The red scrawl across my elementary school math quiz is burned into my memory: “Correct answer, but SHOW YOUR WORK!” followed by a big, fat “0” indicating the utter lack of credit I would get for that correct answer.
Bar takers may feel the same frustration when they read the facts, make the correct logical leaps, but get told that their analysis is “conclusory.” What does that mean?
It means you wrote “12 – 6 = 6” without crossing out the “1” in “12”, carrying the “1” over to the “2” and then subtracting…well…six from twelve. It seems like a lot of work just to end up with the answer you gave from the start. But that’s the whole point of analysis: for your grader to see how you applied the law to the facts in order to reach your ultimate conclusion.
An Example: Solving For X (If X is Hearsay)
Let’s use an example to demonstrate the difference between conclusory analysis and “showing your work.” We’ll go super basic, so that we can fight the impulse to ignore the obvious in our analysis:
Rule: Hearsay is 1) an out of court statement 2) offered for the truth of the matter asserted.
Facts: To prove that Truck Inc. was at fault in the collision, Z was called to testify that she stood at the intersection and shouted, “That truck just sped through the red light!”
Analysis: Here, Z’s statement “That truck just sped through the red light!” is hearsay.
What’s the problem here? We used the facts when we quoted Z, right? Nope. It’s not enough to point to which facts you are referring. You have show why the rule supports the legal conclusion you are asserting.
How about this?
Here, Z’s statement is hearsay because it was made out of court and is being offered for the truth of the matter asserted.
Is that better? No, sorry, that is also conclusory. Why? Because you also need to show why the facts support the legal conclusion you are asserting.
Now, you may be thinking, “Obviously, the graders know that Z was standing at the intersection. Won’t I look dumb, or worse, look like I think they’re dumb if I spell out something so obvious?” The answer to that is “Absolutely not.” That is the “Rule + Facts = Conclusion” analysis the graders are looking for. So, what does that look like?
Showing Your Work: Here, Z’s statement was made out of court because she was standing at the intersection when she shouted, “That truck just sped through the red light!” Additionally, the statement is being offered for the truth of the matter asserted because it is being brought in to prove that Truck, Inc. was at fault in the collision. Therefore, Z’s statement is hearsay because it is an out of court statement offered for the truth of the matter.
In this latest example, the analysis is complete because it contains 1) the language of the law 2) reasoning (“because,” “when,” etc…), and 3) specific facts that support that reasoning. No matter how well you state the rule or how correct your conclusions are, that is no substitute for a robust and detailed analysis, which is where you’ll earn the bulk of your points.
Moving Up A Grade: X vs. Y
The last example was fairly basic, and missing a key aspect of showing your work: counterarguments.
The facts you are given during the bar exam are intentionally ambiguous. Not everything will be as straightforward as “Z stood at the intersection.” Did unlocking the house with a borrowed key constitute breaking and entering? Was that sign in the window an offer, or an invitation to make an offer? Was their defamatory statement actually a non-actionable opinion?
Many, if not most, of the facts are going to compel you to debate between two or more potential conclusions. This is a good thing—but only if the debate happens in your analysis.
Let’s return to the facts above and add some ambiguity:
Rule: An excited utterance is an exception to hearsay. For excited utterance to apply, the statement must be made 1) during or soon after a startling event, 2) under stress or excitement of event, 3) concerning immediate facts of event.
Facts: To prove that Truck Inc. was at fault in the collision, Z was called to testify that upon witnessing the accident, she ran along a desolate country road for twenty minutes to the nearest pay phone to call for help, then shouted to the dispatcher, “That truck just sped through the red light!”
Analysis: Here, Z’s statement was an excited utterance because she only made the statement twenty minutes after the event, which was soon after the collision. She was also still under the stress of the event, because she shouted to the dispatcher, rather than speaking calmly into the phone. Finally, she was shouting that the truck had run through the red light, thereby also describing the immediate facts of the event. Therefore, Z’s statement was an excited utterance.
That’s right, we have traveled through time back to the days of the pay phone. Besides that glaring anachronism, what is wrong with this analysis? We have legal language, reasoning, and facts supporting the reasoning.
The problem is that reasonable minds can differ about whether twenty minutes is “soon” enough. Additionally, an objecting party might try to characterize her shout as something other than “stress” or “excitement.” These thoughts may have crossed your mind as you read the facts and planned your answer, which means that these thoughts must end up in your analysis. That way, it can look like this:
Showing Your Work: Here, Z’s statement was an excited utterance because she only made the statement twenty minutes after the event, which was soon after the collision. She was also still under the stress of the event, because she shouted to the dispatcher, rather than speaking calmly into the phone. Finally, she was shouting that the truck had run through the red light, thereby also describing the immediate facts of the event. Therefore, Z’s statement was an excited utterance.
Truck, Inc. will counter that twenty minutes is too long after the event to constitute “soon after,” and that excited utterance requires a more immediate response. Additionally, Truck, Inc. may try to diminish Z’s stress by arguing that being out of breath from her long run on a desolate country road could be the reason for stress, not the collision itself.
However, considering the fact that Z exerted immense effort to find the nearest pay phone, and that witnessing a collision between a truck and another car would have had a stressful impact on the sole witness, it is likely that Z was still under the stress of the event when she shouted to the dispatcher. Furthermore, her call for help could be considered soon enough within that context, because it was the soonest she could alert somebody after witnessing the crash.
Therefore, Z’s statement will likely come in as an excited utterance.
“Rule + Facts + Counterargument + Rebuttal = Analysis.” Practice this equation over and over again, and you’ll become an expert in showing your work on the bar exam!