Friday, June 15, 2012

An Approach to Legal Writing on the Bar Exam

I've been working quite a bit with students on legal writing, as of late. With increased frequency, students have been seeking tutoring not to learn any specific aspect of substantive law, but rather to improve their essay-writing ability. I thought it important to write a post in that respect. Though it would be impossible to provide significant tutoring on legal writing in a blog post, this will at least serve as an introduction as to how I believe one can improve his/her score on the bar exam by improving essay-writing ability.

Let's take a basic example of a fact pattern implicating the tort of assault. Assume that X runs toward Y holding a large ball pretending as if he is going to throw the ball at Y. X does so playfully with no intent to actually hit Y, but Y is unaware that X lacks the intent. Y is frightened as X throws the ball. The ball misses Y by only a few inches.

ISSUE: Your first step should be to state to the bar examiners the issue you are about to analyze. For example: An initial issue is whether X may be liable for assault against Y.

RULE: Next, in a new paragraph you will want to state all relevant information that you've learned regarding the tort of assault. You determine what information is relevant based upon how you intend to analyze later. For example, in determining the liability of X, you will later need to analyze whether, based on the facts provided, X has violated each element of assault. As such, you'll want to state the elements of assault in your statement of the rule. If a possible defense had been implicated by the facts, then you would want to mention that defense in your statement of the rule because later you'll be analyzing that defense. For our purposes here, it would be enough to state that: An actor is subject to liability to another for assault if (1) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or (2) an imminent apprehension of such a contact, and (3) the other is thereby put in such imminent apprehension.

ANALYSIS: Advice differs in this respect, but I recommend that in order to achieve the maximum number of points on a bar exam essay, you write a separate IRAC for each element you are analyzing. The IRAC of each element should form its own paragraph. So, for example, after you've stated your rule, you would start a new paragraph, and in that paragraph state: It first must be determined whether X intended to cause a harmful or offense contact with Y. You would analyze the provided facts and ultimately conclude that X did not intend to cause such contact with Y. In a new paragraph, you should then analyze (in IRAC form) element 2; namely, whether X intended to cause an imminent apprehension of such contact with Y. Once again you should carefully analyze the facts, ultimately coming to the conclusion (if you believe the facts warranted it) that X did intend to cause such apprehension. In the next paragraph you should analyze (in IRAC form) element 3, whether Y was put in such imminent apprehension. After analyzing the facts, you would conclude that Y was, in fact, put in such apprehension. At this point, you have analyzed each element of assault, and you are now ready to conclude.

CONCLUSION: In the next paragraph you should state your ultimate conclusion. Your ultimate conclusion (I say ultimate, because you also will have written sub-conclusions for each of the IRAC's above) should mirror the issue you've stated at the beginning of your analysis. Since your issue asked whether X may be liable to Y for assault, that is exactly the answer you want to address in your conclusion. So, an example of your conclusion might look like the following: Because X intended to cause an imminent apprehension of a harmful or offensive contact towards Y, and because Y was, in fact, put in such imminent apprehension of such contact, it is likely that X will be liable for assault towards Y.

In a general sense what this approach requires you to do is to take the tort of assault, divide the tort into its individual elements, and analyze carefully each element. Only once you've done that have you effectively addressed the issue, and once you've effectively addressed the issue you then state your conclusion. It's a logical approach that may take some practice, but will earn you many points when analyzing a legal issue on the bar exam.

Hope it's helpful!

No comments:

Post a Comment