California

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 – 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?