ESSAY INTRODUCTION PROFESSOR RICHARD T. SAKAI. Copyright 2018 by BARBRI, Inc.

ESSAY INTRODUCTION PROFESSOR RICHARD T. SAKAI Copyright 2018 by BARBRI, Inc.

i TABLE OF CONTENTS PART ONE: OVERVIEW OF THE CALIFORNIA BAR EXAMINATION Pages 3 4 PART TWO: Page 5 THE ESSAY SECTION INSTRUCTIONS PART THREE: PREPARING AN ESSAY ANSWER Page 6 PART FOUR: Pages 7 10 OUTLINING AND THINKING THROUGH YOUR ANSWER: PROBLEM SOLVING APPROACHES AND EXERCISES PART FIVE: Pages 11-15 WRITING AN ESSAY ANSWER: IRAC PART SIX: Pages 16-21 ASSESSING ESSAY ANSWERS

PART ONE OVERVIEW OF THE CALIFORNIA BAR EXAMINATION A. Sections and Process of the California Bar Examination TUESDAY A.M. WEDNESDAY A.M. 3 hours 3 Essays 3 hours 100 MBEs P.M. P.M. 2 hours 2 Essays 3 hours 100 MBEs 90 minutes 1 Performance Test B. Weight of the Sections: Written = 50% 5 Essays = 38% 1 PT = 12% MBE = 50% Copyright 2018 by BARBRI, Inc.

2. ESSAY INTRODUCTION CALIFORNIA CALIFORNIA BAR EXAM SUBJECTS MBE and ESSAY (The Big 7) CIVIL PROCEDURE (FRCP & CA.) CONSTITUTIONAL LAW ESSAY ONLY Business Associations (Agency, Partnership and Corporations) Community Property (CA.) CONTRACTS Professional Responsibility (ABA & CA.) CRIMINAL PROCEDURE & CRIMINAL LAW Remedies EVIDENCE (FRE & CA.) Wills (CA.) REAL PROPERTY Trusts TORTS

ESSAY INTRODUCTION CALIFORNIA 3. PART TWO THE ESSAY SECTION INSTRUCTIONS California Bar Examination Answer all three questions. Time allotted: Three hours Your answer should demonstrate your ability to analyze the facts in the question, to tell the difference between material facts and immaterial facts, and to discern the points of law and fact upon which the case turns. Your answer should show that you know and understand the pertinent principles and theories of law, their qualifications and limitations, and their relationships to each other. Your answer should evidence your ability to apply the law to the given facts and to reason in a logical, lawyer-like manner from the premises you adopt to a sound conclusion. Do not merely show that you remember legal principles. Instead, try to demonstrate your proficiency in using and applying them. If your answer contains only a statement of your conclusions, you will receive little credit. State fully the reasons that support your conclusions, and discuss all points thoroughly. Your answer should be complete, but you should not volunteer information or discuss legal doctrines which are not pertinent to the solution of the problem. Unless a question expressly asks you to use California law, you should answer according to legal theories and principles of general application.

4. ESSAY INTRODUCTION CALIFORNIA A. The Context PART THREE PREPARING AN ESSAY ANSWER 1. Purposes of the Essays 2. Components of the Essay Question a. Facts b. Interrogatory or Interrogatories c. Instructions B. Tasks and Stages 1. The prewriting or planning stage a. Understand the call of the Question(s) b. Know the facts c. Identify the issue or issues d. Recall the law or the Problem Solving Approach e. Outline your answer 1) Make headings 2) Connect the applicable rule/elements to the relevant facts 3) Consider plausible counterarguments 4) Rethink the issues, the rules, the facts 5) Plan your answer in time and space f. Visualize your answer 2. The writing or execution stage - I R A C - see Part Five of this Lecture C. Panic 1. The Problem 2. The Options D. PRACTICE, EVALUATE, ADJUST, REPEAT

ESSAY INTRODUCTION CALIFORNIA 5. PART FOUR OUTLINING AND THINKING THROUGH YOUR ANSWER: PROBLEM SOLVING APPROACHES AND EXERCISES A. Examples of Problem Solving Approaches CONSTITUTIONAL LAW I. Justiciable Case or Controversy II. Governmental Conflicts III. Individual Rights CONTRACTS I. Governing Law II. Formation III. Defenses to Formation IV. Terms V. Performance VI. Third Parties VII. Remedies EVIDENCE I. Form II. III. IV. Purpose Presentation Hearsay V. Privileges

6. ESSAY INTRODUCTION CALIFORNIA B. Using Problem Solving Approaches TORTS I. INTENTIONAL TORTS II. III. IV. DEFAMATION/INVASION OF PRIVACY NEGLIGENCE STRICT LIABILITY V. PRODUCTS LIABILITY VI. GENERAL CONSIDERATIONS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Isolate and Expand Intentional Torts: I. INTENTIONAL TORTS A. Assault B. Battery C. False Imprisonment D. Intentional Infliction of Emotional Distress E. Trespass to Chattels/Conversion F. Trespass to Land/Nuisance G. Defenses Consent, Defensive force, Necessity Outlining Exercise After paying for his gasoline at Delta Gas, Paul decided to buy two 75-cent candy bars. The Delta Gas store clerk, Clerk, was talking on the telephone, so Paul tossed $1.50 on the counter, pocketed the candy, and headed out. Clerk saw Paul pocket the candy, but had not seen Paul toss down the money. Clerk yelled, Come back here, thief! Paul said, I paid. Look on the counter. Clerk replied, I ve got your license number, and I m going to call the cops. Paul stopped. He did not want trouble with the police. Clerk told Paul to follow him into the back room to wait for Mark, the store manager, and Paul complied. Clerk closed, but did not lock, the only door to the windowless back room. Clerk paged Mark, who arrived approximately 25 minutes later and found Paul unconscious in the back room as a result of carbon monoxide poisoning. [July 2006#1] 1. Can Paul maintain tort claims against (a) Clerk for false imprisonment?

ESSAY INTRODUCTION CALIFORNIA 7. Can Paul maintain a tort claim against Clerk for False Imprisonment? For false imprisonment, Paul must prove Clerk did an act of confinement with the intent to cause plaintiff to be confined or restrained to a bounded area. Elements: Act of confinement Intent to confine Bounded area Causation -

8. ESSAY INTRODUCTION CALIFORNIA Sample Outline 1. a. Paul v. Clerk for false imprisonment, Paul must prove that Clerk intentionally confined Paul to a bounded area and causation. 1. Act C put P in back room 2. Intent come back, call the cops, told P to follow him and wait 3. Confinement to a bounded area no reasonable means of escape P -> door closed, windowless back room; 25 min. C -> only door unlocked P -> P unaware; C threatened to call cops 4. Causation P waited in room for 25 min. and became unconscious 5. P can prove a False Imprisonment claim 6. Defenses a. Shopkeeper s Privilege 1) reasonable belief that P stole C > didn t see P pay, saw him pocket the candy as P heading out, and called P a thief P -> C on phone, said he paid, look on counter 2) must confine in a reasonable manner and time a) Put in back room to wait for mgr. b) 25 min. c) for a $1.50? b. Consent 1) P complied but didn t want trouble with police, C had his license number 2) P didn t consent to be confined for 25 min. Now think this through how would you write your answer?

ESSAY INTRODUCTION CALIFORNIA 9. PART FIVE WRITING AN ESSAY ANSWER I R A C AND VARIATIONS: CRAC, CIRAC, FIRAC Issue - Interrogatory or Call of the Question Major issues and minor issues Sub-issues? - Identify by the facts, by the theory, by the problem solving approach. - Stating issues Rule [The issue is whether Paul can maintain a false imprisonment claim against Clerk when Clerk kept Paul in the back room for 25 minutes.] - Consider: relevance and efficiency - Definitions - Slap downs - Elements or Test - Exceptions [For false imprisonment, Paul must prove that Clerk intentionally confined Paul to a bounded area and causation.]

10. ESSAY INTRODUCTION CALIFORNIA Application - Weighing the evidence - Outline dependent - Objective reasoning and explanations - Plausible arguments - Signal = Here [Here, Paul will show Clerk acted with intent when he told Paul to stop and to follow him to the back room to wait for Mark, the manager. Further, Paul will argue Clerk acted purposefully when Clerk closed the only door to the room. The critical question is whether Paul was confined within boundaries established by Clerk. For confinement, there must not be a reasonable means of escape. Here, Paul will argue that Clerk closed the only door to the windowless back room where he stayed for 25 minutes. Clerk will argue he did not lock the door and thus Paul had a reasonable means of escape and was free to leave. However, Paul will successfully argue that he was unaware the door was unlocked. Further, Paul will claim he knew he could not leave because Clerk, who had Paul s license number, threatened to call the police. Lastly, Clerk s act and intent of confinement caused Paul to stay in the back room for 25 minutes, during which time he fell unconscious due to carbon monoxide poisoning.] Conclusion - No incorrect conclusion - Consistent with reasoning - Reasoned Prediction [Paul will successfully prove a claim for False Imprisonment against Clerk.]

The rest of the story from page 8: ESSAY INTRODUCTION CALIFORNIA 11. Mark had been running the engine of his personal truck in the garage adjacent to the back room. When he left to run an errand, he closed the garage, forgot to shut off the engine, and highly toxic carbon monoxide from the exhaust of the running truck had leaked into the seldom used back room. Mark attributed his forgetfulness to his medication, which is known to impair short-term memory. Paul survived but continues to suffer headaches as a result of the carbon monoxide poisoning. He recalls that, while in the back room, he heard a running engine and felt ill before passing out. A state statute provides: No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key from the ignition, setting the brake thereon and, when standing upon any perceptible grade, turning the front wheels to the curb or side of the highway. 1. [Can Paul maintain tort claims against (a) Clerk for false imprisonment] and (b) Mark for negligence? Discuss. [July 2006#1] 2. Is Delta Gas liable for the acts of (a) Clerk and (b) Mark? Discuss. Sample Outline 1. b. Paul v. Mark for negligence, Paul must prove Mark owed him a duty, that Mark breached the standard of care, which factually and proximately caused his injury. 1. Duty a. Foreseeable Plaintiff? Paul was a patron on the premises in zone of danger; Mark argue he didn t know P was in room and room was infrequently used b. Standard of care reasonable person; possibly as possessor of land to an invitee 2. Breach a. reasonable person would not leave engine on while running an errand; Mark argue he is forgetful because of medication but Paul argue Mark still held to reasonable person standard because mental. Continued on next page

12. ESSAY INTRODUCTION CALIFORNIA b. If Mark held to possessor of land, did not make premises safe c. Statute negligence per se? (could be in duty) 1) Paul in protected class? Paul argue statute to protect against carbon monoxide poisoning; Mark argue statute to protect pedestrians and others on road, not in a small room. 2) Paul s injury the type to be prevented? Mark argue to prevent cars from running or rolling away while unattended. The injury to be prevented is hitting someone 3. Factual cause but for Mark leaving the truck running, Paul would not have been injured. In the alternative, Mark s negligence was a substantial factor in causing Paul s injury 4. Proximate cause limit to holding Mark liable? a. intervening act of Clerk 1) intentional acts usually not foreseeable 2) however, foreseeable that employee would detain a suspected shoplifter b. consequences foreseeable? 1) unforeseeable a person would suffer injury in an seldom used room 2) foreseeable Paul would suffer headaches from carbon monoxide poisoning, especially when he was in a windowless room adjacent to the garage 5. Damages Paul was unconscious when found, suffers headaches from carbon monoxide poisoning 6. Defenses - Paul heard a running engine and felt ill a. Contributory Negligence - Mark would argue Paul did not conform to a standard of care for his own safety by staying in the small room. However, there is no evidence Paul could smell the carbon monoxide. Further, he didn t know he could escape. b. Assumption of risk would require Paul knew of the risk, which he did not and he did not voluntarily assume it 2. Delta Gas vicarious liability Respondeat Superior holds the employer liable for acts of its employees done in the scope of employment.

ESSAY INTRODUCTION CALIFORNIA 13. b. Clerk 1. Clerk was working for Delta at the time he put Paul in the back room. 2. Presumably Paul was acting within the scope because as a clerk, he should detain those who steal. Further, he had Paul wait for the manager. 3. However, Clerk was on the phone and Delta would claim this was not within the scope c. Mark 1. Mark had left to run an errand. If the errand was personal, Delta would argue he was not in the scope 2. However, if the errand was a minor deviation, Delta would be vicariously liable. 3. Mark had left the engine of his personal truck running, which might indicate he was not working 4. However, Clerk had Paul wait for Mark, so likely Mark was at work. As the manager, he would handle thefts. Now, how would you write your answer? Try it in 30 minutes.

14. ESSAY INTRODUCTION CALIFORNIA PART SIX ASSESSING ESSAY ANSWERS A. Grading of the Essays 1. Two components of the test: validity and reliability 2. The grading process a. Essays scored in 5 point increments b. Picture a bell curve 40-90 At top = 60-65 60 = below adequate answer missed major issue or Discussion of all issues was incomplete; or poor organization 65 = average passing answer; lawyerlike discussion of all major issues discussed but missed minor issues; analysis needed increased incorporation of specific facts; overall answer could be better Contrast 55 and 70 55 = clearly below passing answer missed or incompletely discussed two or more major issues; weak or incomplete analysis; poorly organized 70 = slightly above passing answer; lawyer-like discussion of all major issues but some minor issues missed; answer could have been better, but analysis warrants more than a 65; well organized 3. Goal = Minimum Competency

ESSAY INTRODUCTION CALIFORNIA 15. B. Self Assessment of Essays - Assessment Exercise Note: The following 5 page answer was written during the July 2006 California Bar Exam. (a) Paul v. Clerk False imprisonment To prove prima facie case of false imprisonment, plaintiff must prove that Defendant confined plaintiff to bounded area created by defendant where there is no reasonable means of escape by use of force or fear of force resulting physical injury or that defendant aware of his confimement. Here, Clerk confined Paul to bounded area with no reasonble means of escape becuase Clerk placed Paul in the back room inside of the store where there is only one door to get out and that Clerk close the door, which left Paul no way out. Clerk may argue that he did not lock the door, so Paul could have escape if he wants to, but since Paul believed that he cannot get out until Mark will show up (Paul was in fear of getting arrested) thus, there was no reasonable means of escpae. The confinement was done by fear of force that Paul was in fear that if he did not go inside of the room, he will be arrested. Furthermore, Paul suffered physical injury that he become unconsious and suffered headache as result of carbon monoxide posioning in the confined area. Defense Clerk may assert shoplifter's privilege to relieve liability. Shoplifter's privilege Owner of the store may detain the suspect if the owner reasonably believe that the suspect stole property from the store as long as it is for a reasonable period of time and in a reasonable manner. Here, Clerk will argue that he reasonably believe that Paul stole 75-cent candy bars becuase he did not see that Paul tossed down the money for the Page 1 of 5 Exam taken with SofTest vb.ob

16. ESSAY INTRODUCTION CALIFORNIA candy, However his belief may not be reasonable becuase even after Paul told Clerk that he did placed the money on the counter and Clerk heard Paul's comment. Clerk ignore such notice and did not even take a look at the counter, thus Paul should have known that Clerk did pay for the candy. (NOt only for the value of the candy, but Paul paid for more than duble the price of the candy.) Even if Clerk's beleif was reasonable, Clerk is only allowed to detain Paul for only a reasonable time and in reasonable manner. Here, Paul was detained for 25 minutes for 75 cents candy, which is most likely not reasonable period of time. The manner in which Clerk detained Paul by putting him in the back room with door closed was probably ok. For above reasons, Clerk's defense will fail and Clerk will be liable for false imprisonment. (b) Paul v. Mark Negligence To prove prima facie case of negligence, Paul must prove that 1) Mark owe duty to Paul 2) Mark breached his duty 3) Mark's breach of duty caused Paul's injury and 4) Paul suffered injury. Duty & Standard of Care Plaintiff owe duty to foreseeable plaintiff. Under the majority view (Cardozo), plaintiff owe duty to foreseeable Plaintiff in the zone of danger. Under the minority view (Andrew)Palintiff owes duty to all foreseeable people. Here, it is foreseeable that the customer might ended up in the back room in case like this or accidentally walked in the back room, thus Mark owe duty to Paul, store customer, Paul is in the zone of danger since the room was very close to Mark's garage becuase the back door was adjacent to the back room. Land occupier

ESSAY INTRODUCTION CALIFORNIA 17. Mark is land occupier since he owns the store.. As a land occupier, his standard of care depends on the status of entrance. Licensee is the person who entered the land that is open for the public. Here, this is store that is open for public, thus Paul is licensee. Land occupier owes duty to warn known dangerous condition, make safe of the dangerous condition, and inspect unknown dangerous condition. Breach Breach occurs when defendant's act failed to meet the standard of care. Breach can be proven by violation of statute.res ipsa loquitor or learned hand balancing test. Statute WHen there is a statute that provides criminal penalty may replace the general duty of due care if 1) the plaintiff is the class of person whom statute intended to protect 2) the plaintiff suffered injury which statute intended to prevent and 3) the statute provides clear standard. Here, state statute provides no person in charge of motor vehicle shall permit it to stand unattended without first stopping the engine and Mark failed to turn off the engine of his truck and left unattended in his garage. But Mark may argue that this statute is enacted to prevent any vehicle from moving by itself and cause dangerous collisiion to people or another vehicle on public road, not to prevent toxic carbon monoxide from the exhasust of the running vehicle that may leak into the inside of the structure. Furthermore, the statute does not provide any criminal penalty for violaters. If Mark win his arguement, then Paul may not use Mark's violation of statue as proof of breach. Learned Hand balancing test Breach can be shown when the gravity and probablity of harm outweited the utility and benefit of defendant's act. Here, there is no benefit of not turning the engine off (Mark admit that he simply forgot to turn the engine off due to his medication) and gravity and probabliuty of harm from toxic carbon monocide

18. ESSAY INTRODUCTION CALIFORNIA substantially outweighed benefit even if there is any benefit because carbon monocide can kill people. THus under this test, Mark clearly breached his duty. Res Ipsa Loguitor Res Ipsa" Loquitor can be used to prove negligent when there is no evidence to prove breach if 1) the plaintiffs injury will normally caused by someone's negligence 2) normally by someone in defendant's position 3) there is no plaintiffs fault. Here, Paul may not have to rely on this theory because he can prove Mark's breach by balancing test discussed above. Causation Plaintiff must show both actual and proximate cause. Actual cause Paul's injury (unconsious and headhace) would not have occurred but for Mark's act in not turning off the engine. Proximate cause Paul's injury was foreseeable consequences of Mark's act in not turning off the engine of his truck in the garage that is very closely located to the area where Paul was confined. Defense Assumption of Risk Mark may try to argue that Paul voluntary assumed his risk because he heard a running engine and fell ill but continue to stay in the room without telling anything to anyone or getting out of the room. However, this argument will probably will fail because Paul was in fear of wrongfully getting arrested by police for 75 candy and he felt like he had no choice of leaving room or saying anything. (if Paul said something, he thought Clerk may think Paul is making excuse to just get out of the room.) Furthermore, Paul did hear the sound, but he did not smell any gas.

ESSAY INTRODUCTION CALIFORNIA 19. FOr above reasons, Mark is liable for negligence for not turning off the engine of his truck in the garage. 2. Delta gas may be vicariously liable for the act of the employees if 1) the employee acted within the scope of employment and 2) during employeeemployer relationship. Here, noth Clerk and Mark was employee of Delta Gas at the time of the accident, thus the issue is whether thier acts were within the scope of employment. (a) Delta Gas's liability for Clerk Clerk's action in confining Paul in the back room in suspicion of theft is within the scope of employment because as a store clerk he should detain any customer whom he reasonably believe the person committed theift inside of the store. Thus, Delta Gas will be vicariously liable for Clerk's act in wrongfully confining customer that constituttes as false imprisonment. (b) Delta Gas's liability for Mark Mark's action in forgetting to turning off engine in the garage adjacent to the back room is not within the scope of employment because it appears that Mark is store manager and as a store manager he does not have to use his truck for managing the store. Thus, Delta Gas will NOT be vicariously liable for Mark's action. End of Actual Answer. If you were grading this actual answer, what score would you give it and why? Your Score: Rationale: Actual Score: Rationale: CONCLUDING REMARKS FOR THIS LECTURE