When preparing for the essay portion of the bar exam, make sure you are aware of the five different patterns of rules that will appear. According to Michael Hunter Schwartz, the author of Expert Learning for Law Students (2nd ed., Carolina Academic Press 2008), there are five types of legal rules:
- Elemental (aka Elementizing)
- Rules with Exceptions
Understanding the five patterns of rules will help you distinguish between rules that require you to debate the facts and rules that should only be applied to the facts.
An example of a SIMPLE rule in Contracts is: The statute of frauds applies to services contracts that cannot be performed within one year of the agreement date. For simple rules, just apply them to the facts. There is no need to discuss both sides. Either the rule applies or it does not.
ELEMENTAL rules require all the elements to be satisfied in order to reach the conclusion called for by the rule. Look for the word 'and,' then break down the rules into the separate elements. For example, in Torts, a prima facie case of negligence requires 4 elements: (1) duty, (2) breach of that duty, (3) causation AND (4) damages.
For complex rules with multiple elements, create a separate heading for each element and IRAC (i.e. issue, rule, application and conclusion). The bar exam grader not only wants to know if the elements have been met, but also wants to see the support for your conclusion.
FACTOR rules require a court to balance and weigh competing interests (i.e. factors) when determining whether to reach a conclusion called for by the rule. These are the type of rules that will require you to debate the facts.
For example, in Civil Procedure, the 'Interest of Justice' analysis of forum non conveniens requires a court to consider both public factors (i.e. court congestion, local interest, forum familiarity with substantive law, and unfairness to forum) and private factors (i.e. access to evidence, availability of witness subpoenas, cost of getting witnesses to forum, and possibility of viewing premises).
In ALTERNATIVE rules, either element can be satisfied to reach the conclusion. Look for 'or?' for example, in Crimes, malice requires either an (1) intentional OR (2) reckless disregard of an obvious or known risk.
In RULES WITH EXCEPTIONS, discuss the general rule before discussing the exceptions. For example, in Evidence, discuss relevance before discussing the public policy exceptions to relevance (i.e. liability insurance, subsequent remedial measures or repairs, settlements, offers to settle, pleas and related statements, and evidence of payments/offers to pay medical expenses).
Understanding these patterns of rules will prevent you from wasting valuable time arguing the facts when all the grader wants is for you to apply the rule to the facts and draw a conclusion.
BarMax's bar exam review courses will familiarize you with these different patterns of rules by offering:
- REAL practice essay questions (each with 2 'model' sample answers written by actual bar exam candidates*);
- Access to former bar exam graders for personalized, paragraph-by-paragraph essay reviews. Two personalized reviews are included with the course and additional essay critiques are also available for students who want more personalized attention-bundles of 5 more critiques are only $100.
*BarMax UBE does not include "model" sample answers but rather point sheets provided by the NCBE to grade these essays.