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There is a growing tendency on bar exams to have fewer essay questions and more computer-correctable, true—false and multiple-choice items. The principles of analysis, however, remain the same. The examiners are still trying to determine whether you should be released to the world and allowed to handle client problems within the framework of the legal system. How well can you utilize what you have learned to best protect your client's interest in any given situation?
A good lawyer looks at every problem from all possible perspectives. Remember that every legal problem has adversary connotations. This is easy to see when you are in the middle of a lawsuit, but it is also true, for example, when you are drafting a statute or giving advice on a course of action to follow in future business conduct.
So, when you take any law exam, keep in mind that you are in training to be a lawyer. The "no" approach is good one to use on essay exams for those parts of questions where "yes" might seem to suggest itself.
Here is a sample bar exam question, so you can see how the "no" method (where you take a negative approach) works.
This particular question concerns both torts and wills.
A good answer might run something like this:
The common law of torts is divided into three general areas: intentional or malicious conduct, negligent conduct, and liability without fault due to the extra-hazardous nature of the activity.
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Here, in writing his will, a husband has accused his wife, a woman of exemplary character, of being a common prostitute.
This is defamation of character, a malicious tort. Since it is in writing, it is libel; were it oral, it would be slander.
No action will lie against the lawyer who drew the will because any information he received from his client, the husband, was subject to the lawyer-client privilege. This privilege extends to the lawyer's secretary who typed the will as she is considered an arm of the lawyer.
No action will lie against the executor who filed the will for probate, as his act is also privileged because he was under a legal duty to make such a filing.
No action will lie against the court or any of its officials because of the privilege afforded to judicial actions.
No action will lie against the estate of the husband because, as previously stated, the tort remedy, if any existed, died with the death of the tort feasor.
As you can see, as of this point in our analysis, the "no" approach has enabled us to give a broad discussion of the applicable law of torts, setting forth principles and exceptions. To wrap up the answer to the question, let us look at the wills part for a moment.
While there can be no recovery under the law of torts, there are several areas under the law of wills which may afford the wife relief.
Under the majority rule, where a husband is so mistaken as to his wife's true nature that he erroneously considers her to be a common prostitute, when she is a woman of exemplary character, such a statement in a will is conclusive evidence that the husband lacked the required testamentary capacity to make the will. He was not of "sound mind" at the time the will was executed. The widow should be successful in moving to set aside the will and keep it from being admitted to probate.
Since the husband did not leave a valid will when he died, he is said to have died intestate. The widow may apply for appointment as administrative of the estate. During the pendency of the administration she is entitled to a widow's allowance. She is entitled to receive administrative’s fees. She is entitled to be awarded dower rights on distribution of the estate.
If you take the bar exam in a community property state, throw in a possible extra-credit line or two to the effect that if this had taken place in a community property state, the husband had a right to will away only half of the community assets in any event, and the other half would have automatically passed to the wife outside of probate.
Commercially prepared study outlines are useful to supplement whatever materials you have prepared for yourself. Many of these have detailed methods of problem analysis which will be of immense help on school exams; for the bar, when they are given out as supplements to a good bar review course, they are a must.
Also take a look at some of the exam "quizzers" in your legal bookstore which have sample bar questions and answers broken down by course subject. These will give you some model answers to routine problems, variations of which often come up on final law school exams.
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