NY Bar Exam Review - Essay Writing Tips
Terms
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- What types of key words should you circle or highlight in each essay question?
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1) Dates
2) Parties
3) States
4) Dollar Amounts
5) Any numbers used in the question
6) Number of people on board of directors and number of directors who attended a meeting (or percentages)
7) Age of parties when stated
8) The word "oral"
9) Consented
10) Any negative words used in the question (no, not, without)
11) Merchant (or retailer, manufacturer, wholesaler)
12) Agent
13) Demands
14) Represents
15) Good Faith
16) Unenforceable
17) All quoted language. - What legal issues are raised any time someone makes a demand in an essay question.
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1) Does he have the right to demand the relief?
2) Was the demand timely made?
3) Must the demand be in writing or may it be oral? - What are the various grounds for why a K might be unenforceable?
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1) No meeting of the minds.
2) Not supported by consideration
3) The subject matter of the K is not legal (e.g. involves illegal drugs or guns)
4) One of the two parties lacked capacity to K (usually a minor)
5) There was no genuine assent, or no reality of assent, meaning there was fraud or mutual mistake, or innocent misrepresentation, or duress, or undue influence.
6) Noncompliance with the statute of frauds.
7) SOL bars the enforcement of the K
8) Impossibility of performance
9) Unconscionability - What should you note in the margin as you read the essay question?
- The legal status of each party and the legal relationship b/t the parties.
- What are some examples of a party's legal status?
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1) Merchant (or distributor, wholesaler, etc.)
2) Non-merchant (e.g. Charlie consumer)
3) Good faith purchaser (won't use term, but will give you a set of facts from which you'll conclude that that person is a GFP, so jot this down in margin)
4) Fiduciary
5) Third-party beneficiary
6) Domiciliary
7) Non-domiciliary
8) Interested witness
9) Domestic corporation
10) Foreign Corporation
11) EE at will
12) Minor or Infant (under age 18)
13) Tenant in common
14) Joint tenant
15) Remainderman
16) Financially interested director
17)Settling Tortfeasor
18) Distributee
19) Non-marital child
20) Promoter
21) Assignee
22) Life tenant
23) Accomplice
24) Holder in due course
25) Settlor
26) Secured party
27) Bailor or Bailee - Who are the typical fiduciaries?
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1) Officers or directors or promoters
2) Under some circumstances, a majority s/h is in fiduciary relationshpi w/ a minority s/h
3) Partner in partnership
4) Every agent (in agency question)
5) Executor (in wills question)
6) Trustee (in trusts question)
7) A guardian
8) An attorney to his client
*A person who acts in a representative capacity for another. - In what subjects are the rules for 3rd party beneficiaries tested?
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K, sales, partnershpi, corporations, assumption of mortgage, assumption of lease.
*Rules for 3rd party beneficiaries are same in all different subjects. - What is an interested witness?
- In a wills question, if one of the attesting witnesses receives an attest under the will, he or she is an interested witness.
- How do you know when an EE in a fact pattern is an EE at will?
- Will be told that someone was hired and there was no fixed term of employment.
- What is the rule with respect to EE at will?
- EE at will can be discharged 1) at any time; 2) without prior notice; 3) without legal cause, and 4) without any legal liability for doing so.
- What is a financially interested director?
- One who has a subtantial financial interest in transaction that he wants to engage in w/ his corporation.
- What is a distributee?
- A person entitled to inherit from the decedent under the law of intestacy.
- What is a promoter?
- When a person is busy organizing the formation of a new corporation, he's a promoter.
- What are the conditions precedent necessary for the buyer to be allowed to cover and hold the breaching party liable?
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1) Buyer must act in good faith (means honesty in fact and the observance of reasonable standards) when he buys goods elsewhere;
2) Buyer must cover without unreasonable delay;
3) Buyer must make a reasonable contract (means he should shop around before he goes out to cover) - What are the conditions precedent necessary for the buyer to be able to demand replevy of the goods?
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1) He is unable to cover despite making reasonable efforts to do so;
2) Goods must be identified to the contract (i.e, labeled with the buyer's name) - What else should be circled or highlighted in question?
- Key factrs in essay that support legal distinctions between parties which result in different rules of law being applied. Note that two P's or two Ds usually will not have the same rights, duties, liabilities, or remedies.
- What are somes of the common distinctions b/t parties that should be analyzed?
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1) Infant/Adult
2) Merchant/Non-Merchnant
3) Fiduciary/Non-Fiduciary
4) Negligent/Non-Negligent
5) In privity of K/Not in privity of K
6) Distributee of decedent/Not distributee of decedent
7) Gave consideration/Did not give consideration
8) Domiciliary/Non-Domiciliary
9) Third party creditor beneficiary (has rights)/Third-party incidental beneficiary (has no rights)
10) Solvent/Insolvent
11) Incoming partner/Retiring or withdrawing partner
12) Alive/Dead
13) Secured Creditor (have far more rights than unsecured creditors)/Unsecured Creditor. - What else should be noted in margin?
- Wheter any statute applies to the question or whether any statutory rule of law applies to any issue presented. If not, then you'll apply common law rules in writing answer.
- What code words indicate a non-issue that you should not discuss or mention the applicable rule of law for?
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1) Duly
2) On due notice
3) Validly executed
4) Timely commenced
5) P commenced action in the proper county - What must your answer to each essay question ur do?
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1) Identify or recognize each legal issue presented by the facts;
2) State your conclusion
3) State the rule of law (statutory or common law) applicable to that legal issue and
4) State your step by step analysis of the material facts presented which support your legal conclusion. - How should the first paragraph begin?
- "Under..."
- How should the next paragraph begin?
- "Therefore...:
- How should the last paragraph begin?
- "It should be noted..."
- What abbreviations can you use in the essay answers?
- P, D, SOL, and K
- What types of things should you talk about in the "It should be noted..." paragraph?
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1) The legal status of one or more of the parties
2) The definition of a key legal term you used in your essay but forgot to define.
3) The name of the applicable statute, if any, that governs the essay question.
*Goal is to write three things in the "it should be noted" part. Can get them from margin notes or a re-read. - How should you approach the answer with respect to what law applies?
- If a statute governs, always mention the name of the applicable statute. If you forget it, say, under NY statutory law, the rule is. If common law rules govern the question, state "under NY law, the rule is..."
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What statute applies to:
Sales? - Article 2 of the UCC
- Corporations
- BCL
- Wills
- EPTL
- New York Practice
- CPLR
- Criminal Law
- NY Penal Law
- Domestic Relations
- NYDRL
- Trusts
- EPTL, Uniform Gift to Minors Act, and Uniform Transfers to Minors Act, NY Fiduciary Powers Act
- Partnerships
- NY Partnership Law
- Commercial Paper
- Article 3 of the UCC
- Real Property
- Mostly common law, but also test NYRPL, NYGOL (SOF rules found in here), Uniform Vendor and Purchaser Risk Act (when real property is destroyed by force of nature b/t K date and closing date)
- Secured Transactions
- Article 9 of UCC
- Contracts
- NYGOL (e.g., NY Distinctions from multistate contract law are found in here: 1) offer and acceptance; 2) consideration; 3) SOF)
- Torts
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Common law, but some statutes show up repetitively:
1) Article 16 of CPLR (limited liability of joint tortfeasors for P's noneconomic damages;
2) NY General Muniicpal Law (e.g. tort actions against cities, counties, towns, villages, school districts, fire districts);
3) NYVTL (non-resident motorist statute) - Mortgages
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NYGOL (SOF as it applies to mortgages)
and
NYRPL - Worker's Compensation
- NY Workers' Compensation Law
- No Fault Insurance
- NY Insurance Law.
- How should you structure your answer when a question deals with an exception to a general rule of law?
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Start essay with a statementt of the general rule of law and the conclusion under the general rule of law.
Then state and apply the applicable exception to the given facts in the essay question and your conclusion under the applicable exception.
Do NOT list or discuss any other exceptions to the general rule of law which do NOT apply to the given facts in the essay question. - What if you conclude on the basis of the facts given that a general ruel of law applies and that none of the exceptions to teh general rule of law apply?
- Add one sentence after you state and apply the general rule of law to the given facts: None of the exceptions to the general rule of law apply here. Do NOT list or state the exceptions.
- What should you always define in your essay/
- Key legal terms used in essay.
- Merchant
- A party who deals in goods of a particular kind
- Jointly and severally liable
- Both D's are liable for the full amount and each is liable for the full amount, but the P cannot recover more than the full amount from both. *Note - always tell grader how two D's are liable.
- Infant
- Under 18
- Laches
- Unreasonable delay
- Goods
- Movable personal property
- Interested Witness
- Under the EPTL, an interested witness is an attesting witness who receives a disposition under the will.
- Quorum
- Minimum number of directors required to be present at a board of directors meeting to transact business.
- Fiduciary
- A person who acts in a representative capacity for anothe.r
- Consideration
- Party gives consideration when he incurs a legal detriment or confers a benefit.
- Marketable title
- Title which is free from defects in title and encumbrances (e.g. mortgage, judgment lien, a tax lien).
- Good faith
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Tested in two areas of law:
1) Article 2 of UCC: defined as "honesty in fact" and, in the case of merchants, they "must observe reasonable commercial standards of fair dealing in the trade"
2) Real property: Good faith purchaser is defined as "a purchaser who buys without actual notice, constructive notice, or inquiry notice, of a particular fact. - What should you always state with respect to a party's remedies?
- Whether a particular remedy a party has is a legal remedy or an equitable remedy.
- What are the potential legal remedies?
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1) Money damages
2) Replevin (legla action to recover personal property from D which belongs to P
3) Conversion (legal action to recover fair value of properly wrongfully withheld by D);
4) Ejectmenet (in a landlord-tenant fact pattern);
5) Repossession;
6) Trespass to chattels.
3) - What are the potential equitable remedies?
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1) Specific performance (most important)
2) Recission;
3) An accounting;
4) Constructive Trust;
5) TRO;
6) Preliminary injunction
7) Appointment of a receiver (tested in corporations and mortgages);
8) Reformation of K - What equitable remedies should you always mention when D is a fiduciary who has breached any of his fiduciary duties?
- Accounting and Constructive trust.
- What should you do if there is arithmetic to be done in a question?
- Always complete the arithmetic and state conclusion in dollars and not percentages and state reasoning for conclusion. Always lay out the formula in words.
- What should you always state when discussing a party's rights or remedies or liabilities in essay?
- What conditions precedent (or requirements) must be satisfied before a party has a right, remedy, or liability.
- What must you state about an applicable rule of law?
- Always state all elements of the rule of law and always state which elements are present and which elements are absent based upon the given facts in the essay question.
- What must you always state about liability of multiple parties?
- Always state whether they are jointly and severally liable or jointly liable and then discuss a party's right to obtain either contribution or indemnification when one party pays the entire amount or more than his pro-rata share or more than his equitable share.
- What should you do if you conclude that a party has no rights or remedies?
- Protect yourself by adding a separate paragraph beginning with the word assuming E.g, "Assuming the statute of limitations did not bar P's action, she would have the right to recover..." or "Assuming the oral contract was enforceable, the buyer would have the following rights and remeides agaisnt the seller..."
- What should you always add to the statement of an applicable rule of law? In what subject areas should you do so?
- "in the absence of any contrary agreement or provision). You can use this phrase in: contracts, sales, real property, corporations, wills, trusts, domestic relations, agency, partnerships, mortgages, future interests, secured transactions, personal property, conflict of laws, and commercial paper.
- How should you give your reasoning for your legal conclusions?
- By adding "because" accompanied by the material facts from teh essay question. (E.g., "P timely commenced her action against D because...")