Every law student considers the question of how early to start preparing for the bar exam. If you’re a 1L, should you worry about it? If you’re a 3L, have you waited too long? You can ask four different lawyers this question and get nine different answers. Some will tell you that you should not even think about the bar until you take a bar prep course and some will tell you that you ought to choose your law school electives based around the bar subjects.
But the best answer to this question is probably that you ought to start your bar prep as early as you possibly can by learning how to do legal writing clearly and concisely.
You should probably have learned during your first semester of law school that legal writing is unlike other forms of writing. Most of the time when people talk about how to learn good legal writing, they focus on precedent and citation formatting, on avoiding “legalese,” and on formatting. And that is all important stuff, but it misses the point of the most basic value of legal writing: Legal writing is the process of clearly and concisely explaining legal analysis in a way that conforms to logical reasoning.
If you want to know how to pass the bar (or a law school exam!) you have to understand how the law thinks. And to understand how the law thinks you have to understand legal writing.
Legal Writing on the Bar Exam
If you want to pass the bar exam, you’re going to have to write clearly. More and more states are moving to the Uniform Bar Exam, so let’s consider the UBE as an example: The UBE has six essays and a performance test that together account for 50% of the grade. That means that half of your grade depends on your ability to put legal reasoning into written words.
Those essays could be about contracts or torts, the First Amendment or a revocable trust. No matter what it’s about, the medium of your answer will be legal writing. The subject of the performance test is always a wild card, but the medium of the performance test is known and it’s legal writing.
So 50% of your score is going to depend in whole or in part on your ability to put down on paper legal analysis that graders can understand. That’s far more important than memorizing the rule against perpetuities.
Legal Writing for the Bar Exam
Imagine for a moment that the bar exam consisted not of essay questions, but of questions that you had to answer with an interpretive dance. Or perhaps the essay graders wanted to see your answers in the form of an ice sculpture. If either were the case, you would need to learn to dance or to make ice sculptures so that you could communicate your answers to the bar exam graders in the medium and language that the graders understood.
Well, that’s pretty close to reality: bar exam graders expect you to communicate with them in the one medium that they understand, and that is legal writing. That is a skill you can learn and there are even special ways of tailoring your legal writing for the bar exam.
What to Learn and When to Learn It
“OK!” you say. “I get it! You’ve convinced me! Now tell me what I need to practice!” Alright, I will.
Stop me if you’ve heard this one before, but… IRAC. No, but really, IRAC. IRAC. IRAC. The single most important tool for successful legal writing (and for passing bar exam essays) is IRAC. It’s not enough to “know” IRAC, either–you have to practice it. Beginning as early as possible, even before college if possible, practice approaching problems in this organized, logical way. First, identify the issue, then state the rule that governs the issue, then apply the rule, and then reach a reasonable conclusion.
It’s never too early to start thinking about writing in IRAC format. And remember to practice global/big IRAC and local/mini IRAC!
Break it All Down
Remember diagramming sentences in grade school? That was an exercise in breaking sentences down to fundamental parts and labeling those – subject, verb, object, predicate adjective, etc. You don’t have to diagram sentences to learn legal writing, but you do have to learn how to dissect paragraphs and sentences and to break them down into their fundamental parts.
When you memorize laws for the bar, you have to memorize those laws element by element, and then you have to apply those laws on an element-by-element basis.
Practice doing the same with fact patterns: Work on distilling indivisible facts and categorizing those facts. Which element does this fact relate to? Is it legally significant? How can this fact be used in applying a given legal rule?
Practice the Syllogism
If you’ve learned IRAC and you’re utilizing IRAC, but you’re still not “getting it” and still not turning out quality essay answers, that’s probably because you need to work on the application section. That’s where you need to practice the syllogism. Pretty much all legal reasoning runs something like this:
- If A, then B; A, therefore B.
- If not A, then not B; not A, therefore not B.
Some people (like myself) refer to this as a syllogism, although in logic it’s actually called modus ponens. It doesn’t matter what it’s called, really, it is legal reasoning and it’s very simple to do with practice.
Practice the Three C’s
The three C’s are clear, concise, and comprehensible.
When you practice writing, pay close attention to clarity. Learn to recognize ambiguities and cut them out. Read your work as objectively as you can and ask yourself, ‘Is it clear what this means?’ If not, clear it up.
Write concisely. Cut needless words. If a sentence is not necessary, cut it.
Finally, work on making your writing comprehensible. Simple. Don’t use $10 words when $5 words will do the job. And, for the love of all that is joyful in this world, practice avoiding the strained sentence construction that plagues so many lawyers.
It takes a lot of practice to become a good legal writer. But that practice that can lead to tremendous payout.