ESSAY WRITING WORKSHOP

Mike Sims, Esq.

FOUR THINGS THE ESSAYS ARE TESTING

1. Can you figure out your client’s problem, or _________________________________

2. Can you figure out what rule is relevant to the problem, or ______________________

3. Can you _____________________________________________________ to your rule,

and

4. Can you ____________________________________.

THREE THINGS EVERY ANSWER MUST DO

1. _______________________________________________________________.

2. _______________________________________________________________.

3. _______________________________________________________________.

Three words that will help you do that

1. _______________________________________________________________.

2. _______________________________________________________________.

3. _______________________________________________________________.

THREE STEPS TO MAXIMIZING YOUR ESSAY SCORE

1. _______________________________________________________________.

2. _______________________________________________________________.

3. _______________________________________________________________.

Copyright © 2017 by BARBRI, Inc.

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Question 1

Biddle, Cooper, and Dogwood were equal partners in a home construction business known as
Best Builders. The written partnership agreement provided that each firm purchase in excess of
$1,000 must be authorized in writing by at least two of the partners. Biddle was designated as
Treasurer and was responsible for paying all of the firm’s bills.

Unknown to Biddle and Dogwood, Cooper placed three separate orders on different dates for the
following purchases in the firm’s name with delivery to be made upon payment of the seller’s
invoice submitted to Best Builders: (1) a $500 electric saw, (2) $2,000 worth of siding materials
and (3) a $900 ladies’ watch from Victor Vendor who was the operator of a jewelry store and
hardware-building supply business. Biddle had previously told Victor Vendor that each purchase
order for Best Builders in an amount over $1,000 must be signed by at least two of the partners.

Upon receipt of the invoices from Victor Vendor, Biddle refused to issue a firm check for any of
the items ordered by Cooper on the ground that none of the purchases had been authorized by the
partnership.

What liability does the partnership have to Victor Vendor with respect each of the purchases?
Give reasons.
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Answer 1

The partnership will be bound to pay for the saw but will not be bound to pay for the
siding or the watch.

The ability of a partner to bind his partnership when dealing with third parties is
governed by the law of agency. An agent can bind his principal only if he as actual or apparent
authority to act. Actual authority is the authority a partner reasonably believes he has based
upon the partnership agreement or communications between the partners. Apparent authority
exists when a partner acts in the ordinary course of the partnership business or in the kind of
business carried out by the partnership. However, apparent authority does not exist if the partner
had no authority to act for the partnership in the particular matter, and the person with whom to
partner was dealing knew or had received notification that the partner lacked authority.

Here Cooper had actual authority to make purchases for partnership purposes for up to
$1,000. Thus, he had actual authority to purchase the $500 saw. Cooper lacked actual authority
to purchase the siding, as the purchase was for over $1,000. Further, because Vendor knew of
the two-signature requirement, he could not reasonably rely on Cooper’s position as a partner to
create apparent authority. Similarly, Cooper lacked both actual and apparent authority to buy the
watchChis actual authority extended only to items to be used by the partnership, and he lacked
apparent authority because it would be unreasonable to rely on his partnership position for
authority since the watch is obviously outside the scope of the partnership needs.

Question 2

Herman Handyman was mowing his lawn one Saturday morning. When the lawnmower began
vibrating uncontrollably, Herman glanced down at the mower and noticed that one of the four
bolts attaching the engine to the mower chassis was missing. Herman unscrewed one of the
remaining bolts, placed it in his pocket, and drove to “Just Bolts.”

Upon arrival at Just Bolts, Herman proceeded immediately to the bolt aisle and began looking at
bolts. Pat, one of the store security guards, became suspicious of Herman because of the amount
of time Herman spent in the bolt aisle. After spending approximately thirty minutes comparing
the used bolt with the new bolts looking for the right bolt, Herman became frustrated, placed the
used bolt in his pocket, and walked quickly toward the exit. Pat saw Herman place the bolt into
his pocket and believed Herman was stealing the bolt. Pat raced after Herman and without saying
a word to Herman, Pat threw him to the floor. As a result of the fall, Herman was rushed to the
hospital, kept overnight, and released the next morning.

A week later, Herman sued Pat, alleging that he had been battered by the security guard. Explain
what defenses, if any, Pat could raise to Herman’s allegation and the probability of the success of
those defenses.
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Outlines

COMPONENTS OF A WINNING ANSWER

1. _______________________________________________________________.

2. _______________________________________________________________.

3. _______________________________________________________________.

4. _______________________________________________________________.

5. _______________________________________________________________.

CONCLUSION

Defined: ________________________________________________________________.

How do you do it: _________________________________________________________

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Your conclusion to Herman Handyman: _________________________________________

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Answer 2

Conclusory
Answer: Pat has no viable defenses because he committed a battery against Herman and
neither the defense for recapture of chattels nor the shopkeepers’ privilege will be
available since Pat used unreasonable force in detaining Herman.

Good Answer:

[Conclusion] Pat could raise two defenses against Herman’s allegations: recapture of
chattels and shopkeepers’ privilege. However, these defenses will fail. [Issue] At issue is
whether Pat used reasonable force to detain Herman.

[Conclusion] Herman can make out a prima facie case for battery against Pat. [Rule] A
person commits battery when he causes a harmful or offensive touching of the plaintiff’s
person with an intent to do so. [Application of law to facts] Here, it is clear that Pat
intended to tackle Herman, he did tackle Herman, and the tackling harmed Herman to
such an extent that he had to spend the night in the hospital. Thus, a prima facie case for
battery is present.

[Conclusion] Pat does not have any viable defenses against the battery action. [Rule]
Since Pat was trying to prevent what he thought was a theft, the two most relevant
defenses that he could raise are recapture of chattels and shopkeepers’ privilege, but
neither defense will work here. A person may use reasonable force, including harmful or
offensive contact, to recapture chattels when in hot pursuit of one who has obtained the
chattels wrongfully, such as through theft. Similarly, a shopkeeper and his employees are
privileged to use reasonable force to detain a person whom they reasonably believe has
stolen the shopkeeper’s merchandise. [Application of law to facts] Here, Pat had
reasonable grounds to believe that Herman had stolen something. Herman, spent an
unreasonably long time in the bolt aisle and Pat saw Herman put a bolt in his pocket.
Therefore, under either defense he could have used reasonable force to detain Herman.
However, Pat did not use reasonable force. It is quite unreasonable to approach a
shoplifting suspect and throw him to the ground without asking him for an explanation of
his actions. Indeed, it would be unreasonable to throw a person to the ground even if he
admitted to shoplifting, unless the person refused to be detained. [Restatement of
conclusion] Here, Herman was not given a chance to explain before he was thrown to the
ground, so Pat’s use of force was unreasonable. No other defense is apparent on these
facts. Therefore, Pat has no viable defense against Herman’s action.
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ISSUE

Defined: An issue statement should be a short_________________________________________

statement that shows the examiner that you know exactly what you need to talk about to arrive at
the right conclusion.

Important Point: _______________________________________________________________!

Question 3

Rich and Paula were married in 2007. Throughout their marriage, Rich was an investor in real
estate, although he never had a steady job or any cash. Paula was employed throughout their
marriage as a credit manager for a department store and she supported the family for the most
part. Rich bought and sold properties in his own name, most of them without Paula’s knowledge.
He told Paula that money from properties she did know about was being “invested,” when he
really spent it gambling and buying presents for his girlfriend.

In the fall of 2014, Paula found out about Rich’s girlfriend and told him to vacate their residence.
Rich refused to move, so Paula moved in with her mother. As he had in the past, Rich charged
his clothes, food and anything else he needed and had the bills sent to Paula at her mother’s.
When Paula got the bills, she refused to pay, but did not cancel the accounts.

By December 2014, Rich decided he wanted a divorce, and Paula agreed to sign a separation
agreement. Rich talked Paula into signing it at his lawyer’s office without getting a lawyer of her
own. The separation agreement contained a disclosure only of the property that Rich thought
Paula knew about.

Paula asks you for legal advice. She is being sued by several stores for Rich’s charged purchases.
She also asks you to get her out of the separation agreement she signed with Rich.

Advise Paula as to:

1) the likely outcome of the lawsuits by the stores; and

2) the validity of the separation agreement;

Explain your answers.

 ESSAY WRITING WORKSHOP 7.

Issue 1)

TYPICAL: At issue is whether the stores will win their lawsuits against Paula.

GOOD: At issue_____________________________________________________

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Issue 2)

TYPICAL: At issue is whether the separation agreement is valid.

GOOD: At issue is___________________________________________________

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RULE OF LAW:

Defined: A full statement of the applicable governing principles

How do you do it? ____________________________________________________________

Organizing points on rules:

1. _____________________________________________________________________

2. _____________________________________________________________________

3. _____________________________________________________________________

4. _____________________________________________________________________
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What happens if you don’t know a rule? _____________________________________________

1. _____________________________________________________________________

2. _____________________________________________________________________

3. _____________________________________________________________________

APPLICATION OF FACTS TO LAW

Defined: ______________________________________________________________________

How do you do it? ______________________________________________________________

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Question 4

Hargrove and Lewis were on a backpacking tour through the Black Mountains in early
autumn. As dawn came, a fierce thunderstorm suddenly arose. Flashes of lightning filled
the sky and a savage downpour began. Hargrove and Lewis removed their backpacks,
which held all their food and spare clothing, so that they could travel faster. For the entire
day, they stumbled over the mountainous terrain in search of help or at least cover. Shortly
after noon, hail the size of cantaloupes began to batter the poor hikers. Incredibly, they
stumbled upon a small stone and wood hut that appeared to be unoccupied. With a rock,
they smashed in the front door and entered the hut. The hut was well-supplied with canned
goods, and Hargrove and Lewis each ate two cans of hash they found in the pantry.

The next morning, dawn came bright and clear. Hargrove and Lewis studied their map to
determine the way to town. Hargrove returned to the pantry and filled his pockets with
boxes of dates and a dozen granola bars.

While Hargrove was inside, Vaughan, the owner of the cabin, drove up and saw Lewis
standing near the door of the hut. Vaughan jumped from his car with a rifle and said to
Lewis, “One move and you’re history.” Lewis took one step toward Vaughan. Vaughan
fired two shots and nailed Lewis in the leg, dropping him. Vaughan reloaded and moved
toward Lewis.
 ESSAY WRITING WORKSHOP 9.

Hargrove came out of the hut and discovered Lewis on the ground, moaning. He looked up
and saw Vaughan with the rifle raised to his shoulder, aimed at Lewis. Hargrove pulled out
his hunting knife and flung it at Vaughan. Hargrove’s knife hit Vaughan in the forearm and
Vaughan dropped the rifle.

After investigating the events, the state authorities presented the facts to a grand jury. The
following indictments were lawfully returned against the following people:

Lewis: Criminal trespass

Theft of the hash

Hargrove: Theft of the dates and granola bars

Felonious assault on Vaughan

Vaughan: Attempted murder of Lewis

For each named defendant, state the affirmative defenses, if any, each has to the criminal
charges lodged against him. Assume the elements of each crime are properly set out in the
indictments.

Answer 4

Lewis

[Conclusion] Lewis may raise the defense of necessity against the charges of criminal
trespass and theft of the hash. [Rule] It is a defense to criminal charges that the person
engaged in criminal conduct as a result of pressure from natural forces and that the
person reasonably believed that the conduct was necessary to avoid a greater harm.

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Hargrove

[Conclusion] Hargrove can assert necessity in defense of the food he took, and defense
of others in defense of the assault charge. [Application to Rule previously stated] The
problem with the necessity defense for Hargrove’s theft is that he took food after the
storm had ended and after he and Lewis had plotted their course to town. [Conclusion]
Thus, it appears that the oppressive natural force was gone and the defense will fail.

[Conclusion] Hargrove will almost certainly be successful in asserting the defense of

defense of others as to the assault charge. [Rule] A defendant may successfully assert the
defense of defense of others if it was reasonable to believe that the person defended had a
right to use the force that the defendant used. Some courts require more – that the person
defended must have had an actual right to use the force. Some courts also require a
special relationship (e.g., familial) between the person defended and the defender. It is
doubtful that these additional elements would be required here.

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 ESSAY WRITING WORKSHOP 11.

Vaughan

[Conclusion] Vaughan cannot successfully assert any affirmative defense against the
charge of attempted murder. [Rule] The defense of self-defense is available when the
defendant was without fault, was confronted with unlawful force, and was threatened
with imminent death or great bodily harm.

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[Addressing all LSF’s] It should be noted that Vaughan still might not be found guilty of
attempted murder because it is doubtful that the state can show a necessary element.
[Rule] To prove attempted murder, the state must prove that Vaughan fired at Lewis with
the actual intent to kill him. [Application] Given the fact that Vaughan hit Lewis in the
leg and did not fire a second shot to finish him off, it might be inferred that Vaughan
intended only to incapacitate Lewis.
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ADDRESSING ALL LEGALLY SIGNIFCANT FACTS – ADVANCED SPS

Outcome: ____________________________________________________________________

Analysis: _____________________________________________________________________

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A motorist was driving to a luncheon in a car that he knew did not have operating headlights. On
the way there he was rear-ended by another driver who had been driving 20 m.p.h. over the
speed limit posted on that stretch of road. He suffered personal injuries and his car was
extensively damaged. The jurisdiction makes it a misdemeanor to drive a vehicle that does not
have operating headlights.

If the motorist brings an action against the other driver and the above facts are established, will
he prevail?

(A) Yes, because the other driver violated the speeding statute, but the motorist’s damages will
be reduced because of his violation of the headlight statute.

(B) Yes, because the other driver violated the speeding statute, and the motorist’s damages will
not be reduced despite his violation of the headlight statute.

(C) No, because the motorist’s violation of the headlight statute constitutes negligence per se.

(D) No, because the motorist has not established that driving 20 m.p.h. over the speed limit
created an unreasonable risk of injury to others.
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PUTTING IT ALL TOGETHER

Question 5:

Adam, Barbara, and Carl are partners in a beverage distribution business. The partnership
distributes alcoholic and nonalcoholic beverages to bars and restaurants throughout State A. Jane
owns one of these bars. She also owns a number of pinball and video game machines, which are
located in many of the same bars and restaurants served by the partnership. In past dealings with
the partnership, Jane has dealt exclusively with Carl.

A number of beverage distribution businesses have expanded into the pinball and video game
machine business. To capitalize on this trend, Jane decided to sell her pinball and video game
machines. At about the same time, Adam, Barbara, and Carl decided that their partnership should
consider expanding into the pinball and video game machine business. The partners agreed that
Carl would approach Jane to obtain information about the number of machines she had for sale,
their locations and condition, and the associated revenues and expenses. However, because the
opportunity represented a new line of business, Adam and Barbara instructed Carl not to finalize
a deal with Jane without first discussing the terms with them.

When Carl met with Jane, she said that she owned 127 machines located in 72 bars and
restaurants. After they visited 50 bars and saw 98 machines, Carl decided he had seen enough.
Carl told Jane he would go back to the office to “run some numbers” and would call her soon.

Based on Jane’s representations and his observations of 98 machines, Carl decided to offer
$225,000 for all of Jane’s 127 machines. Jane accepted the offer and signed the contract Carl had
drafted. Carl signed the contract on behalf of the partnership. At no time, however, did Carl
consult with Adam or Barbara before finalizing the deal.

Is the partnership bound by the contract that Carl signed? Explain.

Helpful Rules:

1. Actual authority is the authority a partner reasonably believes he has based upon the
partnership agreement or communications between the partners.

2. Apparent authority exists when a partner acts in the ordinary course of the partnership
business or in the kind of business carried out by the partnership. However, apparent
authority does not exist if the partner had no authority to act for the partnership in the
particular matter, and the person with whom to partner was dealing knew or had
received notification that the partner lacked authority.
14. ESSAY WRITING WORKSHOP

Answer 5:

The partnership may be bound by the contract that Carl signed. At issue is whether Carl had
actual or apparent authority to enter into the contract.

Actual authority is authority that a partner reasonably believes he has based upon the partnership
agreement or communications between the partners. Here, Adam and Barbara specifically
instructed Carl not to finalize a deal with Jane without first discussing the terms with them.
Notwithstanding that communication, Carl signed a contract on behalf of the partnership to
purchase Jane’s pinball and video game machines without consulting with Adam or Barbara.
Thus, Carl lacked actual authority to enter into the contract with Jane.

However, the partnership may be bound on the contract if Carl had apparent authority. Apparent
authority exists when a partner acts in the ordinary course of the partnership business or in the
kind of business carried out by the partnership. However, apparent authority does not exist if the
partner had no authority to act for the partnership in the particular matter, and the person with
whom to partner was dealing knew or had received notification that the partner lacked authority.
Here, Jane had no reason to know Carl lacked authority to act for the partnership. In the past Jane
had dealt exclusively with Carl in his capacity as a partner of the beverage distribution business.
Therefore, the partnership will be bound if Carl’s purchase of the machines was an act for
apparently carrying on partnership business or business of the kind carried out by the
partnership. Here, the partnership business was beverage distribution. The purchase of the
pinball and video game machines generally would not seem to be an act for carrying on a
beverage distribution business. However, an argument can be made that the purchase was
apparently for carrying on that type of business. The facts indicate that a number of beverage
distribution businesses in the area had expanded into the pinball and video game machine
business, and Jane was aware of this fact. Thus, Jane could reasonably believe that the
partnership was expanding its business and Carl had the authority to purchase the machines.

Thus, the partnership may be bound by the contract Carl signed with Jane.