USE THIS BOOKLET FOR ANSWER TO

In 1910 fertile Farm was established by the sub-division of a 100 acre rectangular parcel from the center of a larger tract owned by the subdivider/grantor. The newly created parcel was 1,000 feet from the state highway which was the nearest public road. From mid-way in the border of Fertile Farm closest to the state highway the new owners established a farm road approximately 20 feet wide directly connecting to the state highway and across their grantor's property. There is no mention of this farm road in the original deed to fertile farm. The farm road continues in use to this day by the heirs of the original owners of Fertile Farm who maintain the property as a working truck farm.

In 1940 the son of the original grantor of Fertile Farm, having inherited the residual acreage began to subdivide and sell residential lots from the land surrounding the farm. The first lot that he sold was a parcel bounded by the following lines:

(a) a line formed by the center line of the farm road connecting Fertile Farm with the state highway;

(b) the property line of fertile Farm beginning at the intersection of the center line of the farm road and extending easterly so the end of the Fertile Farm property;

(c) a line from the point directly to the state highway; and

(d) a line along the state highway right of way to its intersection with the center line of the farm road.

This parcel was sold to Mr. and Mrs. Adams who built a home and are still residents there.

In 1945 a similar parcel on the west side of the farm road with the center line of the farm road as its eastern boundary was subdivided by the son and sold to Mr. and Mrs. Baker who also built their home on the property and remain as residents.

In 1950 the Bakers divided their property in half and conveyed the portion closer to Fertile Farm to their daughter and son-in-law, the Cases. They are still residents on the property and use the farm road for access to their property.

In the Adams, Baker and Case transactions the center line of the farm road was used in the property description. There was no other reference to the farm road.

The remaining land surrounding Fertile Farm has been residentially developed and several public roads are not contiguous to the farm at various points.

The farm road has degenerated into a state of great disrepair. The Adams have determined that not only do they not wish to contribute to its repair and maintenance but they no longer want the disruption of vehicles, particularly farm vehicles, moving up and down the road. They have come to your firm to determine whether or not they can force the closing of the farm road. Your Senior partner has asked for a detailed memorandum of law setting out the basis for any action that may be taken on behalf of the Adams.

By Kevin Hopkins (Widener-Harrisburg, soon John Marshall) Angela Passalacqua (Rutgers-Camden) and Teresa Wallace (Widener-Wilmington)

1. Why Offer Supplemental Bar Exam Assistance?

A. Value to ASPs

11. Whom Are You Targeting?

A. Minority Bar Passage, Study

B. Rutgers-Camden Statistics on Bar Exam Passage, by Graduating GPA & Anecdotal Impression of Minority Bar Passage

111. How To Help Students

A. Widener-Harrisburg Program Description

B. Rutgers-Camden Program Description

C. Widener-Wilmington Program Description

II. Whom are you targeting?

ABA

AMERICAN BAR ASSOCIATION Young Lawyers Division

750 N. Lake Shore Drive
Chicago, Illinois 60611

January 1996

Dean Roger J. Dennis

Rutgers University
School of Law
Camden, NJ 08102

Dear Dean Dennis:

The Young Lawyers Division of the American Bar Association ("ABA/YLD") is committed to increasing diversity within the legal profession. To this end, the ABA/YLD has embarked on a project aimed at developing programs to address the disproportionately low bar exam passage rates for racial and ethnic minority applicants. The ABA/YLD has established the Minority Bar Passage Project (the "Project"), which will identify and assist in developing various academic support programs to aid minority law students in passing the bar exam. This endeavor will take two forms. One is a Bar Passage Task Force ("Task Force") comprised of lawyers and academicians. (Please see attached roster). The second is the ABA/YLD's Model Supplemental Bar Passage course, which is explained below.

We are convinced that any serious effort to address minority bar passage rates requires an in-depth examination of the following key issues:

1 What is the extent of the disparity between minority and majority bar passage rates?

2. Is there a consensus among law school faculty and academicians regarding the cause(s) for any disparity?

3. What efforts have been made to address the problem?

4. How can the ABA/YLD assist in formulating viable solutions?

The Task Force intends to gather existing research, statistical data and commentaries to identify and address the factors that lead to the disparity. In addition, it will devise solutions aimed at minimizing the factors that have hindered minority bar applicants. As part of this effort, the Task Force seeks to collect data on existing programs.

Consequently, the ABA/YLD is asking the dean of every ABA accredited law school in the country to assist the Task Force by providing much needed preliminary information regarding academic support programs currently in existence, and specifically designed to assist minority applicants in passing the bar exam.

As part of its Bar Passage Project, the ABA/YLD plans to solicit bar associations and law schools in Houston, Miami and Los Angeles to initiate supplemental bar review courses that will act as models for the rest of the country. The supplemental course will emphasize test-taking skills and time-management techniques that facilitate successful completion of the bar exam. Minority bar passage at each pilot site will be carefully examined in an effort to determine the specific needs of the academic support program attendees, the effectiveness of offered programs, as well as to identify additional factors that will improve minority bar passage rates.

Attached to this letter is a Questionnaire that we ask you to complete. If the appropriate individual is someone outside of your office, we would very much appreciate your efforts in forwarding this questionnaire to that individual's attention. Once completed, kindly forward the completed questionnaire to The ABA/YLD MBP Project, c/o Angela F. Williams, Esq., U.S. Attorney's Office, 80 North Hughey Avenue, Suite 201, Orlando, FL 32801, by no later than March 1, 1996. Should you have any questions regarding the Project or the enclosed questionnaire, you may contact Ms. Williams directly at 407/648-7531 (facsimile: 407/648-7643).

It is the goal of the ABA/YLD to make future minority bar applicants the beneficiaries of its efforts, and we hope that your law school will assist the ABA/YLD in this effort during the upcoming year.

Very truly

Raquel A. Rodriguez

Chair, ABA/YLD

Encls.

Rutgers-Camden Graduates who took the Bar Exam in July 1995, by Graduating GPA

BAR EXAM NEWS

The majority of Rutgers-Camden students take the NJ, NY or PA Bar Exams. In this newsletter, students will find information about the kind of Bar Exam administered by each state. This information is intended to help members of the Class of 1996 in their preparation this summer. It is also intended to help returning students select courses for the next academic year. Students who have questions about course selection should see Angela Passalacqua.

Type of Exam in Each State

Each of the above three states requires candidates to take the Multi-state Bar Exam (MBE) and an essay portion. The MBE tests mostly subjects that are required courses at Rutgers-Camden (Contracts, Property, Torts, Criminal Law, and Constitutional Law), in addition to Evidence and Criminal Procedure (with an emphasis on Investigations rather than Adjudication).

The NJ Bar Examiners combine MBE scores and essay scores when determining who passes the exam. Essays are graded on a six-point scale, and are worth 65% of the total score, while the MBE is worth 35% of the total score; a combined score of 133 is required to pass the exam. Each of the six NJ essays focuses on one of the multi-state subjects: Torts, Contracts and Sales, Constitutional Law, Evidence, Property, and Criminal Law and Procedure.

The NY Bar Exam has 6 essays that may be based on the above 6 MBE subjects, plus Corporations, Partnerships, Conflicts of Law, NY and Federal Constitutional Law, Family Law, FIT and Estate Taxation, Remedies, Trusts, Wills and Estates, UCC articles 2, 3, 6 and 9, and NY and Federal Civil Procedure. The MBE is worth 40% of the total score, the NY multiple choice questions are worth 15% of the total score, and the essay questions are worth 45% of the total score; a total of 600 out of 1,000 points is required to pass the exam.

Recent changes in the PA Bar Exam require graduates to adjust their preparation. Students will no longer be able to pass the PA exam based on the MBE score alone, but are also required to have passing scores of 135 on the essays. Furthermore, students are required to achieve a score of 135 in the Multi-state Bar Exam before the Bar Examiners will even read any essays. The July 1985 exam had eight essays, each of which covered a combination of at least three of the following areas: Professional Responsibility, Federal Income Tax, UCC Articles 2, 3 and 9, Torts, PA and Federal Civil Procedure, Conflict of Laws, Evidence, Family Law, Criminal Law and Procedure, Constitutional Law, Property and Estate Planning.

Recent Bar Passage Rates

The NJ exam and the Rutgers-Camden passage rate of approximately 80%, have remained constant for the last several years. In July 1995, 171 of our graduates took the NJ Bar Exam, while 132 passed (a passage rate of 77%). Our graduates' passage rate for the NY Bar Exam has varied between approximately 60% and 70%. However, changes in the PA Bar Exam implemented in 1995 have significantly lowered the passage rate in that state. The overall pass rate in PA was over 80% from

July 1988-1993. However, a comparison of the July 1994 and July 1995 results reveals that the passage rate for individual area law schools dropped by over 20 percentage points: Temple's passage rate of 87% in 1994 dropped to 61 % in 1995; Villanova's passage rate dropped from 96% in 1994 to 75% in 1995; Widener-Delaware's passage rate dropped form 84% in 1994 to 61% in 1995; Widener-Harrisburg's passage rate dropped from 87% in 1994 to 56% in 1995. In 1994, 165 of our graduates took the PA Bar Exam and 146 passed (88%) while in 1995, 102 of Rutgers-Camden graduates took that exam and 68 passed (66%).

Free help is available for Rutgers-Camden graduates who are taking the Bar Exam

Since 1994, Rutgers-Camden has offered assistance to graduates who are taking the Bar Exam. Most graduates who have participated in the program have passed the Bar Exam in their next try. The kind of help available includes strategies, methods of preparation and individual feedback on graduates' answers to recent Bar Exam essay questions. This program concentrates on building exam-taking skills, and is not intended to substitute for the kind of subject-intensive review offered by commercial bar review courses.

Bar Exam passage may correlate to graduating Grade Point Averages. Students with a GPA of 2.8 or below are at risk of failing the Bar Exam the first time they take it. Therefore, these students are strongly encouraged to participate in the Bar Preparation Program.

In the Summer of 1996, Rutgers-Camden will offer discussions of how to approach each Bar Exam, and small workgroups that will practice using recent Bar Exam questions. If you are interested, please contact Angela Passalacqua to sign up for the Summer 1996 Bar Preparation Program (Room 208A, 609-225-6419, angelap@crab.rutgers.edu).

ENDNOTES

1. Dale G. Larrimore, Supreme Court Tightens Bar Admission Rules; Substantially Fewer People Will Pass Bar Exam in '95, The Legal Intelligencer, January 31, l994, at 6.

2. Anne-Marie Thompson, Profiles of Pennsylvania's Law Schools: A Guide to Where Lawyers Come From, The Pennsylvania Lawyer, January/February 1996, at 12-17. The University of Pennsylvania did not disclose its bar passage rate.

3. NJ Bar Exam Essays are published in the New Jersey Law Journal and are available free of charge to our graduates. PA Bar exam questions are copyrighted, and the Bar Examiners require payment of $10.00 to the PA Bar Examiners for each student distribution of the answer sheet.

III. How to help students

A. Widener-Harrisburg Program Description

A. BACKGROUND

During the first semester of our academic support program, I worked with approximately 11 second-year students and 4 third-year students who were on academic probation. Most of my weekly support sessions evolved around assisting those students in becoming "independent learners" and in helping the probationary students acquire the critical skills necessary to effectively get through their final semester exams.

Specifically, my goal was not only to provide students with the opportunity to take an exam under timed conditions, but to provide me with some basis upon which to diagnose areas of deficiencies. After reviewing and critiquing each student's written response to the mock exam question, I immediately learned many of these students were having difficulty in "writing" their responses to the question. The writing suffered in the following areas: (1) issue responsiveness; (2) issue spotting; (3) IRAC/CRAC structure/formation (more specifically, rule development before analysis) and (4) fact analysis.

Although this may have seemed elementary to most of our faculty members, almost all of our probationary students had not learned how to effectively use the IRAC/CRAC paradigms learned during the first-year Legal Methods course. I found our probationary students struggled with laying out a "well drafted" discussion of the general and specific rules necessary to lay the foundation for any analysis, along with how to pull out those outcome determinative facts necessary to properly analyze the problem.

Most of our probationary students did not suffer from a "lack of the basics" for grammar purposes, but were limited in the conveyance of their knowledge during the exam, primarily because they had "missed" gaps in the organization of the analysis or in their development of all of the applicable rules involved in the problem. These students would raise the appropriate issue, give a general statement of the rule, and immediately begin to make arguments without developing the specifics of the rules to provide some foundation for the credibility of their arguments.¹ Also, I found many students were only "skimming" the surface with regards to pulling out just a few of the many critical facts available in the question and necessary to support or discredit the several possible arguments to be made.

B. BAR EXAM WRITING WORKSHOPS

After working with our probationary students and as a result of the recent changes in the grading of the Pennsylvania Bar Exam, I concluded many of our students who would have normally been admitted into the Pennsylvania Bar by successfully completing the multistate portion of the bar exam, probably failed the July 1995 Exam because of their scores on the Pennsylvania Essays.² As a result, I assumed those students who failed the exam, similar to my probationary students, were students who failed to fully grasp an effective conveyance of the issues and general/specific rules involved in the essay questions, and the applicability of the law to the relevant facts of the problem.

To assist our Harrisburg graduates in preparing for the essay portion of the February 1996 Pennsylvania Bar Exam, I organized and facilitated several exam writing workshops designed to provide some additional strategies for "attacking" the essay examination question. I tailored these workshops to cover many of the problem areas experienced by our probationary students.³ During these sessions, I focused on following areas: (1) effective review of the exam question; (2) issue spotting; (3) pre-examination preparation (e.q. developing a strategy for approaching the essay question even before taking the examination); (4) exam writing and analysis of facts (focusing on organization of the answer, rule development, and application of the facts to the law) and (5) issue responsiveness (making sure the student had answered the issue presented).⁴

I developed a series of 3 workshops to be held once a week for a period of approximately 2 hours each to cover the target areas presented above. All workshops were scheduled in January⁵, each session involved basic instruction on essay writing and the taking of a timed in-class exam question on a topic covered by the Pennsylvania Bar examiners. At the end of the session, I collected the exam booklets and distributed them to members of the faculty who had agreed to assist me in evaluating the students' writing.⁶ I then returned the graded student exams during the beginning of the following session where I spent the first hour of the workshop analyzing an approach to structuring an analysis of the problem, reviewing the suggested answer, and alerting students to the common problem areas reflected in their responses.

1. See Richard K. Neumann, Legal Reasoning and Legal Writing §9.1 (2d ed. 1994) (for discussion of rule development referred to as "rule proof.").

2. I assumed students who failed the July 1995 Pennsylvania Bar Exam worked diligently in mastering the materials but were unable to either spot and discuss all of the relevant/potentially relevant issues, or to effectively organize the analysis into a recognizable format. This assumption does not apply, however, to those students who did not, for whatever reason, spend sufficient time to prepare for the exam, or did not take the examination "seriously." For a more accurate conclusion, it would be necessary to "poll" all students who failed to determine the specific portion of the exam where students experienced the most difficulty.

3. I designed the exam writing workshops primarily to assist students in developing their writing skills and conveying their analysis in an organized format. A critical assumption was that all students had the necessary skills to learn and master the substantive law.

4. See Kevin L. Hopkins, Memorandum to Exam Workshop Participants, January 13, 1996 (discussing some basic strategies for taking the essay examination and some general considerations when preparing student responses to essay questions).

5. Because the February 1996 Bar Examination was held on February 27-28, 1996, Saturdays/Sundays were the only available times to meet with participants. I assumed students who failed the Summer exam would retake BAR/BRI or comparable study courses. The BAR/BRI course at our school began on January 2, 1996 and ended on February 21, 1996. The course met Monday through Friday from 6:00 p.m. to 10:00 p.m.. BAR/BRI had also reserved rooms for 1/27 (Sat. 9am to 5pm), 2/3-2/4 (Sat. & Sun. 9am to 5pm), 2/10 (Sat. 9am to 5pm), 2/11 (Sun. 9am to 1pm) and 2/17 (9am to 5pm). This made it extremely difficult for scheduling the workshops. I selected the following dates:

DATE

1/13/96 Saturday @ 9am

1/20/96 Saturday @ 9am

1/28/96 Sunday @ 1pm

Each workshop lasted for 2 hours. During the first session, I spent the first hour discussing the bar exam, in general, and essay writing strategies and techniques. Students took a timed in-class exam (question #1) during the second hour of the first session. For the remaining sessions, I used the first hour to process the previous week's exam question and required students to take additional in-class exams during the second hour. The final session consisted of an in-class exam exercise, a review of exam writing/test taking strategies and a last minute "pep talk." (Note: because of time constraints, I provided students with an outline of the law during the final in-class exam. Graded exam answers for question #3 were mailed to the students.) My goal for finishing the workshops by 1/28 was to give students approximately 4 weeks to practice the recommended exam taking techniques prior to taking the bar exam.

6. Approximately 25 to 30 students took advantage of my invitation to participate in the exam writing workshops. As a result, I was able to solicit 4 faculty members to critically review and provide written comments on 4-5 exam questions per week. I directed the faculty members to review the exam answers for clarity, organization and logical presentation. I also provided the faculty graders with a sample answer to use in assessing the students knowledge of the law. Students were given the sample answer during the following week's processing session.

December 28, 1995

Dear

I am the Director of Academic Support at Widener University School of Law's Harrisburg campus. Dean Robyn Meadows has informed me that you may be sitting for the February 1996 Pennsylvania Bar Examination. As a result of the recent changes in the grading of the Pennsylvania Bar Exam and the greater emphasis on successful completion of the essay questions, Widener/Harrisburg will offer a series of Exam Writing Workshops to assist our graduates in preparing for the Pennsylvania essay examination questions. All workshops are free and are open to all Widener/Harrisburg graduates.

The Exam Writing workshops will be held once a week for a period of approximately 2 hours each. The workshop dates are as follows:

1/13/96 Saturday @ 9am

1/20/96 Saturday @ 9am

*1/28/96 Sunday @ lpm (tentative date in light of PMBR Review session)

During these sessions, I will focus on the following areas: (1) effective review of the exam question; (2) issue spotting; (3) pre-examination preparation (e.g.. developing a strategy for approaching the question prior to sitting for the examination); (4) exam writing and analysis of facts (focusing on organization of the answer, rule development, and application of the facts to the law) and (5) issue responsiveness (making sure the student has answered the issue(s) raised).

Each specific session will involve writing a response to an exam question on a topic covered on the Pennsylvania Bar Exam, and receiving a weekly critique of the answer by me and/or several other Widener faculty members in order to provide all students with a critical assessment of the organization, content and structure of their answers. During each session, I will return critiqued student responses and spend a portion of the session processing the question and helping students develop a "strategy" for organizing the materials and approaching similar questions for bar testing purposes. Finally, we will spend some time reviewing and analyzing a few of the July 1995 Pennsylvania Bar Exam questions and sample answers to gain some additional insight into the essay grading process.

I hope you will take full advantage of the resources and information that will be available to you as a participant in the Exam Writing Workshops. Effective exam writing techniques are essential skills for passing all bar examinations. Please contact me at (717) 541-3954 if you will be participating in the exam writing workshops.

I look forward to hearing from you.

Sincerely,

Kevin L. Hopkins, Director

Academic Support Program

EXHIBIT 2

TO: Exam Workshop Participants

FROM: Professor Kevin Hopkins

RE: Essay Examinations

DATE: January 13, 1996

I have prepared a brief discussion regarding the essay examination question and how to "approach" it. I have also listed some criteria that may be helpful in providing you with some idea as to the factors professors consider when grading essay exams.

1. TAKING THE ESSAY EXAMINATION

The overall purpose behind the essay examination is to: (1) test your knowledge and understanding of the case materials covered during the semester (i.e. can you identify from the exam fact pattern the relevant issues/areas of law to be discussed); and (2) test your ability to apply the law to new and/or factually similar situations (i.e. can you demonstrate how the law will/should be applied to the parties in the exam fact pattern, and do you understand the policies behind the law and its application).

To do this successfully, it is critical that you know the applicable substantive law tested on the bar exam. You must also, however, be able to convey this information as quickly as possible and in some type of structured written format. I offer the following approach to reading the essay exam question and organizing your thoughts. Remember: you should spend at least 1/4 to 1/3 of the allotted time for each question outlining and organizing your thoughts.

1. Browse through the entire exam packet first to assess the applicable time allotments for the questions, and to make sure your examination packet is complete (i.e. no missing pages, etc.).

2. For each specific fact pattern/exam question, I suggest that you go immediately to the end of the fact pattern and read the specific question to be addressed. This will usually be the last sentence of the fact pattern, or the last paragraph and may contain words such as "evaluate all possible claims," "who can sue who for what," etc..

3. Once you have determined what the question is asking, quickly read the entire fact pattern first for a basic understanding of the facts, high-lighting and noting the obvious issues and facts that will be important in assessing the issues. You can do this by using hi-liters/colored pens, and making minor notations in the margins of the examination page.

4. Reread the question again, but this time, take it more slowly. During this review of the question, continue to look for and to note issues (i.e. causes of action or legal problems/situations covered during your review of the substantive law materials) but begin to really focus on those facts that will be critical for "triggering" an application of the law. For example, for the intentional tort of battery, it would be necessary to locate facts that suggest a "harmful and offensive" non-consensual contact.

5. You are ready to outline the materials using either the IRAC or CRAC paradigms. Effective organizational approaches might include organizing by parties (i.e. Barry v. Sherry; Sherry v. Barry, and Mike v. Sherry) or by causes of action (i.e. (1) assault; (2)battery; (3) false imprisonment, etc.).

For example, in an intentional torts problem, if organizing by parties, you could begin your analysis by discussing all of the potential tort actions each plaintiff might have against each defendant. On the other hand, if organizing by causes of action (i.e. false imprisonment), you would only discuss those plaintiffs having the specific cause of action (a false imprisonment claim) against a defendant.

Also, remember that your discussion of the "internal aspects" of a cause of action (i.e. elements) must be presented in a logical fashion.

For example, in assessing whether plaintiff has a valid claim for negligence against the defendant, you must consider whether there is evidence in the facts to suggest: (1) duty; (2) breach; (3) causation; and (4) damages. It is illogical to begin your answer by discussing damages before you have determined/identified an applicable duty. For intentional torts analysis, it's important to discuss whether the defendant "acts" with the requisite "intent" before examining the rest of the elements of the specific intentional tort at issue.

6. You can now supplement your basic outline with some of the applicable facts that will be "critical" in determining the outcome of the potential causes of action. For example, in a false imprisonment claim, it will be critical to demonstrate that the plaintiff was "confined within an identified bounded area," "unaware of his confinement," and there was no "reasonable means of escape." Pull out those facts that will demonstrate these elements and supplement your basic outline with them.

7. Because most bar examinations require "objectivity," it is critical that you present "both sides of the picture." This will require that you evaluate not only the elements of the prima facie cause of action, but also, any arguments that the defendant/ violator may make to suggest that the prima facie elements cannot be satisfied (i.e. counter arguments), or policy arguments. Briefly supplement your outline with facts that support counter arguments and/or policy arguments. Also, don't forget to determine whether the defendant/violator has any defenses that will relieve him/her from liability. Briefly supplement your outline with possible facts that suggest the prima facie elements cannot be met, or defendant/violator has an applicable defense.

8. You have now created a "road map" of your analysis and are ready to write.

II. GENERAL CONSIDERATIONS

Here's a list of a few factors to consider when drafting your response.

1. Have you identified the issues involved in the problem? Have you alerted the reader "up front" to the issues to be decided?

2. Have you discussed the relevant law and policies behind the law before applying the law to the facts of your problem? (IRAC/CRAC- rules before arguments). This is critical to demonstrate your knowledge of the relevant law and to lay the foundation for your evaluation of the issues.

3. Have you logically discussed the prima facie elements for the causes of action and the relevant facts that support or trigger the application of the law to the facts?

4. Have you properly raised and evaluated appropriate counter arguments and defenses when the facts of your problem permit or alert you? (Remember: you must be "objective.")

5. Have you properly "wrapped up" your argument for a specific issue before moving on to the next issue? Have you provided a conclusion for the reader?

6. Have you answered the question posed? Is your answer responsive to the question? This is critical.

7. Finally, does your answer reflect all of your knowledge of the cause of action, the applicable counter arguments and defenses? Have you told the reader all of the relevant law and facts needed to properly assess the issues Does your answer indicate you saw the "big picture"?

Last week, Bob Berring, Jr., a college freshman at the University of Pittsburgh finished his final exams and prepared to travel to his home in eastern Pennsylvania for the holiday season. Because of the distance, and not wanting to drive to western Pennsylvania to pick Bob up at the end of the semester, his father allowed Bob to use the family's 1994 Ford Bronco for transportation to and from the college. During August, the Bronco was approximately 17 months old and had a total of 8,500 miles on the odometer. While both Bob and his father had, from time to time, briefly looked at the tires of the Bronco, neither had examined them for defects nor noticed anything defective about the tires.

As Bob was driving his father's Bronco along the Pennsylvania Turnpike near Pittsburgh, a tire blew out. He coasted to a stop in his left-hand lane of the traffic. Unfortunately, there was no place for traffic to pull off the highway on the left because of highway construction. Except for the flat tire, however, the Bronco was not completely disabled. Parking in the left-hand lane of traffic along 1-76 (East) is illegal. Because of the volume of traffic on 1-76, Bob, turned on the safety flashers, got out of the car, and remained near the vehicle. He decided to leave the car parked in the left-hand lane of the highway until a state trooper arrived on the scene.

Unfortunately, Bob had few options: he could either remain near the car and wait, or risk running across interstate 76.

Shortly afterwards, Pennsylvania State Troopers Heath and her Partner Jennings spotted the Bronco and pulled over in front of it. Officer Heath turned on the flashing lights of the police car to alert other drivers of the problem. Bob approached Heath and began to explain his situation. Heath told Bob to get back inside and she would direct him off the highway. Heath then got out of the police car to direct traffic so that Bob could drive forward and across to the right-hand side of the highway to a parking lane. While Heath was in the traveled portion of the highway and while directing traffic, she was struck by a car which swerved out of the left-hand lane. Terry Bradshaw, the driver of this car, had been unable to stop because of defective brakes. Terry had heard his brakes "squeal" for several months prior to this incident and had experienced a brief episode of brake failure during October. Terry had planned to have the brakes checked at the end of the month.

If State Trooper Heath attempts to use the Pennsylvania state courts to sue Bob, his father, and Terry for her injuries, will she succeed? Assume all parties are Pennsylvania residents. Evaluate Heath's claims.

The overall issue in this problem is whether State Trooper Heath can sue Bob Berring, his father, and motorist Terry Bradshaw in negligence for placing her in a position of unreasonable risk of injury or harm. As discussed below, Officer Heath will probably be able to sue Bob and Terry for negligence, but will unlikely prevail against Bob's father.

Under Pennsylvania law, the necessary elements to sustain a cause of action in negligence are: (1) a duty or obligation recognized by the law, requiring the actor to conform to a certain standard of conduct; (2) a failure to conform to the standard required; (3) a causal connection between the conduct and the resulting injury and (4) actual loss or damage resulting to the interests of another. Morena v. South Hills Health Sys., 462 A.2d 680, 684 (Pa. 1983).

A. DUTY

The "duty" analysis evolves around whether the defendants owed a duty to the plaintiff, and if so, what standard of care did the defendants owe to Heath, under the circumstances. A duty will often exist as a result of a "special relationship" between the plaintiff and defendant (i.e. common carrier/passenger or parent/child); a statute (a duty imposed by statute for protection of a specific class of persons), or industry custom (i.e. trade customs).

Heath would likely argue Bob and his father had a general duty to act reasonably which would have included a duty to operate the Ford Bronco safely. This duty would include a duty to inspect the tires of the Bronco before placing the car on the highway. She would likely argue that Bob and/or his father, knew or should have known, in the exercise of ordinary care, that the tires were defective, and the driving of the car would create an unreasonable risk of harm. She would contend that because the facts indicate neither defendant had inspected the tires recently, each failed to exercise reasonable care.

Under the law, there is a general duty to exercise reasonable care. This requires that Bob, his father, and Terry's conduct not create an unreasonable risk to Heath. "Reasonable" will depend on several factors: the burden of avoiding the occurrence of harm with the probability that harm will occur and the gravity of that type of harm if it does occur. Finally, in assessing whether a "duty" exist, Pennsylvania courts will consider whether the plaintiffs injuries were foreseeable (i.e. is the plaintiff a "foreseeable" plaintiff).

Assuming that Pennsylvania might have a statutory requirement that vehicles be in good condition when operated on state highways, Heath could use this statute as a basis for a duty. However, once again, because of the age of the car (17 months old) and because the tires are still under warranty, Heath would probably not succeed in demonstrating a "breach" of this duty. If a statute exists, Heath would argue this also imposed a duty upon Terry to inspect and keep his brakes in good operating condition.

Finally, because the facts indicate that parking in the left-hand lane of traffic along 1-76 East is illegal, Heath would argue Pennsylvania statutes impose a duty upon Bob not to park in the left-hand lane of 1-76.

B. BREACH

Breach of a duty of care can usually be established in three ways: (1) direct evidence to suggest the defendant has not complied with the applicable standard of care; (2) res ipsa loquitur (circumstantial evidence) and (3) violation of a statute.

Heath would probably fail in demonstrating a breach by either Bob or his father for failing to inspect the Ford Bronco prior to placing it on the Pennsylvania highways as imposed under either a general duty of care to act reasonably, or any Pennsylvania statute requiring all motorist to keep their vehicles in good condition. The facts in our problem suggest no evidence that the tires on the Berring vehicle were in such condition that a blow out could have been anticipated. The facts indicate the Bronco was approximately 17 months old and had a total of 8,500 miles on the odometer. Because the car would still be under warranty, 8,500 miles is less than half of the mileage to be expected for the tires. Finally, the facts do not indicate whether Bob or his father had driven the car excessively during the 17 month period, which if present, could have contributed to the tire blowout.

However, because Bob parked "illegally" in the left-hand lane of 1-76 immediately after the tire blowout, he violated a specific Pennsylvania statute/regulation and was therefore "negligent per se." Because the Ford Bronco was not completely disabled, Bob owed a duty to Heath not to park in the left-hand lane of the interstate, assuming Heath was a member of a class expected to enter the zone of danger created by Bob's negligent conduct.

Finally, the facts suggest the presence of direct evidence to indicate Terry breached a duty of care owed to Heath. Our facts indicate Terry had heard his brakes "squeal" for several months prior to this incident and had experienced a brief episode of brake failure during October. Also, the facts indicate Terry had planned to have his breaks checked at the end of the month (November). In light of the facts, Terry was aware of the condition of his brakes and failed to exercise reasonable care under the circumstances.

C. CAUSATION:

Pennsylvania law requires that the defendants conduct be the actual cause of plaintiff's injuries and the "proximate" or "legal" cause of her injuries. In determining "actual cause (establishing that the defendant's conduct has been one of the causes of plaintiffs injuries"), the courts will use the "but for" test (i.e. whether the same harm would have occurred without the defendant's negligent conduct or did the defendant's conduct cause the plaintiffs injury).

Finally, even if the plaintiff can demonstrate "actual cause" she will also have to show defendant's conduct was the "proximate" or "legal" cause of her injuries (i.e. that the defendant's conduct is a substantial factor in bringing about the harm and there is no rule of law relieving the actor from liability because of the manner in which his/her negligence has resulted in the harm). Proximate cause is designed to place limits upon liability as are deemed socially or economically desirable from time to time.

The Pennsylvania courts will consider the following factors in determining proximate cause: (1) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it; (2) whether the defendant's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm (i.e. no intervening/superseding causes), or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; (3) lapse of time. Vattimo v. Lower Bucks Hosp., Inc., 465 A.2d 1231, 1233-34 (Pa. 1983). In other words, was the defendant's conduct so significant and important a cause that the defendant should be legally responsible. ld. (citing Presser, Law of Torts § 42 (4th ed.).

In Heath's suit against Bob's father, as discussed earlier, it would be hard to demonstrate a breach of duty owed to her because of the father's lack of knowledge of any defects with the tires, and lack of foreseeability of the blow out, in light of the age of the car and the warranty for the tires. Without this knowledge, his conduct in allowing his son to drive the car on Interstate 76 would not be the proximate cause of Heath's injuries. Any negligence of Bob's father would be far removed in time and superseded by Bob's parking in the left-hand lane of 1-76 and Terry's brake failure.

However, Bob's actions in parking the car in the left-hand lane of 1-76, using the "but for" test, would indicate his conduct was a significant cause of Heath's injuries. But for Bob's parking in the left-hand lane of 1-76, Heath would not have stopped to assist him and would not have gotten out of her police car to direct traffic. Bob's negligence seems to be "concurring"; it is not removed from Heath's ultimate injuries as a result of a lapse of time, and actually created a series of forces which were in continuous and active operation up to the time of Heath's injuries.

As a defense, Bob could argue "contributory negligence" on Heath's part. His argument would be his negligence in parking in the left-hand lane of 1-76 ended when Officer Heath took charge of the situation and directed him to proceed across 1-76. He would argue her conduct was a "superseding" intervening factor which should relieve him from any liability for negligence. However, the facts of our problem do not suggest any evidence that any action was taken at the direction of Officer Heath which contributed or caused the accident. Terry's conduct in pulling out of his lane of traffic was not the result of any directions given to him by Heath. Therefore, Heath's conduct would not constitute an independent intervening cause of the accident and would not constitute contributory negligence.

Finally, Terry's actions in swerving out of the left-hand lane and striking Heath when his brakes failed would satisfy both the actual and proximate cause aspects of causation. As a result of his brake failure, his car actually struck Heath, therefore supporting both actual cause, and his defective brakes were the proximate cause of her injuries (i.e. a substantial factor in her injuries- "but for" the brake failure, he probably would have been able to stop the car in sufficient time to prevent a contact with Heath).

D. DAMAGES

Pennsylvania law requires Heath to demonstrate actual loss or damages as a result of Bob's and Terry's negligent conduct. This is a given. Our facts indicate Heath was struck by Terry's car as a result of Bob's initial parking in the left-hand lane of 1-76. Bob's conduct placed Heath on the scene of the injury and ultimately led to Terry's swerving out of the left-hand lane and striking Heath when his brakes failed.

On January 2, 1995, Larry Blake, age 55, left his home in Harrisburg, Pennsylvania, driving his 15 year old Toyota Camry and heading for the Pennsylvania Turnpike towards Philadelphia. As he approached the toll booth to enter the turnpike, he put his foot on the brake, but nothing happened. Alarmed at the brake failure, Larry fainted and suffered a fatal heart attack. His car eventually stopped after "rear-ending" the car in front of it in line at the toll booth. This car was owned and occupied by Joanna Rich, also a Pennsylvania resident. Joanna, a 19 year old college student, suffered serious injuries as a result of the contact.

After a 9 month period of recovery, Joanna consulted Barry Muldanno, Esq. to represent her in a suit against Larry Blake's estate. On the day of her initial meeting with her attorney, Joanna briefly discussed the facts stated above. She told Barry that her car was stopped at the toll booth when she was hit in the rear. At the time of the first meeting, Joanna was unaware that Blake had experienced brake failure and told Barry that although she did not know what had caused Larry Blake to crash into her car, she had recently learned that Larry had died of a heart attack.

(1) Assuming Barry Muldanno, Esq. has knowledge only of the information Joanna has provided during their initial meeting, on what theory/theories of negligence liability could Joanna sue for recovery of personal injuries and property damage?

(2) Discuss any ethical considerations Barry Muldanno, Esq. may face in deciding whether to file a complaint on Joanna's behalf.

1. Assuming Barry Muldanno, Esq. has knowledge only of the information Joanna has provided during their initial meeting, on what theory/theories of negligence liability could Joanna sue for recovery of personal injuries and property damage?

In Pennsylvania, a negligence action consists of the following elements: (1) a duty or obligation imposed by the law which requires a person to conform to a specific standard of conduct; (2) a breach or failure to comply with the specific standard; (3) a causal connection between the breach and the injury (legal or proximate cause); and (4) damages or loss occurring from the breach. Prosser and Keeton on Torts 164-65 (5th ed. 1984).

A. CAN JOANNA SUE LARRY UNDER A GENERAL NEGLIGENCE THEORY?

Although not expressly stated or codified, every driver owes to everyone a general duty to drive his/her vehicle safely. The driver will be liable for negligence if the driver recognizes a risk, fails to take action to avoid the risk, and if the failure results in injury to one to whom the duty is owed. Some jurisdictions might also require drivers to keep their automobile brakes in good working condition and must exercise ordinary care in regards to inspecting and maintaining their brakes. See Ky. Rev Stat. Ann. § 189.090.

Based upon the information provided by Joanna, and without any previous knowledge of Larry's medical history, Joanna could argue that if Larry suffered a heart condition and continued to drive his car despite knowledge of his condition, he may have breached a duty of care owed to Joanna and other fellow drivers. Also, if Pennsylvania requires drivers to keep brakes in good operable condition, and if Joanna can demonstrate Larry knew the brakes were in a defective condition prior to entering onto the turnpike, Joanna may argue Larry breached a duty to maintain his brakes. However, because of the limited knowledge in the facts regarding Larry's medical history or of previous knowledge of brake failure, it will be difficult to establish the causation element of the general negligence analysis.

B. CAN JOANNA SUE LARRY UNDER A THEORY OF RES IPSA LOQUITUR?

Because of a lack of direct evidence to establish causation in this problem, Joanna might consider suing Larry under a theory of res ipsa loquitur. Under this theory, circumstantial evidence might be sufficient to keep the claim alive (i.e. to survive a motion to dismiss or summary judgment) and to allow the suit to go to a jury if certain factors can be established. This theory is evidentiary in nature, and not a matter of substantive or procedural law. Gilbert v. Korvette, Inc., 327 A.2d 94 (Pa. 1974). Because of a lack of direct evidence in this problem to indicate Larry was negligent, res ipsa loquitur will allow Joanna to instruct a jury that the mere occurrence of the accident could be sufficient to establish a breach of duty. Pennsylvania requires the following factors in establishing res ipsa loguitur: (1) the event must be of the type that ordinarily does not occur in the absence of negligence; (2) the event must be caused by an agency or instrumentality under the exclusive control of the defendant; and (3) the event must not have been caused by any voluntary actions of the plaintiff. Prosser & Keeton on Torts 244 (quoting 4 Wigmore Evidence § 2509 (1 ed. 1905); Smith v. City of Chester, 515 A.2d 303, 305 (Pa. Super. Ct. 1986) (where the court held a jury does not have to exclude all alternatives, but the defendant's negligence must be the more probable cause).

Arguably, Joanna should be able to establish the elements of the res ipsa loquitur analysis. Car brakes, when properly maintained, do not normally fail; Larry was in sole and exclusive operation of the vehicle that struck Joanna's car; and based upon our facts, there is no evidence to suggest Joanna contributed to the accident. The facts indicate she had stopped at the toll booth, as required by law, when Larry "rear-ended" her car.

C. COULD JOANNA FILE SUIT UNDER A THEORY OF NEGLIGENCE PER SE?

Negligence per se is negligence based upon a violation of a statute. White v. Southeastern Pennsylvania Transp. Auth., 518 A.2d 810, 815 (Pa. Super. Ct. 1987). If Pennsylvania has a statute which imposes upon a motorist a duty to maintain car brakes, Joanna could argue that Larry was negligent per se when his brakes failed. To establish this, Joanna will have to demonstrate the following: (1) she is a member of a class of persons for which the statute is designed to protect; and (2) her injuries are of the type of injuries for which the statute is designed to protect against. Bumbarger v. Kaminsky, 457 A.2d 552, 554 (Pa. Super. Ct. 1983).

Under this theory, Joanna, as a motorist using Pennsylvania highways, would qualify as a member of a protected class and her injuries would qualify as those types of injuries (i.e. "rear-ending") for which the brake maintenance statute was designed to protect against.

2. DISCUSS ANY ETHICAL CONSIDERATIONS BARRY MULDANNO, ESQ. MAY FACE IN DECIDING WHETHER TO FILE A COMPLAINT ON JOANNA'S BEHALF.

Rule 3.1 of the Pennsylvania Rules of Professional Conduct prohibit a lawyer form bringing or defending a proceeding, or from asserting or controverting an issue unless there is a non-frivolous basis for doing so. However, the comments to Rule 3.1 state that it is not frivolous to file an action on a client's behalf, even if the facts are not yet known, if the lawyer anticipates learning the facts during discovery, even if the lawyer believes his client my ultimately fail at the end. The comment defines "frivolous" as those actions undertaken primarily for harassing or maliciously injuring a person, or if the attorney is unable to make a good faith argument on the merits of the claim.

Under this rule, Barry would be entitled to bring a negligence action on behalf of Joanna because he is aware that Larry died of a heart attack, and therefore, Larry's medical history might suggest Larry's heart attack was foreseeable which would support a negligent driving claim.

James Zafris was the record title owner in "fee simple" of a several-acre tract of land located outside the city limits in Lancaster, Pennsylvania. In 1969, Zafris left the state to run a family owned winery in southern California. Although Zafris was the record title owner, Bill Blass took possession of an acre of the land from 1970-1980 on the mistaken belief that he actually owned that portion of the land. On that acre, Bill built a house and garage, planted flowers and hedges to separate the parcel from the remaining acres, and maintained the property. James Zafris was unaware of Bill's trespass.

In 1981, Bill left Pennsylvania to care for his sick father in Connecticut for one year, returning to Lancaster the following year, 1982. Bill has remained on the property until the present. During his departure, Bill's nephew had agreed by oral contract, to live in the house, rent free, until Bill's return.

Meanwhile, during Bill's possession, Zafris contacted a Pennsylvania attorney and properly executed under Pennsylvania law, a deed devising the entire tract of land to his son, Pete, in 1986. Pete had decided to reside in Pennsylvania after graduating from Penn State University.

Upon having the land surveyed, however, Pete realized that Bill's house was built on one of the acres included in the 1986 deed from his father. Upon receiving the results of the survey, Pete brought an action on January 10, 1996 for ejectment under Pennsylvania law. The Pennsylvania statutory limitations period for acquiring land through adverse possession is 21 years.

Has Bill successfully acquired the property through "adverse possession"?

GENERAL RULES:

1. In Pennsylvania, the statutory limitations period for acquiring land through adverse possession is 21 years. 42 Pa. Cons. Stat. Ann. § 5530. See Tioga Coal Co. v. Supermarkets Gen. Corp., 546 A.2d 1, 2 (Pa. 1988).

2. A person claiming title by adverse possession must prove that he had: (1) actual, (2) continuous, (3) exclusive, (4) open (visible) and notorious, and (5) hostile possession of the land for 21 years. Baylor v. Soska, 658 A.2d 743, 744 (Pa. 1995). These elements must be present or the possession will not confer title. Conneaut Lake Park, Inc.

v. Klingensmith, 66 A.2d 828, 829 (Pa. 1949).

a. "Actual." The person claiming title must be in "actual" possession (i.e. physically living on property).

b. "Continuous." Pennsylvania allows the periods of possession of prior owners to be "tacked" on to the period of possession of the present owner. Baylor, 658 A.2d at 744-45. However, the possession of successive occupants may be tacked, only where there is privity between them. Id. "'[P]rivity' refers to a succession of relationship to the same thing, which may be created by deed, or other acts, or by operation of the law." Id.

c. "Open and Notorious." The adverse possessor's holding must be "open and notorious" to all the world. There must be no secret that the adverse possessor is asserting a claim to the land in question. Id. at 745. (The true owner must be placed on notice).

d. "Hostile." The courts have defined "hostile" as "the intent to hold title against the record title holder." Tioga Coal Co., 546 A.2d at 3. However, Pennsylvania follows the majority rule: the subjective intent of the adverse possessor is not required and the hostility may be implied from compliance with the other requirements of adverse possession. Id. at 4.

The main issue in this problem is whether Bill Blass has successfully acquired the Zafris property through adverse possession. To determine this, it will be necessary to determine whether Bill has satisfied the Pennsylvania common law and statutory requirements for acquiring land through adverse possession.

In Pennsylvania, the statutory limitations period for acquiring land through adverse possession is 21 years. 42 Pa. Cons. Stat. Ann. § 5530. See Tioga Coal Co. v. Supermarkets Gen. Corp.', 546 A.2d 1, 2 (Pa. 1988). A person claiming title by adverse possession must prove that he had: (1) actual, (2) continuous, (3) exclusive, (4) visible and notorious, and (5) hostile possession of the land for 21 years. Baylor v. Soska, 658 A.2d 743, 744 (Pa. 1995). Each element must be present or the possession will not confer title. Conneaut Lake Park, Inc. v. Klingensmith, 66 A.2d 828, 829 (Pa. 1949).

1. Did Bill have "actual" possession of the property for the 21 year period required under the statute?

Our facts indicate Bill took "actual" possession of an acre of the Zafris property from 1970 to 1980 (a ten year period) on the mistaken belief that he actually owned that specific portion of the land. During that time, Bill built a house and garage, planted flowers and hedges to separate the parcel from the remaining acres, and performed some maintenance of the property. The facts also indicate that in 1981, Bill entered into an oral agreement which allowed his nephew to "house sit" for one year while Bill left to care for his sick father in Connecticut. In 1982, Bill returned to the property and has lived there until the present. In light of these facts, Bill "physically" lived on the property for more than 21 years and therefore, would satisfy the "actual" element.

2. Was Bill's possession of the acre of property "continuous"?

In determining whether possession is "continuous," Pennsylvania allows the periods of possession of prior owners to be "tacked" on to the period of possession of the present owner. Baylor, 658 A.2d at 744-45. However, the possession of successive occupants may be tacked, only where there is privity between them. Id. ... "'[P]rivity' refers to a succession of relationship to the same thing, which may be created by deed, or other acts, or by operation of the law." Id. Finally, under 68 P.S. § 250.201 (1995), real property, including any personal property associated with it, may be leased for a term of no more than three years, either by oral or written contract by agreement.

As stated in the previous discussion, Bill possessed the property from 1970-1980 without any interruptions. However, in 1981, Bill left the state to care for his sick father who lived in Connecticut. He then resumed his possession of the property in 1982, one year later. During the interim, however, Bill and his nephew entered into an "oral agreement"; his nephew would "house sit," in exchange for free room and board. The subtle issue raised by these facts is whether Bill's possession is continuous, in light of the fact that it was interrupted when he left for Connecticut in 1981.

Under Pennsylvania law, Bill can establish "privity" between he and his nephew and will be able to "tack" on the one year residency of his nephew with his own periods of uninterrupted possession. Our facts indicate Bill and the nephew had entered into an "oral agreement" (i.e. lease/contract). Because oral land/lease agreements are valid up to three years in Pennsylvania, there will be no Statute of Frauds problems with the oral agreement entered into between Bill and his nephew. Therefore, Bill could argue that the agreement created a "succession of [his possessory] relationship." He would argue the contractual relationship satisfied the "by other acts" or "by operation of the law" of the privity analysis. This would be a valid argument and would satisfy the privity requirement.

Bill might also argue his "family relationship" (i.e. uncle/nephew) would also be sufficient to establish privity. This argument, although legitimate, would probably be stronger if the relative was a direct family member (ie. son or daughter) rather than a more "removed" family member (i.e. nephew, niece, cousin). Because tacking will be allowed, Bill's possession of the property was continuous and exceeded the 21 year statutory period.

3. Did Bill occupy the premises "exclusive" from anyone else?

Our facts indicate that only Bill and his nephew "actually" occupied the premises during the period of 1970 up to the present. Although Pete Zafris attended college at Penn State University, the facts do not indicate whether he ever lived on the premises or if his father had built a house on the premises. Our facts indicate Pete learned of Bill's trespass after he received the survey. Based upon these facts, and assuming privity between Bill and his nephew, Bill had exclusive possession of the premises for the statutory limitations period.

4. Was Bill's occupancy of the premises "visible" and "notorious"? (i.e. Open and Notorious?)

Pennsylvania requires that an adverse possessor's holding be "open and notorious to all the world. There must be no secret that the adverse possessor is asserting a claim to the land in question. Id. at 745. (The true owner must be placed on notice).

As indicated in the facts, Bill took possession of the property in 1970. At that time, Bill built a house and garage, planted flowers and hedges to separate the parcel from the remaining acres, and performed basic maintenance of the property. In effect, Bill treated the property just as if it were his own. Our facts indicate James was unaware of Bill's trespass, and suggest Pete learned of the house/trespass through the survey results. Although neither had actual knowledge, both would have had "constructive knowledge." If either had conducted a reasonable inspection, both would have noticed the house, and Bill's assertion of a claim to the land.

Actual knowledge would not be required for adverse possession. The policy behind adverse possession is to reward persons for using/maintaining land. In this problem, Bill has attempted to maintain the land while the Zafris have done nothing. Our facts suggest that both James and Pete allowed the land to "sit" there, without even making periodic inspections to prevent against potential adverse possessors.

5. Was Bill's occupancy of the premises "hostile"?

The Pennsylvania courts have defined "hostile" as "the intent to hold title against the record title holder." Tioga Coal Co., 546 A.2d at 3. However, Pennsylvania follows the majority rule: the subjective intent of the adverse possessor is not required and the hostility may be implied from compliance with the other requirements of adverse possession. Id. at 4.

Our facts indicate Bill took possession of the Zafris property under the "mistaken" belief he actually owned a portion of the land. Arguably, because Bill actually believed he owned the land, this would not satisfy the "subjective" intent requirement required under Tioga Coal Co.. However, because Pennsylvania will allow for a presumption of hostility if the other requirements of adverse possession are satisfied, Bill's occupancy of the premises will be "presumed" hostile.

In conclusion, Bill has successfully satisfied the Pennsylvania requirements for acquiring land by adverse possession and will be deemed by law as the record title owner of an acre of the Zafris land.

B. Rutgers-Camden Program Description

I have been working with graduates that failed the New Jersey Bar Exam since the Spring Semester of 1994 (graduates who failed the July 1993 exam). I sent letters to students that failed the Bar Exam, informing them of our new program and offering help (sample enclosed, with questionnaire). I worked with two to five students for each administration of the Bar Exam.

For the July 1995 Bar Exam, we decided to offer help to graduating students who were taking the Bar Exam for the first time. Although the program is open to everyone, our target is students whose G.P.A. of 2.8 or below indicates that they are at risk of failing the Bar Exam. I expect to work with up to 10 students this summer.

I do not teach or review any of the Bar Exam subjects. I work individually with students, giving advice on how to answer essay questions (handout enclosed). I also provide feedback on their essay answers by comparing their answers to the question with the sample answers released by the Bar Examiners. I have enclosed a sample grading grid, the sample answers to the Property question you were given at the beginning of this presentation, a graduate's answer, and a grading grid with my comments on the graduate's answer. This type of grid enables the graduate to see which issues were missed, and allows me to comment on specific problems.

Many of our graduates who fail the Bar Exam had problems with exam-taking skills generally. Many have never received feedback after any exam, and cannot diagnose what they are doing wrong. Complicating the picture is the fact that many graduates are now working full-time and cannot attend regular classes and meet with me. Therefore, I do a lot of this work individually and by FAX. I have tried to develop the grading grids and other materials in order to give as much meaningful feedback as possible under the circumstances. Once major problems are corrected, the main value of the program is in forcing the graduates to write out as many exams as possible before the real thing.

Angela Passalacqua

January 17, 1996

I am writing to inform you that the law school has developed a new program to help our alumni pass the Bar Exam. If you are planning to take the Pennsylvania or New Jersey Bar Exam in February 1996, please contact me.

The program is not intended to replace the kind of intensive subject-area review offered by traditional bar review courses. Instead, it would concentrate on exam-taking skills. First, we could discuss what may have hindered your performance in the past. Second, we could develop an individualized study plan, concentrating on the specific subject areas you had trouble with in the past. Third, you could write answers, under test conditions, to essay questions that have appeared in the New Jersey Bar Exam. Fourth, I could give you individual feedback on your answers, which would help you pinpoint which subject areas need further study. Finally, we could discuss strategies for the multi-state exam.

I have a flexible schedule this Spring, and am willing to meet with you on certain Saturdays and to adapt portions of the program to fit your needs. I know a number of alumni are already working, and have limited time available. However, I encourage you to take advantage of this opportunity to diagnose any test-taking problems you are experiencing, and to address them before you take the bar exam again. If you are interested, please send me the questionnaire enclosed with this letter. If. you have any questions, please feel free to call me at 609-225-6419.

Sincerely,

Angela Passalacqua

BAR EXAM QUESTIONNAIRE

NAME: _______________________________________________

ADDRESS: ____________________________________________

____________________________________________

TELEPHONE, -- DAY: __________________________________

EVE.: __________________________________

FAX: _________________________________________________

CLASS YEAR: _________________________________________

WHEN DID YOU TAKE THE BAR EXAM? IN WHICH STATES? LIST DATES:

_______________________________________________________________________________

_______________________________________________________________________________

PLEASE LIST YOUR MULTI-STATE AND ESSAY EXAM SCORES FOR EACH TIME

YOU TOOK THE BAR EXAM, IN CHRONOLOGICAL ORDER:

_______________________________________________________________________________

_______________________________________________________________________________

IF YOU TOOK THE NEW JERSEY BAR EXAM, PLEASE LIST YOUR ESSAY
SCORES BY SUBJECT:

EVIDENCE: ________ PROPERTY: ________

CONTRACTS: ________ CONSTITUTIONAL LAW: ________

TORTS: ________ CRIM. LAW/PROCEDURE: ________

DID YOU TAKE A BAR REVIEW COURSE? LIST WHICH ONES AND DATES:

_______________________________________________________________________________

__________________________________________________

SUBJECT AREAS YOU WANT TO CONCENTRATE ON:

_______________________________________________________________________________

__________________________________________________

STUDY AND EXAM-TAKING SKILLS YOU WANT TO DEVELOP:

_______________________________________________________________________________

__________________________________________________

PLEASE LIST THE BEST TIMES FOR YOU TO:

1. HAVE AN INITIAL MEETING WITH ANGELA PASSALACQUA

___________________________________________________________________

___________________________________________________________________

2. REVIEW EXAM ANSWERS

___________________________________________________________________

___________________________________________________________________

This paper outlines an approach to the Essay portion of the Bar Exam that has been used successfully by a number of law school graduates. Individual Bar candidates should adapt this method to their personal needs, learning and writing styles.

A. PREPARING FOR THE BAR EXAM ESSAYS: ACTIVE LEARNING 2

B. TAKING THE BAR EXAM ESSAYS 3

1. Skim the question briefly to determine what the area being tested is 3

2. Before carefully re-reading the facts, read the "call of the question." 3

3. Relate the facts to the call of the question........................... 4

4. Organize your answer.................................................... 4

Example # 1: Logical ways to organize an answer........................ 5
Example # 2: Other methods of organizing an answer...................... 6
Example # 3: Possible structure for criminal law/procedure question..... 7

Example # 4: Organization for an evidence question, following the call of the question

8
Example # 5: Possible Torts answer following the call of the question........ 9

5. Write your analysis, without re-writing points that have already been analyzed 10

6. Do not eliminate significant spotted issues without discussing them on paper 11

Copyright 1996-Passalacqua 1

A. PREPARING FOR THE BAR EXAM ESSAYS: ACTIVE LEARNING

Taking old exams is a good method of reviewing and self-diagnosis. Bar candidates -- and law school students generally -- often spend too much time "sleep-reading" or coloring their Bar Review course outlines with highlighters. Such an approach is useful at first to review basic principles of law and get an overview of the subject area. However, this "passive" method of studying has diminishing returns: Bar candidates who simply review the material over and over are not preparing to show the Bar Examiners the extent of their knowledge in the way their Bar Examiner audience expects it. After all, the Bar Examiners do not draft essays that state "Write down everything you know about contract law." Instead, Bar Examiners, like law school professors, expect you to apply your knowledge of "black letter law" to a specific set of facts. Therefore, after having reviewed the material, you should switch to a more active method of learning, that trains you to prepare answers for the intended audience and helps you review at the same time: outlining and writing out exam answers.

At first, for the purpose of reviewing, you may wish to begin by taking "open book" and untimed exams. This helps prevent panic when you are not sure of a particular area of the law. After preparing the answer to an essay question, it is helpful to compare the answer to the Bar Exam's sample answer to determine what kind of further review of legal principles is necessary. Gradually, you should take exams in conditions closer to those of the actual test: closed book and timed. This approach allows you to prepare not only for giving the intended audience the material it expects in the format it expects, but also for the time pressure of the exam. A common complaint is that test takers spotted the issues, but simply did not have time to write everything down. Careful planning and organizing of an answer maximize the time that can be spent writing the answer to the question. Further, there is no need to write everything down, since at least some information in the answers may be repetitive (See Point II 5).

Summary: A suggested chronology for preparing for

the Essay portion of the Bar Exam

A. Review each subject area separately through a Bar Review Course or individually.

B. Take "open book" and untimed exams in each subject area, taking the time to check legal rules that you do not remember.

C. Compare each answer to the sample answers provided by the Bar Examiners.

D. Determine which issues you failed to spot, and why (lack knowledge of the law, failure to notice a key fact, etc.).

E. Review the areas of the subject that you do not know welt and then apply them to the parts of the exam that you missed.

F. Repeat steps B through E for each subject, gradually moving closer to closed book, timed exam conditions.

G. Take at least one complete Bar Essay Exam, preferably in one day, getting used to the fact that you will need to write essays on all six subjects the same day.

Copyright 1996-Passalacqua 2

not.

4. Organize your answer

Outlining or charting the answer will help exam takers spot and list each issue, and organize the issues in some logical way. Avoid writing about issues in the random order that you spotted them. You should rank the issues in terms of importance, or otherwise organize the claims in a logical way. Once you have a structure, you can relate each issue to the relevant facts in the question, and anticipate arguments and counter-arguments on each side. This initial outlining or charting should be done briefly, listing the relevant actors in the fact pattern and the key words that will help you remember all of the applicable issues. The outline or chart is only intended to help you organize the answer, and will not be read by the bar examiners.

If the question has a very general call, like "discuss the issues raised," you should come up with your own outline, using elements similar to those listed above. There are basic types of essay answer structures that can be adapted to almost all essay questions. Basically, these structures identify each issue, present the factors that the court would consider in deciding each issue, including arguments and counter-arguments under each issue, and make a final determination on each issue.

Copyright 1996-Passalacqua 4

Example # 1: Logical ways to organize an answer

a causes of action by each claimant, or criminal offenses

Questions may have only one claimant (a plaintiff, or a person aggrieved by a provision being constitutionally challenged). If there is more than one "actor," there is usually a reason for it: the two actors may raise different causes of action in torts or offenses in Criminal Law, or the differences in the actors may raise specific legal issues. For example, in a Torts question, if one person was injured while the other watched, there may be different causes of action that apply to each (negligence vs. negligent infliction of emotional distress). If there are two adverse possessors in a property question, there may be an issue of whether one adverse possessor can benefit from the previous one's period of adverse possession.

b. against each defendant

In questions like Torts, there is usually a variety of possible defendants, with different causes of action and defenses applying to each. In a Criminal Law/Procedure questions, there may be multiple "perpetrators." Usually, there are some differences between the actors that may raise new issues. For example, two criminal defendants may have had different levels of intent, and may be guilty of different offenses.

c. defenses

specific to each cause of action (or offense) by each defendant

d. if applicable. claimant's possible responses to defenses

e. Policies relevant to the issues

Copyright 1996-Passalacqua

Example # 2: Other methods of organizing an answer

STRUCTURE	CONTRACTS	EVIDENCE	CONST'L LAW
The issue -- identify all of the points of dispute	-is there a valid contract?	-which items could be admitted in evidence?	-what are the constitutional challenges to the statute?
The rule -- identify all of the required elements	-for each element of a contract: determine if element is met	-for each piece of evidence: discuss applicable theories for admitting or objecting to it	-for each possible constitutional challenge to the statute: -identify which test is used & apply
The exception to the rule, if applicable Or Alternative theory for compensation	-no written contract, but may meet exception for statute of frauds Or -detrimental reliance	-applicable exceptions to hearsay: e.g., excited utterance
Relevant policies	return parties to their original position	evidence must be reliable	preventing discrimination
Conclusion on the result for each issue, including a discussion of damages or solutions, if applicable.	-which party wins, and how much? Consider limits on damages (such as duty to mitigate, only economic loss)	-for each piece of evidence, decide its admissibility under each theory	-who wins under each theory, and what the result should be (injunction, statute's constitutionality upheld?)

Copyright 1996-Passalacqua 6

Example # 3: Possible structure for criminal law/procedure question

Issues:	Defendant # 1	Defendant # 2	Defendant # 3
Search?	No consent	Can't consent to search of # 1's
Miranda?		No warnings	Was given warnings
Right to Counsel?			Request to consult attorney not granted
Other?	Preemptory challenges to all peer jurors
Possible Charges: Conspiracy Murder Felony Murder Kidnapping Assault, Etc.	C, m, fm	C, fm	K, A
Possible defenses:

Copyright 1996-Passalacqua 7

If the call of the question is specific enough, you may want to adapt the requirements of the question as a checklist when outlining your answer. This reduces the chances of missing an element that the bar examiners are looking for. For example, for an evidence question that request arguments for and against the admissibility of each item of evidence, the outline or chart could look like this for each piece of evidence at issue:

Example 4: Organization for an evidence question, following the call of the question

Piece of evidence:

-arguments for its admissibility

(rule or exception to rule)

*analyze using facts

*discuss relevant policies

-arguments against its admissibility

(rule or exception to rule)

*analyze using facts

*discuss relevant policies

Discuss all alternative grounds for admitting the specific item, if relevant

and additional objections against admitting the specific item, if relevant

-court's balancing process, if relevant

*discuss relevant policies

-conclusion on admissibility of that specific piece of evidence

As a second example, a Torts question may specifically request a list of "the defendants that the plaintiff should sue, and each cause of action, specifying the factual and legal basis for each cause of action against each defendant. Include an analysis of all defenses available to each defendant, specifying the factual and legal basis for each separate defense as well as potential cross claims." Your outline or chart for the question could look like this:

Copyright 1996-Passalacqua 8

Example # 5: Possible Torts answer following the call of the question

Defendants:	#1_______	#2_______	#3_______
-causes of action (c/as): *factual basis: *legal basis (elements of c/a):
-defenses -specific to particular cause of action *factual basis: *legal basis:
-defenses -applicable to all causes of action *factual basis: *legal basis:	(no need to repeat the full analysis each time because common to all)
-counterclaims		(no need to repeat if same; emphasize differences if not same)
Conclusion on each claim

The same information can be organized in a linear outline:

Pl v. Dl

c/a: neg operation and maintenance of car

discuss elements of each c/a and apply to facts

defenses: contrib counterclaim: neg operation of car

Pl v. D2

c/a: neg hiring, training, supervision of driver

discuss elements of each c/a & apply to facts

defenses: contrib counterclaim: n/a

Pl v. D3

c/a: neg design and manuf of car

discuss elements of each and apply to facts

defenses: contrib counterclaim: n/a

P2 v. Dl (etc.)

Copyright 1996-Passalacqua 9

By using this type of outline, you would not miss or forget categories that the bar examiners specifically requested. It is very easy, in the time pressure of an exam, to forget a category like "counterclaims," for example. Check off items in the outline as you write on those issues.

It is not necessary to write out each item in the outline or chart; you should just write enough to remind you of the issue. For example, in the Torts category defenses-applicable to all it may be sufficient to write the fact "no seat belt" to trigger the defenses of contributory negligence, assumption of the risk, and violation of a statute in your memory.

Use the type of outline that makes it easiest for you to organize the information and make the transition to writing the answer quickly and completely.

5. Write your analysis, without re-writing points that have already been analyzed

As indicated in the outlines reproduces above, once you have decided how to logically organize your answer, write as efficiently as you can, while covering all of the important points. Avoid long introductory phrases, or mere repetitions of the facts that are not related to any element of the analysis. Most students are familiar with the IRAC format depicted in Example #2, above. However, you need not use this format in a mechanical, long-winded manner. Compare the examples below:

Version #1

The first issue in this case is whether the plaintiff can sue Defendant #1 for the negligent operation of his automobile. Negligence requires 4 elements: duty, breach of duty, causation and damages.. Defendant owes a duty of care to other drivers and to pedestrians to drive carefully. Therefore the first element is met. He breached that duty by driving over the speed limit. Therefore, the breach of duty element is met. The third element is met if defendant's speeding caused the accident. The facts indicate that the car went out of control at a sudden curve in the road. Defendant may claim that road conditions or design, rather than the speeding, was the cause of the accident. The law requires both cause in fact (but for) and proximate cause for liability. It is not clear what a court would decide. Finally, the plaintiff suffered damages from the accident. The elements of the cause of action are met.

Version # 2

Plaintiff has a cause of action against defendant # 1 for the negligent operation of his car. Defendant #1 breached his duty to the plaintiff and others by failing to follow the rules of the road and violating the speed limit. This breach of duty is the most likely cause of the accident, since the facts indicate that the car went out of control at a sudden curve in the road The accident most likely would not have happened but for defendant's speeding and, although the sudden curve in the road might have contributed to the accident, the defendant would not have lost control if he had not been driving at an excessive speed. Therefore, the defendant's actions were the proximate cause of the accident, which caused plaintiff's injuries.

Copyright 1996-Passalacqua 10

Version # 3:

All of the elements of negligence are met: duty, breach of duty, causation and damages. Therefore, plaintiff has a valid claim against defendant #1 for negligent driving, specifically by speeding.

Version # 1 engages in long recitations of the law before applying the elements to the facts. The second version uses the more efficient C/ARC form: making mini-conclusions about each element as it is introduced, and only spending more time on elements that may be in dispute, such as proximate cause. The first version also gets trapped in the "plaintiff will argue/defendant will argue" format, while the second version focuses more quickly on the most likely result, while recognizing the ambiguities in the facts and maintaining an objective tone. However, version # 3 goes overboard, merely listing elements with only the most cursory analysis.

If the essay would be repetitious, it is not necessary to repeat the analysis of each point for each defendant/offense/claim. There is no need to repeat defenses or counterclaims if they are common to more than one defendant. You should just indicate that you have spotted the issue and that the result would be similar to the one already discussed, or point out the differences from the points already discussed.

For example, once you have fully discussed "parental immunity" as a defense for the father in a question, it is enough to write that the same result on that issue would result in the claim against the mother. If the result would be different for a particular defendant, the answer must explain why, for example:

"Unlike defendants Cannons, defendants Brown would not be able to assert the defense that the accident was not foreseeable because the dogs had exhibited the same conduct that caused the accident in the past. "

6. Do not eliminate significant spotted issues without discussing them on paper

Some Bar candidates mentally conclude that certain claims or defenses are not viable based on the facts and the current state of the law, but fail to write their analysis and conclusion on the test books. By doing so, you may be losing points. For example, consider the treatment of the parental immunity in a Torts question: if you mentally concluded that parental immunity is no longer viable, or that no claim was possible against the defendants, but did not explain why, you would lose points. Of course this does not mean that you should create issues that are tenuous, or discuss legal theories that are not supported by the facts. But avoid discussing only the one claim you believe is most likely to succeed.

Copyright 1996-Passalacqua 11

BAR EXAM:___July___February YEAR:_____ SUBJECT:______________

ISSUES IN SAMPLE ANSWER NUMBER 1	ISSUES IN SAMPLE ANSWER NUMBER 2	SELF- EVALUATION 1. I SPOTTED THIS ISSUE 2. 1 DISCUSSED THIS ISSUE 3. 1 USED THE KEY FACTS IN THE ANALYSIS 4. 1 WROTE A CONCLUSION	COMMENTS BY GRADER

(see -- 137N.J.L.J. 447

Supplement to the N.J. Law Journal, May 30, 1994

1994 Bar Exam Question # 6, Real Property

To: Senior Partner

From:

Re: Adams desire to close farm road easement

The original owners of Fertile Farm established a farm road from their property to the State Highway in 1910. Although such an easement was never mentioned in the deed to Fertile Farms, it has been an established fact for over 80 years. In general, it takes but 20 years to establish adverse possession or easement by prescription. The statutory period for establishing an easement by prescription was satisfied long, long ago. The current neighbors to Fertile Farm, include the Adamses, did not establish their residence until at least 1940, again well after the statutory requirements of the Fertile Farm easement had expired.

The physical. existence of the easement was known to the Adams family when they bought their parcel in 1940. There can be no question of the necessity of the farm road, there simply was no other access from Fertile Farm to the State Hwy. in 1910. Even today, the development of other roads has not reached Fertile Farm. The continuous use of the farm road since 1910 is another factor in establishing the validity of the easement.

At best, the Adamses might argue that the farm road is now a nuisance. The neighborhood is primarily residential and the existence of a commercial agricultural operation in the middle interferes with the residents' use and enjoyment of the land. The farm road is a part of that agricultural operation.

The residential users came to the nuisance. Most jurisdictions, by statute, protect pre-existing agricultural enterprises. When development encroaches on what had hitherto been agricultural land, the farmers who choose to continue operations have a right to do so. Fertile Farms was operating as early as 1910, 30 years before any residential development came into the area.

The farm itself cannot be enjoined as a nuisance. The farm road is a necessity for the farm and, as stated above, the owners of Fertile Farm have established their easement by prescription.

While no one can compel the Adamses to contribute to the maintenance of the farm road--that responsibility goes to the current owners of Fertile Farm--nor can the Adamses enjoin further operation of the farm road.

Just as the Adamses have no equitable recourse, neither do they have a legal recourse. There is nothing in the deeds of the various pieces of property owned by Adams, Baker, Case, or Fertile Farm itself that prohibits farming. Even if there were, in order to find a legal remedy, there would have to be both horizontal and vertical privity between Adams and Fertile Farms. There is no horizontal privity because Fertile Farms is not burdened by any prohibition against farming, or in seeking a necessary easement which in due course matured into easement by prescription. There is no vertical privity because The Adamses and the current owners of Fertile Farms are not the original owners. In short the Adamses may not by equitable or legal remedies cause the closing of the farm road.

BAR EXAM: February YEAR: 1994 SUBJECT: Property

ISSUES IN SAMPLE ANSWER NUMBER 1	ISSUES IN SAMPLE ANSWER NUMBER 2	SELF- EVALUATION 1. I SPOTTED THIS ISSUE 2. 1 DISCUSSED THIS ISSUE 3. 1 USED THE KEY FACTS IN THE ANALYSIS 4. 1 WROTE A CONCLUSION	COMMENTS BY GRADER
Issue: right to use farm road -Not express easement (def) but implied easement (reasonably necessary)
or Prescriptive easement (hostile, open and notorious, for req period)	Easement by rescription	Some discussion of 20 years, but no other elements
If meets elements, can continue use; otherwise, owners can bring action to quiet title
Nuisance action possible		"Came to the nuisance"
Easement by necessity for CASES b/c landlocked	Farm's easement by necessity no longer exists, but CASES need it.	Mentioned necessity ("continuous" unclear)
Duty to maintain road, contrib for damages by farm vehicles	Same	Fertile Farm must pay maintenance
		Some attempt to discuss covenant? Theory not mentioned	Is this related to express easement (above?). Make sure your theory is clear.

C. Widener-Wilmington Program

Description

_______________________________________________________________________________

At the Wilmington campus of Widener University School of Law, we have developed two supplemental bar review courses. The first course is sponsored by the Delaware State Bar Association's Committee for Diversity in the Profession and was designed to assist minority applicants to the Delaware bar, but is open to any individual who is registered to sit for the July 1996 exam. The second course is open to graduates of Widener sitting for this summer's Pennsylvania bar. Both courses are modeled after the highly successful Minority Legal Education Resources, Inc. program in Chicago, which has a proven track record for improving the bar passage rates for minority students in Illinois. Neither course offers substantive instruction in the subjects to be covered on the bar exam and enrollment is limited to students who are either currently enrolled in a commercial bar review course or who have completed such a course within the last year.

These supplemental bar review courses focus on essay writing skills and consist of a weekly three hour session. Each session generally consists of a small group meeting, then moves to a lecture on skills needed for the bar exam, and concludes with a practice exam session of at least two essay questions.

Both programs rely on tutors to assist students in groups to improve their performance on the bar examination. Tutors for the Delaware course were recruited from the bar association. Tutors for the Pennsylvania course are recent graduates, particularly alumni of the school's numerous clinical programs. Tutors are trained to counsel and mentor students, and are given a fairly detailed "crash" course on evaluating and grading bar examination essay questions. Copies of the materials used to train the tutors are included in the materials for this program.

Each tutor is assigned two or three students to mentor for the six to seven weeks of the course. Tutors are asked to call their students weekly to "check in" and make sure the students are on track in their studies. Each week, tutors and students meet together in small groups, usually three tutors and the six to nine students assigned to them. During the small group meeting, the tutors review the results of the previous week's practice exam with the students, highlighting common weaknesses, difficult organizational issues, and common writing errors. Tutors may also review other questions on the topics tested in the previous week, and have the group practice issue spotting for those questions, or determine possible strategies for attacking those questions. One goal of the small group sessions is to give the students an opportunity to review as many actual questions for the exam as possible.

After the small group sessions, which last 50 minutes, all the students from the small groups meet together. In some weeks, students listen to a 30 to 45 minute lecture on topics such as time management and study strategies, stress management, and improving writing techniques.

©Teresa A. Wallace 1

One week, close to the actual administration of the exam, a member or former member of the board of bar examiners is asked to speak to the students in an effort to diminish the mystery of the exam.

After the lecture if there is one, or immediately after the small groups if there is no lecture, students move to the evening's main event: the practice exam. Each week the students are given two or three essay exam questions to write under exam conditions--timed, proctored, and written in bluebooks. Every effort is made to make the practice exam as similar to the conditions under which the students will actually take the test as possible. All questions for the practice exam are actual past questions given in that jurisdiction. To the greatest extent possible, the questions selected for that week's exam are on subjects covered already in the commercial courses, although that is not always possible where there are multiple bar review courses and a large number of subjects to be covered. In the Delaware course, we will also give a few practice sets of multistate questions, mostly to assist students for whom multiple choice tests are particularly difficult.

Each week, the tutors in the small groups will rotate through different tasks. One tutor will be responsible for grading all the practice questions for the students in their group that week, while another of the three tutors will be responsible for leading the group discussion. This means that each tutor will only need to grade twice and lead the discussion twice during the course. We ask the grading tutor to score all the exams for the group for that week so that we can see if there are common problems and also if students are managing their time well on the exams. We also ask the tutors to keep records on each student's performance, so that each tutor can monitor his or her assigned students' work each week. The tutors assigned to grade the exams meet together while the students are taking the exam to review the questions and the model answers provided and to determine how they will score the exam questions that week. The tutors then take their scoring sheets and the model answers for that week's questions home with them.

We have hired a student to serve as a our proctor and delivery person. Each week after the

__________________________

^1.Students are told that the practice exams may cover subjects that they have not yet reviewed, but that they should attempt to answer those questions as practice for questions that they may see on the actual exam which are offbeat or cover subjects so rarely tested that the student might not have adequately reviewed them for the exam.

² We encourage the use of the a scoring system similar to the one used by the bar examiners for that jurisdiction. For example, in Delaware, each question is worth 100 points and we know that 65 is a passing score. We ask tutors to score the questions on that scale and to keep in mind that most applicants in Delaware pass with an average score of 65-70 on each question. In Pennsylvania, each question is worth 20 points and students must have a total scaled score of 135 (out of 160) to pass. Because the Pennsylvania test is scaled or curved, we do not give the students their actual numerical score on each question as we do on the Delaware exam where scores are not scaled. With Pennsylvania questions, we ask the tutors to score on the 20 point scale and to rate the answer as "satisfactory" if the student receives 14-17 points on the question, "very good" if the student scores above 17 and "needs improvement" if the student scores below 14.

©Teresa A. Wallace 2

practice exam is finished, the student collects the exams, divides them by small group and then sees that the grading tutor receives the exams for his or her group within the next day or two so that the tutor has five to six days in which to grade the exams before the next session.

For the final practice exam we will ask each tutor to score all of the student answers in their group for one or two questions and to draft a general comment sheet on the question and the responses that can be sent to students along with their scored answers.

While the tutors assigned to grade that week meet together, the tutors assigned to lead the next week's small session also meet together so that they can decide what topics are should be discussed next week. This may mean talking about common issues students have raised or reviewing our files with other exam questions on the same or similar topics.

The third tutor in the group will not have a specific duty, but is asked to be prepared to add to the discussion during the group sessions. We had the tutors for each group set up their own schedule and let us know who was assigned each task each week. While there was some variation in the pattern, most elected to rotate so that a given tutor leads the discussion one week, grades the next week, and then takes their turn as the third tutor.

Other than the weekly sessions which meet one evening each week during the course, students also attend two longer sessions. The first long session occurs at the beginning of the course and is an intensive workshop on organizing answers for that particular jurisdiction's exam questions. In the case of the Delaware exam, we begin with issue spotting and reading strategies, because each question on the Delaware exam is very long--it is not unusual for a question to be five pages in length and the examiners only allow 45 minutes for each question to be answered! After we develop an approach to the question, we practice outlining and organizing the answer. We teach a variation of the IRAC formula for answering questions, which we call IDRAC--an acronym for Issue, Decision, Rule, Analysis, Conclusion. While issue spotting must necessarily come first, we teach students to make their first sentence on any issue into a statement of their decision--the answer to the question asked by the examiner. We do this both so students write the answer in a form that the bar examiners appreciate, but also so that the students make sure that they have answered the question that has been asked. As a part of this long session, we give the students several questions to just read and outline under reasonable time constraints. We finish up the day with a practice exam.

The first long session for the Pennsylvania course is similar except that we focus less on reading techniques, because the questions are of a reasonable length, and more on the strategies for the questions, which tend to be multi-subject (i.e. the Pennsylvania exam usually begins with a question that covers tax, wills, and professional responsibility). As with the Delaware exam, the test-taker has 45 minutes to answer each question, but there is really no need to spot issues, since the examiners ask very specific questions. We also encourage students to begin their answer to the question with their decision, so that they make sure that they are not writing a general treatise on that particular subject, but are actually answering the specific question asked. As with the

©Teresa A. Wallace 3

Delaware course, we have students go through a series of practice questions so that they become comfortable with outlining the questions before they begin.

The second long session comes at the end of the course and is a six hour practice exam. In the Delaware course, the practice exam will replicate the first day of the bar examination- students will answer four Delaware ethics questions in the morning and four substantive essay questions in the afternoon, with an hour and a half break at lunch. The Pennsylvania course will conclude with a three hour multistate session in the morning and four state essay questions in the afternoon.

While it is to soon to tell if these programs will be successful in improving student performance on the bar exam, we have high hopes. So far, the students and tutors alike have been very excited by the program. We look forward to sharing our results with you next year at this time.

©Teresa A. Wallace 4

Thursday, 5/30:

5:30-6:30 p.m. Registration--Atrium, Law Building

5:30-6:00 p.m. Tutors' Meetings (in small group sections to determine grading and discussion leader schedule)--Moot Court Rm.

:30-8:00 p.m. Welcome, Orientation to Program, Time Management (TAW--Moot Court Room

8:10-9:00 p.m. Meet in small groups, introductions, complete time management calendars--Moot Court, Lecture Room, Brandywine Room (in Library)

Saturday, 6/1 --Room 643

9:00-11:45 a.m. Essay Writing Workshop: Overview of Essay Answer Format, Practice Exercises:

-Reading Questions

-Issue Spotting

-Outlining Answers

11:45-1:00 p.m. Lunch (with tutors, if possible)

1:00-3-00 p.m. Practice Exercises: Writing Analysis

3:15-4:45 p.m. Practice Exam (2 essay questions)

-Contracts

-UCC Sales

(Participants will self-grade answers on these two questions

against model answers.)

Tuesday, 6/4

6:00-6:50 p.m. Small Groups/ Review Saturday Exam Answers--Rooms 6421, 642, 643

7:00-9:00 p.m. Practice Exam--Room 643:

-1 /2 hour Multistate questions (17 questions)

-Contracts/Sales

-Torts

7:00-7:30 p.m. Tutors' Meeting (Graders for next week meet together; small group discussion leaders meet together)--Rooms 641, 642'

Tuesday, 6/11

6:00-6:50 p.m. Small Groups/ Exam Review--Rooms 641, 642, 643

7:00-7:45 p.m. Lecture: Stress Management--Don Brown, Esq.--Room 643

7:00-7:30 p.m. Tutors' Meetings--Rooms 641, 642

8:00-9:30 p.m. Practice Exam--Room 643:

-Partnership/Agency

-UCC Article 9

Tuesday, 6/18

6:00-6:50 p.m. Small Groups/Review Exams--Rooms 641, 642, 643

7:00-9:30 p.m. Practice Exam--Room 643:

-1 Hour Multistate (34 questions)

-DE Criminal Law

-Property

7:00-7:30 p.m. Tutors' Meetings--Room 641, 642

__________________________

^1. Please Note: Rooms 641 and 642 must be vacated each Tuesday evening by 8:10 p.m. If tutors need additional time, we will find another room in which they may meet.

Tuesday, 6/25

6:00-6:50 p.m. Small Groups/Review Exams--Rooms 641, 642, 643

7:00-9:15 p.m. Practice Exam--Room 643:

-Wills and Trusts

-Evidence

-Criminal Procedure

7:00-7:30 p.m. Tutors' Meetings--Rooms 641, 642

_______________________________________________________________________________

_______________________________________________________________________________

Tuesday, 7/9

6:00-6:50 p.m. Small Groups/Review Exams--Rooms 641, 642, 643

7:00-7:30 p.m. Lecture: Writing Skills--Room 643 (TAW)

7:00-7:30 p.m. Tutors' Meetings--Rooms 641, 642

7:45-9:45 p.m. Practice Exam--Room 643:

-1/2 hour Multistate

-Constitutional Law

-DE Civil Procedure

Tuesday, 7/16

6:00-6:50 p.m. Small Groups/Review Exams--Rooms 641, 642, 643

7:00-7:30 p.m. Lecture-Former Member of the Board of Bar Examiners--

Room 643

7:30-9:30 p.m. Practice Exam--Room 643:

-1/2 hr. Multistate Questions

-Corporations

-Equity/Chancery Court Procedure

8:00-8:30 p.m. Tutors' Meeting--Rooms 641, 642

Saturday, 7/20--Moot Court Room

9:00-noon Practice Ethics Exam (4 Questions)

Noon-1:30 p.m. Lunch

1:30-4:30 p.m. Practice Exam:

-Corporations

-Torts

-Property/Equity/Chancery Court Procedure

-DE Criminal Law

Tutors are the heart and soul of the supplemental bar review course. The tutor system is what distinguishes successful programs-like MLER from commercial bar review essay writing workshops or other programs. Tutors guide students to successful study and test-taking strategies, provide encouragement and moral support, and act as role models. Of course, students are ultimately responsible for their success or failure on the bar exam, but a good tutor can motivate students so that they are prepared for and ready to deal with the intellectual, physical, and psychological challenges presented by the bar exam.

Tutors have four areas of responsibility, outlined below:

1. Mentoring

Each tutor will be assigned to two or three students and will keep in contact with those students throughout the pre-exam period. Tutors will typically "check-in" with the students through weekly telephone calls to make sure students are keeping to their study schedules, dealing with stress appropriately, and taking care of themselves in preparation for the exam. Tutors also need to provide personal encouragement and positive reinforcement to students whenever possible.

Each tutor will also monitor the overall progress of their assigned students on the practice exams. Is the student consistently missing issues or essential analysis on the practice questions which indicates that they may not be effectively studying the substantive material? Does the student consistently do poorly on the miltistate questions when they are given? Have the exam graders noted consistent writing or organization problems? While the tutor responsible for grading a particular week's exams will provide comment on the exam answers for that week, the assigned tutor should regularly look at the records for their students to determine if there is a pattern of problems that need to be addressed.

Tutors also need to be available to students. Tutors should consider giving students a telephone number at which the tutor may be reached, along with guidelines for calling. ("Here's my home number--l can't take calls at work but I'd be happy to talk to you any evening between 8-10.")

Tutors should also be aware that students may face serious personal and employment problems while studying for the bar exam. Some may know that their job depends upon their passing the bar; others may have family pressures that are limiting their available time to study. Be prepared to listen and help the students think through solutions and coping strategies for these difficulties so that they can concentrate their energies on their preparation for the exam.

©Teresa A. Wallace 1

Don't be afraid to set limits--tutors do not have to talk to their assigned students every day for 30 minutes. Be available to listen, but be clear about excessive demands from the student.

Be attentive to interpersonal conflicts--if a tutor is assigned to a student with whom the tutor finds it difficult to achieve rapport, let the other small group tutors know--perhaps the students can be re-distributed among the group for a more comfortable personality "fit."

2. Small Groups

Each small group will consist of three tutors and their individually assigned students. The groups will meet for 50 minutes each week, usually from 6:00 to 6:50 p.m.

Each week, one tutor for the group will be assigned to grade all the student practice exams for that group for the next week. That tutor must complete the grading prior to the next week's session. The grading tutor will also be responsible for leading a group discussion the following week on general problems encountered with the questions asked, common group mistakes, etc.

One of the other two tutors will be assigned to lead the balance of the discussion for the small group session. Typically that discussion will focus on reviewing as a group other prior bar questions on that same subject--looking for common patterns in the way questions on that topic are phrased, developing strategies for particular subject matter questions, etc. Small group leaders may also want to comment on the lecture topics of the previous week, if appropriate. A group leader may wish to focus on common writing and grammatical errors graders have encountered in the essay answers. The small group leaders for the following week will meet together at the end of each session (while the students are taking the practice exam) and select topics/questions for discussion the next week.

Group leaders should also be open to questions from the students--don't be afraid to abandon the "lesson plan" if it seems that there are particular concerns troubling the students. It will not be surprising if, for example, students want to focus again on stress management or overall test taking strategies rather than more specific topics as the exam grows closer.

The third tutor in the group should be ready to participate in the group discussion. The third tutor may also want to observe the students while the session is ongoing--often, a change in a student's demeanor during a group discussion may not be obvious to the leader of the discussion, but may be indicative of a problem for that

©Teresa A. Wallace 2

student.

All tutors need to be sensitive to group dynamics during the small group sessions. while hopefully all students will feel comfortable raising questions in the group, some may be reluctant and may need to be drawn out or given an opportunity to speak to the tutors privately. Other students may dominant the discussion or let their individual problems or concerns overwhelm the group. Don't be afraid to tell a student that one of the tutors will talk to them outside the session if the group as whole is not responding or involved in that student's concerns. Try also to not let a student be overly negative--if someone has a bad attitude, tell them that someone will speak to them outside the group, so that the group as a whole will not have to cope with that student's attitude.

All tutors should be on time for the sessions and project a positive attitude-speak of the future to the students in terms of "when you pass the bar exam" not "if you pass the bar exam."

Try as much as possible to present a united front to the students; there may be problem students who are chronically late or do not do the practice exams-make sure you all speak with one voice regarding these students. Also, if possible, try to have similar policies about student contact--you want to avoid comparisons between the tutors if possible.

3. Exam Review

As noted above, each week, one of the tutors will be assigned to evaluate the practice exams. While the students are taking