FIVE QUALITIES OF AN EFFECTIVE BAR EXAM ESSAY ANSWER Prof. Manuel R. Riguera
There are two kinds of legal writing: predictive writing and persuasive writing. Predictive writing aims to predict the legal characterization that a decision-maker may give to an act or object, as for instance, a legal opinion on whether a particular contract is valid. Persuasive writing aims to persuade a decision maker to decide in favor of the writer, for example, writing a motion to dismiss a complaint or drafting a post-trial memorandum. Bar exam writing is essentially persuasive writing. The broad aim is to persuade the bar examiner to give a passing mark to the examinee. The narrow aim is to persuade the examiner of (1) the correctness of the examinee’s conclusion and (2) the soundness or validity of the examinee’s legal reasoning. An effective bar exam answer is one which is persuasive. My experience as a law school professor, a bar reviewer, and a bar exam coach, taken together with talks with former bar examiners, bar passers and readings on bar-exam literature have led me to identify five qualities of a persuasive and hence effective bar exam answer. For me, an effective bar exam essay answer must be: 1. 2. 3. 4. 5.
RESPONSIVE, LOGICAL, ORGANIZED, LITERATE, and BRIEF.
AN EFFECTIVE ANSWER IS RESPONSIVE A good bar exam answer must be directly responsive to the call of the problem. The call is the last sentence of the problem which asks a question or instructs the examinee to do something (e.g., decide, resolve, etc.) Hence an examinee in reading and answering a bar exam problem must pay attention to the call of the question. This is a point which should be quite obvious but surprisingly it is something which many bar examinees overlook. Sometimes an examinee tends to get too wrapped up in his answer at the expense of failing to follow the format required by the Revised 2015 edition. All rights reserved 2015 by Jurists Review Center Inc. This article contains proprietary and
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question. If the question directs the examinee to resolve a motion, the examinee should not merely discuss the grounds of the motion but should state whether the motion should be granted or denied. The answer must respond to the core issue The core issue of a problem is an issue which presents a question of law and whose resolution would determine the response to the call, that is, the conclusion to be reached by the examinee. Hence the identification and/or detection of the core issue is the linchpin of an effective bar exam answer. That is why of all the qualities, responsiveness is the most important. An answer may demonstrate the examinee’s legal erudition, but if it is not responsive then it would get no or almost no credit. 2013 Bar Bulletin No. 1 states that one of the basic elements of problem-solving that the examiner will be looking out for is “recognition of the issue or issues posed.” The core issue may be stated in the call itself or clearly discernible therefrom. In such a situation responding to the call would also respond to the core issue. At times, the core issue is not stated in the call or clearly discernible therefrom. In such a situation the call would serve as the immediate issue while the unstated core issue, which the examinee has to spot, becomes the proximate or underlying issue. The answer then must respond both to the immediate issue and to the proximate issue. Spotting the proximate issue is a challenging endeavor. The examinee must carefully read the fact-setting. His assiduous reading of the facts, the general topic or theme of the question, and his legal knowledge will enable him to note fact-patterns, themes, or motifs which would in turn point to the applicable rule and/or to the core issue. Issue spotting is done by looking at the facts and determining what rule or issue is triggered by those facts. Mentoring by experienced and certified bar exam coaches is indispensable to sharpening the examinees’ ability to spot the proximate issues.
AN EFFECTIVE ANSWER IS LOGICAL What is thinking like a lawyer? It means employing logic to construct arguments. - - Ruggero J. Aldisert, Logic for Law Students. Aside from the examinee’s issue-spotting skills, another skill which the examiner is looking for in the examinee is the ability to argue logically. The logical quality of an answer should be distinguished from its correctness. This distinction is important because law students tend to be conclusion-driven rather than logic-driven. Many think that just stating the correct conclusion would already merit a substantial grade from the examiner. The conclusion may be correct but the argument in support thereof illogical. Such an answer will not get much if any credit from the examiner. On the other hand, an examiner would give full or substantial credit to a logical and organized answer even if the conclusion was wrong.
I never tire of telling the story of Atty. Gladys V. Gervacio, a former Jurists Bar Reviewee who like other Jurists bar candidates had been well-drilled under the Jurists mock-bar and coaching program. Atty. Gervacio obtained perfect grades in Labor Law and Legal Ethics in the 2005 Bar Examination, a feat unparalleled in the annals of the bar. After the examination, Professor Lutian and I got to talk to Atty. Ishmael Khan, the examiner in Labor Law. He said that some of the answers of Ms. Gervacio were not the same as his recommended answers but that nonetheless he gave full credit because the answers were presented in a logical and organized manner displaying lawyerly thinking. This vignette emphasizes the importance of a logical and organized presentation of the answer. A two-time bar examiner confirms that examiners are more concerned with the legal reasoning displayed by the examinee rather than with the correctness of his conclusion: With these considerations in mind, I prepared questions that would reasonably gauge the candidate’s knowledge of the law, his ability to analyze a legal problem and apply the relevant law and jurisprudence to a given situation. I was not as interested in the absolute accuracy of his answer as in his process of reasoning, the ability to mark the path that will solve the problem and the capacity of the student to communicate, albeit not in the fine language of an accomplished lawyer, his solution to the problem.
(ERNANI CRUZ PANO, REPORT ON THE 1990 BAR EXAMINATION IN REMEDIAL LAW, JOURNAL OF THE IBP, VOL. 9, NOS. 1 & 2, 1st & 2nd Q 1991, p. 44, italics supplied). At the heart and soul of legal reasoning is the resolution of the core issue and/or the proximate issue. After the examinee has spotted the core issue, the examinee must apply the appropriate rule to the relevant facts of the question in order to resolve the core issue. The resolution of the core issue would then result in the answer to the call of the question or the conclusion. For purposes of this article, the response to the core issue is called the resolution while the response to the call is called the conclusion. A rough simplification of the logical process in answering a bar exam question may be achieved by the following illustration: Applicable Rule x Relevant Facts = Resolution of Core Issue → Conclusion
Presenting an answer in a logical manner is something which is not developed overnight but in the course of an intensive mock-bar and coaching program. A competent bar exam coach would work with the reviewee in detecting fallacies and defects in legal reasoning which the reviewee may not even be aware of. Nor is logical reasoning something which sprouts from the first writing. An outline is indispensable in coming up with a logical and organized answer. To this end, Jurists has developed the
CRARC1 matrix to assist the examinee in outlining and writing a logical and organized bar exam answer.
AN EFFECTIVE ANSWER IS ORGANIZED There is no such thing as good writing. There is only good rewriting. - - Justice Louis Brandeis. In order to write a good answer, the test-taker must take time to read the question, analyze it, and outline the answer. The biggest mistake many examinees commit is to begin writing the minute they finish reading the question in the hope that as they go along thoughts will come to them and the writing will compose itself. Answers written without planning tend to be too long, unfocused, and disorganized. They are much more likely to waste time on irrelevant issues because the examinee is thinking as he or she writes and only discovers in the middle of the analysis that the facts in the question do not support the existence of the issue. Outlining the answer before writing gives the test-taker an opportunity to think through the question, discard irrelevant issues and concepts, focus on the critical facts, and organize the answer in a logical fashion. One can think faster than one can write; by thinking before beginning to write and planning the answer, the test-taker can avoid costly mistakes and avoid wasting precious time. Good bar exam writing is a highly structured form of legal writing. In the same manner that it would be foolhardy to erect a building without an architectural blueprint, it would be improvident to write down an answer without an outline. The outline may also be thought of as a road map which the examinee will use in navigating the twists and turns of an essay exam question. Jurists Analytical and Outlining Matrixes The conventional format of legal analysis used in outlining and presenting the answer is IRAC (Issue, Rule, Application, Conclusion). IRAC however is more suited to analyzing and answering ponderous U.S. law school essay questions which require the examinee to discuss both sides of the question. The renowned Jurists 3-paragraph method uses the CRAC (Conclusion, Rule, Application, Conclusion) format. In light of the nuanced distinction between the immediate and the proximate issue, Jurists has refined its CRAC format to a 4-paragraph CRARC format. There is a science in the use of these matrixes and formats and examinees should seek the professional advice and services of certified bar exam coaches in learning and employing the same. Paragraphing
1
Conclusion, Rule, Application, Resolution + Conclusion.
The paragraph is a powerful weapon of the bar exam writer yet I am quite surprised that many bar examinees do not employ it. The paragraph is a basic unit of composition providing a convenient organizational unit for the writer and also an aid to the reader. Many untrained bar examinees couch their answer in a one-paragraph format which is not reader-friendly much less examiner-friendly. Paragraphing has three goals. The first is to break your material into digestible chunks. The second is to discipline yourself to think in a logical and organized manner. The third is to tell your reader, the examiner, the part of your argument that he or she is in. (RICHARD NEUMANN JR., LEGAL REASONING & LEGAL WRITING 77 [1990 ed.]). Dividing the answer into paragraphs corresponding to the parts of a logical argument makes it easier for the examiner to follow and appreciate the logic of the examinee. Text arranged in carefully constructed paragraphs is more coherent and easier to follow than text presented without breaks or in random order. (DALE G. LARRIMORE, BASIC STRATEGIES FOR EFFECTIVE WRITING FOR THE BAR EXAM [2010]).
AN EFFECTIVE ANSWER IS LITERATE An effective answer is well-written and polished, displaying the examinee’s knowledge of legal terminology and usage. The examinee must know the terms of art used by lawyers. Like any other profession, lawyers use terms of art in communicating with each other with coherence and precision. An individual’s success in any line of endeavor is largely dependent upon his or her ability to use the tools of the chosen trade, and this is especially true in the legal profession. A good answer will not only state the proper rule or concept, but use the right legal phrases like "prescription," "res judicata," "hearsay," etc. The examiner is looking to see that the test-taker knows not only the substance of the law, but also how lawyers speak about legal standards and set forth the rules that are to be followed. As a practical matter, examiners are also looking for those legal "buzzwords" and phrases while they are grading and may in fact mark the answer down if the phrases are not in the answer, even if the concept is correctly explained. For example one should not say “A counterclaim which is related to the subject matter of the complaint is barred if not set up in the answer.” One should say “a compulsory counterclaim is barred if not set up in the answer. Instead of writing, “the criminal case of murder should be thrown out because the accused had been acquitted of murder arising from the same act,” one should write, “the information for murder should be quashed on the ground of double jeopardy.” Note that the use of legal terms promotes not only precision but also brevity.
Of course a distinction should be drawn between legal terminology and archaic legalisms. Archaic legalisms are prolix or pretentious legal words or phrases which can be replaced with simpler and shorter words or phrases without any loss of comprehension or effectiveness or which may even be dispensed with altogether. Examples are “hereinafter,” heretofore”, “withal,” “in the case at bench,” “said,” and “aforesaid.” A bar exam answer should avoid grammatical errors, misspellings, incorrect punctuation, and incorrect legal usage. Even if the bar guidelines state that such errors will not detract from the examinee’s grade, it cannot be denied that essay grading is subjective. Hence a bar examiner would subconsciously (or consciously) mark down an answer containing such errors. I have often noticed “indispensable” misspelled as “indespensable” and “motu proprio” misspelled as “motu propio.” In evidence, not a few write “parole evidence rule.” And many examinees write “verbal” when what they actually mean is “oral.” Where the call asks the examinee to make a ruling, many examinees answer that an objection should be “denied” or “granted” and a motion “overruled” or “granted.”
AN EFFECTIVE ANSWER IS BRIEF The present letter is a very long one simply because I had no time to make it shorter. - - Pascal A bar examiner has to correct about 5,000 or more booklets. Imagine therefore the irritation and frustration of an examiner when he or she has to read a long-winded answer which does not seem to get to the point. The bar examinee’s answer must get straight to the point. Irrelevant or superfluous arguments and statements should be excised. Both a law-school professor and a bar examiner appreciate brevity and conciseness in an answer, but this is more so in the case of the bar examiner as he has to wade through 5,000 or more booklets and finish their correction by February or March. It is therefore important for an answer to get straight to the strong point. This is what the examiner is looking out for. In analyzing a bar exam problem, the examinee must therefore identify the strong point of his answer. A strong point is the legal rule reduced to its simplest or shortest form. Initially an examinee may come up with several points, but generally only one of them is the strong point. Other points are irrelevant or weak. Many examinees write answers in which the strong point is at the tail end of their argument, almost as if the same were an afterthought. The examiner, who is pressed for time, may immediately discount an answer if he doesn’t see forthwith the strong or key point. . Brevity is closely related to relevancy. Discussing irrelevant matters detracts from the brevity of an answer. Hence if the question asks you whether the motion to dismiss on the ground of improper venue should be granted, do not discuss subject-
matter jurisdiction. If the question deals with validity of a contract, do not discuss its enforceability. Brevity is the product of an outline. An examinee who writes as he thinks will often come up with a long answer pockmarked by irrelevant or weak points. On the other hand an examinee who takes the time to outline will produce a concise and trenchant answer which goes straight to the strong point. QUALITIES & FLAWS For every quality which the bar examinee must cultivate in his writing, there is a corresponding flaw which he must avoid. The following table is illustrative: QUALITY RESPONSIVE LOGICAL ORGANIZED LITERATE BRIEF
FLAW NON-RESPONSIVE ILLOGICAL, NON-SEQUITUR, CONCLUSORY/FACTUAL ANSWER DISORGANIZED, UNSTRUCTURED ILLITERATE, UNGRAMMATICAL, IMPRECISE VERBOSE, IRRELEVANT, CIRCUITOUS
TOTAL QUALITY MANAGEMENT IN BAR EXAM PREPARATION & COACHING The bar examinee would do well to keep in mind the five qualities of effective bar exam writing and to avoid the corresponding flaws. These five qualities serve as the benchmark for both the reviewee and the coach. Every answer must be rigorously tested in the crucible of these five qualities and improved and fine-tuned in order to comply with each and every one of them. In a sense, the principles of strict quality management and control espoused by the renowned management guru Dr. Joseph Juran are being applied to the field of bar exam writing. There should be no compromise with qualitative defects for after all the fate of the examinee hinges on the effectiveness of his or her answer. -oOoAll rights reserved 2015 by Jurists Review Center Inc. This article contains proprietary and confidential information and is the intellectual property of Jurists Review Center Inc. Unauthorized dissemination and use shall be prosecuted to the full extent of law, including criminal prosecution.
