Sunday, January 29, 2012

Tips for Working Bar-Takers and Details on Writing Rules & Analyses


Q.  Brandon writes, "I just wanted to say that I REALLY appreciate you posting your input on passing the bar. I myself am I repeat taker of the California bar (failed July 2011) and am looking to re-take it in Feb. This time around I, like you, work full-time and I have a 7 week old daughter. So, I was hoping that you might be able to provide a little more insight on what you did in order to pass due to time constraints along with some of the tips you got from the tutoring you received in regard to essay writing. I hope I am not asking too much. Any comments will be greatly appreciated! Thanks again!"


Hi, Brandon. :)

I'm sorry it's taken me a bit to get back with you (work has been a never-ending series of fires to put out lately).  Alas, here's my response.


Having a baby, I imagine, brings the difficulty of studying to a real head.  To be very candid, what I did when I came home from work every day was study.  Well, technically, I spent about 1 hour transitioning from "I'm finally home" to "aw, crap; I have to study."  This meant changing into comfy clothes and eating something.  I also cuddled with my roommate's dog for about 20 minutes.  But after that, I hit the books hard.  Seriously, I did it until I fell asleep.  Every night.  I only took 1 full day off, and that was to participate in a work thing.

If you have a spouse who can help with the baby as well as parents who don't mind staying over to help her/him out, I would really try to get them to do so.  Beg.  Bargain.  Do whatever you can.

One of my friends told me to "be really selfish" for once in my life.  This is what it took.  I even held off moving in with the boyfriend and found a place to rent for the studying period so that I would have no distractions (it was a room in a house, but that's all I could afford).

I know that this might not be helpful... I sure hope it is, but I'm willing to bet that having a 2 month-old baby puts another whole level on the difficulty of studying.  I truly hope that you can garner some practical support.



As far as writing tips are concerned, I significantly modified my writing style for this last time that I took the bar.  I would look at a problem and, instead of thinking, "oh my god, have I hit every possible tiny issue?!?!", I changed that into, "ok, what are the blatant issues that the examiners CLEARLY want me to hit and discuss?"  One friend of mine put it well; he said, "Show the examiners that you're not going to commit malpractice."


Moreover, once I got the main issues out on a page, I would write a rule statement that stated the rule in one sentence.  Then, if applicable, I would go into the most key element of the issue (ex: intent, which is usually the most important element if it is, in fact, an element).  Finally, if applicable, I would  maybe write about what would happen in certain jurisdictions.

EXAMPLE: "Conspiracy is an agreement between at least two people to engage in an unlawful act.  There must be a specific intent to agree as well as a specific intent to commit the substantive act.  In a bilateral jurisdiction, both parties must actually and truly agree to commit the unlawful act, whereas, in a unilateral jurisdiction, if one party feigns agreement, the other may still be liable for conspiracy.  Some jurisdictions also require an overt act."

Basically, I would write my first sentence rule statement to include all the elements and then I would "unpack" the rule to be a little more sophisticated in the next sentence or two (especially when the facts would call for such "unpacking").

Just to note, though, there are clearly some issues that are so major that you must, MUST separate out the elements as their own sub-headings.  For instance, negligence is huge.  Therefore, under each subheading/element (duty, breach, causation, and damages), you will want to write out a rule statement.  But for most issues, you will not need to do this (e.g., battery, assault, trespass to land, conspiracy, standing, abstention, consideration... the list goes on and on).


The most important part, however, is the application section, as we all know.  I learned to cut right to the chase in my first sentence.  I try to sit back and think, "which element in the rule statement does the outcome of this issue really hinge on more than the others?  And why is that... what facts make this element above the others so contentious?"  Once I had my answer, I started writing.  Let me give you an example:


[Rule; aim for more than the basic elements.] Standing requires an injury in fact, causation, and redressability.  If there is no injury in fact, the requirement for injury will be satisfied if the plaintiff can show a threat of immediate harm.  The government regulation at issue must have caused the harm.  Also, a favorable determination in the plaintiff’s favor must alleviate the grievance.

[Application; the big deal with standing, and given these facts, is whether the plaintiff was actually injured or about to be harmed, so that was the first element I addressed because I knew the outcome of the issue hinged on this element.:]  Here, Ned has standing because he is currently injured since he is not allowed to have a permit simply due to his age; this prevents him from performing his job.  Also, Ajax has standing because it can at least show threat of an immediate future harm since some of its employees will not be able to perform their duties by being precluded from obtaining a permit in State A.  Further, assuming that Ajax has more than one employee that would need to drive through State A, Ajax would also be harmed by the additional time and cost required for each employee to obtain the permit.  The harm is coming from the government because State A is the entity that passed the law at issue.  Finally, redressability exists because, upon a favorable decision by the court in Ned's and Ajax's favor, Ned can avoid the license requirements and keep his job, and Ajax will not have to incur the expense of ensuring that every employee has such a license.

[Conclusion; short and sweet.:] Therefore, both N and A have standing.

Tie the element with a fact within each sentence and link them with the word "because," "since," or "when." (For the law review nerds, I understand that "since" is temporal, but sometimes you need to use commonly perceived synonyms.  This is particularly true when you need to use "because" more than once in the same sentence, which looks and reads absurd.  It's the bar, not law review.  If you aim for perfect, it may lead you into troubled waters with more time wasted on unnecessary editing.)

The second time I took the bar, I had a real problem with writing without using the word "because" in the right way. Example:



Theft is the taking and carrying away of the personal property of another with the intent to permanently deprive.

Here, Ned was in Charlie’s place and took a box from inside, so he took someone else’s personal property.  He intended to permanently deprive, likely, because he brought his own briefcase and placed the box inside with a lock on the briefcase.  Afterwards, Ned carried it outside of the apartment.

Therefore, Ned committed theft.

I mean, that is just AWFUL!  I wasn't doing a good job at tightly discussing the facts relative to the corresponding element.  Hell, sometimes I left the element out completely!  I think I figured that, as long as I caught the fact that addressed the element, it would be ok.  Well, I was wrong.  Wrong, wrong, wrong.

I was just sort of going in order of the elements listed in my rule statement.  This is bad.  It shows the examiners that you don't really see what is important.  In theft/larceny, the big issue is whether you can clearly demonstrate INTENT to permanently deprive.  This will require a discussion... meaning, more than one sentence.  What I probably should have written (without looking back at the fact pattern) is the following:


Larceny is the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive.  In most jurisdictions, larceny is considered a felony, but some jurisdictions consider it only a misdemeanor. [NOTE! I don't even know if this is true, but chances are, there is at least one piddly jurisdiction out there that punishes larceny as a misdemeanor.  If you think that there MIGHT be a jurisdictional issue, but if you can't remember what specific type of jurisdiction holds which way, I suggest that you write something like, "some jurisdictions ________, whereas other jurisdictions ________."]

Here, Ned committed a larceny because he intended to permanently deprive Charlie of his box (personal property) when he placed the box inside of his own briefcase and headed toward the door to leave.  Also, Ned likely intended to do so at the time of entering Charlie's home because he had brought his own briefcase, which was probably intended for putting the box in; this demonstrates aforethought to take Charlie's box away from his home.  Ned probably intended to permanently deprive Charlie of the box because he believed that it contained something valuable that Ned wanted for himself, as he told Judy.  This taking was trespassory because Charlie did not give him permission to take the box.  Once Ned left, he had completed the crime because exiting was a carrying away of the box.

Therefore, Ned has committed larceny and should be found guilty.  In most jurisdictions, he will have committed a felony.

Do you see the difference?  Do you see the "because" in each and every sentence of the application section as it ties an element to the key fact or set of facts?  "Since" and "when" are also used to link the elements to the facts when I have already used "because" in the same sentence.

Also notice that the first few words in the application basically conclude as to which way the ISSUE concludes and links that to the dispositive element along with the key fact.  This, I think, is probably the most important part of my entire diatribe here.

Is the example above grammatically perfect?  No.  Did I end a sentence using a preposition?  Yes.  Do I write like this practice?  No.  But this is the bar, people, and you need to get through it in top speed, so get your heads out of the black hole of perfection.

Oddly enough, I don't think I wrote that badly on my law school exams.  I think that I thought that the bar was so very different and that the approach was a mystical thing to try and figure out.  To an extent, this is true.  However, it is also true that my "theft" example from above would be horrendous for any law school exam, let alone the bar!  I also think that examples from *some* courses do not spell this out explicitly.  The instructors do not say, "Hey!  Here's what to do." or "Hey!  Don't do that!"  Maybe it's because they assume that you should know better from law school.  This may be true.  However, for the bar, I was so nervous and literally wiped my "learning-how-to-do-legal-writing" slate clean.

This, of course, was a grave mistake.  In the end, I re-learned what I wiped clean.  And this is how I passed.


1) Get help with the baby so that you can focus as much of your time as humanly possible on the bar.

2) Better to spot all of the in-your-face main issues (and possible defenses) and to take the time to really discuss those thoroughly and properly than to spot every feasible issue out there with mere superficial discussion.  [Ignore people who talk about how brilliant they are that they found some minor, ridiculous issue.  I promise, it's worth 0 points.  This is especially so if that person failed to fully discuss the big stuff.]

3) Attempt to make your rules at least a tiny bit more sophisticated than a list of elements.

4) Write the application section the way I discussed above.  Use "because," "since," and "when."  Begin your application by concluding on the issue and linking that to the dispositive element with the key facts.

5) Don't forget to actually conclude on every issue.

6) Bonus tip:  I never underlined anything on my passing bar exam.  That nonsense just took up too much of my time.  Instead, if I felt like something was super important, I would use all caps.  This saves on time and potential frustration.

I cannot imagine how long this response is going to look once I post this.  Regardless, I really do hope this helps you or someone else out there.