Office of Academic Success

Cardozo School of Law

Essay Pre-writes

Please note that the pre-writes contained in this packet are only meant to be examples of how
you can write essays on certain topics. This is not an exhaustive list of all possible essays that
you might see on the bar exam. Additionally, depending on the essay questions you see on the
bar exam, these pre-writes could be complete answers, or they could just be a small portion of a
larger answer. It is important that you use this packet in the way it is meant to be used – as a
guide, and not as a static list of essay rules to be memorized and repeated on the bar exam.

This packet is meant to help you in formulating your own answers to these and other topics. If
you see law in this packet that is stated differently, or inconsistent with, the law you are learning
from your commercial bar review company, follow the law you are learning with that company.
Use these as examples of proper IRAC form, and of the “rule funnels” that you should be
including on your essays. After reviewing these pre-writes, try making your own for other
heavily tested essay topics not included in this packet.
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Cardozo School of Law

Torts

This prewrite is for when you spot negligence as the main issue.

Always start with the main rule:

To bring a claim for negligence, the plaintiff must show that the defendant owed a duty to the
plaintiff, who was foreseeable, that the defendant breached that duty, that the breach was the
actual and proximate cause of the plaintiff’s injuries, and that the plaintiff was in fact injured.

Then…..

If duty is the issue:

Defendants owe a duty to reasonably foreseeable victims of their carelessness. Here (discuss
whether P was a reasonably foreseeable victim).

(Despite the lack of a duty) The other elements of negligence have been met because D did not
act like a reasonably prudent person should have, his actions were the but-for cause of P’s
injuries and P’s injuries were a foreseeable result of D’s breach, and P was injured. (However,
because there was no duty, there can be no claim for negligence) OR (Therefore, all of the
elements of negligence have been met and there can be a claim).

If breach is the issue:

Here, D owed a duty to P because P was a foreseeable victim of D’s carelessness. However,
one has a duty to act as a reasonably prudent person would in similar situations. (Add any
special duty rules here). D did/not breach his duty because (discuss breach).

(If there is no breach, the discussion ends there. If there is a breach, move on) The other
elements of negligence have been met because D’s actions were the but-for cause of P’s
injuries and P’s injuries were a foreseeable result of D’s breach, and P was injured. Therefore,
all of the elements of negligence have been met and there can be a claim.

If proximate cause is the issue:

Here, D owed a duty to P because P was a foreseeable victim of D’s carelessness. He
breached that duty because he failed to act like a reasonably prudent person. There is actual
causation because but for these actions, P would not have been hurt. And there is an injury
because P was injured.

However, the issue here is whether there was proximate causation, meaning whether the injury
was a foreseeable result of D’s breach. Here, (discuss the foreseeability of the injury).
Therefore, there (is/is not) a claim for negligence because all of the elements (have/have not)
been satisfied.

If actual cause is the issue:

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Here, D owed a duty to P because P was a foreseeable victim of D’s carelessness. He
breached that duty because he failed to act like a reasonably prudent person. This is proximate
causation because it is foreseeable that as a result of D’s breach, P would be injured. And
there is an injury because P was injured.

However, the issue here is whether there was actual causation, meaning that the breach was
the but-for cause of the injury. Here, (discuss but-for and the chain of causation). Therefore,
there (is/is not) a claim for negligence because all of the elements (have/have not) been
satisfied.
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Cardozo School of Law

Property

This prewrite is for if you spot Adverse Possession as the main issue.

Adverse possession requires physical possession of the land that is continuous for the statutory
period of time, actual, open and notorious, exclusive and hostile to the true owner’s interest. If
the fact pattern gives you a statutory time period, state that here. If not, state that under
common law, the period of time is 20 years. If these elements are met, the possession of
land can ripen into title.

Continuous means the adverse possessor must have used the property as a true owner would
have for the statutory period of time. Here, ----------- possessed the land for (number of years),
so this requirement is/isn’t met. If there is an issue with continuous use (ie: if the property
is a summer home and the possessor only lived there 2 months a year), discuss whether
that is how a true owner would use it here.

Actual means that the possessor is physically on the land. Here, --------- was/wasn’t physically
possessing the land. If the fact pattern indicates that there was constructive possession,
discuss that here.

Open and notorious means the adverse possession must have been apparent to a reasonable
true owner. Here, -------‘s possession was/wasn’t apparent to ------------ because….

Exclusive means the adverse possessor excluded all others. Here, ---------- excluded/did not
exclude others because….

Hostile means the possession was not with the true owner’s permission. Here, --------, the true
owner, did/did not give permission for ----------- to be on the land. If the fact pattern tells you
that this jurisdiction requires that the possessor be acting under a claim of right, discuss
whether or not the possessor had a good faith belief that they had a legitimate right to
the property here.

Therefore, ----------- did/did not gain titled to the property through adverse possession.

Note that the adverse possessor must be POSSESSING not USING the property. Using
property with all those elements (continuous, open, exclusive and hostile) will probably result in
an easement by prescription (you can just think of it as an easement by adverse use if that
terminology is easier to remember). There is a difference between possessing and using in
property law. “Using” will not result in ownership (of anything except a right to go on the
land/easement if all elements are met) while possessing will result in ownership (if all elements
are met).
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Cardozo School of Law

Evidence

This pre-write is for when you spot the admissibility of an out of court statement as the
main issue

To be admissible, all evidence must be relevant, meaning it must prove or disprove a material
fact. Here, [insert statement] is/is not relevant to show [insert fact]. (*Note: if you believe that
the evidence might be prejudicial, insert these sentences: However, even relevant evidence
may not be admissible if its probative value is outweighed by its prejudicial value. Here, [insert
analysis of statement’s probative value against its prejudicial value]. Therefore, the statement
is/is not admissible.)

Hearsay is an out of court statement offered to prove the truth of the matter asserted. Hearsay
is not admissible unless an exception to the hearsay rule applies. Here [insert statement] was
said out of court by [insert declarant]. If the statement is being admitted to show truth, here
[insert facts to be proven true], then it would be inadmissible as hearsay.

Plaintiff/prosecutor/defendant is trying admit this statement for its truth because s/he wants the
statement to show [the hearsay reason]. However, in this case there is a relevant exception to
the hearsay rule. Under the Federal Rules of Evidence, [state rule for exception]. Applying that
exception, this statement would/would not be admissible because [insert factual analysis of the
exception]. Therefore, the statement is admissible as an exception to the hearsay rule/is
inadmissible hearsay. **

The statement at issue may be admitted to show something other than the truth of the matter
asserted, such as to show [another reason]. Here, if Plaintiff/prosecutor/defendant is merely
trying to admit this evidence to show the declarant was [the other reason], then it would be
admissible, because the statement is not being offered to prove the truth of what is being
asserted and is therefore not hearsay.

Therefore, the statement should/should not be admissible.

(**Note: if you are absolutely sure that the statement is NOT being offered for the truth, then you can skip
this paragraph. In that case, your last paragraph should start with: The statement at issue is not being
admitted to show the truth of the matter asserted because it is being admitted to show [another
reason]. If you do this, you should still define hearsay – your first two paragraphs remain the same. Only
do this if this is a smaller sub-issue and you are certain that the statement is only being offered for a non-
hearsay reason. In most main issues involving hearsay, there will be a relevant hearsay exception that
you should discuss, regardless of whether or not it will ultimately work, before you discuss non-hearsay
reasons for admitting the statement.)
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Cardozo School of Law

Secured Transactions

This prewrite is for when you issue spot attachment/ perfection as the main issue.

Always start a secured transactions question with the following: UCC Article 9 controls a
creditor’s security interest in a debtor’s collateral.

Attachment establishes the creditor’s right against the debtor and some third parties who have
knowledge of the security interest. Attachment prevails over most unsecured or normal trade
creditors. Attachment requires the following three elements: 1) a written security agreement (in
writing, collateral and collateral sufficiently identified), 2) rights in the collateral, and 3) value
given. Perfection is the highest form of a creditor’s protection for collateral rights against third
parties who may also have claims against the debtor’s property. Perfection requires attachment
plus one of the following five methods of perfection: 1) Possession, 2) control, 3) filing, 4) mere
attachment (for PMSI/consumer goods), and 5) Title certificate notation. {define the elements
of whichever ground of perfection you will discuss}

Here, there was/wasn’t a security agreement because {insert relevant facts}. Further, the
debtor did/didn’t have rights in the collateral because {insert relevant facts}. Additionally,
value was/wasn’t given when {insert relevant facts}. Therefore there was/wasn’t attachment.

Even if you find that there wasn’t attachment discuss whether there could have been
perfection in case you were wrong…

Here, there is/ isn’t perfection because there is attachment plus {pick one of the 5 grounds}.
Here, {pick the relevant ground} is/isn’t satisfied because {insert relevant facts}. Therefore
there was/wasn’t perfection.
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Cardozo School of Law

Wills

This prewrite is for when you issue spot will contest as the main issue.

Contesting a will usually requires that a petition be filed within four or six months immediately
following the opening of probate. The petition must specify the external validity issue to be
litigated. Only parties who would gain if the will was denied probate have standing to contest. A
successful will contest must be proven by clear and convincing evidence. The burden of
persuasion is on the contestant. There are 5 grounds to contest a will: 1) formation issues (not
in writing, not signed, not properly witnessed, etc.), 2) lack of testamentary capacity, 3) fraud in
the execution, 4) fraud in the inducement, and 5) undue influence. {define the elements of
whichever ground of contest you will discuss}

Here, the contest was/wasn’t filed timely because {insert relevant facts}. Here, the petition
did/didn’t specify the validity issue to be litigated because {insert relevant facts}. {Person
challenging will} was/wasn’t a party who would gain if the will was denied in probate because
{insert relevant facts}.

Next, get into the specific kind of contest. Repeat the same fact to law analysis for each
and every element associated with the relevant ground of contest.

In conclusion, {person contesting the will} did/didn’t prove by clear and convincing evidence
that the will was invalid based on {ground for contest}.
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Cardozo School of Law

Family Law

This prewrite is for when you issue spot equitable distribution as the main issue.

In an action for divorce or dissolution of a marriage, absent a valid prenuptial agreement, the
court will divide all property in a just and equitable distribution. In determining what is just and
equitable the court will consider 1) the length of the marriage, 2) the economic circumstances of
the spouses at separation, including earning capacity, living expenses, and other other available
resources, and 3) the amount of property. Additionally, the court must make determinations
about whether property is separate or joint. All income and earnings during the marriage
(including compensation benefits) is considered joint property and are subject to division.
Separate property is not subject to equitable distribution if it has remained completely separate
and any increase in value was due to passive appreciation.

Here, husband and wife were married for {x number of years}, this is a long/short amount of
time and favors more of an equal/unequal distribution of assets. Further, husband makes {x
amount of money}, has {x amount of living expenses}, and the following additional
resources {insert resources} while wife makes {x amount of money}, has {x amount of
living expenses}, and the following additional resources {insert resources}. This tends to
show that husband/wife deserves more/less under equitable distribution. There is/isn’t a lot of
property in the marriage. Additionally, {insert item} is separate property because {insert
relevant facts} and is therefore not subject to equitable distribution. Further, {insert item} is
marital property because {insert relevant facts} and therefore is subject to equitable
distribution.

For these reasons, {these things} are subject to equitable distribution and should be divided
{in this way} and {these things} are not subject to equitable distribution and should remain
with husband/wife.
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Cardozo School of Law

Conflicts

This prewrite is for when you issue spot choice of law as the main issue.

Under the Restatement (Second) of Conflicts of Laws, most choice of law problems are
resolved by determining which state has the “most significant relationship” to the issue in
question. In making this determination, the court considers general factors as well as other
factors that are specific to certain areas of law. These are the seven factors the court considers
1) the forum’s policies, 2) the interested states’ policies, 3) the needs of the interstate and
international systems, 4) protecting the parties expectations, 5) the basic policies of the relevant
field law, 6) uniformity, certainty and predictability, and 7) the law’s ease of being determined
and applied. {define further any of these factors that will be discussed in detail in your
analysis}

Here, {discussion of factor 1}. Further, {discussion of factor 2}. Additionally, {discussion of
factor 3}. {discussion of factor 4}. {discussion of factor 5}. {discussion of factor 6}.
Finally, {discussion of factor 7}. {note: some of these factors will be more at issue than
others and therefore require a more detailed discussion.

Therefore, {State’s} law should/shouldn’t be applied.

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Cardozo School of Law

Corporations

This prewrite is for when you issue spot the business judgment rule as the main issue.

Directors and officers must exercise due care and diligence in managing the corporation. The
“prudent business person” standard of care test is objective. Individual liability is most likely to
occur if the behavior at issue was reckless or grossly negligent. Honest, good faith errors of
judgment made after reasonable investigation do not usually lead to personal liability. The
business judgment rule provides that directors and officers are entitled to rely upon information
and assurances from officers, employees, and committees unless they know reliance is
unwarranted. The test for the trier of fact is whether an ordinarily prudent business person under
similar circumstances could have reached the same conclusion. There must have been a
reasonable investigation made and the analysis of the investigation should have been
undertaken and deliberated by the Board and/or management.

Here, director/officer did/didn’t reasonably rely upon information and assurances from
officer/employee/committee member because {insert relevant facts}. Further,
director/officer did/didn’t act as a reasonably prudent business person under similar
circumstances because {insert relevant facts}. Additionally, the board/management did/
didn’t do an analysis of the investigation when {insert relevant facts}.

In conclusion, director/officer’s actions did/didn’t violate the business judgment rule.

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Cardozo School of Law

Constitutional Law

This prewrite is for when you issue spot substantive due process as the main issue.

When the government is restricts or attempts to restrict a liberty interest, a challenge may be
brought under the Due Process Clause of the 14th Amendment. In order to determine whether
the Due Process Clause has been violated, first it must be decided whether the right in question
is a fundamental or a non-fundamental right. A fundamental right is subject to strict scrutiny, the
test for which is the government’s action must be necessary in order to achieve a compelling
purpose, and must be the least restrictive way to regulate an individual. A non-fundamental right
is subject to a rational basis review, the test for which is the government’s action must be
rationally related to a legitimate government interest. It does not have to be the least restrictive
way to do something.

Here, {the right in question} is/isn’t a fundamental/non-fundamental right because {insert

relevant facts}. Therefore, the test of {strict scrutiny or rational basis} should applied. Here,
{strict scrutiny or rational basis} is/isn’t satisfied because {insert relevant facts for both
parts of the test}.

In conclusion, the law does/doesn’t violate the Due Process Clause of the 14th Amendment.
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Cardozo School of Law

Criminal Law

This prewrite is for when you issue spot robbery as the main issue.

A Robbery conviction requires larceny, and also the property must be taken 1) from the owner’s
person or presence, and 2) through intimidation or force. Larceny requires 1) a trespassory
taking, and 2) carrying away, of 3) tangible personal property, 4) in the possession of another,
with the intent to deprive permanently.

Here, there was/wasn’t a trespassory taking because {insert relevant facts}. There
was/wasn’t carrying away when {insert relevant facts}. Here, the tangible personal property of
another was/wasn’t satisfied because {insert relevant facts}. The {property} was/wasn’t in
the possession of another because {insert relevant facts} and D did/didn’t have the intent to
deprive permanently because {insert relevant facts}. Therefore, there was/wasn’t a larceny.
Further, the property was/wasn’t taken in the owner’s person or presence because {insert
relevant facts}. Finally, D did/didn’t use intimidation or force because {insert relevant facts}.

For these reasons, D is/isn’t guilty of robbery.

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Cardozo School of Law

Criminal Procedure

This prewrite is for when you issue spot search warrants as the main issue.

Under the 4th Amendment, a valid search requires probable cause and either: 1) a warrant
issued by a “neutral and detached” magistrate; or 2) a recognized exception to the general
requirement of a warrant. Any trustworthy information may be considered in determining
whether probable cause exists, even if the information would not ultimately be admissible at
trial. There are several exceptions to the warrant requirement. {Give rules for any relevant
exceptions here}.

Here, there was/wasn’t probable cause because {insert facts relevant to the
trustworthiness of the information}. Further, a warrant was/wasn’t issued by a neutral and
detached magistrate because {insert relevant facts}. Here, {insert warrant exception}
is/isn’t satisfied because {apply to each requirement for the exception listed}.

Therefore, the action did/didn’t violate the 4th Amendment.

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Civil Procedure

This prewrite is for when you issue spot personal jurisdiction as the main issue.

A court may not assert jurisdiction over a person unless: a) the person is given adequate notice
of the action and an opportunity to be heard; and b) the person has at least minimum contacts
with the state where the court sits. The following are ways to obtain personal jurisdiction over a
defendant: 1) D was present in forum state when process was served on him, or 2) the forum
state’s long-arm statute provides for jurisdiction over D AND one of the following is true a) D is
domiciled in the forum state, b) D consented to be sued in forum state, c) D owns property in the
state or d) D regularly transactions business in the state, or 3) D’s voluntary contact with the
forum state are systematic and continuous, or 4) the cause of action arises out of D’s contacts
with the forum state. Further, jurisdiction in the forum state must be reasonable and comport
with traditional notions of fair play and substantial justice.

{For PJ analysis: start from the top and apply to each way of obtaining PJ until you find
one that it is satisfied. Then, make sure it comports with fair play and substantial justice.
If you ultimately end up concluding there is no PJ you will have applied to each way of
obtaining PJ.}

Therefore, there is/isn’t PJ over D.

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Contracts

This prewrite is for when the question asks about what damages a party is entitled to under
common law (contract for services). The answer under the UCC (K for the sale of goods) would
be similar in format although some of the rules would be different.

*Remember, if the fact pattern says that the court found there was a valid contract, then you should not
spend any time discussing contract formation. This prewrite assumes that K formation and breach are
both already established.

Always start with what law the contract is governed under (UCC or Common law), and why, and
then:

Expectation damages give the injured party the benefit of their bargain, by placing them in the
same position they would have been in had the contract been fully executed. Here…..(discuss
what the K as performed would have been and what it would take to get them to that position).
If there is a large disparity between the cost of completion versus difference in value,
discuss that here. A willful breach would make cost of completion the appropriate
remedy, even if it is much greater than difference in value.

Contract damages must be foreseeable to be recoverable. Damages are foreseeable if a

reasonable person in the position of the breaching party would have known at the time of the
contract formation that the damage were likely to occur as a result of the breach. Here……...

If the non-breaching party saved money due to the breach, discuss that here. Costs
avoided are subtracted from the expectation amount.

Then - use the facts to spot your issues! Here are some examples of other damages that
should be discussed:

If there is a way the non-breaching party could have lessened their damages, talk about
mitigation. Mitigation requires the injured party to take reasonable steps to reduce damages.
However, the alternative must not be substantially different or inferior. Here…...

If the non-breaching party incurred lost profits or other damages as a consequence of

the breach, talk about consequential damages. Consequential damages are any damages
that result from the breach, and can include lost profits. Consequential damages must be
reasonably foreseeable at the time of the contract formation, and must be proved with
reasonable certainty to be recoverable. Here……

If the non-breaching party incurred costs arranging for a substitute transaction, tak
about incidental damages. Incidental damages are the costs incurred when arranging for a
substitute transaction, and are always recoverable. They are not subject to any foreseeability
requirement. Here…..