MICHIGAN ESSAY WRITING WORKSHOP PROFESSOR MARILYN PRESTON UNIVERSITY OF TOLEDO COLLEGE OF LAW

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1 MICHIGAN ESSAY WRITING WORKSHOP PROFESSOR MARILYN PRESTON UNIVERSITY OF TOLEDO COLLEGE OF LAW CHAPTER 1: BREAKDOWN OF THE MICHIGAN BAR EXAM A. Day 1: Michigan Essay Day Students may chse t handwrite their answers fr the Michigan Essay Exam r type their answers n their laptp cmputer. Cnsists f 15 essays ttal n 21 pssible tpics. 1. AM Sessin: The Michigan Essay Exam cnsists f nine essays given all at ne time in the threehur AM Sessin 2. PM Sessin: The Michigan Essay Exam cnsists f the remaining six essays given all at ne time in the tw-hur PM Sessin. This cmes ut t 20 minutes per essay. Nte that if yu are handwriting the exam, yu must put three answers in each blue bk as instructed (three blue bks in AM and tw blue bks in PM). Each questin cvers ne r mre f the fllwing tpics: 3. Testable Areas n the Michigan Bar Exam Agency Criminal Law & Prcedure Partnerships Cmmercial Paper Dmestic Relatins Real & Persnal Prperty Cnflicts f Law Equity Sales Cnstitutinal Law Evidence Secured Transactins Cntracts Federal Practice & Prcedure Trts Crpratins Michigan Practice & Prcedure Wills & Trusts Creditr s Rights Michigan Rules f Prfessinal Cnduct Wrker s Cmpensatin Essay Grading: All essays are scred n a 0 10 pint scale. There is a pssible 150 raw pints n the essays. Yur raw essay ttal is then cnverted t yur equated essay scre by a specified calculatin.

2 B. Day 2: Multistate Bar Exam (MBE) Cnsists f 200 questins ttal, with 100 questins in the AM Sessin and 100 questins in the PM Sessin. Time is three hurs in AM, and three hurs in PM, which cmes ut t 1.8 minutes per MBE questin r 34 questins per hur. C. Scring the Michigan Bar Exam Students need a ttal f scaled scre f 135 (ut f 200) pints r better t pass the Michigan Bar Exam. Fr the Michigan Bar Exam, the Multistate Bar Exam (MBE) is wrth 50% f yur ttal scre, and the written exam is wrth 50% f yur ttal scre. Each essay questin has 10 pssible pints fr a ttal f 150 pssible pints n the essay prtin f the exam. There are 200 pssible pints n the Multistate (MBE) prtin f the exam. A cmbined scre f 135 r abve is necessary t pass the exam using the fllwing frmula: Cmbined scre = [equated essay scre + MBE scre] / 2 Where the equated essay scre is the scre resulting frm the linking f the raw essay scre t the MBE scale using linear equating adjusted fr the relative difficulty f the tw prtins f the bar exam as measured by the difference in the mean scres n the MBE scale fr each prtin f the exam averaged ver six exam administratins. CHAPTER 2: MICHIGAN ESSAY SAMPLE QUESTION AND OUTLINE Tw best friends, Parker and Daisy, were leaving the mvie theater after seeing the latest vampire mvie. The tw teenagers were standing in the lbby when they began arguing ver the ending f the mvie. Frustrated by the cnversatin, Daisy tk the lid ff her drink and threw it in Parker's face. As she stmped ff, Daisy threw her cup and remaining ice n the flr near the entrance f the mvie theater. Jhnny, a mvie theater emplyee, witnessed the whle scene and was laughing s hard he culd barely stand up. He finally managed t grab a wet flr sign and psitin it next t where Parker had been standing. Unfrtunately, he gt sidetracked when he was explaining the drama t his buddy and frgt t pick up Daisy's cup r put a wet flr sign near the entrance. A few minutes later, anther crazed vampire fan, Sara, came barreling thrugh the entrance. She slipped n the wet flr and fell hard n her elbw. As she struggled t get up, she nticed she was sitting in a sticky puddle f cla and melted ice. Jhnny came ver t help her and nticed that her arm lked brken. Sara later went t the hspital fr her brken arm. Other than having t wear a cast fr six weeks and missing the pening f her favrite mvie, Sara recvered fully and is back t nrmal. After the argument with Daisy, Parker was s upset at having cla spilled all ver her Team Werewlf t- shirt, that she ran ut the ppsite entrance dr and int the parking lt. Just then, Fred, wh was nly paying attentin t finding a parking spt clsest t the entrance, didn't see Parker until he hit her Themis Bar Review, LLC Michigan Essay Writing Wrkshp

3 with his car. Parker suffered frm a deep laceratin n her left frearm, which ultimately left an ugly scar. Utilizing Michigan law, discuss all claims that Parker and Sara culd raise frm the events as described abve. Explain yur answer. Michigan Bard f Law Examiners. Reprinted with permissin. A. SAMPLE OUTLINE Prir t preparing yur utline, read the call f the questin. After identifying the subject matter r imprtant parties, read thrugh the fact pattern twice. Thrugh the first reading, yu shuld fcus n the big picture issues. Once yu identify the majr issues, make nte f any applicable rule statements. When yu read thrugh the fact pattern the secnd time, identify key facts applicable t thse rules. After cmpleting these initial steps, yu shuld begin yur utline. The utline belw is a sample f hw t prepare t write a full answer t the Michigan Essay Wrkshp Questin. This utline cntains the three key elements: (1) Legal Claims r Issues (frmatted as headings), (2) Rules, and (3) Key facts. Since an utline is merely a preparatry tl fr the writer, the rules and facts are written in shrthand and mre infrmal language than the writer uses t write the full sample answer. The labels in parenthesis are intended as guidance t Themis students and wuld nt appear in an examinee s utline n exam day. 1. Parker v. Daisy Battery (Rule) A battery is an intentinal harmful r ffensive cntact with anther persn caused by the defendant s intentinal act, r knwing, with substantial certainty, that such cntact wuld result. (Facts) Daisy intentinally takes lid ff her drink and thrws it in Parker s face. Parker upset that drink spilled ver her Team Werewlf t-shirt. (Likely utcme) There is a battery. 2. Sara v. Mvie Theater Premises Liability (General Rule) A prima facie case f negligence requires a party t establish (1) a duty, (2) breach f that duty, (3) prximate cause, and (4) damages. (Specific Rule) A premises pssessr wes a duty t an invitee t exercise reasnable care t prtect the invitee frm an unreasnable risk f harm caused by a dangerus cnditin n the land. (Exceptin r defense t rule) Hwever, if the danger is pen and bvius s that a reasnable persn wuld have discvered it upn casual inspectin, the premises wner des nt have a duty t prtect an invitee unless special aspects f the cnditin make even an pen and bvius risk unreasnably dangerus Themis Bar Review, LLC Michigan Essay Writing Wrkshp

4 (Vicarius liability rule) In additin, the business wner can be held vicariusly liable fr the negligence f an emplyee if it was cmmitted while the emplyee was acting within the scpe f his emplyment. (Facts shwing pen and bvius danger) Sara (invitee) barrels thrugh entrance and slips n wet flr caused by spilled drink and Jhnny (Mvie Theater s emplyee) knws f cnditin; but nly few minutes elapsed; Was danger pen and bvius r hidden t average persn? Was Sara paying attentin? Any special aspects? Hw many paths f entrance and exit t Mvie Theater? (Likely utcme) Wet flr is pen and bvius danger, and if n special aspects Mvie Theater nt liable. 3. Parker v. Fred N-Fault (General Rule) Under Michigan s N-Fault law, an peratr f a mtr vehicle is liable fr negligent peratin f a mtr vehicle. (Statutry Limits) Hwever, the injured party can nly recver nn-ecnmic damages if she suffered death, serius impairment f a bdy functin, r permanent serius disfigurement. (Facts shwing permanent serius disfigurement element at issue) Was scar readily nticeable r hardly discernable? There was a deep laceratin n Parker s frearm, leaving an ugly scar. Frearm is visible bdily area. (Likely utcme) Scar was a permanent serius disfigurement. CHAPTER 3: MICHIGAN ESSAY SAMPLE ANSWER A. Writing Methd Checklist 1. Issue statement Did yu identify the crrect issues? Did yu chse an apprpriate rganizatin scheme? (e.g. Claims/Rules; Parties, etc.) Did yu analyze each claim/rule/party cmpletely? Did yu use simple and bjective language fr yur tpic sentence? 2. Rule Did yu crrectly identify and state the applicable rule f law? If applicable, did yu break the rule dwn int its requisite elements and define each ne? If applicable, did yu discuss any exceptins r defenses t the applicable rule f law? 3. Analysis Did yu use clear transitinal language t begin yur analysis? (e.g. Here r In this case ) If applicable, did yu match up relevant facts with each element f the rule? Themis Bar Review, LLC Michigan Essay Writing Wrkshp

5 4. Cnclusin Did yu end with a clear and strng legal cnclusin? Parker v. Daisy Battery The issue is whether Parker culd sue Daisy fr battery fr thrwing a drink in her face. A battery is a harmful r ffensive cntact caused by the defendant s intentinal act, with the plaintiff s persn, r knwing with substantial certainty that such cntact wuld result. In this case, the facts indicate that Daisy tk the lid ff her drink and intentinally threw it in Parker s face due t a disagreement. Daisy knew with substantial certainty that her drink wuld cme int cntact with Parker. Accrdingly, Parker culd sue Daisy fr battery. Sara v. Mvie Theater Premises Liability The issue is whether Sara culd sue the mvie theater fr negligence fr failure t prtect her frm an unreasnable risk f harm caused by a dangerus cnditin n the premises. Negligence is the cmmissin f an act r the failure t act that falls belw the minimum degree f rdinary care impsed by the law t prtect thers against unreasnable risk f harm. A prima facie case f negligence requires a party t establish (1) a duty, (2) breach f that duty, (3) prximate cause, and (4) damages. In general, a premises pssessr wes a duty t an invitee t exercise reasnable care t prtect the invitee frm an unreasnable risk f harm caused by a dangerus cnditin n the land. Hwever, the duty des nt encmpass warning abut r remving pen and bvius dangers, unless the premises wner shuld anticipate that special aspects f the cnditin make it unreasnably dangerus. A hazardus cnditin is pen and bvius if an average persn with rdinary intelligence wuld have discvered the danger and risk upn casual inspectin. In this case, the mvie theater wed a duty t use reasnable care t prtect Sara (an invitee) frm unreasnable risk f harm caused by a dangerus cnditin, like a slippery flr. Hwever, if the wet flr was pen and bvius, the mvie theater had n duty unless there were special aspects that made even an pen and bvius risk unreasnably dangerus. The mvie theater can be held vicariusly liable fr its emplyee s failure t put a wet flr sign near the entrance since it was cmmitted within the scpe f his emplyment prvided there is negligence. Althugh its emplyee, Jhnny, knew f the spilled drink, the mvie theater culd argue that it acted reasnably because nly a few minutes had lapsed frm when Daisy spilled her drink and when Sara slipped. Further, the mvie theater shuld argue that the cnditin was pen and bvius because an average persn wuld have seen the cntents f the drink if upn a casual inspectin f the premises (rather than t barrel thrugh the entrance as Sara had). Finally, the mvie theater culd further argue that there were n special aspects t the cnditin that made it unreasnably dangerus. Hwever, in respnse, Sara culd argue that the danger was nt pen and bvius because she herself did nt see the danger. In additin, Sara culd argue that the mvie theater shuld have anticipated the special aspect that a spilled drink cntains ice, which can make a flr slippery in a shrt amunt f Themis Bar Review, LLC Michigan Essay Writing Wrkshp

6 time. Accrdingly, Sara culd sue the mvie theater fr negligence, but she wuld need t establish that the mvie theater breached its duty by failing t remve the danger. Parker v. Fred N-Fault The issue is whether Parker can recver frm Fred fr negligent peratin f a mtr vehicle. Under Michigan law, the peratr f a mtr vehicle is liable fr an injury caused by the negligent peratin f a mtr vehicle. Michigan has adpted the N-Fault Act, which wuld allw Parker t recver nly nnecnmic damages if she suffered death, serius impairment f a bdy functin, r permanent serius disfigurement. Here, Parker s claim wuld clearly fall under the N-Fault Act because Fred was nt paying attentin t the radway when he hit Parker with his car. In this case, Parker suffered frm a deep laceratin n her left frearm, which left an ugly scar. The facts indicate that Parker did nt suffer frm a serius impairment f a bdily functin. Hwever, she culd argue that an ugly scar qualifies as a permanent serius disfigurement, since it is n an area f the bdy that is usually visible. Thus, Parker culd recver in an actin against Fred. CHAPTER 4: TOP TIPS FOR SUCCESS A. Preparatin 1. Knw What Tpics are Likely t be n the Exam. Certain tpics may be tested mre than thers. Histrically, the Michigan Bard f Bar Examiners generally likes t test n areas that have a Michigan-specific rule. In recent years, ne r mre f the fllwing tpics have been tested n the Michigan bar exam: Michigan evidentiary issues, trts, including Michigan s n-fault rules, Michigan real prperty laws, including water rights, marriage and dmestic relatins issues, wrker s cmpensatin, wills and trusts, Michigan Rules f Prfessinal Cnduct, cntracts, creditr s rights, sales, Michigan and federal practice and prcedure, criminal law and prcedure, crpratins, and cnstitutinal law. 2. Knw yur Strengths and Weaknesses. There may be subjects that yu will think are impssible t master. Remember, yu d nt need t be an expert n every area f law tested. D as much as yu can t memrize the rules f law gverning the tpics that are difficult fr yu. 3. Study Smart and be an Active Learner. Take cntrl and be an active participant in yur learning. Studies have shwn that yu learn and retain mre infrmatin when yu are an active learner. Active learning, as ppsed t passive learning, increases yur understanding f the area yu are studying and Themis Bar Review, LLC Michigan Essay Writing Wrkshp

7 will help t stre the infrmatin in yur lng-term memry mre quickly. Review carefully the questins yu keep getting wrng, and practice what yu learn t reinfrce the cncepts. 4. Fcused and Cnsistent Pace Wins the Race. Studying fr the bar exam is a marathn, nt a sprint. It is an endurance test. In ther wrds, yu shuld start early and maintain a cnsistent pace in rder t finish strng. Cnsider the bar like a jb and keep t a regular schedule fr studying. Thse f yu wh are serius abut passing the bar exam will want t d as much as early as pssible. Yu need t be diligent, but yu need t pace yurself. Yu dn t want t peak t early, and get burnt ut, r start t late, and get verwhelmed. By the time the exam cmes, yu want t be well-prepared, cnfident, and ready t g. 5. Attitude is Key. Maintain perspective, take care f yur mental and physical well-being, and surrund yurself with a supprt netwrk. There will be times when yu wn t feel like studying r lse yur cnfidence. Dn t get discuraged. Learn ways t manage stress. Eat right, exercise, and get enugh sleep. If yu dn t have a gd day, give yurself a break and cme back the next day, keeping in mind yur ultimate gal t becme a licensed attrney. B. Exam Day 6. Read the call f the questin first. Pay careful attentin t the call f the questin because it will help yu understand which legal rules and material facts must be addressed in yur answer. Reading the call f the questin will save yu time and fcus yu n the key issue that yu are being asked t answer. 7. IRAC and rganize yur answer t make it easy t read. Use IRAC t rganize yur answer arund rules and/r elements and shw the grader hw yu apply the facts t thse rules in arriving at a well-reasned cnclusin. An answer that makes n reference t the facts f the case is wrthless and a cnclusin that des nt reference the cntrlling legal principle is fatally deficient. Make yur answer easy t read by using headings and write as neatly as pssible. Als, use shrt simple sentences, paragraphs, and transitinal phrases, such as here, and in this case. A happy grader is a generus grader. 8. Watch yur time. Yu are respnsible fr time management. Allcate yur time prperly. When the time alltted fr ne questin expires, yu must mve n Themis Bar Review, LLC Michigan Essay Writing Wrkshp

8 9. Remember that yu are prepared at least, if nt mre, than the rest f the examinees in the rm. Yu are nt alne. Every examinee is ging t have a mment when he r she des nt feel prepared. If yu get smething yu dn t knw, d the best t write ut a rule f law, play with the facts as best yu can, and mve n. Dn t panic! Try t sund like a lawyer, even if yu are unsure f the subject matter. Remember, a passing scre is far frm perfect. 10. Practice, practice, practice. Practice is the key t success. The mre yu practice using Themis strategies, the better yu will d. A typical mistake mst exam takers make is that they dn t spend enugh time practicing the skills they will need fr the test. Yu will find that by ding practice essays and practice questins, that yu will learn the cncepts mre thrughly and mre efficiently. Prepare yurself fr exam day by writing essay questins r taking MBE questins under timed, exam-like cnditins. Finally, remember that passing the bar exam takes preparatin and attitude. There are peple smarter than yu wh have failed the bar and there are peple wh are less intelligent than yu wh have passed. All yur years f hard wrk and diligently fllwing the strategies and preparatin tls discussed in this wrkshp will have thrughly prepared yu fr the bar exam. Yu have what it takes! [END OF HANDOUT] Themis Bar Review, LLC Michigan Essay Writing Wrkshp

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