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SmartBarPrep Frequency Analysis 2

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The SmartBarPrep Essay Frequency Analysis (hereinafter “Study Guide”) is designed to assist you in studying for the Uniform Bar Exam/Multistate Essay Exam (UBE/MEE) essays. It was NOT designed to be a prediction of what will be asked on the upcoming UBE/MEE or any future examinations. Although many of the same rules have been repeated on past UBE/MEE essay questions, there is NO GUARANTEE that any future UBE/MEE exam will test the same or similar rules that have appeared on past exams. Bates Bar Review Inc. d/b/a SmartBarPrep makes NO WARRANTIES or GUARANTEES as to what legal rules the National Conference of Bar Examiner’s will test on the upcoming UBE/MEE or any future examinations.

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The SmartBarPrep Essay Prep Outline contains model rule statements to ALL 636 RULES previously tested on the UBE/MEE essays in the last 44 examinations…AND reveals how often each rule has appeared in the past so you can target your studying to focus on the highest frequency rules. That is an extraordinary 22 YEARS of exams and 328 ESSAY QUESTIONS analyzed for your advantage.

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Frequency Analysis – Subjects Appearing on Past UBE/MEE Essays ...........................1

Frequency Analysis – Rules Appearing on Past UBE/MEE Essays .................................3

SmartBarPrep Essay Prep Outline Sample .................................................................................27

Table of Contents



FREQUENCY ANALYSISSubjects Appearing on Past

UBE/MEE Essays

Number of Times Subject Appeared on Past Exams

Subject Number of Times Subject Appeared on Past Exams

Percentage (%) Subject Appeared on

Past Exams

Agency 40 out of 44 exams 91%

Partnerships 31 out of 44 exams 70%

Corporations & LLC's 31 out of 44 exams 70%

Civil Procedure 44 out of 44 exams 100%

Conflict of Laws 19 out of 44 exams 43%

Constitutional Law* 8 out of 19 exams 42%

Contracts* 16 out of 19 exams 84%

Criminal Law & Procedure* 10 out of 19 exams 53%

Evidence* 10 out of 19 exams 53%

Family Law 39 out of 44 exams 89%

Real Property* 11 out of 19 exams 58%

Secured Transactions 34 out of 44 exams 77%

Torts* 10 out of 19 exams 53%

Trusts & Future Interests 31 out of 44 exams 70%

Wills & Estates 36 out of 44 exams 82%

* The six traditional MBE subjects were not tested on the Multistate Essay Exam (MEE) until July 2007.



Subject Number of Times Subject Appeared on Past Exams

Percentage (%) Subject Appeared on

Past Exams

Agency 40 out of 328 essays 12%

Partnerships 31 out of 328 essays 9%

Corporations & LLC's 31 out of 328 essays 9%

Civil Procedure 44 out of 328 essays 13%

Conflict of Laws 19 out of 328 essays 6%

Constitutional Law* 8 out of 153 essays 5%

Contracts* 16 out of 153 essays 10%

Criminal Law & Procedure* 10 out of 153 essays 7%

Evidence* 10 out of 153 essays 7%

Family Law 39 out of 328 essays 12%

Real Property* 11 out of 153 essays 7%

Secured Transactions 34 out of 328 essays 10%

Torts* 10 out of 153 essays 7%

Trusts & Future Interests 31 out of 328 essays 9%

Wills & Estates 36 out of 328 essays 11%

FREQUENCY ANALYSISSubjects Appearing on Past

UBE/MEE Essays

Number of Times Subject Appeared out of Total Number of Essay Questions

* The six traditional MBE subjects were not tested on the Multistate Essay Exam (MEE) until July 2007.



Subject Rule# of Times Rule

Appeared on Past Exams

% out of Total Exams

Agency Creation of Agency Relationship 4 9.1%

Agency Authority of Agent to Bind the Principal 12 27.3%

Agency Actual Express and Implied Authority 5 11.4%

Agency Apparent Authority 13 29.5%

Agency Inherent Authority (Inherent Agency Power) 2 4.5%

AgencyVicarious Liability of Employer for Acts of an

Employee5 11.4%

Agency Liability for Acts of Independent Contractors 3 6.8%

Agency Employee vs. Independent Contractor 3 6.8%

Agency Ratification of Contracts 1 2.3%

Agency Termination of Agency Relationship 3 6.8%

AgencyTermination of an Agency Contract with a

Specified Term1 2.3%

AgencyFiduciary Duties Owed by the Agent to the

Principal1 2.3%

Partnerships Formation of a General Partnership 6 13.6%

Partnerships Formation of a Limited Partnership (LP) 3 6.8%

Partnerships Formation of a Limited Liability Partnership (LLP) 2 4.5%

Partnerships Creditor vs. Partner 1 2.3%

FREQUENCY ANALYSISRules Appearing on Past

UBE/MEE Essays

Number of times Rules Appeared on Past Exams

Total Bar Examinations Analyzed 44

Total # of Essays 328

Total # of Rules Previously Tested 636



Partnerships Amending the Partnership Agreement 1 2.3%

Partnerships Authority to Bind the Partnership 11 25.0%

Partnerships Binding the Partnership After Dissolution 2 4.5%

Partnerships Use of Partnership Property 1 2.3%

PartnershipsLiability of a General Partner for Partnership

Obligations5 11.4%

PartnershipsLiability of a Limited Partner for Partnership

Obligations2 4.5%

Partnerships Liability for Partner Negligence 1 2.3%

Partnerships Liability of an LLP and Partners 2 4.5%

Partnerships Judgments Against the Partnership 2 4.5%

Partnerships Judgments Against a Partner 1 2.3%

Partnerships Rights of Partners in a Limited Partnership 2 4.5%

Partnerships Limited Partner’s Right to Inspect Records 2 4.5%

Partnerships Partnership Interest in Inventions 1 2.3%

Partnerships Remuneration 1 2.3%

Partnerships Assignment of Partnership Interests 3 6.8%

PartnershipsAssignment of Partnership Interests: Assignee

Liability2 4.5%

Partnerships Sharing of Profits and Losses 2 4.5%

Partnerships Duty of Care 3 6.8%

Partnerships Duty to Provide Full Information 1 2.3%

Partnerships Duty of Loyalty 6 13.6%

PartnershipsDuty of Loyalty: Unfair Transactions with the

Partnership1 2.3%

Partnerships Actions Against a Partner for Misconduct 1 2.3%

Partnerships Dissociation (Withdrawal of a Partner) 1 2.3%

Partnerships Dissolution: Events 8 18.2%

Partnerships Dissolution: Distribution of Partnership Assets 1 2.3%

Partnerships Dissolution: Liability of Partnership 1 2.3%

Corporations & LLC’s

Date of Corporate Existence 1 2.3%


Articles of Incorporation Requirements 1 2.3%


Amending the Articles of Incorporation 1 2.3%


Bylaws 3 6.8%




Amending the Bylaws 1 2.3%


Liability of Promoter for Pre-Incorporation Contracts

2 4.5%


Liability of Corporation for Pre-Incorporation Contracts

2 4.5%


Shareholder Liability & Piercing the Corporate Veil

5 11.4%


Types of Shares (Common and Preferred Shares) 1 2.3%


Outstanding Shares 1 2.3%


Authorized Shares 1 2.3%


Consideration in Exchange for Shares 1 2.3%


Shares Reacquired by a Corporation 1 2.3%


Preemptive Rights 1 2.3%


Options for the Purchase of Shares 1 2.3%


Dividends – Shareholder’s Right to Receive Dividends

2 4.5%


Restrictions on Share Transfers 1 2.3%


Charitable Donations by a Corporation 1 2.3%


Special Meetings of Shareholders 1 2.3%


Quorum Required for Shareholder Meetings 2 4.5%


Shareholder’s Right to Vote & Record Date 2 4.5%


Proxy Voting and Revocation of a Proxy 5 11.4%


Shareholder’s Right to Inspect Books and Records

1 2.3%


Shareholder Agreements 1 2.3%


Cumulative Voting 1 2.3%




Authority of Officers 1 2.3%


Removal of Officers 1 2.3%


Quorum Requirements for a Board of Directors Meeting

1 2.3%


Notice of Board of Directors Meetings 1 2.3%


Board Action by Written Consent 1 2.3%


Election & Removal of Directors 2 4.5%


Duty of Care & Business Judgment Rule 8 18.2%


Duty to Disclose Material Information 2 4.5%


Duty of Loyalty – General Rule 6 13.6%


Duty of Loyalty – Conflicting Interest Transactions

6 13.6%


Restricting or Eliminating Fiduciary Duties 2 4.5%


Derivative Suits 7 15.9%


Derivative Suits – Misleading Statements 1 2.3%


Direct Suits 5 11.4%


Mergers and Share Exchanges 1 2.3%


Short Form Mergers 1 2.3%


Obligations to Investors Regarding Mergers 1 2.3%


Sale of All or Substantially All of Corporate Assets

3 6.8%


Dissenter’s Appraisal Rights for Fundamental Changes

3 6.8%


Judicial Dissolution of Organizations 2 4.5%


Election to Purchase Shares in Lieu of Dissolution 1 2.3%




Dissociation from an LLC 1 2.3%


Articles of Organization/Certificates of Formation 1 2.3%


Operating Agreement 1 2.3%


Authority of Members and Managers of an LLC 1 2.3%


Manager Liability for Negligent Acts 1 2.3%

Civil Procedure Subject Matter Jurisdiction: Federal Question 10 22.7%

Civil ProcedureSubject Matter Jurisdiction: Diversity of

Citizenship15 34.1%

Civil Procedure Citizenship & Domicile 7 15.9%

Civil Procedure Supplemental Jurisdiction 8 18.2%

Civil Procedure Personal Jurisdiction: Requirements 7 15.9%

Civil Procedure Personal Jurisdiction: General Jurisdiction 3 6.8%

Civil Procedure Personal Jurisdiction: Specific Jurisdiction 5 11.4%

Civil ProcedurePersonal Jurisdiction: Unreasonable Burden on

Defendant1 2.3%

Civil Procedure Venue 8 18.2%

Civil Procedure Transfer of Venue 5 11.4%

Civil Procedure Removal 4 9.1%

Civil Procedure Service of Process and Notice 3 6.8%

Civil Procedure Service upon an Individual 1 2.3%

Civil Procedure Service upon a Corporation 1 2.3%

Civil Procedure Service upon a Foreign Defendant 1 2.3%

Civil Procedure Abstention Doctrines 2 4.5%

Civil Procedure Preliminary Injunction 3 6.8%

Civil Procedure Temporary Restraining Order (TRO) 3 6.8%

Civil Procedure Affirmative Defenses 2 4.5%

Civil Procedure Amendments to Pleadings 1 2.3%

Civil Procedure Relation Back Doctrine 1 2.3%

Civil Procedure Joinder of Claims 2 4.5%

Civil Procedure Cross-Claims 1 2.3%

Civil Procedure Counterclaims 1 2.3%

Civil Procedure Intervention as of Right 1 2.3%

Civil Procedure Impleader 2 4.5%



Civil Procedure Permissive Joinder 2 4.5%

Civil Procedure Compulsory Joinder 2 4.5%

Civil Procedure Class Action Requirements & Certification 1 2.3%

Civil Procedure Discoverable Information 1 2.3%

Civil Procedure Depositions 1 2.3%

Civil Procedure Spoliation and the Duty to Preserve 1 2.3%

Civil Procedure Rule 26(a) Initial Disclosures 1 2.3%

Civil Procedure Attorney Work Product Doctrine 3 6.8%

Civil Procedure Pretrial Conference 3 6.8%

Civil Procedure Modification of a Pretrial Order 1 2.3%

Civil Procedure Motion for Summary Judgment 5 11.4%

Civil Procedure Rule 12(b) Motion to Dismiss 3 6.8%

Civil Procedure Motion for Judgment as a Matter of Law 3 6.8%

Civil Procedure Motion for a New Trial 1 2.3%

Civil ProcedureSanctions for Failure to Preserve Electronically

Stored Information1 2.3%

Civil Procedure Rule 11(b) Sanctions 1 2.3%

Civil Procedure Pretrial Conference Sanctions 2 4.5%

Civil Procedure Preclusive Effect of a Default Judgment 1 2.3%

Civil Procedure Final Judgment Rule 3 6.8%

Civil Procedure Collateral Order Doctrine 4 9.1%

Civil ProcedureInterlocutory Appeals: Writ of Mandamus and

Prohibition1 2.3%

Civil ProcedureInterlocutory Appeals: Pendant Appellate

Jurisdiction1 2.3%

Conflict of LawsChoice of Law Theories: Traditional Vested

Rights Approach1 2.3%

Conflict of LawsChoice of Law Theories: Most Significant

Relationship Approach3 6.8%

Conflict of LawsChoice of Law Theories: Interest Analysis

Approach2 4.5%

Conflict of LawsChoice of Law Provision in a Contract (Express

Choice of Law)2 4.5%

Conflict of Laws Choice of Law Rules for Contract Cases 1 2.3%

Conflict of Laws Choice of Law Rules for Tort Cases 1 2.3%

Conflict of Laws Choice of Law Rules for Real Property Cases 1 2.3%

Conflict of Laws Choice of Law Rules for Estates 2 4.5%

Conflict of Laws Choice of Law Rules for Premarital Agreements 1 2.3%



Conflict of Laws Substance vs. Procedure Choice of Law Rules 2 4.5%

Conflict of Laws Erie Doctrine 4 9.1%

Conflict of Laws Full Faith and Credit 2 4.5%

Conflict of Laws Full Faith and Credit: Family Law Judgments 2 4.5%

Conflict of Laws Full Faith and Credit: Common Law Marriage 1 2.3%

Conflict of Laws Res Judicata (Claim Preclusion) 3 6.8%

Conflict of Laws Collateral Estoppel (Issue Preclusion) 4 9.1%

Constitutional Law Standing 0 0.0%

Constitutional Law Third Party Standing & Organizational Standing 0 0.0%

Constitutional Law Case or Controversy: Ripeness and Mootness 0 0.0%

Constitutional Law State Sovereign Immunity (11th Amendment) 1 5.3%

Constitutional Law Commerce Clause 1 5.3%

Constitutional Law Negative Commerce Clause 1 5.3%

Constitutional LawPower to Enforce 13th, 14th, and 15th

Amendments1 5.3%

Constitutional Law Taxing and Spending Powers 1 5.3%

Constitutional Law Congressional Delegation of Powers 0 0.0%

Constitutional Law Executive Powers: Domestic Powers 0 0.0%

Constitutional Law Executive Powers: Foreign Powers 0 0.0%

Constitutional Law Preemption 0 0.0%

Constitutional Law Exclusive State Powers (10th Amendment) 1 5.3%

Constitutional Law Incorporation Doctrine 0 0.0%

Constitutional Law Governmental Action (“State Action”) 2 10.5%

Constitutional Law Procedural Due Process 0 0.0%

Constitutional Law Substantive Due Process 0 0.0%

Constitutional Law Equal Protection Analysis 2 10.5%

Constitutional LawEqual Protection: Remedying Past Discrimination 1 5.3%

Constitutional Law Takings (5th Amendment) 1 5.3%

Constitutional Law Conditions on Approval of Permits 1 5.3%

Constitutional Law Privileges and Immunities Clause 1 5.3%

Constitutional Law First Amendment – Protections Provided 4 21.1%

Constitutional Law Free Speech: Vague & Overbroad Statutes 1 5.3%

Constitutional Law Free Speech: Prior Restraint 1 5.3%

Constitutional Law Free Speech: Content-Based Restrictions 2 10.5%

Constitutional LawFree Speech: Content-Neutral Time, Place,

Manner Restrictions2 10.5%



Constitutional LawFree Speech: Public Forum, Designated Public

Forum, & Non-Public Forum2 10.5%

Constitutional Law Free Speech: Matters of Public Concern 1 5.3%

Constitutional Law Free Speech: Commercial Speech 0 0.0%

Constitutional Law Free Speech: Symbolic Speech 0 0.0%

Constitutional Law Unprotected Speech: Fighting Words 1 5.3%

Constitutional LawUnprotected Speech: Incitement of Imminent

Lawless Action1 5.3%

Constitutional Law Unprotected Speech: Obscenity 0 0.0%

Constitutional Law Freedom of Association 0 0.0%

Constitutional Law Religious Protections: Establishment Clause 0 0.0%

Constitutional Law Religious Protections: Free Exercise Clause 0 0.0%

ContractsUCC Article 2 Governs Contracts for the Sale of

Goods3 15.8%

Contracts Requirements to Form a Valid Contract 4 21.1%

Contracts Formation: Offers 2 10.5%

Contracts Formation: Revocation of Offer 0 0.0%

Contracts Formation: Acceptance 2 10.5%

Contracts Formation: Rejection & Counteroffers 2 10.5%

Contracts Formation: Consideration 2 10.5%

Contracts UCC Gap fillers – Open Price Term 0 0.0%

Contracts Illusory Promise 0 0.0%

Contracts Indefiniteness 0 0.0%

Contracts Promissory Estoppel/Detrimental Reliance 1 5.3%

Contracts Implied-in-Fact Contracts 0 0.0%

Contracts Mailbox Rule 1 5.3%

ContractsBattle of the Forms (Mirror Image Rule and UCC

Exception)1 5.3%

ContractsSettlement/Release of Right to Bring Legal

Claims0 0.0%

Contracts Pre-Existing Duty Rule & UCC Exception 2 10.5%

Contracts Incapacity 0 0.0%

Contracts Economic Duress 1 5.3%

Contracts Mutual Mistake vs. Unilateral Mistake 0 0.0%

Contracts Misrepresentation 1 5.3%

Contracts Illegality 0 0.0%

Contracts Unconscionability 0 0.0%



Contracts Impracticability 0 0.0%

Contracts Frustration of Purpose 0 0.0%

ContractsStatute of Frauds: Contracts Requiring a Signed

Writing2 10.5%

ContractsStatute of Frauds: Satisfying the Writing

Requirement0 0.0%

ContractsStatute of Frauds: Contracts for Sales of Goods

for $500 or More1 5.3%

Contracts Statute of Frauds: Surety 0 0.0%

Contracts Parol Evidence Rule 1 5.3%

Contracts Divisible Performance 1 5.3%

Contracts Express Condition Precedent 0 0.0%

Contracts Obligation of Good Faith and Fair Dealing 2 10.5%

ContractsMinor Breach (Substantial Performance

Doctrine) vs. Material Breach for Non-UCC Contracts

1 5.3%

Contracts UCC Perfect Tender Rule and Exceptions 1 5.3%

Contracts UCC Revocation of Acceptance 2 10.5%

Contracts Anticipatory Repudiation 2 10.5%

Contracts Accord and Satisfaction 0 0.0%

Contracts Implied Warranty of Merchantability 1 5.3%

Contracts Disclaimer of Warranty of Merchantability 0 0.0%

Contracts Express Warranty 1 5.3%

ContractsImplied Warranty of Fitness for a Particular

Purpose0 0.0%

Contracts Warranty of Title 1 5.3%

ContractsIntended Third-Party Beneficiary vs. Incidental

Beneficiary1 5.3%

ContractsEnforcement of a Third-Party Beneficiary’s

Rights0 0.0%

Contracts Delegable Duties 1 5.3%

Contracts Assignment 1 5.3%

Contracts Common Law Expectation Damages 3 15.8%

Contracts Consequential Damages 1 5.3%

Contracts Punitive Damages 1 5.3%

Contracts Specific Performance 0 0.0%

Contracts UCC Seller’s Remedy of Damages 1 5.3%

Contracts UCC Buyer’s Remedy of Damages 1 5.3%

Contracts UCC Damages for Breach of Warranty 0 0.0%



Contracts Cost of Completion Damages 1 5.3%

Contracts Restitution 1 5.3%

Contracts Rescission 1 5.3%

Contracts Seller’s Right to Replevy Identified Goods 1 5.3%

Contracts Mitigation of Damages 2 10.5%

Criminal Law & Procedure

Elements of a Crime (Mens Rea, Actus Reus, Causation, and Concurrence)

2 10.5%


Mental States 4 21.1%


Murder 2 10.5%


Manslaughter 2 10.5%


Robbery 1 5.3%


Burglary 1 5.3%


Larceny, Larceny by Trick, False Pretenses, & Embezzlement

2 10.5%


Battery and Assault 0 0.0%


False Imprisonment & Kidnapping 0 0.0%


Arson 0 0.0%


Attempt 1 5.3%


Attempt: Abandonment/Withdrawal Defense 1 5.3%


Conspiracy 0 0.0%


Solicitation 0 0.0%


Accomplice Liability 1 5.3%


Duress 1 5.3%


Insanity 1 5.3%


Justification: Self-Defense and Defense of Others

0 0.0%




Intoxication 0 0.0%


Mistake of Fact 0 0.0%


Standing to Challenge a Search – Reasonable Expectation of Privacy

1 5.3%


Arrests: Probable Cause Requirement and When a Warrant is Required

1 5.3%


Fourth Amendment Warrant Requirements: Probable Cause and Particularity

0 0.0%


Seizure: Request for Information, Stop and Inquire, & Stop and Frisk

1 5.3%


Warrant Requirement for All Searches, Unless an Exception Applies

3 15.8%


Exception to Warrant Requirement: Automobile Exception

1 5.3%


Exception to Warrant Requirement: Plain View Doctrine

1 5.3%


Exception to Warrant Requirement: Exigent Circumstances

0 0.0%


Exception to Warrant Requirement: Search Incident to Arrest

0 0.0%


Exception to Warrant Requirement: Consent 0 0.0%


Exception to Warrant Requirement: Inventory Search

0 0.0%


Miranda Rights and The Right to Remain Silent 3 15.8%


Prosecution Cannot Comment on Defendant’s Silence after Miranda Rights have Attached

0 0.0%


Confessions 2 10.5%


Right to Counsel (5th Amendment) 3 15.8%


Right to Counsel (6th Amendment) 1 5.3%


Waiver of the Right to Counsel 1 5.3%


Ineffective Assistance of Counsel 0 0.0%


Pre-Charge Line-Up: Unnecessarily Suggestive Line-Ups

0 0.0%




Pre-Charge Line-Up: Right to Counsel 0 0.0%


Right to Refuse a Line-Up 0 0.0%


Right to a Jury Trial 1 5.3%


Double Jeopardy 1 5.3%


Rebuttable & Irrebuttable Presumptions 1 5.3%


Motion for Judgment of Acquittal 1 5.3%


Exclusionary Rule and the Fruit of the Poisonous Tree Doctrine

1 5.3%

Evidence Relevance Standard 4 21.1%

EvidenceUnfairly Prejudicial Evidence (Rule 403

Balancing)1 5.3%

Evidence Subsequent Remedial Measures 1 5.3%

Evidence Offers to Settle or Compromise 1 5.3%

Evidence Offers to Pay Medical Expenses 1 5.3%

Evidence Evidence of Liability Insurance 0 0.0%

Evidence Authentication of Evidence 0 0.0%

Evidence Character Evidence 5 26.3%

Evidence Specific Bad Acts 5 26.3%

Evidence Habit or Routine Practice 1 5.3%

Evidence Impeachment: Prior Convictions 1 5.3%

Evidence Specific Instances of Conduct 2 10.5%

Evidence Impeachment: Prior Inconsistent Statements 1 5.3%

Evidence Impeachment: Character for Truthfulness 1 5.3%

Evidence Impeachment: Memory Loss 1 5.3%

Evidence Impeachment: Hearsay Declarant 1 5.3%

Evidence Refreshing Recollection 2 10.5%

Evidence Lay Witness Testimony & Opinions 1 5.3%

Evidence Expert Witness Testimony 0 0.0%

Evidence Judicial Notice 0 0.0%

Evidence Best Evidence Rule 0 0.0%

Evidence Hearsay (General Rule) 6 31.6%

Evidence Non-Hearsay 6 31.6%



EvidenceHearsay Exception: Declarant Unavailable

Requirement0 0.0%

Evidence Hearsay Exception: Present Sense Impression 2 10.5%

Evidence Hearsay Exception: Excited Utterance 2 10.5%

Evidence Hearsay Exception: Business Records 2 10.5%

EvidenceHearsay Exception: Statements During Medical

Treatment/Diagnosis2 10.5%

Evidence Hearsay Exception: State of Mind 1 5.3%

Evidence Hearsay Exception: Dying Declaration 0 0.0%

Evidence Hearsay Exception: Statement Against Interest 0 0.0%

Evidence Hearsay Exception: Government/Public Records 1 5.3%

Evidence Hearsay Exception: Past Recollection Recorded 1 5.3%

Evidence Sixth Amendment Right to Confront Witnesses 2 10.5%

Evidence Spousal Privileges: Spousal Immunity 1 5.3%

EvidenceSpousal Privileges: Confidential Marital

Communications1 5.3%

Evidence Attorney-Client Privilege 0 0.0%

Evidence Privilege & Attorney Work Product Doctrine 0 0.0%

Family LawMarriage Requirements (State of Mind and

Procedural)1 2.3%

Family Law Common Law Marriage 4 9.1%

Family Law Bigamous Marriage 2 4.5%

Family Law Premarital Agreements 5 11.4%

Family LawPremarital Agreements: Child Custody and

Support6 13.6%

Family Law Premarital Agreements: Spousal Support 1 2.3%

Family LawPremarital Agreements: Eliminating

Fundamental Marital Duties & Allocating Financial Responsibilities

1 2.3%

Family Law Married Women’s Property Acts 1 2.3%

Family Law Payment for Necessities 2 4.5%

Family Law Jurisdiction in Marital Actions 6 13.6%

Family LawSpecific Jurisdiction Rules for Child Custody

Matters5 11.4%

Family Law Annulment 1 2.3%

Family Law Divorce Grounds 2 4.5%

Family LawSetting Aside Separation and Divorce Settlement

Agreements3 6.8%



Family LawDivision of Property: Marital vs. Separate

Property9 20.5%

Family LawEquitable Division of a Professional License or

Degree2 4.5%

Family Law Marital and Economic Fault 1 2.3%

Family Law Modification of a Property Division Award 2 4.5%

Family Law Division of Property: No Termination Upon Death 1 2.3%

Family Law Spousal Support (Maintenance/Alimony) 2 4.5%

Family Law Determining the Amount of Spousal Support 2 4.5%

Family Law Reinstatement of Spousal Support 1 2.3%

Family Law Termination of Spousal Support Upon Death 1 2.3%

Family Law Modification of a Spousal Support Order 3 6.8%

Family Law Child Support Guidelines 3 6.8%

Family Law Child Support: College or Educational Expenses 1 2.3%

Family Law Child Support: Termination Upon Death 1 2.3%

Family Law Modification of a Child Support Order 5 11.4%

Family LawChild Custody: Best Interests of the Child

Standard6 13.6%

Family Law Child Custody: Parent vs. Third Party Custody 2 4.5%

Family Law Child Custody: Joint Custody 1 2.3%

Family Law Child Custody: Presumption of Parental Fitness 1 2.3%

Family Law Parental Visitation Rights 2 4.5%

Family Law Third Party Visitation Rights 1 2.3%

Family Law Child Custody: Relocation 1 2.3%

Family Law Modification of a Child Custody Order 4 9.1%

Family Law Misconduct of a Mediator 1 2.3%

Family Law Agreements Between Unmarried Cohabitants 3 6.8%

Family Law Division of Property of Unmarried Cohabitants 2 4.5%

Family LawEstablishing Paternity, Presumption of

Legitimacy, & Paternity by Estoppel3 6.8%

Family Law Unmarried Biological Father’s Rights 3 6.8%

Family Law Right to Control the Child’s Upbringing 2 4.5%

Family Law Child’s Medical Care 1 2.3%

Family Law Intra-Family Suits 1 2.3%

Family Law Loss of Consortium Claims 1 2.3%

Family Law Adoption 3 6.8%

Family Law Adoption: Parental Consent 3 6.8%



Family Law Adoption: Jurisdiction 1 2.3%

Family Law Adoption: Visitation for Biological Parents 1 2.3%

Family Law Artificial Insemination 2 4.5%

Family Law Surrogacy Arrangements 1 2.3%

Real Property Fee Simple Defeasible 1 5.3%

Real Property Fee Simple Determinable 1 5.3%

Real Property Fee Simple on Condition Subsequent 1 5.3%

Real Property Present Estates: Statute of Limitations 1 5.3%

Real Property Reverter and the Right of Re-Entry 1 5.3%

Real Property Vested and Contingent Remainders 1 5.3%

Real Property Tenancy in Common 1 5.3%

Real Property Joint Tenancy: Formation 1 5.3%

Real Property Joint Tenancy: Severance 1 5.3%

Real PropertyEntitlement to Rent or Reimbursement for Repairs/Improvements from Co-Tenants

0 0.0%

Real Property Leasehold Interests 2 10.5%

Real Property Leasehold Interests: Tenancy for Years 1 5.3%

Real Property Leasehold Interests: Periodic Tenancy 1 5.3%

Real Property Leasehold Interests: Tenancy at Will 1 5.3%

Real Property Tenant Duties: Duty to Pay Rent 0 0.0%

Real PropertyLandlord’s Rights and Liabilities Concerning a

Hold-Over Tenant0 0.0%

Real PropertyLandlord Duties: Implied Warranty of

Habitability1 5.3%

Real Property Landlord Duties: Constructive Eviction 1 5.3%

Real Property Lease Assignments 1 5.3%

Real Property Subleases 0 0.0%

Real Property Termination of Leases: Surrender 1 5.3%

Real Property Landlord Duties: Duty to Mitigate Damages 1 5.3%

Real Property Real Covenants 0 0.0%

Real Property Equitable Servitudes 0 0.0%

Real PropertyCommon Scheme or Plan Doctrine (Reciprocal

Negative Servitude)0 0.0%

Real Property Easement by Grant 0 0.0%

Real Property Easement by Implication 1 5.3%

Real Property Easement by Necessity 0 0.0%

Real Property Easement by Prescription 0 0.0%



Real Property Scope of an Easement 1 5.3%

Real Property Termination of an Easement 2 10.5%

Real Property Licenses 0 0.0%

Real Property Fixtures 1 5.3%

Real Property Adverse Possession 2 10.5%

Real Property Adverse Possession: Tacking 1 5.3%

Real Property Constructive Adverse Possession 1 5.3%

Real Property Requirements for a Valid Land Sale Contract 0 0.0%

Real Property Warranty of Marketable Title 0 0.0%

Real Property Doctrine of Equitable Conversion & Risk of Loss 1 5.3%

Real Property Time of Performance for Real Estate Contracts 0 0.0%

Real PropertyAction for Specific Performance Regarding Real

Property0 0.0%

Real Property Home Builder’s Implied Warranty 1 5.3%

Real Property Deed Requirements 1 5.3%

Real Property General Warranty Deed 2 10.5%

Real Property Quitclaim Deed 1 5.3%

Real Property Estoppel by Deed 0 0.0%

Real Property Chain of Title and Wild Deeds 1 5.3%

Real Property Recording Statutes & Notice 2 10.5%

Real Property Bona Fide Purchasers & The Shelter Rule 2 10.5%

Real PropertyOwner by Adverse Possession vs. Subsequent

Bona Fide Purchasers1 5.3%

Real Property Requirements for a Valid Mortgage 0 0.0%

Real Property Purchase Money Mortgage 0 0.0%

Real Property Future-Advance Mortgage 1 5.3%

Real Property Deed of Trust 0 0.0%

Real Property Assumption of a Mortgage 1 5.3%

Real PropertyMortgages: Foreclosure, Order of Preference,

and Deficiency Judgments0 0.0%

Real Property Transfer of a Mortgage 0 0.0%

Real Property Zoning Ordinances: Variances 0 0.0%

Real PropertyZoning Ordinances: Previous Non-Conforming

Use0 0.0%

Secured Transactions

Article 9 of the UCC Governs Secured Transactions

32 72.7%


Types of Collateral: Accounts 2 4.5%




Types of Collateral: Deposit Accounts 1 2.3%


Types of Collateral: Inventory 5 11.4%


Types of Collateral: Equipment 5 11.4%


Types of Collateral: Consumer Goods 3 6.8%


Types of Collateral: Proceeds 3 6.8%


Types of Collateral: Chattel Paper 1 2.3%


Attachment and Perfection 22 50.0%


Financing Statements 2 4.5%


Purchase Money Security Interests (PMSI’s) 10 22.7%


Automatic Perfection for Certain Assignment of Accounts

1 2.3%


Security Interest in the Sale of Collateral & Identifiable Proceeds

6 13.6%


Use or Disposition of Collateral by a Debtor 1 2.3%


Title to Collateral is Immaterial 3 6.8%


The Shelter Principle 2 4.5%


The Nemo Dat Quod Non Habet Rule 1 2.3%


Consignment 1 2.3%


Control of a Deposit Account 1 2.3%


Future Advances 2 4.5%


Lease vs. Security Interest 1 2.3%


Buyers in the Ordinary Course of Business 8 18.2%


Consumer-to-Consumer Rule 3 6.8%




Priority of Perfected Interests vs. Unperfected Interests

7 15.9%


Priority of Liens Arising by Law 3 6.8%


Priority of Perfected Creditors – First in Time, First in Right

10 22.7%


Judgment Liens 2 4.5%


Fixtures 3 6.8%


Accessions 1 2.3%


Seller’s Remedies on Discovery of a Buyer’s Insolvency

1 2.3%


Secured Party’s Right to Take Possession of Collateral

4 9.1%


Secured Party’s Right to Dispose of Collateral 4 9.1%


Disposition of Collateral: Notice 2 4.5%


Disposition of Collateral: Purchaser of Collateral at Foreclosure Sale

1 2.3%


Disposition of Collateral: Secured Party’s Purchase of Collateral

1 2.3%


Disposition of Collateral: Commercially Reasonable Sale

1 2.3%


Right to Collect Directly from an Account Debtor 2 4.5%


Damages Available to a Debtor for a Secured Party’s Failure to Comply with Applicable Rules

4 9.1%


Debtor’s Right of Redemption 2 4.5%


Denial of Deficiency Judgment 4 9.1%

Torts Battery 2 10.5%

Torts Assault 0 0.0%

Torts False Imprisonment 1 5.3%

Torts Intentional Infliction of Emotional Stress 0 0.0%

Torts Trespass to Land 0 0.0%

Torts Trespass to Chattels & Conversion 0 0.0%

Torts Doctrine of Transferred Intent 0 0.0%

Torts Intentional Tort Defenses: Consent 2 10.5%



Torts Intentional Tort Defenses: Necessity 0 0.0%

Torts Intentional Tort Defenses: Privilege 1 5.3%

TortsIntentional Tort Defenses: Self-Defense/Defense

of Others0 0.0%

Torts Prima Facie Case of Negligence 9 47.4%

Torts Duty: To Whom a Duty is Owed 1 5.3%

Torts Duty: Affirmative Duties 2 10.5%

TortsDuty: Landlord’s Duty to Protect Tenant from

Foreseeable Attacks1 5.3%

Torts Duty: Attractive Nuisance 1 5.3%

TortsDuty: Psychologist/Psychotherapist’s Duty to

Warn1 5.3%

Torts Standard of Care: Reasonable Person Standard 4 21.1%

Torts Standard of Care: Children 2 10.5%

TortsStandard of Care: Land Owner’s/Possessor’s

Duty to Entrants1 5.3%

Torts Standard of Care: Professionals 1 5.3%

Torts Negligence Per Se 3 15.8%

Torts Res Ipsa Loquitur 1 5.3%

Torts Causation (Actual and Proximate Cause) 2 10.5%

Torts Eggshell Plaintiff Rule 3 15.8%

Torts Comparative Negligence 2 10.5%

Torts Contributory Negligence 2 10.5%

Torts Assumption of Risk 0 0.0%

Torts Negligent Infliction of Emotional Distress 2 10.5%

Torts Respondeat Superior 5 26.3%

Torts Joint and Several Liability 0 0.0%

Torts Doctrine of Alternative Liability 2 10.5%

Torts Doctrine of Joint Enterprise 2 10.5%

Torts Doctrine of Market Share Liability 1 5.3%

Torts Indemnification 1 5.3%

Torts Contribution 1 5.3%

Torts Defamation 1 5.3%

Torts Intentional Interference with Business Relations 0 0.0%

Torts Invasion of Privacy Torts 0 0.0%

Torts Intentional Misrepresentation (Fraud/Deceit) 0 0.0%

Torts Negligent Misrepresentation 0 0.0%



Torts Public and Private Nuisance 0 0.0%

TortsStrict Liability for Animals: Domestic Animals vs.

Wild Animals0 0.0%

Torts Strict Liability: Ultrahazardous Activity 0 0.0%

TortsStrict Products Liability: Manufacturing Defect,

Design Defect, and Failure to Warn3 15.8%

TortsStrict Products Liability: Definition of

Commercial Supplier3 15.8%

Torts Strict Products Liability: Damages Available 0 0.0%

Trusts & Future Interests

Trust Formation Elements 6 13.6%


Precatory Language 2 4.5%


Revocable and Irrevocable Trusts 3 6.8%


Testamentary Trusts 6 13.6%


Pourover Provision in a Will 2 4.5%


Charitable Trusts 1 2.3%


Illusory Trusts 1 2.3%


Resulting Trusts 1 2.3%


Discretionary Trusts 2 4.5%


Support Trusts 2 4.5%


Spendthrift Trusts 2 4.5%


How Trust Assets Pass 1 2.3%


Cy Pres Doctrine 6 13.6%


Rights of Creditors 4 9.1%


Rights of Creditors: Alimony and Child Support 1 2.3%


Express and Implied Powers of Invasion 1 2.3%


Invasion of Trust Principal 1 2.3%




Damages for Wrongful Invasion of Trust Principal

1 2.3%


Modifications to a Trust 2 4.5%


Equitable Deviation Doctrine & Modification of Administrative and Dispositive Trust Provisions

1 2.3%


Interpretation of the Settlor’s Intent 1 2.3%


Additions Clause in a Trust 1 2.3%


Termination of a Trust 3 6.8%


Distribution Upon Termination 1 2.3%


Trust Conditions that Prohibit Marriage 1 2.3%


Absolute Discretion of Trustee and Good Faith 3 6.8%


Trustee Duty of Loyalty: Self-Dealing 3 6.8%


Trustee Duty of Loyalty: Conflicts of Interest 1 2.3%


Trustee Duty of Loyalty: Duty to Act Impartially 1 2.3%


Trustee Duty of Care: Failure to Test the Market 1 2.3%


Trustee Duty of Care: Duty to Administer the Trust in Accordance with its Terms and Purpose

5 11.4%


Trustee Duty of Care: Investments & Prudent Investor Rule

6 13.6%


Delegation of Trustee Duties 1 2.3%


Trustee Acting in Accordance with the Settlor’s Wishes

1 2.3%


Principal and Income Allocations 3 6.8%


Remainder Beneficiary of a Trust 1 2.3%


Future Interests: Representation of Remaindermen

2 4.5%


Future Interests: Substituted Takers 2 4.5%




Remainder Person Predeceases Life Tenant 2 4.5%


Vested Interests: Condition on Survivorship 1 2.3%


Acceleration of Future Interests 1 2.3%


Powers of Appointment 4 9.1%


Special Power of Appointment 1 2.3%


Ineffective Power of Appointment 1 2.3%


Common Law Rule Against Perpetuities & Modern Modifications

4 9.1%

Wills & Estates Intestate Succession 7 15.9%

Wills & Estates Governing Law for Validity of a Will 3 6.8%

Wills & Estates Will Execution Requirements 5 11.4%

Wills & Estates Interested Witnesses 3 6.8%

Wills & Estates Holographic Wills 3 6.8%

Wills & Estates Codicils 2 4.5%

Wills & Estates Holographic Codicils 1 2.3%

Wills & Estates Integration of Documents into a Will 1 2.3%

Wills & Estates Incorporation by Reference 7 15.9%

Wills & Estates Bequests Through an Unattested Memorandum 1 2.3%

Wills & Estates Acts of Independent Significance 1 2.3%

Wills & Estates Revocation by Physical Act 6 13.6%

Wills & Estates Revocation by Subsequent Will or Codicil 5 11.4%

Wills & Estates Dependent Relative Revocation Doctrine 4 9.1%

Wills & Estates Revival of a Will 2 4.5%

Wills & EstatesDistribution of Property According to the Terms

of a Will3 6.8%

Wills & Estates Per Capita at Each Generation Distribution 1 2.3%

Wills & EstatesModern Per Stripes (Per Capita by

Representation) Distribution1 2.3%

Wills & Estates Per Stirpes Distribution 2 4.5%

Wills & Estates Generically Described Property 1 2.3%

Wills & Estates Advancements/Satisfaction 5 11.4%

Wills & Estates Simultaneous Death 2 4.5%

Wills & Estates Residue of a Residue Approach 2 4.5%



Wills & Estates Conditions on Bequests that Prohibit Marriage 1 2.3%

Wills & Estates Interpretation of the Term “Surviving” 1 2.3%

Wills & EstatesProvisions Governing Distribution of Property in

the Event the Testator Dies Without Issue1 2.3%

Wills & Estates Lapsed Legacies & Anti-Lapse Statutes 4 9.1%

Wills & Estates Ademption 6 13.6%

Wills & Estates Stock Splits and Dividends 3 6.8%

Wills & Estates Exoneration 1 2.3%

Wills & Estates Abatement 4 9.1%

Wills & Estates Slayer Statutes 4 9.1%

Wills & Estates Disclaimers 6 13.6%

Wills & EstatesDivorce Revokes Testamentary Provisions to a

Former Spouse2 4.5%

Wills & EstatesPrenuptial Agreement Does Not Apply to

Voluntary Gifts or Bequests1 2.3%

Wills & Estates Specific, General, and Demonstrative Gifts 1 2.3%

Wills & Estates Gift of Stock Shares 1 2.3%

Wills & Estates Class Gifts 6 13.6%

Wills & Estates Inheritance Rights of Children & Disinheritance 2 4.5%

Wills & Estates Legal Definition of Children 4 9.1%

Wills & Estates Inheritance by Equitable Adoption 2 4.5%

Wills & Estates Pretermitted Children 3 6.8%

Wills & Estates Testamentary Capacity 3 6.8%

Wills & Estates Undue Influence 4 9.1%

Wills & Estates Fraud 1 2.3%

Wills & Estates Standing to Challenge a Will 2 4.5%

Wills & Estates No-Contest Clauses 1 2.3%

Wills & Estates Modification of a Will Due to Mistake 1 2.3%

Wills & Estates Contractual Wills 3 6.8%

Wills & EstatesJoint Bank Accounts & Convenience Account

Exception1 2.3%

Wills & Estates Totten Trusts 1 2.3%

Wills & Estates Life Insurance Beneficiary 2 4.5%

Wills & Estates Inter Vivos Gifts 1 2.3%

Wills & Estates Invasion of Non-Probate Assets to Pay Creditors 1 2.3%

Wills & Estates Powers and Duties of Personal Representatives 1 2.3%



Wills & EstatesDurable Health-Care Power of Attorney &

Advanced Directives2 4.5%

Wills & EstatesDurable Health Care Power of Attorney & Living

Wills: Insulation of Agent’s Liability2 4.5%

Wills & Estates Family Consent Laws 2 4.5%

© 2016 SmartBarPrep.com 1

I. Agency *Note: The subjects of Agency and Partnerships are normally tested together on essay questions.

A. Creation

Creation of Agency Relationship An agent is a person or entity that acts on behalf of another – the

principal. An agency relationship exists if there is (1) consent (a formal or informal agreement between the principal and the agent); (2) benefit (the agent’s conduct on behalf of the principal primarily benefits the principal); AND (3) control (the principal has the right to control the agent by being able to supervise the agent’s performance – the degree of control does not need to be significant).

B. Authority of an Agent

Authority of Agent to Bind the Principal Authority may be actual (express or implied), apparent, or

inherent. A principal is liable for contracts entered into by its agent if the agent was authorized to act on behalf of the principal. A principal will be bound to a contract even if the agent acted on his own behalf or in violation of specific instructions UNLESS the third party had notice the agent was exceeding his authority.

Actual Express and Implied Authority Actual authority may be express or implied. Express authority

occurs when the principal has explicitly told the agent (either orally or in writing) that he is entitled to act. Implied authority occurs when: (a) the agent believes he is entitled to act because the action is necessary to carry out his expressly authorized duties; (b) the agent has acted similarly in prior dealings between the principal and agent; OR (c) it is customary for agents in that position to act in that way. Silence or prior acquiescence by the principal in a series of acts by the agent can give rise to a reasonable belief that the agent has authority to perform similar acts in the future.

HIGH: 4 of 44 exams

HIGH: 5 of 44 exams

HIGH: 12 of 44 exams


Apparent Authority Apparent authority exists when: (1) the principal holds the agent

out as having authority; AND (2) a third-party reasonably relies on the agent’s appearance of authority when dealing with the agent. A principal holds an agent out as having authority when he: (a) gives the agent a position or title indicating certain authority; (b) has previously held the agent out as having authority and has not published a revocation of said authority; OR (c) has cloaked the agent with the appearance of such authority. Apparent authority is NOT APPLICABLE if the third-party had knowledge that the agent did not have actual authority.

Apparent authority continues until the principal communicates the termination to third parties (even if the agency relationship was actually terminated). A principal may communicate termination by notifying third parties directly, making a public announcement, or by recovering from the agent any items indicating authority.

Inherent Authority (Inherent Agency Power) Inherent authority provides a means for courts to protect persons

dealing with agents when the agent violates a principal’s orders and no actual or apparent authority exists.

An agent has inherent authority when: (1) an agency relationship exists; AND (2) the agent engages in acts that are generally of a kind that would fall within his or her actual authority, but for the violation of the principal’s instructions. In this instance an undisclosed principal is liable to third parties for an agent’s unauthorized or negligent act. Courts have held inherent authority to exist where an agent has been given general power to manage a business and has performed acts for the principal’s account (notwithstanding that the agent violated the principal’s instructions).

C. Liability of the Principal and Agent to Third Parties

Vicarious Liability of Employer for Acts of an Employee Under the doctrine of respondeat superior, an employer is

vicariously liable for an employee’s negligent acts if the employee was acting within the scope of the agency relationship (employment). An employee DOES NOT act within the scope of

HIGH: 13 of 44 exams

LOW: 2 of 44 exams

HIGH: 5 of 44 exams


employment when the conduct is unrelated to the employment AND not intended to serve any purpose of the employer.

Conduct within the scope of employment includes conduct that is: (a) authorized or of the same general nature as that authorized; (b) subject to the employer’s control; OR (c) incidental to the conduct authorized. When determining if conduct is incidental to authorized conduct, a court must consider: (i) whether the conduct is common for employees to engage in; (ii) the time, place, and purpose of the conduct; (iii) previous relations between the employee and employer; AND (iv) whether the employer has reason to expect the employee’s act.

An employer will be liable for an employee’s acts outside the scope of employment if: (a) the employer intended the conduct or consequences; (b) the employer was negligent or reckless in selecting, training, supervising, or otherwise controlling the agent; (c) the conduct involved an employer’s non-delegable duty; OR (d) the employee had apparent authority to act or speak on the employer’s behalf and a third party reasonably relied on that authority.

Liability for Acts of Independent Contractors Generally, a principal is NOT vicariously liable for the torts of an

independent contractor. However, there are several exceptions to the general rule. A principal will be liable for torts committed by an independent contractor if: (1) the independent contractor is engaged in an inherently hazardous activity; (2) the duty owed by the principal is non-delegable (i.e. the duty of care owed to an invitee); OR (3) through the doctrine of estoppel where the principal holds the independent contractor out as his agent to a third party, the third party reasonably relied on the care and skill of the agent, and the third party suffered harm as a result of the agent’s lack of care or skill.

Employee vs. Independent Contractor The determination of whether a person is an employee or an

independent contractor centers on whether the principal had the right to control the manner and method in which the job is performed. Generally, if the principal has substantial control in dictating the manner and method in which the job is performed, then the person is deemed to be an employee of the principal. In

HIGH: 3 of 44 exams

HIGH: 3 of 44 exams


contrast, a person subject to less extensive control is considered an independent contractor. To determine the existence of the right to control, the following factors must be considered: (i) the type of work; (ii) the pay rate (hourly or per project); (iii) who supplied the equipment or tools; (iv) the degree of supervision; (v) the degree of skill required; (vi) whether the job was for the benefit of the employer’s business; AND (vii) the length of employment.

Ratification of Contracts A principal’s ratification of an agent’s conduct will make the

principal liable for those contracts entered into by an agent without authority. Ratification occurs when the principal: (1) has knowledge of all material facts or contract terms; AND (2) thereafter approves the same through words or conduct. Despite ratification by the principal, an agent also remains liable for any acts or contracts entered into if the principal was not disclosed to the third party.

Under the Restatement (Second) of Agency, an undisclosed principal generally CANNOT ratify an agent’s unauthorized act because ratification requires that the agent purported to act on the principal’s behalf. However, under the Restatement (Third) of Agency, an undisclosed principal CAN ratify an agent’s unauthorized act.

D. Term and Termination of Agency

Termination of Agency Relationship An agency relationship terminates and the agent no longer has

authority to act if: (a) the principal or the agent manifests to the other that the relationship is terminated; (b) upon operation of law by the death of the principal or agent; OR (c) upon operation of law by the incapacity of the principal or agent (except where a durable power of attorney exists). Under the common law, an agent’s authority is revoked upon death, regardless of whether the third party has notice of the death. In some states, the authority is not revoked until the third party is notified of the principal’s death.

LOW: 1 of 44 exams

HIGH: 3 of 44 exams


Termination of an Agency Contract with a Specified Term When an agency relationship is governed by an agency contract

(i.e. employment agreement), the principal can still terminate the agent at any time. However, the principal may be liable for damages if the agency is terminated prior to the expiration of the contract term UNLESS the agent materially breaches the contract.

E. Fiduciary Duties Between Principal and Agent

Fiduciary Duties Owed by the Agent to the Principal An agent owes the principal the duty: (1) to act loyally for the

principal’s benefit in matters connected with the relationship; (2) to act in accordance with the express or implied terms of the relationship; AND (3) to obey all reasonable directions given by the principal.

LOW: 1 of 44 exams

LOW: 1 of 44 exams


How to Use This Study Guide Each rule in the SmartBarPrep Essay Prep Outline is presented as shown in the sample below.

SAMPLE

Creation of Agency Relationship An agent is a person or entity that acts on behalf of another – the

principal. An agency relationship exists if there is (1) consent (a formal or informal agreement between the principal and the agent); (2) benefit (the agent’s conduct on behalf of the principal primarily benefits the principal); AND (3) control (the principal has the right to control the agent by being able to supervise the agent’s performance – the degree of control does not need to be significant).

The title of the rule will be in bold (ex: Creation of Agency Relationship). The Rule

Statement (ex: An agent is a person or entity that …) will be in one or more bullet points under the Rule Title.

Guide to the Frequency and Priority Ratings

Frequency Ratings In the box to the left of the Rule Statement is the frequency with which the rule was

tested on past Multistate Essay Exams (ex: 1 of 44 exams). Priority Ratings In addition, a priority rating (HIGH or LOW) will be listed in the box next to each rule. For the following subjects, a rule with the rating of HIGH has shown up on three or

more Multistate Essay Exams and is likely to appear on future bar examinations: Agency, Partnerships, Corporations & LLC’s, Civil Procedure, Conflict of Laws, Family Law, Secured Transactions, Trusts & Future Interests, and Wills & Estates.

However, for the following subjects (the traditional MBE Subjects)1, a rule with the

rating of HIGH has shown up on two or more Multistate Essay Exams and is likely to appear on future bar examinations: Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts.

The reason for the difference is that the six traditional MBE subjects were not tested on

the Multistate Essay Exam until 2007, so the frequency of rules tested is less than the other subjects which were tested from 1995 forward.

1 Prior to the February 2015 exam, the subject of Civil Procedure was not tested on the Multistate Bar Exam (MBE), which is why it was tested prior to 2007 on the Multistate Essay Exam and is not considered one of the traditional MBE subjects.

HIGH: 4 of 44 exams


Additionally, since the six traditional MBE subjects were not tested on the Multistate Essay Exam until July 2007, the outline includes rules that we feel were important but have been not been tested on the essays to date for the six traditional MBE subjects.

Although a rule with the rating of LOW has shown up either zero or only a few times in the past, that rule may still show up on future bar examinations. Therefore, a rule with the rating of LOW should not be ignored, and if you have enough time it should be memorized.

The HIGH or LOW designation is NOT A PREDICTION OF WHAT RULES WILL

APPEAR ON ANY GIVEN EXAM. Instead, we have given each rule a designation depending on how often that particular rule has shown up on past Multistate Essay Exams.

For example, whenever a Secured Transactions question appeared we found that approximately seventy (70%) percent of the time a component of the question dealt with the Attachment and Perfection rule. Since this rule is tested frequently, it makes sense to spend more time memorizing it than, say, the rule of Control of a Deposit Account, which appeared only once in the last 22 years.

Again, the purpose of providing the HIGH/LOW priority rating and the frequency with which rules have appeared is so you can see how often each rule has been tested as compared to the other rules at a glance, and prioritize your studying to focus on the most important and frequently tested rules first before moving onto the less important ones. Ultimately, this method promotes efficiency in studying for the Uniform Bar Exam/Multistate Essay Exam. Best of luck on the exam! – SmartBarPrep

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allowed SmartBarPrep to compile statistics from the last 44 UBE/MEE Bar Exams (February 1995 to July 2016) by analyzing every issue and rule that was included. Every topic ever tested on the UBE/MEE Bar essays is compiled here! In addition, when creating the SmartBarPrep Essay Prep Outline, each rule was:

Written so it’s simple to understand. UPDATED specifically for the February 2017 bar exam with the most current

law. Analyzed for its FREQUENCY (how often each rule has been tested in the past

so you can prioritize and study the most frequently tested rules first). That frequency is shown next to each rule.

UPDATED to include additional rules for the six traditional MBE subjects that have only been tested on the essays since June 2007!

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Model Answers for Each Rule Knowing the frequency of each rule allows you to focus your precious study time. But what about how to answer? This study guide also provides model rule statements for each rule. So you’ll know exactly what to write on the day of the exam. The model answers are to the point, so you’ll have just what you need. No lengthy, wordy explanations to waste crucial prep time. Walk into exam day armed with confidence that you can ace the essay portion of the exam…

And it’s all in a concise format that keeps you focused and organized.

Sample Preview Here is an excerpt from the SmartBarPrep Essay Prep Outline:

Integrate our study guide with your bar review course This study guide can be used to supplement bar exam review courses such as BarBri or Kaplan. The SmartBarPrep Essay Prep Outline integrates well with review courses because it is arranged in terms of frequency and topic, saving you the hassle of making index cards or other outlines. A note about the price… The SmartBarPrep Essay Prep Outline is valued at $200, but right now it is $124 – a savings of more than 30%. If you are like most preparing for the bar exam, you have spent thousands on a bar review course. In comparison, this outline is truly a remarkable value. Not only does this price include the SmartBarPrep Essay Prep Outline, IT NOW INCLUDES:

BONUS: Essay Frequency Analysis (Sorted by Frequency) that contains charts of the rules tested ordering the rules from the most tested to least tested BOTH by overall frequency and also by frequency within each subject. These charts also contain cross-references to the page numbers where the rules appear in the SmartBarPrep Essay Prep Outline.

BONUS # 2: Separate HIGH & LOW Outlines of the rules in the SmartBarPrep Essay Prep Outline. These outlines separate the rules under both

classifications, and enable you to even further focus your studying, especially in the weeks right before the exam.

PLUS, IF YOU REALLY WANT TO TAKE YOUR STUDYING TO THE NEXT LEVEL, WE NOW OFFER:

over 1,300 DIGITAL FLASHCARDS in our Deluxe Study Guide Package

based off of the SmartBarPrep Essay Prep Outline rules The flashcards can be used to reinforce your knowledge of the rules tested on the essays, and can be used on your phone or tablet to review rules on-the-go! These digital flashcards are downloadable in PDF format, and instructions are included to load the flashcards onto your iPhone, iPad, or Android device.

Here is a breakdown of both the Standard and Deluxe Packages.

http://smartbarprep.com/outline

The 80/20 Rule in Action We are a firm believer in the 80/20 Rule developed by Italian economist Vilfredo Pareto. In short, the rule says that in almost anything in life, only a few things (the 20 percent) are essential and the rest (the remaining 80 percent) are trivial. Sounds like a nice theory, but can it be applied to the UBE/MEE essays? It does, and our team of attorneys who passed the UBE proved it. We rolled up our sleeves and went through every shred of material released by the National Conference of Bar Examiners to see if our theory was true. After going through every item they released in detail, we noticed patterns emerge. The most noticeable was that the bar examiners tested some material more frequently than others. For example, whenever a Secured Transactions question appeared we found that approximately 70% of the time a component of the question dealt with the Attachment and Perfection rule. Since this rule is tested frequently, it makes sense to spend more time memorizing it than, say, the Control of a Deposit Account rule, which appeared only once in the last 22 years. Also in line with the 80/20 Rule, focusing 80 percent of your time and energy on the 20 percent of the rules of law that are tested most frequently will maximize your chances of passing. Don’t just work hard; work smart by focusing on the right things. That is exactly what the Essay Prep Outline does: It tells you what is most important and where to focus your efforts. Here is a chart that shows just how often rules are repeated:

July 2016 64.8% (86.5%*) Repeated

February 2016 96.9% Repeated

July 2015 70.0% Repeated

February 2015 72.7% Repeated

July 2014 72.7% Repeated *86.5% of the rules tested on the July 2016 MEE were contained in the July 2016 SmartBarPrep Essay Prep Outline, as the outline contains additional rules for the six traditional MBE subjects (Contracts, Constitutional Law, Criminal Law & Procedure, Evidence, Real Property, and Torts) since these subjects have only been tested on the essays since July 2007!

TAKE A LOOK BELOW AT THESE ACTUAL SNAPSHOTS FROM THE OUTLINE:

SmartBarPrep Essay Prep Outline:

Essay Frequency Analysis (Sorted by Frequency):

High & Low Outlines:

Digital Flashcards:

Get Instant Access Below

to the Most Helpful Study Guide to the UBE/MEE Bar Essays

http://smartbarprep.com/outline