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Make This Your Last Time | Bar Exam Preparation
Last week, I showed you two sides of the MBE (impossible vs. possible), and we discussed some surprising truths about the MBE.

At the end, I gave you a pop quiz with some essay excerpts and had you guess which one did better. I got back varying answers:

 

Before I reveal the winner, can I just say how this shows how subjective essay grading is? Look at this mixed bag of opinions! 

Graders are people. They have biases like we do. They get tired. They’re not consistent. (Yeah, they’re actually not reptilian robots 😲)

So give the grader as many reasons as possible to give you points.
 
For one, make your paper easy to grade. Let them breathe a sigh of relief. Good writing is the easiest to grade. The better they can understand you, the more they’ll believe you are intelligent and know what you’re doing (and deserving of points). 
Actual footage of a grader giving you high scores


The winner is…

Essay A scored higher. This doesn’t mean only A did good things nor that A can’t improve on this particular excerpt.
 
Here are Essay B and the question again for context. Have these open as you read below. For simplicity, I chose excerpts focusing on the negligence per se analysis and omitted causation and damages.

Today we’ll go over these excerpts so that you can also be an extraordinary essay writer. Fair warning, it’s going to be a pretty technical discussion but one that people have found helpful in the past (I do read your survey answers, you know):
  • What are 3 distinctions between the excerpts that I think made the difference?
  • What did both do well?
  • What could Essay A have avoided?
Will all this seem obvious in hindsight? Like anything else, you may find that “originating”—coming up with words to write—is harder than merely absorbing the material and getting familiar with it. All the more reason to actually do it now.

 

Here’s what made Essay A better — and how do the same to make your essays stand out (in a good way):

 
1.     Essay A stated a complete rule, while Essay B stated an inaccurate or irrelevant rule.
 
Essay B states under the Duty heading that “[t]he general duty for all persons is to act like a reasonably prudent person under the circumstances.”
 
Sounds like a nice rule for life in general. At best, it’s a statement of the standard of care (extent of duty). Either way, Essay B failed to say what the duty of care is.
 
“Duty” in a negligence-type analysis is a “duty not to subject any foreseeable plaintiff to unreasonable risk of injury.” The rule is that this duty is owed to foreseeable plaintiffs, although there’s a split on who is foreseeable, as identified by the Cardozo-Andrews distinction in Essay A.

Make sure you know the correct standard for the issue you’re talking about. Part of knowing a rule is understanding it, but sometimes, the other side is knowing specific standards like “foreseeable,” “reasonable” or “necessary to achieve a compelling government interest.”


2.     Essay B didn’t complete IRAC.
 
Look at the Breach paragraph in Essay B. It starts by saying Doug was driving and texting, then says a reasonably prudent person wouldn't do so. This sounds like an application of some unstated rule about breach. Essay A at least stated the “reasonably prudent person” standard as a “rule.”
 
It helps to say what the rule is first: Duty is breached where defendant’s conduct falls below the level required by the applicable standard of care owed to plaintiff.
 
The general rule for breach is simple and inherent, but it still needs to be said. “Show your work,” as they say in math classes. Include the rule statement even if it seems inherent or obvious. If you say what you think without a basis in some established principle (such as the rule of bar law), then it’s just an opinion, not an argument.
 
Note also the Duty paragraph in B. Notwithstanding the incorrect rule, the applicant didn’t even apply any facts. It just jumped to the conclusion that Doug owed a duty to Harry.

Stay formulaic: I, R, A (which may include mini IRACs for each element or sub-issue), then C. This together is one unit of argument.
 
(Generally, you can’t go wrong with IRAC, but keep in mind the format that your state likes to see by checking your state bar’s sample/model answers. UBE/MEE model answers use CRAC, but I’ve also seen UBE takers use IRAC just fine.)


3.     Essay A discussed negligence per se before the “reasonably prudent person” standard of care.
 
Technically, “reasonably prudent person” is the default standard of care when NPS doesn’t apply. That is, it makes better sense to go through NPS before the default standard of care.
 
Admittedly, this was NOT a big deal. Other sample answers show the writer putting NPS in a variety of other places.
 
The point still stands that every issue has its own way of being analyzed. When you’re studying a rule, you’re also studying how it’s applied. Although IRAC itself is formulaic, you leave points on the table by “just IRACing” through issues without knowing how they like to see them analyzed.
 
One salient example of this is determining whether a contract was formed, where communications between parties should be analyzed one at a time to determine whether there was an offer, counteroffer, termination, or acceptance at each communication. It’s not “just IRACing.”
 
To that end, study a variety of past essays and model answers to understand how to present and sequence the discussion of different issues you may be asked to analyze during the bar exam on the actual essay.

I cannot overstate the importance of knowing the ISSUES. (Refer back to Email #3 where I recommended knowing the issues and not just the rules.)
California takers can review high-scoring and low-scoring answers on BarEssays.com (get $25 off with offer code “MTYLT25”).

Or head to my essay answer bank for essays donated exclusively for MTYLT readers, from more recent years (mostly CA answers—but everyone is free to donate!).


Things both excerpts did well:

  • Focusing on negligence per se. Negligence per se is clearly a major issue, given the statute slapped at the top of the essay question (FACTS → RULES → ISSUES)
  • Separating issues and sub-issues (duty from breach, type of harm from type of plaintiff)
  • Coming to a conclusion for each issue and sub-issue
 


Things Essay A could have avoided:

 
Essay A scored extraordinarily well, so it did something right… but here are some things you could tweak.
 
1.     Ping-pong arguments — skip to save time
 
Sure, Doug could argue whatever and Harry could argue “nuh-uh” and Doug could rest his case with “no u”.
 
In the interest of time, there’s no need to spend time analyzing all sides, unless (i) the rule calls for split views (e.g., Cardozo and Andrews) or (ii) the facts are vague. Whether you ping pong or not, you’re still coming to a conclusion for that particular issue. Focus on arguing for that end conclusion. You can still do well this way.
 
I’m not saying to never ping pong, especially if you have the time and you want to go for it. It just doesn’t appear to be the best use of your limited time. It’s whipped cream that fills up space nicely, but I don’t care for it. I’d rather get the meat right first, then analyze deeper if needed.
 
The way to introduce the other side of the argument to ensure the big points is to introduce any applicable legal theories, such as a DEFENSE, which is a separate legal issue and deserving of points if you identify it. Argue theories rather than the facts.
 

2.     Huge paragraphs that commingle rule and application — chop ’em up
 
Where’s the separation between rule and application, and application and conclusion?
 
I’m not a fan of giant paragraphs with 50 sentences in a row. It’s hard to tell where the line of thinking ends or continues, for both you and the grader. Remember 6th grade English?
 
You want to make the grader’s job as easy as possible. It takes EFFORT to evaluate a stranger’s essays, let alone attempt to judge them fairly across hundreds or thousands of them.

Isn't the bar exam also a test of empathy in that sense?


One last comment: It's OK to not reinvent the wheel when it comes to preparing for the essays. You can learn a lot from emulating model answers and approaches. In fact, it's your DUTY to give yourself every advantage you can.

Brian

PS. Did this help? Your answer will be tallied on my end: Yes / No

 
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