Adam Ferber is the former Examinations Director for the State Bar of California and grader of 40 California Bar and First-Year Law Students’ Examinations. He provides intensive, individualized tutoring and coaching to applicants for both exams, as well as counseling and advocacy for applicants appealing their unsuccessful exam results. Contact Adam at www.ferberbarreview.com or on Facebook at Ferber Bar Review – Student Resource Group.
“Truly successful decision making relies on a balance between deliberate and instinctive thinking.” Malcolm Gladwell: Blink: The Power of Thinking Without Thinking
In Part 1, I postulated that the California bar examination grader who reads your answer can’t avoid a “Blink moment;” an immediate and instinctive reaction that may influence the balance of his or her grading.
You can take advantage of this tendency with topic headings that reflect the call of the question, whenever possible. Try this exercise and see if you don’t agree.
Pretend you’re grading Essay Question 5 from the February 2009 bar exam. The call of this contracts question is:
What arguments can Developer make, and what is the likely outcome, on each of the following points?
1. Developer did not breach the contract with Builder.
2. Developer’s performance was excused.
3. In any event, Builder did not suffer $700,000 in damages.
Now pretend that you have two answers in front of you. Each answer has received a consensus grade at grader calibration sessions – one passed, the other did not. You have 60 seconds to decide which is which. (Don’t worry…it’s never really done this way, but bear with me.)
Answer 1’s topic headings read:
- Issue: Contract Formation
- Issue: Parole Evidence
- Issue: Mistake/Ambiguity
- Issue: Mitigation
Answer 2’s topic headings read:
- Developer did not breach the contract with Builder
- Developer’s performance was excused
- Builder did not suffer $700,000 in damages
Which answer did you chose?
If you chose Answer 2, I’m with you. Based on my 60-second scan, I already know two things about Answer 2 that I don’t know about Answer 1: That it will attempt to answer the precise questions put to it in the call; and that so far at least, it’s likely to be “logical,” “lawyer-like,”[1] and better organized. Answer 1 has shown me a recognition of the question’s subject matter – nothing else.
Finally – pretend that you are instructed to read and grade both answers. Which do you think is more likely to receive a clearly passing or superior grade?
This is where the “deliberate” part of Mr. Gladwell’s formula for good decision-making comes into play in grading. California Bar graders read essays and performance tests carefully and base their final grading decisions on the whole answer. It’s very possible that its author will get Answer 1 organized and fully answered. It’s as possible that Applicant 2 will fail to do much more than “channel” the questions topic headings. However, based on the topic headings alone, which answer would you “put your money on?”
By the way, have you noticed that applicants can get a head start on organizing their essay answer to promise graders good things, without actually having to know the law or even anything about the question? If you have, then good for you. A piece of your grader’s “Blink moment” now belongs to you.
[1] If these terms don’t ring a bell, I suggest you review the Instructions to Applicants that accompany each set of Essay questions. They let you know that the Committee of Bar Examiners expects that “Your answer should evidence your ability to reason in a logical, lawyer-like manner…”
Copyright 2011 Adam Ferber and www.ferberbarreview.com. Reprinted by permission.
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