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PENNSYLVANIA ESSAY WRITING WORKSHOP PROFESSOR RICHARD GAFFNEY
DUQUESNE UNIVERSITY SCHOOL OF LAW
CHAPTER 1: ESSAY EXPECTATIONS
A. In General
The Pennsylvania essay portion of the bar exam is a ____________________________________
(three hours in the morning and three hours in the afternoon of the first day of the bar exam).
o The morning session consists of two essay questions and one
________________________________.
o The afternoon session consists of four essay questions.
Editor's Note 1: Professor Gaffney misspoke when he said there are six essays in the afternoon of the exam. There are six essays on the examination in total. Four of these essays are in the afternoon session.
o The Board weighs the essays questions and PT as _____________ of the total bar exam
score and weighs the MBE as ______________ of the total score.
B. Topics Tested
The essay portion tests you on MBE topics of Contracts, Criminal Law, Criminal Procedure,
Constitutional Law, Civil Procedure, Real Property, Evidence, and Torts.
Additionally, the Pennsylvania topics listed below are also tested:
Business Organizations (including
corporations, partnerships,
limited liability companies and
professional corporations)
Employment Discrimination
(limited to Title VII, ADA and
ADEA)
Professional Responsibility
Civil Procedure (PA and federal) Evidence (PA and federal) Real Property
Criminal Law (including related
Pennsylvania and federal
constitutional issues and DUI)
Family Law
Torts
Conflict of Laws Federal Constitutional Law U.C.C., Art. II - Sales
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Contracts
Federal Income Taxes (personal
only and limited to taxable and
non-taxable income, deductions,
proprietorships and capital
transactions)
Wills, Trusts and Decedents'
Estates (including related
fiduciary responsibilities)
Themis Frequency Charts provide an analysis of when and how specific topics have been tested.
However this does not definitively predict what topics will appear on an upcoming bar exam.
o These charts are meant to provide a final checklist to ensure that you have thoroughly
reviewed and understand the most frequently tested issues.
o Do not ignore ANY individual subject.
These charts can also show which subjects are typically tested together and see the
__________________________ context in which the subject has been tested
C. Scoring Essays
The value of points an answer receives does not depend as much on the correctness of the
conclusions drawn as upon the __________________________________________ and the
quality of the discussion that evidences an ability to apply the law to the facts presented.
___________________________, penmanship, and spelling are not considered in the grading of
an essay.
The bar examiners are attempting to test your ability to read, write, and think like a lawyer.
D. Morning Session
You will have three hours to complete two essay questions and one PT.
At the conclusion of the morning session, you will be required to turn in your work on these
three questions. You _______________________ be permitted to continue working on, revise,
or amend your answers to these questions in the afternoon.
You may answer the essays questions and PT in any order that you wish.
o Each essay question is worth ____________________________.
o The Performance Test is worth _____________________________.
Each essay question will test on more than one area of law and will contain multiple
interrogatories.
Time management is absolutely critical to your success.
o Allocate 45 minutes per essay question and __________________________ on the
Performance Test.
o Do NOT spend more time on an essay question or PT than this amount, or you run the
serious risk of not having enough time to answer all questions.
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E. Afternoon Session
You will have three hours to complete ______________________ essay questions
At the conclusion of the afternoon session, you will be required to hand in your work on these
questions.
Each essay question is worth 20 points and will test on more than one substantive area of law
and will contain more than one interrogatory.
o There are usually ______________________ interrogatories per question, but they are not
all of equal value.
Time and energy management:
o Identical to the morning essays, allocate 45 minutes per essay question.
o Fatigue is common in the afternoon portion of day one. Get plenty of sleep the nights
before the exam, plan your lunch hour ahead of time, and bring to the exam site an
appropriate high-energy snack.
F. Creating the Best Answer
What do the bar examiners expect you to do?
o Recognize issues,
o Apply the facts to the specific law,
o Reason in a logical manner, and
o Reach a definitive conclusion.
What you must be able to demonstrate:
o Recognition of issues---Issue spotting!
o A high quality discussion that evidences an ability to apply the law to specific facts in the fact
pattern, and a
o Demonstrated ability to reason in a logical manner.
What you must be able to do to demonstrate this is as follows:
o Understand and analyze the specific facts presented by the question, separating the
__________________________ facts from the _______________________________ facts.
o Spotting the relevant legal issues and ____________________________________ involved.
o Recall and state the applicable black-letter law and apply it accordingly.
o Reason in a logical manner
o Reach a definitive conclusion in a high-quality discussion being clear, concise, and complete.
What will a passing answer look like?
1. Directly responsive to the question asked in the interrogatory (the call of the question);
2. Identify the relevant issues and sub-issues presented by the interrogatory;
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3. Accurately, concisely, and completely identify and state the black letter law;
4. Apply the black-letter law to the specific relevant __________________ in the question;
5. Provide a well-reasoned, logical conclusion;
6. Discuss fully all of the reasons that support the conclusion;
7. Be clear, ____________________________, and complete;
8. Do not include information that is ________________________________, and do not
include facts that are not presented in the question;
9. In sum, demonstrate your ability to ______________________ and write like a lawyer!
Consider your audience and purpose:
o Your audience is ____________________________ who function as bar graders.
Be brief, direct, and demonstrative of your knowledge of the law by providing concise
and accurate explanations of the law. Answer the question asked.
o Your purpose is to ________________________________the bar examiners that you are
competent to practice law by writing short answers to multiple interrogatories in a limited
time.
For instance, manage your time efficiently, get right to the point, and define terms.
Think like a lawyer!
G. Final Strategy
Know the law (memorization)
________________________ like a lawyer (closely)
________________________ like a lawyer (analytically)
________________________ like a lawyer (organized, direct, to the point, and applying the law
to the specific facts)
Manage time and stress effectively
Practice, practice, practice.
CHAPTER 2: IDENTIFYING ISSUES A. In General
Essay questions normally consist of a fact pattern followed by a series of (usually 4)
interrogatories, which cover more than one substantive area of law.
Recommended approach:
o Think _____________________________ you write
o Read the answer and essay questions in order
o Read the ____________________________________ first
o Read the fact pattern while highlighting key facts
o Go back and re-read interrogatory No. 1 and closely reread the facts
o Identify the precise ____________________________ and ___________________________
o Identify the applicable _______________________________
o Analyze the relevant facts in light of the applicable law
o Derive a reasoned conclusion to the ____________________________________
o Write a simplified, bare-bones, outline.
B. Sample Essay
Read the interrogatory first:
SAMPLE INTERROGATORY No. 1: Was it permissible for Tom to deduct his rental
payments as a business expense on his federal income tax returns?
o Immediately, we know this is a federal income tax question and, more specifically, the
question is asking about the ________________________________ of rental payments as
an ordinary and necessary business expense.
Read the fact pattern
o Now that you are focused on the questions and probable issues, you can read through the
facts carefully to begin to identify the problem presented by the facts.
SAMPLE FACT PATTERN No. 1: Attorney Able owned a two-story townhouse, which he
rented to Tom, an independent tax accountant operating as a sole proprietorship.
Tom’s only tax accounting office was on the first floor of the townhouse. Tom used one
half of the first floor exclusively for business, and he used the remaining one half of the
first floor and the entire second floor for living. Each year Tom deducted on his federal
income tax return all of the rent paid to Able for that year as a business expense of tax
accounting business.
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o What are the rules you need to know?
1. Ordinary and necessary expenses of business are deductible on a tax return
2. Rental payments are deductible as ordinary and necessary business expenses.
3. There is no deduction for personal living or family expenses
4. Where there are expenses related to both business and personal expenses, the
expenses must be allocated/prorated on the tax return.
o With these rules in mind, highlight key facts: dates, times, dollars, units, language in
quotation marks.
Here, you should have highlighted terms such as _____________________________,
____________________________________________, all of the rent paid.
o Ask yourself: ___________________________________________________? Bar examiners
do NOT include many “red herrings.”
Tom used half of the first floor. Highlight this first fact because it goes to the
__________________________________ that we have in our Income Tax Code.
It is becoming clear that he cannot deduct the entirety of his rent and that he must
__________________________________his expenses.
Now that we have an idea of the answer, re-read the interrogatory
o We want to answer exactly what is asked of us. Many applicants commit errors in reading
__________________________________________.
o Make sure that you read the interrogatory as a lawyer: deliberately, carefully, and closely
identifying _________________________________________________.
o Go back to the parts of the fact pattern that relate to the question on which you are
concentrating.
o Give those facts a close, careful reading.
o Be certain you have identified the parties correctly. For example, which party is the Seller
and which is the Buyer? Hint: _______________________names often begin with the letter
‘S’ and Buyer names with the letter ‘B.’ ______________________________ names usually
begin with the letter ‘P’ and defendants’ names with the letter ‘D.’
o Now highlight additional facts that are relevant to the question.
SAMPLE FACT PATTERN No. 1 ANNOTATED: Attorney Able owned a two-story townhouse,
which he rented to Tom, an independent tax accountant operating as a sole proprietorship.
Tom’s only tax accounting office was on the first floor of Able’s townhouse. Tom used one
half of the first floor exclusively for business, and used the remaining one half of the first
floor and the entire second floor for living. Each year Tom deducted on his federal income
tax return all of the rent paid to Able for that year as a business expense of tax accounting
business.
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Identify the precise legal issue and the sub-issue(s).
o Identifying the issues requires working back and forth between the __________________
and the ___________________________. The facts suggest a legal theory and specific law.
The facts will meet some of the elements and definitions squarely, but others will seem to
be in dispute. This creates a legal sub-issue, which leads you back to the law, which leads
you back to the facts.
o Because most interrogatories contain not only broad general issues but also sub-issues, you
may be required to not only know the general rule, but also one or more of the exceptions
to the rule.
o Show the bar examiners that you understand the general rule, the sub-issues,
_______________________________ to general rules, and __________________________
of particular terms.
Identify the applicable rule of law and analyze the relevant facts in light of the applicable law.
o Legal _____________________________ is the most critical skill tested on the bar
examination.
o It is both memorization and recognition. For the bar, think of it as the
____________________________________.
You are matching elements of the law to the facts provided by the bar examiner. Make
sure that every element of the law is met by a detail provided in the facts.
Resist the temptation to make up facts or issues that are NOT provided by the
interrogatory.
Example 1: In this question, you may have thought about Tom's
utility expenses, the internet, or cell phone are also deductible
expenses. This may be valid in another context, but not to this very
SPECIFIC question.
Derive a reasoned conclusion to the interrogatory.
o By sharply defining the legal issues and sub-issues and applying the applicable law to the
facts, the reader should be able to easily come to the _______________________________
that you provide because it was so clearly explained.
Write a Bare-Bones Outline
o Keep it short and simple with abbreviations to help yourself when doing your final writing.
o You should write your outline in the same order that you write your final essay – ‘CREAC.’
As an example, consider the Sample Interrogatory and Sample Fact Patter we worked on above.
o The interrogatory informed us that the question is asking about the deductibility of rental
payments as an ordinary and necessary business expense.
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o When we read the facts, we realized (a) this question is about an individual taxpayer (b)
taking an income tax deduction (c) under the federal income tax code for (d) rental
payments made on a _______________________________ (e) that he uses partly for
business (25%) and partly for personal use (living quarters – 75%).
o On rereading the interrogatory, we carefully note that the question asks, “Was it permissible
for Tom to deduct his rental payments as a business expense on his federal income tax
returns?” and we recall that the _________________________________________ code
contains a provision that defines when an individual taxpayer may deduct business expenses
from income. We recall that, generally, all ordinary and necessary business expenses may
be deducted from income. We also recall (or reason) that rental payments for office space
are properly deducted as an ordinary and necessary business expense.
o We go back to the facts and ascertain that “Tom used one half of the first floor
______________________________________________________.” This fact was put here
for a reason! The bar examiners are telling us that Tom’s rental payments for office space
are properly deducted as an ordinary and necessary business expense.
o The facts, however, suggest a sub-issue: Can Tom deduct all of the rent or just the portion
used by him in his business? Again, this leads us back to the law. We recall the internal
revenue code provision that provides, where there is more than one use of space, the
________________________________ must be apportioned according to the use of the
space.
o The facts told us that Tom used one half of the first floor exclusively for business, and used
the remaining one half of the first floor and the entire second floor for living. They also told
us that “[e]ach year Tom deducted on his federal income tax return all of the rent paid to
Able for that year as a business expense of tax accounting business.
o As we apply the law to the facts in the Sample, we logically analyze that the issue and sub-
issue and come to the well-reasoned conclusion that it was not permissible for Tom to
deduct all of the rental payments as a business expense on his federal income tax return
because Tom did not apportion the deduction according to the use of the space.
o We now write a bare-bones outline of our answer, which might look something like this
(next page):
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C: Not permissible – rent not apportioned business/personal use
R: IRC – gen. rule: individ. Txpyer may deduct “ordin. & necc.” expenses.
E: Deductible if exclusive use for business
But – busin. & pers. Exp. must be apportioned
And personal exp. Not deductible
A: Tom is individ. Txpr 9sole prop)
Tom used ½ 1st fl. Townhse. exclusively for business
BUT used 75% for living [personal]
He deducted all rent [not apport’d]
C: Not permissible.
CHAPTER 3: WRITING A PASSING ANSWER
A. Writing a Passing Answer Using CREAC
Conclusion Sentence (or heading)
o Begin your written answer by _______________________________________ the question
asked and providing a summary of your analysis.
o It should be _____________________________________ to the interrogatory, identify the
issue and sub-issues, and will contain the key determinative ______________________ that
resolve the legal issues presented by the interrogatory.
o For example, in our sample, you might write: “It was not ____________________________
for Tom to deduct all of the rental payments as a business expense on his federal income tax
return because Tom did not apportion the deduction according to the use of the space and
because Tom impermissibly deducted his personal use of the space.”
Note the use of the word “because” to link or “match” the key fact to the legal element.
Rule Of Law
o Refer as specifically as possible to the rule of law you used to resolve the issue and sub-
issues.
Example, “Under Pennsylvania criminal law” or “Under the Pennsylvania Uniform
Commercial Code” or “Under the federal Internal Revenue Code.”
o State the law as accurately and precisely as possible.
Example: Pennsylvania law defines the crime of theft as follows: a person is guilty of
theft if he unlawfully takes, or exercises unlawful control over, movable property of
another with the intent to deprive him thereof.
o The Bar Examiners grade answers using a ______________________________ and look to
see if your answer contains the correct elements and definitions.
If you cannot recall the specific rule in question, __________________________ a
reasonable rule and apply your rule to the relevant facts.
Derive the rule you create from the relevant facts in the fact pattern. Make it
reasonable and something that the facts in the question would be testing.
A reasonable made-up rule might say: “Generally, all expenses that relate exclusively to
a business use may be deducted from income. The term “business use” shall include
rental payments for office space. Personal expenses, on the other hand, may not be
deducted. Where, however, there is more than one use of space, the deduction must be
apportioned according to the use of the space.”
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Explain, Expound, or Enlarge on the rule and its exceptions, as needed, to address the specific
call of the question.
o Explain what the rule means and how the rule applies.
o Expound on the relevant exceptions to the general rule.
o Enlarge on the rule by _____________________________ key terms.
Apply the rule to the key determinative facts.
o As stated above, legal analysis is the most critical skill tested on the Bar Examination. You
need to show the bar examiners a ______________________________________ analysis of
the law and the specific facts presented.
o It’s important to utilize the facts presented in the background. Do not assume that the bar
examiners know what facts you were applying.
o Discuss one element at a time completely before moving on to the next element.
o Use the facts to show the bar examiners how each of the elements is satisfied or not
satisfied. Utilize as many of the relevant facts as you can.
o Avoid saying overly general phrases like "Under _________________________ facts"
o Remember that a conclusion about a fact is NOT the same as a statement of the fact. Recite
the fact first. Then draw the conclusion.
Example: In this case, Tom had two floors in his townhouse. He used the entire second
floor as a residence. The first floor was used half as a residence and half as a business.
Thus, three quarters of his townhouse was used as a residence, and only one quarter was
used as a business and thus properly deducted. Tom’s use of the townhouse as a
personal residence qualified as a personal expense and was not properly deducted.
Consequently, three quarters of the rental payments were improperly deducted as a
business expense, and only one quarter was properly deducted as an ordinary and
necessary business expense.
o Show how your analysis of the law and the facts lead to your conclusion. Do NOT jump
straight from the rule to the conclusion.
Conclusion
o The conclusion should flow naturally and be obvious from your analysis of the legal issues
and sub-issues.
o The Finished Product: CUHT (remember as "Cute") Answers
C = Conclusion
Begin your answer by writing a ___________________________________ sentence
that directly responds to the call of the question.
U = Under
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Start your second sentence with the world "________________________" and then
(i) specify the source of the rule, (ii) spell out your rule statement, and (iii) explain,
expound, or expand upon the rule and its exceptions.
H = Here
Start your third sentence/paragraph with the word “____________________.”
Apply and Analyze the facts, playing the “Match Game.”
T = Therefore
Begin your final sentence/paragraph with the word “________________________,”
and write your logical, well-reasoned conclusion.
[END OF HANDOUT]