Since nearly everybody on this blog is chiming in with posts about exams, I thought I’d do a post about exams too. This post consists of the advice handout I give to 1Ls about taking law school exams. I haven’t handed it out recently since I haven’t taught 1Ls in a while, though I think it could be of help to 2Ls and 3Ls too.
Unlike my previous foray into the topic of exams, this post is serious. I hope it will be helpful to our law student readers.
So here it is:
I. ISSUE SPOTTING
Catching the Issues
The questions all are stocked full of various issues. Even if you do not analyze an issue in depth, at least acknowledge its existence.
Formulating the Issues
Catching the issues is not the only important task. You must explain the issues clearly.
Certain issues are very important and others are not. You should indicate which issues are really central and which are not as important.
Relationships Between Issues
Certain issues are really sub-issues of other issues. This does not mean that you shouldn’t reach these secondary issues, but you should indicate that they are secondary.
Stating the Law
You need to accurately set forth the applicable law. I don’t require specific case names, but if you’re referring to a case, say enough about the facts to identify the case. If you’re applying a test, rule, formula, or the like, you should set it forth in the exam. Avoid copying entire passages from class notes. This is often not responsive to the question, as it contains a lot of extraneous information.
Applying the Law
An exam that merely recites cases or rules is deficient. You must apply the rules. As you saw in the class, there are cases which apply the rules in counter-intuitive and unusual ways. You must be aware of these cases. You should not merely apply a rule as if there were no case-law already applying it. The case law that applies a rule is instructive in how that rule is applied. You should discuss whether any of those cases is analogous to the situation at hand.
Reasons, Reasons, Reasons!
This is critical to a good performance! One of the most difficult things to do is to explain why a particular conclusion is reached. A conclusory exam isn’t very good, even if I agree that your answers are correct. First, sometimes there isn’t a “right” answer. Although there are “right” answers to certain issues, others are more debatable. I’m more interested in how you justify your conclusions than in the actual conclusions themselves. Second, I am not just grading your memory or how assiduously you copy your notes into the answer, but how you think through problems. The word “because” is a great word to see on an exam. You must demonstrate that you understand the reasoning of the cases we studied, not just their holdings.
I realize that time spent on analysis is time lost in issue spotting. You need to strike a good balance between catching the issues and analyzing them. An exam that spots all the issues, sets forth all of the applicable rules of law, and reaches conclusions is respectable, but it is missing the most important component – your ability to demonstrate that you can think through the problems, that you understand what’s at stake, that you’ve really digested the cases we read and thought about our discussions in class.
Often, when an issue is difficult, there are arguments on the other side. A great exam addresses the counter-arguments to its conclusions. Often the questions on the exam are not calling for you to be advocates of a particular position, but to appraise and evaluate the various issues. Even when you’re writing to an advocate or as an advocate, you must address the counter-arguments. After all, an attorney will surely have to address counter-arguments in oral argument before the court. The judge will consider both sides of an issue. A good advocate must be able to anticipate the counter-arguments and respond well to them.
Reach a Conclusion
Even if an issue can go both ways, you need to reach a conclusion. Some exams simply present both sides of an issue and then quit. I want you to come to a conclusion. This does not mean simply slapping a conclusion on at the end without a reason. So after discussing the arguments on both sides, explain which side you believe has the strong argument.
Indicate the Strength of Your Conclusions
Not all conclusions are equally as well-supported in the law. You might have to speculate as to how to resolve some issues. This is fine, especially when the law is murky or inconsistent or when the issue is novel and there are many possible ways that the law could resolve it. The key is to indicate that this is the case. Do not simply write your conclusion as if it were clearly evident. This is misleading. When an issue is tough and the resolution is in doubt, say so. This will prove to be very helpful to lawyers and judges who read your memos – they need to know which are the easy issues and which are the tough ones.
Provide an Accurate Picture of the Law
Not all courts agree on particular issues. Decisions are sometimes conflicting. A particular issue could be governed by different lines of cases, each of which pulls you in a different direction. Don’t let this alarm you. Welcome to the law! This is what many areas of law are like. Don’t think that on the exam you need to make all cases coherent and all rules work together in harmony. When you write an exam, you’ll often be asked to analyze issues as in a legal memorandum, exploring all sides of an issue. The key is to provide the reader (me) with a good picture of the law and how it might apply. A good picture is an accurate one. If the law is clear, say so. If the law is fuzzy or contradictory, say so. If the law leaves certain issues open and unresolved, say so.
Argue in the Alternative
Suppose there is a contestable issue. If you decide it in manner #1, the analysis is over. But if the issue is resolved in manner #2, then there are other issues to reach. If the issue is contestable (if there’s a plausible argument on each side) and if you ultimately believe manner #1 is correct, don’t just stop there. You need to explain what happens if you’re wrong, if manner #2 ultimately prevails. Therefore, you need to examine the other issues that will only arise under manner #2. This is called arguing in the alternative. Attorneys do it all the time. An example: “My client is not guilty of stealing the money because he has an alibi. And if he did in fact take the money, he did it because he mistakenly thought it belonged to him.”
III. STYLE & ORGANIZATION
Good Organization is Critical
This is very important and is why I explicitly factor it into my grading. It is not enough to spot all the issues and have a solid analysis of them. You must present your thoughts in an orderly and logical sequence or else it looks like a jumble. One of the most important aspects of legal writing is to have a clear organization. Use headings and sub-headings; this enhances the clarity and organization of your answer. Do not tax me in figuring out where you’re going. A disorganized exam indicates that you lacked the ability to see the big picture, to understand how things relate to each other.
Write Clearly and Well
I’m not expecting you to write like Shakespeare, but style is important. The key is to write clearly and concisely. If I read an exam that is full of run-on sentences, bad grammar, and awkward phrases, it becomes difficult and painful to slog through, and I become frustrated. Trust me, you don’t want me to be frustrated in any way when I’m grading you.
Failing to Follow the Instructions
Pay close attention to the exam instructions. I’ve read many an exam that ignored key instructions and analyzed extraneous issues.
Not Answering the Questions
Pay attention to the questions that are asked. Tailor your answers to what I’m asking you to do. For example, if I’m asking you to advise a judge or an attorney, write your answer as if you were in that role. Do not write in the language of an appellate brief, where you use strong advocacy, but in the language of a memo which explores all sides of an issue from a more balanced point of view.
Answering Questions Not Asked
Some exams engage in an elaborate analysis of all sorts of questions I didn’t ask. For example, sometimes in a scenario involving several actors, I ask you to analyze whether a particular actor can be charged with a crime or crimes. I invariably receive a number of exams that analyze the charges against all the actors. This is not good, because you don’t get credit for a brilliant analysis that doesn’t have anything to do with what I asked.
Be balanced in the attention you spend on each issue (and on each answer if I ask more than one question). If I ask more than one question, I will indicate on the exam a recommended amount of time to spend on each question. Try to follow my recommendation. If you run short on time, at least flag certain issues if you don’t have time to address them fully. It’s better to flag issues than not flagging them at all.
Getting Psyched Out
There will be some easy issues, but there will also be some challenging ones as well. I don’t expect you to be perfect. Do not feel that because you didn’t have time to address every issue that you did poorly. I recognize that this is an exam, that you’re under a lot of stress, and that you’ve got very limited time. Just do the best you can and don’t get psyched out if a question seems complicated.
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.