Grading Bar Exam Essays

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,

and 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 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, and some use a hundred-point scale.

Just add a zero if you are to a 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.

University? Explain?

A bar examiner starts off with minimal competency, that's how they begin and then they grade up or

down depending on what they find in the essay.

But you always start off at this 70 mark, with 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 the 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.

First, can Susan get compensation for her bodily injuries?

suffered in Ann's attack on the University? Explain?

Does Jim explain? And psychiatrist explain?

And then question two is a question here dealing with

whether she'll be able to recover from 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, they were looking for.

I have the answer key.

Oh sorry wrong one. Here's the answer key.

A brief summary of the issue

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 of how

you get there and also determined that you could have gone to the same place

because she was an invitee to 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 are 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: that they could find that they were

the actual and direct reason for Susan's injuries.

That becomes relevant because if when you're writing the exam as I did, and you're trying to

define what the actual cause is and then 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 who came to her assistance.

grading bar exam questions.

There was no special

relationship and ultimately there is no duty owed and there's some discussion

here 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: is the psychiatrist 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 PTSD, which is

the eggshell skull rule or the unforeseeable extent of the injury.

And they find that here, she should be able to recover from her PTSD.

And even though the extent of the injury was unforeseeable that is irrelevant under the eggshell plaintiff rule.

Okay, so here is the evaluation criterion, and this is the rubric.

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 with how to use that particular rubric.

Susan has filed three claims, each based on a different theory of negligence.

Okay, so this is an introduction.

 rule statement

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 do not have 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.

The first defendant is Jim.

The question is whether he owed Susan, a total stranger, any obligations.

They listed it as the 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 were 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.

grading criteria

The 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.

The university will likely lose in a lawsuit for negligent security.

Again, not exactly the language used in the grading criteria but the 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 is what a reasonably prudent person would do.

It appears University was aware of security problems.

Okay, so I'm kind of jumping into the problem the University's going to have.

The locks to the 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.

 better lawyer.

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 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, the 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 Examiners work is 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 boosts 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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