I even brought all these
markers to class. They sat lined up in front of me in case I
discovered an issue in the class discussion that I had missed, or
misunderstood. My criminal law professor used to refer to me as
"The Rainbow Child". My color schemes fascinated him.
It saved a lot of margin
briefing. Notes in the margin could now be limited to one or two
words, or UNDERLINED in Ball Point PEN. Writing a brief from a case
that is color-coded is much easier than writing from underlings and
random single colored highlights.
Now, this method does not
replace writing a brief. Most professors frown on book briefing,
especially in the first year. However, it sure comes in handy when
your professor asks that stray question.
"Mr. Jones, did the
plaintiff limit himself to one cause of action, or were there
AAACCCKK, not in my
briefÖ.ORANGE, ORANGE look for the orange.
"Ah, Um, No sir, the
plaintiff had 4 causes of action, two in negligence, one in contract
and one in breach of warranty."
You can see why this may be
of assistance under fire. However, I leave you with this CAVEAT. Do
not expect to get much resale value from your books at the used
bookstore at the end of the term. In
fact, once you become a rainbow child, you pretty much own your book
for life. It's hard to even give them away, unless you are
the top of your class, and the new owner actively pursues your books
and understands the color scheme.
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Questions: A word about Model Answers
One of the biggest
contributing factors to a Law Studentís poor or inconsistent
exam performance is a poorly written Model Answer.
Law Students tend to calibrate their personal performance against
the model answer. They look to the model answer as a MODEL (as the
name suggests) for how the answer should have been written.
This is unfortunate because
the model answer is often wordy and the issues are rarely
head-noted. How often have you turned to the model answer to find a
6-page single space typed answer? Is this an exam that was written
under one-hour time pressure? Not likely!
Thus, it is not likely that your exam answer will look
anywhere close to the model answer.
- If you learn
nothing else from me, learn this:
one of the keys to passing a law school or bar essay question is
to HEAD NOTE OFTEN and to be as CONCISE as
possible. If you do this, you will turn in a paper with about 20-30
short paragraphs, each of which begins with a head note.
If you do, then your paper will likely be a paper that passes!
Notwithstanding my previous
statement, model answers are far from useless. The two answers (the
model answer and the studentís answer) can be reconciled through
the ISSUES and FACTS. When faced with a poorly organized or wordy
model answer, do not look at the model answer as guidance regarding
writing style or organization. Rather, look at it only as a guide to
ISSUE SPOTTING and WHAT FACTS RAISED WHAT ISSUE.
The law student must learn
to focus upon letting the FACTS OF THE EXAMINATION RAISE THE
ISSUES. How often has the law student heard this? How
few law students truly understand it! (This topic is
discussed in detail under "The Facts Raise the Issues".)
Even a poorly written model answer can be a source of issues and
facts. Take an extra 15 minutes and OUTLINE THE ANSWER. Identify
each issue and the facts that raised the issue. Compare your answer
to the Outline. What facts did you miss? What issues did you miss?
Did you discuss more than 75% of the issues? If so, you probably did
well enough to pass!
Your papers should have:
- A Head Note (Showing the
issue, e.g. CONSIDERATION)
- The Rule Statement:
(Consideration is the bargain for exchange that Öetc.)
- The Facts that raised
the issue: (Here, Bob bought Nancy's car for $500Öetc.)
- The Conclusion: (Thus,
because the car for money exchange...etc)
(A note about law
professors: You have to give your professor what he/she asks for, in
order to succeed in law school.
Your professor may have his/her own opinion on how to write
an exam. I am telling
you to write several small paragraphs containing a headnote, rule
statement, facts and conclusion.
If this conflicts with what your professor wants, do it THEIR
WAY AND ONLY THEIR WAY. But keep my advise in mind when it comes
time to write for the Bar Examiners!
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Facts Raise the Issues
"The Facts Raise the
How many law student have
heard this phrase?
Answer: Virtually all
How many of them understand
Answer: Those that
pass the bar exam.
By way of example, Please
review the following hypothetical:
John called Sally and
told her that he was willing to sell his car for $501. Sally said,
"Iíll give you $350." John said "OK". John
drew up a bill of sale which stated the above plus the fact that the
car was being sold "as is". Sally paid John and took
possession of the car. On the way home, the engine blew up. Now
Sally is unable to use the car to get back and forth to work. Sally
sues John for the return of her $350 and the cost of a rental car.
short hypothetical, but JAMMED FULL OF ISSUES.
Let me tell you what
some law students would do with this answer.
Some students would start
off by answering the call of the question. They would start off by
saying something like: "Sally will not be entitled to a return
of the $350 dollars because the car was sold to her as-is."
This is, of course, a totally conclusionary statement worth little
point value. However, in the studentís mind, they have answered
Having a lot of time left,
the student may go on to say something about the offer and
acceptance and consideration. They really think they are hot if they
saw the Statute of Frauds but discounted it because of the counter
offer. However, now they are all done, with time to spare.
So to show the professor
they really know the law, the student now throws in the doctrine of
Caveat Emptor "Let the Buyer Beware". This little bit of
Latin will impress the professor and demonstrate the students
superior understanding of the law.
Still having 15 minutes
left, the student now brings up tort issues of "implied
warranties" such as "fitness for particular purpose"
and general "merchantability". This is done for the extra
"hidden" point value.
is a student who did not let the Facts Raise the issues. The FACTS
RAISE THE ISSUES. This
law student needs to stop using his/her "general"
knowledge of law and start concentrating on the FACTS.
EVERY SENTENCE in the EXAM
gives you some fact about which to discuss. Unlike some professors,
the bar exam is not interested in playing "hide the ball".
The issues are not hidden, they are there, in each and every
sentence of the exam.
Sally and told her that he was willing to sell
his car for $501.
- Sale of Car:
UCC, GOODS Tangible and Movable. Not Common Law:
Statute of Frauds will apply.
Offer, Present Contractual Intent?
"Iíll give you $350."
Statute of Frauds
Statute of Frauds no longer applies.
give you $350:
Counter Offer -
Rejections original offer"
John said "OK".
Statute of Fraud
(which no longer applies because of the $500 issue)
Acceptance under UCC (no mirror issue rule). Valid
John drew up a bill
of sale which stated the above plus the fact
that the car was being sold "as is".
- drew up a bill of
Statute of Frauds: Sufficient written memorandum,
signed by the person to be charged?
- plus the fact
Attempted modification under UCC 2-207 ,
- as is:
Material alteration as defined in UCC 2-207
John and took possession of the car.
- Paid and took
Condition Concurrent, Full Performance. The contract is
fully performed, no conditions outstanding.
the way home, the engine blew up.
- as is:
was the modification valid under 2-207 discuss both sides
Sally can not use the car
to get back and forth to work so Sally sues John for
the return of her $350 and the cost of a rental
- Return of $350:
Damages Equitable Resititution
- Return of $350:
Damages Equitable Recession:
- Cost of rental Car to
get back and forth to work:.
v. Baxendale analysis:
the time of contract?
The check marks indicate
the issues discussed by the average student.
Note that that the student receives no points for his/her
discussion of the doctrine of Caveat Emptor and the tort issues of
Merchantability and Fitness for a particular purpose.
An excellent passing paper would have discussed the following
- UCC v. Common Law
- Statute of Frauds 4
- Acceptance 4
- Consideration 4
- Modification under UCC
- Material Alteration
under UCC 2-207
- Equitable Remedies
- Legal Remedies
Damages Hadly v. Baxendale
Time of Contract
Are you beginning to
see my point?
- IN ORDER TO
SUCCEED, YOU MUST FIND AN ISSUE IN VIRTUALLY EVERY SENTENCE THE
It is possible that one or
two of the lines of the exam does not contain any valuable factual
issue, but donít assume that. Look at every sentence and come up
with at least one issue. If you donít find one, look again. If you
still donít find one, look again. If you still donít find one
after the third time, then assume that it contains no issue...but be
VERY WARY that you may have missed some issue.
(A note about law
professors: While the bar examiners are relatively straight forward,
law professors sometime play "hide the ball" with the
issues in an exam. Sometimes a law professor will put in useless
facts as "red herrings" to throw the class off the track.
Just being aware of this distinction is valuable to you as a law
student and a bar candidate!)
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HOUR PER EXAM
ONE hour per exam!
it or not, but this one suggestion ALONE may be the reason some
pass, and some fail, the bar exam!
and train your mind now!
HOUR PER EXAM.
Some people just can
not resist spending 75 minutes on the first exam (to do a really
good job). This leaves
only 52 minutes rather than one full hour to outline and write the
next exam. Of
course what happens then is that they spend a full a hour on
question number two, leaving only 45 minutes to outline and write
question number 3.
CAN NOT EXPRESS STRONGLY ENOUGH THAT THIS IS A DISASTER!
DO NOT DO IT!
The true fact of the matter
is that, every exam has approximately 20 - 25 issues to discuss.
Some of those issues are major, some are minor.
About 70% of those issues are the "MAJOR ISSUES"
that are worth more than a majority of the point value.
These are the issue that are easily spotted.
If you can get write on all of these MAJOR issues, you will
come close to a passing grade.
Throw in a couple of the minor issue and you have a passing
Another 5 minutes, 10
minutes, 15 minutes, trying to attack a few more "Minor
Issues" will, in fact, give your exam a more polished, more
complete look. HOWEVER,
IT WILL NOT GAIN YOU ANY
SIGNIFICANT POINT VALUE.
If you hit all the major issues and a couple of the minor
issues, you will be at approximately a 70% point value.
For every additional 5 minutes, you will probably pick up
another 3-5 points. A
full 15 minutes will raise your grade from a 70% to MAYBE and 85%.
will GAIN 15 points, BUT WHAT DID YOU LOOSE?
You may ask, "What's
wrong with picking up 15 extra points?"
Nothing if your are within your one hour time limit.
The problem is picking up 15 extra points on question 1, at
the expense of losing 30 or more points on question 2 and 30 or more
points on question 3 because you ran out of time.
Remember, an 85% on
question 1, plus 60% on Question 2 and 50% on Question 3 equals and
average of 65%. This is
not likely to be sufficient to pass the bar.
Yes, you did a killer job on question 1, but in the scheme of
the overall test, spending more than 1 hour to pick up a few points
translates into not passing!
Your goal should be to
strive for 75% on EACH EXAM.
This means getting all of the major issues, and a couple of
the minor issues. DON'T
CHEAT YOURSELF. Spend
ONE FULL HOUR on every exam.
If one hour is up, and you
are in the middle of a thought, STOP, IN
MID SENTENCE if you must.
Don't finish the thought.
Move on to the next question.
and train your mind now!
HOUR PER EXAM.
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Well itís a long story, but
here it goes:
I decided to go to law school
at the ripe old age of 32. At that time, I was executive vice president
of a computer distribution company that then had $300 million in sales.
Law school had to be done at night, which, is difficult when you are
working more than full time hours during the day. Juggling a career,
family, and the demands of 4-5 law professors can be done, but it is not
Because I was admitted as a
"special student" under the State Bar Rules, I was required to
take and pass the California First Year Law Student Bar Exam (Baby Bar).
I passed (the first time) with a ďCĒ, which I am told is a
relatively high grade for this exam. (The test had only a 24% pass rate
that year, and I am told that most persons who passed, passed with a
Because of my stubborn nature,
and a desire to "make a point" (way too complicated to talk
about here), I decided, defiantly, to leave my state accredited law
school and finish the last 3 years of law school through a non
accredited "self study" program. For the most part, no one
thought I would complete the program, but I did.
I graduated about the same time
as all of my friends whom I had met during my first year of law school.
Upon graduation, the topics of conversation changed from Final Exams and
Graduation, to The Bar Exam and Bar Review. When I announced that
I did not intend to take a bar review class, my friends politely shook
their heads, and said "Poor deluded Gabrielle, she does not realize
that you HAVE to take a bar review in order to pass the bar!"
However, you see, I couldn't
take a bar review. Most of the bar review courses were during the day.
Don't forget, I had more than my hands full as the executive vice
president of this ever growing computer company, which now, 4 years
later had $600 million dollars in sales and 15 new offices for a total
of 21 offices. If I did take a bar review course in the evening and
weekends, when would I find time to actually take tests and build my
test taking physical and emotional endurance?
Time off? Yeah right! My boss
looked at me with that blank stare that most entrepreneurs get when you
say the "V" wordÖ."Vacation". His little eyes
glazed over, and for a moment I thought that he had just drifted off.
Nope, no time off was in my immediate future.
What I was able to negotiate
was to take every Friday off for the 6 weeks just prior to the bar exam.
During that three days, I gave myself a COMPLETE BAR EXAM, every weekend
for 6 weeks. I did it under time pressure, just like it was a real bar.
That meant posting signs on my bedroom door, so my family would not
interrupt. It meant unplugging the phone, and becoming non-social with
proceeded to sit for the California Bar Exam and managed to pass on the
I am not naÔve enough to believe that my experience can be your
I can say, that I am no one
special. I am not a straight A student. Nor do I have a
"brain" that absorbs information faster or better than others.
However, I know that most people LEARN BY DOING. If I had one piece of
advise for any of you about to take the California Baby Bar or Main Bar
Exam, it would be this:
your nose out of your outlines, and take tests!"
are going to learn the law by taking the tests.
importantly, get an understanding of "What facts raise the
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