8. Identify & Recognize Categories of the Law & The Defenses For The Cause of Action.

The Fear Factors: Fifteen Reasons Why Applicants Fail The Bar Exam.

When you are instructed to answer a question on the bar exam, you will usually be asked to identify a cause of action. Inherent in every cause of action is at least one defense. Know that the defense will also be part of the answer, although it may not be directly stated.

If, for example, there is an essay regarding contract law and the question addresses an issue regarding formation of the contract, then please recognize that there must be a defense to formation (particularly because if there is no defense, then the question stops abruptly) and that is impossible on a long question (which contract questions tend to be).

Anyway, what are the defenses to formation? This is a rhetorical question, but you must learn to ask yourself that question for every cause of action. Every Single One. Failure to do so will cause you to lose some kind of points. You know, for instance, that the statute of frauds, incapacity, illegality, are defenses to a formation question. Match the words that look like a formation concern with the appropriate defense.

You also know that negligence requires a duty, a breach of that duty, actual & proximate cause, and damages. Right? Yes, but what about the specific areas that need to be addressed. Duty requires you to look at an obligation, but looking at those with different responsibilities. Medical doctors have a different duty than school teachers. Landowners have a different duty than carriers (transportation) . The duty is the cause of action; the defense is whether they met the duty. Usually, the defendant comes close (does some action which is not enough). In proximate cause, the issue is whether something was foreseeable, but you need to look for the defense (a superceding, intervening event that stops the chain of causation).

Criminal law and procedure both have tons of causes of actions and defenses (eg., conspiracy requires the act and is the cause of action. The defense, generally, is withdrawal (making a telephone call or informing someone about the details of the conspiracy and calling someone to tell them about the conspiracy). All property crimes have defenses built into the elements (burglary, larceny, false pretenses, embezzlement), etc. You just have to take your time and remind yourself that where there is a cause of action, there is a defense.

The cause of action and the defense must be included in the answer on the exam. The purpose of the question is to determine whether you see the cause of action, and the defense.