February 2021 · ORIGINAL INSTRUCTIONAL EXAMPLE

Essay 1: Evidence
Sample Answer & Question Pointers

February 2021 California Bar Examination · Fact-specific analysis, an issue outline, and pointers on the official question.

By Bar Exam Doctor · Published November 4, 2026

Practice first, compare second

This is an original, ungraded instructional response. It is not an official State Bar selected answer, a scored student submission, or a claim of attorney review. Use it to compare reasoning and organization after attempting the question. Alternative reasoned analyses may be possible.

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The actual question, with pointers

Official source text with our added highlights and numbered notes. The PDF preserves the source layout. For the PT, the task, file, and substantive library pages appear below; the complete packet includes the instructions and dividers.

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Official source page 2

QUESTION 1 On January 15, Paul fell down the stairwell of Dell’s Department Store (“Dell”). Paul sued Dell for personal injuries, alleging he fell because one of the steps was broken. The following occurred at a jury trial in the California Superior Court while Dell’s manager, Mark, was being examined by Dell’s attorney: QUESTION: Where were you when Paul fell down the stairs? ANSWER: I was standing nearby with my back to the stairs talking to Carol, a store customer, when I heard the noise of the fall. (1) QUESTION: Has Paul sued Dell before? ANSWER: Yes, five times1 that I personally know about. (2) QUESTION: No one saw the accident. Right? ANSWER: That’s right. A thorough investigation was unable to find anyone who saw Paul fall on the stairs. Mark was then cross-examined by Paul’s attorney as follows: (3) QUESTION: Isn’t it true that you used to be employed by Paul as a cashier in his grocery store and that he fired you2 for stealing money from the cash register? ANSWER: That is what he claimed. (4) QUESTION: The stairs were repaired3 the day after Paul fell. Weren’t they? ANSWER: Yes. (5) QUESTION: Didn’t Carol, the store customer, exclaim4 at the time of the accident: “Oh no! A man just fell on that broken step”? ANSWER: So, what? QUESTION: Is this the report that Dell’s insurance company prepared following an investigation of the accident?

Official source page 3

ANSWER: Yes. That is the report the insurance company gave me. They always prepare a report in case we get sued1. Paul’s attorney then moved to enter into evidence the insurance company’s report. The report states: “Steps on the stairs at the store are in very poor condition.” A. What objections could Paul’s attorney and Dell’s attorney reasonably make to the questions or answers to Mark’s testimony numbered (1) to (5) above, and how should the court rule on each objection? Discuss. B. What objections could Dell’s attorney reasonably make to the motion to enter the insurance company’s report into evidence and how should the court rule? Discuss. Answer according to California law.

Before you write: issue outline

  1. Address each numbered exchange under California rules rather than importing federal impeachment rules.
  2. Distinguish evidence of a firing showing bias from a specific act offered only to prove dishonesty.
  3. The insurance investigation needs its own hearsay foundation and protection analysis.

A1. Paul’s five earlier lawsuits

Evidence must tend to prove a disputed material fact and remain subject to section 352 balancing. The mere fact that Paul previously sued Dell does not prove this accident was fabricated or that he has a dishonest character. Without a showing that the earlier claims were fraudulent, a sufficiently similar plan, a relevant prior injury, bias, or another legitimate connection, the inference is impermissible propensity or an invitation to punish a frequent litigant.

Mark claims personal knowledge of the prior suits, so that particular foundation may be satisfied. But knowledge does not make an otherwise improper purpose admissible. Paul should object to relevance, prejudicial character reasoning, and misleading collateral litigation. On the facts supplied, the court should exclude or narrowly limit the exchange. Filing five suits also is not automatically a habit of faking injuries.

A2. No one saw the accident

The question strongly suggests its answer and is leading on direct examination. Although a judge can allow leading questions where appropriate, such as preliminary or undisputed matters, this is a disputed substantive assertion by Dell’s own witness; a leading objection is reasonable.

Mark stood nearby with his back to the stairs. He can describe his position and what he personally heard, but cannot infer from that alone that no one else saw the fall. Saying a thorough investigation found no witnesses also requires a foundation for his role, knowledge, and sources. If he merely repeats investigators’ or others’ out-of-court reports to establish that nobody saw it, hearsay issues arise. No exception or absence-of-business-records foundation is established by the bare assertion.

The court should sustain a proper lack-of-personal-knowledge objection or require a foundation and properly phrased question. Carol’s apparent contemporaneous observation also undermines the categorical assertion. It does not automatically prove Mark is lying about an investigation, but makes careful limitation of his testimony important.

A3. The prior firing for alleged theft

California Evidence Code section 787 generally prohibits specific instances of conduct offered solely to prove a witness’s character for credibility in a civil case. Unlike the federal rule permitting certain cross-examination about dishonest acts, this question cannot be justified simply as proof that Mark stole before and therefore should not be believed now. No qualifying conviction under section 788 is stated.

But evidence that Paul fired Mark can demonstrate a concrete source of resentment and bias against Paul, a permitted credibility ground under section 780. The firing and circumstances may be admitted for that noncharacter purpose, subject to section 352 and a limiting instruction. The court should prevent a collateral trial over whether theft actually occurred if that detail adds little beyond the demonstrated grudge.

The question is leading, which ordinarily is proper on cross-examination. Mark’s response acknowledges Paul’s accusation, not necessarily guilt. An out-of-court accusation used to explain the firing and resulting bias need not be true, so that purpose avoids a hearsay-for-truth objection. The strongest ruling admits a properly limited bias inquiry while excluding an attempt to use the unproved theft solely as dishonest-character impeachment.

A4. Repairing the stairs

Section 1151 excludes subsequent remedial measures when offered to prove negligence or culpable conduct. Repair the next day is a measure that would have reduced the risk if taken earlier. In this negligence case, Paul cannot use it simply to show the step was defective before the fall and Dell was negligent.

Other genuinely disputed purposes, such as ownership, control, feasibility, or appropriate impeachment, can permit limited use. None is established here: Mark’s assertion that no witness was found does not make a later repair relevant impeachment of that assertion. A party cannot evade the exclusion merely by calling ordinary contradiction impeachment. The court should sustain Dell’s objection on the described negligence use. No strict-products-liability exception applies to a department-store stairway claim.

A5. Carol’s exclamation

Carol’s statement is hearsay if offered to prove that Paul fell on a broken step. Section 1240 nevertheless permits a spontaneous description of a perceived event made under the stress it caused. “Oh no!” at the time of a sudden fall strongly indicates excitement before reflective fabrication. The statement purports to describe what Carol saw. Her perception of the fall and broken step must be supported by circumstances, but her presence beside Mark and immediate specific reaction provide substantial foundation.

California does not have a general present-sense-impression exception identical to the federal one; the spontaneous-statement foundation matters. If established, the court should admit the exclamation. It also directly contradicts the suggestion that no one witnessed anything, although impeachment cannot be a pretext for otherwise inadmissible substantive hearsay.

Mark’s “So, what?” is evasive rather than a clear denial that Carol spoke. Counsel can seek a responsive answer and cannot treat the premise of her own question as testimony. Leading form ordinarily is allowed on cross. The court may require clarification before deciding what statement Mark actually acknowledges hearing.

B. The insurance report

Authentication, knowledge, and hearsay

The description of poor stair condition is relevant to defect and notice, though its timing and ability to describe the condition at the fall matter. Mark identifies the report the insurer gave him, supporting authenticity. That is distinct from qualification to establish who inspected, what that person perceived, when the observations occurred, and how the report was prepared.

The report is an out-of-court written assertion offered for its truth. Section 1271 requires regular-course preparation near the event, a custodian or other qualified witness explaining identity and mode of preparation, and trustworthy sources and method. The insurer’s practice of preparing reports whenever litigation is expected supports regularity but does not itself establish a reliable ordinary-business record. An investigation prepared to defend litigation can lack trustworthiness, and hearsay from unqualified sources within it needs its own exception. Mark has not supplied those details. The hearsay objection therefore likely should be sustained absent additional foundation.

The insurer is not automatically Dell for every evidentiary purpose. An authorized statement or agency exception would require authority and scope supporting attribution of this particular report; an insurance relationship alone does not make all adjuster assertions party admissions. Nor does mere receipt or possession prove Dell adopted the report’s conclusion.

Privilege, work product, and insurance references

An insurer’s investigation is not automatically attorney-client privileged. Dell would need a confidential legal-advice communication or qualifying attorney-insurer-client purpose, not simply an anticipation of suit. California work-product protection also requires the appropriate connection to an attorney’s work; attorney impressions receive stronger protection, while other protected work may be subject to the applicable discovery showing. No counsel’s direction or legal impressions are described. Those protections are possible upon proof, not established by the phrase “in case we get sued.” Discovery protection also should not be confused with a hearsay exception making the report admissible.

Section 1155 bars liability-insurance evidence to prove negligence or wrongdoing, but does not make every document created by an insurer inadmissible for all purposes. References identifying insurance can be redacted or limited where necessary. The report is an observation, not a subsequent repair or offer of settlement. Dell’s strongest present objection remains the deficient hearsay and source foundation, together with section 352 concerns, rather than an automatic blanket privilege for insurance documents.

Sources and further comparison

The official question controls its facts and jurisdiction. These responses address the exam scenario; subsequent legal changes and other fact patterns may require a different analysis. The PT uses the supplied fictional Columbia library, which must not be replaced with outside law.