Byron P. answered • 07/02/21
Bar Exam and Law School Tutor With Decades of Teaching Experience
07-02-2021
Whether or not you agree with your Professor's instructions, follow the instructions to the letter. That hardly need be said.
What the Bar Prep providers suggest regarding assumption of facts may vary from provider to provider. In virtually every circumstance, however, you really have no choice but to assume facts. Many essay fact patterns omit entire swaths of critical facts, without which it is nearly impossible to arrive at a correct conclusion.
Think about the real world. No client (or witness) remembers to provide you with all the facts and you will be required to assume facts to make any sense out of the problem the client is coming to you to solve. An example: Consider what should happen if contracting party "A" has to perform a particular contractual obligation by a given date, but gets into a car accident, before then, and is hospitalized. If sued for breach for failure to timely perform, will Party "A" be able to defend on the basis of "impossibility of performance"? You can't answer this question unless you know the extent of Party "A's" injuries (why he/she was hospitalized). Assume there is no injury beyond a broken toe- Impossibility of Performance will not lie (unless your client is under a contract to dance at a particular venue and at a particular time). Now, assume that Party "A" can prove that the accident rendered Party "A" comatose. Then the best defense (perhaps the only defense) is Impossibility of Performance.
*Caution: when you assume facts in drafting your essay exam answer, you must point out to your Professor or Bar Examiner that you are assuming facts (which you intend to investigate later). And by all means your assumptions must be logical and provide critical context to your response.
