Today I will grade the bar exam essay that I took a couple of weeks ago.
We will look at a real grading rubric created by the bar examiners,
their model answer and then I will grade the essay using their criteria.
By watching me do this you will develop the skills you need to perform better on timed essay
exams whether for class or on the bar exam.
Hello lawlings. This is Professor Beau Baez.
Inward, outward, upward!
By making inward changes you will see outward improvements that drive your grades upward.
A few weeks ago I took a timed essay exam that I had never seen before.
Go watch that video first and then come back I'll be waiting.
Really go watch it, I'll wait.
Okay here we go.
All right so what I want to do today is to go through the exam that I took a couple of episodes ago,
where I took a bar exam essay that had never seen before.
So what we're going to do is we're going to grade it.
So first I'm going to show you the criteria.
So let me move now and show you the criteria used by the Board of Bar Examiners.
I found this some years ago and discovered that this is the criteria
used by many Board of Bar Examiners.
Some use a ten-point scale, some use a hundred point scale.
Just add a zero if you are to jurisdiction that uses a ten-point scale.
The key here is to get a 70.
This is my understanding of what California uses,
but again other jurisdictions would just drop the zero on a scale of one to ten.
So a passing score is a seventy meaning you spotted all major issues and
you do an adequate job of weaving in important facts.
So this is what is viewed as minimal competency.
If you score a seventy then you have passed that particular question on the bar exam.
All right so this is the criteria.
So you can kind of see.
And so that's the starting point.
A bar examiner starts off with a minimal competency, that's how they begin and then they grade up or
down depending on what they find on the essay.
But you always start off at this 70 mark, minimal competency.
So that's the criteria.
We'll come back to it later to see what grade I assign it based on the essay.
We're not going to go through the entire essay but I will post this essay and all these materials I'm
showing you on my website.
So look for a link down in the description and you will find it there.
And then you can go back and look at this more carefully.
So here's the question I was asked.
Susan is seeking damages for injuries she
suffered as a result of Anne's attack and has sued the University, Jim, and Anne's psychiatrist.
One, may Susan recover damages for physical injuries she
suffered in Ann's attack from the University? Explain?
Jim explain? And psychiatrist explain?
And then question two is a question here dealing with
whether she'll be able to recover for her PTSD.
Pretty broad and let's see what they were looking for?
I assume, and we'll get to that momentarily,
it looked like they were looking for negligence.
Well negligence is composed of five elements:
Duty, Breach, Actual Cause, Proximate Cause, and Damages,
which made it very challenging to complete this essay under timed conditions.
That's 30 minutes, closed book, closed note.
So let's see what the, they were looking for.
I have the answer key.
Oh sorry wrong one. Here's the answer key.
So let's look through this first and then I will go back and look at my answer.
Let me just move these along, alright here we go.
The grader, the Board of Bar Examiners,
determined that these were the four issues that they were going to give points on,
and it's very interesting, we'll see question 1(a):
did they have a duty that was the cause in fact and proximate cause.
So Duty, Breach of Duty, Causation. So far so good.
Same issue with Jim, Psychiatrist, and PTSD.
That's a lot to do in 30 minutes so let's look, let's look down at their summary.
So the grader would have looked, you know sort of read through this and
then graded it using the rubric.
There's a brief summary of the issue and then we get to point one.
So the first issue was 30%
The university owed a duty of care to Susan for several reasons.
One, because she was a resident in their dorm and they had a duty to protect her from
foreseeable criminal activity.
And then it goes through some analysis as to how
you get there and also determined that you could have gone to the same place
because she was an invitee in the building.
Either way, either as an invitee
or a duty to protect from foreseeable criminal activities,
either way we can establish duty.
Then there's some discussion on breach of Duty.
Here sort of the facts that would lead you to show that there was a breach of duty.
Now I found it very interesting and reading this rubric there's really no discussion
on any of the other elements.
It just says: and they could find that they were
the cause in fact and proximate cause of Susan's injuries.
That becomes relevant because if when you're writing the exam, like I did, and you're trying to
define what actual cause is and then the you know define proximate cause and
define damages you find that 30 minutes was not a lot of time to answer this exam.
But again looking at the call the question we, going back to it you'll see
it says here discuss. Explain, right, which leads I would suggest you need to write
a full negligence essay but that's ultimately not what the grader was looking for.
Question 2: 25% of the grade, looking at the duty owed by Jim you may
recall Jim as a stranger came to her assistance.
There was no special
relationship and ultimately there is no duty owed and there's some discussion
here on what facts lead you to conclude that there is no lawsuit against Jim.
That he did nothing wrong. Number one he had no duty and he did not leave her in
a worse off condition.
The third issue: the psychiatris t and this is a Tarasoff issue.
And we'll look at that more carefully when we get to my answer.
And the court goes through a Tarasoff analysis.
When do you have a duty to warn a third party who was a member of an indeterminate class
against whom the patient made threats.
The analysis here is far
above and beyond what anybody could ever write.
This is primarily for the grader, so they have a sense of the types of answers to look for in determining how
they're going to apply that rubric.
The bar exam grader might spend five to seven minutes on each essay question.
So they have to move very quickly through their rubric.
And they find here: thus in the vast majority of states a jury could not find
the psychiatrist is liable to Susan.
And then finally we get to the PTSD, which is
the eggshell skull rule or the unforeseeable extent of injury.
And they find that here, she should be able to recover for her PTSD.
And even though the extent of injury was unforeseeable that is irrelevant under the eggshell plaintiff rule.
Alright, so that's the rubric and this is now the grading criteria,
the things that the grader is going to look for.
Now let's grade my exam.
So if I was a bar exam grader and I'm reading this for the first time.
I'm just going to go through it very quickly like I would if I was grading bar exam question.
So here is my answer.
I'm going to try to grade this by using all the
material we've just seen keeping the rubric in the back of my mind.
So I'll give you the grade at the end.
I'm looking for major issues weaving in facts with law assuming it starts at a 70 and
will move up or down depending on what we find.
By the way I used that grading rubric for many years so I'm very
familiar in how to use that particular rubric.
There are three lawsuits by Susan, each predicated on different theories of negligence.
Okay, so this is an introduction.
Given the amount of time that we had ... so I'm gonna critique this
as well if I had been doing more practice exams before this I would not
have written an introductory paragraph, just not enough time given the huge
number of issues that had to be discussed on this issue.
I would have skipped all that and just started with the first defendant.
I mean it's nice, it gives the reader a of where you're going, but boy I probably
lost, what two, three, four minutes on that first paragraph, which I could have used
in discussing more of the substance.
First defendant is Jim.
Issue is whether he owed any duty to Susan, a stranger.
They listed it as issue, I think two.
I started off with it. Then I have the rule statement. Okay good, it's a good rule statement.
The rescue doctrine holds that no duty ... okay, so I went a little bit
deeper and the grading criteria mentioned but I think the grader would go through
this, so that's the rule.
That's the duty that I've put breach of Duty in a
separate paragraph. So was it reasonable?
Jim found Susan, so I'm going through the
same facts that were decided. Goes to the office he did nothing.
Traditional rule ... did not put in a word...
Okay, so there ...
Everything here that I'm seeing that we saw in the grading criteria I see here.
I think this first issue is very good.
Again I'm not assigning points issue-by-issue we're gonna grade this again holistically,
based on that grading criteria.
All right let's keep going.
Second defendant, Psych sued for negligence in failing to warn Susan of
Ann's dangerous behavior.
Okay so I've spotted the issue then the correct rule statement:
no duty ... not exactly the way on the grading criteria ...
that might hurt me a little bit.
But I mentioned that there is generally no duty owed and then I give the test.
So this goes a little bit deeper than the grading criteria but
everything in the grading criteria is listed here on my exam.
And then it has to be a readily identifiable person.
In this situation Ann told psych ...
So I go provide some of the facts of what's going on but does not identify a
particular harm and then I conclude psych should be able to prevail against Ann.
Then the University.
This is the big issue.
University will likely lose in a lawsuit for negligent security.
Again, not exactly the language used in the grading criteria but same sort of concept.
I don't think that'll hurt me too much.
University owed Susan a duty to secure the
dormitory as that what a reasonably prudent person would do.
It appears University was aware of security problems.
Okay so I'm kind of jumping in to the problem the University's going to have.
The locks to rear entrance were broken.
University failed to timely repair.
Some of the basic facts are there.
The next issue, element is causation, actual, proximate...
And here, I've noticed the grader was not looking for a long, really any discussion
on actual or proximate cause or damages.
But anyway I went through it, so this brings us to the last issue: PTSD.
I mention in the first sentence that we're talking about her emotional harm.
I mention that it's the eggshell psyche rule.
The grading criteria said the eggshell skull rule or the thin skull rule.
I suspect this will be fine.
Hopefully the grader will see the connection and
realize I'm using a different name for the same rule.
I list some facts and I mention that she will be able to recover for this harm.
Alright, so let's go look at the grading criteria and see what grade I would assign to this if I were grading it.
It's at least minimally competent but I need to see if it goes above that into the 80.
And so the way the board of Bar Examiners would do this ...
you'll see that there are blanks in between 70 and 80 so if it's something that's better than a
70 but doesn't quite reach the criteria of an 80 then you give it a 75.
So let's see. 80, essay is generally well written in addition to identifying all major
issues and weaving in facts.
It's at least an 80.
That's the grade I would give it.
I''m not sure if it quite rises to the level of a 90 but it's an 80 or
85 is where I would place this at.
So that's good.
The way the Board of Bar Examiner's work they grade the answer,
I get an 80 or 85 and if I get a lower
score on one of the other essays this essay boost up my grade.
I hope you found this exercise useful but understanding how
Bar Examiners grade and their criteria you can better craft your essays.
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