AI vs Human Bar Exam Grading

COMMUNITY PROPERTY (CP) AND SEPARATE PROPERTY (SP) INTRODUCTION

California is a community property state. Any property, items, earnings, or incomes accumulated during marriage until before death or divorce or permanent separation is considered as a community property, with some exceptions. Any gift or devise that is inherited or gifted to an individual during the valid marriage are exempt from this rule, and considered SP. Additionally, anything that was gained before the marriage is also considered as SP. In order to decide the characterization of a property, court look at 1. source 2. action 3. presumption of any statutory rules. This is to decide how the property was transferred to the individual or came into their possession and whether or not along the way anything has caused to change the characterization of such property.

VALID MARRIAGE IN CALIFORNIA
In order to be considered under the CP rules, couples must be legally married and domiciled in California. Here, H and W were married in 2012. It is also stated that they got married in California which is a CP state. Thus, there is a valid marriage in CA.

ECONOMIC MARITAL COMMUNITY
Divorce or permanent separation as well as death, mark the end of economic marital community. And any property that belongs to the CP, will be shared in half between the couple. Here, W and H marriage ended because W decided to physically and permanently become separated from H. W told H that their marriage was over and she did not return home and stopped sending money to H like she used to do prior. W actions indicate that she is not intending to continue her marriage and she has decided to physically and permanently
Thus, W and H ended their EMC.

1. The house?
   

THE SOURCE
To decide whether the house is a CP or SP, the court first looks at the source of a property to decide how it came about. Under CP rules, any gift given to an individual during marriage is considered to be a SP. Here, the house was gifted to W from W's aunt, without any mortgage or any liabilities/encumbrances on it. W's aunt owned the house free and clear. The house was solely gifted to W with no mentions of H. Thus, the source of the house is SP. Correct identification of the house as SP due to it being a gift to Wendy.

THE ACTION
The action will look at the intentions or activity that resulted in any form of change to the property. Here, Wendy added H to the title of the document and they started living in the house. Because the action taken by W and H to include H's name on the title, it can be said that W had the intention of changing the SP to CP. Now W and H both share the title of the house and they both live in it together. W and H's action as well as W's intention is enough to decide that the house's character changed. Thus, the action is CP. Incorrect analysis. Adding Henry to the title may create a presumption of a gift to the community, but it does not automatically change the character of the property to CP. The presumption can be rebutted by showing no intent to gift.

PRESUMPTION
After 1985, Transmutation requires a written acknowledgment from parties, especially the one who may have to carry a burden of any loss of value to agree with the change of characterization. The changes from CP to SP or SP to CP need to have parties signed document agreeing with such change. Transmutation is the presumption statutory rule that applies here. Here, W and H simply changed the title of their house and started to live in it. There is no fact indicating that there was an agreement signed between the parties, especially for W. W did not sign or write down any form of acknowledgment agreeing with the change of the characterization in order to comply with the transmutation rule. Thus, the presumption was not followed. In conclusion, the house is W's SP. Correct conclusion that the house remains Wendy's SP due to lack of transmutation.

2. The bank loan?
   THE SOURCE
   Any liabilities or loans that were acquired for the use and enjoyment during marriage is considered to be CP. That means, liabilities will be shared equally between the married couple if it received during the marriage. Here, the loan was sourced from H's need of a new garage. H decided to open a new auto repair garage and applied for a loan for that specific reason. This garage will be owned by H and he will be able to continue his work in it. However, the bank approved the loan using the house as collateral. Thus, the source is CP. Incorrect analysis. The loan was obtained through forgery, which means Wendy may not be liable for it.
   
   THE FIDUCIARY DUTY
   Married couples are in a fiduciary relation with one another, that means they have to treat the community property with good intention and duty of care and loyalty. Violating a fiduciary duty could lead to higher remedies against the violating party. Here, H forged W's signature and without letting her know used the house as collateral to obtain a loan. Forging a signature and not sharing such information with W is an indication that he lacked duty of care and loyalty. Thus, fiduciary duty is violated. Correct identification of fiduciary duty violation.
   
   THE ACTION
   Here, H forged W's signature with the bank and acted with the intention that the loan should be under the name of both of them. Although H used the house as collateral for securing the loan, by not letting W know that H is using the house to secure the mortgage and forging W's signature, H acted in a way that a CP must be assumed as a SP. There is no fact indicating that W was aware or had any intention in changing the characterization of the CP in any way. Thus, the action is SP. Incorrect analysis. The loan was obtained through forgery, which means it is not valid against Wendy.
   
   PRESUMPTION
   Here, H did not ask W to sign an agreement acknowledging the change to the CP. Therefore, although the action of H indicated SP, but because of the lack of transmutation the character of the CP did not change.
   Thus, there is no transmutation. In conclusion, the loan is CP. Incorrect conclusion. The loan is not CP due to the forgery; Wendy is not liable for it.
   
   
3. The auto repair garage?
   THE SOURCE
   Here, any income made from the business is considered to be CP because the repair garage was established during W and H marriage and all the money or profit earned during the marriage from the garage belong to CP. Thus, the source is CP. Correct identification of the garage as CP due to it being acquired during the marriage.
   
   THE ACTION
   Pereira Method
   If a business becomes successful due to the skills and knowledge and expertise of the individual, the CP must be calculated based on the Pereira method. Here, H worked as an auto mechanic and finally opened his own. This shows that H was talented and had the reasonable skills to open a new garage. Thus, Pereira method applies. Correct application of the Pereira method.
   
   THE PRESUMPTION
   Here, the CP's characterization did not change. Therefore, the garage stayed as CP without any transmutation. Thus, the garage is CP. Correct conclusion that the garage remains CP.
   
   
4. Wendy’s investments?
   Here, because the investment occurred after the permanent separation of W from H the source of the investments are Incomplete analysis. Wendy's earnings after separation are her separate property, but she must trace her investments to her separate property earnings. If community funds were used, the investments may be partially community property.

1. Ethical violation has Alison committed

a. request from season ticket to D's game?

CONTINGENCY AGREEMENT

contingency agreements are agreements in which the lawyer's fee are dependent on the outcome of the case. That is depending on the outcome of the case, a lawyer may claim percentage of the recovery from the suit. Family and criminal claims are not allowed be based on a contingency agreements.

here, D is seeking A's service for a criminal matter because D was charged with assaulting Caren at a restaurant. A is asking D to gift her the season ticket if she prevails in the criminal case. There is no indication that the gift is a legal fee. the tickets are referred to as a gift. Thus, this is not an contingency agreement.

GIFT

Under ABA and California rule, receiving a substantially valuable gifts from a client is prohibited.

here, A has asked for a substantially valuable gift because a season ticked from a professional athlete. Tickets to watch professional games could be costly especially if they are season ticket.

Thus, the season ticket is a gift

In conclusion, A has violated an ethical rule by asking for season tickets to D's game.

b. payment to W?

PAYMENT FOR LAY WITNESS TESTIMONY

under the ABA and California rule, paying a witness is prohibited if they are not providing their expert opinion based on their skills and professional knowledge. The rules prohibit lawyer to pay a lay witness who is testifying from their own personal knowledge. Lawyer may only reimburse lay witness for the reasonable expenses caused in order to testify.

here, W is a waiter at the restaurant where the assault occurred. she was waiting tables and saw the argument between D and C and she did not see the altercation. W is not using the skill or expertise of being waiter to testify. W is only using their own personal knowledge to testify regarding her experience. Here, A has agreed to pay an hourly fee plus the tips at the restaurant for the testifying and for an entire day of preparation. If it is established that W missed wok on the day where he had to testify and therefore did not earn any money from because of that, W is entitled to be reimbursed for that. However, A is only paying W for agreeing not to meet with the prosecutor, and not only because W will be testifying and attending as a witness. A is not paying W to reimburse him for missing work on traveling to the court, but also for agreeing to not meet with the opposing party.

Thus, payment to the lay witness is violated.

DUTY OF FAIRNESS TO THE OPPOSING PARTY

A lawyer has a duty of loyalty to the opposing party which prohibit a lawyer from obstructing access of the opposing party to evidence or failure to notify them of any adverse legal or factual points in the case of lack of acknowledgment from the opposing party.

here, A has obstruct the opposing party to an evidence because A has made W to not meet with the prosecutor before trial. By influencing W to not meet with the prosecutor, A has not allowed the opposing party to have access to an important material facts.

Thus, A has violated duty of fairness to the opposing party.

c. payment to E?

PAYING EXPERT WITNESS

lawyers are allowed to pay expert witness for testifying using their skills and experiences as long as the amount if reasonable and fair and it is for using their expertise and knowledge in the subject matter.

Here, E is testifying as an expert witness because E is an experienced video technician who can testify on the quality of the video. A is allowed to pay the expert witness of the case a fee.

Thus, paying expert witness did not violate the rules.

d. presentation of E's expert opinion?

DUTY OF CANDOR

Under ABA and California rule, a lawyer shall not make any claim knowing that it is wrong, or fail to correct any false evidence or testimony or make any false statement.

Here, A knows that W's testimony is not based on true statement of facts and A knows that the testimony that A is about to make is false and there is not truth to it. Moreover, A has convinced E to change her mind and testify that there was no assault happening at the resturant. A knows that E, the expert witness is about to make false statement and has failed to take any actions to correct it.

Thus, A has violated the duty of candor.

E. A's statement in closing argument?

MAKING FRIVOLOUS CLAIM

under the ABA and California rule, a lawyer is prohibited to bring a claim where there is no legal or factual basis to support the theory of the case.

Here, A knows that there is no factual basis to support the fact that D did not assault C, however, he decides to still based her defense on video and claim that D was not guilty. By arguing that the video showed that there is not assault, A has made untrue statement about factual basis of the defense.

Thus, making frivolous claim

DUTY OF LOYALTY

a lawyer must have a duty of loyalty to its client, and avoid any conflict of interest that is adverse to the client's position unless it violates any ethical rules.

here, A's duty of loyalty does not contain the fact that she has made untruthful statement during its closing statement since making false statement violates ethical rules.

Thus, duty of loyalty was not violated.

1)

1. Did the court properly deny D's motion to suppress the photograph?

6TH AMM

6th Amm of U.S. Constitution assures that any defendant has access to a legal counsel at all critical stages of a legal process after indictment.

Here, D must be allowed to have access to legal counsel during all critical stages of the legal process after the indictment.

CRITICAL STAGE

Here, the police showed the teller (T) photographs of six men each of whom were the same race, approximate age, and had blond hair and mustache like Dan (D). D was charged prior to the showing of the photographs to T because on January 15, 2023, he was charged and indicted. However, showing photographs or standing in ID lines are not considered as critical stages of the legal process.

Thus, showing of the photo was not a violation of the 6th Amm.

UNREASONABLY SUGGESTIVE

During the showing of photographs or any ID lines, the materials must not be reasonably suggestive. If there are unreasonably suggestive materials, the testimony must be excluded and suppressed.

Here, it is indicated in the fact that all the six men that were shown to T were all looking the same from race, age, and facial features. There is no indication that any of the photos made D's face stand out in any way.

Thus, the photos were not suggestive.

In conclusion, the court properly denied D's motion to suppress the photograph.

2. Assuming all reasonable objections were timely made, did the court properly admit under the California Evidence Code:

RELEVANCE

An evidence would be admitted that is logically or legally relevant.

LEGAL RELEVANCE

An evidence would be admitted if it is not prejudicial, confuses the jury, wastes time, or complicates the issues.

LOGICAL RELEVANCE

An evidence would be admitted if it logically makes a fact more or less probable.

a. T's testimony about her statement to the defense investigator?

RELEVANCE

T's testimony regarding the color of D's mustache and hair is logically and legally relevant because it will make a fact of D being the robber more probable as T is identifying the robber who robbed the bank. Also, T's testimony is not prejudicial because it does not outweigh its value.

Thus, T's testimony is relevant.

COMPETENT AND PERSONAL KNOWLEDGE

A witness must be competent, that is he/she will understand the fact that they must say the truth and they can tell the difference between the true statement and a false one. Additionally, the witness must have personal first-hand knowledge of the fact.

Here, there is no indication that T does not understand the difference between a true and false statement, and because she was at the bank when the robbery occurred, she had personal knowledge of the robbery and can testify to that matter.

Thus, T is competent and has personal knowledge.

HEARSAY

Hearsay is an out-of-court statement given for the fact asserted. A hearsay is not admissible.

Here, T admitting that she made an out-of-court statement to an investigator and the investigator is using that for its meaning asserted.

Thus, T's statement to the investigator was hearsay.

NON HEARSAY

PREVIOUS INCONSISTENT STATEMENT

A non-hearsay statement is admissible if it contains a statement that was given outside of the court which is inconsistent with her statement while she is testifying on the stand, only as to impeach her character in order to show that the witness testimony is unreliable and there is a chance that it will be wrong.

The defendant attorney can use T's testimony to impeach her character because T has mentioned previously that the robber has black hair and no mustache. She admits that she made the statement but it was not correct. And she is testifying now that the robber had blond hair with a mustache. The difference between what she has admitted to the investigator and what she was testifying to currently shows an inconsistency. And it could only be admissible to impeach the witness.

Thus, the statement is a previous inconsistent statement.

b. the photograph with T's signature?

RELEVANCE

BEST EVIDENCE RULE

AUTHENTICATION

c. the ATM record?

BEST EVIDENCE RULE

AUTHENTICATION

1)

1. Is there an enforceable contract between B and S?

GOVERNING LAW

Article 2 of UCC governs the sale of good contract. Common law, governs the service contract.

Here, B and S wanted to create a contractual relationship based on a sale of goods as B requested a delivery of maple topping.

Thus, UCC applies. Correct identification of the governing law.

VALID CONTRACT

A contract is only valid if there is offer, acceptance, consideration and there should be not offenses to the formation.

offer

Offer is defined as an assertion to contract.

Here, Sam asserted to form a contract with B because he offered him to supply the maple topping.

Thus, there was an offer. Correct identification and explanation of the offer.

acceptance

Acceptance is defended as meeting of the mind to assert the contract.

Here, B accepted the offer of S by agreeing to paying 20$ per gallon for the shipment of 500 gallons.

Thus, there is an acceptance. Correct identification and explanation of the acceptance.

consideration

Consideration is for the exchange of something of a legal value.

Here, B agreed to buy 500 gallons of the maple topping at the price of 20$ per gallon.

Thus, there is a consideration. Correct identification and explanation of the consideration.

DEFENSES TO THE CONTRACT

statute of fraud

The statute of fraud is a defense to a contract where the contract to exchange the good are valued at more than $500 and the contract is not in written agreement. Here, the contract between S and B are not in writing because they orally agreed and there is no indication in the fact that they wrote down the agreement anywhere. S also mentioned that that he did not want to ship anything without anything in writing and B assured Sam, that he will send him a written confirmation tomorrow. The analysis here is incomplete. The Statute of Frauds requires a written contract for goods priced at $500 or more, but there are exceptions such as the merchant's confirmation rule, which should be discussed.

written acknowledgment

In the case of a merchant selling its merch, a written acknowledgement of an orally agreed contract could meet the requirement of SOF.

Here, although B were supposed to send S a written acknowledgement if their agreement the day after they orally agreed, he failed to do so until three weeks after. B was busy negotiating a conference center catering contract and forgot ti send S the confirmation. However, after three weeks, S finally received the confirmation.

Thus, the requirements for SOF was met. The analysis is incorrect. The written acknowledgment by Brian was sent three weeks later and does not satisfy the Statute of Frauds requirement. Additionally, Sam's acknowledgment should be analyzed as it might satisfy the Statute of Frauds.

mutual mistake

A mutual mistake to the material facts of the contract will make a contract void and it will be a defense to the formation of the contract. The quantity of the subject of the contract is one of the material facts.

Here, both S and B did not notice the change in the gallonage as it was supposed to be 500 instead of 5000 gallons of maple topping. Both parties were mistaken in understanding that the amount of the subject matter of the contract which is the maple topping is different than what they discussed orally at first.

Thus, there was a mutual mistake. Correct identification and explanation of mutual mistake.

SELLER'S FIRM OFFER

A seller's firm offer, as an offer that is open for the buyer to accept or reject, that mean the offer is open. If there is no indication is what the date is for the formation of the contract, three months would be a reasonable deadline.

Here, B delayed in sending a confirmation acknowledgment as to their oral agreement. S believed that such delay m The analysis is incomplete and cut off. The concept of a seller's firm offer under UCC should be fully explained and applied to the facts.

NON-CONFORMING

In a contract the seller is required to ship the items as it is discussed in the contract with no change the quantity or the type of the agreed subject. If the items are different than what was agreed upon, the buyer can either reject all, accept all, or reject some and accept some. In the case that there is no assurance given to fix the non confirming good and the time of the performance has arroved, the non breaching party may sue right away.

Here, S shipped 500 gallons of maple topping to Brian as it was promised in the contract, however B refused the delivery of 500 gallons because he was already in default of the catering contract due to the lack of maple topping.

Thus, there was a non confirming good The analysis is incorrect. The shipment of 500 gallons was in accordance with the original oral agreement, not non-conforming. The issue is whether the modification to 5,000 gallons was valid.

In conclusion, there was no enforceable contract between B ad S. The conclusion is incorrect. There was an enforceable contract for 500 gallons, but the modification to 5,000 gallons needs further analysis.

2. Is B likely to prevail on his claim against S? What damages is he likely to recover?

EXPECTATIONAL DAMAGES

Expectational damages, are foreseeable causal and reasonable damages that put the non breaching party where they would have been have the contract was performed.

CONSEQUENTIAL DAMAGES

Consequential damages are indirect but foreseeable and certain damages.

Here, B may argue that the fact that he lost 100,000 is a loss profit because of the delay that happened to the delivery and formation of the contract was foreseeable and certain. S knew from the begining that B was an owner of the a commercial bakery therefore he must have some deals to take care of Correct identification and explanation of consequential damages.

MITIGATION

A none breaching party will onyl recovere if they tried to mitigate their harms and damages.

Here there is no indication that B tried to mitigate its damages by either sending the confirmation agreement sooner or trying to get the mapple topping from another provide.

Thus, there was not mitigation. Correct identification and explanation of the duty to mitigate damages.

In conclusion, B will not recover. Correct conclusion based on the analysis provided.