What You Can Learn by Not Leaving Your Putts Short
With the Masters taking place this weekend, I can’t help but to think how the first major championship of the year is to the professional golfer as the bar exam is to the law student.
There can be a lot similarities between golfers preparing for and approaching August National Golf Club and examinees preparing for and approaching the bar exam. I won’t bore you with all comparisons at this point. But I do want to point out one.
Growing up, playing golf with my father, he would always tell me, “Never leave a birdie putt short.”
Why, I initially asked?
The answer was obvious: 100% of short putts never go in the hole.
So my father told me to putt the ball so that it would roll a foot or two beyond the hole (that is, if it didn’t make it into the cup first). That way, the ball at least has the possibility of going in, and if it didn’t, I could at least see the break in the green as it rolled past the cup.
But it was the first reason that’s more important—i.e., I need to give myself the chance to make the putt. And the only way the ball has a fighting chance of making it into the hole is if, at a minimum, it actually reaches the hole.
When it comes to the bar exam, particularly the multiple-choice portion of the exam, give yourself a fighting chance of getting questions right. That means being aware of answer choices that can never—ever—be correct.
These answer choices are what I refer to as “sucker picks” in the courses I teach.
There are lots of them, and you know them. They are the answer choices that usually contain misstatements of the law. As a result, they can never be right. Just like the short putt that can never make it into the hole, an answer choice that contains a misstatement of the law can never be correct.
While it’s usually easy to identify answer choices that contain misstatements of the law, here are just a few to pay attention to.
Intentional infliction of emotional distress. Be careful when confronted with an answer choice that reads something like this: “The defendant is not liable for intentional infliction of emotional distress because the defendant did not have the requisite intent.” An answer choice like this is almost always incorrect because intentional infliction of emotional distress does not always require the element of intent (even though it is an intentional tort). Remember, intentional infliction of emotional distress requires either intent or recklessness. So, even if the defendant lacks intent, the lack of intent does not preclude the defendant from being liable for intentional infliction of emotional distress because the defendant can still act with the requisite recklessness necessary to find a valid cause of action for intentional infliction of emotional distress.
Levels of scrutiny. If you know the different levels of scrutiny for examining Due Process and Equal Protection questions, then you won’t select bad answer choices here. Make sure you know the kind of government interest and the relationship to the law for strict scrutiny, intermediate scrutiny, and rational basis. And know whether the challenger or the government has the burden under each level of scrutiny. For example, examiners seem to mix up the government interests and the relationships, as well as the burdens, to the appropriate level of scrutiny. The following examples are just a sample of how examiners might try to confuse examinees. But, remember, none of these answers choices can be correct—ever—because they’re misstatements of the law:
“The government has the burden to show that the law is rationally related to achieve a legitimate government interest.” An answer choice like this is always wrong because the challenger—not the government—has the burden under rational basis.
“The government has the burden to show that the law is substantially related to achieve a compelling government interest.” An answer choice like this is always wrong because it conflates a part of the rule for intermediate scrutiny (“substantially related”) with a part of the rule for strict scrutiny (“compelling government interest”). Be mindful of other kinds of conflations with other levels of scrutiny.
“The government has the burden to show that the law is compelling to achieve a necessary government interest.” An answer choice like is always wrong because it inappropriately interchanges the kind of government interest with the kind of relationship that’s required. In other words, under strict scrutiny (as in the example used here), the law must be necessary (not “compelling”) to achieve a compelling (not “necessary”) government interest. While the key trigger words exist in this example, make sure they exist in the correct places.
Dying declarations. Don’t fall for an answer choice like this: “The dying declaration exception to the hearsay rule does not exist because the declarant did not die.” While the declarant must be unavailable for the dying declaration exception to be applicable, the declarant doesn’t need to die. Of course, if the declarant is dead, the declarant is unavailable. But there are other ways for the declarant to be deemed to be unavailable. For example, the declarant might be unconscious, refuse to testify, etc. Therefore, the fact that the declarant didn’t die, as indicated in the example, doesn’t preclude the applicability of the dying declaration exception.
The above examples are just a small fraction (just three out of a potentially infinite list) of “sucker picks”—those answers that can never be correct, regardless of the facts in the hypothetical. It’s impossible to provide examples of all “sucker picks.”
But here’s the point. Don’t select an answer choice that can never be right. Give yourself a fighting chance of getting the question right. In other words, don’t leave your putt short. A short putt never goes into the hole.
