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YOUNG LAWYERS DIVISION

Bar Exam Committee Top Ten List

Spring 2010 The North Carolina Bar Examination can be one of the most stressful events in a person’s legal career. Preparing for it is often more daunting than actually taking it. While some people may not understand the rigors of a two-day exam with 200 multiple choice questions and twelve timed essays, we do. To assist examinees with preparing for the North Carolina Bar Exam, the North Carolina Bar Association’s Young Lawyers Division Bar Exam Committee has prepared this top ten list of things to focus on when studying for and taking the bar exam. The ten tips listed below are not ranked by importance. Instead, their order tracks the chronology of when an examinee might encounter each point as s/he prepares for and takes the exam. Each of these tips is interrelated and should be used whenever possible.

1. When studying, take time to identify themes or global concepts that you can use to unify or organize topics within an area of law.

Despite the best study efforts, every examinee typically encounters one question

s/he is not sure how to answer. Staying calm and approaching the question like you would if writing a dissertation on the subject will garner a few more points than spitting out all that you know in a disorganized manner. Still, you do need to know something about the law. Building on common themes within each area of law can help.

For example, in family law, two common themes in the realm of equitable distribution are that property between the spouses must be fairly and equitably distributed and property acquired during the marriage is typically marital property. These two concepts can then be the foundation of any rule you might need to “create” during the exam to address a pesky asset you cannot remember how to categorize. Another common theme in family law is the “best interests of the child” standard. Even if you do not know any other applicable tests or rules that might apply to a particular exam question’s fact pattern, when child support or custody issues arise, your exam answer should address this standard.

As another example, you may not know the specific elements of a valid stock restriction or what exactly constitutes a commercially reasonable sale of stock in the Corporate Law realm. The corresponding rules may be too specific for you to recall amongst the many pages of black letter law you already have swirling around in your head. However, if you have the general concept that the law probably cannot require more than an agreement between the company and its stockholders, and notice to a third party, you will be in a better position to address the validity of a stock restriction or the reasonableness of a commercial stock transaction. In fact, the law may actually require even less than an agreement and notice, but the general theme of contract and notice is probably sufficient when dealing with a business transaction question.

Associating common themes, key elements, and general rules of precedent will help you when faced with a specific question you have no idea how to answer. Should

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you decide to create a rule on the spot, frame your response as if North Carolina has adopted “your” rule. It is important though, that your improvised rule is grounded in the general notions, themes, or key elements that you know exist in that area of the law. To build your confidence in being able to call upon these themes, general notions, and key elements on exam day, you should begin to process them as you encounter them in your study material.

2. Study the North Carolina “distinctions” with the overall subject matter to which they correspond. Do not isolate them- integrate them.

When you study the North Carolina distinctions separately from their

corresponding areas of general law, you are more likely to forget them at exam time. Is it not easier, when trying to answer a question about a party’s negligence, to remember that, unlike the law in many states now, North Carolina recognizes contributory negligence as a complete bar to a plaintiff’s recovery? Imagine the difficulty you would have if you instead tried to remember that rule in conjunction with North Carolina’s distinctions in Wills or Civil Procedure. The “distinctions” are generally not the complete answer to a question; there is usually a need to place those distinctionsin your analyses to support your conclusions in the exam. Studying the North Carolina Rules of Civil Procedure alongside the Federal Rules, for example, will solidify the links between the distinctions and the general rules in your analyses. Further, the essays are always on the first day. It is an overly inflated concern that you will confuse North Carolina distinctions with the common law on the second day’s multi-state portion of the bar exam.

Keep in mind that the essay portion of the North Carolina Bar Exam tests the application of general rules, albeit in a setting perhaps novel to even the courts in this state. The tools you will need to construct successful essays are the rules, laws, and statutes. Reading the Rules of Professional Conduct, the North Carolina Rules of Civil Procedure, the North Carolina Rules of Evidence, the statutes covering equitable distribution, business associations, and other broad topics can prepare you for whole subjects at a time. Reading the general statutes, rules, case law, and skimming the general statutes’ annotations can be a highly effective way to learn the majority of “North Carolina law.”

3. Determine whether you should handwrite or type the exam. The examiners prefer typed responses; they are easier to read. Also, it is much easier

for you to remove a wayward train of thought from your essay by scrolling back up to that thought and replacing it with your new idea(s). It can likewise be much simpler to take an opposite position in your answer when you type your response as you can more readily find and replace key terms without having to redo your entire essay. If you are concerned about technical glitches with your laptop slowing you down during the exam, the “computer” room is usually staffed with several tech-savvy individuals who are there to help examinees. Moreover, proctors in this room will typically wait until all examinees have had their laptop issues resolved before starting the exam.

Notwithstanding the first point above, handwriting or typing the exam should primarily be a comfort-level decision. If you are more comfortable handwriting, you

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should definitely choose this method for taking the exam. However, if you cannot script or cursive your way through the exam in a legible manner, and the text of your lines slides down the page of unlined paper, then you should type your exam. Even if you write the best essay ever in the entire history of the North Carolina Bar Exam, you are guaranteed to not get a “10” on that answer if the attorney who later grades it cannot read it.

Whether you decide to type or handwrite your exam, you should practice answering essay questions in thirty minutes using that method. Do not practice typing your essays and then try to hand write them on exam day, or vice-versa. To best gauge your comfort level and tolerance for hand cramps or carpel tunnel syndrome, you should practice at least six (6) essays before exam day using each method. Once you have chosen to write or type, stick to that method throughout the remainder of your study time.

4. Focus on the call of the question and answer specifically what it asks.

This may be easier said than done, yet its importance cannot be overstated. 90% or more of the bar exam’s essay questions ask for specific responses to the given fact pattern. Unlike the open-ended “discuss” questions you may have encountered in law school essay exams, the North Carolina Bar Exam’s essay questions tend to be very straightforward with the issue “staring” you in the face. Rather than spotting a multitude of issues like you perhaps had to do in your law school exams, the bar examiners here want you to analyze that issue staring back at you in the fact pattern. Remember, this is not law school, don’t simply write down every rule you studied and make up hypothetical fact patterns that were not presented to you in the question.

The first question of the July 2007 Bar was three parts: 1) “Is the deed to Sue valid?”; 2) “Can Home Mart use the property as a store?”; and 3) “What happens to Sue’s mortgage?” These questions followed a fact pattern that was seven sentences long. Focusing on the call means to recognize that part one of the question simply wants to know whether the deed is valid. Analyze the elements of a valid deed to see if they are present. Do nothing more and nothing less. Do not recite the law regarding chain of title, or that NC is a pure race jurisdiction. The validity of the deed is all that is in question. Part two, again, asks a very specific question: can a buyer (Home Mart) use the property as they desire. Well, can they? Why couldn’t they? What are the specific facts allowing or prohibiting them from building a store? This question may be driving at some form of a use restriction, “use” is in the question. Focus all your analysis on that alone. Do not debate whether it would be a good business proposition to build a store.

Whether you find it is easier to read the question before or after the facts, you should hone your analysis to that subpart alone. How to make sure you are doing that is discussed later.

5. Take time to outline as detailed a response as possible.

Most people say that time was not a factor on the bar exam, at least for the essay

portion. While some people may feel comfortable spending more time with this initial step, at least five (5) of the thirty (30) minutes you should give yourself to respond to an essay question should be spent on reading and digesting the question and outlining a

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response to it. Resist the urge to begin filling the answer booklet or your computer screen with words. Although it is true that no one has ever gotten points from their scrap paper or what was in their head, outlining can focus your thoughts and give your mind a chance to explore exceptions and craft an appropriate structure to your argument. Although the CRAC format is explained later, outline the legal rules at play, the elements of those rules, and which facts in your question’s fact pattern support those rules.

Especially if you plan to handwrite your essay answers, know that writing first before outlining can lead you to miss elements of your analysis in the middle of your writing, at which point you may have to mark-through or draw lines back to different portions. Knowing what your goal is and what you need to say makes your word choice simple, your language clear, and your answer more persuasive and precise.

6. Organize your answer in a manner that meets the question, label

everything clearly.

Good organization is a simple thing to overlook when having to process so many different things. It is valuable to the grader, however. Look back at the property question referenced in point number four above and its three subparts. Your answer should clearly delineate where subpart 1, subpart 2, and subpart 3 are. Whether you want to label each portion of your answer with headers like: “Question 1, Part 1; Question 1, Part 2” and so on, or “Valid Deed, Use as a Store,” and “Mortgage” does not make that much difference—although the latter may actually be less confusing.

This “break-apart” organization should also be used on single part questions. If a question asks how Margie’s and Bill’s assets should be divided, organize your response under a heading for each asset discussed. Think about it. Would the examiners go to the precision of identifying four distinct assets if all four could be lumped together and treated the same under the rules? Probably not. Focusing on each asset will drive you to properly apply separate rules.

If there are rules in common among the various organized parts of your answer, do not be afraid to refer back to aspects. The same grader will be looking at all the question’s various subparts, so you will not lose points. You will save time and space—valuable commodities. Obviously, do not refer to rules you stated in your answer to another question.

7. Focus on a defined opening sentence that answers the question and

contains a “because.”

A few years back, the question booklet had a line beneath each essay that called for an answer. The examiners used to require or encourage examinees to write, “Yes, the assets are divisible,” or “No, the court erred,” on the lines. This is not the case anymore; but old habits die hard. While you should not write anything in your question booklet, you should focus some detailed thought on an opening sentence to your essay that directly answers the question.

If the question is, “Should summary judgment be allowed?,” your answer should begin with “Yes,” or “No,” followed by a brief explanation. This is where the “because” comes in. It is an effective opening to state: “Yes, summary judgment for Ron should be

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affirmed.” However, it is even more direct and likely to earn you more points to say: “Yes, summary judgment should be affirmed because Plaintiff cannot show any damages.” You need to include a reason for your conclusion and using “because” allows you to do so.

When you answer the question and include a “because” statement in that answer, the grader has to look no further than the first line for your conclusion and a ( hopefully) correctly identified and concise reason for your conclusion. Should you need to expand on other, more general rules later in your answer, the grader knows you will eventually come back to the conclusion you identified in your first sentence.

No doubt this sentence will be important and drive the rest of your analysis, so do not write it quickly or lightly. Sufficient outlining and thinking should precede this sentence so you are completely comfortable in writing it and do not end up half-heartedly supporting it because you had it on the page. Confidence in your answer is important.

8. Use the “CRAC” (Conclusion, Rule, Analysis, Conclusion) method, or some variation thereof, to organize the substance of your response.

A strong opening sentence with “because” creates a nice statement of your

conclusion - the first element of the “CRAC” method. Following that should be the rules, analysis, and another statement of your conclusion. While some may advocate traditional “IRAC,” where a statement of the issue goes first, the conclusory first sentence has the effect of alerting the grader to your application and putting you on notice that your answer has to support and bolster that conclusion—not something else.

After an opening conclusion, you should have outlined the legal rules and their elements at play and now feel comfortable in organizing those into complete sentences. Analysis, or application of the facts to your rules, comes next. A focused method for analysis is discussed next. The final part of your answer will be your conclusion, which can be nothing fancier than restating your opening sentence.

While most essay questions or sub-parts lend themselves nicely to a four-paragraph structure, following this formula does not require that. You may be able to get a rule and application stated in one or two sentences: “Ordinarily Jimmy’s ten-year-old age would create a rebuttable presumption that he cannot be liable for negligence; however, here he was riding a jet ski, a traditionally adult activity, when he injured Sally. Because Jimmy was participating in an adult activity, he will be treated as such for purposes of liability.” Further, you may feel it easier to organize your paragraphs by some other means, but include a “CRAC” in each one, say if you were dealing with multiple assets or a three-step constitutional analysis.

9. Emphasize a focused analysis by tying at least one fact to each element or

part of your rule of law.

Most people understand the benefit, albeit tedious, of sticking to a CRAC or IRAC framework. It is the actual “A” where the points are lost or answers begin to wander. There is a good rule of thumb to keep everything on track: tying facts to elements or subparts of a rule.

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If you must show why a barn turned out to be an attractive nuisance, good analysis will apply at least one fact from the pattern to each element of the rule to show that the complete law is supported on this set of facts. Therefore tying at least one fact to your rules will let you know you are on the right track. If you have a paragraph of rules and you do not have enough facts to support each rule, then you may have rules you do not need to discuss. Do not look beyond the facts of the question to make your rules applicable; that should indicate to you that you are heading down the wrong track. While the inverse is not always true, it can be. If you have answered the call of the question, but failed to show any application or analysis regarding four sentences in the fact pattern, then maybe you are missing an exception or rule that would guide your analysis in a different course.

You know your analysis is focused and supports your rules and these in turn support your conclusion when you are able to match a fact to a subpart of a rule, even if it is just aspects of one rule separated by commas. You should not have any dangling rules or blocks of unused facts.

10. Avoid equivocation in your response; clearly support your conclusion,

right or wrong. Be confident.

Equivocating, or flip-flopping, between conclusions is common for unsuccessful examinees. Unlike law school exams, which are graded by professors yearning to see you brood over close calls, the bar exam is graded by experienced practicing attorneys who are more familiar with advocating for a client’s position than debating both sides of an issue. You should therefore focus on getting into that mindset of a practicing attorney. The life of having to argue both sides of an issue is behind you, you are trying to achieve a license that will offer financial rewards when you advocate for just your client’s position.

Your conclusion and result therefore becomes your client’s, too. If summary judgment was improperly applied, tell the grader why. You do not need to write two sentences explaining t how, if this one fact were different, there would be an opposite result. Each sentence in your essay response should gradually build to your conclusion without backing down or breaking apart. Again, this can be hard, especially where you cannot remember if the Uniform Family Support Act just applies to child support or both child support and alimony. However, you should not write a first sentence saying child support should be awarded and then have dangling sentences hedging your bets tucked in your essay. Pick a position and then methodically support that position.

If you feel the need to distinguish a point or fact, so that you can express to the grader that you saw the exception was not warranted, do so in a way that still supports your answer. You may want to discount the other side’s reliance on a fact. For example: “The fact that Harry inherited the property from his aunt is inconsequential when considered against the fact that before separation he deeded the inherited property to Harry and Wilma, as tenants by the entirety. What may have once been separate became marital.” Stating it like that versus, “The property is marital, although some may argue separate because he inherited it,” is confusing and detracts from your overall thesis that the property is marital and should be distributed accordingly.

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Helpful Online Publications from NCBA Young Lawyers’ Division http://younglawyers.ncbar.org/resources/publications.aspx

If the page doesn’t open: www.ncbar.org click on young lawyers division then move your mouse over “resources” and then click on publications There are 3 others: 1. A bump in the road 2. NC Bar drafting 3. NC Bar Survival Guide

NCBA Minorities in the Profession online video of the Bar Exam Writing Clinic http://diversity.ncbar.org/resources/videos/mip/bar-exam-writing-clinic.aspx

If the page doesn’t open: www.ncbar.org move your mouse over “committees” move down to and click on “Minorities in the Profession” an additional window pops up move over to “resources” move down to “videos” move over to MIP click on “Bar Exam Writing Clinic”