Let’s talk about essay writing. You’re in week two of bar prep, and the essay practice has not been intense at all yet – but it will be soon. So, this blog workshop is focused on issue spotting in essay writing.
HANDLING MAJOR ISSUES
On bar exam essays, there’s a difference between a major and a minor issue. A MAJOR issue is one that has at least one reasonable argument and counterargument on each side (with facts to support each argument/counterargument). When you’re going through an essay and issue spotting, what makes something a major issue?
- It may have a variety of facts related to it. When you issue spot and match up facts, you can tell which issues are major because they will have more TRIGGERING facts or AMBIGUOUS facts. A “triggering” fact is a fact that suggests you need to discuss a particular rule or legal element. “Ambiguous” facts are ones that create uncertainty as to whether an element of law is met.
- The issue matters to the outcome of the case.
- It cannot typically be resolved with a single “because” clause. It requires more analysis.
What’s an example of a triggering fact? Say you spot and write down the issue of battery on your torts essay when going through it. You know the legal rule that “battery requires an intentional infliction of a harmful or offensive bodily contact to the plaintiff.” Support there are a lot of facts that have to do with intent, or lack thereof, and facts to support arguments over whether or not the defendant acted with purpose or knowledge. Further suppose that there are facts making it unclear whether this was actually a harmful or offensive contact. With all of these facts that relate to a battery claim, this would be a MAJOR issue on an essay, simply because you’re given so much information to work with.
What’s an example of an ambiguous fact? In a criminal law question, imagine you spot an issue in a fact pattern that calls burglary to mind. You remember the modern legal rule: “breaking and entering of a structure with the intent to commit a felony therein.” The facts state that the Defendant walked up to an ATM machine at night and inserted a crow bar in the ATM to gain access to the money stored behind the ATM machine for distribution. You don’t know whether putting a crow bar in the ATM qualifies as “entering.” This is an ambiguous fact. You know it is a major issue because of this, and you must argue both possible interpretations to fully analyze whether or not this could possibly be considered a burglary.
So, why is this important? A major issue is worth MORE POINTS than a minor issue, so you should take more time to outline and write about it.
HANDLING MINOR ISSUES
A minor issue can be thought of as a “giveaway” or “clear” issue. You still want to raise it and discuss it to get the appropriate points, but it’s not very complicated or involved, so you do not want to spend a ton of time on it.
You can identify a minor issue in the following ways:
- A minor issue can usually be disposed of with one “because” clause.
- It will only have just one or two facts triggering it.
- It will not involve any ambiguous facts that lead you in different directions.
Consider the battery example I gave you above. If the facts tell you instead that the defendant walked up to the plaintiff and shouted, “I’ve hated you for years, so I hope this hurts!” and then kicks the plaintiff in the shin, those facts suggest that this is a MINOR issue. Why? Because the elements of battery are clearly satisfied, Therefore, you should go through your analysis quickly: “Defendant acted intentionally because he shouted ‘I’ve hated you for years, so I hope this hurts’ and he engaged in harmful bodily contact because defendant’s foot struck plaintiff’s shin.” A quick, simple, minor issue. It won’t be worth as many points, so you can identify it and move on.
GETTING BETTER AT ISSUE SPOTTING
Right now, you are learning the law, and your bar exam programs are making sure you can issue spot. When doing this, focus on the facts. As you can see from my examples above, a given issue could be major or minor in an essay. This categorization depends entirely on the facts you are given.
Practice makes perfect – but the first step is to focus on the facts while issue spotting. Spotting all of the issues in your bar exam essay will get you closer to a great score.