The Almost Daily Word – Win Big on Performance Tests by Reading Their “Tells” – Part 1

“If you’re playing a poker game and you look around the table and can’t tell who the sucker it, it’s you.” Paul Newman – Movie Star and Race Car Driver

The most common complaint I hear from applicants preparing to take the Performance Test is this:

“I had trouble organizing my answer. This created so much pressure to finish within three hours. There is so much material in every Performance Test and so little time to absorb and deal with it.”

“Practice makes perfect” in performance test writing; the more you write the better you’ll get. That said though, you can also practice spotting the sucker – not being a sucker.

Here’s the difference.

Every performance test is unique in many ways – it’s intended by the drafters to be. But, if you were, say, a “bar geek” like me (get a life Adam!) you might consider it interesting to go through as many of the 120 or so past questions to see if they have anything in comment. If you did, you might be able to describe the major types of performance tests and invent strategies for each one. No way you say?

Well … you’re in luck. Stay tuned to the “Almost Daily Word.”

The Almost Daily Word – Magic and the MBE – Part 1 – the Bullet Catch

“The magic show is a competition. The audience is trying to figure you out. They aren’t suspending their disbelief—they’re trying to expose you as a scam artist.” – Teller

The Bullet Catch is a classic magic trick. In it, a bullet, typically marked in advance by an audience member to establish its authenticity, is loaded and fired by a skilled marksman, generally through a pane of glass, at the star of the show. The magician then catches it, often in his or her mouth, collapsing to the stage with the effort, only to stand back up triumphantly to spit out the projectile with its markings in tact. Magic – right? Or at least an impenetrable deception.

Actually, neither. In Penn and Teller’s “Double Bullet Catch,” the magicians swiftly and surreptitiously substitute wax bullets in the two guns and conceal the marked ones in their mouths. The waxed bullets shatter the glass, going no further and, well, you know the rest. All the famous pair have done, when you get right down to it, is invent a simple set of procedures, and then practice them to perfection, relying on their experience in, and knowledge of, what will trick their audiences.

In a way, as you begin your preparation for the Multistate Bar Examination (MBE) you are walking into a similar world of tricks and deceptions. In this world, each question has a correct answer right out in plain site – no trick there. However, all around the answer are scattered diversions, misdirections, and challenges, all carefully contrived by experts– often law professors with professional lifetimes observing students’ weaknesses and counter-productive tendencies.

The National Conference of Bar Examiners spends considerable time and treasure creating MBE questions, creating layer upon layer of question creation, editing, review, pretesting, and statistical tracking to make sure that questions go out on stage every bit as slick and apparently impenetrable as the Double Bullet Catch. Just as Penn and Teller rely on certain audience tendencies, the NCBE relies on the tendency of applicants to read questions incompletely or without sufficient focus; to make incorrect assumptions; to bring less-than-satisfactory understandings of the law into the exam; and – let’s be real– to be terrified.

Okay – take a breath. Open your mind to this possibility. If you can learn to spot these tricks, or even just the most common ones, and then practice, practice, practice, what may seem like insurmountable wizardry at the moment can, over time, turn into just another day at the office.

In this occasional series on The Almost Daily Word, I will be making observations on how to penetrate the magic of the MBE on your road to Bar success. Please stay tuned!

Here we go!

The Almost Daily Word – Why Gamble on Essay Questions: Letting Essay Call Structures Organize Your Answers – Part 5 – The Undivided Call

“The smarter you play, the luckier you’ll be.” Mark Pilarski – Gambling Expert

“You can know the rules of law. You can know IRAC. You can know how to write. You can know all of that. But if you don’t know the Bar Exam itself, you’re “’playing stupid.’” Adam Ferber – Bar Exam Blogger

Each year, there are six essay questions on each of two bar exam administrations – 12 altogether. That’s 60 essays in the last five years, 120 in the last ten years. This might lead you to conclude, even after your bar preparation, that there is endless variety in essay questions. It might lead you to think that your best bet is just opening the exam booklet and reacting to what you see. It might, but if it did, you wouldn’t be playing smart – you’d just be gambling.

Although California Bar Examination Essay Question calls (the tasks assigned to the applicant in each question) vary slightly, in general, there are four call structures that commonly appear. An applicant who has become familiar with each such call structure and has developed appropriate strategies to respond to them will have an advantage on the essay portion of the Exam.

The fourth such call, I call “the Undivided Call.”

(a) Description

The “Undivided Call” can appear as a single call, or one or more sub-calls in a question. (This means that, at the same time, an essay question can have characteristics of both a “multiple-choice call,” and an “undivided call.” However it appears, it is similar to the Causes of Action Call in that it calls on the applicant to identify all possible issues (sometimes causes of action, sometimes other legal issues) that reasonably arise from the facts in the question, assign weights to them, and then allocate appropriate time and words to organizing, analyzing and discussing them.

It is different from the Causes of Action Call in that it also requires the applicant to organize, analyze and discuss all the issues together to reach the answer to the single call of the question. In this respect, it is similar to the most heavily weighted sub-call in a Multiple-Call question.

(b) Example

“Does City’s refusal to allow AAO to use the bulletin board violate the rights of AAO’s members under the First Amendment to the U.S. Constitution. Discuss.”

As does the Causes of Action Call, the Undivided Call typically uses facts and words typically associated with a rule or rules in doctrinal law school courses and bar reviews. Once the applicant is familiar with the content of the root of the question, he or she can identify these facts and situations and/or these triggering words and link them to the corresponding rules of law. The relative weights of the issues can be used to make time and word allocations.

The second level of analysis can be thought of as an issue in itself, requiring its own weight and time and word allocation. That is because, as in the example above, the applicant must organize, analyze and discuss the each issue and its outcome to arrive at a direct answer to the single call.

(d) ‘Samples of Causes of Action Questions at the Office of Admissions’ “Past Examinations Site”

– February 2014: Essay questions 3, and 4

– February 2013: Essay questions 4, 5, and 6

Why Gamble on Essay Questions: Letting Essay Call Structures Organize Your Answers – Part 4 – The Causes of Action Call

“The smarter you play, the luckier you’ll be.” Mark Pilarski – Gambling Expert

“You can know the rules of law. You can know IRAC. You can know how to write. You can know all of that . But if you don’t know the Bar Exam itself, you’re “’playing stupid.’” Adam Ferber – Bar Exam Blogger

The third such call, I call “the Causes of Action Call.”

In this common call, the term “causes of action,” can be replaced with terms such as “ethical violations,” or “arguments.”

a) Description

The “Causes of Action” Call asks the applicant to list and discuss all causes of action that reasonably arise from the root of the question, often together with all defenses to such causes of action. Alternatively, the question may be “flipped,” and the applicant asked to discuss all defenses (creating the necessity to discuss the causes of action).

This type of question is easier than other types in the sense that each cause of action (and its defenses) can be discussed separately. There is generally no need to discuss one cause of action in connection with others in the question. It is more difficult in that the applicant must identify all causes of action worth discussing and, importantly, omit all causes of action not worth discussing. As a consequence of each cause of action’s complexity relevant to the others, the capable applicant must also assign a tentative weight to each and then apportion answer and outlining time and words accordingly.

(b) Example

“What causes of action might Peter’s father reasonably assert against PLC, what defenses can PLC raise, and what is the likely outcome on each? Discuss.”

The “Causes of Action” Call often describes facts and situations that are commonly used in law school and bar review courses to illustrate the application of a rule of law. The facts often include particular words that the applicant will recognize as triggering the possible application of the rule or rules. Once the applicant is familiar with the content of the root of the question, he or she can identify these facts and situations and/or these triggering words and link them to the corresponding rules of law.

The analysis should not end there however, since the applicant should anticipate that all identified causes of action will not be weighted equally. The applicant should also anticipate that one or more facts may give rise to the possible application of more than one rule of law. For example, in Question 1 (“Peter and the Power Station”) from the February 2008 examination, the “high voltage electricity power substation” that injures twelve-year-old Peter should trigger consideration of both ultra hazardous activities and attractive nuisances, in addition to negligence.

(d) Samples of Causes of Action Questions at the Office of Admissions, Past Examinations Site

– February 2014: Essay question 5

– July 2013: Essay questions 2, 5, and 6

– February 2013: Essay question 2

The Almost Daily Word – Why Gamble on Essay Questions: Letting Essay Call Structures Organize Your Answers – Part 3

“The smarter you play, the luckier you’ll be.” Mark Pilarski – Gambling Expert

“You can know the rules of law. You can know IRAC. You can know how to write. But if you don’t know the Bar Exam itself, you’re “’playing stupid.’” Adam Ferber – Bar Exam Blogger

The second such call, I call “the Evidence Call.”

(a) Description-The Evidence Call is a variation of the Multiple-Call Call, adapted to an Evidence question or the Evidence portion of a cross-over question. It consists of two or more sub-calls, each of which may have additional sub-sub-calls. Each sub-call references testimony or evidence that each of the party’s in a contested action wishes to introduce into evidence.

(b) Example

“Assuming all appropriate objections and motions were timely made, did the court properly:

1. Allow the prosecution to call Whitney? Discuss

2. Admit the testimony of:

(a) Whitney? Discuss.

(b) Ella? Discuss.

Answer according to California law.”

The Evidence Call has a slightly different format from the Multiple-Call Call but requires the same recognition of the relationship that the weights of the sub-calls have to the applicant’s apportioning of time and words. One or more of the sub-calls may call for a two-tiered analysis; for example, the admissibility of testimony based on a discussion of the hearsay rule and all relevant exceptions. The applicability or inapplicability of the rule and each exception is the first tier. Organization, analysis and discussion of all the relevant rules and exceptions is then necessary to answer the call; e.g., should the testimony of Officer be admitted?

(d) Samples of Evidence Call Questions at the Office of Admissions “Past Examinations Site”

– July 2012: Essay Question 6

– February 2012: Question 3

The Almost Daily Word – Why Gamble on Essay Questions: Letting Essay Call Structures Organize Your Answers – Part 2 – The Multiple-Call Call

“The smarter you play, the luckier you’ll be.” Mark Pilarski – Gambling Expert

“You can know the rules of law. You can know IRAC. You can know how to write. You can know all of that . But if you don’t know the Bar Exam itself, you’re “’playing stupid.’” Adam Ferber – Bar Exam Blogger

The first such call, I call “the Multiple-Call” Call.

(a) Description-The “Multiple-Call” Call contains two or more sub-calls, each of which may have additional sub-sub-calls.

(b) Example-“What arguments can Developer make, and what is the likely outcome, on each of the following points:

1. Developer did not breach the contract with Builder.

2. Developer’s performance was excused.

3. In any event, Builder did not suffer $700,000 in damages.

Discuss

(i) After reading the question thoroughly and completing preliminary issue spotting, assign tentative weights to each sub-call. What percentage of the maximum achievable grade of 100 is devoted to each sub-call? Allocate answer and/or outlining time and words accordingly.

(ii) If one sub-call appears to be worth substantially more than any other, plan for a two-tiered answer consisting of: (A) analysis of each issue presented by the call (e.g. parol evidence rule, exceptions to parol evidence rule); and (B) organization, analysis and discussion of all issues collectively, to arrive at the answer to the subcall. (e.g. Developer did not breach the contract with Builder.)

(d) Samples of Multiple-Call Call Questions at the Office of Admissions’ “Past Examinations Site” (http://admissions.calbar.ca.gov/Examinations/PastExams.aspx)

– February 2014: Essay questions 3, 4 and 5

– July 2013: Essay Questions 1 and 3

– February 2013: Essay Questions 1, 3, 4, 5, and 6

The Almost Daily Word – Why Gamble With Essay Questions: Letting Essay Call Structures Organize Your Answers – Introduction

“The smarter you play, the luckier you’ll be.” Mark Pilarski – Gambling Expert

“Almost Daily Word[s]”to come will review each of the four most prevalent call structures.

Stay tuned.

The Almost Daily Word – Bar Graders and the Blink Moment – Create the Best First Impression of Your Essay Answer – Part 5 – Constructing Your Discussion

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

Four previous blog entries have outlined steps to create an instinctively good impression of your essay answer on the part of the grader.

Step One is to structure your topic headings in direct response to the call of the question.

Step Two is state your sub-headings articulately and responsively, following the linear flow of the question and looking for the “issues within issues” that essay questions often include.

Step Three is to write the applicable rules of law completely and precisely, whenever possible stating the rule verbatim.

Each method requires more of you than the last: the ability to structure your answer: the ability to identify the legal issues, the ability to articulate clearly the applicable rules of law. Creating a positive instinctive reaction on the part of your grader requires not only that you have these abilities but that you expertly depict them on the page.

Structuring your “discussion” – your analysis of why the facts in the question support the application of a particular rule of law, is the most difficult, but is a key to a superior grade. It’s not only what you say – but how you say it – that can trigger a grader’s “Blink reaction.”

Remembering these techniques can help:

– Be Persuasive. Take a side! Persuasiveness requires you to express unequivocal judgments about the facts. For example, by labeling a fact “the most important,” or “the one that the court will most likely rely on,” you will make your conclusion clear. Being persuasive requires you to:

– Be Confident. Confidence is not shown by the all-too-common construction: “P will argue…. D will counter-argue.” You can show greater mastery by constructing your sentence(s) to acknowledge the opposing argument this way. “D’s argument that [summarize argument] will be unsuccessful because….”

– Make use of transitions. Transitional words and phrases implicitly or explicitly summarize information that you have already presented and help the grader anticipate what you are about to say.

– Be Succinct. Make your sentences factually dense. Your grader knows thoroughly the contents of the question you are answering . There is no need to quote the question.

Contrast the discussions of the answers, “1” and “2” that have been referred to throughout all previous entries on this topic.

Answer 1 discusses the application of the parol evidence this way:

Analysis: Builder will further argue that the contract was Fully Integrated because the contract stated in relevant part, “This written contract is a complete and final statement of the agreement between the parties hereto.” Developer will counter argue that an Oral Condition Precedent to the formation is a valid exception to the parol evidence rule. However, Builder will argue that in pre contract negotiations when Developer told him he would not be able to proceed with the contract he affirmed this statement by acknowledging that he understood such a condition to be implicit in section 14(d).

Answer 2 discusses the application of the parol evidence rule this way:

Here, the agreement between Developer and Builder has been reduced to writing. … [A] court will look at the contract and determine whether the parties likely intended it to be the final and/or complete expression of the agreement given the detailed or specific nature of the terms. In this case, the contract provides for the construction of 10 single family homes and has several sections … describing aspects of the venture. Importantly, the writing contains a merger clause …Courts typically find that the parol evidence bar to extrinsic evidence presumptively applies where the writing contains a merger clause. Accordingly, a court will likely find that the parol evidence rule applies.

Answer 1 is not persuasive. It equivocates. It conveys very little information that is useful in making a grading decision. It portrays the applicant who wrote it in a bad light. What do you think of the answer?

Answer 2 is powerful and persuasive. By reciting what “a court will look to..” the answer presages what facts will be most important to the “ultimate decision maker,” (who can also be described as “the jury,” “the finder of fact” etc.). The applicant then recites those facts succinctly. “Importantly;” “Courts typically find that…” and “a court will likely find” all confer persuasiveness on the applicants use of the facts. What do you think of the answer?

The Almost Daily Word – Bar Graders and the Blink Moment – Create the Best First Impression of Your Essay Answer – Part 4 – Rules of Law

“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 that may influence the balance of 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. Part 3 may have persuaded you that masterful, articulate sub-headings will strengthen the grader’s impression that your answer is superior..

Basing your topic headings on the call of the question is a “gimme.” A lay person could do it (though surprisingly many applicants don’t). Composing forceful sub-headings tests your legal knowledge and analytical ability. You must be sufficiently grounded in the subject matter to identify the legal issues that each sub-call raises.

Precise statements of legal rules require even more from you, but their effect is powerful. In some respects, they may do no more than demonstrate your ability to memorize. Nonetheless, they are the most direct evidence that you know the law. And…, that your answer, when taken as a whole, will be complete and correct. A grader can fairly assume that since you can state each rule correctly, your application of it will be competent.

Contrast these rule of law statements from answers to Question 5 (Contracts) from the February 2009 Bar Examination. (Part 3 summarizes the question; Part 2 sets out the call.)

Question 5 requires the applicant to discuss contract formation. Answer 1 states the rule this way: “A contract is formed when there is a bargained for exchange/ a promise for a promise with consideration to bind the parties.” Answer 2 states the rule this way: “…[A] valid contract … requires (1) offer, (2) acceptance, and (3) consideration.

Question 5 requires the applicant to discuss a merger clause and the parole evidence rule. Answer 1 states the rule this way: “[Parole evidence} All pre-contract terms are out unless made part of the contract.” Answer 2 states the rule this way: “A merger clause in a contract indicates that the contract is a final integration of the agreement between the parties. This clause causes the Parol Evidence rule to apply. This rule states that no prior or contemporaneous oral statements are admissible that contradict the final integration between the parties.”

Answer 1’s statement of the parole evidence rule is incomplete and general. Its statement concerning contract formation is correct, but it is inarticulate. Answer 2’s rule statements are crisp and complete. If you’ve read my first three entries on this topic, what is your “Blink moment” judgment of the two answers now?

The Almost Daily Word – Bar Graders and the Blink Moment – Create the Best First Impression of Your Essay Answer – Part 3 – Sub-Headings

“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?

You and the Bar Exam – The Almost Daily Word of Wisdom

Insider Tips on Passing the Bar Exam

The Almost Daily Word – Win Big on Performance Tests by Reading Their “Tells” – Part 1

The Almost Daily Word – Magic and the MBE – Part 1 – the Bullet Catch

The Almost Daily Word – Why Gamble on Essay Questions: Letting Essay Call Structures Organize Your Answers – Part 5 – The Undivided Call

Why Gamble on Essay Questions: Letting Essay Call Structures Organize Your Answers – Part 4 – The Causes of Action Call

The Almost Daily Word – Why Gamble on Essay Questions: Letting Essay Call Structures Organize Your Answers – Part 3

The Almost Daily Word – Why Gamble on Essay Questions: Letting Essay Call Structures Organize Your Answers – Part 2 – The Multiple-Call Call

The Almost Daily Word – Why Gamble With Essay Questions: Letting Essay Call Structures Organize Your Answers – Introduction

The Almost Daily Word – Bar Graders and the Blink Moment – Create the Best First Impression of Your Essay Answer – Part 5 – Constructing Your Discussion

The Almost Daily Word – Bar Graders and the Blink Moment – Create the Best First Impression of Your Essay Answer – Part 4 – Rules of Law

The Almost Daily Word – Bar Graders and the Blink Moment – Create the Best First Impression of Your Essay Answer – Part 3 – Sub-Headings