Based on the imperfect science of Ctrl+F, I’ve managed to compile the five most common comments I’ve given on student bar exams that I have reviewed in the last year. These comments have been shortened and edited to protect student confidentiality and to “universalize” the feedback. If any of these feel familiar, don’t panic! As you’ll see, every one of these issues is totally fixable with practice, strategy-building, and more practice. And so, in no particular order:
1. Conclusory Analysis/Fact Statements
You either had conclusory analysis (stated a legal conclusion with no supporting facts), or just stated the facts without linking them to the law.
Next Steps: This is where we’ll spend most of our time, because this is where most of your points come from (read the official bar exam instructions, where they are very explicit about this). Your analysis has to be consistent with your rule, so that every part of your rule is analyzed, and every sentence in your analysis needs to have three components: rule language + linking language (e.g. “because”) + legally significant facts. (“Here, there [was/was not] [rule element/language] because [relevant facts.]”)
Here’s an example:
Common law burglary requires 1) breaking and entering 2) into a dwelling, 3) at night, 4) with intent to commit a felony therein.
Here, D broke and entered into V’s home when he crawled in through the open window at the side of the house. Additionally, he broke into a dwelling, because he was going into V’s house. The break-in happened at night, because D got to V’s house “after sunset,” which most likely indicates nighttime. Finally, D had an intent to commit a felony therein because he had said to Fred a day earlier “I have to have V’s golden goose egg and I’ll do anything to get it.”
Therefore, all of the elements of common law burglary are met, and D could be charged with burglary.
[Note, that you would want to incorporate counterarguments as well, but for the sake of simplicity, I have used a more straightforward example.]
Finally, to have a fully developed analysis, do not assume that any fact is too obvious to mention. That’s the whole point of analysis – not assuming the grader knows your thought process, and addressing every single rule element with a corresponding fact(s).
2. Need More IRAC’s
You had a tendency to condense multiple issues into one IRAC, as opposed to breaking these out into their own IRAC’s, which means you missed out on optimal points.
Next Steps: Don’t try to cover all the issues in one section. Use headers to be clear about what issue you are discussing and do not move on to any other issues until that one issue is resolved fully with an IRAC. This will also have a lot to do with how you are outlining prior to writing an essay. Use your outline as a roadmap for your IRAC: the “I” is your header, the “R” is your rule buzzwords and elements, your “A” are the words signaling the facts you want to connect to those buzzwords and elements, and your “C” is your conclusion.
3. Lack of Counterarguments
You didn’t engage with the ambiguity in the facts, which was meant to elicit counterarguments.
Next Steps: Engage deeply with the facts by making sure that you are marking your fact pattern in a way that helps make the legally significant facts distinguishable to you (e.g. use a highlighter, then mark facts off as you use them.) Note when the facts really draw out a description – the more details the fact pattern has, the more ambiguities it may contain, which creates more potential for raising counterarguments. Finally, as you’re outlining, if you’re debating how to conclude on a particular point, get that debate on paper – that’s exactly the sort of back and forth they’re looking for in your counterarguments. Just remember to resolve the counterargument as to which position is stronger and why before reaching your ultimate conclusion.
Timing was an issue, since a few of the questions were unfinished.
Next Steps: In addition to practicing scratch paper outlining, which would go a long way here, I also think it would be good for you to come up with ‘attack plans’ for every topic. This will speed things up because once you see a certain fact pattern, it will trigger the limited universe of issues you could be writing about and, ideally, you’d have not only the law memorized, but you’d have the structure for those answers memorized as well (e.g. always answering a 4th Amendment question the same way.) If you are recreating substantive outlines for study, I recommend organizing your issues in a way that actually replicates an answer structure, so that you’re not only memorizing the law, but you’re memorizing how you will end up writing about that law.
5. Pay Attention to the Call of the Question
There were some discussions that got into the issues, but then neglected to conclude directly as to the call of the question.
Next Steps: Remember that every issue you spot is in service of answering the question being asked, so make sure that you’re prioritizing the interrogatory when you’re planning your essay. To help with this, remember to read the call three times before getting into the facts. When interrogatories are specific, you can use them as your “overall header” so that you’ve got them as a reference point, and I also suggest getting into the habit of having an “overall conclusion” for each one once you’ve gotten through your IRAC’s for that section.
Those are the top hits! Feel free to use them to assess your own bar exam prep, and don’t hesitate to reach out to Bar Exam Toolbox for more help.