We are pleased to welcome back Brian Hahn to the Bar Exam Toolbox. Brian is the founder of Make This Your Last Time, and is a second-time passer of the California bar exam. This is the first in a two-part post about how the practice of distinguishing issues will help you with the California bar exam. Welcome back, Brian!
Wasn’t high school great?
Junior year, prom season 2003. I camped in front of her classroom in a tuxedo with flowers. Spotting my friend among a sea of people changing classes, I ambushed her with a line imbued with pristine cultural awareness: “[First Name] Liu, I choose you.” Pokémon was popular back then.
Oh god, that wasn’t the end of it because she actually went with me and I had no idea what I was doing the whole night. I wasn’t the one inducing the most cringe either (this guy cried at the dinner table because he could not find a date). That’s saying a lot since I’m already a perpetual awkward machine. I also got my first hug.
Why is there a fail involving a girl in every one of my posts here? I don’t know I have issues OK. But I want you to have issues too.
Because “M” sent me this question:
I know to separate issues, minor issues and non-issues but I’m not sure I have an “approach.” What is your recommendation? . . . How do you raise and dismiss non-issues without sounding like you are not throwing shit on the wall hoping something will stick?
This is an important question! Some people wonder why their essay scores weren’t as high as they expected even though they discussed the issues presented in some model answer they saw. I suspect it’s because of…
- The proper slices of issues not being presented and/or
Both are important to demonstrate to the grader that you can handle legal issues. In real practice, you don’t know all the law all the time. If a client asks for help, you want to at least know the potential issues at play before pursuing your research. You certainly don’t want to suggest pursuing a criminal case when it should be settled as a mere negligence case.
What do I mean by proper slices of issues?
Just like how blowfish/fugu must be prepared correctly to avoid fatal poisoning, you should carve out and present as many relevant issues and sub-issues and as few irrelevant ones as you can.
According to the instructions for the essays, “Your answer should demonstrate your ability to analyze the facts in the question, to tell the difference between material facts and immaterial facts . . . . Your answer should be complete, but you should not volunteer information or discuss legal doctrines that are not pertinent to the solution of the problem” (emphasis added).
That is, you don’t want to go throw in the entire the kitchen sink as the original question acknowledges. Save face and save time. However, this is a better problem to have than not having enough to say because it likely means you are more familiar with the testable set of issues.
Either way, you should have an accessible list of testable issues (whether written in a condensed outline or in your mind) and not deviate from it, neither discussing more issues than needed nor unintentionally omitting them. There is a finite number of issues on the bar and only a finite number of contexts to test you on them.
“What was that? Are you implying what I think you are?” Yes: Examiners fit the facts around the issues, not the issues around the facts!
You’ve heard people say, “They tested the 13th Amendment!” “This was all about intentional torts! I shouldn’t have discussed negligence!”
If you think in terms of fitting issues into the facts, you may fall for the trap of issue spotting rather than issue checking.
What’s the difference between “issue spotting” and “issue checking”?
- If you’re spotting issues, you’re looking at the facts and determining the issues out of nowhere because it just looks like it. Then you do some mental gymnastics to make them fit into the given facts (perhaps even if it’s not the right issue). There is no discernible systematic approach.
- If you’re checking for issues, you’re systematically considering the known issues first, knowing that the facts will signal you to one or more of the issues it MUST be (out of the finite set of issues).
Checking your way to a 65 as will be elaborated in part two: Once you identify the major issue, recall your list of issues to check for related issues (e.g., battery, assault…) that are relevant, then discuss them all to rack up the points!
This way you won’t forget to discuss issues you could have missed by trying to haphazardly “spot” them out of thin air, like me doing cringeworthy things with little to no regard to real-life consequences.
Or was it really like that? See, the twist is that I knew that my friend would say yes because I had already asked her beforehand.
Knowing what to expect—THAT is like issue checking. Asking her with a full tux (which was coincidentally for something else btw) and flowers was merely a formality.
If I’d done that without prior knowledge, then that would have been akin to issue spotting, a mysterious process that law students were trained to pretend to know what it’s about (unless they graduated top of their class and played the game knowing the true form of issue spotting). Maybe she would have said yes, maybe she would have said no, or maybe she would have said yes and forced herself to go under pressure. Likewise, maybe the issue you “spot” like Waldo thinking “well I think this should be it” turns out to be: relevant (great but possibly forgetting to discuss other related issues), irrelevant and you discard, or irrelevant and you force it anyway (most dangerous).
This is the essence of “issue checking” and why I dislike the term “issue spotting” and what it implies.
You may have thought you only need to memorize the rules to succeed. Knowledge of the law is definitely a necessary condition. However, there is one more instrumental piece: awareness of the issues.
Like a word bank, you know that the possible issues must come from a pool. So now you know there are actually two things you need to identify and distinguish issues and pass your essay: knowledge of issues + knowledge of rules.
With that framework set up, let’s finally try to answer the original question. In part two of this post, I parse out the types of issues and discuss identifying each in more detail.
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.
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Did you find this post helpful? Check out some other great articles:
- 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
- If At First You Don’t Succeed … Cry, Whine, and Then TRY AGAIN!
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