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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

2 | © 2015 Themis Bar Review, LLC | Pennsylvania Essay Writing Workshop

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.


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;


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.


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.


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.


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):


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.”


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


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]

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