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JURISTS BAR REVIEW CENTER
PRIMER PRIMER ON BAR BA R EXAM TACTICS & STRATEGIE STRA TEGIES S Prof. Manuel R. Riguera
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Fact-based essay questions are the norm in the bar examinations.
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SC 2013 Bar Bulletin 1
The basic elements of problem solving that the Examiners shall particularly look for are the examinee's (FLIA): (1) proper understanding and appreciation of the facts, particularly of the components or details that can be material in resolving the given problem; (2) his or her appreciation of the applicable law/s that may come into play; (3) recognition of the issue/s posed; and the ( 4) resolution of the issues through the analysis and application of the law to the given facts. The examinee‘s presentation and articulation of his or her answer shall also be given weight.
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SC 2013 Bar Bulletin 1, other SC bar issuances, and advice of former bar examinees, examiners, and law professors emphasize the importance of LOGIC in the bar exam.
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The bar examinee must be logic-driven or argument/driven, not conclusion-driven.
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Your answer should demonstrate your ability to apply the law to the given facts, and to reason logically in a lawyerlike manner to a sound conclusion from the given premises. PRACTICAL LOGIC FOR THE BAR EXAM Logic has many branches. The tools of logic which we will be using are inductive reasoning, analogy-spotting, deductive argument, and analogical argument. INDUCTIVE REASONING: Reasoning Reasoning from the particular particular to the universal. universal. In bar, reasoning from the facts to the rule/s. Used to infer the applicable rule from the facts-setting in relation to the immediate issue/s.
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May 2018 rev. ed. ed.
Al l ri gh ts res erv ed by Ju r is ts Revi ew Cent er, Inc . (J RCI), 2016. Thi s wo rk is th e i nt ell ect ual pr op ert y of JRCI and the unauthorized copying, storage, recording, or dissemination of this work or any part thereof (including the posting of this work on the internet) without the express written consent of JRCI is illegal and shall be prosecuted to the full extent of the law by the bringing of the appropriate criminal, civil, or administrative proceedings, includi ng proc eedings eedings wi th the Office of the Bar Bar Confidant. Primer on B ar Essay Exam Exam Tactics & Strategies by Pr of. of. Manuel R. Riguera for Jurists Bar Review Center ™
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ANALOGY-SPOTTING. Spotting the applicable rule which is a mirror-image of the factsetting or spotting an applicable SC narrow ruling or applicable precedent. DEDUCTIVE ARGUMENT: Reasoning from the universal to the particular. In bar, applying the rule/s to the relevant facts. ANALOGICAL ARGUMENT (ANALOGY): Reasoning from an identical/similar situation (mirror-image rule, narrow SC ruling, precedent) to the present situation.
READING & ANSWERING A BAR ESSAY QUESTION: OUTLINE OF STEPS AOA Syst em (Anal yze, Out li ne, Ar gu e)
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Analysis and Argumentation ANALYSIS: The process of determining the applicable rule through inductive reasoning or analogy-spotting and using the rule to reach a conclusion.
ARGUMENTATION. The process of presenting the answer in a logical and organized form, that is in the form of either a deductive argument or an analogical argument (analogy). ANALYZING THE QUESTION (ANALYSIS) 1. Read the call of the question and determine the immediate issue. 2. Use issue-markers if more than one call or immediate issue. Issue-indicators:
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Argues Contends Objects Ground Defense Claims
3. Read the fact-pattern carefully in relation to the call/immediate issue. A. Inductive Analysis (inducing a rule from the facts) Using fact-pattern recognition and keeping in mind the call/immediate issue induce the core issue/applicable rule. B. Analogical Analysis (analogy) The facts of the problem are similar to a rule, a narrow SC ruling, or a precedent (case on all fours with facts of problem). Al l ri gh ts res erv ed by Ju ris ts Revi ew Cent er, Inc . (J RCI), 2016. Thi s wo rk is th e i nt ell ect ual pr op ert y of JRCI and the unauthorized copying, storage, recording, or dissemination of this work or any part thereof (including the posting of this work on the internet) without the express written consent of JRCI is illegal and shall be prosecuted to the full extent of the law by the bringing of the appropriate criminal, civil, or administrative proceedings, includi ng proc eedings wi th the Office of the Bar Confidant. Primer on B ar Essay Exam Tactics & Strategies by Pr of. Manuel R. Riguera for Jurists Bar Review Center ™
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OUTLINING Outline your answer. Outline is skeleton or framework of your written answer. Outline consists of (1) full statement of conclusion. (2) Applicable rule.
PRESENTATION OF ANSWER (ARGUMENT) Deductive Argument CRAC Format (4 paragraphs)
CONCLUSION RULE APPLICATION CONCLUSION RE-STATED. Analogical Argument CR Format (2 paragraphs)
CONCLUSION RULE (MIRROR-IMAGE RULE, NARROW-SC RULING OR PRECEDENT WITH RATIO DECIDENDI) Note that in analogical argument there is no application/analysis since the elements of the rule are a mirror-image of the fact-pattern of the problem. The danger in analogical argument is that the examinee may abuse it by creating a rule which is just a restatement of his desired conclusion. This is known as a self-levitating argument. TECHNIQUES TO STRENGTHEN ARGUMENT
1. ECHO METHOD. In writing your c onclusion,
adopt the call’s/immediate issue’s wordings.
Was the dismissal order of the Regional Trial Court correct? No, the dismissal order of the Regional Trial Court was not correct. Al l ri gh ts res erv ed by Ju ris ts Revi ew Cent er, Inc . (J RCI), 2016. Thi s wo rk is th e i nt ell ect ual pr op ert y of JRCI and the unauthorized copying, storage, recording, or dissemination of this work or any part thereof (including the posting of this work on the internet) without the express written consent of JRCI is illegal and shall be prosecuted to the full extent of the law by the bringing of the appropriate criminal, civil, or administrative proceedings, includi ng proc eedings wi th the Office of the Bar Confidant. Primer on B ar Essay Exam Tactics & Strategies by Pr of. Manuel R. Riguera for Jurists Bar Review Center ™
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2. TECHNIQUE OF FULL CONCLUSION. As much as possible the conclusion should be a full statement of the call and/or immediate issue. A full conclusion has a dual purpose. The first is to to re-orient or refresh the memory of the examiner as to his question. A full conclusion also assists the examiner in understanding and evaluating your argument. The second is that a full conclusion also assists the examinee in framing an effective answer by keeping his mind focused on the call and/or immediate issues. Illustration: ILLUSTRATION: (2016 Remedial Law Bar Exam Q14) XIV Pedro, the principal witness in a criminal case, testified and completed his testimony on direct examination in 2015. Due to several postponements by the accused, grounded on his recurring illness, which were all granted by the judge, the cross-examination of Pedro was finally set on October 15, 2016. Before the said date, Pedro died. The accused moved to expunge Pedro's testimony on the ground that it violates his right of confrontation and the right to cross-examine the witness. The prosecution opposed the motion a nd asked that Pedro's testimony on direct examination be admitted as evidence. Is the motion meritorious? Explain. (5%) SAMPLE ANSWER #1: No. The Supreme Court has held that where the delay in cross-examining the witness was imputable to the accused, he could not be heard to complain if the witness becomes unavailable
through no fault of the party presenting the witness and hence the witness’s direct examination should not be stricken out. Here the delay in cross-examining Pedro was imputable to the motions for postponeme nt and the death of Pedro was not the fault of the prosecution.
Hence the motion to expunge Pedro’s testimony is not meritorious.
Note the terse “No.” This conclusion does not assist the examiner at all. The conclusion may be reworded as follows: “No, the motion is not meritorious.”
This is still not a full statement. It does not tell the examiner what the motion is about. “No, the motion to expunge Pedro’s testimony is not meritorious.”
This is an improvement but it still does not inform the reader of what the immediate issue is. What was the ground of the motion to expunge? “No, the motion to expunge Pedro’s testimony on the ground that it violates the accused’s right t o confront the witness is not meritorious.” Al l ri gh ts res erv ed by Ju ris ts Revi ew Cent er, Inc . (J RCI), 2016. Thi s wo rk is th e i nt ell ect ual pr op ert y of JRCI and the unauthorized copying, storage, recording, or dissemination of this work or any part thereof (including the posting of this work on the internet) without the express written consent of JRCI is illegal and shall be prosecuted to the full extent of the law by the bringing of the appropriate criminal, civil, or administrative proceedings, includi ng proc eedings wi th the Office of the Bar Confidant. Primer on B ar Essay Exam Tactics & Strategies by Pr of. Manuel R. Riguera for Jurists Bar Review Center ™
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This is now a full conclusion since it is a full statement of the immediate issue. A full conclusion is important because it is the prelude to the next technique, that is, the technique of Rule Connectivity. 3. TECHNIQUE OF RULE CONNECTIVITY. As much as possible, phrase your rule paragraph in such a way that it directly addresses the call/immediate issue or the key concepts in your conclusion. ILLUSTRATION OF A REMOTE RULE: No, the argument of the bank that the safe-deposit box is not confidential since it is not a bank deposit is not correct. Under the Law on Banking, the business of banks is imbued with gr eat public interest and banks have the duty to exercise utmost diligence and care in their transactions with bank. Note that the rule is remote from the key concept or immediate issue of confidentiality. Here the safe-deposit box and its contents are in the custody of Federated Bank. Hence the safe-deposit box and its contents, including the LTCP, are confidential and thus the argument of Federated Bank is not correct.
Answer using technique of rule connectivity No, the argument of the bank that the safe-deposit box is not confidential since it is not a bank deposit is not correct. Under the General Banking Law, properties in the custody of a bank even if not a bank deposit are confidential and cannot be disclosed without order of a competent court. Here the safe-deposit box and its contents are in the custody of Federated Bank. Hence the safe-deposit box and its contents, including the LTCP, are confidential and thus the argument of Federated Bank is not correct.
4. TECHNIQUE OF RULE COMPATIBILITY/ACCENTUATION: The tenor/stress of the rule should directly support and/or be compatible with your conclusion. ILLUSTRATION: The Labor Arbiter does not have jurisdiction over the case. Under the Labor Code, the Labor Arbiter has jurisdiction over claims arising from employeremployee relationship. There is no compatibility. The conclusion is “does not have jurisdiction” while the
rule is “has jurisdiction.” Here the claim does not arise from employer-employee relationship since such relationship had ended upon the resignation of the respondent from the company. Hence the Labor Arbiter does not have jurisdiction over the case.
Al l ri gh ts res erv ed by Ju ris ts Revi ew Cent er, Inc . (J RCI), 2016. Thi s wo rk is th e i nt ell ect ual pr op ert y of JRCI and the unauthorized copying, storage, recording, or dissemination of this work or any part thereof (including the posting of this work on the internet) without the express written consent of JRCI is illegal and shall be prosecuted to the full extent of the law by the bringing of the appropriate criminal, civil, or administrative proceedings, includi ng proc eedings wi th the Office of the Bar Confidant. Primer on B ar Essay Exam Tactics & Strategies by Pr of. Manuel R. Riguera for Jurists Bar Review Center ™
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Improved version The Labor Arbiter does not have jurisdiction over the case. Under the Labor Code, the Labor Arbiter does not have jurisdiction over claims which do not arise from employer-employee relationship. Here the claim does not arise from employer-employee relationship since such relationship had ended upon the resignation of the respondent from the company. Hence the Labor Arbiter does not have jurisdiction over the case.
5. TECHNIQUE OF INTERLOCKING KEY CONCEPTS. The 4 paragraphs should fit or interlock logically and clearly by using interlocking or common key concepts or words. A common mistake of examinees is to use one key concept in the second paragraph and another one in the third or fourth paragraph. ILLUSTRATION Pedro filed an action for recovery of title over land against Dencio. Dencio filed an answer in which he raised the defense that he was the owner of the land. The trial rendered judgment in favor of Pedro, which judgment became final and executory. Later Dencio, claiming that he was a builder in good faith, filed a complaint for recovery of necessary expenses over the land against Pedro. Pedro filed a motion to dismiss the complaint. Should the complaint be dismissed?
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Example of answer with no/weak interlock Yes, the complaint should be dismissed. Under the Rules on Civil Procedure, a compulsory counterclaim not set up is barred. Here the complaint arose out of the first case for recovery of title over land. Hence the same is barred and thus the complaint should be dismissed.
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Reformatted using Technique of Interlocking Key Concepts. Yes, the complaint should be dismissed. Under the Rules on Civil Procedure, a compulsory counterclaim not set up is barred.
Here Dencio’s complaint for reimbursement of necessary expenses is a compulsory counterclaim because it arose out of the first case for recovery of title and it was not set up in the first case. Hence the same is barred and thus the complaint should be dismissed.
USE CITATION CLAUSES IN THE RULE PARAGRAPH STATUTE
Al l ri gh ts res erv ed by Ju ris ts Revi ew Cent er, Inc . (J RCI), 2016. Thi s wo rk is th e i nt ell ect ual pr op ert y of JRCI and the unauthorized copying, storage, recording, or dissemination of this work or any part thereof (including the posting of this work on the internet) without the express written consent of JRCI is illegal and shall be prosecuted to the full extent of the law by the bringing of the appropriate criminal, civil, or administrative proceedings, includi ng proc eedings wi th the Office of the Bar Confidant. Primer on B ar Essay Exam Tactics & Strategies by Pr of. Manuel R. Riguera for Jurists Bar Review Center ™
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“Under the Civil Code provisions on Property...” “Under the Insurance Code...” “Under Rules on Criminal Procedure...” JURISPRUDENCE
“In a case involving similar facts, the Supreme Court held that …” “The Supreme Court has held in Neypes v. Court of Appeal that …” “The Supreme Court has held that…” WELL-KNOWN LEGAL DOCTRINE OR RULE
“Under the doctrine of last clear chance” “Under the doctrine of election of remedies” “Under the Best Evidence Rule” “Under the Statute of Frauds” CITING JURISPRUDENCE In citing a deci sion, it’s best to add the ratio decidendi in order to obtain maximum points. In a case involving similar facts, the Supreme Court held that person who has cohabited with another without the benefit of marriage has a legal personality to file a petition for letters of administration over the latter’s estate. The reason is that she has a legal interest in the estate being a co-owner of the properties acquired pursuant to the Family Code . (Ratio decidendi in italics). Note that in analogical reasoning from a precedent, a 2-paragraph format is used. No need for application since the facts of the precedent are made clear to be the facts of the bar problem. FACT PATTERN OR THEMATIC FACTS The fact pattern is put in the question by the examiner himself. These are the clues which you look out for in order to unravel the applicable rule/precedent. The fact pattern is the key which will unlock the answer to a bar exam question. The key to issue/rule spotting is to practice, practice, and practice. If you do you will see fact patterns repeat themselves over and over and over again. Thus, issue spotting becomes easier and easier. Shotgun answers should be avoided. The SC has explicitly criticized the use of shotgun answers by examinees. An actual, unedited example of a shotgun answer is shown below: No. There was no proper joinder of causes of action. Al l ri gh ts res erv ed by Ju ris ts Revi ew Cent er, Inc . (J RCI), 2016. Thi s wo rk is th e i nt ell ect ual pr op ert y of JRCI and the unauthorized copying, storage, recording, or dissemination of this work or any part thereof (including the posting of this work on the internet) without the express written consent of JRCI is illegal and shall be prosecuted to the full extent of the law by the bringing of the appropriate criminal, civil, or administrative proceedings, includi ng proc eedings wi th the Office of the Bar Confidant. Primer on B ar Essay Exam Tactics & Strategies by Pr of. Manuel R. Riguera for Jurists Bar Review Center ™
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Under the Rules on Civil Procedure, for a proper joinder of causes of action, the following requisites must be complied with: (1) it must comply with the rules on joinder of parties; (2) must not be one under special civil action or action govern by special rules; (3) one of the action must be within the jurisdiction of the RTC if there are different venues and (4) the claim is for money, the aggregate value or totality rule shall apply. In the present case, the causes of action which is collection of P300,000 in Manila and recovery of title of real property in Iloilo City with assessed value of P60,000 does not comply with the requisites. Hence, there is no proper joinder of causes of action. Note that the examinee did not cite what particular requirement in Section 5, Rule 2 of the Rules of Court was not complied with. What the examinee should have done was to refer to the particular requirement not met and strike out the other requirements which were complied with.
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EXAMPLE OF ANALOGICAL ARGUMENT FROM A MIRROR-IMAGE RULE
When there is no need to particularize the rule or the law since the facts of the problem are a virtual restatement or echo of the relevant rule.
• Illustration A criminal information is filed in court charging Anselmo with homicide. Anselmo files a motion to quash the information on the ground that no preliminary investigation was conducted. Will the motion be granted? Why or why not? (09 Bar Q16b)
Suggested Answer in CR format: No, the motion to quash will not be granted. Under the Rules of Criminal Procedure, absence of a preliminary investigation is not among the grounds of a motion to quash.
Note that since analogical format (CR format), only two paragraphs were used. ANSWER ONLY THE QUESTION. DO NOT VOLUNTEER ADDITIONAL INFORMATION.
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Remember that a complete explanation does not require that you volunteer information or discuss legal doctrines that are not necessary or pertinent to the solution to the problem. (Instructions, 2013 Bar).
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Illustration: Call is: Will the motion to quash be granted? No, the motion to quash will not be granted.
The lack of preliminary investigation is not a ground for a motion to quash under the Rules of Criminal Procedure. [Preliminary investigation is only a statutory right and can be waived. The accused should instead file a motion for reinvestigation within 5 days after he learns of the filing in court of the case against him.] (S6 R112).
Al l ri gh ts res erv ed by Ju ris ts Revi ew Cent er, Inc . (J RCI), 2016. Thi s wo rk is th e i nt ell ect ual pr op ert y of JRCI and the unauthorized copying, storage, recording, or dissemination of this work or any part thereof (including the posting of this work on the internet) without the express written consent of JRCI is illegal and shall be prosecuted to the full extent of the law by the bringing of the appropriate criminal, civil, or administrative proceedings, includi ng proc eedings wi th the Office of the Bar Confidant. Primer on B ar Essay Exam Tactics & Strategies by Pr of. Manuel R. Riguera for Jurists Bar Review Center ™
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The bracketed portion should be deleted since it is not pertinent to the call of the essay question. TACKLE THE ISSUE PRESENTED Illustration Can a suit for injunction be aptly filed with the Supreme Court to stop the President of the Philippines from entering into a peace agreement with the National Democratic Front? (2003 Remedial Bar Q11)
Answer does not tackle the issue presented No, a suit for injunction cannot aptly be filed with the Supreme Court to stop the President of the Philippines from entering into a peace agreement with the National Democratic Front, which is a purely political question. The President of the Philippines is immune from suit. (UPLC, Suggested Answers to Remedial Law Bar Exam Questions).
Comment: Analysis of the question and the fact that it was asked in Remedial Law, indicates that the core issue presented by the problem is subject-matter jurisdiction and not the merits of the injunction suit; i.e., political-question doctrine and presidential immunity from suit. A one-paragraph format is used thus eschewing the logical form. Suggested answer using Jurists CRAC format No, a suit for injunction cannot be aptly filed with the Supreme Court. Under B.P. Blg. 129, an action which is incapable of pecuniary estimation is within th e exclusive jurisdiction of and should be filed with the Regional Trial Court. Here the action is for injunction which is incapable of pecuniary estimation and thus the exclusive jurisdiction is with the RTC. Hence the suit cannot be aptly filed with the Supreme Court.
TACKLING A QUESTION WITH TWO ISSUES X makes a promissory note for P500 payable to A, a minor, to help him buy school books. A indorses the note to B who, in turn, indorses the note to C. C knows A’s minority. If C sues X on the note, can X set up the defenses of minority and lack of consideration? (1989 Merc Bar Q6.1).
FIRST ISSUE: Can X set up the defense of minority against C? SECOND ISSUE: Can X set up the defense of lack of consideration against C? SUGGESTED ANSWER (Each issue discussed separately) No, X cannot set up the defenses of minority and lack of personal consideration if he is sued by C on the note. Under the Law on Negotiable Instruments, minority although a real defense may be set up only by the minor himself.
Al l ri gh ts res erv ed by Ju ris ts Revi ew Cent er, Inc . (J RCI), 2016. Thi s wo rk is th e i nt ell ect ual pr op ert y of JRCI and the unauthorized copying, storage, recording, or dissemination of this work or any part thereof (including the posting of this work on the internet) without the express written consent of JRCI is illegal and shall be prosecuted to the full extent of the law by the bringing of the appropriate criminal, civil, or administrative proceedings, includi ng proc eedings wi th the Office of the Bar Confidant. Primer on B ar Essay Exam Tactics & Strategies by Pr of. Manuel R. Riguera for Jurists Bar Review Center ™
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Here the one setting up the defense of minority is not the minor A but X. Hence X cannot set up the defense of minority against C. Under the Negotiable Instruments Law, lack of consideration is a personal defense which can not be set up against a holder in due course. Here C is presumed to be a holder in due course under the Negotiable Instruments Law because there is no indication in the facts to the contrary. Hence X cannot set up the defense of lack of consideration against C.
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DEFINITIONS: When clueless, try to define using context or proximity.
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ENUMERATIONS: Use keywords to recall enumerations.
Use a heading/introduction: “The exceptions to the Similar Acts Rules are the following:” Number the enumeration and use a bullet approach.
• DISTINCTIONS: Heading/Introductory Phrase. Subheadings/Points Of Distinction. Illustration: A compulsory counterclaim is distinguished from a permissive counterclaim as follows: 1. AS TO EFFECT IF NOT RAISED. A compulsory counterclaim not set up in an action shall be deemed barred, while a permissive counterclaim is not barred even if not set up in the action. 2. AS TO PAYMENT OF FILING FEES. Payment of filing fees on compulsory counterclaims has been suspended, while filing fees need to be paid on permissive counterclaims filed with the RTC …. STYLES OF TACKLING THE BAR EXAM 1st Style. Read through the questionnaire and write key-word outlines of answers on margins. Do this with all the numbers before proceeding to write the answers in the test booklet. 2nd Style: Read a question, draft outline on questionnaire, and then write out answer on booklet. Then proceed to next question, and so on. TOP THIRTEEN DEFECTS OF BAR EXAM ANSWERS 1. One-paragraph format (use of “because”). 2. Conclusory or ex-cathedra answers.
Al l ri gh ts res erv ed by Ju ris ts Revi ew Cent er, Inc . (J RCI), 2016. Thi s wo rk is th e i nt ell ect ual pr op ert y of JRCI and the unauthorized copying, storage, recording, or dissemination of this work or any part thereof (including the posting of this work on the internet) without the express written consent of JRCI is illegal and shall be prosecuted to the full extent of the law by the bringing of the appropriate criminal, civil, or administrative proceedings, includi ng proc eedings wi th the Office of the Bar Confidant. Primer on B ar Essay Exam Tactics & Strategies by Pr of. Manuel R. Riguera for Jurists Bar Review Center ™
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3. Weak or non-interlocking paragraphs. 4. Strong point of answer weakened by blocks or interruptions. 5. No citation clause. 6. Too committal citation clause. 7. Obiter Dictum. 8. Factual Answer. 9. Rule not pertinent to conclusion/core issue (remote rule). 10. Answer does not address or tackle core issue. 11. Citing the rationale for the rule rather than the rule itself. 12. Citing impertinent portions of the law and shotgun answers. 13. Failing to specify facts in 3rd paragraph. -oOo-
Al l ri gh ts res erv ed by Ju ris ts Revi ew Cent er, Inc . (J RCI), 2016. Thi s wo rk is th e i nt ell ect ual pr op ert y of JRCI and the unauthorized copying, storage, recording, or dissemination of this work or any part thereof (including the posting of this work on the internet) without the express written consent of JRCI is illegal and shall be prosecuted to the full extent of the law by the bringing of the appropriate criminal, civil, or administrative proceedings, includi ng proc eedings wi th the Office of the Bar Confidant. Primer on B ar Essay Exam Tactics & Strategies by Pr of. Manuel R. Riguera for Jurists Bar Review Center ™
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