Sometimes bar students hear suggestions like, “just make your essay look like you know what you’re doing, even if you don’t” or “come across as polished, your rules don’t need to be perfect.” This is actually good advice. The problem is that sometimes bar students take this too far and try to pull a fast one on the grader. You can’t turn in an essay of gibberish with nice headers and expect to pass. The graders do actually read your work, even if they do so quickly.
In an effort to stamp out some misinformation and bad habits I’ve seen recently, here are some tips to help you better understand what the graders are looking for. I’ve also included the most common student push-back responses I hear and why these are wrong:
Good advice: Use simple, straightforward sentence structure.
Critique: Doesn’t this come across sounding too elementary?
Answer: No. You want your exam to be easy to read.
Think of it this way: which one is easier to read?
The fact that Dan mentioned that he was inclined to utilize his liability insurance to cover Paula’s injuries indicates that he was the driver responsible for the accident, despite that this sort of evidence may be excluded for public policy reasons.
Dan said he had plenty of insurance to cover Paula. This shows Dan thought he caused the accident because his insurance would not cover another driver unless he was the one at fault.
Obviously, the second sentence is shorter, but it’s also more direct. If your job was to figure out quickly whether the person writing these understood the rules of evidence, which one do you think paints the clearer picture?
Writing on the bar is not about “sounding sophisticated” as some students think. It’s about getting your ideas across succinctly and accurately in the format that the graders find easiest to grade.
Students will sometimes ask me why I’m asking them to “dumb everything down for the grader.” Hey, obviously the graders are pretty smart people who are most likely capable of getting through complex clauses, complicated syntax, and big words. But, that doesn’t mean they want to read all this stuff, or that they have the time. Your job is to make your writing easy to grade. Polished and professional-sounding, yes, but not bombastic or long-winded.
Good Advice: Split into short paragraphs:
Critique: Won’t this look too choppy?
Answer: Not at all. Besides, choppy is better than sloppy.
If you’re a grader and your assignment is to look for the ratio between analysis and rules and make sure in one minute or less a student was making sense of the question being asked, which example would help make your job easier? One big block of text or smaller, defined pieces? Probably the second option. But why?
Blocks of text are just harder to read. Large groupings of words, and especially full pages of text without paragraph breaks are a big red flag to the grader. This shows your thoughts aren’t organized. If they were, you would have known how to get to the point faster.
Have you ever tried to explain something you didn’t quite understand yourself? Imagine trying to tell someone how to make a complicated recipe, or how your car’s engine works. You would probably use more words and have trouble getting to the point. On the other hand, if you understand the topic with perfect clarity, say, you’re describing your daily morning routine or how to mail a letter, you can probably do this quicker and without so much hemming and hawing.
So, to deconstruct this and flip it around another way: If the graders see big blocks of text, they think the student might be confused or disorganized. If they see short bite-sized pieces, they are more likely to think this person knows what they’re talking about.
Sometimes students think that merging everything together will help camouflage a rule they don’t know or hide the fact that their reasoning is circular. This isn’t the case. Even if your rule is off-base and your analysis is flawed, you’re better off at least presenting them clearly and concisely.
Good Advice: Use IRAC:
Critique: Doesn’t this look too simplistic, I’m trying to be a lawyer, not a 1L?
Answer: Nope. IRAC is what they want to see.
I don’t care if you hate IRAC. Use it anyway. Remember, this is not a brief you’re turning in to the court, it’s an exam. IRAC shows you know how to follow the rules. IRAC shows the grader where your analysis is. And hey, if the graders can skim straight to your analysis, they may be more inclined to skip over problems in your rule if there are any!
Some students ask me whether using IRAC will more or less “showcase” the fact that they don’t know the rule since their rule may be too short or miss some important buzzwords. It doesn’t matter. You can write passable analysis using an incomplete rule. You are better off sticking to IRAC and making sure your answer at least looks like it conforms than trying to pull a fast one on the grader by dumping everything into one huge block of text (see above). The grader will see this and think right off the bat that the person writing this should have planned better.
Good Advice: Put a reason in your conclusion:
Critique: Why? This takes too much extra time and I don’t want to be duplicative.
Answer: It won’t take more time if you are planning effectively before you write.
What does it mean to put a reason in a conclusion anyway? Here’s an example:
Thus, Paul adversely possessed the property.
This conclusion has no reason in it because there is no explanation, just a statement of the end result. Compare to this:
Thus, since Paul lit a fire in the cabin and occupied during the winter, the smoke and snow tracks would have been visible. Also, these are things a true owner would do. This means Paul probably meets the test for adverse possession.
The second example takes longer to write, sure, but keep in mind, this is not your analysis, this is just a brief summary at the end. You don’t need to go into lots of detail. In fact, you shouldn’t. To be fair, yes, not every conclusion needs a reason. Also, conclusions never need to be long. They should always be concise. If you had all the time in the world, I would say sure, put an explanation in every conclusion for how you got there. Since time is limited, though, you need to be more discerning.
Here’s my advice: put a reason into the conclusions where the analysis was meaty and included lots of facts. This helps the grader skim over that longer analysis and skip to the end while still gleaning that you saw and used the right facts. Note, this does not mean you have to rehash each rule element. In the example above, I only touched on the biggest points from the analysis, not every single element of adverse possession—you will have already walked through all that in your analysis.
If you think this kind of conclusion takes too long, that probably means you don’t have enough of a grasp on what you’re writing as you’re writing it. If you finish your adverse possession analysis and you can’t tell the grader in two sentences (1) why the claim succeeds or fails and (2) which facts that question turns on, that means your analysis must not have been very clear because you probably don’t have the answer completely figured out.
If you can’t put a short conclusion and center in on the most important reason that backs up that conclusion, that means you didn’t answer the question. Often students will say, “but what if my conclusion is wrong? I don’t want to highlight that.” Ultimately, that doesn’t matter as much as you might think. How you use the facts and apply the law is worth more points than the end result you come to. Again here, leaving out a conclusion is not a good way to “pull a fast one” on the grader (missing conclusions also mean faulty IRAC—see above). A short conclusion with the wrong reasoning is better than no conclusion at all or a conclusion that leaves the grader guessing at what you meant or why you’re claiming something is true.
Good Advice: Answer the question being asked, and follow the call of the question given.
Critique: But, this shows no creativity or ability to think outside the box.
Answer: Do it anyway.
Who ever said the bar exam gave points for creativity? It doesn’t. The grader reading your essay will have thousands of essays just like yours—thousands. The chances of you seeing the fact pattern differently than everyone else is more likely to mean you’re wrong than creative. Even if you do happen to make some amazing argument no one else has thought of, guess what, it probably isn’t on the grader’s points rubric anyway.
The bar examiners figure out in advance how many points they can give for each section of each essay. For example, if the issue on a Contracts essay about time being of the essence is worth 5 points and you write a way-outside-the-box argument that takes 15 minutes, even if it’s incredible, it’s still only worth that same 5 points. If your amazing argument doesn’t appear anywhere on their list, you get zero for all that time you spent.
Similarly, if the call of the question gives you three numbered parts with two sub-parts under each and you decide to toss this structure and come up with your own configuration, that’s a bad choice. This doesn’t show creativity. It shows a lack of clarity and an inability to follow the clear instructions given.
Your goal here is to predictably conform. Which issues are most likely on the graders’ list? Use the facts to help you figure that out. Then, discuss no more and no less than that.
Good Advice: Use the facts:
Critique: Retyping the facts takes too long, they know what I’m getting at if I use shorthand.
Answer: You’re making it harder for yourself if you try to paraphrase everything.
Let’s say it’s your job were to find out whether I am doing the right homicide analysis and these are the facts you give me: “Dan exploded in anger after hearing Tom call him crazy and then struck Tom with his fist.” What would be the problem with the following?
Dan was clearly angry because Tom had said very rude things to him and caused him to irrationally respond by punching him in the side of his head, which caused Dan to fall and hit his head on the corner of the shelf, thereby killing him. This means Dan was probably guilty of homicide because he killed Tom, even though he may have the charge mitigated to voluntary manslaughter if he can show that the rude remarks were enough for adequate provocation.
Upon reading some analysis like this, a grader might have questions like these:
- Why was it “clear” Dan was angry? Which fact tells you that?
- What “very rude remarks” exactly? What does that mean?
- Why was the response irrational? Does being rational matter in the context of the rule?
- The facts never said Dan punched Tom in the head, they said he “struck him with his fist,” is that different? Does it matter?
- Are rude remarks ever enough for adequate provocation?
- Where did all these “corner of the shelf” facts come from? Are you making things up?
You’re much better off using the wording they give you. Talk about why Dan “exploded” in anger (this shows suddenness, right? And that ties into heat of passion). Go ahead and actually say that Tom called Dan “crazy.” Don’t just gloss over this as “rude remarks” because that is highly subjective and could mean anything and leave the grader wondering. Don’t manufacture extra facts that aren’t there. Don’t bring in facts that don’t help you either check off or negate an element of the rule you’re using.
The better analysis would use the precise fact words given, “exploded,” “crazy,” “struck” with “fist,” etc. Ideally, you want to take each fact and figure out which rule element it matches with and then explain how.
And finally, for any hand-writers out there…
Good Advice: Write legibly:
Critique: If the grader can’t tell exactly what the word is, maybe they will give me the benefit of the doubt?
Answer: Nope, they definitely won’t.
Don’t try to be sneaky and trail off so your script is harder to read. The grader won’t assume you meant the correct thing, they will count this against you if they can’t read what you wrote. Plus (according to actual bar graders I’ve spoken to), if a grader thinks you’re trying to pull one over on them on purpose, they really hate this and will view your essay less favorably.