“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?