Essay Question Analysis for February 2017 Virginia Bar Exam

After each administration of the Virginia Bar, students email me to ask questions.  Most of the time, they just want to confirm an answer that they already think they got right.  Sometimes, they want to tell me how the topics were unexpected or that they seemed more difficult than usual (after every exam, everyone swears that their exam was the hardest ever).

The February 2017 bar exam was no different. Everyone who emailed me various questions and concerns focused on the same 4 things that they saw on the essay exam.  Please note that out of 9 essay questions, each question having many different legal sub-topics within it, everyone who emailed me was focused on one or more of these same 4 things.  That means that many people felt unsure about these same four legal areas. If you also felt unsure about these things, you should be encouraged by that.

    1. Under FRCP Rule 11 for sanctions – does a party need to serve the opposing counsel in advance of filing the motion with the court to allow the party to reconsider their action before the court considers the sanction? 
      1. This is called the “safe harbor” provision. Yes, the motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. See
    2. Once a defendant has filed notice to remove a state court to federal court, and has answered the complaint, can the Plaintiff amend the complaint or would they first need to seek permission from the court (since the defendant has answered already)?
      1. Rule 15 would apply.  see:  Also, 28 U.S.C. Section 1447(e) applies and makes this decision essentially discretionary.
    3. In a criminal case, can a wife voluntarily testify against the husband on communication she and the husband had where the wife is not the victim of the crime?
      1. See  The Court did not err in allowing Janis, the Defendant’s current wife, to take the stand as a witness against the Defendant. The Commonwealth may call Janis as a witness so long as she consents to testify against her husband.
      2.  However, the Court did err when it allowed Janis to testify to specific comments made in their bedroom related to Keith. When the Defendant made those comments to his wife, he intended them to be a “confidential communication” and they were married at the time. Therefore, he can prevent his wife from testifying as to the content of that private communication.
    4. In a transaction that involves the sale of goods and service, but goods dominates the transaction (based on costs and the labor is based on the goods), would the agreement fall under the UCC?
      1. The cost of labor is a determining factor.  A good article on this issue is here: Here, the majority of the cost was for asphalt, and therefore it will be treated as a contract for goods and UCC Article 2 applies.

So there you have it. The four things that most people worried about after having taken the Virginia Bar Exam in February of 2017.