Here’s a pop quiz:
Can you tell which of these essays scored higher than the other? Take a look at these excerpts, and take a guess. Why did you pick your answer?
Before I reveal the winner, can I just say how this shows how subjective essay grading is?
Graders are people. They have biases like we do. They get tired. They’re not consistent. (Yeah, they’re actually not reptilian robots 😲)
The winner is…
Essay A scored higher. This doesn’t mean only A did good things or that A can’t improve on this particular excerpt.
Have these open as you read below. For simplicity, I chose excerpts focusing on the negligence per se analysis and omitted causation and damages.
We’ll go over these excerpts so that you can be a little bit more extraordinary at essay writing.
Fair warning, it’s going to be a pretty technical discussion but one that people have found helpful in the past:
- What are 3 distinctions between the excerpts that I think made the difference?
- What did both do well, and what could Essay A have avoided?
- How can you seize the grader’s limited attention to tip the scales in your favor?
You may find that “originating”—coming up with words to write—is harder than merely exposing yourself to the material and getting familiar with it.
All the more reason to actually do it now and learn the pain of creating.
Here’s what made Essay A better — and how do the same to make your essays stand out (in a good way):
1. Essay A stated a complete rule, while Essay B stated an inaccurate or irrelevant rule.
Essay B states under the Duty heading that “[t]he general duty for all persons is to act like a reasonably prudent person under the circumstances.”
Sounds like a nice rule for life in general.
At best, it’s a statement of the standard of care (extent of duty). Either way, Essay B failed to say what the duty of care is.
“Duty” in a negligence-type analysis is a “duty not to subject any foreseeable plaintiff to unreasonable risk of injury.” The rule is that this duty is owed to foreseeable plaintiffs, although there’s a split on who is foreseeable, as identified by the Cardozo-Andrews distinction in Essay A.
Make sure you know the correct standard for the issue you’re talking about. Part of knowing a rule is understanding it, but sometimes, the other side is knowing specific standards like “foreseeable,” “reasonable” or “necessary to achieve a compelling government interest.”
2. Essay B didn’t complete IRAC.
Look at the Breach paragraph in Essay B. It starts by saying Doug was driving and texting, then says a reasonably prudent person wouldn’t do so. This sounds like an application of some unstated rule about breach. Essay A at least stated the “reasonably prudent person” standard as a “rule.”
It helps to say what the rule is first: Duty is breached where defendant’s conduct falls below the level required by the applicable standard of care owed to plaintiff.
The general rule for breach is simple and inherent, but it still needs to be said. “Show your work,” as they say in math classes. Include the rule statement even if—especially if—it seems inherent or obvious. If you say what you think without a basis in some established principle, then it’s just an opinion, not an argument.
Note also the Duty paragraph in B. Incorrect rule aside, the applicant didn’t even apply any facts. It just jumped to the conclusion that Doug owed a duty to Harry.
Stay formulaic: I, R, A (which may include mini IRACs for each element or sub-issue), then C. This together is one unit of argument.
(Generally, you can’t go wrong with IRAC, but keep in mind the format that your state likes to see by checking your state bar’s sample/model answers. UBE/MEE model answers tend to use CRAC, but I’ve also seen UBE takers use IRAC just fine. Both are similar.)
3. Essay A discussed negligence per se before the “reasonably prudent person” standard of care.
Technically, “reasonably prudent person” is the default standard of care when NPS doesn’t apply. So it makes better sense to go through NPS before the default standard of care.
Admittedly, this was NOT a big deal. Other sample answers show the writer putting NPS in a variety of other places.
The point still stands that every issue has its own way of being analyzed. When you study a rule, you also study how it’s applied.
Although the IRAC framework itself is formulaic, you leave points on the table by “just IRACing” without knowing how to analyze a particular issue.
One example of this is determining whether a contract was formed, where communications between parties should be analyzed one at a time to determine whether there was an offer, counteroffer, termination, or acceptance at each communication.
It’s not “just IRACing” but how you IRAC.
To that end, study a variety of past essays and model answers to understand how to present and sequence the discussion of different issues you identify during the bar exam in an actual essay.
You’ll end up recognizing fact patterns and issue patterns.
I cannot overstate the importance of knowing the ISSUES.
It’s OK to not reinvent the wheel when it comes to preparing for the essays.
You can learn a lot from emulating model answers and approaches. In fact, it’s your DUTY to give yourself every advantage you can.
If I had realized that there’s nothing sacred about the bar exam and that I could just “plagiarize” what’s worked before, the bar exam could have been easier (and my law school GPA much less embarrassing).
Things both excerpts did well:
- Focusing on negligence per se. Negligence per se is clearly a major issue, given the statute slapped at the top of the essay question (FACTS → RULES → ISSUES)
- Separating issues and sub-issues (duty from breach, type of harm from type of plaintiff)
- Coming to a conclusion for each issue and sub-issue
Things Essay A could have avoided:
Essay A scored extraordinarily well, so it did something right… but here are some things you could tweak.
1. Ping-pong arguments — use judiciously
Sure, Doug could argue whatever and Harry could argue “nuh-uh” and Doug could rest his case with “no u”.
In the interest of conciseness, there’s no need to spend time analyzing mere possibilities, unless
1) you’re arguing opposing legal theories (e.g., defenses and exceptions),
2) similar to (1), the rule calls for split views (e.g., Cardozo and Andrews),
3) the facts are vague, or
4) the call of question is narrow (“Did the court rule correctly on motion to dismiss based on lack of personal jurisdiction?”) vs. broad (“What may D be guilty of?”).
Whether you ping pong or not, you’re still coming to a conclusion for that particular issue. Focus on arguing for that end conclusion. You can still do well this way.
I realize that others may advise you to create arguments for both parties… I’m not saying to never ping pong. It’s just not always the best use of your limited time.
This style should be used where appropriate, not as a default. So don’t automatically go into ping-pong mode.
It’s whipped cream that fills up space nicely, but I don’t care for it. I’d rather get the meat right, and then analyze deeper if needed. Get to the point, and come back if you have time to create “filler”—especially if timing is an issue for you.
Most of all, the analysis doesn’t actually matter as much as your issue setup and rules anyway. So go wild on the analysis (or do a reasonable amount) as long as you get these most important parts down solid.
The best way to introduce the other side of the argument and get more points is to introduce any applicable opposing legal theories. Defenses and exceptions are separate legal issues and deserving of points if you identify them.
Argue opposing theories, which will naturally bring different facts to light.
(I discuss this more in the “3 Mistakes that Prevent High-scoring Essays” section of the Big Playbook in Passer’s Playbook 2.0)
2. Huge paragraphs that commingle rule and application — chop ’em up
Where’s the separation between rule and application, and application and conclusion?
I’m not a fan of giant paragraphs with 50 sentences in a row. It’s hard to tell where the line of thinking ends or continues, for both you and the grader.
Would you have read all the way here if my paragraphs filled up your entire screen?
You want to make the grader’s job as easy as possible. It takes EFFORT to evaluate a stranger’s essays, let alone attempt to judge them fairly across hundreds or thousands of them.
Isn’t the bar exam also a test of empathy in that sense?