Have you heard of an attack plan? Some students are familiar with them from their time in law school, but others managed to get through law school without needing them.
Whether or not you ever used attack plans in law school, you will definitely want to use them on the bar exam. One of the biggest difficulties of the bar exam is being able to write a well-organized, comprehensive answer to an essay question in a short amount of time. Attack plans help with this by giving you a roadmap you can use so you don’t waste precious time trying to figure out what to write and how to organize an essay answer during the exam.
What Is An Attack Plan?
An attack plan is the step-by-step process you go through to answer an essay question and acts as a roadmap on how to address a particular legal issue. Often, the attack plan is driven by the law itself. Other times, the attack plan is driven by external structures, such as those suggested by bar exam preparation materials. Either way, the attack plan is something you should have memorized before you get into the bar exam because it will help you quickly and efficiently identify legal issues and write an organized answer.
Two Types Of Attack Plans: The Checklist V. The Plan
Attack plans generally break down into two different types: the checklist and the plan. The type of plan you use often depends on the legal issue involved. The checklist organizes the law in a way that allows you to go down the checklist and determine which legal issues need to be analyzed in light of the facts in a given fact pattern. The plan walks you through an analytical approach of what you need to talk about to fully analyze a particular legal issue. With a checklist, you don’t have to talk about everything on your attack plan; you only need to talk about the issues that are triggered by the facts. With a plan, you need to talk about everything in your attack plan in order to comprehensively analyze an issue. Here are some examples for clarification:
The attack plan for a homicide issue may look something like this:
First Degree Murder (intent to kill + pre-meditation + deliberation)
Second Degree Murder (4 possible theories)
(1) intent to kill
(2) intent to do serious bodily harm
(3) depraved heart or highly reckless killing
(4) felony murder
Voluntary manslaughter (heat of passion)
On a bar exam essay question, chances are you are not going to have to talk about all of the topics listed on this homicide checklist. But if the essay question includes a dead body, chances are you are going to have to analyze some type of homicide. In order to figure out which types of homicide you need to analyze based on the facts provided, you want to think through all of the issues on your checklist and think, “does this apply?” Then, write about only those issues that are triggered by the facts.
In other words, you should go through this checklist and think to yourself, “Yup, there are facts here that could show intent and premeditation, so I need to talk about first degree murder. Yup, there are facts that could relate to second degree murder with intent to kill and intent to do serious bodily harm, so I need to talk about those. Nope, there are no facts whatsoever that relate to depraved heart or felony murder, so I can leave those out. Yup, there are facts that relate to voluntary manslaughter, so I need to talk about that.”
Now that you’ve mentally “checked off” the issues raised by your facts, you can use the checklist again to help organize your answer. For example, the essay organization for the homicide example above would be:
First Degree Murder
Second Degree Murder
- Intent to Kill
- Intent to do Serious Bodily Harm
And just like that you have a list of issues you need to analyze and the organization for how to analyze them! Simple, right? Without having created and memorized an attack plan before the exam though, you may spend a lot of time thinking to yourself, “what are all the types of homicide?” and you may spend a lot of time trying to think up the best way to organize your answer: “Should I start with first degree or second degree murder? Or should I analyze those together?” This wastes valuable time and causes your answer to be muddled and confusing.
Some legal issues tested on the bar exam require you to always analyze certain elements. Plans are the best way to figure out these types of issues. For example, to prove an intentional tort, you need to write about (1) intent, (2) specific elements of the tort, (3) causation, (4) damages, and (5) defenses.
This is a plan: it is a list of all of the elements you need to analyze. It is not a checklist because you aren’t brainstorming whether or not to talk about one of these elements; rather, you must talk about all of the elements in your plan.
Do you see the difference? The plan tells you how to apply the law by telling you everything you must talk about for a particular legal issue, whereas the checklist helps you think through all of the possible things you may need to talk about for a particular legal issue.
Great. When And How Do I Make Attack Plans?
From the first day of your bar exam study, you want to be thinking about how best to structure an attack plan for every particular legal issue you are studying. To make an attack plan, you can look for attack plan examples in commercial outlines. You can also study model essay answers and derive attack plans from a model answer. Once you have figured out an attack plan for a legal issue, you should write it down, memorize it, and use it when writing practice essay questions. Then, you should continue to hone it. Is there a better way to organize the topics? Did you forget to include something on a checklist? The process of creating and using attack plans will help you memorize the law, understand how a rule of law is applied, organize your writing, and save you time by streamlining your analytical approach.