Succeeding on Law School Exams

1. Succeeding on Law School Exams principles for pleasing picky professors

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

3. 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. 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.

4. 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.

5. 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. So if the question asks �What equitable remedies are available to X?� then don�t mention legal remedies beyond a basic summary. 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.

6. 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.� Don�t say something is �clear� unless you�re absolutely sure. Most exam questions are written to fall in between the cases you�ve read. 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, ....��

7. 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.

8. 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.

9. Erin�s General Strategies

10. Time Management Take a few minutes just to read all of the questions and think. Spend at least 10% and up to a third 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. Balance time among the questions. Follow the suggested allocation. If you can, start with the questions you feel more confident about. 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. If you are running out of time, copy down your outline.

11. Erin on Time Management

12. 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.

13. 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.

14. Erin�s Tips on Issue Spotting

15. Fact Pattern Questions: Structure Remember IRAC. Not necessarily the best way to answer a given question, but it will never do you wrong. Even if you don�t use IRAC structure, you still need all four components. For a given issue, the �I� and the �C� can both be very short, 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.

16. 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.

17. Erin�s Thoughts

18. �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 facts 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.

19. An Overly Conclusory �A� Section However, this [an alleged contract between Barry and Adam] might not work for lack of consideration. Nothing of value changed hands between the two in their promise.

20. An �A� Section that Effectively Applies Law to Facts (without being long) If the offer contained an express term that required communication of acceptance to reach the offeror, then the postal rule would not be applicable (Holwell Securities v. Hughes). Looking at the language of Barry�s offer to Sam, �I would like to buy the 1961 Cadillac you have for sale. I will pay no more than $12,000�, there is a convincing argument that no such express terms were set out, in which case, the acceptance was communicated prior to Barry�s phone call to Sam to revoke the offer, resulting in a binding contract between the two parties.

21. Erin�s Final Thoughts on Fact Patterns

22. Answer = Refer to All Possible Answers The �C� does NOT really matter (most of the time) What matters is understanding the possible outcomes and the results of those outcomes

23. Answer = 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.�

24. In the alternative� ��I think that overall a court will conclude A which would end the inquiry into this issue.�

25. In the alternative� ��I think that overall a court will conclude A which would end the inquiry into this issue. However, if I am wrong and the court concludes B, they would then continue by��

26. Point First Writing �This situation raises a number of interesting legal questions. The first and foremost is judicial review�blah, blah, blah�Marbury v. Madison�rule of law�.foundational to democracy��

27. The first issue raised by this situation is A. The rule for deciding this issue comes from Karton v. Smith. The rule says if B then X and if C then Z. These two facts show that a court would likely conclude B. These two fact should the court would likely conclude C. Overall, I think the court would likely find C. Point First Writing

28. Essay 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. 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. Style and grammar matter more than for fact patterns.

29. Essay 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. Consider 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).

30. Erin�s Basic Essay Structure First Paragraph: Thesis Statement Take a stand 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

31. Exam Scoring and Final Marks

32. 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. But it can count for as much as 20% 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.

33. The Real Source of �Arbitrariness� Final marks sometimes seem to be inverse to the amount of time you studied. You are an unreliable witness of your own exam 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. Professors also can�t always predict who will do well on exams. So just because the person sitting next to you always has their hand up (and has something intelligent to say), doesn�t mean they�ll get a higher mark than you!

34. How Professors Mark Fact Pattern Questions Professors usually draw up some kind of marking rubric. Some make a formal �model answer�. Some (usually those with more experience) mark holistically, with an implicit rubric in their heads. The rubric is divided according to the issues raised by the fact pattern. To get any of the points available for a particular issue, you will have to recognize the existence of that issue. 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 section rewards clear organization. Good writing, creative arguments, keen strategic insights, delicate treatment of tricky issues, etc. may also factor in here.

35. A Sample Marking Rubric Formation of K between Barry and Sam /20 Does Barry�s letter constitute an offer? /6 Intended to be communicated, mentions price But Intent to be bound? /6 Sufficiently definite? Specific price offered? Relevance of fact that Barry didn�t really want the car?�no, intent determined objectively Was the offer accepted before it was withdrawn? /8 Does postal rule apply? Offer also sent by mail so invites acceptance by mail. Acceptance posted before offer withdrawn so K formed. Duress /10 Barry was pressured by threat from Adam. Strategic tension here? /4 Can duress from a third party vitiate consent? /3 No duress of goods or economic duress. Duress of the person? No physical threat, does blackmail count? /3 Action against Adam /15 Is Adam liable for inducing Sam to contract? Probably nothing there. /5 Did Adam and Sam had a contract. /10 But is there consideration? No forbearance of a legal claim. Overall Impression /5

36. Dealing with Stress and Anxiety

37. It�s normal to feel anxious�. Got a call from my 1L friend�. She wanted to know whether it was normal to feel alternately anxious, depressed, listless, frantic, overconfident, apprehensive, unmotivated, and panic-stricken about upcoming exams�. The best I could tell my friend was that, yeah, it's normal. You are 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.

38. 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 fall term 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�. 2L and 3L year, really, are a walk in the park comparatively�. No matter how you're feeling now, it's not like that forever.

39. Before the Exam Make a schedule for studying for all of your classes. Make sure to schedule a little bit of 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.

40. Erin�s Tips on Outlining

41. During the Exam The morning of each exam, make sure to eat a proper meal. Bring some water. 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 from the beginning, looking for trigger words. Consider taking a bathroom break between questions.

42. Erin�s Tale of (Almost) Woe

43. Erin�s Final Piece of Advice

44. Go Forth and Brain Dump No More!