How should you approach a bar essay question if you blank on the answer?
July 22, 2014 1:26 PM   Subscribe

I'm taking the bar next week. (IL if it matters). I feel strong in some areas, weak in others. Strengths and weaknesses I can handle, but there's one situation that I'm nervous about. How should approach a question if I just flat out blank on the rule of rule?

None of my bar prep materials have addressed this possibility, and I'm slightly embarrassed to bring it up in real life.

Of course, I'll take a moment to calm myself down and clear my head. But how should I tackle a question if I simply don't know how to answer what it's asking?
posted by helloimjohnnycash to Law & Government (21 answers total) 5 users marked this as a favorite
I am not a lawyer. I have never taken the bar.

I think there are two separate questions here:

1. What should you do if you blank?
2. What should you do if you don't know the answer.

Presumably you're already doing everything possible to prevent #2 from happening by studying. What are you doing to prevent #1? Test anxiety -- blanking on material that you know -- is an actual thing and it's an actual thing you can google and prevent and deal with even during the test if you need to. Learn and apply techniques for avoiding and overcoming test anxiety. I have seen these things work dramatically for my students.

As I said, I haven't written the bar and have only the vaguest sense of what it involves, so my answer to #2 should be taken with a bucket of salt, but I would think that what they want to see is to some extent your ability to reason legally. So, reason "out loud." what things would you have to consider to work this out...write about how you would have to consider those things and how they would affect whatever it is you're asked about. I'm sure you won't get "full marks" if it even works that way, but showing you know how to think like a lawyer must count for something.
posted by If only I had a penguin... at 1:33 PM on July 22, 2014 [1 favorite]

Do what you can (identify absolutely any issues available, whether you know what to do about them or not), hope for the best (any idea at all what the rule statement might be? put it down, you might as well have something there), and hope like hell you've made up for it on the other essays/questions in which you did know what you were doing. Also: don't waste time wracking your brain for the rule when you're blanking. Work on something else and come back to that question later, it might have percolated up out of the black sludge of bar exam despair before your time's up.

This is what I really like about preparing with flashcards (spaced repetition software). The idea is that you don't have to think consciously about what the rule statement is; you see a prompt and the entire rule statement just spools out of your head word for word, and right onto the paper/screen. Once you've got that you're in good shape. Bit late to revamp your strategy now, but in the event you find yourself doing this again in February, I strongly suggest studying this way.

FWIW: it is possible to pass while utterly botching one of the essays. And even if you do fail, there are worse things that can happen. Plus it gives you a really sympathetic sort of answer to those awful "what was your worst failure?" interview questions. So there's that.
posted by asperity at 1:37 PM on July 22, 2014 [1 favorite]

Flag it and move on.

In a time based exam, you don't want to miss other answers you know because you're worrying about one you didn't.

Plus, something in another question may jolt the memory on the one you skipped.

If you come back to it and still can't remember, I agree with thinking out loud- I.e. Write down what you can remember and reason from that.
posted by susiswimmer at 1:40 PM on July 22, 2014 [4 favorites]

Why would that happen? You are a well trained law graduate who has prepped for this exam. Worrying about some bad thing which has not yet happened, and seems unlikely to happen will not help. If it truly happens and you find yourself completely befuddled by a question just look for something to answer. These essay questions are all about spotting issues. Spot as many as you can even if you don't find all the issues or even the main issue. Ask your prep course but I think you get points for each issue spotted. Scoring is supposed to be objective and the scorers have a rubric with the issues. You don't get points for overall organization, writing ability, clarity etc. I don't think. Even if you do the main thrust is the issues. No way you get a question where you miss every single issue, not if you have even studied at half speed. Best of luck and stop worrying.
posted by caddis at 1:40 PM on July 22, 2014 [1 favorite]

I would do the standard IRAC and come up with the best rule you can. If it makes you feel better, add a parenthetical that you might be misremembering the rule. Depending on the grading criteria you might not do as badly as you think.
posted by exogenous at 1:41 PM on July 22, 2014 [2 favorites]

Are you writing multiple essay questions in one testing block? If so, my approach is generally to move on to the next question and come back to the question where I drew a blank once I've completed everything else. Generally the time focusing on something else helps my mind clear up its vaporlock and I can come up with an answer.

This also saves the time you might spend staring at the question and spinning your wheels, which is another bonus.
posted by pie ninja at 1:44 PM on July 22, 2014 [1 favorite]

The possibility of completely blanking is extremely small. The idea that there will be an essay question on something where you have literally no BS answers that you can pull out from 3 years of law school and a summer of studying is basically absurd. You're getting yourself worked up over nothing.

When I took the NY bar, they had an essay question about....something about writing a bad check and criminal charges, I don't even remember anymore. I had taken a negotiable instruments class, so I had some base of knowledge for the issue, but I didn't go to any of my Barbri classes and was a bit rusty on criminal law. BUT, this was an issue that was so remote, that even in Barbri (as I found out later from friends) they didn't address it in class or in the outline (maybe a mention in a list of "other things that are illegal in NY"). I don't know if what I wrote was correct. I don't really remember the question or the answer. I think I restated the facts, wrote some BS about negotiable instruments, wrote some other BS about fraud or stealing or something, and went on to the next question. Luckily, no one else was able to answer it either.

You'll be fine. If in doubt, restate the facts and write about something you know that is remotely related to the issue.

Ok, I decided to go find the question. Here it is, Question 2.
posted by melissasaurus at 1:53 PM on July 22, 2014 [2 favorites]

This is not difficult. You provide an elaborate answer to a question that is related to the one asked. The writing portion of the bar tests how clearly you can write, how well you demonstrate legal reasoning, etc., in addition to the substance of your answer.

I was presented with your exact situation on a procedural question when I took the bar exam for the one and only time in my life. I sat there and typed away. I got the substance of the answer wrong. I pretended I knew what I was doing. Like most people who had studied for the test, I passed the bar.

Remember, it's not as if you have to know a lot in any objective sense. You just have to avoid being in the bottom 25% of the people who take the test.
posted by Mr. Justice at 2:26 PM on July 22, 2014

You can identify the issue and then talk about some rules that it might be, say that you would look the actual rule up in XYZ statute (if you know), and then discuss how you would apply the facts to one or all of the rules you made up (depending on how much time you have left). This shows the bar exam graders that you know how to write and how to apply a rule to facts, and you get some credit for that even if it's the wrong rule.
I have passed 2 bar exams and I did not know all the answers either time.
posted by steinwald at 2:29 PM on July 22, 2014

Also taking the bar next week.


Do you have an "elevator" speech as a generic introduction for each of the topics? Like, for a crim law question something like "A crime consists of three elements: actus reus, mens rea, and causation" or "Under the Federal Rules of Evidence, all evidence is admissible if it is logically and legally relevant." Just an opening statement that will activate the knowledge.

Assuming you've gone through the other essays are still blanking, do something mechanical like write a number next to each fact, and see what jumps out. Example: "Emma gives John the deed. He doesn't record." You know that recordation is about notice, so write something about notice. Every jurisdiction is different, but mine gives the most weight to actual analysis, rather than getting all the nitpicky rules right, and organization is actually really important.

Back to studying, and good luck to us all!
posted by Schielisque at 2:32 PM on July 22, 2014

Illinois lawyer here; I took the test 12 years ago next week. It will be harrowing and exhausting but if you've studied you will be ready.

I think that you will find lots of room to roam on essay questions, and will be able to write an answer that gets you some points even if you do not know the rule or elements of a particular subquestion. Just recite back the important stuff in an organized way and then apply some reasoning. Even if you get the answer wrong they will see that you are smart and can write in an organized way and you'll get some points.

In melissasaurus's example, I have no idea whether an IOU is a negotiable instrument. But if I were answering the question I would highlight the things that we know about the IOU - that it was written (so no statute of frauds issue - that is not part of the question at all but shows you are aware of the SOF and how it affects contracts), that it was for a specific amount, that it was signed by the promisor, that it contained no conditions for payment, and that it was delivered to the promisee. You could then guess the answer (I'd say it was but I don't know), and say that even if it were not a negotiable instrument, it may still provide the basis of a valid contract claim between the parties because it was specific enough to establish a meeting of the minds and there was adequate consideration and yada yada yada. So long as you are in the ballpark, and you do not leave it blank, you will get some credit.

Good luck!
posted by AgentRocket at 2:39 PM on July 22, 2014 [1 favorite]

Take solace in the fact that you won't blank on an entire essay question -- even if you blank (and you won't) you won't blank on all of it, just some of it. Maybe you forgot the elements for arson, but the criminal in the question also committed theft and burglary -- focus on the theft and burglary parts. Throw in another line to make clear that you spotted the arson issue as well but had to bullshit the elements and move on. You'll do fine.
posted by craven_morhead at 2:42 PM on July 22, 2014 [1 favorite]

If you really know/can't remember anything, you confidently make up your own (detailed! Balancing tests! Elements!) law and apply it. A) your reader may not even realize your law is fake. B) even if they do, you'll get plenty of points for your solid, skillful application. Which is really what they're testing.
posted by atomicstone at 2:42 PM on July 22, 2014 [2 favorites]

I seriously can't believe your test prep hasn't taught you this.

Here you go: make it up.

Make up a rule and then apply it in exactly the same way you would had you known it. You should get points just for applying the rule correctly even if the actual rule you are applying is incorrect.

Bullshit, bullshit, bullshit. But IRAC or Crupac or whatever it is now that bullshit.

You should be able to come up with some rule that sounds vaguely reasonable and like it could sort of kind of be the law somewhere even if it's not in your state. That should give you what you need to write a coherent answer that will get you at least some points so it's not a total loss and that's your goal. 3 or 4 points is way better than 0. Disclaimer I don't know how the Illinois bar is graded but I am assuming you can get partial credit on essays. For NY our barbri instructor said in theory you could get a majority of the points on an essay without actually knowing any of the applicable law. This might be an exaggeration, but under no circumstances should you leave it blank. Write something. Apply the facts to whatever you make up and write it in the proper format.

Also, this totally happened to me on 2 of the 6 questions on the NY bar. I got insanely unlucky, but I still wrote out full answers. Good news is I still passed.
posted by whoaali at 3:26 PM on July 22, 2014 [5 favorites]

I'm taking the bar next week too, my sympathy. But seriously unless you get really unlucky you'll probably know something. My test prep, and reports from others taking other pre classes, has repeatedly told us that if we blank we should make up a plausible rule and elements and then apply the facts to the elements. Here in NY apparently we do get scored at least partially on analysis and organization.

Even if you only pick up a few points you'll be ok just take a deep breath, or have a drink of water and continue on. You can fail an essay and still pass. If you want to commiserate feel free to memail you and good luck!
posted by SpaceWarp13 at 3:48 PM on July 22, 2014 [1 favorite]

FWIW: it is possible to pass while utterly botching one of the essays.

It is, indeed. One of my classmates left two essays blank and passed. (Very smart person. Good attorney.) That said, I am lol-ing at some of the non-lawyers' answers. Obviously you do not want to skip bar exam essays.

Here's what was helpful to me. Don't think of the task in terms of the whole day, completing X questions in Y hours. Instead, micro-focus on each individual essay as a task unto itself. In each one, you have (let's say) 36 minutes to read a fact pattern and then write. Maybe you'll remember a ton of stuff, maybe you'll choke, maybe you'll write beautiful prose or maybe it'll sound like monkeyscratch, but whatever: you have 36 minutes to apply yourself to that fact pattern. Do that. Just write something, anything. It's like brainstorming: no idea is too stupid.

Then move on. Do not spend minute #37 finishing a thought. Those minutes are non-transferable. There is no balancing-out between questions. It is indeed better to spend 36 minutes bumbling through what little you remember (or can concoct) about commercial paper than to spend 72 minutes writing an astute criminal analysis. I set my mechanical wristwatch on the table in front of me and used its timer. I did my best for 36 minutes, and when the window was up, I moved on to the next task. Be ruthless about that.

So at most, you're blanking for 36 minutes. Then the timer resets. Turn the page and the sun rises anew.

Make up a rule and then apply it in exactly the same way you would had you known it.

This is literally what we were told in BarBri. I wrote it down in my notes. I think it was, word for word, "If you can't remember the rule, make one up." It is the correct and most basic answer to your question.

Good luck. I know people who failed, but mostly not on essays. What I can tell you is (1) the vast majority of my classmates and colleagues passed on their first try, and (2) none of the ones who failed are unhappy today.
posted by cribcage at 3:56 PM on July 22, 2014 [2 favorites]

You guess based on what a reasonable legislature would do. That's happened to me several times, and I always managed to do OK enough not to do serious damage to the overall score (I've taken two exams [different states: I work in finance so I don't practice and couldn't do the reciprocity thing])

This past exam, I didn't have a study book for state law until 2 weeks before the exam, so I had to pick and choose what to study. Two of the topics? Totally didn't read study them for more than a few minutes. But you use your general background knowledge and guess. And that worked for me.
posted by jpe at 4:19 PM on July 22, 2014

I took the bar (and passed) about 12 years ago, and after that taught bar review for several years. If you are properly prepared for the bar exam, there is probably very little chance of that happening in any significant degree. By my last week of bar study prior to the bar, I was able to completely outline all of the tested areas of law to sufficient particularity from memory and spent that week just reading the released questions and model answers from prior bar exams.

You absolutely must have an understanding of what the bar examiner is looking for when they are grading the essays as well as how the essays are scored and the circumstances under which they are graded. In my state, the volunteers who did it spent very little time on it and probably under less than ideal circumstances (e.g., at a ballgame) which means that, for the most part, they were skimming answers picking out the issues raised by the call of the question.

In my state, that meant they were mostly grading for issue spotting and I was writing point headings identifying the issue so they couldn't fail to notice that I'd got it, then writing the rule and applying it briefly in the body. If I had gotten a brain-fart, I'd have taken a quick stab at the rule then applied that version of the rule and moved on.

The chances that a bar grader was reading the whole text were small and, for the most part, if you spotted the issue in a heading, you were getting points for it no matter what kind of brain-fart you suffered when you wrote the rule.

Other than knowing the rules and knowing how your bar examiner is able to discern passing from failing scores, you should practice writing your essays with time pressure. Allot time for freaking out (e.g., one minute) then outline and write from your outline.

When it came to multi-states, my study approach was to do practice Q's and only write questions (and the right answer/rationale) on flashcards if I got it wrong. I didn't care about why I got those right and focused on fixing the problems. When I regularly got to passing scores (with generous margin) on mixed questions, I focused on essay writing and memorizing my topical outlines.

If you are in the exam after all this and have your problem on a multi-state, just use elimination. One answer is typically flat out obviously wrong. Another is usually also obviously problematic, presenting you with alternatives where it is less clear which is the better answer. Now that you're at 50/50, guess and move on to the next question. Don't look back. (Oh, and always, always, always make sure your scan card matches the question—people miss one and its very, very bad.

Are you going to be taking any kind of full practice examination prior to the real thing?
posted by Hylas at 5:04 PM on July 22, 2014

As above: spot the issues, identify them clearly, then MAKE UP a reasonably believable rule and apply it. I did this for the Washington bar on a couple of questions, and I still passed.

If you've taken the studying seriously, you'll be fine.
posted by suelac at 5:06 PM on July 22, 2014

I took and passed Illinois in July '13 and Missouri in Feb '14 so I can empathize. One thing to keep in mind is that (in my experience and from past exams) many of the MEE and Illinois questions have sub parts. So if you can't BS your way through one of the sub parts, you can still probably get points for the others. And if you really can't think of a rule, just apply the "reasonable person" standard, or that of "the best interest of the child."

Also, be sure to read the essay questions and answers provided by your commercial bar review course. No one has the time to actually practice all the questions under test conditions, but you can gain a lot by just going over them. In my experience the BARBRI provided essay answers were insanely thorough, and the Themis essay answers were shorter but more like what someone could actually draft in 30 mins. And be prepared for some essays out of left field. On our Illinois essays we had an entire question about water drainage on real property.

Finally, the bar passage rate in Illinois is about 85%. When you disregard all the folks that didn't really study, will have a break down during/prior to the test, or just barely made it through law school, the odds of passing are pretty good.

Also if you're not a native Chicagoan (myself falling into that category) I would recommend taking a dry run on the El to the UIC campus prior to test day, and bring a lunch. Feel free to memail me if you have any other IL bar questions.
posted by Mr Mister at 5:34 PM on July 22, 2014 [1 favorite]

Make up the law. That's what everyone told me. I didn't quite do that but my bar materials didn't covet the family law question that came up on my NYS exam, so I answered it using the Quebec law that I remembered from volunteering in my school's legal clinic about three years prior. I passed.

My book of sample bar exam essays was really helpful for this since it only included well-graded essays, had at least two or three sample essays for each sample question, and there were often meaningful contradictions among the answers.
posted by Salamandrous at 5:58 PM on July 23, 2014

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