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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

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 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.”

(c) Handling the Causes of Action Call

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 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

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 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

(c) Handling the Multiple-Call Call

(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 – 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?

The Almost Daily Word – Bar Graders and the Blink Moment – Create the Best First Impression of Your Essay Answer – Part 2 – Topic 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 answer can’t avoid a “Blink moment;” an immediate and instinctive reaction that may influence the balance of his or her grading.

You can take advantage of this tendency with topic headings that reflect the call of the question, whenever possible. Try this exercise and see if you don’t agree.

Pretend you’re grading Essay Question 5 from the February 2009 bar exam. The call of this contracts question is:

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.

Now pretend that you have two answers in front of you. Each answer has received a consensus grade at grader calibration sessions – one passed, the other did not. You have 60 seconds to decide which is which. (Don’t worry…it’s never really done this way, but bear with me.)

Answer 1’s topic headings read:
– Issue: Contract Formation
– Issue: Parole Evidence
– Issue: Mistake/Ambiguity
– Issue: Mitigation

Answer 2’s topic headings read:
– Developer did not breach the contract with Builder
– Developer’s performance was excused
– Builder did not suffer $700,000 in damages

Which answer did you chose?

If you chose Answer 2, I’m with you. Based on my 60-second scan, I already know two things about Answer 2 that I don’t know about Answer 1: That it will attempt to answer the precise questions put to it in the call; and that so far at least, it’s likely to be “logical,” “lawyer-like,” and better organized. Answer 1 has shown me a recognition of the question’s subject matter – nothing else.

Finally – pretend that you are instructed to read and grade both answers. Which do you think is more likely to receive a clearly passing or superior grade?

This is where the “deliberate” part of Mr. Gladwell’s formula for good decision-making comes into play in grading. California Bar graders read essays and performance tests carefully and base their final grading decisions on the whole answer. It’s very possible that its author will get Answer 1 organized and fully answered. It’s as possible that Applicant 2 will fail to do much more than “channel” the questions topic headings. However, based on the topic headings alone, which answer would you “put your money on?”

By the way, have you noticed that applicants can get a head start on organizing their essay answer to promise graders good things, without actually having to know the law or even anything about the question? If you have, then good for you. A piece of your grader’s “Blink moment” now belongs to you.

The Almost Daily Word – Bar Graders and the “Blink” Moment – Create the Best First Impression of Your Essay Answer – Part 1

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

Say you’re an experienced California Bar Examination grader, as I was. You’ve graded essay answers for ten examinations – at least 8,000 books. You’re grading Essay #5 on the February 2009 examination. (Available at calweasel.com) You’re calibrated to the 11 or so other graders on your team – meaning that you consistently stick to the grading standards the team reached following a day and half of deliberations. You read every word of every answer, often twice, before you assign it a grade. You take your job seriously.

Do you honestly think you can ignore your first impression of each answer, or even of pieces of the answer, when you’re grading?

I graded bar examination answers – essays and performance tests – for ten years before I went on to membership on the Committee of Bar Examiners and then to becoming the State Bar Examinations Director. To each answer I graded, I almost always had an immediate and instinctive first impression, a “Blink Moment.” Malcolm Gladwell describes this phenomenon as “…[R]apid cognition … the kind of thinking that happens in the blink of an eye. When you meet someone for the first time, or walk into a house you are thinking about buying, or read the first two sentences of a book, your mind jumps to a series of conclusions.”

I didn’t assign a grade based on that impression – I always read every word before I decided. But I couldn’t ignore my instinct either – it was my introduction to that answer – a handshake with that applicant.

If what I’ve described makes sense to you, how are you going to write an answer that makes your grader’s instinctive reaction a good one?

Further installments on this topic will give you some tips – some easy, some more difficult, on exploiting your grader’s “Blink Moment.”

The Almost Daily Word – The Seven Deadly Sins of Bar Exam Preparation

“Don’t let your sins turn into bad habits.” – St. Teresa of Avila

I’ve been thinking about the California Bar Exam for over 35 years. Scary? – I know!

During that time I’ve been:

– A Bar Exam grader (10 years, about 20,000 answer books)
– A Committee of Bar Examiners member (policy maker, nationwide testing network participant)
– The State Bar Examinations Director (former frightened exam-taker, now in charge – sort of)- A Bar Exam tutor, and
– A law school faculty-member.

During that time, just as most applicants typically are, I’ve been preoccupied with what skills a student must take into the exam to succeed: legal analysis, legal application, organization, perceptive reading, topic heading composition, rule statement memorization, how to write essays, how to write performance tests, MBE strategies … the list seems endless.

Only lately (better late than never?) I’ve begun to reflect on something that has been ubiquitous, but that I noticed only over a long time and only with my “emotional peripheral vision.” Something that I may having been trying to avoid without realizing it. Something that may be none of my business. But something that feels critical to me as a human being struggling to achieve his own successes and deal with his own failures, who wants to share his thoughts with any willing reader.

What self-defeating traits of character do unsuccessful applicants have in common?

Over the next seven entries, bluntly and candidly, but, hopefully, also with the humility of a person who has ignored more than his full share of good advice and often paid the price, I will, indeed, share my thoughts.

I hope you’ll stick around to read them.

The Almost Daily Word – Failing the Bar Exam – And Gratitude

Gratitude is the fairest blossom that blooms from the soul. Harriet Ward Beecher

 

I’ll be straight with you. Feeling and expressing gratitude on a daily basis are practices that I came too relatively late in life. Temperamentally, I suppose you could say that I’ve always been much more of a “glass-half-empty” kind of guy” – a worrier.

 

This may seem ironic to no one other than me, but what turned me into a proudly and overtly grateful person was a series of personal disasters and failures that could very well have done me in. They didn’t though, and although I can claim a little credit for my survival, most of what saved me came by way of gifts from others. I believe this because there’s just no way else to explain how my recovery – my salvation if that’s how you’d prefer to put it – was so stunning and beautiful. By no means was it a straight line from darkness and discouragement to joy and a sense of fulfillment, but the blessings just kept on coming, whether I deserved them or not.

 

After much reflection, I’ve concluded that these gifts: among them my health, my sons, the moon coming up, the support of friends, the comfort of a quiet home, the satisfaction of working hard on things I love, working out, hiking in the hills, even folding laundry, have always been there for me. I just never noticed them enough, or never noticed them at all.

 

There are understandable reasons – my preoccupations mainly: with making a living and raising children, with wanting to have dumb fun (and plenty of it), with wanting to be (or, rather, to be seen as) “important.” Still, it was also very much the case, that even though I knew better, I simply didn’t look up or around enough. I didn’t pause for a deep breath enough. My field of vision was way way too narrow, and I missed many signs that, even with its ups and downs, life is good, miraculously good.

 

When I became the State Bar Exam Director, July examination results went out on the Friday following Thanksgiving. This was not popular, to put it mildly. Applicants complained that the holiday was an agony of not knowing. Their complaints resulted in the release date being moved up by a week, and guess what. Unsuccessful applicants, who often comprise 40% or more of those receiving State Bar letters, complained that the new release date ruined their holiday. Perhaps my reactions at the time were harsh and more than a little glib. I figured that failing the Bar just sucked, no matter when you got the news, and that that fact was the bottom line.

 

This Thanksgiving failing the Bar still sucks, and no one, most of all me, should underestimate the effort it takes to get through defeats like this. Nonetheless, the “glass-half-full” part of me has these thoughts.

 

When we take time to look above, beyond, under and around our set backs to the rest of our private universes, the view can often be pretty good. If, using tomorrow as an example, we are healthy and safe, if we are with loved ones, if there’s football, and the food and wine are tasty, we are well off – better than well off. Try to dispute that.

 

So .. to all, and especially to those who will soon be working their ways back into Bar Exam preparation, I wish you a very very happy Thanksgiving. Please don’t forget to give thanks, early and often. Put your worries aside. And, if it comes to whether you should have seconds on dessert or another glass of wine, go for it!

The Almost Daily Word of Wisdom – Why I Blog

“Your blog is an unedited version of yourself.” – Unattributed
I am someone who is relatively private and intensely self-conscious. It therefore surprises me that for the past six years, since I started tutoring, I have been eager to share my thoughts and feelings publicly about a wide range of topics – many unconventional and/or personal – about preparing for the Bar Exam. That dichotomy seems to be worth reflecting on every so often. It’s become important to me that people interested in me in my tutor hat know something about what makes me tick.
There are many reasons beyond the obvious, why the Bar Exam is important. It requires an immense amount of work. Preparing for it and taking it are gut wrenching. (I remember nearly everything about the three days that I took it, over 40 years later.) Passing it can feel like summiting Everest, flunking it can be about as bad a feeling as there is. There are no guaranties of passing, and that alone – that uncertain outcome – pumps the stress level up into redline territory. Most folks undertake this struggle in a well-intentioned spotlight cast on them by their friends and family, by law professors and future employers –not always easy. If only one could hide out until his or her name is on the pass list.
So, for starters, I feel a tremendous amount of respect for, and kinship with, everyone who sits for the Exam. It isn’t an overstatement to say that they are heroes to me in a way; embarking upon uncharted waters with a critical destination in mind and no guaranties. After over 35 years affiliated with the Bar Exam – as a grader, as a Committee of Bar Examiners member and as the State Bar Exam Director, as a tutor and as a law professor – I feel a responsibility to be involved in the conversation about how to prepare for it.
Another thing that has surprised me is that I have opinions about the Exam and how to get ready for it: lots of strongly held ones that involve not only how to study but how to BE while one studies. Those opinions may not be for everyone. That’s fine. But they are sincere, and they come from a long life of doing many different things in addition to being a State Bar bureaucrat. Much of what I most believe in comes from my mistakes and failures in life. Aeschylus, the Greek poet said: “Pain falls drop by drop upon the heart until one acquires wisdom through the awful grace of God.” I have become wise, I hope, and I’m eager to volunteer that wisdom to anyone who wants to listen. My failures have also given me a sympathy for others who are struggling in a noble cause –  a sympathy that I never had when I was a younger person and thought I knew everything.
I am eager to work “up-close and personal,” as they say, with my students. I want to help them feel safe and confident so that they can face up to and discuss their weaknesses and their fears; so they can grow; and so they can walk with genuine confidence into their exams, proud that they’ve done everything they could to prepare, and ready to conquer the challenge. To be perfectly honest, I’m doing it as much for me as for them. It fulfills me. Seeing them grow in their studies feeds me. Seeing them succeed makes me more than a little insane with happiness.
So why do I blog? I guess one way to think of it is that when I blog I’m extending my hand to you. I want you to know that I’m here and to encourage you to consider my thoughts and feelings about your success. To remind you that passing the Bar is a huge challenge, but not an insurmountable one, and that you are capable of doing it. I want you to know that being invited to help you and support you would be a privilege, and a pleasure.