“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.