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 nor that A can’t improve on this particular excerpt.
Here are Essay B and the question again for context. Have these open as you read my analysis below. For simplicity, I chose excerpts focusing on the negligence per se analysis and omitted causation and damages.
Today we’ll go over these excerpts so that you can also be an extraordinary essay writer. Fair warning, it’s going to be a pretty technical discussion:
- 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?
Will all this seem obvious in hindsight? Like anything else, you may find that “originating”—coming up with words to write—is harder than merely understanding the material and getting familiar with it.
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 it seems inherent or obvious. If you say what you think without a basis in some established principle (such as the rule of bar law), then it’s just an opinion, not an argument.
Note also the Duty paragraph in B. Notwithstanding the incorrect rule, 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 use CRAC, but I’ve also seen UBE takers use IRAC just fine.)
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. That is, 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’re studying a rule, you’re also studying how it’s applied. Although IRAC itself is formulaic, you leave points on the table by “just IRACing” through issues without knowing how they like to see them analyzed.
One salient 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.”
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 may be asked to analyze during the bar exam on the actual essay.
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 you could have avoided in Essay A:
Essay A scored extraordinarily well, so it did something right… but here are some things you could tweak.
1. Ping-pong arguments — skip to save time
Sure, Doug could argue whatever and Harry could argue “nuh-uh” and Doug could rest his case with “no u”.
In the interest of time, there’s no need to spend time analyzing all sides, unless (i) the rule calls for split views (e.g., Cardozo and Andrews) or (ii) the facts are vague. 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’m not saying to never ping pong, especially if you have the time and you want to go for it. It just doesn’t appear to be the best use of your limited time. It’s whipped cream that fills up space nicely, but I don’t care for it. I’d rather get the meat right first, then analyze deeper if needed.
The way to introduce the other side of the argument to ensure the big points is to introduce any applicable legal theories, such as a DEFENSE, which is a separate legal issue and deserving of points if you identify it. Argue theories rather than the facts.
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. Remember 6th grade English?
You want to make the grader’s job as easy as possible. I’ll touch on this below.
Improving your essay through scarcity:
Back in my more impressionable days, I agreed to evaluate some readers’ essays and PTs and give detailed feedback on them. It’s easily one of the most “kill me” activities I’ve done. (I don’t do it anymore.)
Although graders have a standard process for scoring essays, they still have the thankless and unenviable task of consistently giving (or trying to give) an objective score to subjective work products. Gotta pay the bills and student loan interest somehow.
That is, it takes EFFORT to evaluate a stranger’s essays, let alone attempt to judge them fairly across hundreds or thousands of them.
Are they going to spend that much time on each one? Will they go back to the first handful of papers after they’ve gotten a better idea of what “good” and “bad” essays look like? Probably not.
They don’t really care about you. Your essay is a random paper in a box full of them. They just want to get through your boring essay as quickly as possible and collect their check. According to stories I’ve heard, some even skim through them on the toilet or at the stop light!
When grading thousands of papers inevitably turns into a highly subjective exercise, everything should be done to take advantage of the subjectivity and tip the scales in your favor.
Human attention is the scarcest resource on the planet, and you’re granted few minutes of the grader’s attention and time. Give the grader as many reasons as possible to give you points during this window.
For one, make your paper easy to grade. Let them breathe a sigh of relief. Good writing is the easiest to grade. The better they can understand you, the more they’ll believe you are intelligent and know what you’re doing (and deserving of points).
When it comes to essays and PTs, you can seize the grader’s attention in your favor with a presentation that signals competence:
- Organized structures (IRAC): Address each issue and sub-issue separately. State the appropriate rule(s) up front.
- Headings that clearly identify each relevant issue and sub-issue (including any defenses). Underline, bold, all caps, italics, etc.
- Clean formatting: This means no long-ass paragraphs that take up the entire page (you know who you are). Make the rule(s) a separate paragraph from the application. Try not to blend them together.
These relatively effortless steps can become effective signposts for both you and the grader. Make the most of the limited attention and patience they have for you.
Although these competence signals will only help, they’re no substitute for being able to externalize and demonstrate your grasp of the subject matter itself. A one-two punch to shake the graders out of their stupor. They’re desperate for it.
At first glance, the two essay excerpts we discussed above actually don’t look that different. They both had the right ideas, but one better demonstrated and proved its understanding of the law. It showed its logical thought processes step by step. Show your work!
It’s going to be harder to show your work just by being “familiar” with the material. No matter how amazing you are, no one’s going to marry you if no one ever sees you because you’re hidden away in your room. So check that you’re able to bring it out before the bar so that you can do so later.
- State the appropriate rule for the corresponding sub-issues
- Complete all parts of IRAC
- Understood the issue well enough to discuss it as intended. Although IRAC itself is formulaic, there’s a certain approach they look for in your analysis of an issue
- Ping-pong arguments may be unnecessary if you want to save time
- Keep your essay answer clean: IRACs organized and easy to read. Headings. One paragraph, one idea (at least try to separate the R and A)
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