Yum. I've been steadily munching through a bag of BBQ chips as I make my way through Torts. Yes, Torts. It pisses me off that this is supposed to be the "easy" topic and as I read through the outline, I think I understand it, but then my MBE scores are all over the freakin' place. PMBR says we should anticipate 13-14 negligence questions on the MBE, and that sounds like a solid amount. I mean, out of 200 questions, 10 are supposed to be "test" questions and if we can just nail negligence, we can get about 14 questions right! I mean, 14 right answers are huge! It's like, duty, breach, causation, damages! BOOM! Got it! And battery and assault? Puh-leez....the first torts I ever learned. Totally know them! Then I do the questions and Micromash is like, "Um, NO, you moron. You must know that "Kill the umpire" is a common baseball term and not likely to cause reasonable apprehension of bodily harm." Seriously? (Munching furiously through a fist full of BBQ chips) WTF?!
So I take a slug of Pepsi, wishing it were Goose, and continue. Defamation. Love it. Got it nailed. And then the question is like a defamatory statement made in the United Nations and people may or may not speak English. Hmm... These folks are really particular. This really sucks. And my brain hurts.
But you know what? I like defamation. I hope it's an essay question. And this is the format I would use:
Defamation
Elements: (1) A defamatory statement, (2) Of and concerning P, (3) Communicated to a 3rd party, (4) Damages (presumed if libel or slander per se)
In addition, if the the statement was of public concern, there are two constitutional elements that must be proven: (1) fault and (2) falsity (malice if public figure, negligence if private).
Defenses: Qualified privilege, Absolute privilege, Truth (if it is a private concern)
You know, something like that. I would plug in the facts and analyze away. And you know what's a weird little issue that for some reason, I always forget when it comes to defamation? Intentional infliction of emotional distress. I have a hard time with naturally coming up with this one because usually, the folks in the fact patterns are whiny b&*%#es and for some reason, my view of extreme and outrageous tends to be a lot more stringent than theirs.
In the world of law, I am not a reasonably prudent person.
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3 comments:
It is too late for you now, but for your next bar exam, IN ANOTHER STATE, you should consider Adaptibar. It only uses real test questions.
At any rate, don't get too caught up in those trick questions as they are not representative of the real bar.
I took the Calbar 2x. First time I missed the review stage by less than 2 points. I had 1410.8 or such and I needed a 1412 to get reviewed. sucks. I think that is only 102 MBE questions.
Anyway, I know you can do it, your almost there.
I am suffering along with you by now taking the NV bar. :(
I'm with you on the "what is reasonable behavior in the context of an MBE torts?". I guess I'm still learning to be a reasonable person, one blown negligence question at a time. Oh please show me the way, NCBEX!
Man, I am definitely not the reasonably prudent person, I never come to the same conclusion as the MBE writers and I think that they shouldn't ask us questions that ask for a judgment call. Well at least not on the MBE where we can't argue our position. I feel like the MBE writers are much older than the average law student and so their idea of reasonable just doesn't match ours.
And I agree, some of these things are definitely neither outrageous or extreme, especially not to someone who lives in CA (even worse if you live in Los Angeles).
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