Baby Bar common mistakes
Baby Bar · Understand the traps and how to avoid them.
Launching straight into offer/acceptance under common-law rules without first writing a sentence deciding whether UCC Article 2 or common law governs the deal.
Fact patterns often involve a sale of goods or a mixed goods-and-services deal, but candidates drill common-law formation and default to it, then apply the wrong modification, acceptance, and performance rules.
What to do instead
Make the first line of the analysis a governing-law finding: 'This is a sale of goods, so UCC Art. 2 governs'; for mixed deals, run the predominant-purpose test; for land/services, common law. Then apply only that body of rules and flag where they diverge (firm offers, modification without consideration, 2-207, perfect tender vs. substantial performance).
Writing 'there was no consideration' as a bare conclusion and moving on to the next issue.
Consideration feels intuitive, so candidates compress it into a label instead of testing it, and then miss the pre-existing duty rule, past consideration, and promissory estoppel as a fallback.
What to do instead
Use a two-sentence template every time: (1) identify the exact promise the plaintiff wants enforced; (2) identify what was bargained for and given in exchange (detriment or promise of detriment). Then run the exceptions list - pre-existing duty, past consideration, moral obligation, promissory estoppel - before concluding.
Raising the Statute of Frauds with only the sentence 'the contract must be in writing' and never applying a category or an exception.
Candidates remember the rule's name and stop, and cannot recall the checklist under time pressure.
What to do instead
Run the categories (marriage, year, land, executor, goods $500+, surety) out loud in the answer. If one applies, test each relevant exception - specially manufactured goods, admission, payment and acceptance, merchant's confirmatory memo, part performance for land - and state the consequence: the contract is unenforceable by that party, not void.
Ending the Contracts essay at 'therefore a contract was formed' and never analyzing breach or remedies.
Candidates treat remedies as a separate subject they will get to later, then run out of time or assume the call of the question does not ask for it.
What to do instead
Reserve a 'Remedies' heading at the bottom of your outline before you start writing and always fill it: expectation, reliance, restitution, foreseeability (Hadley), certainty, mitigation, liquidated damages vs. penalty, and specific performance for unique goods or land.
Analyzing mens rea once for the crime as a whole, or not at all, and discussing multiple defendants as a group rather than individually.
Candidates default to narrating what happened in the fact pattern instead of matching each element to each actor.
What to do instead
Build a grid before writing: each defendant × each candidate crime × each element (act, attendant circumstances, result, mens rea). State the mental state element by element (purposely/knowingly/recklessly/negligently, and where common law differs from MPC) and give a separate liability conclusion for each defendant.
Concluding 'D is guilty of murder' without stating malice aforethought, choosing among the malice routes, addressing degrees, or identifying the felony-murder predicate.
Candidates equate 'intent to kill' with murder, so the taxonomy never gets written, and causation is treated as obvious.
What to do instead
Write all four malice routes (intent to kill, intent to inflict serious bodily injury, reckless indifference to an unjustifiably high risk, felony murder), then premeditation and deliberation for first degree, then causation separately: actual cause, proximate cause, and intervening/superseding causes (negligent medical treatment, victim's refusal of care, third-party acts).
Answering only for the main actor and omitting accomplice liability, attempt, and conspiracy when the facts include a second participant or a crime that never completed.
The call of the question is often broad ('what crimes, if any, has X committed?') and candidates read it narrowly, or they feel the secondary figure is a distractor.
What to do instead
Add explicit 'Accomplice liability' and 'Inchoate offenses' headings after the principal's analysis. For accomplices, state the two-part test (intent to aid the crime plus actual aid or encouragement) and the natural-and-probable-consequences extension; for withdrawal, state the timing rule and what the accomplice must do (neutralize the aid or notify authorities).
Stating 'D owed a duty of reasonable care' as a given and moving immediately to breach.
Duty feels automatic in negligence, so the standard of care and the source of the duty never get identified, and special exceptions are missed.
What to do instead
Before breach, name the standard and its source: reasonable person (with child, professional, and emergency exceptions), landowner category (trespasser/licensee/invitee) or the modern reasonable-care approach, statutory standard under negligence per se (plaintiff in the protected class, harm of the type the statute intended to prevent), and affirmative-duty exceptions (special relationship, assumption of duty, creation of the risk).
Proving breach, then jumping to 'the plaintiff was injured' without separating actual cause from proximate cause.
Once the fact pattern describes an injury, causation looks self-evident and candidates skip the two-step analysis.
What to do instead
Write two labeled sub-headings. Actual cause: but-for test, or substantial factor where there are multiple actors. Proximate cause: foreseeability, intervening and superseding causes, and the eggshell-plaintiff rule. Show the chain from breach to harm fact by fact.
Naming a defense in one word - 'assumption of risk' or 'comparative negligence' - without stating its elements or its effect on the plaintiff's recovery.
These are memorized labels, so candidates write the label instead of the test, and never carry the defense through to the damages calculation.
What to do instead
State elements (knowledge of the specific risk and voluntary acceptance for assumption of risk) and then compute the consequence: pure vs. modified comparative fault and the percentage bar, whether recovery is barred entirely, and for multiple defendants whether liability is joint and several or several only, plus contribution and indemnity.