Essay Frequency Analysis For the California Bar Exam February 2021 Edition DISCLAIMER The SmartBarPrep California Essay Frequency Analysis (hereinafter “Study Guide”) is designed to assist you in studying for the California Bar Exam. It is NOT designed to be a prediction of what will be asked on the upcoming California Bar Exam or any future examinations. Although many of the same subjects and rules have been repeated on past California Bar Exam essay questions, there is NO GUARANTEE that any future California Bar Exam will test the same or similar subjects and/or rules that have appeared on past exams. SmartBarPrep makes NO WARRANTIES or GUARANTEES as to what subject areas and/or legal rules the California Committee of Bar Examiners or any other bar examiners will test on the upcoming California Bar Exam or any future examinations. 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If you have any questions, comments, or suggestions please feel free to email us at any time. contact@smartbarprep.com Table of Contents Description Page Subject Frequency – Past 38 Exams ........................................................................................................ 1 Subject Frequency Chart – Past 38 Exams ........................................................................................... 2 Subject Frequency – Past 222 Essays ...................................................................................................... 3 Rule Frequency .............................................................................................................................................. 4 © 2021 SmartBarPrep | www.smartbarprep.com 1 SmartBarPrep Frequency Analysis Subjects Appearing on Past California Bar Exam Essays Subject Frequency – Past 38 Exams Subject Number of Times Subject Appeared on Past Exams Percentage (%) Subject Appeared on Past Exams Agency 6 out of 38 exams 16% Partnerships 6 out of 38 exams 16% Corporations 13 out of 38 exams 34% Civil Procedure 17 out of 38 exams 45% Community Property 22 out of 38 exams 58% Constitutional Law 23 out of 38 exams 61% Contracts 25 out of 38 exams 66% Criminal Law 14 out of 38 exams 37% Criminal Procedure 15 out of 38 exams 39% Evidence 25 out of 38 exams 66% Professional Responsibility 37 out of 38 exams 97% Real Property 20 out of 38 exams 53% Remedies 28 out of 38 exams 74% Torts 24 out of 38 exams 63% Trusts 13 out of 38 exams 34% Wills & Estates 20 out of 38 exams 53% **NOTE FOR FEB. 2021 Version: Unfortunately, the October 2020 California bar exam statistics were not available to be included in the February 2021 version of the California Essay Frequency Analysis.** © 2021 SmartBarPrep | www.smartbarprep.com 2 SmartBarPrep Frequency Analysis Subjects Appearing on Past California Bar Exam Essays Subject Frequency Chart – Past 38 Exams Agency 6 Partnerships 6 Corporations 13 Civil Procedure 17 Community Property 22 Constitutional Law 23 Contracts 25 Criminal Law 14 Criminal Procedure 15 Evidence 25 Professional Responsibility 37 Real Property 20 Remedies 28 Torts 24 Trusts 13 Wills & Estates 20 0 5 10 15 20 25 # of Times Tested © 2021 SmartBarPrep | www.smartbarprep.com 30 35 40 3 SmartBarPrep Frequency Analysis Subjects Appearing on Past California Bar Exam Essays Subject Frequency – Past 222 Essays Subject Number of Times Subject Appeared on Past Essays Percentage (%) Subject Appeared on Past Essays Agency 6 out of 222 essays 3% Partnerships 6 out of 222 essays 3% Corporations 13 out of 222 essays 6% Civil Procedure 19 out of 222 essays 9% Community Property 23 out of 222 essays 10% Constitutional Law 24 out of 222 essays 11% Contracts 35 out of 222 essays 16% Criminal Law 14 out of 222 essays 6% Criminal Procedure 16 out of 222 essays 7% Evidence 29 out of 222 essays 13% Professional Responsibility 44 out of 222 essays 20% Real Property 21 out of 222 essays 9% Remedies 37 out of 222 essays 17% Torts 25 out of 222 essays 11% Trusts 13 out of 222 essays 6% Wills & Estates 20 out of 222 essays 9% © 2021 SmartBarPrep | www.smartbarprep.com 4 SmartBarPrep Frequency Analysis Rules Appearing on Past California Bar Exam Essays Rule Frequency Total Bar Exams Analyzed 38 Total # of Essays 222 Total # of Rules Analyzed 538 Subject Rule # of Times Rule Appeared on Past Exams Agency Creation of Agency Relationship 2 5.3% Agency Authority of Agent: Actual Authority 6 15.8% Agency Authority of Agent: Apparent Authority 6 15.8% Agency Ratification of Agent’s Contracts 2 5.3% Agency Employee vs. Owner (Sole-Proprietor, Partner, Member, Shareholder) 1 2.6% Agency Vicarious Liability: Doctrine of Respondeat Superior 4 10.5% Agency Vicarious Liability: Employee vs. Independent Contractor 2 5.3% Agency Employee Liability for Negligent Conduct & Indemnification 1 2.6% Partnerships Creation of a General Partnership 5 13.2% Partnerships Formation of a Limited Partnership (LP) 1 2.6% Partnerships Formation of a Limited Liability Partnership (LLP) 3 7.9% Partnerships Partnership vs. Separate Businesses 1 2.6% Partnerships Authority to Bind the Partnership 2 5.3% Partnerships Personal Liability of General Partners 4 10.5% © 2021 SmartBarPrep | www.smartbarprep.com % out of Exams Tested 5 SmartBarPrep Frequency Analysis Subject Rule # of Times Rule Appeared on Past Exams Partnerships Personal Liability of Limited Liability Partners 2 5.3% Partnerships Transfer of Ownership Interest in a Partnership 1 2.6% Partnerships Fiduciary Duties Owed by Partners 1 2.6% Partnerships Winding Up & Termination of the Partnership 1 2.6% Corporations Formation of a Corporation & Articles of Incorporation 3 7.9% Corporations Formation of an LLC 0 0.0% Corporations De Jure Corporation 2 5.3% Corporations De Facto Corporation 2 5.3% Corporations Corporation by Estoppel 3 7.9% Corporations Liability for Pre-Incorporation Contracts 4 10.5% Corporations Ultra Vires Acts 1 2.6% Corporations Shareholder Liability & Piercing the Corporate Veil 5 13.2% Corporations Watered Stock 1 2.6% Corporations Dividends & Distributions to Shareholders 1 2.6% Corporations Shareholder Meetings: Proxy Voting & Revocation of a Proxy 1 2.6% Corporations Shareholder Voting Agreements & Trusts 2 5.3% Corporations Board of Directors Meeting: Quorum 1 2.6% Corporations Compensation of Directors & Officers 2 5.3% Corporations Election of Directors 1 2.6% Corporations Removal of Directors & Officers 2 5.3% Corporations Authority of Officers 1 2.6% Corporations Duty of Care & Business Judgment Rule 9 23.7% Corporations Duty of Loyalty: Fiduciary Duty Owed 8 21.1% Corporations Duty of Loyalty: Conflicting Interest Transaction 8 21.1% Corporations Duty of Loyalty: Usurping a Corporate Opportunity 5 13.2% Corporations Direct & Derivative Actions 2 5.3% Corporations Fundamental Changes to a Corporation 2 5.3% Corporations Federal Securities Law – Rule 10b-5 2 5.3% Corporations Federal Securities Law – Section 16(b) 2 5.3% Corporations Dissolution: Distribution of Corporate Assets 2 5.3% Corporations Dissolution: Equitable Subordination & The Deep Rock Doctrine 1 2.6% Civil Procedure Subject Matter Jurisdiction: California State Courts 1 2.6% Civil Procedure Federal Subject Matter Jurisdiction: Intro Statement 11 28.9% © 2021 SmartBarPrep | www.smartbarprep.com % out of Exams Tested 6 SmartBarPrep Frequency Analysis Subject Rule # of Times Rule Appeared on Past Exams Civil Procedure Federal Subject Matter Jurisdiction: Federal Question 11 28.9% Civil Procedure Federal Subject Matter Jurisdiction: Diversity of Citizenship 11 28.9% Civil Procedure Federal Subject Matter Jurisdiction: Alienage Diversity 0 0.0% Civil Procedure Federal Subject Matter Jurisdiction: Foreign State Diversity 0 0.0% Civil Procedure Federal Subject Matter Jurisdiction: Supplemental Jurisdiction 3 7.9% Civil Procedure Removal to Federal Court 5 13.2% Civil Procedure Remand from Federal Court to State Court 3 7.9% Civil Procedure Venue in Federal Court 2 5.3% Civil Procedure Venue in California State Court 1 2.6% Civil Procedure Residence of a Party for Venue Purposes 2 5.3% Civil Procedure Personal Jurisdiction: Traditional Bases 8 21.1% Civil Procedure Personal Jurisdiction: Long Arm Statute & Constitutional Minimum Contacts Analysis 6 15.8% Civil Procedure Service of Process and Notice: California State Court Actions 1 2.6% Civil Procedure Service of Process and Notice: Federal Court Actions 1 2.6% Civil Procedure Law Applied by Federal Courts: Erie Doctrine, Substance vs. Procedure, & Supremacy Clause 3 7.9% Civil Procedure Counterclaims 1 2.6% Civil Procedure Amending a Pleading: Relation Back Doctrine 2 5.3% Civil Procedure Sufficiency of Pleading: Well-Pleaded Complaint Rule 1 2.6% Civil Procedure Compulsory Joinder of Parties 1 2.6% Civil Procedure Joinder of Claims 1 2.6% Civil Procedure Scope of Discoverable Information 5 13.2% Civil Procedure Compelled Physical and Mental Examinations 3 7.9% Civil Procedure Document Subpoena to a Non-Party (Subpoena Duces Tecum) 1 2.6% Civil Procedure Depositions 1 2.6% Civil Procedure Interrogatories in Federal Court 1 2.6% Civil Procedure Disclosure of Expert Testimony 1 2.6% Civil Procedure Asserting Privilege During Discovery 1 2.6% Civil Procedure Motion to Compel Disclosure or Discovery 2 5.3% Civil Procedure Motion for Judgment as a Matter of Law / Judgment of Nonsuit 1 2.6% Civil Procedure Motion to Dismiss in Federal Court 1 2.6% © 2021 SmartBarPrep | www.smartbarprep.com % out of Exams Tested 7 SmartBarPrep Frequency Analysis Subject Rule # of Times Rule Appeared on Past Exams Civil Procedure Summary Judgment 3 7.9% Civil Procedure Right to Jury Trial in Federal Court 3 7.9% Civil Procedure Appeals: Final Judgment Rule 3 7.9% Civil Procedure Appeals: Interlocutory Appeals & Exceptions to Final Judgment Rule 2 5.3% Civil Procedure Claim Preclusion (Res Judicata) 4 10.5% Civil Procedure Issue Preclusion (Collateral Estoppel) 3 7.9% Civil Procedure Choice of Law: Real Property Cases 1 2.6% Community Property Community Property Presumption: Guiding Principle 20 52.6% Community Property Quasi-Community Property 7 18.4% Community Property Illusory Transfer of Quasi-Community Property 1 2.6% Community Property Married Woman’s Special Presumption 2 5.3% Community Property End of the Economic Community 8 21.1% Community Property Putative Spouse 3 7.9% Community Property Unmarried Cohabitants 2 5.3% Community Property Equal Rights of Spouses to Manage Property & Transfers to Third-Parties 7 18.4% Community Property Fiduciary Duties of Spouses 4 10.5% Community Property Property Acquired with Comingled Funds (The Moore Principle) 1 2.6% Community Property Jointly Titled Property & Anti-Lucas Statute 5 13.2% Community Property Personal Injury Awards & Settlements 8 21.1% Community Property Separate Property Business (Van Camp & Pereira Tests) 4 10.5% Community Property Goodwill of a Business 3 7.9% Community Property Life Insurance 1 2.6% Community Property Stock Options 2 5.3% Community Property Credit & Acquisitions of Property Using Credit 2 5.3% Community Property Reimbursement for Property Acquisitions & Improvements 3 7.9% Community Property Professional Degrees & Reimbursement for Education Expenses 3 7.9% Community Property Reimbursement for Child Support & Alimony Payments 3 7.9% Community Property Reimbursement for Medical Expenses 2 5.3% Community Property Pro-Rata Rule – Community Property Funds used to Pay Separate Property Loan 1 2.6% Community Property Transmutations 16 42.1% Community Property Prenuptial Agreements 3 7.9% © 2021 SmartBarPrep | www.smartbarprep.com % out of Exams Tested 8 SmartBarPrep Frequency Analysis Subject Rule # of Times Rule Appeared on Past Exams Community Property Property Creditors May Reach to Satisfy Debts 9 23.7% Community Property Distribution of Community Assets & Debts Upon Divorce 2 5.3% Constitutional Law State Sovereign Immunity (11th Amendment) 5 13.2% Constitutional Law Standing 10 26.3% Constitutional Law Third-Party & Organizational Standing 3 7.9% Constitutional Law Advisory Opinions, Ripeness, & Mootness 3 7.9% Constitutional Law Legislative Powers: Commerce Clause 2 5.3% Constitutional Law Legislative Powers: Commerce Clause & Regulation of Intrastate Activities 1 2.6% Constitutional Law Legislative Powers: Taxing Power 0 0.0% Constitutional Law Legislative Powers: Spending Power 1 2.6% Constitutional Law Executive Powers: Domestic Powers 1 2.6% Constitutional Law Executive Powers: Treaty and Foreign Affairs Powers 1 2.6% Constitutional Law Delegation of Congressional Powers & Non-Delegation Doctrine 1 2.6% Constitutional Law State Immunity from Federal Law (10th Amendment) 2 5.3% Constitutional Law Negative Commerce Clause 3 7.9% Constitutional Law Supremacy Clause & Preemption 2 5.3% Constitutional Law Governmental Action (“State Action”) 3 7.9% Constitutional Law Incorporation Doctrine 2 5.3% Constitutional Law Prohibition Against Involuntary Servitude 1 2.6% Constitutional Law Substantive Due Process 5 13.2% Constitutional Law Procedural Due Process 5 13.2% Constitutional Law Equal Protection Analysis 7 18.4% Constitutional Law Equal Protection: Inability to Pay Filing Fees 1 2.6% Constitutional Law Takings (5th Amendment) 7 18.4% Constitutional Law Zoning Ordinances/Spot Zoning 1 2.6% Constitutional Law Vested Rights Doctrine 1 2.6% Constitutional Law Privileges and Immunities Clause 2 5.3% Constitutional Law First Amendment – Protections Provided 5 13.2% Constitutional Law Freedom of Religion: Establishment Clause 5 13.2% Constitutional Law Freedom of Religion: Free Exercise Clause 5 13.2% Constitutional Law Freedom of Speech: Content-Based vs. Content-Neutral Restrictions 4 10.5% Constitutional Law Freedom of Speech: Prior Restraint 2 5.3% © 2021 SmartBarPrep | www.smartbarprep.com % out of Exams Tested 9 SmartBarPrep Frequency Analysis Subject Rule # of Times Rule Appeared on Past Exams Constitutional Law Freedom of Speech: Public Forum 3 7.9% Constitutional Law Freedom of Speech: Designated Public Forum 2 5.3% Constitutional Law Freedom of Speech: Non-Public Forum & Limited Public Forum 2 5.3% Constitutional Law Freedom of Speech: Licensing Requirements for Speech in Public Forums 3 7.9% Constitutional Law Freedom of Speech: Regulation of Expressive Conduct 3 7.9% Constitutional Law Freedom of Speech: Regulation of Commercial Speech 1 2.6% Constitutional Law Freedom of Speech: Government Employees 1 2.6% Constitutional Law Freedom of Speech: Corporate & Union Political Expenditures 0 0.0% Constitutional Law Freedom of Speech: Vague & Overbroad Laws 3 7.9% Constitutional Law Unprotected Speech: Obscenity 1 2.6% Constitutional Law Freedom of Association 1 2.6% Contracts Applicable Law: Common Law vs. UCC 20 52.6% Contracts Requirements to Form a Valid Contract 14 36.8% Contracts Mutual Assent: Offer & Acceptance 6 15.8% Contracts Termination/Revocation of Offer 3 7.9% Contracts Merchant’s Firm Offer 1 2.6% Contracts Advertisements 3 7.9% Contracts Timing of Acceptance/Revocation & the Mailbox Rule 2 5.3% Contracts Battle of the Forms (Mirror Image Rule & UCC Exception) 2 5.3% Contracts Implied-in-Fact Contracts 1 2.6% Contracts Output and Requirement Contracts 2 5.3% Contracts Consideration: Bargained for Exchange 6 15.8% Contracts Consideration Substitutes: Promissory Estoppel/Detrimental Reliance 2 5.3% Contracts Incapacity 1 2.6% Contracts Unconscionability 3 7.9% Contracts Mutual Mistake & Unilateral Mistake 4 10.5% Contracts Statute of Frauds: Contracts Requiring a Signed Writing 13 34.2% Contracts Statute of Frauds: Exceptions when a Writing is Not Required 4 10.5% Contracts Modification of Contracts: Pre-Existing Duty Rule & Exceptions 5 13.2% Contracts Parol Evidence Rule 8 21.1% © 2021 SmartBarPrep | www.smartbarprep.com % out of Exams Tested 10 SmartBarPrep Frequency Analysis Subject Rule # of Times Rule Appeared on Past Exams Contracts Condition Precedent 4 10.5% Contracts Frustration of Purpose 4 10.5% Contracts Impossibility 6 15.8% Contracts Impracticability 5 13.2% Contracts Waiver 3 7.9% Contracts Accord and Satisfaction 1 2.6% Contracts Minor Breach (Substantial Performance Doctrine) vs. Material Breach 5 13.2% Contracts Time is of the Essence Clause 2 5.3% Contracts UCC Perfect Tender Rule and Exceptions 4 10.5% Contracts Anticipatory Repudiation & Adequate Assurances 10 26.3% Contracts Implied Obligation of Good Faith and Fair Dealing 1 2.6% Contracts Implied Warranty of Merchantability 3 7.9% Contracts Third-Party Beneficiaries & Enforcement of Rights 1 2.6% Contracts Delegable Duties 1 2.6% Contracts Assignment 2 5.3% Contracts Novation 1 2.6% Criminal Law Murder 6 15.8% Criminal Law Felony Murder Rule 2 5.3% Criminal Law Voluntary Manslaughter 4 10.5% Criminal Law Involuntary Manslaughter 1 2.6% Criminal Law Assault & Battery 1 2.6% Criminal Law Kidnapping 2 5.3% Criminal Law Larceny, Larceny by Trick, & False Pretenses 2 5.3% Criminal Law Embezzlement 1 2.6% Criminal Law Receipt of Stolen Property 2 5.3% Criminal Law Robbery 2 5.3% Criminal Law Burglary 1 2.6% Criminal Law Extortion 1 2.6% Criminal Law Theft Crimes: Continuing Trespass Doctrine 1 2.6% Criminal Law Attempt 5 13.2% Criminal Law Conspiracy 3 7.9% Criminal Law Solicitation 2 5.3% Criminal Law Accomplice Liability 1 2.6% © 2021 SmartBarPrep | www.smartbarprep.com % out of Exams Tested 11 SmartBarPrep Frequency Analysis Subject Rule # of Times Rule Appeared on Past Exams Criminal Law Accessory After the Fact 1 2.6% Criminal Law Legal & Factual Impossibility 2 5.3% Criminal Law Mistake of Fact or Law 1 2.6% Criminal Law Insanity Defense (4 Tests) 1 2.6% Criminal Law Intoxication 1 2.6% Criminal Law Justification: Self-Defense & Defense of Others 2 5.3% Criminal Law Imperfect Self-Defense 1 2.6% Criminal Law Entrapment 1 2.6% Criminal Procedure Fourth Amendment Right – Government Action & Standing 12 31.6% Criminal Procedure Lawful Arrests 3 7.9% Criminal Procedure Request for Information, Stop and Inquire, & Stop and Frisk 4 10.5% Criminal Procedure Warrant Requirement for All Searches, Unless an Exception Applies 6 15.8% Criminal Procedure Government Use of Sensory Enhancement Technology 2 5.3% Criminal Procedure Exception to Warrant Requirement: Plain View Doctrine 4 10.5% Criminal Procedure Exception to Warrant Requirement: Exigent Circumstances 2 5.3% Criminal Procedure Exception to Warrant Requirement: Search Incident to Arrest 3 7.9% Criminal Procedure Exception to Warrant Requirement: Consent 3 7.9% Criminal Procedure Exception to Warrant Requirement: Administrative & Inventory Searches 1 2.6% Criminal Procedure Exception to Warrant Requirement: Checkpoints 2 5.3% Criminal Procedure Exception to Warrant Requirement: Automobile Exception 1 2.6% Criminal Procedure 5th Amendment Privilege Against Self-Incrimination & Miranda Rights 8 21.1% Criminal Procedure Waiver of Miranda Rights 1 2.6% Criminal Procedure 6th Amendment Right to Counsel & Effective Assistance of Counsel 5 13.2% Criminal Procedure Waiver of 6th Amendment Right to Counsel 1 2.6% Criminal Procedure Right to Testify 1 2.6% Criminal Procedure Right to Self-Representation 2 5.3% Criminal Procedure Right to Speedy Trial 1 2.6% Criminal Procedure Line-Ups & Police-Arranged Identification Procedures 1 2.6% Criminal Procedure Due Process Clause: Catch-All 1 2.6% Criminal Procedure Exclusionary Rule/Fruit of Poisonous Tree Doctrine 8 21.1% © 2021 SmartBarPrep | www.smartbarprep.com % out of Exams Tested 12 SmartBarPrep Frequency Analysis Subject Rule # of Times Rule Appeared on Past Exams Criminal Procedure Exclusionary Rule: Miranda Violations & Limitations 3 7.9% Criminal Procedure Guilty Plea Requirements 1 2.6% Evidence Relevance (Logical & Legal Relevance) 21 55.3% Evidence California Proposition 8 6 15.8% Evidence Subsequent Remedial Measures 2 5.3% Evidence Evidence of Liability Insurance 2 5.3% Evidence Offers to Pay Medical Bills 3 7.9% Evidence Offers to Settle 2 5.3% Evidence Statements of Sympathy 1 2.6% Evidence Authentication of Evidence: General Rule 10 26.3% Evidence Authentication of Evidence: Physical Evidence 9 23.7% Evidence Authentication of Evidence: Voice Recordings 2 5.3% Evidence Best Evidence Rule 10 26.3% Evidence Character Evidence 5 13.2% Evidence Prior Bad Acts 4 10.5% Evidence Habit and Routine Practice 1 2.6% Evidence Impeachment: Prior Inconsistent Statements 2 5.3% Evidence Impeachment: Prior Convictions 2 5.3% Evidence Impeachment: Specific Instances of Conduct (“Bad Acts”) 2 5.3% Evidence Impeachment: Bias 1 2.6% Evidence Lay Witness Testimony & Opinions 11 28.9% Evidence Expert Witness Testimony 4 10.5% Evidence Scope of Cross-Examination 1 2.6% Evidence Refreshing Recollection 2 5.3% Evidence Judicial Notice 2 5.3% Evidence Trial Objections: Assumes Facts Not in Evidence 2 5.3% Evidence Trial Objections: Calls for Narrative 1 2.6% Evidence Trial Objections: Leading Question 3 7.9% Evidence Trial Objections: Non-Responsive Answer 1 2.6% Evidence Trial Objections: Speculation 1 2.6% Evidence Trial Objections: Vagueness 1 2.6% Evidence Prohibition Against Jury Investigations 1 2.6% Evidence Hearsay Definition 20 52.6% Evidence Multiple Hearsay 5 13.2% © 2021 SmartBarPrep | www.smartbarprep.com % out of Exams Tested 13 SmartBarPrep Frequency Analysis Subject Rule # of Times Rule Appeared on Past Exams Evidence Non-Hearsay: Statements Offered for Other Purpose 8 21.1% Evidence Hearsay Exclusion: Statements by a Party Opponent 17 44.7% Evidence Hearsay Exclusion: Adoptive Admission 2 5.3% Evidence Hearsay Exclusion: Vicarious Admissions 6 15.8% Evidence Hearsay Exclusion: Prior Statement of Identification 1 2.6% Evidence Hearsay Exception: Declarant Unavailable Requirement 6 15.8% Evidence Hearsay Exception: Dying Declaration 2 5.3% Evidence Hearsay Exception: Statement Against Interest 7 18.4% Evidence Hearsay Exception: Prior Statements Made Under Oath 2 5.3% Evidence Hearsay Exception: Excited Utterance / Spontaneous Statement 9 23.7% Evidence Hearsay Exception: Present Sense Impression 12 31.6% Evidence Hearsay Exception: Business Records 7 18.4% Evidence Hearsay Exception: Government/Public Records 2 5.3% Evidence Hearsay Exception: Past Recollection Recorded 2 5.3% Evidence Hearsay Exception: State of Mind 9 23.7% Evidence Hearsay Exception: Statements Made for Medical Diagnosis/Treatment 2 5.3% Evidence Hearsay Exception: Catch-All Exception 1 2.6% Evidence Confrontation Clause (6th Amendment) 5 13.2% Evidence Privilege & Eavesdroppers 2 5.3% Evidence Attorney-Client Privilege 5 13.2% Evidence Attorney Work Product Doctrine 4 10.5% Evidence Physician-Patient Privilege 1 2.6% Evidence Spousal Privileges: Confidential Marital Communications 2 5.3% Evidence Spousal Privileges: Spousal Immunity 2 5.3% Professional Responsibility Formation of Lawyer-Client Relationship 5 13.2% Professional Responsibility Proper Scope of Lawyer-Client Relationship 4 10.5% Professional Responsibility Advising or Assisting the Violation of Law 1 2.6% Professional Responsibility Duty of Competence 21 55.3% Professional Responsibility Duty of Communication 7 18.4% © 2021 SmartBarPrep | www.smartbarprep.com % out of Exams Tested 14 SmartBarPrep Frequency Analysis Subject Rule # of Times Rule Appeared on Past Exams Professional Responsibility Duty of Diligence 6 15.8% Professional Responsibility Duty of Confidentiality 19 50.0% Professional Responsibility Inadvertent Disclosure of Confidential Information 1 2.6% Professional Responsibility Duty to Safeguard Property 2 5.3% Professional Responsibility Conflict of Interest: Duty of Loyalty 26 68.4% Professional Responsibility Conflict of Interest: Current Clients 18 47.4% Professional Responsibility Conflict of Interest: Former Clients 7 18.4% Professional Responsibility Conflict of Interest: Prospective Clients 0 0.0% Professional Responsibility Conflict of Interest: Imputed Conflicts 3 7.9% Professional Responsibility Conflict of Interest: Former Lawyer for Government 2 5.3% Professional Responsibility Business Ownership by a Lawyer 1 2.6% Professional Responsibility Business Transactions with a Client & Pecuniary Interests Adverse to the Client 4 10.5% Professional Responsibility Proprietary Interest in a Case 3 7.9% Professional Responsibility Use of Current Client’s Information 2 5.3% Professional Responsibility Gifts from a Client 0 0.0% Professional Responsibility Acquisition of Client’s Literary/Media Rights 0 0.0% Professional Responsibility Financial Assistance & Loans to Clients 3 7.9% Professional Responsibility Payment of Legal Fees by a Third-Party 3 7.9% Professional Responsibility Serving on the Board of a Client’s Organization 2 5.3% Professional Responsibility Aggregate Settlements & Pleas 0 0.0% Professional Responsibility Limiting Liability to a Client 1 2.6% © 2021 SmartBarPrep | www.smartbarprep.com % out of Exams Tested 15 SmartBarPrep Frequency Analysis Subject Rule # of Times Rule Appeared on Past Exams Professional Responsibility Sexual Relations with Clients 3 7.9% Professional Responsibility Organization as Client: Lawyer Represents the Organization 3 7.9% Professional Responsibility Organization as Client: Reporting Violations 2 5.3% Professional Responsibility Mandatory Withdrawal 5 13.2% Professional Responsibility Permissive Withdrawal 3 7.9% Professional Responsibility Duty of Candor to the Court 10 26.3% Professional Responsibility Witness Perjury 5 13.2% Professional Responsibility Ex Parte Communications with the Court 1 2.6% Professional Responsibility Filing Frivolous Claims & Contentions 7 18.4% Professional Responsibility Obstructing or Altering Discoverable Evidence 2 5.3% Professional Responsibility Improper Influence 1 2.6% Professional Responsibility Proper Discovery Requests & Compliance 2 5.3% Professional Responsibility Payments to Witnesses 2 5.3% Professional Responsibility Lawyer as Witness 1 2.6% Professional Responsibility Communication with a Represented Person 4 10.5% Professional Responsibility Trial Publicity – Extrajudicial Statements to the Public 3 7.9% Professional Responsibility Special Rules for Prosecutors 2 5.3% Professional Responsibility Threat of Criminal, Administrative, or Disciplinary Charges 2 5.3% Professional Responsibility Amount of Lawyer’s Fees 7 18.4% Professional Responsibility General Fee Agreements 4 10.5% Professional Responsibility Contingency Fee Agreements 6 15.8% © 2021 SmartBarPrep | www.smartbarprep.com % out of Exams Tested 16 SmartBarPrep Frequency Analysis Subject Rule # of Times Rule Appeared on Past Exams Professional Responsibility Advance Payments & True Retainers 0 0.0% Professional Responsibility Fee Divisions Among Lawyers 3 7.9% Professional Responsibility Sharing Legal Fees with Non-Lawyers 5 13.2% Professional Responsibility Communications Concerning a Lawyer’s Services 0 0.0% Professional Responsibility Advertising Legal Services 3 7.9% Professional Responsibility Solicitation of Clients 4 10.5% Professional Responsibility Compensation for Recommending Lawyer’s Services 3 7.9% Professional Responsibility Professional Independence of a Lawyer 2 5.3% Professional Responsibility Unauthorized Practice of Law 2 5.3% Professional Responsibility Responsibilities Regarding Non-Lawyer Assistants 3 7.9% Professional Responsibility Employment of Disbarred, Suspended, Resigned, or Involuntary Active Lawyer 2 5.3% Professional Responsibility Professional Misconduct 2 5.3% Professional Responsibility Responsibilities of a Subordinate Lawyer 1 2.6% Professional Responsibility Reporting Professional Misconduct 2 5.3% Real Property Present Estates: Defeasible Fees 2 5.3% Real Property Future Estates: Reverter & the Right of Re-Entry 2 5.3% Real Property Restraints on Alienation 2 5.3% Real Property Waste 1 2.6% Real Property Joint Tenancy: Formation 4 10.5% Real Property Joint Tenancy: Severance 4 10.5% Real Property Co-Tenant’s Entitlement to Rent or Reimbursement for Repairs/Improvements 3 7.9% Real Property Ouster of a Co-Tenant 1 2.6% Real Property Types of Leasehold Interests 4 10.5% Real Property Right to Terminate Tenancy for Breach of Covenant 1 2.6% Real Property Tenant Duties: Duty to Pay Rent 3 7.9% © 2021 SmartBarPrep | www.smartbarprep.com % out of Exams Tested 17 SmartBarPrep Frequency Analysis Subject Rule # of Times Rule Appeared on Past Exams Real Property Landlord Duties: Duty to Deliver Possession 1 2.6% Real Property Landlord Duties: Implied Warranty of Habitability 4 10.5% Real Property Landlord Duties: Constructive Eviction 5 13.2% Real Property Landlord Duties: Duty to Repair 1 2.6% Real Property Landlord Duties: Duty to Mitigate Damages 3 7.9% Real Property Assignment of a Lease 5 13.2% Real Property Subleases 3 7.9% Real Property Termination of Leases: Surrender 1 2.6% Real Property Real Covenants 5 13.2% Real Property Equitable Servitudes 3 7.9% Real Property Common Scheme or Plan Doctrine (Reciprocal Negative Servitude) 1 2.6% Real Property Easements by Grant, Prescription, Implication, & Necessity 5 13.2% Real Property Termination of an Easement 3 7.9% Real Property Licenses 1 2.6% Real Property Fixtures 1 2.6% Real Property Adverse Possession 1 2.6% Real Property Requirements for a Valid Land Sale Contract 2 5.3% Real Property Warranty of Marketable Title 2 5.3% Real Property Revocation of a Land Sale Contract 1 2.6% Real Property Deed Requirements 2 5.3% Real Property Deeds: Constructive Conveyance 1 2.6% Real Property General Warranty Deed, Special Warranty Deed, & Quitclaim Deed 2 5.3% Real Property Recording Statutes 4 10.5% Real Property Bona Fide Purchasers & The Shelter Rule 3 7.9% Real Property Purchase Money Mortgage 1 2.6% Real Property Deed of Trust 1 2.6% Real Property Mortgages: Foreclosure, Order of Preference, & Deficiency Judgments 2 5.3% Real Property Lateral Support 1 2.6% Real Property Public and Private Nuisance 5 13.2% Real Property Zoning Ordinances: Variances 1 2.6% Real Property Zoning Ordinances: Previous Non-Conforming Use 1 2.6% Real Property Discrimination: Fair Housing Act 0 0.0% © 2021 SmartBarPrep | www.smartbarprep.com % out of Exams Tested 18 SmartBarPrep Frequency Analysis Subject Rule # of Times Rule Appeared on Past Exams Remedies Contracts: Available Legal Remedies 13 34.2% Remedies Expectation Damages 11 28.9% Remedies Reliance Damages 6 15.8% Remedies Consequential Damages 7 18.4% Remedies Incidental Damages 7 18.4% Remedies Restitution Damages 6 15.8% Remedies Liquidated Damages 1 2.6% Remedies Damages in Contracts for the Sale of Land 2 5.3% Remedies UCC Buyer’s Remedies & Damages 3 7.9% Remedies UCC Seller’s Remedies & Damages 1 2.6% Remedies Unjust Enrichment (Quasi-Contract) 3 7.9% Remedies Reformation 4 10.5% Remedies Rescission 5 13.2% Remedies Specific Performance 13 34.2% Remedies Torts: Available Legal Remedies 3 7.9% Remedies Compensatory Damages 4 10.5% Remedies Nominal Damages 3 7.9% Remedies Punitive Damages 3 7.9% Remedies Restitution Damages 3 7.9% Remedies Damages for Fraud 2 5.3% Remedies Damages for Conversion of Property 2 5.3% Remedies Damages for Trespass to Chattels 2 5.3% Remedies Damages for Trespass to Land 1 2.6% Remedies Temporary Restraining Orders 4 10.5% Remedies Preliminary Injunction 5 13.2% Remedies Permanent Injunction 2 5.3% Remedies Declaratory Judgment in Federal Court 1 2.6% Remedies Equitable Lien 2 5.3% Remedies Constructive Trust 4 10.5% Remedies Replevin 1 2.6% Remedies Ejectment 2 5.3% Remedies Purchase Money Resulting Trust 1 2.6% Remedies Pro Rata Resulting Trust 1 2.6% Remedies Defenses: Laches 11 28.9% © 2021 SmartBarPrep | www.smartbarprep.com % out of Exams Tested 19 SmartBarPrep Frequency Analysis Subject Rule # of Times Rule Appeared on Past Exams Remedies Defenses: Unclean Hands 11 28.9% Remedies Defenses: Mitigation of Damages 10 26.3% Remedies Defenses: Intentional & Negligent Misrepresentation 6 15.8% Torts Intentional Torts: General Elements 5 13.2% Torts Doctrine of Transferred Intent 2 5.3% Torts Battery 5 13.2% Torts Assault 3 7.9% Torts False Imprisonment 2 5.3% Torts Intentional Infliction of Emotional Distress 4 10.5% Torts Trespass to Land 5 13.2% Torts Trespass to Chattels & Conversion 5 13.2% Torts Intentional Tort Defenses: Consent 2 5.3% Torts Intentional Tort Defenses: Self-Defense/Defense of Others 1 2.6% Torts Intentional Tort Defenses: Necessity 1 2.6% Torts Intentional Tort Defenses: Privilege to Arrest 1 2.6% Torts Intentional Tort Defenses: Shopkeeper’s Privilege to Detain for Investigation 1 2.6% Torts Negligence Elements 15 39.5% Torts Duty: To Whom a Duty is Owed 7 18.4% Torts Duty: Affirmative Duty to Act 2 5.3% Torts Standard of Care: Reasonable Person Standard 7 18.4% Torts Standard of Care: Children 2 5.3% Torts Standard of Care: Medical Doctors 2 5.3% Torts Standard of Care: Professionals & Attorneys 1 2.6% Torts Standard of Care: Land Owner/Possessor’s Duty to Entrants 2 5.3% Torts Standard of Care: Attractive Nuisance Doctrine 1 2.6% Torts Negligence Per Se 6 15.8% Torts Res Ipsa Loquitor 1 2.6% Torts Causation: Actual and Proximate Cause 5 13.2% Torts Causation: Intervening Causes 4 10.5% Torts Causation: Eggshell Plaintiff Rule 2 5.3% Torts Comparative Negligence & Contributory Negligence 9 23.7% Torts Assumption of Risk 10 26.3% Torts Negligent Infliction of Emotional Distress 4 10.5% © 2021 SmartBarPrep | www.smartbarprep.com % out of Exams Tested 20 SmartBarPrep Frequency Analysis Subject Rule # of Times Rule Appeared on Past Exams Torts Vicarious Liability of Employer: Doctrine of Respondeat Superior 4 10.5% Torts Vicarious Liability: Employee vs. Independent Contractor 2 5.3% Torts Joint and Several Liability 2 5.3% Torts Survival Acts & Wrongful Death Claims 1 2.6% Torts Defamation 5 13.2% Torts Privacy Torts: Misappropriation of Name or Picture 1 2.6% Torts Privacy Torts: False Light 2 5.3% Torts Privacy Torts: Intrusion of Privacy 1 2.6% Torts Privacy Torts: Public Disclosure of Private Facts 2 5.3% Torts Intentional Interference with Business Relations 1 2.6% Torts Intentional & Negligent Misrepresentation 6 15.8% Torts Abuse of Process 1 2.6% Torts Malicious Prosecution 2 5.3% Torts Public and Private Nuisance 4 10.5% Torts Strict Liability: Abnormally Dangerous Activity 6 15.8% Torts Strict Liability: Wild & Domestic Animals 1 2.6% Torts Strict Products Liability: Liability for Manufacturing Defect, Design Defect, & Failure to Warn 4 10.5% Torts Products Liability: Liability for Negligence 4 10.5% Torts Products Liability: Liability for Breach of Warranty 1 2.6% Torts Products Liability: Indemnification 1 2.6% Torts Products Liability: Compliance with Government Regulations 1 2.6% Trusts Trust Formation Elements 7 18.4% Trusts Inter Vivos & Testamentary Trusts 1 2.6% Trusts Revocable & Irrevocable Trusts 2 5.3% Trusts Charitable Trusts 3 7.9% Trusts Resulting Trusts 1 2.6% Trusts Discretionary Trusts 1 2.6% Trusts Cy Pres Doctrine 4 10.5% Trusts Spendthrift Trusts 1 2.6% Trusts Rights of Creditors 1 2.6% Trusts Modification of a Trust 1 2.6% Trusts Termination of an Irrevocable Trust 3 7.9% © 2021 SmartBarPrep | www.smartbarprep.com % out of Exams Tested 21 SmartBarPrep Frequency Analysis Subject Rule # of Times Rule Appeared on Past Exams Trusts Termination of a Revocable Trust 1 2.6% Trusts Trustee Powers 2 5.3% Trusts Trustee Duties Owed to Beneficiaries 6 15.8% Trusts Duty to Distribute in Accordance with the Trust Instrument 3 7.9% Trusts Prudent Investor Rule 2 5.3% Trusts Duty & Liability of Co-Trustees 1 2.6% Trusts Remedies Against a Trustee 2 5.3% Trusts Challenging the Validity of a Trust: Fraud & Undue Influence 1 2.6% Wills & Estates Validity of a Will under California Law 2 5.3% Wills & Estates Will Execution Requirements 9 23.7% Wills & Estates Holographic Will or Codicil 9 23.7% Wills & Estates Modification of a Will by Codicil 4 10.5% Wills & Estates Ambiguities in a Will 2 5.3% Wills & Estates Acts of Independent Significance 4 10.5% Wills & Estates Integration 1 2.6% Wills & Estates Incorporation by Reference 3 7.9% Wills & Estates Testator Gift of Community & Separate Property 3 7.9% Wills & Estates Revocation by Physical Act 2 5.3% Wills & Estates Revocation by Subsequent Will or Codicil 6 15.8% Wills & Estates Revocation by Divorce 2 5.3% Wills & Estates Partial Revocation of a Will 1 2.6% Wills & Estates Dependent Relevant Revocation 2 5.3% Wills & Estates Revival of Revoked Wills & Republication by Codicil 3 7.9% Wills & Estates Testamentary Capacity 5 13.2% Wills & Estates Interested Witness 3 7.9% Wills & Estates Insane Delusion 1 2.6% Wills & Estates Fraud 1 2.6% Wills & Estates Undue Influence 4 10.5% Wills & Estates Individuals Who May Make a Will 1 2.6% Wills & Estates Terms of a Will Given Effect When Probated 2 5.3% Wills & Estates Lapse of Gifts & Anti-Lapse Statute 3 7.9% Wills & Estates Per Capita by Representation Distribution 2 5.3% Wills & Estates Per Stirpes Distribution 1 2.6% © 2021 SmartBarPrep | www.smartbarprep.com % out of Exams Tested 22 SmartBarPrep Frequency Analysis Subject Rule # of Times Rule Appeared on Past Exams Wills & Estates General Gifts 2 5.3% Wills & Estates Specific Gifts 2 5.3% Wills & Estates Demonstrative Gifts 1 2.6% Wills & Estates Residual Gifts 2 5.3% Wills & Estates Ademption 3 7.9% Wills & Estates Abatement 2 5.3% Wills & Estates Adopted Children 2 5.3% Wills & Estates Joint Property: Right of Survivorship 1 2.6% Wills & Estates Intestate Distribution 6 15.8% Wills & Estates Omitted Spouse 4 10.5% Wills & Estates Omitted Child 12 31.6% © 2021 SmartBarPrep | www.smartbarprep.com % out of Exams Tested