Be honest now. Imagine you’re mentoring a starry-eyed 1L starting law school. How would you explain how to “spot the issues” in an essay? How exact and specific can you get?
Is it just a mystical process where the crystal ball in your head somehow divines issues from the heavens?
On its surface, a bar exam essay is simply a string of IRACs (easier said than done of course). Prep companies and law schools tend to focus on the “R” and “A” and assume that you already know how to find the “I” naturally.
That’s funny (not really) because an issue that’s never raised, or an irrelevant issue, is completely worthless.
Unlike multiple choice with an objectively correct answer, essays are subject to the whims of the grader. Getting (“spotting”) the correct issues is the easiest way to quickly signal to the grader that you’re at least discussing the right things.
But has anyone actually taught you how to be able to spot those issues? They give you the IRAC framework and leave you in the dust to figure it out. How did those law school exams turn out?
Issue spotting is essential. And it’s a learnable skill you can practice for your bar essay preparation, even if your law school grades didn’t reflect it (like mine).
That’s why I’m going to explain it to you in more detail than this “tip”:
To spot issues, try your best.
Let’s try something more reliable, shall we? There’s a subtle difference between “issue spotting” and the technique I’m about to share.
- It’s the other way around
- Identified issues must be relevant and comprehensive
- A checklist system for identifying issues (without “issue spotting”)
- Let’s look at a simple example of how the “issue checking” process works
- What’s going on here (and how do you do this yourself)?
- Here are two demonstrations where I walk through essays, fact by fact, issue by issue
- Bottom line, what is the essence of this approach (and how to get better at practicing issue-spotting skills)?
It’s the other way around
Contrary to what you learned in law school, ISSUES are the most important component when outlining and writing an essay. Rules are next in line and then followed by application.
Repeat after me: Issues are king. Not the rules or the analysis.
Once you get the key aspects of “I” and “R” down, the rest takes care of itself. You’re pretty much home free.
In other words, issue identification is where everything starts. You get ZERO points for an issue that you never raise, even if you know the corresponding rule. An IRAC can’t sprout from a seed that’s never been planted.
Experienced (attorney) candidates and inexperienced candidates think it’s the opposite because they carried over prior lessons from law school or actual practice, but writing like a bar taker is like an inverse pyramid where fewer points come from application and more from getting the right issues.
In my second attempt at the bar exam, I focused on having issues down pat, instead of being able to recite beautiful rule statements (which were beautiful, except memorizing or being able to recite rules is useless if you can’t use them properly).
I checked that I got all the issues correctly (or as many correctly as I could). Graders only care about what they see. If they don’t see the fruits of the seed you planted, then you’re not getting points.
Since presenting the right issues is critical, we don’t randomly “spot” (try not to use the s-word around here) issues that we happen to catch in the stream of facts. We make sure that we identify them reliably—systematically—to get the points we deserve and get out.
Identified issues must be relevant and comprehensive
Ugh, where’s the warning label that says “life choices are irreversible”?
You’ve had that feeling, right? You think of the perfect thing to say—right after the moment has passed—and you said some dumb shit instead. That feel when you agonize over how a perfect witty response comes to you too late. It’s called esprit de l’escalier (staircase wit).
According to the essay instructions, discussion of the issues should be the opposite of that (see example from CA bar): “Your answer should be complete, but you should not volunteer information or discuss legal doctrines that are not pertinent to the solution of the problem.”
It sounds like there are two parts to the spectrum. Imagine an upside-down V:
- The more relevant issues you identify, the better. You don’t want staircase wit here. You want to feel smug knowing that you’ve said your piece instead of agonizing over missing an issue. This includes issues that travel together like a chain of high schoolers blocking the entire width of the hallway.
- The temptation is to throw in the kitchen sink out of worry about missing issues. After a certain point, though (when you’ve exhausted all the issues meant to be identified), keep in mind that volunteering information beyond that peak point will hurt your answer. In fact, at no point do you want to volunteer completely irrelevant issues, like talking about rescission when you’re dealing with tort liability, or negligence when you’re asked intentional torts. We’ll go through an example together below.
Ask law students how to identify the issues in a particular fact pattern, and they’ll immediately chirp the dreaded phrase “issue spot” (there’s that s-word)!
“Issue spotting” doesn’t mean anything to me because it’s vague and implies that you pull issues out of thin air because “you’ll know it when you see it.” It’s almost like you scan through the text until you sort of ~feel it out~ and “spot” an issue sitting there in the wild in its natural habitat.
Ask those same students to explain issue spotting, and they’ll tell you to “just find the issues” or “do practice essays” or change the subject. “Practice” isn’t a bad answer actually. See enough essays and you’ll probably get to know which issues are important. You’ll start to see not just fact patterns but also issue patterns.
But what if you’re still lost on how to even begin an essay? Wondering how you can make sure your answers look like model answers that know what they’re talking about?
A checklist system for identifying issues (without “issue spotting”)
I think there’s a more reliable way than “issue spotting” to increase your chances of delivering a relevant and comprehensive answer that racks up points. It’s based on these principles:
- There’s a limited number of issues they can test you on. The ways they can test you are limited by the scope of the exam and the scenarios they can come up with (they’re called fact patterns for a reason).
- Issues often come grouped or clustered together. If you see one issue, consider that it may be part of a cluster that may be related to one another. You miss out on points if you forget to talk about the related ones. No staircase wit allowed!
- Facts trigger relevant law (such as rule elements), which trigger issues. FACTS → RULES → ISSUES. Through practice, you’ll be able to associate facts with issues.
- Checklists are effective for making sure you don’t miss anything. Pilots use them before takeoff and landing. Can we do the same so that we don’t crash and burn on the runway of passing the essays?
I call it issue checking.
Rather than thinking of it as “spotting” issues randomly, you are now “checking” for issues.
You’re deliberately matching up facts to preexisting issues that are known to be tested, rather than winging it like you’re playing “Where’s Waldo?” and seeing these issues out of happenstance.
Issue spotting = “I’ll know it when I see it. Just wing it. #YOLO”
Issue checking = “Maybe I don’t know yet what all the issues and sub-issues are, but I do know it’s one or more of these known issues. Let’s see which ones they are.”
Of course you’ll be able to “spot” issues if they’re obvious major ones that come to mind easily, but that’s how you end up with a series of so-so essay scores and retaking the bar exam. Many of the points are where the nuances are—sub-issues, exceptions, defenses, etc.
If you knew that there was a tendency for Waldo to be near blue buildings (I’m making this up), wouldn’t that make the game more organized, more systematized? When you see the blue cue, you know you’re onto something.
If you think that makes the process robotic, great! You want to be robotic when you IRAC. You don’t need (or want, actually) to be a creative writer here.
Because essays aren’t real life, you don’t need to be inventive or creative with issues. The examiners plant each fact intentionally and want to see if you can see the signals. The four corners of the essay question contain the truth.
So what you want to have is a finite list (or knowledge) of testable issues + the experience to tell you which issues appear often. Then, narrow down the possible issues based on the facts, and check whether each of the available issues is relevant.
This a skill you can master and wield more reliably than “issue spotting.”
You can also make a skeletal list of issues using the table of contents of an outline (such as a Barbri Conviser Mini Review).
Or just grab Approsheets, which have fact-issue triggers listed out for you (see the samples on the page).
Let’s look at a simple example of how the “issue checking” process works
Consider this excerpt and prompt from a California essay from 2011 July:
When [Vicky] saw Dan loading computers into the back of the truck, she stepped between Dan and the truck and yelled, “Stop, thief!” Dan pushed Vicky out of the way, ran to the truck, and drove off. He immediately went to Fred’s house where he told Fred what happened. In exchange for two of the computers, Fred allowed Dan to hide the truck behind Fred’s house.
What crimes, if any, have Dan, Eric, and/or Fred committed?
So this is a Criminal Law question for D and F (for simplicity, E is not in this excerpt). Things to consider:
- D touched someone → check for personal crimes
- D took something away or intended to → check for property crimes
- D and F interacted → check for conspiracy or accomplice liability
What issues are available? BTW, learning the testable legal issues is part of your preparation. We’re going to narrow down these available issues since not all are relevant:
- What personal crimes are available? Battery, aggravated battery, assault (2 types), aggravated assault, kidnapping
- What property crimes are available? Larceny, larceny by trick, embezzlement, false pretenses, robbery, burglary, receipt of stolen property
- What about for “helping another”? Accomplice liability
- Any DEFENSES for each issue? Crim Law has plenty, so it’s especially important here
Now looking at the facts, which issues are relevant for D? Let’s check:
- Since touching was involved (and is a rule element of battery), discuss battery
- Related is aggravated battery. However, since none of its rule elements are met by the facts, it is quickly raised and disposed of (at most) as a non-issue. Any more and you risk telling the grader you don’t understand the issues or at best risk wasting precious seconds. Remember the upside-down V. Don’t include irrelevant issues
- Since D took possession of the computers, discuss larceny
- Since D invoked force against V to get away while/after taking possession, discuss robbery (conclude either way you want)
- Any DEFENSES for each of the above?
Which issues are relevant for F? Let’s check:
- Since F helped D knowing “what happened,” discuss accessory after the fact
- Since F knew the computers were stolen, discuss receipt of stolen property
- Any DEFENSES?
Here’s a real-time walkthrough of issue checking (or issue spotting if you will 🙄) an example essay:
What’s going on here (and how do you do this yourself)?
Our pool of discussable issues narrowed down as we matched specific facts to the bank of available issues and their rule elements, methodically checking through each of the possibilities.
For example, when only touching was involved, battery and aggravated battery were left. If you talked about assault (too extensively) or kidnapping, that would be “volunteer[ing] . . . legal doctrines that are not pertinent to the solution of the problem.”
Sometimes, the issue may be more direct and straightforward (particularly for MEEs on the UBE). For example, the call of the question could ask, “Is Defendant guilty of attempted robbery?”
In this case, the things to check for are the elements of attempt, robbery, and any exceptions or any defenses for each (such as abandonment and legal impossibility). The scope is narrowed down, but this just means checking for all the sub-issues and related points becomes important.
Approsheets are issue checklists and flowcharts that keep you on track to go from blank page to finished essay (even if you have no idea how to start them) by ensuring that all the relevant issues are raised and discussed. If you see X, then you talk about Y. These checklists and flowcharts are available to you here if you want extra assistance hitting the issues, sub-issues, exceptions, and defenses.
So the key to being able to identify the correct issues is to KNOW the issues (and how they relate to particular fact patterns and key words).
“But I know the law really well!” Don’t just memorize the law. Know the issues too.
Here are two demonstrations where I walk through essays, fact by fact, issue by issue
A Corporations essay:
A Torts essay:
Bottom line, what is the essence of this approach (and how to get better at practicing issue-spotting skills)?
Remember, IRACs (your “units” of argument) get you points. IRACs sprout from issues. Make sure to plant those issues.
To ensure that you identify as many relevant issues as possible in an essay, use a systematic approach such as “issue checking” to check for issues in the fact pattern rather than happen to spot them.
Issue checking is a different and targeted concept than issue spotting. Issue checking doesn’t rely on hoping you’ll “spot” all the issues. Hope is not a strategy. Gamble with your future at your own risk.
Two things essential to issue spotting (by issue checking):
- A finite list of issues
- Actually seeing these issues play out in past essays
Regardless of your jurisdiction, focus on the testable issues and sub-issues (such as elements of a rule), related issues, exceptions, defenses, etc. It doesn’t have to be super detailed, just something you can quickly check through mentally, or even visualize on the exam as some Approsheets users have reported.
Start with this, and as you devote yourself to solving more essays, you’ll see which issues are important and how to resolve issues and essays step by step.
There you have it. How to virtually guarantee that you identify issues, which law schools don’t teach you (at least mine didn’t).
But you don’t get better by reading a strategy. What matters is that you actually implement and attempt the strategy (use these samples). Putting things off until later is another common regret of the dead.
As you continue practicing, you’ll soon be able to open that essay leaflet with confidence knowing that points are forthcoming. Even complex fact patterns will become routine to anticipate when you know the issue patterns. You can find practice exam essay questions here for California and the UBE.
If you want to continue getting more tricks and insights like this for your bar exam (in any state), sign up for my weekly emails here.
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