This is the second in a two-part post about how the practice of distinguishing issues will help you with the California bar exam. Yesterday, Brian shared how to carve out the proper slices of issues by “issue checking” rather than “issue spotting” to set up today’s discussion on the practice of distinguishing issues for success on the California bar exam. In the second part of his post, he parses out the types of issues and discusses them in more detail.
So you probably know a lot about rules. What about issues? I’d like you to know them too. As I said in Part 1, knowledge of rules + knowledge of issues = pass your essay.
In this post, I will parse out the types of issues and discuss identifying each in more detail.
- Major issue: One of the few overarching issues for a subject (e.g., intentional torts, negligence, strict liability are the three possible major issue for torts)
- Issue: A subset of the overarching major issue (e.g., battery, assault, false imprisonment are some possible issues for an intentional torts prompt or even the entire question—could also be a general concept such as the elements of intentional torts like intent, volition, causation)
- Sub-issue: A rule element, nuance, or an exception to the issue (e.g., an expansion of an element of an issue—what a plaintiff’s “person” is when defining battery—or an exception such as the shopkeeper’s privilege for false imprisonment)
- Defenses: These can be treated like a major issue (e.g., general criminal defenses), a regular issue (e.g., defenses to intentional torts), and/or a sub-issue (e.g., defenses for larceny) depending on the subject and the issue.
- Non-issue: Not an issue relevant to the facts presented (e.g., duty of care in an intentional torts question)
Identifying the major issue is fairly simple. It’s either given by the question or by practicing seeing a pattern of facts that trigger certain major issues.
The question will sometimes give it to you, for example, by explicitly asking you to discuss causes of intentional torts and defenses, whether a party has rights to contract remedies, or whether a statement is admissible. Limit your answer to the scope (“you should not volunteer information or discuss legal doctrines that are not pertinent to the solution of the problem”).
Or the question will make you evaluate it freely (“What causes of action does P have? Discuss.”). Then the entire subject is free game. Here, you’d have to move onto checking for individual issues…
Consider all issues that are triggered by the major issue.
For example, if the question is about products liability, you could potentially raise the issues of not only strict liability but negligence (in the products liability context), express warranty, implied warranty of merchantability, and implied warranty of fitness for a particular purpose.
It’s sort of like an inductive proof by implication. You can assert that a product liability claim is not actionable only by saying it is NOT one of the above issues.
OK, whatever dude, so how do you check whether to actually raise and discuss an issue?
If a fact triggers at least one element or aspect of a rule of an issue, that issue is relevant and discussable. How does a fact trigger an element? The fact either makes it clear that something happened to meet or fail the element, or it makes it vague; either way, you have something to talk about.
For example, if a person who believed he was dying spoke to the witness now at stand, but the dying person does not talk about the event or the cause that led to his imminent belief of death, then there is no dying declaration exception for hearsay. Yet, the fact that someone spoke with belief of imminent death triggers that element of the rule, and you should explain why there is no dying declaration.
The more elements there are that can be matched with the given facts, the more important the issue is. Ideally, discuss the issues in order of importance to show the grader your understanding.
Another useful guide is to ask yourself: “What is the examiner trying to test me here?” (since the examiners design the facts around the issues they want to test). Once again, knowing the testable issues will help you narrow that down.
Some of these issues may turn out to be non-issues (none of the elements of the issues is triggered), in which case move on quickly by mentioning and dropping it.
Foundational issues should always be discussed. Examples include:
- Prop 8 (CA crim case),
- relevance (for each item of evidence or under the CA Prop 8 heading, which says that all relevant evidence in criminal case is admissible, unless…),
- state action (constitutional amendments),
- applicable law (contracts),
- community property presumptions (CA community property), and
- type of tenancy (landlord-tenant dispute)
- defenses (many major issues)
A good chunk of your points come from these minor issues. If you want to get anything above a 65, you’ll probably want to bring these guys out to play.
The idea is the same as going from major issue to issue as discussed above. Once you see an issue, deconstruct the rule into each element. These elements may or may not be worth a longer discussion because some elements will be obvious while others need more justification.
Definitely check for exceptions and add-on rules as well (e.g., shopkeeper’s privilege for false imprisonment). The facts may signal you to discuss them (e.g., plaintiff was specifically in a “grocery store”).
Some people look at a sample answer and wonder why it’s not in IRAC format, when the answer actually uses mini IRACs embedded within a main IRAC. If the issue is fairly large and has lots of elements (e.g., negligence, federal jurisdiction), then you’ll need to parse them out into smaller IRACs.
Each rule element and exception could be its own IRAC so that your answer has this format: IR-[irac-irac-irac-irac]-C.
Repeat to rack up the points.
Don’t forget to consider defenses under each of the above.
No element or aspect of a rule is discussable based on the facts. Don’t waste your time doing a full analysis.
Going back to the example above on dying declaration: This wouldn’t trigger the public records exception since there is no public record made by one with duty to record. It’s just a guy thinking he’s dying. Just because the major issue is hearsay doesn’t mean you need to talk about everything under hearsay.
This is a case where one exception gets you through the door of hearsay. Sometimes you’ll see cases where you need to consider multiple aspects (such as the strict liability example above), in which case, do raise and dismiss by saying it doesn’t apply to let the examiner know that you are aware of the related issues.
“It can’t hurt to just list everything!” you might say. However, if your discussion of a non-issue is as detailed as that of an actual issue, it tells the grader you didn’t understand the issues. Remember to slice the issues properly. It’s not a waste to discard the poison.
It is in fact hurting your essay to spam the issues and at best wasting precious seconds that would otherwise let you punch the graders in the eyes with the issues they are looking for. Make it easy on them.
The end result of following this systematic approach is a nice pyramid outline of relevant issues (and any related non-issues marked for quick burial). That’s the entirety of your essay. Plug and play the rules to sprout those IRACs in record time.
This isn’t an intellectual exercise to see your ability to practice law (something you learn with actual experience). It’s your ability to endure the bar exam. If you follow a systematic approach, you can endure it further.
By the way, this works for the MBE too. If you are stuck, you can sometimes remember that subtle nuance you wouldn’t have remembered under the pressure of 1.8 questions per minute by going through your mental list of issues.
This is time worth spending.
If you remember, this is the aspect other than slicing the issues properly. Graders get paid $3.25 per essay and want to get through your boring essay as quickly as possible.
According to legends, they grind through these any way they can, including reading them at red lights or on the toilet. It’s to your advantage to rig your essay to make them relatively pleasant to finish.
Aesthetics means good presentation, such as avoiding huge paragraphs and having clear issue headings. You may have been told to bring attention to certain elements by underlining them or bolding. Do not do this in your non-header paragraphs because it only distracts them and disrupts their reading.
However, having conspicuous issue headings does serve to help the graders see that you’ve seen the “correct” issues, i.e., the ones they want to see. This is why I suggested earlier, if you can, to discuss the issues in order of importance. By doing so, your grader can see that you understand the issues just by skimming the headings.
Everyone can see it coming if “DEFENSES” or “Validity of Will” is on its own line. Put down all the issues and sub-issues you identified earlier and make them clear to the reader.
Clear headings and IRACing can comprise all caps, bolding, underlining, prefacing with numerals, or a combination. Punch them in the eyes with the formatting!
It’s the bar exam. Go forth and be a little cray cray and have some issues of your own. No one will blame you.
- Carve out and discuss only the relevant issues on an essay. It’s not a waste to leave the rest alone.
- Stop “spotting” issues and start “checking for” issues. Start with a list of testable issues because examiners fit the facts around the issues, not the issues around the facts.
- KOI + KOR: Know your issues too. You can systematically break down the hypothetical by considering the list of major issue(s), issues, and sub-issues. If a fact triggers at least one element or aspect of a rule of an issue, that issue is relevant and discussable.
- Discussion of issues should be prioritized by importance.
- Use clear headers to guide the graders through the issues they want to see.
Now I want to ask you: Some issues tag along with others, such as impossibility and impracticability in contracts. Can you think of other issues that often come up together in pairs or groups?
Brian Hahn is a second-time passer of the California bar exam who thinks prospective candidates and repeaters should listen to him over people who happened to pass the first time. Visit Make This Your Last Time for more actionable and real discussion of bar prep and other free goodies.
Thanks, Brian! Great posts!
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Did you find this post helpful? Check out some other great articles:
- How Distinguishing Issues Will Help You Save the Future
- 5 Things I Did Differently the Second Time to Pass the Bar Exam
- You Failed the Bar Exam! 5 Tips to Get Ready to Study Again
- Coming Back After a Bar Exam Failure — Gearing Up to Study Again
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