At the beginning of this semester, I spent some time talking to students about how they could have done better on their exams last semester. Although some of the advice I gave was specific to individual students, a lot of it applies generally, so I’m sharing it here.
Major caveats! This article applies only to one type of law school exam—albeit the most common type in the first-year doctrinal classes that cause students the most anxiety. In addition, anything I say about how professors read and grade exams is only guaranteed to be accurate about me (and a couple of friends who reviewed this). That said, I don’t think I’m very unusual when it comes to writing and grading exams. Also, I did pretty well on them in law school, so I probably know what I’m talking about.
The type of exam I’m talking about, sometimes called an issue-spotter, is a hypothetical fact pattern followed by a question along the lines of: “What claims does Albus have against Bellatrix, Cedric, Draco, and Ernie; what defenses can they raise; and which of these claims are likely to succeed?” Sometimes, though rarely, the entire exam is one long, convoluted narrative involving many parties and many types of possible wrongdoing. More often, the exam consists of two or three of these questions. I divide mine into sub-questions to make the issues (somewhat) easier to spot.
Here’s a short and relatively simple example from my most recent torts exam:
Rubeus and Severus are eight-year-old boys who live in the seaside town of Brendam. After school, just about every day that the weather is good, they play stickball (like baseball, but played with a broom handle or similar stick) in Suddery Lane, the small street that they live on. If one of them hits the ball hard, there is a decent chance that it will end up in Wellsworth Avenue, a busy street that intersects with Suddery Lane. This happens a few times each day that they play, but usually the ball does not hit anything or bounces harmlessly off the side of a car.
One day, Rubeus hits the ball as hard as he has ever hit it. The ball flies across Wellsworth Avenue and strikes Thomas, a middle-aged businessman, in the back. The ball hurts Thomas but, more importantly, causes him to fumble his hot dog, leaving ketchup and mustard all over his expensive suit jacket, shirt, and tie. (He will later claim that they were ruined by the ketchup and mustard.) Enraged because he was about to go to an important meeting with a client, Thomas turns, sees the boys playing, and runs after them, shouting. Rubeus and Severus separate.
(a) (5 points) What claims does Thomas have against Rubeus? Who is likely to win and why?
First, here’s what not to do. You should not spend fifteen minutes making reasonable statements about how Rubeus wasn’t being careful, and Thomas has a right not to be hit in the back while eating a hot dog, but Rubeus is just a kid, and he had never hit the ball quite that hard, and Thomas didn’t even really get hurt, so Thomas is overreacting, and he should just come up with a funny explanation for his stained clothes to use as an icebreaker at his meeting. All of these things may be true, but in a court of law (or, more immediately, in a complaint) they have to be framed in a way that demonstrates that Rubeus did or did not commit a tort.
In short, your answer should not be one that you could have written before coming to law school.
Before thinking about how to respond to this question, you should think about what I am looking for in an answer. This type of question is intended to test three things:
- Can you identify the legal issues raised by these facts?
- Do you know what law applies to those legal issues?
- Can you apply the law to the facts?
We write exams this way because the purpose of these doctrinal classes is not only to teach you the rules—that would be pretty easy—but also to teach you to apply those rules to mildly complex factual situations. As a personal injury lawyer, for example, you might interview many prospective clients whom the world has treated unfairly—people who have suffered injuries through no fault of their own and perhaps because of the actions of some other person. But unless that other person’s actions can be characterized as an actual tort, and unless there is enough evidence to satisfy all the requirements of that tort, the victim does not have a viable claim.
So, in the example above, the first conceptual step is identifying the possible claims that Thomas could bring. The two that come to mind are negligence and battery: Thomas might be able to argue that Rubeus was negligent in hitting a ball into a busy street where it might hurt someone, and he might be able to argue (although this is probably tougher) that Rubeus intentionally caused a harmful contact with him (via the ball). The second step is literally writing down the elements of negligence and the elements of battery. The third step is evaluating the facts to see if either claim is likely to be successful. (In this example, you should go through those three steps for one tort and then the other.)
Now, here’s a tip. Most professors have an idea of what the issues are when they write the question. If the professor thinks there are four issues, and you only write about two, no matter how well you do on those two, you will probably only get half the points. This is why these exams are known as issue-spotters. If you completely miss an issue, it’s hard to do well on a question. I’ll come back to how to spot the issues below.
Then, once you know the issue, you have to know the law. This is pretty straightforward, especially if it’s an open-book exam, like mine. But if you get an important part of a rule wrong—for example, you think that recklessness is a sufficient state of mind for a battery claim—you will lose points.
Step three—applying the law to the facts—is the most complicated, but arguably not the most important (as I’ll discuss below). Many of these questions are written so that the case could plausibly go either way. We try to give you fact patterns that differ enough from the cases you read during the semester that the outcome could be different. So, many times, there is no single right answer to step three. Your job is to identify which elements of the claim are clearly supported (or not supported) by the facts and which elements are open to debate; for the latter, you should be able to point to the evidence on either side.
But do not read too much into this “no single right answer” principle! Even when applying the law to the facts, although there may be no single right answer, there are wrong answers. If you think that Rubeus hitting the ball into Wellsworth Avenue is not a factual cause of the damage to Thomas’s clothes, that’s just wrong.
More important, the “no single right answer” principle does not apply to steps one and two! I am simplifying here, and some other professors are no doubt cringing. To a first approximation, however, you either know what the issues are or you don’t, and you either know the law or you don’t. Probably the single biggest weakness I see in first-semester exams is answers that string together lots of reasonable sentences, citing facts from the hypothetical in a way that makes sense, but that are not organized in a way that makes a legal argument. In many college courses in the humanities and social sciences (I was a social studies major and a history graduate student, by the way), that will get you a B+, or perhaps an A– if you write well.
In law school, it is wrong.
To recap, in the words of one of my law professor friends, your answer should be structured like this:
“The issue in this question is X,
“the legal standard that governs is Z, and
“of the three prongs of Z, 1 and 2 are satisfied because of Fact A and Fact B, whereas prong 3 can go either way given Facts C and D and the absence of Fact E.”
Step three may be the most complicated and interesting to write. But step one is still the most important because—as I said above—if you miss an issue, you probably get zero points for it, and with most professors there is no way to make up those lost points. So if you are struggling with law school exams, you will get the most mileage out of focusing on steps one and two. Do those well, say anything plausible on step three, and you will probably get a decent grade.
Once you have steps one and two down, here’s how you should think about step three. You’ve already identified the claim and stated the law. Now, when you apply the law to the facts, there is probably going to be something that falls into a gray area. As my friend said, “prong 3 can go either way given Facts C and D and the absence of Fact E.” You can think of this as a second level of issue-spotting. The first-level issue is what claim Thomas can bring against Rubeus; that’s what the plaintiff’s lawyer has to identify in the initial interview. The second-level issue is what this case is actually going to turn on; that’s what the two sides’ lawyers are going to focus on in the pleadings and in the trial, if there is one. In this case, Thomas’s negligence claim will probably turn on whether Rubeus was behaving unreasonably given his age and experience, because that is the rule that applies to children, unless they are engaged in a dangerous adult activity. (Driving a car is a dangerous adult activity; in many states, however, firing a gun is not—go figure).
To do well on an exam, sometimes you have to spot these second-level issues in addition to the first-level issue. Then, you should usually take both sides of the issue: make the best argument that one side could make, and then makes the best argument the other side could make. If you do that well, it doesn’t matter which side you end up saying would win (or you can just say it could go either way).
For example, in another of my exam questions, it was obvious that Ernie had a negligence claim against a hospital, but there was an assumption of the risk issue (he signed a waiver of liability). So a good answer would go something like this:
“Ernie can make a negligence claim against the hospital; to win, he has to show A, B, C, and D; A, B, C, and D are all obvious (insert facts as necessary), but the hospital can claim express assumption of the risk as a defense. The law governing express assumption of the risk is X; facts P and Q imply that Ernie assumed the risk, but fact R implies that he did not, so this could go either way.”
Spotting these second-level issues, however, is actually not that hard if you know the law. At this step of the question you are applying the law to the facts. If you know all the elements of the rule, you just need to walk through each one and determine whether it is satisfied or not; if the facts lean in both directions, then that’s a second-level issue.
That’s what you should be trying to do in a law school exam.
But how do you actually do it?
I have two major pieces of exam-taking advice, one less obvious and one obvious.
The less obvious one has to do with your outline. Most law students write outlines to prepare for exams, at least in their first semester. An outline is basically a summary of the entire course and can be fifty or more pages long. When talking to a student about her exam, I always ask what the first page of her outline looks like. Usually it’s just the content from the first topic we covered in the class.
If you’re doing well on law school exams, keep doing whatever you’re doing. But if you’re not, the first two pages or so of your outline should be a list of all the issues that could come up on the exam. Basically, it should be a table of contents of the outline. For example, the section on causation might look like this (excuse Medium’s failure to support hierarchical lists):
——Factual causation (the alternative universe test)
————Loss of chance
————Multiple sufficient causes
————Eggshell plaintiff rule
————Unforeseeable types of harm
————Intervening and superseding causes
This is your list of all the first- and second- level issues that you might have to discuss on the exam. Having it on two pieces of paper that you can look at at once, without having to shuffle papers, makes it easy to use as a checklist. Read the question, jot down the issues that come to mind, and then look over the list to see if you are missing anything else. When you know what the issues are, then turn to the relevant parts of your outline, where you will find the rules and your summaries of the cases you read in class.
(Some people use “attack” outlines that help point you toward the issues. I don’t think this is crucial, but you may find it helpful. Attack outlines vary, but one approach is conceptually like a flowchart: you look at certain features of the fact pattern, and they indicate what path you follow and what legal standard to apply. This could be a good tactic for fiduciary duty claims on business organizations exams, for example. First, is it a duty of care or a duty of loyalty issue? If a duty of loyalty issue, is there a conflicted controlling shareholder or one or more conflicted directors? Was there ratification and, if so, by whom? These questions will tell you what the standard of review is and who has the burden of proof. Of course, the answers to these questions could themselves be ambiguous.)
The second, more obvious piece of advice is this: spend more time preparing your answer and less time typing. On timed exams, some people are afraid they will run out of time and start typing as soon as they have finished reading the question. Reading their answers, you can watch them meandering their way through the facts, sometimes stumbling on key issues and sometimes not. Remember, identifying the issues, knowing the law, and saying something plausible about the facts is a decent answer that does not take a lot of words. It is far more valuable to know what you are going to say before you start typing than to string together some plausibly relevant thoughts about the fact pattern.
You are not writing an essay with the goal of showing the professor how much you know about the law. You are answering a set of very specific questions: what are the claims, what are the elements of those claims, and are those elements satisfied. Figure out the answers to those questions, and then writing them down is easy. I know this is at least the third time I’ve made this point, but that’s because it is important.
No doubt some of my colleagues in the profession think that all of this is horrifyingly formulaic and reductive and cheapens the sacred mystery of the law. And they have a point. If you can use an exam question to identify and explore some previously unidentified ambiguity within the law, or to illuminate the power relationships that shape the way legal rules are formulated and applied, by all means go ahead. But if you are afraid of law school exams or struggling with them, you may want to take my advice.