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Teresa A. Wallace
I. A Good Response Answers the Question Asked.
A. Test-takers must understand what question the examiners want
them to answer and respond accordingly.
1. What role is test-taker asked to play? (judge, lawyer for a
party, etc.)
2. What task is to be performed? (Write a memorandum? Rule on
objections at trial?)
3. Are there any issues/tasks that the test-taker is not supposed
to consider or perform? (Example--asked not to consider defenses,
or tax implications or procedural issues)
B. Before reading entire fact pattern, the test-taker must find
the call of the question.
1. On the Delaware bar examination, this is not always an easy
task. The call is usually at the end of the question or at the
end of each sub-part of the question, but not always. On a lengthy
fact pattern, there may be unmarked sub-parts and the call may
be in the middle of a paragraph. Students should be alerted to
pay particular attention to questions which are lengthy, but not
sub-divided--there may be more than one question to be answered.
II. A Good Response Accurately Identifies the Issues Raised by
the Question.
A. Each bar question has multiple issues and a test-taker can
miss issues in a question and still pass.
Nevertheless, in order to pass a question, the test-taker
must correctly identify most of the issues presented by the question.
B. The test-taker receives no points for identifying issues not
present on the facts. "Finding" issues that are not
there on the facts gives a particularly bad impression to the
bar examiner, since it leads the examiner to believe that the
writer has little or no idea of the substantive law in the area
tested.
C. The test-taker receives no points for writing about an issue
that they explicitly state is not present on the facts. For example,
if a question asks about a potential dispute between a landlord
and a holdover tenant without any mention of the number of years
the dispute went on, an answer like, "There is no claim for
adverse possession here. Adverse possession requires that the
following elements be present...Since the tenant never claimed
to own the property, he cannot claim title by adverse possession,"
would receive little or no points.
1. This kind of answer is non-responsive to the question--for
there to be a colorable claim for adverse possession, there must
be some substantial period of time which is explicitly mentioned
in the facts. If the test-taker writes about adverse possession
here, he or she is merely writing from memorized list of issues
and not answering the question asked.
2. This non-responsive answer is different from a conclusion that
an issue is raised, or that a party has a colorable claim, but
that they will not prevail. To follow up on the adverse possession
example, if the question stated that the tenant had a lease which
had terminated and the tenant held over for the statutory period,
there might be an issue as to whether that tenant could claim
title by adverse possession. In that case, the issue is raised
by the facts, but may be resolved against the tenant because tenant
never asserted any ownership interest in the estate.
III For Each Issue Raised by the Facts, A Good Answer Will Begin
with a Statement of the Test-Taker's Decision, Which Explicitly
Answers the Question Asked.
A. Examples (Each of which should be the first sentence of a paragraph):
1. "The objection to the introduction of the photograph into
evidence should be overruled because its probative value outweighs
its prejudicial effect."
2. "Plaintiff can allege a claim for battery against the
defendant when the defendant knocked plaintiff's eyeglasses off."
3. "Defendant's conversation with plaintiff regarding the
potential free newspaper ads constituted a valid offer."
IV. For Each Issue, A Good Answer Will then State the Appropriate
Rules of Law.
A. A good answer will not only state the rule, but use the right
legal phrases like "probative value," "res judicata"
and "collateral estoppel," "strict scrutiny,"
etc. The examiners look not only to see that the test-taker knows
the substance of the law, but also know how lawyers speak about
legal standards and set forth the rules that are to be followed.
B. As a practical matter, examiners are also looking for those
legal "buzzwords" and phrases while they are grading
and may in fact mark the answer down if the phrases are not in
the answer, even if the concept is correctly explained.
C. A good rule statement also includes all elements or prongs
of a test to be satisfied, or factors to be considered, even if
only one element or factor is in dispute.
V. A Good Answer Applies the Rule to the Facts Presented in the
Question.
A. Most of the points on any individual issue will be awarded
for analysis, meaning a thoughtful explanation of why the facts
presented in the question do or do not satisfy a stated legal
rule or standard.
B. If only one element or prong of a test is at issue, a good
answer explains in a sentence or two why the facts clearly establish
the undisputed elements or prong. The answer then goes on to focus
on the disputed elements and illustrates what facts from the question
are dispositive of the claim.
C. The key to good analysis lies in a thorough discussion of the
facts presented in the question. The test-taker must zero in on
the facts in the question which are dispositive under the relevant
rule or rules of law.
VI. A Good Answer will Reach a Conclusion on Each Issue and if
Relevant, A Conclusion for the Entire Question or Sub-Part of
the Question.
A. Examples:
1. "Because P cannot establish damages, his claim for negligence
must fail. "
"Although the plaintiff can establish a prima facie case
for battery, defendant will prevail because she can establish
all the elements of self-defense. "
VII. Other Important Considerations For A Good Answer.
A. Time Allocation is Critical--the test-taker must not take excessive
time to answer one question and leave insufficient time for other
answers.
1. There are four questions to be answered in 3 hours for each
testing period. The test-taker should strive as much as possible
to take no more than 45 minutes to answer each question.
2. A different bar examiner reads and grades each question--so
the examiner who reads the question that the test-taker answered
in the five minutes she had remaining will not know that the first
answer she wrote received a perfect score.
3. Remember, the answer need not be perfect in order to pass--the
test-taker only needs 65 out of 100 points to pass.
B. In order to write a good answer, the test-taker must take
time to read the question, think about, and outline the answer.
1. The biggest mistake most test-takers make is that they begin
to write the minute they finish reading the question. Answers
written without planning tend to be too long, unfocused, and disorganized.
They are much more likely to waste time on irrelevant issues because
the writer is thinking as he or she writes and only discovers
in the middle of the analysis that the facts in the question do
not support the existence of the issue.
2. Outlining the answer before writing gives the test-taker an
opportunity to think through the question, discard irrelevant
issues and concepts, focus on the critical facts, and organize
the answer in a logical fashion. One can think faster than one
can write; by thinking before beginning to write and planning
the answer, the test-taker can avoid costly mistakes and avoid
wasting precious time.
3. For a 45 minute bar examination question, a test-taker can
reasonably take 20 minutes of that time to read, think,
and outline before writing.
4. As a strategy, the test-taker should skim all four questions
in a given session, noting for each the subject matter of the
question, the number of sub-parts to be answered and underlining
the call of the question or questions.
5. Different test-takers have different strategies for deciding
which question to begin with. Some prefer to begin with the easiest
question to warm up; others prefer to begin with the hardest,
assuming that they can write the easier questions in less time;
still others begin with the first question and work through the
exam in order, so that they can more easily stay on time schedule.
Whatever order the test-taker decides upon, he or she should specifically
note the time by which the answer for each question should be
concluded so that he or she does not misallocate the time.
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