More Gremlins in the “Joint”

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

People are often perceived — and laughed at — as being witless ninnies simply because they’re taken by surprise.

Take, for example, the recent report of Justice Scalia’s merciless quip at a lawyer who made the mistake of reading notes during oral arguments in the Supreme Court. The article notes the lawyer just stood there, “didn’t answer, simply standing silent for a lengthy embarrassed moment,” according SCOTUSBlog as reported in the ABAJournal.com.

The “Deer in the Headlights” syndrome.

But we’ve all been there and will be again: being exposed to something out of the context we know, and freezing. It’s a natural human response that takes practice coping with. And even that is no guarantee one will respond with aplomb on every such occasion. Even the most quick-witted occasionally get caught off — even Justice Scalia.

Formulating MBEs with words, phrases and circumstances out of the usual context is a favorite tactic of the MBE and practice test writers. It’s one thing to be exposed to something out of context on one’s home turf without pressure or risk of repercussion, and quite another to be on the spot and under fire when it happens.

Of course it’s different for everyone. Here’s one that caught me:

A mall leased one of its retail units to clothing store for a period of five years. The lease agreement provided that the clothing store would pay to the mall, as additional rent, $1,000 a month in maintenance fees for the upkeep of the common areas of the mall. The agreement also permitted assignments and subleases. For four years, the clothing store timely paid all rent and maintenance fees. At the end of the fourth year, the clothing store properly assigned the lease to a discount shoe outlet. At the time it assigned the lease, the clothing store owed $3,000 in maintenance fees for the last three months of its occupancy. The shoe outlet paid its rent, but did not pay any maintenance fees to the mall for the first six months. The shoe outlet then abandoned the property. The mall made reasonable efforts during the last six months of the term to re-let the unit, but was unable to do so. After applying the security deposit to satisfy the balance of the rent, the mall wishes to collect the unpaid maintenance fees for the last 15 months of the lease, totaling $15,000.

Who is liable for those fees and in what amount?

A. The clothing store and the shoe outlet are jointly and severally liable for the $15,000 in fees.

B. The clothing store is solely liable for $3,000 in fees, and the clothing store and the shoe outlet are jointly and severally liable for $12,000 in fees.

C. The clothing store is solely liable for $3,000 in fees, the shoe outlet is solely liable for $6,000 in fees, and the clothing store and the shoe outlet are jointly and severally liable for $6,000 in fees.

D. The clothing store is solely liable for $3,000 in fees, and the shoe outlet is solely liable for $12,000 in fees.

The correct answer is B: the tenant is still liable for the rent after assignment through privity of contract with the landlord if the party assigned fails to pay.

But “jointly and severally liable”?

Excuse me? This is a real property question after all.

My real property lectures never once mentioned the phrase “joint and several liability” in connection with any type of real property topic. Nor did my bar review course or supplemental reading include such a reference in that area.

Use of the phrase “jointly and serverally liable” in a property question was a sufficient shift in usual context to throw me off-balance. Would it throw you off, sitting cold and exposed on that convention center floor with thousands of fellow victims?

No doubt that was the objective of the authors of this review course practice question: Out of context causing "Deer in the Headlights" syndrome. (I like to call it, "Dilbert Paralysis.")

The MBE relishes catching deer in the headlights.

Of course it’s only reasonable that the concept embodied in the phrase “jointly and severally liable” would have wider applicability, but I just never had considered that possibility. It was that shift in the context I was used to that threw me: just never having encountered it in other areas of law or thought about its other uses.

The entry in Black’s under “joint and several liability” — this was the first occasion I felt I had the need to refer to this entry, not having previously encountered it outside of tort law — succinctly confirmed the acceptable use in creditor contexts.

But some brief mention during law school, perhaps? A 2 minute digression of the wider application of the phrase would probably have been enough to dispel any panic.

There is one other nit in this example, and that is an obvious logical contradiction that would have been remedied with careful copy editing: “For four years, the clothing store timely paid all rent and maintenance fees. At the end of the fourth year, the clothing store properly assigned the lease to a discount shoe outlet. At the time it assigned the lease, the clothing store owed $3,000 in maintenance fees.”

If the clothing store timely paid “all rent” for four years, then logically there’s nothing owing for that time. Granted it’s nitpicker’s nit, but it still bugged me.

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE and bar prep courses, and further be advised that the state of current law may not be accurately reflected.

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Another Fine Line

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

There is no shortage of fine lines of separation in the law causing no end of hand-wringing for law students, prospective bar exam takers, and novice lawyers, and some that probably still annoy even a veteran here and there. Take some areas of homicide for example: here’s one from a review course’s practice MBE.

A husband decided to kill his wife by poisoning her. He asked his friend, a pharmacist, to obtain some deadly poison, and to give it him without recording the transaction. Because the pharmacist suspected the husband’s motive, she supplied the husband with a small quantity of an antibiotic, instead of the poison. The antibiotic is harmless if administered in small quantities, except for the less than 1 percent of the population who are allergic to the drug. The husband injected his wife with the drug while she slept, and she died from an allergic reaction.

The pharmacist is an accomplice to:

A. Murder.

B. Manslaughter.

C. Criminally negligent homicide.

D. No degree of criminal homicide.

According to the bar review explanation, the correct answer is D.

My problem is with the selection of answer choice D over answer choice C.

True, the facts do not explicitly state any intent to harm on the part of the pharmacist, and further do not explicitly state any other criminal intent. But reasonable people could certainly argue with some conviction that answer choice C is not unreasonable.

There’s no problem in dismissing A because of the lack of any intent to kill on the part of the pharmacist.

Did you notice that answer choice B is simply “Manslaughter,” without specifying either voluntary or involuntary manslaughter? Rather slippery. The answer key explanation for B dismisses voluntary manslaughter as a possibility for the same reason it dismisses murder: lack of intent to kill.

But it also dismisses involuntary manslaughter that might fall under answer choice B. The explanation key dismisses that option by stating that “ ‘unlawful act’ involuntary manslaughter requires a killing in the course of a [non-dangerous ] felony or a malum in se misdemeanor” [“misdemeanor manslaughter”]. But that encapsulation does not go far enough.

Clearly, mala in se misdemeanor crimes fall within this category of “unlawful act” and therefore under misdemeanor manslaughter.

But LaFave, in his concise hornbook, notes that more acts than just those mala in se misdemeanors can fall within the scope of “unlawful act.” He states that unlawful act involuntary manslaughter may apply in cases of acts merely mala prohibita, even those that may only amount to civil wrongs, rather than criminal depending on the jurisdiction.

Among jurisdictions, LaFave states, the modern trend is to depart from “unlawful act manslaughter,” with only about half the states retaining some form.

In those that retain it, the unlawful act must be the cause of someone’s death, as it is in the above example. Further, the death must be foreseeable from the unlawful act, and the risk of death or serious bodily harm must be either merely unreasonable, or both unreasonable and high.

In this case, there’s a pharmacist dispensing medication without a doctor’s prescription, which depending on the medication and the statutes involved may explicitly be malum prohibitum, whether amounting to a crime or merely a civil wrong. In any case, it seems that would qualify as an unlawful act, and a death resulted.

The question is whether that, coupled with the risk of harm that is present, is sufficient to subject the pharmacist to involuntary manslaughter liability?

Generally, for “unlawful act” manslaughter, the risk must be an unreasonable risk of death or serious bodily harm.

Here, the facts indicate the antibiotic is harmful to “less than 1%” of the population, but the facts don’t indicate the scope of “harmful,” whether that’s mere injury or the possibility of death.

So, is there an unreasonable risk of death or serious bodily harm here? Without more, it would not seem so.

OK, I can live with that reasoning.

Now: Criminal Negligence Homicide --- Involuntary Manslaughter

Generally, a key factor in criminal negligence homicide is that the defendant must be aware that it is his conduct that creates a risk of harm. Criminal negligence homicide is conduct that, under circumstances known, involves a risk of death or serious bodily injury that is either unreasonable, or both unreasonable and high, which can also be termed “recklessness.” The concept of recklessness encompasses the conscious disregard of the risk of harm to others.

The review course’s answer key in this case stated that degree of negligence was not reached here, where the pharmacist supplied the husband with the “usually harmless” antibiotic. But here, the pharmacist knows that some people are allergic to the antibiotic, knows that there is some chance of harm if husband administers the drug to someone.

As a matter of logic, any risk of harm is unreasonable where there is no countervailing benefit (Less than 1% risk of harm along with efficacious treatment of illness vs. Less than 1% risk of harm only and without possible benefit).

The pharmacist knows he is not providing the antibiotic for medicinal purposes, and therefore he knows there’s a risk of harm that, perforce, is unreasonable. The result is a death: but for the pharmacist giving the antibiotic to the Husband, a death would not have occurred.

So why is D the correct choice? The line between answers D and C seems pretty thin, given the state of the law. Certainly, it seems these facts could present a case of criminal negligence homicide.

Left unexplored is whether the pharmacist’s professional knowledge factors into — or whether it should factor into — his awareness of the risk and therefore adds to his culpability.

This fact pattern is just too nebulous for a multistate-style multiple choice question: Too many blurred lines and opaque circumstances. This one was better saved as an essay.

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.