Legal Analysis for Bar Exam Essays

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 for purposes of writing bar exam essays.

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, the following: An initial issue is whether x may be liable to y for assault.

RULE: Next, in a new paragraph you will want to state all relevant information that you’ve learned regarding the tort of assault. You should 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. For our purposes here, it would be enough to state the following: 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 or a third person, or (2) he acts intending to cause 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 you write a separate IRAC for each element analyzed in order to achieve the maximum number of points on a bar exam essay. So, for example, first you should analyze whether x intended to cause a harmful or offense contact towards y. In a new paragraph you should then analyze element 2, whether x intended to cause an imminent apprehension of such contact towards y. Then in the next paragraph you should analyze element 3, whether y was put in such imminent 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 conclusion. Your conclusion 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's 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 components, and analyze carefully each component. You then put the separated and analyzed components back together when drawing 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!