The essay portion of the bar exam is another important aspect of the bar exam, and you are the one in control of the question when you write. Unlike a multiple choice question where you have to match up your analysis of the problem to fit one of the answer choices, here you have some flexibility. While there are limits determined by the issues set up in the facts, you can take a slightly different path and still accrue significant points.
Bar examiners have the same expectations when reading an essay as did your law professors: one that demonstrates your ability to engage in legal thought and analysis. This doesn't mean there is a right or wrong answer, just that you provide a well-reasoned argument based on the analysis of the relevant issues and application of the law to the facts, followed by a legal conclusion. In fact, as you review sample candidate answers, you will find examples of answers that reach opposite conclusions yet have been selected as above average answers. You should pay particular attention to such examples because it’s tangible proof of what we’ve been saying all along – that it’s the reasoning that counts and not the bottom line conclusion.
The following are the steps you’ll take for writing “bar-right” essays:
1. Know Your Audience
Bar exam graders read a large number of essays and evaluate them according to strict criteria. They know what they are looking for and the easier you make it for them to find it, the more points you will accrue. Generally, you can count on writing clear, concise, and focused exam answers which conform to the basic structure of legal analysis — in other words, IRAC. This may require you to make certain adjustments in your style and presentation if you are more accustomed to broad, generalized discussions.
It is important to review released essays from the state’s bar examiners. While your bar review course includes a good number of simulated practice tests and essay writing exercises, there is no substitute for the real thing.
2. Know Exactly What is Tested and How
Some questions will lead you to the issues to be discussed and others will leave it open and require you to “issue-spot.” Only thorough preparation will let you know what to expect.
3. De-construct Exam Questions and Sample Answers
You might be wondering how “de-constructing a question” differs from “reading a question.” Generally, your focus when reading a question is to determine what is required of you to answer it. You are concerned with the information relevant to your task — evaluating whether the defendant committed felony murder, whether the statement was admissible, whether a contract was formed, and so forth. But when you are studying and trying to learn from the questions, your purpose in de-constructing a question is to analyze its organization and content for patterns and consistencies. There is a natural connection between certain topics and with preparation, you will become familiar with the questions and able to recognize the issues. Bar examiners are adept at weaving procedural questions with substantive issues in ways you might hardly notice — that is, unless you were looking for them.
Remember, the bar examiners are incredibly efficient at using a single word or short phrase to convey enormous meaning. Only careful reading of essay questions will allow you to recognize key words and phrases. The bar examiners are similarly adept at using language to signal non-issues. Only the careful, observant reader will know not to discuss such matters, saving time and effort for the real issues.
Now that you have de-constructed exam questions, it’s time to de-construct exam answers — an equally important part of your preparation. Here, rather than studying past exams to see what you can expect from the bar examiners, your goal is to learn what they expect from you. As you review sample candidate answers, you may find examples of answers that reach opposite conclusions. This is proof that it’s the reasoning that counts and not necessarily the bottom line conclusion. Certainly, the correct answer gets the most points but it is possible to get points if your argument is based on law and grounded in the facts.
4. Follow a Formula: Write IRAC
It should be clear from the de-construction process that your answers will follow a basic IRAC structure and it’s okay to be obvious about it. IRAC allows you to organize your response and remain in control, whether addressing a narrow issue-driven essay or a general question. With slight variations to account for the type of questions in your jurisdiction, you can make IRAC your blueprint for answering any essay question.
Begin your sentence with “The issue is whether.” It’s okay to be obvious; use the “whether, when” construction to lead you to connect the legal question with the specific facts in controversy. When you use this approach to formulate an issue, you avoid overly general statements and provide a path to follow in your analysis. This leads to an essay that connects the rules with the questions presented rather than one that rambles.
After your identification of the issue, your statement of the rule of law is probably the single most important part of your exam essay. First, it lets the reader know that you have identified the legal problem and second, it shows that you know the relevant law. And in writing the relevant law, be sure to write the law of your jurisdiction. Even if you could answer the question using the common law, if there is a state rule on point, you want to be sure to apply that law. Never forget that you are seeking admission to practice in a particular jurisdiction: you want the bar examiners to know that you know the applicable state law. Writing the rule consists of two parts: first, writing enough of the rule, and second, writing the rule in a logical order.
The whole rule is enough rule to provide the context to analyze the facts. The rule and the facts are inextricably linked. Your analysis of the facts will not make sense unless you have first identified the rule which determines the relevance of those facts. You must use the facts of the problem to guide your discussion of the law, and you should strive to present your statement of the law in its logical order. Generally, there is a “natural” order to writing the rule which is based on a hierarchy of concepts. This means that when you write the rule, you work from the general to the specific. Your analysis should begin with a statement of the general rule and then move to the exception, not vice versa. The general rule provides a context for understanding and appreciating the role of the exception or distinction.
How you set up the rule now drives the structure of the analysis. Your statement of the rule provides a blueprint to follow for your discussion of the facts. Work from your articulation of the rule to guide your application of the facts. Match up each element/factor you’ve identified in the rule with a fact, using the word “because” to make the connection between rule and fact. This ensures that you write facts “plus” the significance of those facts.
And after you finish the analysis, you are on to the conclusion. If the call-of-the-question asks for a specific answer, then be definitive. State your conclusion as to that issue. If there are multiple issues, then once you’ve completed your analysis of one issue, move on to the next.
5. Gain Familiarity with the Questions
The key to success in any endeavor is preparation. Familiarity with the structure of the essay questions and how you respond to them will go a long way in alleviating your anxiety on test day. You job is to practice the approach we’ve just outlined so that it becomes so automatic by test day that you move from one step to the other without missing a beat.
6. Work with Sample Answers
Finally, whether you’ve written out entire essays or only outlined the issues and rules, be sure to read the sample answers. Read all of them, even when there are several candidate samples for each question. However, be careful to read with a discerning eye toward the rules of law expressed in student papers: the bar examiners are careful to point out that they are only “sample” answers, not “model” answers. Consequently, you may find what you consider errors in statements of the law. Use this to your advantage: if you’re reading the answers “actively” as indeed you should be, then you will identify these errors and be sure to articulate the correct rule of law. Further, you should compare each sample answer to the IRAC model and fully analyze the construction. Then you should compare the sample to your own answer, element by element, taking the time to evaluate what you’ve written.
If you need additional pointers or are looking for a more in depth discussion of the bar exam, Professor Darrow-Kleinhaus' books, Acing the Bar Exam (Thomson West 2008) and The Bar Exam in a Nutshell (2d ed. 2009), are great resources.
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