Succeeding on Law School Exams

Succeeding on Law School Exams
principles for pleasing picky professors

Agenda General strategies for taking law school exams Specific strategies and frequent pitfalls for the most common types of questions How most professors mark exams Dealing with stress and anxiety But first … a disclaimer!

An Essential Truth about Law School Exams Exams test performance, not knowledge. It’s not about what you know, it’s about how well you write the exam. To do well, it’s not enough to know the rules. You have to understand them and apply them in exam conditions. You have to “hit the bumpers”. Don’t just study the rules you cover in class. Practice, practice, practice. If you perform badly, that doesn’t necessarily mean you didn’t know the law, it means you performed badly on that exam. Go over it and try to figure out what went wrong, then practice that skill before the next round of exams.

General Strategies Read the (overall) directions! They may tell you: How long to spend on each question What law applies Not to cover particular issues Whether to double-space, single-side, etc.

General Strategies Read the (question) directions! Consider all of the facts. The question may go in a different direction than it seems to at the beginning. Tailor your answer to the questions actually asked. Don’t discuss issues that are not raised by the facts. Look out for issues foreclosed by the question. Think about what the question is actually asking you to do. Most questions ask you to: advise a party, advocate for a party, or make an objective judgment. If the question asks you to advise someone, you must come to a conclusion—actually give some advice. If it asks you to assess someone’s liability then it’s more likely to be ok to be equivocal.

General Strategies Outline thoroughly before you start writing. Show your organization clearly. A well-organized answer is easy to mark, and therefore is likely to get a higher mark. It makes the professor think, “This student knows what they’re doing.” If you are running out of time, just write down your outline. Don’t say something is “clear” unless you’re absolutely sure. Eloquence doesn’t really matter. Well-written answers make a good impression, but clarity and accuracy are MUCH more important than style. Repetitive writing is fine. Your mantra should be: “The issue is .... The rule is .... Here, we have .... Therefore, .... Next, ....” Get to the point!

General Strategies Don’t psych yourself out. There will be some easy issues. There will be some hard issues. So if one part of the question looks too easy, you probably aren’t missing anything. On the other hand, if the entire question seems obvious…. Nail the easy issues for cheap points and do the best you can on the hard issues. Do you need to cite cases by name? Usually no, but it helps! No need to give full citations. If a statutory provision is applicable, you do need to cite it by name and number and should quote it verbatim. The main thing is to use authority appropriately.

General Strategies How much is enough? There’s no definite answer to this but it is a myth that more is always better. An American prof did an informal survey of the correlation between length and quality: Short answers (under 800 words/hour) tend not to have enough meat on them. They probably miss issues entirely or give complex issues short shrift. Medium answers (between 800 and 1100 words/hour) have a strong correlation between length and score. Long answers (over 1100 words/hour) tend to be all over the map—some are just very thorough and some are rambling messes. At the long end, the correlation between length and score is weak.

Time Management Take a few minutes just to read all of the questions and think. Spend at least 10% and up to 30% of the time allotted for a question on planning. This will vary from person-to-person. Do practice questions in exam conditions to work out your own ideal ratio. On computer exams, you can usually afford to spend a little more time on planning.

Time Management Balance time among the questions. Follow the suggested allocation. It’s always better to get something down on all questions than to ace one but short-change others. Similarly, it’s always better to cover all issues in a single question than to miss or short-change some of them. What about “little” issues? Balancing breadth and depth in exam conditions is one of the major challenges of law school exams. Do this classic law school trick: “This fact pattern raises issue X but, given time constraints, I am unable to discuss it.” Not ideal, but way better than nothing!

Fact Pattern Questions: Getting Started Read the whole fact pattern, annotating as you go. Don’t hesitate to write on the exam paper. List the issues on a separate sheet of paper. Separate each distinct issue. For each issue, separate out the sub-issue elements. Don’t leave out clear-cut issues, but deal with them efficiently when you write up. Outline your answer before you start writing.

Tips for Spotting Issues Look for all points of disagreement between parties. Don’t skip straight to what you think is the main issue. Put yourself in the position of each of the parties and then of the judge. For the parties, think about what they would want to get out of the lawsuit. For the judge, think about what you would want to know to decide the case. Look for trigger words in the fact pattern. What is your prof obsessed with? Go to class, ask questions, do practice exams.

Fact Pattern Questions: Structure You can use a very formulaic structure. Remember IRAC (and equivalents). Not necessarily the best way to answer a given question, but it won’t do you wrong. Even if you don’t use IRAC structure, you still need all four components. Use lots of headings! Do practice exam questions to get faster.

Fact Pattern Questions: Structure For a given issue, the “I” and the “C” can both be very short, usually just 1-2 sentences. For the “R,”: Explain why each rule is relevant/applicable. State the source of the rule. If there is controversy or a split over the rule, this may merit significant discussion.

The SINGLE MOST COMMON MISTAKE Law Students Make Don’t focus too much on the “R”! This is the dreaded “brain dump”. The mistake many of my fellow law students made was to focus only on the legal rules in preparing for exams. They thought that if they knew all the legal rules backward and forward, they were guaranteed a good grade. Unfortunately, it wasn’t true. Even if your memory of the rules was foolproof, it meant nothing unless you were good enough at issue-spotting to know which rules to use on the exam. You could have a photographic memory of the rules, in other words, yet still do poorly. Students too often slip into their comfort zone in the “R” section. Listing and explaining rules is what you’re comfortable doing—you’ve spent the whole term memorizing them. On most undergraduate exams, this works. In stressful situations, it’s easy to revert to what you know best.

“A” is for Application “A” answers are distinguished from “B” answers primarily by the quality of their application of the relevant legal rules to the specific facts in the question. Be thorough. Apply all relevant rules to all relevant facts. Explain why the rules you cite lead to the outcomes you predict. Repeat facts, but don’t just regurgitate them; incorporate them into your analysis at the relevant steps. State the specific facts that are tied to the legal rules you cite. You need argumentation, not just conclusions. Show every logical step, even the obvious ones. Acknowledge counter-arguments. On close calls, argue both sides. Note areas of factual uncertainty. State any assumptions and explain the different possible outcomes.

Putting this into practice Let’s look at the issue of whether a contract was formed between Barry and Sam. You know that: In Dickinson v Dodds, the court held that the offeree could not accept the offer because the offeree’s agent had notice that the offer was revoked before the offeree had accepted it. In Household Fire Insurance v Grant, the parties mailed their offers and acceptances to each other. The court held that the acceptance was effective from the time that it was posted. In Holwell Securities v Hughes, the offer for an option contract stated that the option “shall be exercisable by notice in writing to the Intending Vendor”. The court held that a mailed acceptance was not effective until it actually reached the offeror. In Byrne v Van Tienhoven, the offeror mailed a revocation that arrived after the offeree mailed their acceptance. The court held that a contract was formed.

Putting this into practice “Barry may have to buy the car from Sam but I think he’s not liable. I don’t think that the two actually concluded a contract. However, it is possible that a judge somewhere might rule in Sam’s favour but I would tell Barry that he’s in the clear.”

Putting this into practice “The issue is whether Barry and Sam entered into a legally enforceable contract for sale of the car. This turns on whether there was a meeting of the minds because Barry tried to withdraw his offer. This is a close question, but on balance, I think that Barry’s revocation was effective.”

Putting this into practice “Barry will want to argue that he revoked his offer before Sam accepted it. Offers can be freely revoked at any time before acceptance (Dickinson) and if an offer is revoked there can’t be a contract. A mailed acceptance is effective when it is put into the mail (Grant). This is the ‘postal rule’. The postal rule also says that if the parties intended that the acceptance had to actually reach the offeror, then the acceptance is not effective until it reaches the offeror (Holwell Securities). However, the postal rule does not apply to revocations; these are effective when they are received by the offeree (Byrne).”

Putting this into practice “Barry could revoke his offer any time before Sam accepted it. The question is whether Barry actually revoked the offer in time. Under the ‘postal rule’ set out in Grant, a mailed acceptance is effective when it is put into the mail. In Holwell Securities, the court held that if the parties intended that the acceptance had to actually reach the offeror, then the acceptance is not effective until it reaches the offeror (Holwell Securities). Here, however, the situation is different. Therefore, Holwell Securities doesn’t apply and there is no contract.”

Putting this into practice “Whether Barry is obliged to buy the car depends on whether he revoked his offer before Sam accepted it. (Dickinson) The revocation occurred when Barry telephoned Sam to say that he was revoking his offer, after Sam mailed his acceptance but before the acceptance reached Barry, so Barry’s liability depends on whether the acceptance was effective when Sam mailed it or when it arrived. Under the postal rule, when offer and acceptance are sent by mail, the acceptance is effective when it is mailed (Grant) unless the parties intended that the acceptance had to actually reach the offeror to be valid. In Holwell Securities, language in the offer that the reply had to be ‘by notice to the vendor’ was held to be sufficient evidence of the parties’ intent that the acceptance had to actually reach the offeror. Here, however, there is no evidence that the parties intended to contract out of the default postal rule—they said nothing at all about the manner or time of the acceptance. Therefore, the offer was accepted on the day the acceptance was mailed. Since the offer had already been accepted when Barry tried to revoke it, his revocation was ineffective and the contract was formed. I would advise Barry that he did enter into a contract to buy the car, so he will have to look elsewhere to get out of his liability to Sam.”

Dealing With Uncertainty What if you aren’t sure what the answer is? Don’t panic—getting the “C” right doesn’t always matter. You need to show that you understand the possible outcomes on individual issues and the implications of those outcomes. Professors will say something like: “It’s ok that there’s not an answer; you just have to explain yourself and touch on all the issues.” Not really helpful, but it does tell you two things…

The Answer is to Refer to All Possible Answers “Issue A has three possible outcomes. First, the rule from Case M can apply which would mean X. Second, the rule from Case N can apply would mean mean Y. Finally, the rule from Case O would apply which would mean Z.” Of course, you still have to do your “A”—show how the different rules work with the facts in the fact pattern to reach the different outcomes.

Cover all elements of every test “…I think that overall a court will conclude X which would end the inquiry into this issue.” “…I think that overall a court will conclude X which would end the inquiry into this issue. However, if I am wrong and the court concludes Y, then the court would continue by finding that…”

Cover all elements of every test “…I think that overall a court will conclude X which would end the inquiry into this issue.” “…I think that overall a court will conclude X which would end the inquiry into this issue. However, if I am wrong and the court concludes Y, then the court would continue by considering whether…”

Essay/Policy Questions There are two main types: Questions that ask you to evaluate or compare legal rules: “All other common-law jurisdictions have eliminated blanket prohibitions on the right of third party beneficiaries to enforce contracts. Should Canada follow suit?” Philosophical questions: “In the Year Books, Chief Justice Brian is quoted as saying: “It is common knowledge that the thought of man shall not be tried, for the Devil himself knoweth not the thought of man.” Discuss with respect to contract law.”

Essay/Policy Questions There is no “right” answer. Essay questions usually focus on controversial (or at least unsettled) or broad philosophical issues. But you do need to make an argument. Take a stand! It’s almost always better to come to some kind of conclusion. Acknowledge counterarguments and treat them fairly. Refer to assigned readings as much as you can. Consider doctrinal coherence, principle, and practice. How your position fits in with other, uncontroversial legal doctrines. Argue from first principles. Anticipate the consequences of different legal positions you might advocate (i.e., consider policy arguments).

Stock Essay Structure You still need a clear structure. Aim for the “tell them what you’re going to tell them, then tell them, then tell them what you told them” approach. First Paragraph: Thesis Statement Middle Paragraphs: Here are the main three (ish) points that support my thesis. A Paragraph Near the End: Here is a criticism of my thesis AND here is my rebuttal to that criticism. Final Paragraph: In sum, my thesis is right.

Exam Scoring and Final Marks

Law School Grading Marks on exams often seem unfair or even totally arbitrary. Arbitrariness is not due to professors “playing favourites”. Blind grading is not a myth! For most professors, class participation only matters at the margins. It’s not worth the risk. To give a biased grade, a professor would have to be willing to put her own career at stake to either benefit or abuse a student to the tune of a few credits out of a total of 90-100. I can't imagine that the enormous cost would justify the small benefit. Absent an inappropriate romantic relationship, a professor has too many students over the course of a career to become so passionate about one student's situation to get involved in that way. While personal bias is rarely a factor, ideological bias can be.

The Real Source of “Arbitrariness” Final marks sometimes seem to be inverse to the amount of time you studied. You are an unreliable judge of your own performance. You know what you know. But what’s in your head isn’t necessarily what you put down on the page. This comes down a lot to your personality. If you feel like you knew everything on an exam, that might be because you missed some of the trickier issues entirely. On the other hand, if you walk out thinking of another 20 issues you could have discussed, that’s an indication you knew the material pretty well.

How Professors Mark Fact Pattern Questions Professors mostly fall into two groups: Some make a “marking rubric” Some (usually those with more experience) mark holistically, with an implicit rubric in their heads. The most important thing is not to miss entire issues. The available points within an issue will go to determining the relevant rules, citing their sources, and (most importantly) applying them accurately to the facts in the fact pattern. A few points, either within each issue or as a separate category, will generally be available for a holistic adjustment of the score. Often, this rewards clear organization. Good writing, creative arguments, keen strategic insights, delicate treatment of tricky issues, etc. may also factor in here.

Dealing with Stress and Anxiety

It’s normal to feel anxious…. “You start out moderately anxious and set yourself an arbitrary goal: "I'm going to study for six hours on Saturday for Class X". And then it's 2 PM on Saturday and you're lounging over brunch reading the paper in complete denial, and then you feel like a miserable undisciplined louse, but you still don't want to study. And then you finally sit down to study at 4:30 and you go "HOLY MOLY I DON'T KNOW EVEN A FRACTION OF THIS AND I DIDN'T LEAVE MYSELF ENOUGH TIME TO LEARN IT AND ALL THE SUCCESSES I'VE HAD BEFORE ARE GOING TO BE PROVEN AS THE LUCKY ACCIDENTS THEY REALLY ARE BECAUSE THIS TIME I REALLY AM A COMPLETE UNPREPARED IDIOT!" And then in this panicked hateful mode you study for about forty-five minutes or an hour and then notice that you've wandered off somewhere else in your head … and you think, maybe I need a break, or maybe I'm cracking up here, and you take a break and next thing you know it's 10 PM before you're sitting back down to study and the crazy panic sets in again.”

It gets better from here…. “Unsolicited advice to any panicking 1Ls heading into finals … right now is, without question, the most stressful and insane time you'll have in law school. The release once … finals are over is like untying a balloon and letting the air out. If you feel overwhelmed, know that it will never feel this overwhelming again, by any stretch…. No matter how you're feeling now, it's not like that forever.”

Before the Exam Make a good outline. Even for a closed-book exam! Many outlines are either collections of case briefs or lists of rules. Neither is helpful. APPLICATION is the key to getting As, so create an outline that helps you apply rules to facts. Organize it around issues or common sets of facts. Make checklists or flowcharts. The cases are important but they’re secondary. Have a good index or table of contents so you can find what you need quickly.

Before the Exam Make a schedule for studying for all of your classes. Make sure to schedule some relaxation time. Get plenty of exercise and sleep. Cramming is never worthwhile for law school exams. Lay off alcohol and other drugs until after your last exam. They might help you wind down quickly but also inhibit restful sleep and hurt your next day’s studying.

During the Exam The morning of each exam, make sure to eat a proper meal. Bring some water and QUIET snacks. Once the exam starts, ignore everyone else. Get into a zone where it’s just you and the exam. If you read a fact pattern and you just can’t get anything out of it, reread it from the beginning looking for trigger words. Consider taking a bathroom break between questions.

Go Forth and Brain Dump No More!

Succeeding on Law School Exams