Taking the Bar Exam
General Considerations
- Write about law of that state only.
- Be objective.
- Follow IRAC.
- Issue
- Rule
- Application
- Conclusion
Questions to Remember when Drafting your Response
- Have you identified the issues involved in the problem? Have you alerted the reader "up front" to the issues to be decided?
- Have you discussed the relevant law before applying the law to the facts of your problem? (IRAC)
This is critical to demonstrate your knowledge of the relevant law and to lay the foundation for your evaluation of the issues. - Have you logically discussed the prima facie elements for the causes of action and the relevant facts that support or trigger the application of the law to the facts?
- Have you properly raised and evaluated appropriate counterarguments and defenses when the facts of your problem permit or alert you?
- Have you properly wrapped up your argument for a specific issue?
- Come to a conclusion before moving on to the next issue?
- Have you answered the question posed? Is your answer responsive to the question?
Does your answer reflect all of your knowledge of the cause of action, the applicable counterarguments and defenses? Have you told the reader all of the relevant law and facts needed to properly assess the issues? Does your answer indicate you saw the "big picture"?
Elements of a Good Bar Essay Exam Answer
- A good response answers the question asked.
Understand what question the examiners want you to answer and respond accordingly.
What role is the test-taker asked to play (judge, advocate for a party, etc )?
- Read the question(s) you are being asked to answer before reading the entire fact pattern.
Some questions tell you not to consider certain causes of action or defenses.
- A good response accurately identifies the issues raised by the question.
Each bar question has multiple issues and a test-taker can miss issues in a question and still pass.
80% of test-takers pass with a 60-75% score.
Don't "find" issues that are not there.
- Begin with a conclusion that explicitly answers the question asked.
Ex.: P can allege a claim for battery against the D when the D knocked P's glasses off.
D's conversation with P regarding the potential free newspaper ads constituted a valid offer. The objection to the introduction of the photograph into evidence should be overruled because its probative value outweighs its prejudicial effect.
- State the appropriate rules of law.
A good answer not only states the rules, but uses the right legal phrases like "probative value", "res judicata" and "collateral estoppel".
Examiners want to know that you know the substance of the law as well as how lawyers speak about legal standards and set forth the rules that are to be followed.
Many examiners are looking for these legal "buzzwords" and you may lose points if the phrases are not in the answer, even if the concept is correctly explained.
A good rule statement includes all elements or prongs of a test to be satisfied, or factors to be considered, even if only one element or factor is in dispute.
- A good answer applies the rule to the facts presented in the question.
Most points on an issue will be awarded for analysis - a thoughtful explanation of why the facts presented in the question do/do not satisfy a stated legal rule or standard.
If only one element or prong of a test is at issue, a good answer explains in a sentence or two why the facts clearly establish the undisputed elements or prong. Then, the answer focuses on the disputed elements and illustrates what facts from the question are dispositive of the claim.
- The key to good analysis lies in a thorough discussion of the facts presented in the question. The test-taker must zero in on the facts in the question which are dispositive under the relevant rule(s) of law.
- A good answer will reach a conclusion on each issue and, if relevant, a conclusion for the entire question or sub-part of the question.
- Time is used wisely.
Don't take excessive time to answer one question and rush the others.
A different examiner reads each question, so the quality of your "good" answer is not transferable to your "bad" answer.
- The answer need not be perfect to pass.
- Take time to question, think about and outline your answer - don't write the minute you finish reading the question.
Writing an Essay Answer in Seven Steps
- Read the question you're being asked to answer.
- Read the question from beginning to end without using a pen.
Get the big picture first.
- Go back and read the question again. This time pick up your pen.
Underline the facts, words or phrases that cause you to think about legal issues.
Make notes in the margin, if desired, as issues start jumping out at you.
- Read the question a third time.As you do, start making a list on scratch paper of all the issues you see, leaving plenty of blank space between issues.When you see a fact that is relevant to a particular issue, note that fact under the issue in your list.
- Look at each issue you identified in the above step.
Write down the rule that's necessary to resolve the issue or answer the question that issue raises in the blank space under that issue.
- Put numbers next to each issue to establish the order in which you will answer the questions. o Answer major issues first.
If you run out of time, you've covered the most important issues in the most depth possible.
Now you have an outline of your answer.
Note: Doing the above steps might take 1/3 of the time allotted for that answer.
That's fine. You need time to thoroughly analyze and outline an answer. Just leave yourself enough time to write. You must outline, but don't put off writing.
- Start writing, putting the most important issue first. Follow IRAC for each issue.
The materials used are from a panel presentation on supplemental bar review assistance programs by Professors Kevin Hopkins, Angela Passalacqua, and Teresa Wallace, at the 1997 Law School Admissions Council Academic Assistance Training Workshop; and a presentation by Professors Ruth Gordon and Frederick P. Rothman, and Sheilah Vance, former Assistant Dean of Academic Support, at a Villanova School of Law study skills workshop on "Successful Exam-Taking Strategies" on November 19, 1998.
The Multistate Bar Exam (MBE) consists of 200 multiple choice questions in six hours. You take 100 questions in the morning, and 100 in the afternoon. Timing is everything. So is practice. The more questions you do, the better you will perform.
Coverage
The exam covers general principles of law in six areas - Constitutional Law, Contracts, Criminal Law, Evidence, Real Property, and Torts.
General Approaches
You've already learned much of the material. You have to move it from your long-term to short-term memory. Read each question carefully. Know exactly what you're asked to answer. Answer every question. There's no penalty for guessing.
Reading Strategies
Go to the end of the problem and first read the question you're being asked to answer. This allows you to match the facts in the problem to the issues raised in the question. Then read the entire problem - carefully! Next read the answer options (a, b, c, d).
Distractors and Foils
Beware of:
- Distractors: Answer options that compellingly and confusingly attract in the wrong direction.
- Foils: Answer options that set off one thing to advantage or disadvantage by contrasting with it.
How distractors and foils can trip you up:
- Incomplete definitions and arguments
- Making assumptions from the facts
- Ignoring or overlooking the facts that you have
- Answer options that "sound right" because they use terms that sound like the proper legal terms
- Unfamiliar phrases which really may be correct but are nontraditional rephrasings of familiar legal concepts
The problem with distractors and foils is that all answer options look plausible on the surface. You must read carefully.
When reading the problem, watch out for:
- Seemingly meaninglss details about people
- Statutes; remember that statutes trump common law. Read the statute carefully and apply it mechanically
- Conflicting common law rules and no single majority rule
Rewording the inquiry in your head might help
If it reads: It means:
What is the most likely outcome? What will be the results and why? Which claim is most likely to Which is the only claim that can succeed on succeed? these facts and why? What is D's best defense? Why won't D be guilty on these facts? If X loses, the most likely X lost because... basis is...
Assume the role that the question asks you to take
- The Judge
Ex.: If John sues Mary for battery, the court should find in favor of... The correct option is the one based on accurate statements of law and fact and is consistent with its conclusion - even if you don't like the result. Start out with no particular conclusion in mind. Do not decide questions of fact. Be alert for misstatements about facts in either party's arguments. Don't select an answer until you've considered all the arguments presented in the answer options. Examine each option and ask yourself: a) are the facts and the law stated accurately? B) Is the conclusion offered consistent with the argument?
- The Advocate
Ex.: Which of the following is the most effective argument in favor of Mary's position? The correct answer is based on accurate statements of fact and law and is consistent with its conclusion - even if you don't believe that your client can win. Examine each answer option and ask yourself:
- Is the law accurately stated?
- Are the inferences on which it is based justified by the facts given?
- Could the argument result in victory for the client?
- The Scholar
Ex.: The interest in Blackacre which John had on the day after Testatrix's death is best described as... Resolve the issue in your mind and then examine each of the answer options carefully; select the one that comes closest to the rule that you have already formulated - even if you don't believe that it is just. Don't try to decide or influence the outcome. Use your knowledge of the law to recognize the legal significance of a particular fact or to select the most applicable rule. Focus on a specific and limited issue.
How Answers Can Be Wrong
If the answer option does any of the following, stop your analysis, eliminate it and move on. For an answer to be correct, it must be correct in every respect.
- Mischaracterizes the facts
- Blatant Contradictions
- Goes beyond the facts
- Assumes as true a fact that is actually in dispute
- Misstates the law:
- Overstates the requirements of the law
- Cites antiquated rules or rules from an inapplicable body of law
- Cites rules that do not apply to the facts
- Overstates or understates the applicable legal standard
- Caveat: options stating snippet of a rule are OK if the snippet addresses the central issue
- Ignores a central issue: The option is legally and factually correct, but not as precise or effective. An option that is more precise is better than one that is less precise. A more precise option will address the fact and the issues in more respects than the others.
Analyzing Answers - The Process of Elimination
Sometimes, the only way to arrive at the correct answer is to eliminate the incorrect ones. Issue-spotting is important. Be meticulous in reading the answer options. Glance quickly at the modifier, study the reasoning, and then the result. If the reasoning is not correct, the response cannot be correct.
Dealing With Common Modifiers
- Because, since, as
The answer can only be correct if:
- The reasoning addresses and resolves a central issue or a more central issue than the other response.
- The facts in question unequivocally satisfy the reasoning - if the reasoning says "because he was drunk, the facts must state or infer unequivocally that he was drunk.
- The result is consistent with the reasoning - if the reasoning states because the statement was an admission by a party opponent, then the result must be admissible.
- If, as long as:
The answer can only be correct if:
- The reasoning is plausible under the facts
- The reasoning addresses a central issue
- The result and reasoning must agree
- Unless
The answer can only be correct if:
- The reasoning is the only way the result cannot occur
- If you think of even one other way that the result might come about, the response cannot be correct.
If your reasoning fails, how to guess intelligently
There's no penalty for guessing, but make a best guess. Don't guess until you've eliminated all the definitely wrong responses. Consider the following factors that should influence your guess:
- Look at the facts and ask yourself, so what? The issue that jumps out is likely to be the issue that the correct response addresses.
- Beware of distractors, foils, seducers.
- Beware of certainties: always, never, cannot, must.
- Beware of responses that rely on relationships between people.
- Beware of focusing on results instead of objectively applying the law to the facts.
- Beware of answer options from unrelated subjects or unstudied theories.
- If two answers are opposites, one is probably true.
- Look for a common issue if you are asked to argue both ways.
- Remember the minority rules.
- Don't get bogged down in things you don't know; pick an answer when time is up and move on.
Prepared by Sheilah Vance, former Assistant Dean for Academic Support, Villanova University School of Law. This material is adapted from Passing the Bar, by Professor Vernellia Randall, University of Dayton School of Law (1993), which is based on Evaluation and Grading in Law School, Michael Josepheson, American Association of Law Schools Section on Teaching (1984).
