Some more thoughts about bar exam question 5

I thought I would give you a little insight into my thought process in answering question 5. It a good lesson I think in how to answer a law school question and how practicing law really works.

I spent about 40 minutes I think doing the answer I uploaded, maybe a little longer. I changed my mind a bunch of times about the analysis, taking arguments out completely and adding new ones that kept coming to me, going back and forth between the various parts. Even discussing Betty made me think of arguments for or against Arnold so I went back and made changes. I always, always, review. review, review. Refine, refine, over and over.

I uploaded it and went for a walk. During my walk I thought about my answer. It occurred to me that I should have been more clear about the fraud analysis. The false statement was that Arnold told Betty he thought the patent was worth a $100,000. If he really thought that, it’s not a false statement. Plus a belief in something may not even be a statement at all. So the issue really was the failure to disclose the previous attempts to sell the patent. Failure to disclose is not a “false statement” and is fraud only if there is a duty to disclose. Until they were partners I’m not sure there was a duty to disclose. That’s what made me think of Rule 10b5. That has a duty to disclose which I think clearly applies.

The point of this is this is how it works in the lawyer world. You think about something, reach a conclusion, think some more, massage your analysis. There are rarely clear answers to anything. Good lawyers write want they want to tell the judge or the client, then set it aside and look at it again tomorrow. It’s so much more clear the next day.

The second point in this post is when I later reviewed the answer I uploaded I quickly found a typo. I put in the answer that a partnership is when “one or more persons” agree to operate a business. It’s obviously two or more. It’s a stupid mistake and I kick myself. If I had read that in one of your answers, I would have wondered if you knew what the rule was. I likely would have pointed out that it can’t be that one person can be a partnership. Typos happen but it is sooo important they be limited.

The point of my second point is that it is the rare student, from what I can see, that reviews his/her answer at all. That is such a big mistake! What you say in your answer matters. I only know what I am reading. The bar exam reader spends about 3 minutes per exam before giving it a grade. We are trying to figure out how well you know the subject matter by reading your words.

My third point is that when I thought about the answer to part 2 – Betty, I wondered what I would say. The answer is really the same. So I thought about what made the Betty answer different than the Arnold answer which I spent so much time on. Many students these days would have copied and pasted the entire answer re Arnold into the answer re Betty. That is such a bad idea! If Betty were sitting there in your office, you would not just literally repeat what you just told Arnold. You would say, “well Betty, your position is a little different.”

Oh well, the Kings game is about to start. I have to reread this before I upload it. JH

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