Truly successful decision making relies on a balance between deliberate and instinctive thinking.” Malcolm Gladwell: Blink: The Power of Thinking Without Thinking
In Part 1, I postulated that the California bar examination grader who reads your answer can’t avoid a “Blink moment;” an immediate and instinctive reaction that may influence the balance of his or her grading.
You can take advantage of this tendency with topic headings that reflect the call of the question, whenever possible. Try this exercise and see if you don’t agree.
Pretend you’re grading Essay Question 5 from the February 2009 bar exam. http://calweasel.com/sites/default/files/February%202009%20Essays%20and%20Sample%20Answers.pdf
The call of this contracts question is:
What arguments can Developer make, and what is the likely outcome, on each of the following points?
1. Developer did not breach the contract with Builder.
2. Developer’s performance was excused.
3. In any event, Builder did not suffer $700,000 in damages.
Now pretend that you have two answers in front of you. Each answer has received a consensus grade at grader calibration sessions – one passed, the other did not. You have 60 seconds to decide which is which. (Don’t worry…it’s never really done this way, but bear with me.)
Answer 1’s topic headings read:
– Issue: Contract Formation
– Issue: Parole Evidence
– Issue: Mistake/Ambiguity
– Issue: Mitigation
Answer 2’s topic headings read:
– Developer did not breach the contract with Builder
– Developer’s performance was excused
– Builder did not suffer $700,000 in damages
Which answer did you chose?
If you chose Answer 2, I’m with you. Based on my 60-second scan, I already know two things about Answer 2 that I don’t know about Answer 1: That it will attempt to answer the precise questions put to it in the call; and that so far at least, it’s likely to be “logical,” “lawyer-like,” and better organized. Answer 1 has shown me a recognition of the question’s subject matter – nothing else.
