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Angela Passalacqua
This paper outlines an approach to the Essay portion of the Bar
Exam that has been used successfully by a number of law school
graduates. Individual Bar candidates should adapt this method
to their personal needs, learning and writing styles.
A. PREPARING FOR THE BAR EXAM ESSAYS: ACTIVE LEARNING
B. TAKING THE BAR EXAM ESSAYS
1. Skim the question briefly to determine what the area being
tested is
2. Before carefully re-reading the facts, read the "call
of the question." 3
3. Relate the facts to the call of the question...........................
4
4. Organize your answer....................................................
4
Example # 1: Logical ways to organize an answer........................
5
Example # 2: Other methods of organizing an answer......................
6
Example # 3: Possible structure for criminal law/procedure question.....
7
Example # 4: Organization for an evidence question, following
the call of the question
Example # 5: Possible Torts answer following the call of the question........
9
5. Write your analysis, without re-writing points that have already
been analyzed 10
6. Do not eliminate significant spotted issues without discussing
them on paper 11
A. PREPARING FOR THE BAR EXAM ESSAYS: ACTIVE LEARNING
Taking old exams is a good method of reviewing and self-diagnosis.
Bar candidates -- and law school students generally -- often spend
too much time "sleep-reading" or coloring their Bar
Review course outlines with highlighters. Such an approach is
useful at first to review basic principles of law and get an overview
of the subject area. However, this "passive" method
of studying has diminishing returns: Bar candidates who simply
review the material over and over are not preparing to show the
Bar Examiners the extent of their knowledge in the way their Bar
Examiner audience expects it. After all, the Bar Examiners do
not draft essays that state "Write down everything you know
about contract law." Instead, Bar Examiners, like law school
professors, expect you to apply your knowledge of "black
letter law" to a specific set of facts. Therefore,
after having reviewed the material, you should switch to a more
active method of learning, that trains you to prepare answers
for the intended audience and helps you review at the same time:
outlining and writing out exam answers.
At first, for the purpose of reviewing, you may wish to begin
by taking "open book" and untimed exams. This helps
prevent panic when you are not sure of a particular area of the
law. After preparing the answer to an essay question, it is helpful
to compare the answer to the Bar Exam's sample answer to determine
what kind of further review of legal principles is necessary.
Gradually, you should take exams in conditions closer to those
of the actual test: closed book and timed. This approach allows
you to prepare not only for giving the intended audience the material
it expects in the format it expects, but also for the time pressure
of the exam. A common complaint is that test takers spotted the
issues, but simply did not have time to write everything down.
Careful planning and organizing of an answer maximize the time
that can be spent writing the answer to the question. Further,
there is no need to write everything down, since at least
some information in the answers may be repetitive (See Point II
5).
Summary: A suggested chronology for preparing
for
the Essay portion of the Bar Exam
A. Review each subject area separately through a
Bar Review Course or individually.
B. Take "open book" and untimed exams in
each subject area, taking the time to check legal rules
that you do not remember.
C. Compare each answer to the sample answers provided
by the Bar Examiners.
D. Determine which issues you failed to spot, and
why (lack knowledge of the law, failure to notice a key
fact, etc.).
E. Review the areas of the subject that you do not
know welt and then apply them to the parts of the exam that you
missed.
F. Repeat steps B through E for each subject, gradually
moving closer to closed book, timed exam conditions.
G. Take at least one complete Bar Essay Exam, preferably
in one day, getting used to the fact that you will need to write
essays on all six subjects the same day.
4. Organize your answer
Outlining or charting the answer will help exam takers spot and
list each issue, and organize the issues in some logical way.
Avoid writing about issues in the random order that you spotted
them. You should rank the issues in terms of importance, or otherwise
organize the claims in a logical way. Once you have a structure,
you can relate each issue to the relevant facts in the question,
and anticipate arguments and counter-arguments on each side. This
initial outlining or charting should be done briefly, listing
the relevant actors in the fact pattern and the key words that
will help you remember all of the applicable issues. The outline
or chart is only intended to help you organize the answer, and
will not be read by the bar examiners.
If the question has a very general call, like "discuss the
issues raised," you should come up with your own outline,
using elements similar to those listed above. There are basic
types of essay answer structures that can be adapted to almost
all essay questions. Basically, these structures identify each
issue, present the factors that the court would consider in deciding
each issue, including arguments and counter-arguments under each
issue, and make a final determination on each issue.
Example # 1: Logical ways to organize an answer
a causes of action by each claimant, or criminal offenses
Questions may have only one claimant (a plaintiff, or a person
aggrieved by a provision being constitutionally challenged). If
there is more than one "actor," there is usually a reason
for it: the two actors may raise different causes of action in
torts or offenses in Criminal Law, or the differences in the actors
may raise specific legal issues. For example, in a Torts question,
if one person was injured while the other watched, there may be
different causes of action that apply to each (negligence vs.
negligent infliction of emotional distress). If there are two
adverse possessors in a property question, there may be an issue
of whether one adverse possessor can benefit from the previous
one's period of adverse possession.
b. against each defendant
In questions like Torts, there is usually a variety of possible
defendants, with different causes of action and defenses applying
to each. In a Criminal Law/Procedure questions, there may be multiple
"perpetrators." Usually, there are some differences
between the actors that may raise new issues. For example, two
criminal defendants may have had different levels of intent, and
may be guilty of different offenses.
c. defenses
specific to each cause of action (or offense) by each defendant or defenses that apply to all defendants (such as plaintiff
s contributory negligence).
d. if applicable. claimant's possible responses to defenses
e. Policies relevant to the issues
Example # 2: Other methods of organizing an answer
| STRUCTURE | CONTRACTS | EVIDENCE
| CONST'L LAW |
| The issue -- identify all of the points of dispute
| -is there a valid contract? | -which items could be admitted in evidence?
| -what are the
constitutional
challenges to the
statute?
|
| The rule -- identify all of the required elements
| -for each element of a
contract:
determine if element
is met
| -for each piece of
evidence:
discuss applicable
theories for admitting or objecting to it
| -for each possible
constitutional
challenge to the
statute:
-identify which test is
used & apply
|
The exception to the rule, if applicable
Or
Alternative theory for compensation
| -no written contract,
but may meet
exception for statute
of frauds
Or
-detrimental reliance
| -applicable
exceptions to
hearsay: e.g., excited
utterance
| |
| Relevant policies | return parties to their original position
| evidence must be reliable | preventing
discrimination
|
| Conclusion on the result for each issue, including a discussion of damages or solutions, if applicable.
| -which party wins, and how much?
Consider limits on damages (such as duty to mitigate, only economic loss)
| -for each piece of
evidence, decide its
admissibility under
each theory
| -who wins under each
theory, and what the
result should be
(injunction, statute's
constitutionality
upheld?)
|
Example # 3: Possible structure for criminal law/procedure
question
| Issues: | Defendant # 1
| Defendant # 2 | Defendant # 3
|
| Search? | No consent
| Can't consent to
search of # 1's
| |
| Miranda? | | No warnings
| Was given warnings |
| Right to Counsel? |
| | Request to consult
attorney not granted
|
| Other? | Preemptory
challenges to all peer
jurors
| | |
| Possible Charges:
Conspiracy
Murder
Felony Murder
Kidnapping
Assault, Etc.
|
C, m, fm |
C, fm
|
K, A |
| Possible defenses: |
| | |
If the call of the question is specific enough, you may want to
adapt the requirements of the question as a checklist when outlining
your answer. This reduces the chances of missing an element that
the bar examiners are looking for. For example, for an evidence
question that request arguments for and against the admissibility
of each item of evidence, the outline or chart could look like
this for each piece of evidence at issue:
Example 4: Organization for an evidence question, following
the call of the question
Piece of evidence:
-arguments for its admissibility
(rule or exception to rule)
*analyze using facts
*discuss relevant policies
-arguments against its admissibility
(rule or exception to rule)
*analyze using facts
*discuss relevant policies
Discuss all alternative grounds for admitting the specific
item, if relevant
and additional objections against admitting the specific item,
if relevant
-court's balancing process, if relevant
*discuss relevant policies
-conclusion on admissibility of that specific piece of evidence
As a second example, a Torts question may specifically request
a list of "the defendants that the plaintiff should
sue, and each cause of action, specifying the factual and legal
basis for each cause of action against each defendant. Include
an analysis of all defenses available to each defendant, specifying
the factual and legal basis for each separate defense as well
as potential cross claims." Your outline or chart for the
question could look like this:
Example # 5: Possible Torts answer following the call of the
question
| Defendants: | #1_______
| #2_______ | #3_______
|
-causes of action (c/as):
*factual basis:
*legal basis
(elements of c/a):
| | |
|
-defenses
-specific to
particular cause of
action
*factual basis:
*legal basis:
| | |
|
| -defenses
-applicable to all causes of action
*factual basis:
*legal basis:
| (no need to repeat the full analysis each time because common to
all)
|
| -counterclaims | |
(no need to repeat if same; emphasize
differences if not same)
|
Conclusion on each
claim |
| | |
The same information can be organized in a linear outline:
Pl v. Dl
c/a: neg operation and maintenance of car
discuss elements of each c/a and apply to facts
defenses: contrib counterclaim: neg operation of car
Pl v. D2
c/a: neg hiring, training, supervision of driver
discuss elements of each c/a & apply to facts
defenses: contrib counterclaim: n/a
Pl v. D3
c/a: neg design and manuf of car
discuss elements of each and apply to facts
defenses: contrib counterclaim: n/a
P2 v. Dl (etc.)
By using this type of outline, you would not miss or forget categories
that the bar examiners specifically requested. It is very easy,
in the time pressure of an exam, to forget a category like "counterclaims,"
for example. Check off items in the outline as you write on those
issues.
It is not necessary to write out each item in the outline or chart;
you should just write enough to remind you of the issue. For example,
in the Torts category defenses-applicable to all it may
be sufficient to write the fact "no seat belt" to trigger
the defenses of contributory negligence, assumption of the risk,
and violation of a statute in your memory.
Use the type of outline that makes it easiest for you to organize
the information and make the transition to writing the answer
quickly and completely.
5. Write your analysis, without re-writing points
that have already been analyzed
As indicated in the outlines reproduces above, once you have decided
how to logically organize your answer, write as efficiently as
you can, while covering all of the important points. Avoid long
introductory phrases, or mere repetitions of the facts that are
not related to any element of the analysis. Most students are
familiar with the IRAC format depicted in Example #2, above. However,
you need not use this format in a mechanical, long-winded
manner. Compare the examples below:
Version #1
The first issue in this case is whether the plaintiff can sue
Defendant #1 for the negligent operation of his automobile. Negligence
requires 4 elements: duty, breach of duty, causation and damages..
Defendant owes a duty of care to other drivers and to pedestrians
to drive carefully. Therefore the first element is met. He breached
that duty by driving over the speed limit. Therefore, the breach
of duty element is met. The third element is met if defendant's
speeding caused the accident. The facts indicate that the car
went out of control at a sudden curve in the road. Defendant may
claim that road conditions or design, rather than the speeding,
was the cause of the accident. The law requires both cause in
fact (but for) and proximate cause for liability. It is not clear
what a court would decide. Finally, the plaintiff suffered damages
from the accident. The elements of the cause of action are met.
Version # 2
Plaintiff has a cause of action against defendant # 1 for the
negligent operation of his car. Defendant #1 breached his duty
to the plaintiff and others by failing to follow the rules of
the road and violating the speed limit. This breach of duty is
the most likely cause of the accident, since the facts indicate
that the car went out of control at a sudden curve in the road
The accident most likely would not have happened but for defendant's
speeding and, although the sudden curve in the road might have
contributed to the accident, the defendant would not have lost
control if he had not been driving at an excessive speed. Therefore,
the defendant's actions were the proximate cause of the accident,
which caused plaintiff's injuries.
Version # 3:
All of the elements of negligence are met: duty, breach of
duty, causation and damages. Therefore, plaintiff has a
valid claim against defendant #1 for negligent driving, specifically
by speeding.
Version # 1 engages in long recitations of the law before applying
the elements to the facts. The second version uses the more efficient
C/ARC form: making mini-conclusions about each element as it is
introduced, and only spending more time on elements that may be
in dispute, such as proximate cause. The first version also gets
trapped in the "plaintiff will argue/defendant will argue"
format, while the second version focuses more quickly on the most
likely result, while recognizing the ambiguities in the facts
and maintaining an objective tone. However, version # 3 goes overboard,
merely listing elements with only the most cursory analysis.
If the essay would be repetitious, it is not necessary to repeat
the analysis of each point for each defendant/offense/claim. There
is no need to repeat defenses or counterclaims if they are common
to more than one defendant. You should just indicate that you
have spotted the issue and that the result would be similar to
the one already discussed, or point out the differences from the
points already discussed.
For example, once you have fully discussed "parental immunity"
as a defense for the father in a question, it is enough to write
that the same result on that issue would result in the claim against
the mother. If the result would be different for a particular
defendant, the answer must explain why, for example:
"Unlike defendants Cannons, defendants Brown would
not be able to assert the defense that the accident was
not foreseeable because the dogs had exhibited the same conduct
that caused the accident in the past. "
6. Do not eliminate significant spotted issues without
discussing them on paper
Some Bar candidates mentally conclude that certain claims or defenses
are not viable based on the facts and the current state of the
law, but fail to write their analysis and conclusion on the test
books. By doing so, you may be losing points. For example, consider
the treatment of the parental immunity in a Torts question: if
you mentally concluded that parental immunity is no longer viable,
or that no claim was possible against the defendants, but did
not explain why, you would lose points. Of course this does not
mean that you should create issues that are tenuous, or discuss
legal theories that are not supported by the facts. But avoid
discussing only the one claim you believe is most likely to succeed.
BAR EXAM:___July___February YEAR:_____ SUBJECT:______________
| ISSUES IN
SAMPLE ANSWER NUMBER 1 |
ISSUES IN
SAMPLE ANSWER NUMBER 2 | SELF- EVALUATION
1. I SPOTTED THIS ISSUE
2. 1 DISCUSSED THIS ISSUE 3. 1 USED THE KEY FACTS IN THE ANALYSIS
4. 1 WROTE A CONCLUSION
| COMMENTS BY GRADER |
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