Most lawyers know that the facts of their case will win or lose their argument. The law remains static. The elements of a cause of action are always the same. A contract is always formed with the same elements of offer, acceptance, consideration and no defenses. Negligence is still a breach of a duty that caused an injury. What turns the case is the facts. One set of facts show a clear case of a validly formed contract, another set of facts show there was no meeting of the minds and no contract was formed. This is where a lawyer’s “bread and butter” lies – it’s what we get paid to do – make distinctions between a set of facts.
A good lawyer can articulate the facts as it relates to the law. That is what you are being tested on in your essay questions. The bar exam graders are looking to see how you take the facts they give you and relate it to the elements of the law. That is why you must blend the law with the facts. Do not just repeat the facts of the essay question. That is not your job. You are to take those facts and apply it to the law for complete analysis. Tell the bar examiners why these facts point to a certain legal issue. For example, if you see a formation of a contract, tell the bar examiners why you see a contract. Patiently, discuss why there is an offer, who accepted the offer, if there was a bargained for exchange and if defenses apply. Take each element separately. As a rule of thumb, for every element of the rule, state a corresponding fact. Take you time to discuss the facts, but only in context with the law.
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