DTPA is on the bar exam

The DTPA is covered on the Texas bar exam. Here are comments from the Bar examiners on typical defects in bar exam answers. The comments raised by the Bar Examiner are all points that we will cover in class.

Consumer Law

Question 6 - Common deficiencies in a substantial number of answers included the following:

Many examinees did not recognize a limitations issue or else seemed unfamiliar with the applicable statute of limitations.

Many examinees did not mention causation, its significance or the “producing cause” standard. Of those who did, many did not explain its application. Examinees consistently failed to address whether the defendants’ conduct must be the “sole” producing cause of damages, or merely “a” producing cause that in the natural sequence of circumstances contributed to or caused plaintiff’s damages. Only a few seemed to know the difference between proximate cause and producing cause or the significance this difference has for consumers under the DTPA.

Most examinees did not appear to understand that consumers are not required to prove privity of contract to bring a DTPA claim. Of those who mentioned privity, a substantial number concluded that it did not exist between the seller and buyer thus precluding recovery.

Many examinees did not mention the type or scope of damages recoverable under the DTPA. They also did not seem to recognize the significance of knowing and/or intentional conduct and its effect on damages.

Many examinees did not fully explain actionable conduct under the DTPA. Most examinees reiterated the facts and then stated generally that such conduct was prohibited under the DTPA. This did not explain the types of actionable conduct in the statute or relate them to the facts of the question. Few examinees distinguished DTPA claims from contract claims, explained the general significance of false or misleading statements, or addressed warranty issues and unconscionable conduct.