Now that we've covered the substance, that is, we've walked through each prompt and figured out what the right answers are, let's take a look at a representative excellent answer from the state of New York. All things considered, I think this is a very good answer and clearly scored well on the bar exam, but no answer is perfect. So, as we walk through it, I'll also be going to note places where I think it could have picked up just a few more points.

Prompt 1

So, right out of the gate, the essay provides a strong conclusion, namely, the court should dismiss the man's class action claim because, and we love to see that "because," the federal court has diversity jurisdiction under CAFA, which is permitted under 28 USC 1332.

Now, this is just what we want to see in the first part of our CRAC formula: a nice, clear conclusion with the word "because," all in a standalone paragraph right up front, and the test taker could even have bolded that statement just to really drive it home for the graders. But again, an opening like this is a great way to really hit the ground running in terms of picking up points.

And it probably put our grader into a good frame of mind as well, that is, the grader knows that this test taker is going to be clear and decisive. Now, from here, the essay moves into a new paragraph to provide the relevant rules, and my one quibble with this part of the answer is that we actually get more rules than we need.

So notice that the discussion first gets into the test for federal question jurisdiction, then the rules for diversity jurisdiction in non-class action cases, before finally turning to CAFA. Now, ideally, we wouldn't need to spend a whole long paragraph walking through all of those rules as they just aren't relevant. Remember, time is valuable on the exam, and we want to make sure that we are spending it all on the material that's going to get you the most points possible.

Now, that said, if, for whatever reason, you don't happen to remember the class action rules, then by all means, don't worry. Do this analysis. It's always the case in the bar exam that anything will be better than nothing. But if you are going to run through a non-class action subject matter jurisdiction analysis, it'd be great to see an answer that is organized a little more cleanly.

Notice that this essay kind of jumbles together the federal question analysis with the diversity jurisdiction analysis, and it would be better to separate those out more neatly. But following this discussion, we get to the paragraph about CAFA, and that's where all the magic happens with this answer. The essay correctly notes that a district court will be able to exercise jurisdiction under the Class Action Fairness Act. It then succinctly lays out the two most important rules when it comes to CAFA.

So, first, we need to have minimal diversity, and second, we need to satisfy the amount in controversy, which in this case is $5 million. Now, as a side note, the answer then mentions that a court must decline to exercise jurisdiction when a class involves a significant proportion of non-diverse class members.

But don't worry if you didn't think about that. The two important provisions are the ones that we just mentioned about minimal diversity and that hefty amount in controversy. Now, from here, we head to the all-important application, that's our A in CRAC. And I think the essay does a really nice job on this step, but I'd love to see a paragraph break to separate out the rules from the application.

So, remember, the grader is moving with celerity, as my Latin teacher used to say. Seriously, these graders need to move fast. So let's just give them a break and make it easy for them to see visually that you're now on a new part of that CRAC formula here.

Okay, now, for the application itself, notice that the essay does a really nice job of working through each sub-rule of CAFA. We've got that first, we've got that second, and that third, and that keeps things really well organized for the test taker, and again, it makes things easier on the grader.

Now, my one quibble with this analysis has to do with that first sentence, where the essay says that minimal diversity is met, because I think a fuller answer would have been helpful here. So, remember, the fact pattern doesn't actually tell us directly what states the class members are citizens of. Instead, it tells us where they live.

So a more complete answer that connects all those relevant dots would note the definition of citizenship for individuals, something like, "To be a citizen of a particular state, one needs to be a U.S. citizen and domiciled in that state. Here, because the complaint alleges that most, if not all, of the members are U.S. citizens and because 10,000 members of the plaintiff class live in State Y and 15,000 live in State Z, it seems safe to assume that at least one member of the class is a citizen of either State Y or Z. Therefore, we would have minimal diversity from Trident, which is a citizen of State X."

So that does a really nice job of showing the grader that you know the definition of citizenship, once again, for individuals. Now, that said, the answer then does a really great job on the amount in controversy discussion. It works through the amount of statutory damages per plaintiff and the number of plaintiffs, and so clearly shows why we have exceeded that $5 million threshold. And we get that word "because" again, which we love to see here.

And then it nicely wraps up by giving us a clear conclusion. Remember, that's the final part of our CRAC formula. And here it tells us, we get "because," "Because there's jurisdiction under CAFA, the court should not dismiss the class action for lack of subject matter jurisdiction." Now, my only quick thoughts here are as follows. I'd just get rid of that parenthetical; no need to hedge here and muddy a strong conclusion. And I'd break this whole sentence out into its own paragraph to end on a clear, strong note.

Prompt 2

Now, let's move on to the second prompt. This is the one that asks how the court should rule on the motion to dismiss for failure to state a claim upon which relief can be granted because of the state law barring class actions to recover statutory damages. Now, as you'll recall from our earlier discussion about the prompts, this one is really asking an Erie question, and the representative answer here does a nice job of teasing this out.

So, first, once again, the answer gives a crisp and clear opening sentence, which is really a conclusion. It says, "The court should deny Trident's motion for failure to state a claim." So that's all good, and it has the virtue of being the right answer here. And it then goes on to tell us the issue, namely, that we have to decide whether the federal rules apply over the state rules.

Now, it's great to signal to the grader that you distilled everything you read and really understood that this is an Erie question. It's just that we'd prefer that you use CRAC instead of that CIRAC because it gets the ball moving faster.

So, for example, the opening sentences could have said, "The court should deny Trident's motion for failure to state a claim. That's because the federal procedural rules for class actions are valid, and so they govern the case. Therefore, the federal court is not bound by the state's procedural law barring class actions to recover statutory damages, and the action should not be dismissed."

So that gives the full punchline right up front with a reason, and so the grader sees right away that you've got the right conclusion based on the right rule, which means you've obviously spotted the right issue.

Now, the next paragraph of this essay then moves into articulating the relevant rules, and this is always a challenge in Erie cases because there's a whole lot to say. Now, overall, I think this answer does a great job of laying out the relevant considerations. It veers a little bit off course at the end when it says that another test is whether a federal court applying the state procedural law would leave, and here, I think they mean lead, but don't worry about the typos, to forum shopping.

Now, this sentence is a little bit incomplete. The additional test that it's referring to, as you might recall, is really what we call that outcome determination test or outcome determinative test, and most important for our purposes, it's not relevant here. That's because it only comes into play when we don't have a federal rule on point. And, of course, we know the idea is, here, we absolutely do. So, I would say that the bulk of this paragraph is solid, but this extraneous part at the end could have been left at home.

Then the next paragraph does a really nice application for us, beginning with the word we love to see, "here," and it notes that Rule 23 governs class actions in federal court. Now, it could have put just a little bit more meat on those bones. For example, it could note that Rule 23 is valid and, therefore, it definitely applies.

And then I would love to see just a little bit more wrapping everything up with a bow, with a strong concluding statement, like, "Because Rule 23 applies, the class action may be maintained in federal court despite the contrary state law, and Trident's motion to dismiss for failure to state a claim upon which relief can be granted should be denied." Now, at this point, we've already done the heavy lifting to get to that conclusion. So, now, let's just drive it all home to the bar examiner by ending the essay on a clear and crisp note.

Prompt 3

Finally, we get to the last prompt, that's prompt 3, which tees up that really interesting standing question. So, once again, the answer opens up with a very clear conclusion for its topic sentence. "Here, the court should not dismiss the claim because of lack of standing." It then nicely goes on to identify the issue, namely, whether a state providing a statutory damages provision can provide an injury in fact for Article III purposes.

But just like with that preceding prompt, my only suggestion would be to open up with a conclusion that includes the word "because" in it. So, for example, "The court should not dismiss the claim for lack of standing because a state providing a statutory damages provision can provide an injury in fact for Article III purposes, and does so here." Again, the idea is that it's great to just close the loop for the grader right up front.

Now, the rest of the answer is excellent. The test taker moves into stating the rules in the next paragraph and lays them out in a clear and well-organized manner. And then, again, we get our application paragraph beginning with that magic word "here," and then nicely distills the issues by telling us that two of the three standing requirements are met, with reasons for why. And again, we love to see that word "because" in this application section.

Then the essay rightly notes that the harder question is whether that first element is met, and walks through the application with respect to that issue. It then makes a solid move at the end by providing a nice conclusion: "As such," and we love to see phrases like that, "the man has an injury in fact, and Article III standing." This is a really strong conclusion to a great answer overall.