The Almost Daily Word – Bar Graders and the Blink Moment – Create the Best First Impression of Your Essay Answer – Part 5 – Constructing Your Discussion

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

Four previous blog entries have outlined steps to create an instinctively good impression of your essay answer on the part of the grader.

Step One is to structure your topic headings in direct response to the call of the question.

Step Two is state your sub-headings articulately and responsively, following the linear flow of the question and looking for the “issues within issues” that essay questions often include.

Step Three is to write the applicable rules of law completely and precisely, whenever possible stating the rule verbatim.

Each method requires more of you than the last: the ability to structure your answer: the ability to identify the legal issues, the ability to articulate clearly the applicable rules of law. Creating a positive instinctive reaction on the part of your grader requires not only that you have these abilities but that you expertly depict them on the page.

Structuring your “discussion” – your analysis of why the facts in the question support the application of a particular rule of law, is the most difficult, but is a key to a superior grade. It’s not only what you say – but how you say it – that can trigger a grader’s “Blink reaction.”

Remembering these techniques can help:

– Be Persuasive. Take a side! Persuasiveness requires you to express unequivocal judgments about the facts. For example, by labeling a fact “the most important,” or “the one that the court will most likely rely on,” you will make your conclusion clear. Being persuasive requires you to:

– Be Confident. Confidence is not shown by the all-too-common construction: “P will argue…. D will counter-argue.” You can show greater mastery by constructing your sentence(s) to acknowledge the opposing argument this way. “D’s argument that [summarize argument] will be unsuccessful because….”

– Make use of transitions. Transitional words and phrases implicitly or explicitly summarize information that you have already presented and help the grader anticipate what you are about to say.

– Be Succinct. Make your sentences factually dense. Your grader knows thoroughly the contents of the question you are answering . There is no need to quote the question.

Contrast the discussions of the answers, “1” and “2” that have been referred to throughout all previous entries on this topic.

Answer 1 discusses the application of the parol evidence this way:

Analysis: Builder will further argue that the contract was Fully Integrated because the contract stated in relevant part, “This written contract is a complete and final statement of the agreement between the parties hereto.” Developer will counter argue that an Oral Condition Precedent to the formation is a valid exception to the parol evidence rule. However, Builder will argue that in pre contract negotiations when Developer told him he would not be able to proceed with the contract he affirmed this statement by acknowledging that he understood such a condition to be implicit in section 14(d).

Answer 2 discusses the application of the parol evidence rule this way:

Here, the agreement between Developer and Builder has been reduced to writing. … [A] court will look at the contract and determine whether the parties likely intended it to be the final and/or complete expression of the agreement given the detailed or specific nature of the terms. In this case, the contract provides for the construction of 10 single family homes and has several sections … describing aspects of the venture. Importantly, the writing contains a merger clause …Courts typically find that the parol evidence bar to extrinsic evidence presumptively applies where the writing contains a merger clause. Accordingly, a court will likely find that the parol evidence rule applies.

Answer 1 is not persuasive. It equivocates. It conveys very little information that is useful in making a grading decision. It portrays the applicant who wrote it in a bad light. What do you think of the answer?

Answer 2 is powerful and persuasive. By reciting what “a court will look to..” the answer presages what facts will be most important to the “ultimate decision maker,” (who can also be described as “the jury,” “the finder of fact” etc.). The applicant then recites those facts succinctly. “Importantly;” “Courts typically find that…” and “a court will likely find” all confer persuasiveness on the applicants use of the facts. What do you think of the answer?