Bar Council Written common mistakes
Bar Council Written · Understand the traps and how to avoid them.
Answering the question asked rather than the question set: drafting an opinion that resolves the client's commercial wish instead of the precise legal issue posed, so the examiner's stated instruction (e.g. 'advise on liability only') is ignored and the answer drifts into remedies or strategy.
Candidates under time pressure latch onto the first plausible issue and write from memory of a similar past problem, treating the prompt as a topic cue rather than a set of instructions. The habit is reinforced by practice under exam conditions where reading time is compressed.
What to do instead
Spend the first three to four minutes producing a one-line issue statement and a checklist of every instruction verb in the prompt (advise, draft, distinguish, evaluate). Before writing each section, re-read the checklist and delete any paragraph that does not serve a listed instruction. Practise by rewriting three past prompts into issue checklists without writing the answer.
Reciting case names and holdings without extracting the ratio and applying it to the facts, so the answer reads as a case list with the client's facts bolted on at the end.
Law school assessment rewards knowledge recall, and candidates carry that reflex into a professional exam where marks are allocated to application and reasoning. Memorised authority feels safe and consumes time that should go to analysis.
What to do instead
Adopt a fixed three-sentence unit for every authority: the principle in one sentence, the material fact that triggered it in a second, and the point of similarity or distinction with the client's facts in a third. If the third sentence cannot be written, the case is not relevant and should be cut.
Ignoring the civil and evidential consequences of a criminal analysis: advising on the offence and charge but not addressing burden and standard of proof, the admissibility of the confession or identification evidence, and the availability of exclusion.
Criminal law and evidence are studied as separate subjects, and candidates compartmentalise them, treating procedure as background rather than as the mechanism that determines whether the prosecution can prove its case.
What to do instead
Build a standing template for every criminal problem: offence elements, then proof (who bears the burden, to what standard, on which issue), then admissibility of each item of prosecution evidence, then exclusion and its consequences, then plea and sentencing considerations. Run the template on two problems before the exam until it is automatic.
Treating constitutional and administrative law problems as abstract discussion of doctrine rather than as a procedural challenge: failing to identify the correct remedy, the correct defendant, the time limit, standing, and whether judicial review or appeal is the proper route.
Candidates are comfortable with substantive principles such as legality and proportionality but have not internalised the procedural gateway, and the exam question often buries the procedural facts in a narrative that invites a doctrinal essay.
What to do instead
For every public law problem, write a five-line 'gateway box' before any substantive analysis: decision challenged, decision-maker, standing of the claimant, time limit and whether an extension is needed, and the remedy sought with its limits. Then analyse grounds only for the decisions that survive the gateway box.
Drafting clauses and documents in continuous prose without the structural features that make an instrument enforceable and unambiguous: no definitions section, inconsistent use of 'shall' and 'may', pronouns with unclear antecedents, and operative provisions mixed with recitals.
Candidates write the way they write essays, and drafting is the least practised skill on the syllabus. Under time pressure, prose feels faster than constructing a disciplined instrument with numbered clauses.
What to do instead
Memorise a skeleton for each instrument type on the syllabus (agreement, affidavit, notice, pleading, will) with fixed headings and ordering. In every drafting answer, use numbered clauses, a defined-terms block, one obligation per clause, and active voice with a named actor. Reserve five minutes at the end to read the draft as a hostile stranger looking for ambiguity.
Answering an ethics or professional conduct problem by stating the general duty (to the court, to the client, to confidentiality) without identifying the specific rule, the specific conflicting duty, and the specific course of conduct required, including disclosure to the client and withdrawal where necessary.
Candidates treat ethics as a soft topic and produce moral commentary. They also fear committing to a concrete instruction, so they describe the tension and stop rather than resolving it.
What to do instead
Use a four-step structure for every conduct problem: identify the duty engaged and its source, identify the competing duty, state the priority rule and why it applies on these facts, then state the concrete action (decline the brief, return the retainer, disclose to the client, apply to come off the record). End with what the lawyer must tell the client in writing.
Confusing property, land and equity concepts that share vocabulary: conflating legal and equitable interests, easements and restrictive covenants, leases and licences, and registered and unregistered disposition rules, then applying the wrong priority regime.
The three subjects overlap in terminology and are often revised together, so superficially similar terms collapse into one another. Candidates also memorise outcomes of leading cases without the statutory or doctrinal mechanism that produced them.
What to do instead
Build a one-page comparison table with columns for the interest, whether it is legal or equitable, how it is created, how it is protected on a disposition, and the priority rule for registered and unregistered land. Reconstruct the table from memory weekly and check it against the statute, not against notes.
Analysing a tort problem by naming every possible tort rather than selecting the cause of action that fits the damage: failing to classify the loss as physical, psychiatric, economic or reputational, and therefore applying the wrong duty and remoteness test.
Candidates revise torts as a list of separate topics and, faced with a mixed fact pattern, hedge by discussing negligence, nuisance and defamation in turn without deciding which governs.
What to do instead
Begin every tort answer by classifying the claimant's damage in one sentence, then state which cause of action that classification supports and why the alternatives fail. Apply duty, breach, causation and remoteness only within the chosen cause of action, and address defences and limitation before concluding on quantum heads.
Writing a case analysis or opinion without a reasoned conclusion: summarising facts and law, noting that 'the position is uncertain', and omitting a firm recommendation, the strength of the case, and the practical next step.
Candidates fear being wrong and hedge. They also mistake a survey of the law for advice, having never been required to commit to a position with reasons in academic work.
What to do instead
Draft the conclusion first, in three sentences: the likely outcome, the confidence level with the reason for any uncertainty, and the recommended next step. Then write the body only as the reasoning that supports those three sentences. Every paragraph must be traceable to the conclusion.
Managing time and structure badly: spending disproportionate time on the first question, writing narrative answers without headings, and leaving the compulsory or highest-weighted question until the end.
The paper rewards breadth across many domains, but candidates instinctively over-invest in the topic they know best. Without a written plan, headings are omitted and the examiner cannot find the reasoning.
What to do instead
Before the exam, decide a per-question time budget and a hard stop, and rehearse it in two full timed mocks. In the first two minutes of each answer, write the headings on the page and allocate minutes to each. Answer the compulsory question first regardless of preference, and leave the final five minutes of the paper for checking that every question has a conclusion.