One problem bar examinees have is panic. Lack of proper training, believing the bar to be “impossible” are two usual causes of panic. Panic causes examinees to either stare blankly, scared to write, or write rapid unstructured and ill considered ideas.
Panic is prevented by learning the law thoroughly and practicing for the exam.
You learn the law thoroughly best by understanding the reasons the legal rule is what it is. For example, we should know that the good faith purchaser of property for value without notice of defective title has good title against all the world except true owner, which seems logical. Since the good faith purchaser did not know the goods were stolen he is not a criminal. And to protect and preserve property it makes sense that the good faith owner of stolen goods ought to be presumed to have a relative mastery over those goods against all save their true owner, for the true owner may be dead or absent or even unaware that the goods were stolen.<
We should also know that the good faith purchaser of a negotiable instrument without notice of a flawed title has good title against all the world, even against true owner, and this is a property right which vests on transfer – a right in rem. This is not a contractual right in personam which might be defeasible. That is, only “real” and not “personal” defences may be interposed against the good faith purchaser of negotiable instruments such as a promissory note or check.
Obviously, this requires us to know a lot of technical legal vocabulary. It is a lack of knowledge of this vocabulary which stops students from learning the rules. Focus on learning the rule “by heart” rather than understanding the reason for the rule which keeps the student from seeing all the nuances just summed up in the preceding paragraph.
You must know what “real” “personal” and “negotiable” and “in rem” and “in personam” mean
seems strange to new law students. If you do not then look them up. Whenever you meet a new term in law you must look it up otherwise you will not be able to learn the rule. Law is pains-taking but easy, it is not rocket science but does demand persistent study.
So: WHY does the law permit the good faith purchaser of commercial paper to take title good against all the world, even true owner? This counterintuitive rule exists to foster commercial transactions. Imagine what the business world would look like if this were not the rule. Claims would be made against buyers of propert for contractual breaches of which they were not party and know nothing about. Litigation would increase, and commercial trading would decrease to the impoverishment of all.
Without knowing the vocabulary you could not see all the issues lurking in a question which looks easy. Without understanding the reason for the rule you are less likely to even remember the rule, let alone to apply it properly.
Essay questions are all about
1) Spotting the Issue
2) Weaving Facts
3) Into Law
4) To reach a conclusion.
Keys to avoiding panic
1) If you don’t know the rule — make one up. You can score some points with an incorrect rule, but no points with no rule at all. Furthermore, the rule you make up is likely the correct rule, you just don’t remember it with perfect certainty.
2) Argue in the alternative: “but if I am wrong”, “but if the court disagrees with me”. This tactic must be used sparingly and really only as a “backstop”. Otherwise you would never run out of issues to argue and it would make your essay look like it was written by someone who does not know the law.
3) Know the vocabulary. Knowing vocabulary increases your confidence, makes it easier to discuss the law, and shows the examiners you likely know the law.
4) Know the reasons for the rules, not just what the rule is, because in a hard case we are not only arguing about whether these facts applied to that rule reach this outcome; we are also arguing about what the rule should be, that is we are arguing about whether to apply one of several competing rules. Fortunately for examinees, the bar currently does not focus on the abstruse arcane questions of which rule to apply, limiting its examination to the concrete questions of certain facts applied to settled laws.
In other words: yes YOU Can pass the bar!