What's Being Tested?
In most law schools, the exam counts for the entire grade in a course. Your class participation might count only if it is extraordinary. It's entirely up to the professor. Needless to say, this puts enormous stress on students to perform, which is all the more reason to understand exactly how exams are given and what the professor is looking for.
Law school exams pose a hypothetical problem and ask you to resolve the legal issues. Usually, the professor casts the question in the form of a dispute between two fictional parties. Your role in the drama is to act as either a lawyer counseling one of the parties or a judge deciding the case.
The professor tests two skills.
- Issue spotting and
Issue spotting requires you to know what factual circumstances signal various legal problems for your client.
Analysis requires you to apply the rule of law to the set of facts. Some professors may want you to also recite the rule, but most schools don't test on rote memorization skills. After all, you can always look up the rule of law. Professors want to test whether you know when a problem is present (i.e. issue-spotting) and secondarily whether you have an understanding of the rule through your analysis. Usually, there is no right answer to the dispute. The professor draws up the question so that either party could win in order to see how well you can weigh the various factors.
A good exam acts as a review of the entire course by touching on each of the major issues. Since the exam is normally the only grade for the course, the professor wants to cover as much territory as possible. Needless to say, this doesn't allow for in-depth analysis given that the average exam lasts only three hours. Consequently you only have time for a big picture analysis. Another way of putting it is that the writing should be wide and shallow. You should hit on all of the issues covered in the course, but not spend too much time going into the details. In the words of one professor, the best exams have the character of inspired superficiality.1
1 University of California, Berkeley Boalt Hall School of Law Professor Willie Fletcher
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Know Your Audience
The first principle of exam writing (or any writing for that matter) is to know your audience, then write specifically for that audience's level of understanding. Your audience is one person - the professor. Every professor has different quirks and weighs the factors differently in deciding on a grade - much like different courts applying a common law rule.
You should ask your professor what she values in an exam. Some will insist that you state the rule; others favor policy arguments. Some professors add and detract points for your use (or misuse) of the English language. Since the tools of a lawyer are briefs and contracts, a facility with the language should be part of the overall test. Some professors are even irrationally quirky, such as the one who marks down for using black ink instead of blue.
Questions to ask your Professor before the exam:
- Do you want the rule stated or should we incorporate the rule into the analysis?
- How many questions will there be on the exam?
- What are the time restraints for each question?
- Can we bring in outlines or other source material?
- Do you want case names cited?
- Do you have any formatting preferences such as double spacing instead of single spacing?
- How do you distinguish between an excellent exam and a good exam?
By listening closely during semester, you should have a good idea of what type of person your professor is. Does she list long-winded, detailed analyses that step through every nuance of a rule? Or does she like quick answers that are based on broad policy concerns?
Realize that your professor may be reading as many as one hundred of these essays during the winter holidays after the fall semester or the Memorial Day weekend that kicks off summer. Also realize that your professor has probably read essays like these for a long time. In other words, your professor has seen it all. The point here is that it pays to be brief and to get to the point. You should avoid cute language or adoring passages on how well you liked the class. Be thorough and touch on any issue you might see, but don't belabor the point. You only get so many points
How Professors Grade
Ultimately, professors have to come up with some sort of point system for grading; otherwise the subjective quality of essays would result in unfairness. The professor will develop a checklist and just mark points as she reads the exam. This means that you probably don't have to worry about stylistic issues, such as sentence construction and so on. The professor is looking for concepts, not grammatical mistakes. Be aware, however, that good writing is likely to be appreciated.
The most conscientious professors will read the exams three times. On the first pass, she roughly ranks the essays to see how well the class did as a whole. This gives her a benchmark against which to grade each exam. On the second pass, the professor actually scores the exam. On the last pass she just flips through the exams to make sure that she got it right.
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The First Ten Minutes of the Exam
Step One: Take three deep breaths. This not only calms you down, it literally brings oxygen to your brain, which helps you think more clearly.
Step Two: Get the big picture. Spend one minute and flip through the entire exam to get the big picture. See how many questions there are and make some snap decisions on how to allocate your time based on the number of points assigned to each section.
You should also note the nature of the essay questions. For a Torts exam consisting of three questions, for instance, you know the teacher is likely to ask one question about each of the major areas - intentional torts, negligence and product liability. Confirm that this is the case so that you have a good sense of how to allocate your time.
Step Three: Allocate your time. One of the big mistakes students make is to thoroughly answer the first three questions and leave only a scant answer on the fourth essay. Getting an overview and allocating your time allows you to pinpoint when you have to move onto the next issue.
You should even allocate time within each essay question so you know how much time you have to spend on each major issue. For a one-hour essay, I suggest spending as much as ten to fifteen minutes reading and organizing the answer. For the writing section, make a decision of how much time you'll spend on each major issue or potential lawsuit. Just split the time evenly among the issues. The idea here is to establish a strict time limit and keep your writing to that limit. Once, the time expires, move onto the next essay.
Step Four: Read the first question twice. On the first pass, make notes in the margins of the big issues. Pay attention to the call of the question. What is the professor asking you to answer?
Many students have programmed themselves to write a completely thorough answer the minute they spot an issue. However, sometimes the professor may provide enough facts to do a complete analysis but really only want you to answer a specific question about the case. Be sure to note that one of the things professors like to test is whether you can follow directions.
Step Five: Outline an answer. See below.
The Critical Step of Outlining an Answer
Most students start writing as soon as they read the question. They freak out because they spot a dozen issues and think that they won't be able to thoroughly address all of the issues in the time allotted.
It pays to think before writing. Outlining helps you spot the issues. Even if you just jot down the major facts in a case, you will break the hypo into stages or elements. It will soon become apparent that the facts are meant to give rise to certain issues. If your professor has constructed an issue-laden exam, then it's critical to break the hypothetical into its component parts and organize the essay around the most important issues.
How you outline an answer differs with each course. In a Contracts exam, you usually write about events chronologically. Timing about what was said when is usually an important factor in Contracts, thus the best way to analyze is chronologically. In contracts, Torts exam are usually organized according to parties. In Torts, the big question is who is liable for what harm? Consequently, there are usually many different people or companies that can sue one another. You can make the best sense of a Torts question by outlining according to the party.
Another important step during outlining is to adopt a position. Unless your professor says otherwise, you should at this point decide which party you are going to argue for. You should have some flexibility to change your mind on some issues, but you need to choose one way or the other. Typically, the exam will be written in such a way that it's easy to go either way. One common trap for first year law students is to always want to prove the rule or legal theory to be true. Remember that you can find for either side. You need to adopt a point of view that you feel is strongest.
Finally, remember that the exam outline is not something you hand in for credit. Consequently, don't spend time making it look pretty. Rather, develop shorthand for the principle issues in the case law.
For instance, in Contracts, you might use
for the issues of Offer, Acceptance and Consideration, which are the principal building blocks of a valid contract.
Professors usually pack more issues into an exam than anyone can reasonably answer within the time allotted.
Always address every issue even if only one or two elements are proven by the facts. Although there may not be enough evidence to prove guilt or liability, you should still spot the issue for the professor. Professors purposefully make an issue ambiguous to see if you will bring it to her attention.
Of course, you need to rank the issues according to importance. Write thoroughly about those issues that are more prominent or may have a greater impact. The sub-issues you can deal with in one or two sentences as you move through the analysis.
Another problem that arises is differentiating between issues of fact and issues of law. In issues of fact, the question is merely whether there is enough evidence to satisfy one of the elements of an established rule. Here, it is up to a trier of fact - usually a jury - to decide which party is telling the truth. Depending on the nature of the rule, one of the parties may bear the burden of proving the truthfulness of the fact. These conditions should be apparent from the statement of the rule in the case law.
An issue of law is one in which the facts are undisputed. The parties agree on what happened. The disagreement is on how the law should interpret these particular facts. Judges -not juries - rule on questions of law.
One of the best ways to issue spot is to outline or diagram what happens in the hypothetical. By identifying the parties involved or breaking major facts out of the hypo, you get a sense of where to focus your analysis.
The First Paragraph
First impressions are important. Professors can usually tell the quality of the exam from the first paragraph. There are two different methods for writing the first paragraph:
- Summary of Outcome paragraph
- Or Issue Identification paragraph
In the summary of outcome paragraph, you tell the professor the bottom line - i.e. your resolution of the case - and why. It helps to give a framework for the rest of the paper. The problem with the summary of the outcome paragraph is that students sometimes change their mind on the conclusion of the problem in the middle of the essay. In the process of the analysis, they see something that leads them to another way of thinking. However, if you've already written your first paragraph, that realization makes for a lot of stress since you're now defending a position you don't think is correct.
The second technique is to mention the general framework of the issues but not give any specifics on your conclusions. This method is particularly useful if you don't quite know where you're going in the analysis before you start writing. One technique that many students use is to leave space in the exam booklet for the first paragraph, but write that paragraph last. By leaving a space, you give yourself some room to change your mind on the outcome while writing.
Analysis - The Actual Essay
Unless your professor says otherwise, jump right into the analysis of the problem. Don't recite the facts of the hypothetical as you would for a case memorandum in a legal writing class. It's a common mistake for first year students to apply the techniques of their legal research and writing course to exam writing. It's natural to think that there should be only one way to write in the legal field and to adopt those techniques for the exam. However, the exam tests different skills. The professor doesn't require that you repeat the facts. After all, she wrote up the hypothetical. However, this doesn't mean that you don't mention the facts. Use the facts to prove or disprove the rule. (See below.)
Furthermore, don't spend a lot of time stating the rule. Up until now, we have placed a lot of emphasis on breaking the rule into its component parts (or terms of art) and then proving the rule through tests, etc. One mistake that most students make in an exam is to spend most of their time citing the rule of law in order to prove to the professor that they know the law. Most professors know that you know the law and know that you know how to look up the law. What they want to test is your ability to analyze.
Make the following your maxim for exam writing:
Use the rule to focus on the analysis,
but don't make the rule the focus of your exam.
Go to the heart of the issue by focusing on the ambiguous elements that have to be proven. Ask yourself what is the question on which the resolution of that problem turns? If there is something central to the fact situation that most of the elements are easily present for the rule to apply except for one element, don't spend a lot of time on the elements that are present. Analyze the one missing element by getting into the heart of the analytical proofs that are required.
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The 9-Step Exam Writing Formula
Successful exam writing can be a formula. You can save time and earn stylistic points by pre-writing your exam. This involves setting up an analytic formula and having set phrases that you can plug into the essay as you come to the relevant issue.
Use the following formula to pre-write your essay.
State the issue.
Identify the rule, but don't waste time stating the rule.2
Summarize the elements of the rule that are easily satisfied by the facts.
State the sticking point on which this issue turns - i.e. the ambiguity in the facts that makes it a difficult question.
Apply one or more of the four types of Analysis to the problem.
Contrast conflicting authority.
What are the defenses?
Make a conclusion.
Go to the next issue.
To illustrate the process, here is a sample exam question.
EXAMPLE ESSAY QUESTION
Peter Plaintiff and David Defendant are neighbors who bear each other a grudge. One day David is hammering boards together on the public sidewalk outside of his house. Peter sees David hammering and walks behind him in order to avoid talking with him. As Peter walks behind David, David brings his hammer back to hammer the boards and hits Peter in the head causing substantial injury.
Step One: State the issue. Write one sentence that identifies the issue as suggested by the facts. Get used to stating the issue by using every fact that you can.
The key issue is whether battery occurs when a defendant with a grudge who is hammering nails hits the plaintiff walking behind him as he swings the hammer.
Step Two: Identify the rule, but don't waste time analyzing the rule. Rather, incorporate the rule into your analysis of the facts.3
The governing law on the issue of battery depends on the jurisdiction, though most commonly the Common Law rule suggests that the key elements are intent, harm and causation.
Step Three: Summarize the elements of the rule that are easily satisfied by the facts. Make sure that you don't make up or infer facts from the hypothetical. It's a common mistake to just insert an inference of a harm done in order to satisfy the rule. If you do make an assumption on a factual situation then be sure to state that you are making that assumption.
Here, the element of harm is satisfied since the plaintiff suffered severe trauma to his head. Furthermore, the element of causation is proven because but for the defendant's swinging the hammer, the plaintiff would not have been harmed.
Step Four: State the sticking point on which this issue turns - i.e. the ambiguity in the facts that makes it a difficult question.
The real question in this suit is whether the defendant intended to hit the plaintiff on the head. Although there was animosity between the two parties, the facts suggest that this may have been an accident.
Step Five: Apply one or more of the four types of Analysis to the problem. Contrast conflicting authority.
Use one or more of the four types of proof to prove or disprove the rule.
Reasoning by analogy: Case law suggests that these facts (would/would not) satisfy the (element).
Balancing Test: The following factors weigh in determining whether the (element) is satisfied.
Judicial Test: Courts have applied the following test to prove whether the (element) is satisfied.
Policy: The underlying policy of the rule (is/is not) furthered by its application in this scenario. (Cite policy.)
EXAMPLE - Judicial Test
The standard test that courts apply for the general intent necessary to hold the defendant liable is that he knew with substantial certainty that harmful consequences would result from his action. Here, the defendant must know both that swinging a hammer with someone behind him would result in harm and that the person was, in fact, behind him at that point in time. Whether the defendant knew with substantial certainty is an issue of fact that is up to a jury or judge to decide. Animosity by itself, or even a motive, does not prove intent.
Step Six: Contrast conflicting authority.
Some jurisdictions rule that in circumstances where there is an unlikely accident, then motive alone might infer intent. Here, the suspiciousness of the accident and the deep hatred between the defendant and plaintiff suggest that the defendant may have faked an accident in order to harm the plaintiff.
Step Seven: What are the defenses? Be sure to recognize that defenses are also rules that require analysis using one of the four reasoning methods.
The defendant has the affirmative defense of self-defense. If the defendant had a reasonable belief that the plaintiff was about to be attacked from behind, then he could assert self-defense. However, the defendant has the burden to prove he used only as much force in swinging the hammer as was reasonably necessary to protect himself from potential injury.
Step Eight: Make a conclusion.
In writing the Conclusion you want to hedge.
Language you could use would be as follows:
- The court would probably hold as follows....
- A probable result would be....
- Given the facts, it is highly likely that...
- Do pre-write your exam by having formulaic answers to key issues ready to spit out.
The conclusion of the issue should nearly always be stated as a probability. Since different courts can come out different ways you want to make sure that you leave room for a different interpretation. There usually is no right answer. The art is in the analysis.
In all likelihood, the defendant will not be able to assert a credible defense of self-defense because there is no evidence that the plaintiff was going to attack the defendant.
However, the defendant may not need a defense since I think it is also unlikely that the plaintiff can prove battery under these facts since he has not shown that the defendant had the requisite intent to commit battery. Consequently, the defendant will probably not be held liable for battery and the plaintiff will have to seek relief under a negligence theory.
Step Nine: Go to the next issue.
Peter will seek to recover damages in negligence if he can prove....
Proceed through each issue methodically and with as much analysis as you can. Try to use every fact to either prove or disprove an issue.
2 Unless your professor says otherwise.
3 Unless your professor says otherwise.
About case names...
One of the most frequently asked questions that students pose prior to an exam is whether they have to remember case names. The answer is that it entirely depends on the professor.
Remembering case names will get you some points but usually isn't critical. Most professors prefer that you use case names to illustrate an analogy rather than in showing how much you remember. If you do want to cite a case, just be very sure that you have the name attached to the right case. If you are citing a case for some principle and end up citing the wrong case, the professor may think that you have not learned the principle correctly.
You should make liberal use of headlines in your essay to signal the start and end of sections. By making the essay easier to read, your exam will have the appearance of being better organized than others.
- Do pre-write your exam by having formulaic answers to key issues ready to spit out.
- Do outline your answer using about ten minutes for an hour-long answer.
- Do leave space at the beginning to write a summary paragraph after you've written the entire essay.
- Do jump right into the analysis of the major issues.
- Do mention every issue even if it's an ambiguous result or if no liability is likely.
- Do use every fact as proof or disproof of the validity of a rule.
- Do pay attention to the call of the question.
- Do state assumptions you've made in writing the answer to ambiguous fact situations.
- Do leave your biases at home.
- Do write legibly.
- Don't restate the facts of the problem.
- Don't answer questions the professor doesn't ask about.
- Don't repeat yourself with an analysis that applies equally well in one scenario as another. Make the distinction then refer back to a previous analysis.
- Don't waste time on your outline making it look pretty. You don't get credit for an outline.
- Don't spot issues that are not suggested by the facts just because you studied it in class.
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Take a break. Don't start studying for your next exam right away. Schedule yourself some down time to have fun and clear your mind. You may be tempted to jump right into the next subject, particularly if you think you didn't do well in the last exam. However, you run the risk of diminishing returns. Tests take a lot out of you physically and mentally. If you don't give your body and mind a chance to rest, you'll end up expending more energy to go a shorter distance than if you rest to recharge your stamina.
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- Exams test two areas - issuing spotting and analysis.
- Professors differ in how they want exams written. Ask yours what she wants to see in a good exam.
- Create a one-page attack outline giving yourself an analytical framework for writing and to serve as a checklist for major issues.
- Read the question twice before writing.
- Spend ten minutes outlining an answer for every hour-long question.
- Write about issues even if the outcome is ambiguous or uncertain.
- Mention issues even if the rule is not satisfied by the facts.
- Use the rule to focus on the analysis but don't make the rule the focus of your exam.
- Don't recite the facts of the hypothetical. The professor knows the facts since she wrote the essay.
- Use every fact if your analysis. The professor only puts facts into a hypothetical for a reason. To get you to use them for some persuasive purpose in the exam.
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