The Fear Factors: Fifteen Reasons Why Applicants Fail The Bar Exam.
I had a conversation with three students yesterday. Two of them are sitting for the New York Bar examination and the third person was sitting for the District of Columbia Bar examination. I learned that one of the three had just written her first essay on Thursday, July 8th. I was concerned, but I did not show it because fear doubled with fear equals fear to the fourth power. We cannot afford fourth power fear. If you just completed your first bar exam question on the 8th of July, or if you just completed your first essay examination minutes ago, then we are going to be happy, make the correction and move on so that we have time to answer as many questions as there are left days times five.
Now, for the post.
When you write an answer for the essay portion of the bar, write it like you mean it. You do not have to tell us that "Able" would argue A, B, or C. Make a decision at the beginning of your answer, near the call of the question? Didn't the call of question ask: What are Able's rights and remedies? And not, what are Able's arguments for his rights and remedies?
The facts are built into the question to determine if you know how to fact gather and make a decision for the person reading your answer. The answer is not a diaper, and the answer is not named, "depends." There is an answer. You know it. Say it. Scream it. Yell it.
Whatever you do, please do not sit on the fence and just string together facts for the audience.
Declare Your Answer.
Answer the Question.
Just the fact Ma'am. Use all of the facts, please! The facts are in the fact pattern because you cannot answer the question without them. You have to utilize the facts in order to prove up your answer.
If your answer is, "Suzy is liable to Bill for Negligence," then it is your job to scramble around and find all of the facts that fit into the duty category, that fit into breach, that fit into proximate and actual cause, and that fit into damages.
Do not stop until you find all of the facts that fit your answer. Cross them out one at a time if you have to. You will not have a fully formed answer without a well developed story consisting of the facts that create story.
Wherever there is a cause of action, there is a matching defense of some sort. If there is a defense there are more facts that must be used. Use them.
Tell the examiner why someone should win or lose; do not suggest. If you suggest, if you hold back, if you say it "depends," then the examiner is not certain whether you actually know the law that controls the question.
Think about it.
Sally will argue A, B, and C.
Jane will argue D, E, and F.
While the two women are arguing all of the time, which one of them will actually win the lawsuit?
If You Fail To Pick Someone, How Will the Grader Know If You Really Know the Law? Really? Anyone can write that Sally will argue a few things and that Jane will argue a few things. But an argument means absolutely nothing without a decision.
You must show the examiner that one set of facts outweighs another set of facts. How else do you come to a conclusion regarding the question.
Write Forcefully.
Do not Waiver.
Do Not Sit on The Fence.
Make A Decision.
String all of the facts together.
Usse all of the facts.
Tell a convincing story, and sound as lawyerly as you can (whatever that means).
Remember a Cause of Action has a Defense, OKAY!
Finally, Do Not Back Down From The Question.
Attack it. Hit It Hard.
Continue to Tell Yourself, I'm Not Going Down Re-Take Road.
Refuse to Lose.
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