Be honest now. Imagine you’re mentoring a starry-eyed 1L starting law school. How would you explain how to “spot 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?
The MBE isn’t the only section you gotta worry about. Every fellow repeater who retook the bar with me had to improve on their essays. Unlike multiple choice with an objectively correct answer, essays are subject to the whims of the grader.
On its surface, an essay is simply a string of IRACs (easier said than done of course). Prep companies and law school 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.
But has anyone actually taught you how to identify those issues? They give you the IRAC framework and leave you to figure it out.
That’s why I’m going to explain it to you in more detail than this:
To spot issues, try your best.
It’s the other way around
“I” is the most important component. Once you get the “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 planted.
My second time around, 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).
Particularly, I checked that I got all the issues correctly. 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 issues is critical, we don’t randomly “spot” (we 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 to get the points we deserve.
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 a perfect witty response comes to you too late and you agonize over your scumbag brain. 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 missed issues. This includes issues that travel together like a chain of high schoolers blocking the entire width of the hallway.
- After a certain point (when, ideally, you’ve exhausted all the pertinent issues meant to be identified), volunteering information beyond that peak point will hurt your answer. In fact, at no point do you want to volunteer stuff that doesn’t fit, 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 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 meaningless and implying that you pull issues out of thin air. It’s almost like you scan through the text until you sort of feel it out and “spot” an issue sitting there 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. It’s good enough. If you’re cool with that, you can stop reading now.
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 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:
- 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 together. If you see one issue, you can expect related issues. You miss out on points if you forget to talk about the related ones. No staircase wit allowed!
- Facts trigger rule elements, which trigger issues. FACTS → RULES → ISSUES. Through practice, you’ll be able to skip from facts to issues accurately.
- Checklists are effective.
I call it issue checking.
Rather than thinking of it as spotting issues, you are now checking for issues given the facts. To me, “spotting” implies that you just “see” these issues out of happenstance rather than deliberately matching up the facts to preexisting issues that are known to be tested.
“I’ll know it when I see it.” → “If it’s meant to be, it will happen. You just gotta go and have an adventure.” → “Why is my life so mundane.”
If you knew that there was a tendency for Waldo to be near people with a bright blue outfit (I’m making this up), wouldn’t that make the game more trivial, more systematized? When you see a blue outfit, 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 to be a creative artist 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 contain the truth.
So what you want is a finite list or knowledge of testable issues + the data or 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.
People sometimes ask me where they can find a list of testable issues…[CA only] BarIssues.com is a database where you can see which issues come up in California essays. It helps you identify commonly tested issues and then find which essays tested those issues (or any issue) in the past so that they can be practiced. You can get $20 off a subscription by using the offer code BRIAN2742. [CA only] BarEssays.com also has brief lists of issues that were tested in each administration since 2000. You can get $25 off a subscription by signing up for my weekly emails here (can’t post publicly): [MEE only] Although it doesn’t tell you the frequency, there’s an updated skeletal subject matter outline for the MEE available here (2018 MEE Subject Matter Outline).
Let’s look at a simple example of how the “issue checking” process works
Consider this excerpt 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 crimes 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 all these issues is part of your general studies. We’re going to narrow these down later:
- 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 there
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
- 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?
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.”
In this case, the things to check for are the elements of attempt, robbery, and any exceptions or any defenses for each (such abandonment and legal impossibility). The scope is narrowed down, but this just means checking for all the related points becomes important.
You can try this for yourself with my Crim Law Approsheet.
(Approsheets are issue checklists and flowcharts that keep you on track to go from blank page to finished essay/outline (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.)
To be clear, you do not need this tool for issue checking to work. My checklists and flowcharts are available for you if you want extra assistance.
Instead, what is the essence of this approach? I told you the two things you need above: finite list of issues + experience. You can create your own list of issues, sub-issues, and defenses for a similar effect.
For example, you can literally take the table of contents of an outline (such as a Barbri Conviser or the sources of testable issues listed above) and make a skeletal list of issues.
Regardless of your jurisdiction, focus on the testable issues (and any elements, if you want to get deeper), related minor 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 have reported.
Start with this, and as you do more essays, you’ll see which issues are important and how to solve certain issues step by step. You can then focus on the important ones and keep the fluff secondary.
Accordingly: 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.
There you have it. How to virtually guarantee that you identify issues, which law schools don’t teach you (at least mine didn’t).
This is a different and targeted approach that doesn’t rely on hoping you’ll “spot” all the issues. Hope is not a strategy. Gamble with your future at your own risk.
Combine this with practice, and you’ll be able to open that essay leaflet with confidence knowing that points are forthcoming. Remember, IRACs (your “units” of argument) get you points. IRACs sprout from issues. Make sure to plant those issues.
You don’t get better by reading a strategy; what matters is that you actually implement and attempt the strategy. Putting things off until later is another common regret of the dead.
If it doesn’t work, no big deal. At least you’ll know what isn’t right for you. Elimination is one way to progress.
Next week, I’ll spill a simple but potent aspect of preparation that is often overlooked.
If you don’t want to miss it, sign up for my weekly emails here:
Now your turn: Do you have your own way to identify issues in an essay? Show it off in the comments.