“Truly successful decision making relies on a balance between deliberate and instinctive thinking.” Malcolm Gladwell: Blink: The Power of Thinking Without Thinking

In Part 1, I postulated that the California bar examination grader who reads your essay answer can’t avoid a “Blink moment,” an immediate and instinctive reaction to your answer and its parts that may influence his or her grading. Part 2 may have persuaded you to exploit that reaction by constructing your topic headings to respond directly to the call of the question whenever possible.

Topic headings are not all that you can do to make an immediate, favorable impression on the grader. Effective sub-headings are not a “gimme” – they require you to demonstrate that you know the legal principles implicated by the question. Writing them articulately, though, will add to the good first impression you want your answer to make.

Let’s continue considering Essay 5 (Contracts) from the February 2009 California bar exam.

In the question, Developer had an option to purchase a five-acre undeveloped parcel from Owner. D planned to develop the parcel once City approved the extension of utilities to it. Expecting that City would also reimburse D for its utilities costs, D signed a contract to construct houses with Builder. D informed B that it could not proceed unless City reimbursed the costs, but language to this effect was not included in the D-B contract, which, instead, contained an integration clause. When City would not reimburse D for the utilities, D abandoned its plans to develop the parcel and did not exercise its option to purchase it from Owner. B has claimed breach of contract by D and sought $700,000 in lost profits. In the meantime, Architect has purchased the parcel from O and contracted with B to develop it at a profit of $500,000 to B. The call of Question 5 is set out in Part 2.

Let’s also continue to compare Answer 1 to Answer 2 from Part 2, this time, by folding sub-headings into the question following each topic heading of each answer.

Here’s how Answer 1 does it:

Issue: Contract Formation
Rule: (followed by text, which I’ll discuss in Part 4)
Analysis:
Conclusion:

Issue: Parol Evidence
Rule:
Analysis:
Conclusion:
Issue: Mistake/Ambiguity
Rule:
Analysis:
Conclusion:

Issue: Mitigation
Rule:
Analysis:
Conclusion:

Here’s how Answer 2 does it:

1. Developer did not breach the contract with Builder
Parol Evidence Rule
Exception to the Parol Evidence Rule – Conditions Precedent
Exception to the Parol Evidence Rule – Explaining Ambiguity
Exception to Parol Evidence Rule – Collateral Agreement
Mistake Due to Ambiguity
Unconscionability

2. Developer’s Performance Was Excused
Impossibility
Impracticability
Frustration of Purpose

3. Builder Did Not Suffer $700,000 in Damages
Applicability of “Lost Volume Seller” Rule
Certainty Requirement
Unavoidability/Mitigation Requirement

I hope you’d agree with these observations:

First, taken together with its topic headings, Answer 2’s sub-headings have demonstrated the applicant’s ability to determine Question 5’s most relevant issues and to organize them in a lawyer-like way. In other words, Answer 2 has exhibited mastery, with sub-headings that are articulate and responsive to the question’s call.

Not only do the sub-headings follow each other linearly and consistently with the flow of the question, they also recognize the “issues within issues” that a question can often include. For example, the parol evidence rule must be known before exceptions to it can be meaningfully discussed. Additional issues regarding breach (or the lack of it) can then logically follow.

By means of its mastery of the crafting of sub-headings, Answer 2 has created a reasonable expectation that its statements of rules and discussion of their applications will likewise be organized, logical and correct. For the grader who first scans highlighted topic headings and sub-headings before digging into the substance of the answer, all this has occurred before the grader has seen a single statement or discussion.

Answer 1 still can be redeemed if the applicant states the relevant rules of law correctly and applies them correctly. Graders are trained and expected to read every word of every written answer until a supportable grade can be give.

Nonetheless, how did you react to the sub-headings? If you had to choose now, which was the passing answer?