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How to Properly Set Up Issues and Rules in Bar Essays

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A Guest Column by Brian Hahn of Make This Your Last Time

Last time in the BarEssays blog, I alluded to how issues were the most important component of IRAC in an essay answer.

That’s different from many students’ instincts from law school and school in general—that they need to write more to score higher.

This is not necessarily true. You can write little and score well. It’s not the word count itself that matters, although the word count is indicative of how many issues you’ve identified.

I know we’re already dropping bombshells 20 seconds in. But now you’re already ahead of the curve by arming yourself with these insights.

Let’s see if there’s more you can take away about essay writing for the California Bar Exam, with some specific examples illustrating the above:

But before we go on, I want to be perfectly clear here:

I’m not suggesting that you write less in order to score high. Generally, shorter answers don’t get high scores because they tend to not discuss important issues the graders are looking for. Conversely, there are many lower-scoring answers that write a good amount (over 1,000 words) or even a lot (over 2,000 words). (Take a look at BarEssays to study more examples like these!)

With the passing scaled score of 1390 in California, an average written raw score of 60-62.5 would likely put you on track to pass (assuming you were also scoring 1390 on the MBE side).

As you saw above, a score of 60 or higher is doable if you can use the relevant issues and rules. Of course, you want to be able to discuss the facts and connect them to the rules, but this is not always the pivotal point as many bar takers assume. In fact, the application part is the easy part.

The hard parts that require understanding of the material are the issues and rules. Once you’re able to set up that issue skeleton and support it with rules, then you’re basically home free.

Even if you write beautiful rules or analyses, if you miss the issues that are intended to be identified, you’re turning in an incomplete answer, and you’ll get a score reflecting that.

To that end, I’m going to share how to set up the issues and rules, and when to go deep into analysis (or not).

How to set up issues and rules for the California Bar Essays

As always, the part we avoid is the thing that will make a bigger difference.

When you open up an essay question and try to answer it, where do you get stuck the most—probably the issues, right?

The blank-page syndrome is where you don’t know where to start writing. It’s less daunting to write something reasonable once you have the issues and rules down.

Fortunately, the bar exam tests you on a limited universe of issues. There are only so many issues they can test you on. And with 20+ years of essays available, many of these issue patterns have repeated over the years.

Consequently, if you’ve seen the past essays, you’ve pretty much seen them all. (You’ll still need to memorize areas that haven’t been tested, although that’s less important than the areas that have been tested frequently before.)

So how do you even find these issues in the essays?

As noted above, there’s a limited set of testable issues.

The issues are triggered by the facts (facts relate to rules, and rules relate to issues). But I never use the phrase “issue spotting.” To me, that implies you wing it and somehow happened to draw the issues out of thin air. As if you will somehow know it when you spot it in the wild.

Rather than a haphazard approach, I found that a systematic approach was more helpful to me (as well as many of my readers through the years).

This is called issue checking: Rather than thinking of it as spotting issues, you are now checking for issues, matching the facts to the known and preexisting issues.

So have a list of issues when you practice your essays. You can make your own, or you can use something like Approsheets (fact-issue checklists and flowcharts, samples here) or BarEssays templates which are available as part of a premium BarEssays membership.

If you had something like this set up already, does it seem more doable to write a full essay answer?

For 2015 February Essay 1

Here’s what I suggest when trying to solve those past essays…

List the issues and their corresponding rules. Be able to do this within 10-15 minutes (for California essays).

This is your skeletal outline. Now you can corral the facts from the hypothetical and connect them to the appropriate rules. Incidentally, this is known as essay cooking, a technique that allows you to double or triple your essay practice efficiency.

The “meaty” part of your answer, the application, is more stylistic than anything. The “correct” issues and rules will be relatively consistent. When skimming your answer, the graders will be looking for those over the precise choice of facts you included in your answer.

Speaking of the application part of IRAC, sometimes you want to dial that part up or down, depending on the situation.

When to focus on issues vs. deep analysis in your essay answer

If you see a broad call of the question, focus on identifying issues, less on analysis. Examples of broad calls of question:

  • “With what crimes may D be charged?”
  • “What ethical obligations did L breach?”
  • “What remedies, if any, would be available?”

If you see a narrow call of the question, analyze the facts more. The issue has already been given to you. Examples of narrow calls of question:

  • “Is D guilty of robbery?” (Discuss the elements of robbery and the facts relating to each element)
  • “Can L ethically withdraw from representing P?” (Discuss mandatory and permissive withdrawals)
  • “Did the court rule correctly on the motion to dismiss based on lack of personal jurisdiction?” (Analyze the various sub-issues of the International Shoe test)

Note that narrow calls may raise sub-issues, nuances, exceptions, and/or defenses.

As you can see, distinguishing broad vs. narrow calls of the question can inform your issues and essay coking.

Should you ping pong?

There’s often a lot of “P would argue… D would argue…” type arguments in student answers.

Now, others may say you need to do this. And you can. But blindly throwing in fake court drama isn’t always the best of use of your limited time.

This style should be used where appropriate, not as a default.

Going off the above distinction between broad and narrow calls, this type of argument may be more useful for narrow calls where you want to be more thorough with your analysis. Or maybe the facts are vague; then you can look at different angles.

With a broad call of the question, the better approach is to argue opposing legal theories (such as a prima facie case vs. defenses) or split views (such as Cardozo and Andrews).

So don’t automatically go into ping-pong mode. Don’t lose sight that issues are key.

If you want to use what you learned here and write better essay answers, take a look at the variety of actual graded answers at BarEssays.com, and supplement with an issue checking aid like Approsheets.