There will be a moment on the bar exam when you will stare at an essay and won’t know the rule. I’m not talking about when you forget an element, or you kind of know the rule but aren’t sure if what you put down is the whole rule. I’m talking about when you have no idea what the rule is. I’m talking about when you would swear you have never seen that rule before in your life.
I can still remember my moment. It was essay #2 on the July 2009 NY bar exam. The question asked about the crime of issuing a bad check. I had no idea what the rule was. It wasn’t in my outline. I was sure I had never encountered it before. (Of course, if I had followed my own advice and written all of the new rules I learned from practice essays into my outline, I would have known it because I had outlined a fairly similar essay. I just had no recollection of it by that point.)
But, I was prepared for that moment, and you can be too. I actually remember saying to myself, “OK, this is my moment. I don’t know this rule. I am going to make it up and move on.”
I knew that if it was a crime, I could say something about actus reus, mens rea, and causation, and that I would need elements. I made up some elements, applied them methodically, and moved on.
That is what you want to do – make up a rule and move on. Not knowing a rule will not result in you failing the bar. Panicking and spending too much time on something that you don’t know, may cause you to fail the bar. Thinking about it when you should be focusing on a later question, may cause you to fail the bar.
Say to yourself, “OK, this is my moment. I’m going to make something up.” You will know a lot of law by the time you sit down to take the bar exam. Follow these six steps:
- Situate yourself in the doctrine and remember your general knowledge of the doctrine. (For example, if you’re in torts, for example, think about a reasonable person standard. If you’re in UCC Article 2 remember that Article 2 exists to make sale of goods transactions easier and more practical.)
- Look at the facts and decide which party you think should win.
- Make up a rule that takes those two things into account.
- Apply whatever rule you made up.
- Move on to the next question where you do know the rule, and put it out of your mind.
This happens to everyone somewhere on the bar exam. You want to become comfortable with it by practicing essays in this same manner. It’s great to do essays open book for most of bar prep. However, you want to sometimes practice doing an essay without looking up the rules so that you become comfortable with not knowing.