，UWorld认为普通法下共同过失不是严格责任的抗辩，这是不对的。普通法下共同过失和自甘风险都是完全抗辩，反而没有比较过失理论。对产品严格责任的共同过失抗辩直到法律重述第二版都还在沿用，只是UWorld引用的第三版似乎认为共同过失不是产品严格责任的抗辩了。法律重述的演变恰恰说明普通法并不是这样的。1991年NCBE放出来的以A bartender was removing the restraining wire from a bottle of champagne produced and bottled by a wine company when the plastic stopper suddenly shot out of the bottle开头的真题就说明了官方认可普通法下共同过失适用于产品严格责任的观点。现今，MBE的默认观点是比较过失。在产品严格责任中，错误使用、自甘风险被并入了比较过失。

以A retired man who had been a sales representative for a drill开头的题，同样是严格责任，B选项原告自己错误使用或许可以成为一个抗辩。不要学答案这种“不贴警告必然有缺陷，贴了警告又说明错误使用可以被预见”这种商家做怎么都不对的分析。正确的解释方法是既然贴了警告，就一般不能预见人顶着警告还非要去错误使用。但B的确没有A好，因为错误使用不一定可以成为完全抗辩，贴了警告也不能就说明没有瑕疵。

以A female quarterback was the only female on an otherwise all-male college football team开头的一个题，要求诽谤是过失而不是严格责任的。这在实务上没有错，但NCBE在没有特别指出的时候，似乎沿用普通法，认为纯私人的诽谤是严格责任的。

以Under a written agreement开头的一个合同题，双方约定独家销售包子，然后仅仅以价格和需求变动撤销了合同。题目是很好的题，对理解对价理论很有帮助，但D不能说错，因为双方愿意承担一定市场风险显然也是不能随意撤销合同的原因之一。

以A woman and a man, who were professional开头的题，当着同事的面说他能力不足（incompetent），被第三人听到了。考点在诽谤被第三人听到就可以构成，但忘了这只是一个意见，很难认定成事实。此外这还是原告邀请她评价的，很可能有特权，没有恶意的情况下通常不构成诽谤。

以Instead of going to work one evening开头的一个题，A和B的意思都可以理解为正当防卫，感觉可以选A就可以选B。

以A man owned an investment portfolio that开头的题，答案认为构成侵占，但忘了普通法侵占仅限于有形资产，修改账户余额不是侵占。以A designer properly placed a client's advance payment of anticipated fees into a client trust account开头的题有同样的瑕疵。题目本来希望考察的考点在侵占和（打算）还回去的钱必须序列号完全一样，否则用别的钱还回去依然构成侵占。这个倒是很经典的考点，要记住。

以A man decided to rob a bank to pay off his crippling loan debt开头的题，如果用普通法观点，不构成未遂。刑法题在没有交代的时候一律用普通法观点。

以A man intended to rob a local convenience store that wasrumored to contain a large safe开头的题，认为劫持罪（kidnapping）没有超出抢劫必要的程度时，会被抢劫吸收。我没有找到案例支持这种观点。MBE能考到的罪名吸收就是未遂被既遂吸收，教唆被主罪吸收，但共谋不会被吸收。顶多再考盗窃被抢劫吸收，伤害、袭击被杀人吸收。实务上并没有成熟的吸收理论。

以A car dealership had an inventory of 200 cars near the end of the year开头的一个合同题，双方合意修改了合同（加价5000）。合同的修改没有任何欺诈、胁迫或者误解，是买家自愿的。虽然修改没有对价，或者用UCC的话说，没有善意（good faith），但修改后的合同已经履行，后悔已经晚了，我倾向于没有正确答案。NCBE真题考对价或者善意无一例外都是尚未履行额外的部分，法院判不可执行，没听说履行了还可以要求还回来的。这个题你可以有不同的观点，把其中重要的考点记住即可。

以A private high school was in the market for new desks and chairs for its classrooms开头的合同题，考点很棒，但offer中说“仅当你的acceptance在6月25日之前被我收到才有效”似乎不能构成一个firm offer，因为only if是为了约束对方，而不是约束自己。要用“当且仅当”，if and only if，才有同时约束自己的意思。所以这个题选B要更合适一些。数学系的我表示提出这个问题的学员很赞。

2017年210个分科目试题中房地产的第1题，以A seller contracted to sell land to a buyer for $300,000开头，讲述了在合同签订后买家发现有贷款没有还，以及有一个显然的通行权，随后拒绝完结交易的故事。各机构能达成一致的是，除非未还的贷款超过购房款，且卖家没有迹象表明会在完结时还清，否则贷款本身不会让title变得unmarketable，因为可以在交易完结的时候用购房款同时还清贷款，这也是实务上常见的做法。但NCBE认为地役权会让title变得unmarketable，所以买家可以因此拒绝交易。UWorld坚持了官方的答案。Emanuel直接怼了真题的观点并改了答案，解析说几乎所有的法院都认为在签订合同时可见的地役权视为双方已经同意带地役权进行交易。Barbri也是如此观点。如果再次遇到类似的题目，我倾向于用实务上的通说观点。

同房地产的第25题A man conveyed the eastern half of a tract，明明在有邻居以合理价格提供通行权的情况下，还要找原卖家主张必要的地役权。UWorld的解析认为这是无关的，但我认为关系很大。Emanuel没有收录这个题。不能说这个题实务上一定错，但绝对没有形成一致观点。比如蒙大拿就认为，“The element of strict necessity requires that there be no practical access to a public road from the landlocked parcel except across lands that were formerly in common ownership.” Kelly v. Burlington Northern, 279 Mont. 238, 927 P. 2d 4 (1996). 德克萨斯同样认为，“The mere showing that it would be more expensive or less convenient to obtain another access route is not sufficient to give rise to an implied easement by necessity.” Fambrough, J., Easements in Texas, Technical Report No. 422 Revised, Real Estate Center, Texas A&M University, 2013, at p. 3. 作为对比，密西西比则认为“…when an opportunity exists to acquire an easement from a third party, the easement by necessity doctrine still applies.” Pleas v. Thomas, 75 Miss. 495, 22 So. 820 (1897), Broadhead v. Terpening, 611 So. 2d 949 (Miss. 1992), Vinoski v. Plummer, 893 So. 2d 239 (Miss. 2005). 考试的时候自然还是要以NCBE的观点为准，但要注意的是，一旦实际上获得了替代的通行权，必要的地役权绝对不可能设立，即使设立了，也会因为不再必要而消失。

2011年NCBE放出来的以Ten years ago, a seller sold land to a buyer开头的题，讲述了买家购买了产权保险并以quitclaim deed赠送给他人，随后被受赠人发现有产权瑕疵并成功起诉的故事。答案认为虽然买家不再拥有地产，但他毕竟是保险的受益人，不会因为通过quitclaim deed转让就失效。实务上，保险行业在各州都是被严格监管的，这种重要的条款不可能没有在保险合同中注明，而要用所谓的通说观点来补充。但毕竟我们是为了考试，姑且认为NCBE的观点就是通说观点好了。

但2017年还是210题的房地产中的30题，以Two years ago, a developer conveyed title to a lot to a woman by warranty deed开头，买家随后还是用quitclaim deed转让给其他人，但这次被转让人直接起诉保险公司，选他不是受益人（named insured），UWorld继续给官题找补，说用quitclaim deed转让就失效了，但这就和2011年的题冲突了，至少UWorld的解析是不正确的。

时间再到2021年，这次放出来的以A buyer purchased a house for $300,000开头的题，同样是投保后房产有瑕疵，这次买家的继承人直接起诉保险公司，又胜诉了。从这三个官题来看，NCBE对title insurance的观点似乎是“只有受益人和继承人是适格的原告”，和受益人用什么方式转让地产无关。投保人和继承人只要被后手成功追索，就可以享受保险政策，即使他不再享有房屋，即使他是用quitclaim转让甚至赠送的。

讲了三组房地产的题，是因为其他科目的官题基本没有什么问题。甚至即使这三组题也并没有什么大错。无论是否贴近实务，NCBE的官题，至少放出来的这些，观点是鲜明的，逻辑是自洽的，答案是有说服力的。

最后讲一个似乎是NCBE单独放出来的一个民诉题，以A beneficiary of a trust, who is a citizen of State A开头，管理人虽然和A州没有任何联系，但他在A州度假的时候被送达了。答案认为A州对管理人没有PJ. 这和我们学的知识点是有冲突的。被告自愿出现在管辖州就代表存在了一点联系[Burnham v. Superior Court of California, 495 U.S. 604 (1990)]。答案引用Hanson v. Denckla, 357 U.S. 235 (1958)，但这个案例中的管理人是公司，不存在度假的时候被送达。答案进一步认为，管理人度假的人格和他作为管理人的人格是不同的（the trustee was sued in a representative capacity but was served while in State A on a personal vacation）。我没有找到支持这种观点的判例，和我们平时学的也显然不同。总而言之，这个题或许真的是错了。

地点： Tims咖啡(乐成中心店)，北京市朝阳区东三环中路22号乐成中心SPACE3商场1层

方式： 纯聊天，没有presentation. 你一个人来袁律师就和你一个人聊，人多了就一起聊。11月份袁律师组织过两场学员内部交流会，一般来说都会有3-5个人同时在。本次交流会非学员也可以来。

内容： 众所周知袁律师一般不推荐人考bar，只是一旦你决定考，他会全力辅助你。所以建议把问题重点放在如何通过考试（纽约/加州bar），而不是要不要报名考试。

Q & A

Q: 会不会有通过的学员分享经验？

A: 除了袁律师自己，没有。本次活动没有主动邀请任何人参加。

Q: 有什么吃喝/礼物？

A: 这次连咖啡都没有了（因为没有辅助人员，不是我舍不得点），请自己通过小程序下单咖啡。来的人送考试可能用到的纯色鼠标垫一张和FD-258指纹卡两张。

地点： 星巴克（环球金融店），浦东新区世纪大道100号101

方式： 纯聊天，没有presentation. 你一个人来袁律师就和你一个人聊，人多了就一起聊。袁律师分别在11月17日（海淀）和18日（朝阳）办了两场学员交流会，一般来说都会有3-5个人同时在。本次上海交流会非学员也可以来。

内容： 众所周知袁律师一般不推荐人考bar，只是一旦你决定考，他会全力辅助你。所以建议把问题重点放在如何通过考试（纽约/加州bar），而不是要不要报名考试。

Q & A​

Q: 会不会有通过的学员分享经验？

A: 除了袁律师自己，没有。本次活动没有主动邀请任何人参加。

Q: 这次的时间和地点有没有考虑到友商在附近开交流会？

A: 有。避免大家奔波。 但没有阻拦大家去看友商交流会的意思。我们的时间窗口很宽裕，你可以看完友商的交流会再顺路过来。尤其是如果你希望得到鼓励你考bar的正面意见，更应该先去友商。

Q: 是不是抢友商的客户？

A: 我们不鼓励友商的签约学员重复报课。此外，袁律师没有给过该友商负面评价，甚至帮忙宣传过多次。

同时，我们认为公平的市场竞争也是无可厚非的。

Q: 袁律师会不会自己或者派人去隔壁场子发广告、拉人头？

A: 这次不会。

Q: 有什么吃喝/礼物？

A: 来的人可以赠星巴克中杯饮品一杯和加州考试需要用到的没有logo的纯黑鼠标垫一张。赠完为止。现场有袁律师从长沙带来的茶颜悦色干脆面包丁无限畅吃。

Q: 有什么优惠/抽奖/团购活动？

A: 没有。袁律师并没有打算在年底之前签约太多新的学员，反而一再劝希望报名的学员三思。

Q: 可不可以请袁律师吃晚饭？

A: 袁律师最近在减脂，不吃晚饭。建议你吃完饭过来或者见完去吃饭。如果你要带吃的过来，请当场和其他考友分享完毕。袁律师晚上回深圳，不方便带任何东西。

Given the fraudulent actions demonstrated by Barbara throughout the transaction process, Steve has several equitable remedies available to him.

Rescission

Rescission is an equitable remedy that nullifies a contract and restores the parties to their pre-contractual positions. In this scenario, Steve could seek rescission of the contract on the grounds of fraud or misrepresentation since Barbara falsely assured him that his conditions were included in the contract documents. If rescission is granted, the sale of the property would be undone, and Steve would return the purchase price while regaining ownership and control of the property.

Reformation

Reformation is a remedy that modifies the contract to reflect the actual agreement between the parties. Here, Steve could seek reformation to include the omitted terms about mineral rights and access to the land, aligning the contract with the original agreement. This remedy ensures that the contract mirrors the true intent and agreement of the parties, correcting the fraudulent exclusion of Steve's conditions.

Specific Performance

Specific performance is an equitable remedy that compels a party to fulfill the terms of the contract. In this case, Steve could seek a court order requiring Barbara to comply with the originally agreed-upon terms regarding mineral rights and access to the land. This would ensure that Steve retains the benefits he was supposed to get from the transaction, as initially agreed.

Declaratory Judgment

A Declaratory Judgment is another form of equitable relief that serves to clarify the rights, duties, or obligations of one or more parties in a dispute. It is typically sought when there is a substantial, definite, and concrete controversy between parties who have legal interests at stake. In this scenario, Steve might seek a declaratory judgment to clarify the terms of the contract, especially regarding the mineral rights and access to the land. By obtaining a declaratory judgment, Steve could have a court officially interpret the contract's terms and define each party's rights and obligations, which might assist in resolving the dispute with Barbara amicably or lay the groundwork for further legal actions if necessary.

Injunctions

An injunction is a legal remedy used to maintain the status quo in situations where waiting for a litigation result may cause irreparable harm. The four elements needed to obtain an injunction include: 1. The party seeking the injunction must show that they will suffer irreparable harm; 2. The party must demonstrate a strong likelihood of succeeding on the merits of the case; 3. The balance of equities should tip in favor of the party seeking the injunction; and 4. The injunction serves the public interest.

Here, to utilize Preliminary Injunction (PI) and Temporary Restraining Order (TRO) to allow Steve to "investigate whether his former property had any mineral deposits," there must be proof that not permitting him to do so would cause immediate harm. Typically, a PI is sought initially, and if there is not enough time to wait for a PI, a TRO can be requested. A TRO is usually granted for a very short period to maintain the status quo until a PI hearing can be held.

2

With half of the embezzled funds used to purchase property, Acme can seek repayment, request a lien on the property, or have the property placed in a trust.

Restitution

Restitution aims to restore Acme to the financial position it was in before the embezzlement occurred. In this scenario, Acme could seek a court order requiring Barbara to pay back the amount embezzled. The court may have the authority to order the sale of Barbara's interest in the property, which does not include Steve's reserved mineral rights and land access, and have the proceeds applied towards the amount owed to Acme.

Equitable Lien

When a court recognizes that a defendant has wrongfully acquired title to a property and stands to benefit unjustly from it, an equitable lien may be imposed as a remedy. Acme could seek an equitable lien on the property to the extent of the embezzled funds used for its purchase. However, the equitable lien would only secure Acme's right to recover the exact amount of embezzled funds, i.e., $250,000. If the property's value appreciates, Barbara would benefit from the increased value, leading to unjust enrichment on her part as she would retain the additional value beyond the $250,000.

Constructive Trust

Similarly, when wrongful acquisition of title and unjust enrichment are established, the court may opt to institute a constructive trust. In this approach, Barbara would be deemed a trustee holding 50% of her interest in the property for the benefit of Acme, corresponding to the portion of the purchase price constituted by the embezzled funds. This approach could prevent unjust enrichment on Barbara's part from any appreciation in the property's value, as the increased value of the 50% share held in trust would accrue to Acme, not Barbara. However, this remedy also exposes Acme to the risk of property value fluctuation.

3

Equitable Restitutionary Damages are typically employed when legal remedies are insufficient, focusing on rectifying the defendant's unjust enrichment, for instance, through Equitable Lien and Constructive Trust when the defendant wrongfully acquires title to the plaintiff's property. In this case, Acme would be better served pursuing legal remedies, allowing for straightforward compensation from Barbara using any personal assets, and enabling Acme to seek punitive damages for Barbara's misconduct.

If resorting to equitable remedies like Equitable Lien and Constructive Trust, the ability to trace wrongfully acquired assets is crucial. However, the tracing here reveals that the embezzled funds, having been used to settle debts and reducing the account balance to $0, are no longer identifiable or recoverable. Therefore, these equitable remedies become inapplicable for Acme to recover the embezzled funds from Barbara's checking account.

Larceny and Burglary

Larceny is a crime involving the unauthorized taking and carrying away of someone else's tangible property, with intent to permanently deprive that person of their interest in the property. Burglary consists of a breaking and entry of a dwelling of another at nighttime with the intent to commit a felony in the structure.

Here, Deborah broke into the garage (breaking and entry) of a dwelling that wasn't hers, at nighttime, with the intent to take wood without authorization. By using the wood to build a fire, Deborah effectively destroyed the wood, thereby permanently depriving the owner of its use. This action satisfies the definition of larceny. Moreover, her actions of breaking and entering with the intent to commit a felony (larceny) in the structure meet the definition of burglary as well. Therefore, she could be reasonably charged with both larceny and burglary.

Defense - No specific intent

Larceny and burglary are crimes of specific intent, encompassing the specific intent in larceny to permanently deprive someone of their property, and in burglary, the belief that the entry is into a dwelling and the intent to commit a crime within that dwelling. Deborah may argue that she believed the house and the wood within were unowned, thus lacking the specific intent of larceny. Without the specific intent of larceny, the charge of burglary may not stand. Furthermore, Deborah could argue that she did not consider the garage a dwelling as she believed no one was sleeping inside, and a dwelling is defined by its occupation for sleeping.

The known circumstances include the house being "run-down" and "Deborah thought the house was unoccupied." However, more information is needed to determine whether Deborah believed the house was abandoned. Considering the house was locked and contained usable wood, if Deborah thought the house was owned but the owner was merely absent, it doesn't affect her specific intent to infringe on someone's property, and to commit larceny therein, nor would it change the definition of a dwelling.

Defense - Necessity

The defense of necessity could be invoked if a defendent reasonably believe that commiting a crime is necessary to prevent an imminent and more severe injury to people than the crime itself. Deborah can argue that breaking into the garage and taking wood were actions taken out of necessity to avoid freezing to death. If it can be established that there were no other legal alternatives available to her and that any reasonable person in the same situation would have acted similarly, the necessity defense might be accepted to clear her from the charges of larceny and burglary.

Arson and Murder

Arson and murder are categorized as malice crimes, requiring either intent or a reckless disregard for an obvious risk. Additionally, murder encompasses felony murder, which will be discussed infra.

Defense - No malice

It is apparent that Deborah did not intentionally start a fire or commit murder, so the only question is whether she recklessly disregarded a significant risk that could result in arson and death. From the current circumstances, Deborah likely lacked malice; she merely ignited a "small fire outside the garage to keep herself warm," a common act that generally does not lead to a fire outbreak. She could not have foreseen the sparks, nor could she have anticipated the presence of oil on the floor that could ignite the house. Perhaps, upon waking, had there been time to extinguish the fire, she had a duty to put it out promptly, but her waking to "flames and smoke" suggests that it was already too late for fire containment.

Felony Murder

Felony murder is a distinct concept under common law murder apart from intention and recklessness. Simply put, if a death occurs during the commission of a forcible felony, it can be considered murder. Forcible felonies typically include burglary, arson, among others. In this scenario, if it's established that burglary or arson was being committed by Deborah when Stuart's death occurred, she could potentially be charged with felony murder, despite the lack of intent nor reckless.

Defense - No felony

As mentioned earlier, it is plausible that the burglary charge could be acquitted due to necessity, and the arson charge may not hold due to the lack of intent or malice. Thus, if no felony was committed, there can be no crime of felony murder.

Additionally, it can be argued that even if the act constituted burglary, the burglary concluded once Deborah moved the wood outside the dwelling. Her action of igniting the wood outside and re-entering the dwelling might constitute trespass, but not burglary, as she did not intend to commit a felony inside the dwelling during this re-entry. Since the burglary had ended by the time of the death, even without the defense of necessity, the charge of felony murder would not stand.

Involuntary Manslaughter

Involuntary manslaughter occurs if a killing is committed 1. with criminal negligence (or by "recklessness" under the Model Penal Code) or 2. during the commission of an unlawful act not included in the felony murder rule. Given that any potential crime, even trespass, might be excused due to necessity, the only remaining question is whether there was criminal negligence on Deborah's part for Stuart's death.

This is a close call, and it would be up to a jury to decide based on the circumstances at the time, examining what a reasonable person would do, whether they would foresee the occurrence of a fire, whether they would anticipate someone being inside the dwelling, and whether there was a duty to inspect the scene and render aid after the fire broke out.

In conclusion, Deborah might escape most of the charges levied against her, with involuntary manslaughter being the only possible conviction.

2

The Constitution prohibits any individual from being compelled to make self-incriminating statements. In Miranda v. Arizona, the Supreme Court further stipulated that before any custodial interrogation, individuals must be informed of their right to remain silent among other rights. The Supreme Court defines "custodial interrogation" based on whether an individual feels they are free to leave soon, hence general questioning by police to pedestrians does not constitute custodial interrogation. Even brief stops, like halting a car to inquire if the driver has been drinking, do not necessitate the exclusion of obtained statements.

Here, the police merely questioned Deborah without taking any actions that would make her feel she was not free to leave. Therefore, Deborah's statement need not be excluded as the interaction does not meet the criteria for a custodial interrogation as defined by the Supreme Court.

Alternatively, if there was an unreasonable seizure (or arrest) under the Fourth Amendment, then any statement obtained as a result of this seizure might be excluded. As discussed supra, Deborah was only stopped for questioning and did not feel she was detained or not free to leave, this interaction might not be considered a seizure under the Fourth Amendment.

Amy's liability in this case can be analyzed under the four elements of negligence: duty, breach, causation, and damages.

1. Duty: Amy, as a driver, had a duty to operate her vehicle safely and adhere to traffic laws to prevent harm to others on the road.

2. Breach: Amy breached this duty by allowing herself to be distracted by her work email while driving, especially in heavy traffic conditions.

3. Causation: Amy's distraction was the actual and proximate cause of the accident. "Actual cause" means that but for Amy's negligence, the accident would not have occurred. "Proximate cause" relates to whether the harm was a foreseeable result of the negligence.

4. Damages: Priya, the other driver, suffered serious injuries as a result of the accident, thus establishing damages.

The discussion regarding whether Amy was acting within the scope of her employment, and whether ABC will be held vicariously liable, will be discused infra. However, this does not absolve her of personal liability for the negligence that caused the accident. Hence, Amy is the primary defendant in this case and bears responsibility for the damages incurred by Priya.

ABC Law firm

The potential liability of ABC Law Firm primarily hinges on the legal principle of vicarious liability, particularly the theory of respondeat superior. According to this theory, an employer may be held liable for the negligent actions of an employee if those actions were performed within the scope of employment.

1. Scope of Employment:

ABC may argue that at the time of the accident, Amy was off-duty and not acting within the scope of her employment, which generally could exempt the firm from liability. However, in this particular case, given the firm's strict policy requiring attorneys to respond to client communications immediately, even while off-duty, it is likely that ABC's argument may fail.

Amy was adhering to the firm's policy of promptly responding to client emails when the accident occurred. This policy, aimed at facilitating prompt attorney-client communication, clearly aligns with the firm's business interests and operations. Thus, it can be argued that Amy was acting within the scope of her employment when the accident happened.

2. Employment Relationship:

Although Amy is a partner in the firm, the nature of the partnership in a general partnership agreement implies a form of employer-employee relationship rather than an independent contractor relationship. This is due to the shared liability and decision-making authority within the firm. The employer-employee relationship is a requisite for applying the doctrine of respondeat superior.

3. Respondeat Superior:

Under the doctrine of respondeat superior, ABC Law Firm could be held vicariously liable for Amy's negligence since her actions, aimed at adhering to the firm's policy, were within the scope of her employment. The firm's requirement for attorneys to carry their work-provided cell phones and respond to client emails immediately represents a form of control over how and when the attorneys perform their duties, which is a key element in establishing vicarious liability.

Given these factors, there is a substantial argument to be made for ABC Law Firm's vicarious liability in this scenario. The firm's policy and the nature of the partnership agreement could potentially extend liability to ABC Law Firm for the negligent actions of its partner, Amy, under the doctrine of respondeat superior.

Bob and Carl

Under the doctrine of joint and several liability associated with general partnerships, each partner is held to have unlimited joint and several liability for the tortious actions of other partners performed in the course of the partnership's business. Therefore, Bob and Carl could also be held liable for Amy's negligence.

Sam

A general partnership is formed whenever two or more persons associate for the purpose of carrying on a business for profit. Becoming a general partnership does not require the submission of any documents to the Secretary of State, nor the formation of any written or oral partnership agreements.

Individuals may become general partners unknowingly or even unwillingly based on their actions and representations to others. In this scenario, the actions and arrangements suggest that Sam may have become a de facto general partner in ABC Law Firm.

1. Shared Office Space and Resources:

Sam leases an office within ABC's suite and utilizes the ABC receptionist for greeting his clients. This physical integration and shared use of resources may suggest a deeper affiliation with the partnership.

2. Use of ABC's Firm Name and Telephone Number:

Sam's use of ABC's firm name and telephone number on his letterhead can be viewed as a representation to the public and clients that he is part of ABC, which could be indicative of a partnership relationship.

3. Profit Sharing:

Sam receives 10% of the annual profits of ABC in recognition of his value to the firm. Profit sharing is a characteristic feature of a partnership relationship, indicating a shared interest in the success of the firm.

4. Billing Arrangement:

Although Sam bills his clients directly, his close working relationship and financial arrangements with ABC might blur the lines between an independent contractor and a partner.

5. Enhanced Profile and Prestige:

ABC acknowledges that Sam's presence raises the profile and prestige of the firm, indicating a mutual benefit and possibly a shared business objective.

Given these factors, there is a plausible argument that Sam has become a de facto general partner, despite the absence of an agreement. Should this be the case, under the doctrine of joint and several liability associated with general partnerships, as discussed supra, Sam would share in the liabilities of the partnership, including tortious actions of other partners carried out in the course of the partnership's business, and would also be held liable for Amy's negligent actions.

Duty of loyalty

As discussed above, the lawyer's client is MoreHome, which means she needs to maintain loyalty solely to the company, and to avoid conflicts of interest. When Eric approached Laura, if there had been an inconsistency between Eric's interests and those of the company, it would have been appropriate for Laura to advise Eric to seek independent counsel. However, since Eric was not personally implicated in the document falsification, her interests appeared to be aligned with the company's. Under these circumstances, Laura could represent both the company and Eric concurrently. Hence, even if Laura had offered legal advice to Eric, which she did not, it would not have been a breach of professional ethics.

A conflict of interest arises when Eric instructs Laura not to disclose information to others. At this point, Laura can no longer act according to Eric's instructions. The more appropriate course of action would have been for Laura to inform Eric that he is not her client and that her actions will be guided by the best interests of the company, not Eric's personal preferences. This clarification could have helped to set the right expectations and uphold the professional boundaries between Laura and Eric while ensuring that the company's interests remained the primary focus of Laura's actions.

The conflict of interest extends to the confidentiality obligations Laura may have towards Eric, if any. It should have been made clear at the beginning that any communication between Laura and Eric would not be kept confidential from the company, given that Eric is not her client, or at best, is a joint client with the company. Therefore, when Eric instructed Laura not to disclose information to the company, Laura should have promptly declined.

Duty of honesty

An attorney's appearance should reflect honesty, not only towards their client but also towards the public. Regardless of whether Eric was her client, Laura should have candidly informed him that any communication between them would not be confidential, instead of saying she would "think about it" and then immediately disclosing the information shared by him to the CEO. Laura might argue that she did not agree to confidentiality and stating "think about it" was a way to avoid an awkward refusal, thereby leaving some room for contemplation. However, considering the above discussion regarding the notification of conflict of interest, the State Bar might find it more appropriate if Laura had informed Eric at the beginning that their communication would not be confidential.

Duty to report internally

Laura bears an absolute duty to report the discovered misconduct within the company to its highest levels. Disclosing such matters to the CEO does not violate any professional ethics; on the contrary, professional ethics explicitly mandate Laura to take such action, even in the face of opposition from Eric. However, when the CEO showed indifference towards the disclosed misconduct, it was necessary for Laura to take the matter to higher authorities within the company. Typically, a corporation would have a board of directors representing its highest governing authority. Hence, Laura's failure to disclose the misconduct to the board of directors might constitute a violation of professional ethics.

Duty of confidentiality

An attorney is obligated to maintain confidentiality regarding client information, which means, generally, Laura should not disclose MoreHome's alleged misconduct to external parties. However, an exception to this rule exists when an attorney seeks advice on how to comply with professional ethics, permitting limited disclosure to outside counsel. Therefore, Laura's action of sharing some confidential information while consulting with an external attorney did not violate the duty of confidentiality. This step was taken in an effort to ascertain the correct ethical path forward, demonstrating a prudent approach towards adhering to professional ethics while navigating a complex situation.

Duty to report externally

An attorney typically does not have a duty to report externally. If Laura chose not to report outside the company, she would not be violating any professional ethics. However, her decision to report externally could potentially cross ethical lines. As previously mentioned, Laura should have first reported to the Board of Directors, and only considered external reporting if the Board remained indifferent.

Assuming that the CEO is the highest governing authority within the company, or that the CEO has control over the Board making reporting to them futile, whether Laura's external reporting breaches professional ethics may depend on whether the ABA or California's professional ethics standards are applied. Under the ABA guidelines, an attorney may report externally if the company is involved in 1. clear violation of law and 2. actions detrimental to the company's interest. California, on the other hand, only permits external reporting if the actions could result in death or serious bodily harm. Here, the company employees' actions of falsifying financial records clearly violate the law and are detrimental to the company's interests, but do not rise to the level of causing bodily harm or death. Therefore, under the ABA guidelines, Laura's action of reporting externally may not violate professional ethics, contrasting with California's more restrictive rules which might view Laura's actions as a breach of professional ethics.

In conclusion, Laura violated professional ethics when she failed to immediately inform Eric about the existence of a conflict of interest and the absence of confidentiality obligations between them. Furthermore, Laura might have breached professional ethics by not reporting to a higher authority within the company, if any. Lastly, the act of reporting externally could potentially contravene professional ethics if California rules are applied. But since her decision was made post consultation with external counsel, even if found in violation, the State Bar might consider Laura's honest belief that she was adhering to professional ethics, which could mitigate any disciplinary actions.

The claim of battery typically requires the proof of intent. Intent in a battery claim is often defined as having a substantial certainty that the action will cause harm to the plaintiff. In this case, there is not evidence presented to suggest that DishWay had the substantial certainty that their product would cause harm, especially since they were unaware of the residue issue with aluminum. Therefore, a claim of battery may not be supported in this scenario.

Negligence

To establish a product negligence case against DishWay, the following four elements must be closely examined: duty, breach, causation, and damage.

Duty

The initial step is to ascertain whether DishWay owed a duty of care to Paul. It is a general principle that manufacturers have a duty to ensure the safety of their products for consumers. However, the extent of this duty may be contingent on what a reasonable business would do under similar circumstances. Whether a reasonable business would test for residue on aluminum in this situation might require more information and would likely be a matter for a jury to decide.

Breach

If a jury determines that a reasonable business would test a dishwasher agent for residue on various surfaces, especially given the knowledge that residue can vary across different materials, then DishWay's duty to ensure the safety of UltraKlean would extends to such testing to identify and mitigate potential risks associated with residue left on common materials. If that is the case, DishWay may have breached its duty by failing to test UltraKlean on aluminum cookware, a common material.

On the other hand, the doctrine of res ipsa loquitur could be particularly relevant in this case. This legal principle allows an inference of negligence to be drawn from the very nature of an accident or injury, under the assumption that certain events ordinarily do not occur in the absence of negligence. Here, the mere fact of UltraKlean leaving a potentially dangerous residue on aluminum cookware could, in itself, be indicative of negligence. This could shift the burden of proof to DishWay, compelling them to demonstrate that there was no negligence in their testing or manufacturing process.

Causation

Causation requires showing that "but for" the defendant's breach of duty, the plaintiff would not have been harmed. In this scenario, there seems to be a clear causal link between DishWay's failure to test UltraKlean on aluminum and Paul's injuries. The laboratory test results confirmed that the cleaning agent in UltraKlean caused Paul's stomach pain.

In addition to the factual causation linking DishWay's breach to Paul's injuries, the foreseeability of the harm is also a crucial aspect of causation. DishWay could argue that while it is known that the agent in UltraKlean could cause severe stomach pain if ingested, this is a common characteristic of all detergent products, and thus they had no reason to foresee that their product would behave differently on aluminum. They might also contend that they could not have foreseen that the residue on aluminum would exceed safe levels, as there was no indication that UltraKlean would react differently with aluminum compared to other materials. However, this argument is likely to fail given that it is not unusual for dishwasher powders to leave a harmless amount of residue on different surfaces. The commonality of residue left by dishwasher powders could establish a basis for foreseeability, implying that DishWay should have anticipated and tested for varying levels of residue on different materials including aluminum, to ensure the safety of UltraKlean for all users.

Damage

Finally, the damage element requires showing that the plaintiff suffered actual harm or loss suffered by the plaintiff as a result of the defendant's breach or the product's defect. It is important to note that pure economic loss is generally not recoverable in product liability claims. Here, Paul encountered severe stomach pain necessitating hospitalization due to the UltraKlean residue on his aluminum cookware, thereby substantiating the element of damage.

Based on these elements, there could be a strong argument for negligence on DishWay's part. The potential success of DishWay in defending against a negligence claim might hinge on convincing the jury that they fulfilled the duty of a reasonable business, and that the unique residue issue with aluminum was unforeseeable.

Strict Liablity

In a strict product liability claim, the plaintiff needs to establish four key elements: 1) that the defendant is a merchant, 2) that the product sold or produced by the defendant was defective, 3) causation and 4) damages.

DishWay is clearly a merchant specifically involved in the creation and/or distribution of dishwasher products like UltraKlean.

The focus is on whether the product was defective, and a defect is often assessed based on whether the product meets the reasonable expectations of the consumer. In this scenario, Paul used UltraKlean on a very common material, aluminum, and suffered severe health consequences as a result, which clearly falls short of the reasonable expectations for the product's performance and safety. Therefore, it could be strongly argued that UltraKlean was defective.

A common defense against a claim of defectiveness is the argument that a product could not have been made safer, given the existing level of technology and practical constraints at the time of manufacture. However, in this case, that argument appears to be weak. Other similar products do not have this issue, and a simple, low-cost test on aluminum by DishWay could have potentially identified and resolved the residue problem, indicating that there was room for improvement to make UltraKlean safer.

Upon establishing a defect in strict liability claims, it is also essential to establish causation and damage. As discussed in the negligence part, these two elements may be relatively easier to prove.

Breach of Warranty

Express warranties are affirmations of fact or promises made by the seller to the buyer which relate to the goods and become part of the basis of the bargain. Here, DishWay's advertisement of UltraKlean as a "safe product" can indeed simplifies matters because regardless of whether there was negligence on the part of DishWay or if UltraKlean was defective, DishWay clearly contradicted their advertisement promise by labeling UltraKlean as a "safe product." This contradiction constitutes a breach of express warranty, which is a straightforward claim

Furthermore, even in the absence of an express warranty, there could still be a case for breach of implied warranty. Implied warranties are unspoken, unwritten promises created by law, which assure that the product will function as expected, including a basic level of safety which is a fundamental expectation for a dishwasher detergent.

To conclude, battery claims seem less likely, while negligence, strict liability and breach of warranty claims present stronger avenues for pursuing liability against DishWay, regardless of their advertising assertions on safety.