California Bar Examination

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.”

(c) Handling the Undivided Call

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

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 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

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 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.

(c) Fred? Discuss.

Answer according to California law.”

(c) Handling the Evidence Call

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

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 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 – Seven Deadly Sins of Bar Preparation – #1 – Meaninglessness

There was an enjoyment to being alive, he felt, that because of an underlying meaninglessness … (one) experiences life in that hurried, worthless way one experiences a mistake he could no longer get at. Tao Lin – American novelist, poet, essayist and short-story writer.

Thirty-five years of experience with the California Bar Exam has led me to reflect on the seven deadly sins of bar exam preparation – self-defeating traits that predict bar exam failure. Number 1 is:

Meaninglessness

Several years ago, I had what I guess you could call a crisis of meaning, or, more precisely, a crisis of living without meaning. It was brought about by a perfect storm of personal tragedies. It seemed as if nearly everything that I’d put my faith in was gone – had failed me. I was bereft. For a while, identifying what meant anything to me was both a huge challenge and a constant preoccupation.

I kept on through the sleepless nights, kept working, kept going to the gym, kept thinking, kept faith. What choice did I have? Gradually, thank goodness, time passed and life began to pick its old colors back up – and many new ones as well. My soul and spirit pulled me along in new directions. One was tutoring and, eventually, teaching at a law school. Another was this blog where, for the first time in my very private life I found meaning in talking publicly about my thoughts and feelings. Not only about the bar exam skills and techniques that I’d learned over 35 years, but also about my values – what matters to me. In particular, my view of this exam as a unique challenge to body, mind and soul.

My dark time seemed to leave me with a new kind of intuition, a knack for identifying people who may feel that they are at a crossroads; who may feel a little lost. Regardless of our differences in age, gender or circumstance, I often seem to ask a student or a new acquaintance the type of question that opens a door, starting a very important and personal conversation. What I hear is often sad. It makes me want to help. (After a life of self-centeredness, this ambition to help is probably the brightest new color on my palette.)

More than I’d suspected, many people seem to lose their bearings when preparing for the Bar Exam. On one hand, it surprises me. You’d think that this period of intense preparation and review would be the crowning achievement of academic lives well lived – intelligence validated; ambition, academic effort, generativity and growth all rewarded.

On the other hand, it hardly seems surprising at all. For many students this time can be both an abrupt ending and an uncertain beginning. Twenty or more years of schooling over, the culmination of a sustained ambition that parents, family and friends may have shared, supported, engendered, or even insisted upon. At the same time, an uncertain debarkation on unsettling seas: questionable job opportunities; a changing economy; even a set of disappointing changes from the time so long ago, when becoming a lawyer first seemed so attractive and exciting.

It is certainly possible to pass the bar exam without knowing what it means to you. But, all other things being equal, I’d put my money on the person who has decided that this herculean effort is worth it and, as importantly, has figured out why.

And so, if it is possible to offer “tips” on so weighty a subject as finding meaning in your bar preparation, I offer these.

– Although meaning and humanity’s search for it are timeless and complex, my definition of the word is simple. What is meaningful to you is what is important to you. I use the words “meaningful” and “important” interchangeably.

– There is a difficult part of this simple definition though. It is in the words “to you.” It can feel next to impossible at times to know what is important to you, especially when you are smack in the middle of the effort. It can feel next to impossible to separate what is important to you and you alone from what is important to others, especially when the others are people you love and respect: your family, your friends, your teachers and mentors. You are unique though, and even if you agree with what others believe to be important, you can only profit from making sure that the source of your opinion is truly you.

– Many people I’ve met equate mindless busyness with meaning. (See the quote at the beginning of this blog entry.) Always having a “project” can be a type of avoidance (see Deadly Sin #6). Avoidance of self-reflection, or hurt feelings, or more difficult problems. Avoidance of knowing oneself, “warts and all,” as they say – and then forgiving oneself. So, although it may feel counterintuitive, a simple way to find meaning may be just to slow down, just to sit still for a while.

– Something that may feel meaningless – difficult and unnecessary – may, in fact, be meaningful. One example is when it makes possible something that is unquestionably meaningful. A popular example may be the singer who works her “day job” so that she can sing in clubs and, eventually, compete on “American Idol.” Another example may be passing the bar exam so that you can fulfill your dream of becoming a lawyer.

– Something that once felt meaningful can lose its meaning. Time changes things. “To everything there is a season…” This situation can be the greatest challenge. However, as I’ve come to know recently, the rewards of acceptance and of moving on can be the greatest of all.

And, so, with best wishes to you in your studies, please remember always:

“It is not in the stars to hold our destiny, but in ourselves.”

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.