Florida Bar Exam
Essay Prep
STRATEGIES AND STUDY MATERIAL
FIRST EDITION
Linda S. Anderson
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v
BRIEF CONTENTS
Acknowledgments xix
Introduction xxi
CHAP TER 1. Understanding the Florida Bar Exam 1
CHAPTER 2. Writing a Bar Essay 11
CHAPTER 3. Study Strategies 25
CHAPTER 4. Intentional Torts 39
CHAPTER 5. Negligence 59
CHAPTER 6. Strict Liability and Product Liability 73
C H A P T E R 7. Florida Constitutional Law 83
CHAPTER 8. Contracts 103
CHAPTER 9. Real Property 125
CHAPTER 10. Landlord-Tenant Law 141
C H A P T E R 11. Family Law 153
CHAPTER 12. Trusts 165
CHAPTER 13. Professional Responsibility 181
CHAPTER 14. Continuing Your Study Plan 191
vii
DETAILED CONTENTS
ACKNOWLEDGMENTS XIX
INTRODUCTION XXI
Purpose of this Book xxi
Focus on Florida-Specific Rules xxii
Study Tools and Techniques xxii
CHAPTER ONE
Understanding the Florida Bar Exam 1
Introduction 1
Chapter Objectives and Outcomes 1
Objectives 1
Outcomes 2
Purpose of the Bar Exam 2
Structure of the Florida Bar Exam 3
Subjects Covered on Essays 4
Bar Exam Essay Scoring 6
The Scoring Rubric 7
End-of-Chapter Checklist 10
CHAPTER TWO
Writing a Bar Essay 11
Introduction 11
Chapter Objectives and Outcomes 11
Objectives 11
Outcomes 11
Structure and Organization 12
Issue Spotting 14
Step 1: 15
Step 2: 16
viii CONTENTS
Step 3: 17
Strategy 17
Pre-writing Checklists 17
Preparing a Grid 17
Writing Suggestions 20
Sample Essay 21
End-of-Chapter Checklist 23
CHAPTER THREE
Study Strategies 25
Introduction 25
Chapter Objectives and Outcomes 25
Objectives 25
Outcomes 26
Setting Goals and Benchmarks 26
Goals for Pre-Graduation Study 26
Resource Library 26
Writing Habits 27
Review Law You Know 27
Learn New Topics 27
Develop Rule Statements 28
Improving Your Essay Scores 28
Goals for Post-Graduation Study 28
Learning Cycle 29
More Than Outlines: Study Toolkit 31
Concept Maps 31
Flashcards 33
Beyond Definitions 34
Elements or Factors 34
Spaced Repetition 34
Create Your Own or Buy Premade Flashcards 35
Mnemonics 36
Music 37
General Strategy 38
End-of-Chapter Checklist 38
CONTENTS ix
CHAPTER FOUR
Intentional Torts 39
Introduction 39
Chapter Objectives and Outcomes 40
Objectives 40
Outcomes 40
Identifying the Issues 41
Intentional Torts 41
Battery 42
A Volitional Act 42
Intent 42
Harmful or Offensive Contact 43
Causation 43
Assault 43
The Volitional Act 44
Intent 44
Reasonable Apprehension of Immediate or Offensive Contact 44
Causation 44
False Imprisonment 45
Confinement 45
Confinement by Failure to Act 45
Bounded Area 45
Shopkeeper’s Privilege 46
Intentional Infliction of Emotional Distress 47
Extreme and Outrageous Conduct 47
Intent 48
Defenses to Intentional Torts 48
Consent 48
Self-Defense 49
Economic and Dignitary Harms 50
Defamation 50
Publication 51
False Statement of Fact 51
Required Fault 52
Damages 52
Defenses to Defamation 53
Strategy for Tackling Defamation Claims 53
Misrepresentation 54
End-of-Chapter Checklist 54
x CONTENTS
Sample Essay Questions 55
Intentional Torts: False Imprisonment/Intentional Infliction of Emotional Distress 55
Intentional Torts: Defamation 56
CHAPTER FIVE
Negligence 59
Introduction 59
Chapter Objectives and Outcomes 59
Objectives 59
Outcomes 59
Negligence 60
Duty 60
Special Standards of Care 60
No Duty to Rescue 61
Florida’s Good Samaritan Law 61
Florida’s Cardiac Arrest Survival Act 61
Landowner’s Duties 61
Statutory Violations and Negligence Per Se 64
Breach 64
Res Ipsa Loquitur 65
Causation 65
Damages 67
Personal Injury Damages 68
Property Damage 68
Punitive Damages 68
Negligence Defenses 69
Florida-Specific Rules 69
Comparative Negligence 69
Fabre Defense 70
Superseding and Intervening Causes 70
Assumption of the Risk 70
End-of-Chapter Checklist 70
Sample Essay Question 71
Negligence 71
CONTENTS xi
CHAPTER SIX
Strict Liability and Product Liability 73
Introduction 73
Chapter Objectives and Outcomes 73
Objectives 73
Outcomes 73
Strict Liability 74
Dangerous Animals 74
Liability for Dogs 74
Liability for Other Domestic Animals 75
Liability for Keepers of Wild Animals 75
Inherently Dangerous Activities 75
Product Liability 75
Strict Product Liability 75
Defenses to Strict Product Liability 76
Compliance with Government Standards 76
Comparative Fault 77
Product Misuse 77
Unforeseeable Product Sensitivities 77
Damages for Strict Product Liability 77
Product Liability Negligence Claims 77
Warranty Claims 78
Implied Warranty of Merchantability 78
Implied Warranty of Fitness for a Particular Purpose 79
Express Warranties 79
Defenses to Warranty Claims 80
Assumption of the Risk 80
Comparative Negligence 80
Vicarious Liability 80
Respondeat Superior 80
Permissive Use 80
Dram Shop Liability 80
Vicarious Liability of Government 81
Immunities 81
End-of-Chapter Checklist 81
Sample Essay Question 81
Product Liability Essay 81
xii CONTENTS
CHAPTER SEVEN
Florida Constitutional Law 83
Introduction 83
Chapter Objectives and Outcomes 83
Objectives 83
Outcomes 83
Homestead Protection 84
Four Considerations Mind Map 85
Homestead Requirements 85
Who Qualifies? 85
What Amount of Property? 86
Exceptions to Protection 86
Exemptions from Homestead Protection 86
Abandonment 87
Transferring Homestead Protection 87
Distinguishing Homestead from Non-Homestead 88
Restraints on Conveyance 88
Restraint on Ability to Devise Homestead Property 89
Protection from Creditors for Heirs 89
Legislation 90
Separation of Powers 90
Procedures for Enacting Legislation 92
Questions Involving Proposed Legislation 92
Challenges to Statutes 93
Types of Law 98
End-of-Chapter Checklist 100
Sample Questions 100
Sample Homestead Question 100
Sample Legislation Question 101
CHAPTER EIGHT
Contracts 103
Introduction 103
Chapter Objectives and Outcomes 103
Objectives 103
Outcomes 103
Contracts Questions Strategies 105
Contract Formation 106
CONTENTS xiii
Mutual Assent to a Contract: Offer and Acceptance 107
Contract Modification 109
Defenses 109
Statute of Frauds 109
Promissory Estoppel 111
Unjust Enrichment 112
Fraud 113
Duress 113
Mutual Mistake 113
Undue Influence 113
Illegality 113
Impossibility, Impracticability, Frustration of Purpose 114
Unconscionability 114
Incapacity 115
Contract Interpretation 115
Parol Evidence 115
Remedies 117
Expectation Damages 118
Specific Performance 119
Restitution 119
Reliance Damages 119
Attorney Fees 119
Consequential Damages 119
Incidental Damages 120
Mitigation of Damages 120
Materiality of the Breach 120
End-of-Chapter Checklist 122
Sample Essay Question 122
CHAPTER NINE
Real Property 125
Introduction 125
Chapter Objectives and Outcomes 125
Objectives 125
Outcomes 126
General Analysis Strategy 126
Possessory Estates and Future Interests 127
Types of Possessory Estates 127
Landlord-Tenant Issues 129
xiv CONTENTS
Residential Leases 129
Tenancy for Years 130
Periodic Tenancy 130
Tenancies at Will 131
Tenancy at Sufferance 132
Nonresidential Leases 132
Easements 132
Creation of Easements 133
Conveying Property 134
Sales Contracts 135
Deeds 136
Recording 137
End-of-Chapter Checklist 138
Sample Essay Question 138
Figure Credit 139
CHAPTER TEN
Landlord-Tenant Law 141
Introduction 141
Chapter Objectives and Outcomes 142
Objectives 142
Outcomes 142
Landlords’ Duties and Tenants’ Remedies 145
Duty to Deliver Possession 145
Implied Warranty of Habitability 145
Additional Statutory Prohibitions 146
Duty to Avoid Discriminatory Practices 147
Covenant of Quiet Enjoyment 147
Tenants’ Duties and Landlords’ Remedies 148
Eviction Process 149
Security Deposits 150
End-of-Chapter Checklist 150
Sample Essay Question 151
CHAPTER ELEVEN
Family Law 153
Introduction 153
Chapter Objectives and Outcomes 153
CONTENTS xv
Objectives 153
Outcomes 154
Marriage Requirements 154
Dissolution of Marriage 155
Procedure for Dissolution of Marriage 155
Grounds for Divorce 155
Jurisdiction 156
Jurisdiction for Parental Responsibility Determination 157
Parental Responsibility 158
Best Interest of the Child 158
Parenting Plan 158
Relocation 159
Parenting Plan Modification 159
Child Support 160
Alimony 160
Five Types of Alimony 161
Alimony Pendante Lite (Suit Money) 161
Bridge-the-Gap Alimony 161
Rehabilitative Alimony 161
Durational Alimony 161
Permanent Alimony 162
Modification of Alimony 162
Property Division 162
End-of-Chapter Checklist 163
Sample Essay Question 164
CHAPTER TWELVE
Trusts 165
Introduction 165
Chapter Objectives and Outcomes 166
Objectives 166
Outcomes 166
Types of Trusts 167
Express Trusts 168
The Settlor 169
Intent 169
Identifiable Trust Property 170
Trustee 170
Beneficiaries 170
xvi CONTENTS
Valid Purpose 170
Common Issues in Trust Formation 171
Discretionary Trusts and Spendthrift Trusts 171
Exception Creditors 172
Charitable Trusts 172
Honorary Trusts 173
Trust Administration 174
Trustee Duties 174
Duty of Loyalty 175
Duty of Impartiality 175
Duty to Report 176
Duty to Keep Trust Property Separate and Keep Records 176
Duty to Enforce Claims and Protect from Attack 176
Duty to Preserve Trust Property and Make It Productive 177
Beneficiary Issues 177
Trust Modification and Termination 178
End-of-Chapter Checklist 179
Sample Essay Question 179
CHAPTER THIRTEEN
Professional Responsibility 181
Introduction 181
Chapter Objectives and Outcomes 182
Objectives 182
Outcomes 182
Attorney/Client Relationship 182
Conflicts with Current Clients 183
Imputed Conflicts 184
Conflicts with Attorney’s Interests 184
Gifts to the Attorney or the Attorney’s Family 184
Conflicts Based on a Former Client 184
Conflicts Based on Government Employment 185
Representing Organizations 185
Termination of Attorney/Client Relationship 186
Communications and Advertising 186
Advertisements 186
Solicitation 187
Communication with Parties Other Than the Client 188
Duties and Professional Expectations 188
CONTENTS xvii
End-of-Chapter Checklist 189
Sample Essay Question 190
Sample Question 190
CHAPTER FOURTEEN
Continuing Your Study Plan 191
Introduction 191
Chapter Objectives and Outcomes 191
Objectives 191
Outcomes 192
Post-Graduation Planning 192
The Days after Your Final Exam 192
Routine versus Schedule 193
Attitude is Important 194
Tips for Success 194
End-of-Chapter Checklist 195
xix
ACKNOWLEDGMENTS
T
his book was supported by a research grant from my home institution, Stetson
University College of Law. That grant, and the encouragement to teach the
course from which this book draws its purpose, are the reasons I decided to
pursue this project.
I would be remiss if I did not give credit to Jennifer McCarthy, of Cognella Publish-
ing, who first reached out and planted the seed that grew quickly into a decision to pull
together the resources that were most useful to my course. Others at Cognella were
important in this process. Susana Christie provided essential guidance as I attempted
to understand the key components of an effective classroom resource. Amy Smith and
Tony Paese understood exactly how to keep me on task without being overbearing.
Numerous others at Cognella who were not as directly involved were helpful and
responsive whenever I interacted with them. All of these interactions made my initial
experience in this publication process much more positive than I had anticipated!
I work with a group of wonderful professionals who care deeply about our students.
My colleagues at Stetson College of Law, especially those who have been part of the
Academic Success and Bar Prep Department, have provided information, resources,
ideas, and support that have been essential to my success and that of my students.
Ilook forward to many more years with all of these dedicated folks!
Finally, I must thank those who have provided support and encouragement through
this process. My daughters, Leigh-Anne and Courtney, who both understand this type
of undertaking, have helped me celebrate the milestones and have patiently listened to
my frustration with fitting this type of work into the rest of my obligations. My good
friend, Joe, graciously put up with my need to write on a regular basis, no matter where
we were, when there were other fun things that we could have been doing. And, Mark,
the person who saw all of the ups and downs of this process, at times on an almost
daily basis, continued to provide support and encouragement and instinctively knew
when to listen and when to provide a much-needed distraction. This would have been
a much less successful endeavor without the help all of you provided, and for that Iam
very grateful.
xxi
INTRODUCTION
The will to succeed is important, but what’s more important is the will
to prepare.
—Bobby Knight
Purpose of this Book
The final year of law school is an exciting time. Classes begin to pull several subject
areas together. Experiential opportunities often provide students with the chance to
interact with real clients and live cases. Students begin to recognize what practicing
law will be like and how they will begin to engage with the world as an attorney rather
than a law student.
Yet, third year also brings the anxiety of finding a job and of passing the bar exam.
In fact, many job offers are contingent on passing the bar exam. Other job offers don’t
even arise until after the bar results are in hand. So, at the same time students are
excited about seeing the light at the end of the tunnel and how they will fit in that new
situation, they live with the ominous recognition that they must prepare for and pass
the bar exam in order to transition to the first stage of their legal career.
The bar exam is a necessary evil. You must remember that you already possess
all that you need to conquer this challenge and succeed. It’s just a matter of
understanding how to use what you have.
Most professions require an entrance examination. But not all provoke the level of
stress that the bar exam does. The bar exam is a high-stakes assessment that serves as
a gateway to the profession. It is unlike most of the tests that students have completed
in law school. The essay portion of the exam requires students to recognize legal
issues, understand legal principles, and communicate those to the bar graders
efficiently and effectively.
This book was created to help law students and those attorneys licensed in other
states who want to practice in Florida prepare for the essay portion of the Florida bar
exam. The morning session of the first day of the Florida bar exam requires examinees
to demonstrate their understanding of Florida law by writing three essays, covering
multiple subject areas, in three hours.
Law students and practicing attorneys have been taught how to write like a lawyer.
Multiple legal writing courses are included in the law school curriculum. An entire
semester-long course (or more) teaches students how to convey their analysis of legal
issues. Yet many of these writing skills are not useful for the Florida bar essay responses.
In fact, some of the skills and techniques of effective legal writing for certain
types of practice or certain types of documents are quite the opposite of what
works for bar essays.
The purpose of this book is to identify the legal writing skills that are useful for
the Florida bar essays and to help students develop additional skills necessary to
xxii FLORIDA BAR EXAM ESSAY PREP Strategies and Study Material
create effective essay responses. Students will learn to understand the nature and structure of an
effective bar essay so they no longer have to think about how to present their response and can
instead focus on what to include in that response. By using content that is essential to know for
the bar exam, the book also provides students an opportunity to strengthen their understanding
of these critical legal rules so they are more likely to accurately describe and apply the law
to the legal issues presented in the Florida bar essay questions.
Focus on Florida-Specific Rules
The Florida Board of Bar Examiners identifies a long list of subject areas from which they create
the questions on the Florida portion of the bar exam. This book focuses on a portion of those
subjects, and a sub-set of the content in each subject is addressed. Students and others who
intend to the take the Florida bar exam have numerous resources available to review all of the sub-
jects potentially tested on the bar exam. There is no need to repeat that information here.
Instead, the chapters that focus on the content of the bar exam include the subject areas that
have been tested more frequently than others. Within those subject areas, the rules that are
specific to Florida are emphasized. These are the rules that are most likely to be tested by the
Florida bar examiners. By knowing the rule that is specific to Florida, especially when it differs
from the general rules tested on the multistate portion of the exam, you will set yourself apart
from those who study only general legal concepts and assume they will be sufficiently prepared
for the Florida essays.
Study Tools and Techniques
For more than 35 years I have worked with students to enhance their learning and their commu-
nication of that learning to others. More than twenty of those years have been focused on helping
students learn legal concepts, apply those concepts to legal problems, and communicate their analysis
to others in effective legal writing. This book includes the tools and techniques I have found most
effective for studying large amounts of information and for communicating clearly and effectively.
Several chapters of this book are devoted specifically to study techniques and tools to assist
in your memorization of the law that will be required on the bar exam. These tools and tech-
niques also focus on ways to effectively communicate your essay response to maximize the points
you earn on each essay. By learning how to structure your response now, before you engage in the
intense study of the law that occurs between graduation and the bar exam, you will be able to focus
all of your energy on learning the law while your communication of that understanding will have
become automatic, needing no additional thought or decision making.
Imagine completing your bar study and walking into the bar exam confident that you have
studied the law that you need to know and that you understand how to convey that knowledge
effectively, allowing the bar examiners to award points easily. That confidence will alleviate much
of the anxiety that is often associated with the bar exam.
Several years ago, in response to a nationwide drop in pass rates for the bar exam from which
Stetson students were not exempt, faculty at Stetson University College of Law, where I have taught
Legal Research and Writing since 2006, responded by adding two courses that focus specifically on
the Florida portion of the Florida bar exam. For the past four years I have taught about 150 students
per year in the Florida-specific course that addresses preparation for the essay portion of the bar
exam. Since its implementation we have seen a positive correlation between taking this course and
passing the bar exam the first time. The chances of passing the Florida bar exam increase if you take
the course I teach at Stetson. This book gathers the tools and information presented during that
INTRODUCTION xxiii
course. It is meant to be used in conjunction with the course or as a standalone guide to studying
for the Florida essay portion of the bar exam. However, neither the course nor the book alone are
sufficient to be ready to take the bar exam. These are resources designed to enhance your formal
bar study—not to replace it.
Recently I assisted our bar preparation program host a luncheon for students who were taking
the Florida bar exam. Students who joined us for lunch had just completed the Florida essay por-
tion of the exam. Many were students who had taken my class and used the tools and techniques
contained in this book. One of the first students I spoke with handed me the essay questions they
were required to answer. He smiled as I read the first question. As I finished reading he asked if his
feeling that a portion of the question was asking exactly what one of our practice questions had
asked was accurate. And it was. Then he pointed me to the third question. Though the details were
different, the issues in the question were identical to a question we had used in class to demonstrate
organization and essay-writing tools. Needless to say, he and the rest of the students who had studied
these materials in class felt very confident about their responses.
If you have picked up this book, whether in conjunction with a course or as an independent
study tool, you are already one step ahead of others. You are thinking about the best way to be
prepared to pass the Florida bar exam. Congratulations. If you follow through and embrace the
tools and techniques presented here and begin to memorize the legal rules contained in this book,
you will be well on your way to setting yourself up for success on the bar. Don’t hesitate. Beginning
early is important. The amount of information you need to review and learn is significant. But, with
dedication and persistence you can be prepared and can walk into the exam as confident as the
students I just described who finished the essay portion of the Florida bar exam confident that they
had performed well and ready to tackle the second part of the day with that same level of confidence.
Remember, you have what it takes.
