Advocacy and BAR examination preparation

Strong lawyers address important unfavorable authority rather than pretending it does not exist. Counsel may argue that the authority is distinguishable, superseded, limited, incorrectly applied, or otherwise not controlling where a good-faith basis exists.

Ignoring controlling authority does not cause the authority to become embarrassed and leave. The court will probably find it anyway, and opposing counsel will be delighted to help.

Every filing asking the court to act should identify the relief requested. Depending upon the issue, counsel may seek dismissal, exclusion of evidence, amendment, protective relief, continuance, stay, vacatur, remand, modification, or another authorized result.

The requested remedy should fit the legal problem. If a typo can be fixed by amendment, asking the court to destroy the entire proceeding and rebuild civilization from the ground up may be considered slightly excessive.

A useful BAR examination should test legal reasoning rather than pure memory. Questions may contain irrelevant facts, competing rules, procedural traps, missing information, or several issues at once.

Students should expect to identify what facts matter, what authority controls, who is acting, and what stage of the proceeding has been reached. The exam should feel less like trivia and more like being handed a legal mess and told to make sense of it.

Before analyzing a problem, determine who is acting. A Military Judge, prosecutor, defense counsel, Assistant Judge Advocate General, Judge Advocate General, Deputy Judge Advocate General, Clerk, witness, party, commander, or system administrator may possess entirely different authority.

The same action may be lawful for one person and unauthorized for another. Never begin analysis without knowing whose conduct is actually being tested.

Determine whether the matter is at trial, on ordinary service appeal, at the certiorari petition stage, in merits review before the Judge Advocate General, in an extraordinary proceeding, or in post-judgment administration. Jurisdiction changes as cases move through these stages.

An Assistant Judge Advocate General may lack authority over a trial motion today and properly exercise appellate authority over the resulting judgment later. Timing is part of legal authority.

Procedural verbs matter. "Drafted" is not "filed." "Requested" is not "granted." "Petitioned" is not "certiorari granted."

"Stayed" is not "vacated." "Available" is not "authorized." "Administrative access" is not "judicial assignment." Many legal mistakes occur because somebody mentally upgrades what happened into something legally stronger than what the facts actually say.

If the question does not establish whether counsel knew evidence was false, do not assume knowledge unless the facts reasonably establish it. If a judge's relationship to a party is unclear, explain why that relationship may matter instead of inventing one.

A strong legal answer can acknowledge uncertainty. Sometimes the proper conclusion is that additional information is required before the element can be determined.

When a BAR question requires explanation, use a clear structure. Identify the issue, state the controlling rule, apply the rule to the facts, and provide the conclusion.

The answer does not always need literal headings reading "Issue" and "Rule," but the reasoning should follow a logical path. A clear three-paragraph answer is usually stronger than twelve paragraphs wandering around until one of them accidentally finds the law.

Do not assume rank creates judicial authority. Do not assume filing automatically grants relief.

Do not assume an appeal automatically stays everything. Do not treat certiorari as an appeal of right, and do not treat denial of certiorari as a merits precedent.

Do not confuse admissibility with weight, confidentiality with privilege, argument with evidence, or technical access with legal authority. Most importantly, do not invent a law because the real law is inconvenient.