Unless your bar exam doesn’t have a word limit or you’re a competitive typist, one of the most important aspects of your bar essay preparation is likely to be learning how to write succinctly and when to put the pen (or keyboard) down. The answers are obviously, write as much as you need to and stop when you’re done, but what exactly does it mean to be “done?” In this post, I’ll be talking about how to write a complete and succinct analysis. In Part I, I discussed rule statements.
Consider the following hypothetical (adapted from the July 2011 Multistate Essay Exam):
A police officer (Officer) on routine traffic patrol watched Suspect drive by. Suspect was in compliance with all applicable traffic laws except the state seat belt law. The state motor vehicle code provides that police officers have discretion to make an arrest for any traffic infraction, including violation of the state seat belt law. Officer had never stopped a driver merely for violating the seat belt law. However, Officer knew that Suspect was a reputed drug dealer and stopped Suspect’s vehicle, hoping to uncover evidence of a more serious crime. Officer directed Suspect to get out of his vehicle, handcuffed Suspect, and told Suspect that he was under arrest for violating the seat belt law. Did the traffic stop and arrest violate Suspect’s rights?
Here’s an analysis that addresses only what’s absolutely necessary to discuss:
Officer legitimately stopped and arrested Suspect after seeing him violate the seatbelt law because officers have discretion to make arrests for violations of that law and may stop moving vehicles without a warrant. It is irrelevant that Officer knew Suspect was a reputed drug dealer, stopped him only to uncover evidence of a more serious crime, and had never stopped anyone for violating the seatbelt law because an officer’s subjective intent is irrelevant to this inquiry.
And here’s an analysis that is less-than-perfect (see if you can figure out how the two answers are different):
Officer was on routine traffic patrol when he saw Suspect pass by violating the seatbelt law. Under the state’s motor vehicle code, officers may arrest individuals for all traffic infractions. After seeing Suspect, Officer pulled Suspect over, ordered him out of his vehicle, handcuffed him, and arrested him for violating the seatbelt law. Officer will argue that the state’s motor vehicle code permitted him to arrest Suspect for a violation of the seatbelt law. Nevertheless, Suspect will counter that Officer had never stopped anyone for a violation of the seatbelt law. Moreover, Officer knew that Suspect was a reputed drug dealer and had only stopped Suspect in an attempt to uncover evidence of a more serious crime. Although Suspect may believe that he was treated unfairly, an officer’s subjective intent does not figure into the inquiry, which uses the reasonable officer standard. Suspect may also try to appeal to the judge’s sense of fairness by pointing to the uniqueness of the situation and the apparent pretextual nature of the stop. This appeal is likely to be unsuccessful because Suspect was violating the seatbelt law. Officer’s argument will win here.
So how do these answers differ and how can you make sure not to make the second answer’s mistakes?
Differentiate Between Relevant and Irrelevant Facts
The first answer discusses only the relevant facts, while dismissing, as irrelevant, the facts that go to the officer’s subjective intent. The second answer places equal weight on all facts before ultimately reaching its conclusion. If some facts just don’t matter one way or the other to the outcome, then you shouldn’t place so much emphasis on them. This was a short fact pattern. If you have a long fact pattern, then there may be facts that you shouldn’t mention in your analysis at all.
State the Facts and Analyze Them Simultaneously
The first answer states the relevant facts and analyzes them in the same sentence by applying the law to the facts and reaching a conclusion. For example, let’s take a look at the second sentence of the first answer. It begins with a conclusion, then summarizes the facts, and states a legal reason for reaching that conclusion: “It is irrelevant that [conclusion] Officer knew Suspect was a reputed drug dealer, stopped him only to uncover evidence of a more serious crime, and had never stopped anyone for violating the seatbelt law [facts] because an officer’s subjective intent is irrelevant to this inquiry [law].” In contrast to this approach, the second answer states all of the facts and then conducts its analysis. This latter approach takes a lot more time and uses a lot more space on the page.
Write from an Objective Point of View
The first answer takes a more conversational tone, expressly discussing how each side will present facts, weighing those facts, and then concluding. The second answer does all of this at the same time from an objective point of view without stepping into the shoes of the two parties. While you may have used the second style in law school, the first approach is preferable on a bar exam since it is less cumbersome and takes considerably less time.
Don’t Repeat or Rephrase Arguments
Making repetitive arguments is a common problem that I see in bar exam and law school essays. What do I mean by this? Take a look at this passage from the end of the second answer: “Suspect may also try to appeal to the judge’s sense of fairness by pointing to the uniqueness of the situation and the apparent pretextual nature of the stop. This appeal is likely to be unsuccessful because Suspect was violating the seatbelt law.” Now, compare it to the previous few sentences that discuss how Officer had never made an arrest for a violation of the seatbelt law (uniqueness) and had only made an arrest this time because Suspect was a known drug dealer (pretext). These are the same argument. The only difference between the two passages is that the passage quoted above characterizes the facts, instead of mentioning them explicitly. Since the argument has already been made (and rejected) that the stop was invalid because of its pretextual nature, it doesn’t have to be made again.
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Did you find this post helpful? Check out some other great articles:
- How to Write Succinctly Part One: Rule Statements
- Tackling Bar Exam Materials Like a Pro
- What You Can Do Now to Prepare for the Bar Exam
- Can Studying Early Help You Pass the Bar Exam?
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How do you know which laws to apply to a particular set of facts? It sometimes seems like some laws in the subject could apply when actually a whole different set of laws in that subject is supposed to be applied.
Sarah –
I think a lot of this is practice. It’s important to have a basic attack plan for commonly tested issues, and to also include common triggering facts (what makes this apply?). But you won’t always be right when you sit down to do a practice question. The key is to learn from (and track) your mistakes, so you don’t make them again on the actual exam! Once you’ve messed up once, you’re far less likely to do it again.
Best of luck!