There are seven subjects tested on the multistate bar exam. And in addition to those seven subjects, another five subjects are fair game to be tested on the multistate essay exam. Considering the number of rules each subject has, that’s a lot of law! And it’s unrealistic to retain every rule that could possibly be tested on the exam. So, what do you do on test day, when you realize that an essay question is trying to test you on the excited utterance hearsay exception, but all you can think about is how you don’t want your essay to read like an excited utterance?
Create the Rule
Know that people still do incredibly well on the bar exam despite making up a rule or two. Now, of course your goal while studying is to minimize the chances of this happening. But on exam day, your goal is to pass the bar exam—and making up a law to apply to the facts given will get you closer to a passing score than skipping a question will. And writing a strong application will get you even closer than you might think.
When creating a rule, try to get as close to the actual rule as you possibly can. If you remember that the rule has three factors, make up a three-factor rule. If you remember the rule, but feel like there’s an important exception you’re not remembering, make up an exception. Here’s an example: let’s say you remember that in order to establish diversity jurisdiction, there must be complete diversity of citizenship and some dollar amount that has completely left your brain because the person next to you won’t stop tapping their pencil. Do not sweat it—just make up the dollar amount, discuss whether the facts satisfy your requirements for diversity jurisdiction, and come to the conclusion that logically follows from your analysis. The majority of your points will come from this analysis, so it’s important that you get to it, even without the perfect rule. That said—please remember that the amount in controversy must exceed $75,000 for diversity jurisdiction.
Use the Facts
If creating a rule seems easier said than done, you don’t have to go it alone—the facts are there to help you. It’s not often that bar examiners include many facts completely void of legal significance. So, if you are able to apply all of the facts to the rule you just created, you know that you probably aren’t terribly far off from the rule that the examiners were trying to test.
The facts can even lead you straight to the subject of your rule. If you’ve got a torts question with explosives, then you’ll probably want to start thinking of a rule for abnormally dangerous activities. If there’s a constitutional law question with a statute distinguishing on the basis of race, gear up to create a rule for strict scrutiny. Knowing the issue is half the battle. If you know the issue and make up the rule, you can apply your rule to the facts given and still write a successful answer.
Remember to CRAC
It is also very important that you do not stray from the perfect CRAC or IRAC formatting you’ve been practicing. If you’re going to make up the rule, it’s important that you have a coherent answer that is easy to follow—and the best way to ensure that is through a well-structured essay. This is why it’s important to take a breath once you’ve realized that you’ve forgotten a rule. It’s tough to write well when you’re in a state of panic. So, try to stay calm and organize the essay exactly as you would if you had remembered the rule. Don’t let the organization of your essay be what tips a grader off to your panic over forgetting a rule.
Now, how do we become professionals at making up the law? We practice! We’ve said this before in another episode, but it is important enough to repeat—don’t let the first time you’re making up the law be on exam day. While you’re doing practice essays, if you come across a rule that you haven’t yet reviewed—keep that book closed! Take that as your opportunity to practice making up the law so you can do it comfortably if you have to do so on test day. And then, of course, go back and review the rule you couldn’t remember because you won’t be forgetting that one again.
In all seriousness, you don’t want to be a professional at making up the law—you want to be proficient enough to do it if you must. Your bar study should involve significantly more memorization and strategic essay prep than it should practicing making up rules.
Last, but certainly not least, if you forget the law on exam day, you have to try to stay calm. Take a deep breath, take a sip of water, and do whatever you need to do to avoid an overactive nervous system. I advise identifying what that action is ahead of the exam. You don’t want lose time on exam day trying to figure out what calms you down. Plan now for anything that may happen on exam day and be ready to overcome it.
And again, the goal is to retain as much as you can—but now you have the tools to weather the storm and make up the law if you have to on exam day.