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Law School Exam Mistakes

Now that law students across the country have started

classes again, it's worth revisiting the subject of law school exams. Specifically, I want to discuss common

mistakes that students make on law school essay exams. I have posted on this subject before, and some of

my previous posts on the subject are the folllowing:

Exam-Taking Advice

Reflections on Law School Exams

More Information on Law School Exams

Each of these posts contains additional links to other entries on this and other blog sites that you may find

useful. And then there'sthis little classicfrom 2006 on the now-defunctBlawg Wisdom,which I think is

very insightful.

Here are my thoughts after grading this fall's batch of exams.

1. Time management is key.It is better to competently answer all exam questions than to ace some

questions and shortchange others. Your total score will be higher if you manage your time.

2. Taking a few minutes to think about how to tackle an essay question is time well spent. Take a few

minutes to figure out both what you need to talk about and how best to organize your answer. And then

write a quick little outline. Students who do this almost always do better on exams. They stay on point--

which leads to better answers. And the outline is both (a) a way to make sure you don't forget to discuss a

point you intended to discuss, and (b) a way to demonstrate to your prof that you are organized and have

thought your answer through. Don't underestimate the latter point: an outline certainly cannot hurt in

this regard, and it may help.
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3. Law student DNA is encoded with an almost irresistible urge to not follow the advice in point #2. You

know the feeling--you know your prof said to think first and write second, but you can't resist just

plunging in. I know the feeling too--I have been there. But resist it with all your might.

4. The most common mistake of students who understand exam questions is to summarize the law, but

not fully apply it to the fact pattern in question. The result? The answer is evidence that the student

clearly understood the law, but it is not clear evidence that the student knew how to apply it. And the final

score is lower as a result.

5. Another common mistake of students is to jump to the conclusion without explaining how they got

there. This is, in essence, the converse of #4--applying the law, but not explaining it very clearly. This too

lowers your score.

6.No essay exam answer is perfect.Exams are stressful situations, after all, and the fact patterns of essay

questions are typically fairly complex. Your time is extremely limited too, except for take-home exams,

and often those have page limits. So you simply can't say everything. So don't expect to. By identifying the

primary issues, discussing the relevant law, and applying it, you stand a very good chance at getting a very

good grade.

1. Know Your Audience, and Remember the Purpose of an Exam. For law school exams, your

audience is your professor--someone who knows the subject better than you, but who nonetheless wants

you to demonstrate your knowledge of the subject.You are not talking down to your audience if you

demonstrate on the exam that you know, say, the basics of manifestation of mutual assent. If you don't

explain in summary fashion what the law is, you risk a lower score.

2. Corollary to #1: Law School Exams Grade Performance, not Just Knowledge. On a law

school exam--at least an essay exam--you are presented with a fact pattern. Your task is to identify what

doctrinal rules are relevant and then applythem. Knowing the law is necessary for a good grade (you can't

apply the law if you don't understand it), but it is not sufficient.


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3. Another Corollary to #1: To Perform Better on Exams, Take Some Practice Exams. Let's

say you got a lower grade than you wanted. Does that mean you didn't know the law? No, it means you did

not perform on that particular exam, most likely by not applying the law as well as you might have. Forfuture exams, practice applyingthe law. Get together with class mates you trust, draft sample exam

questions for each other, and practice answering them. It is my opinion that the process of creating your

own sample exams can be a highly educational process, because it forces you to really think about how the

various legal rules and principles interact. Also try looking on the web for sample exams--although the

casebooks used and the topics covered by those other professors will affect the usefulness of those exams.

Note: For anyone in my current Contracts class, I will be handing out some sample exams later in thesemester. But I encourage you to craft your own sample questions too.

4. Organize Your Exam Answers.I saw a lot of exam answers this year that were not well-organized.

I sympathize entirely with the urge to simply start writing--after all, there's not much time in a three-hour

exam. But if you don't (a) think through how you want to organize your answer (which means you need to

outline your answer before you start writing), and then (b) follow that template, you are bound to miss

issues or at least give short shrift to some issues.

Here's the point: on average, you will score higher on an exam if you hit all (or at least most) of the issues

adequately--as opposed to really nailing some and missing or underexploring others. If you outline that

does leave you less time to write, but that is MORE than offset by the fact that you will spend less time

spinning your wheels or restating something you have already covered.

5. Corollary to #4: Exam Length is not Always Related to Exam Score. There are 3 general

lengths of exam answers: short, medium, and long. That sounds all too obvious, but it's worth pointing

out, in order to highlight the relationship between exam answer length and exam answer score.


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In my experience, writing less than around 1700 words on a 3 hour essay exam means that you run

significant risk of not having enough words to discuss and analyze difficult legal rules and principles. So

there is a strong corellation between short answers and lower exam scores.

Medium answers are, in my experience, anything between 2000 and 2700 words. (I guess that means

1700-2000 is a gray zone.) A 2000 word answer can be competent, but in the "medium" category longer

answers generally translate into better scores.

Interestingly, however, for long answers--generally those above 3000 words--there is a very weak

correlation between word count and score.And this gets me back to my point about organization. A well

organized answer can cover more ground in fewer words than a long (but poorly organized) answer.

This means that sacrificing some length at the alter of organization is a wise trade-off.

6. Another Corollary to #4: Organizing Your Answer Helps Demonstrate to the Professor

That You Know What You are Doing.The ability to identify relevant issues and then discuss them

in organized fashion is a necessary skill for the practice of law. That's what you do in memos to clients,

and that's what you do in briefs or other submissions to a court. Whenever I read a well organized answer,

the message I get is "this person knows what s/he is doing." In contrast, a disorganized answer that flails

about makes it difficult or impossible for me to tell whether the person knew the law, or simply got

portions of the exam right by accident--and the result is a lower grade.

7. Yet Another Corollary to #4: Write an introduction for your answer.I may differ from

other law profs on this point, but I see very little downside to writing a very brief introductory paragraph

for your essay exam answer. It takes about 5 minutes--and all you do is concisely state what the issues

raised in the question are and what you will be discussing in your answer. And then you follow that format

throughout your answer.


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This is another way to demonstrate to the prof that you know what you are doing. It also makes the exam

easier to read, because the prof knows what's coming later in the answer. It is alwayseasier to read

something--an essay, magazine article, memo, anything--if the author first gives a roadmap. So even if anintroduction does not garner you any direct points, it helps the grader follow what you are doing, and that

should at least indirectly improve your score. (It's also a way to force yourself to be organized in your

answer.) And as I said, even if it does not help, it really does not hurt much, since it only takes a few

minutes to write an introduction.

8. Do not Try to be Clever or Original.Points for style and eloquence are nice, but generally you are

better off focusing on getting the substance of your answer down, instead of being overly concerned withphraseology. So eschew grandioloquent prose for simple, straightforward language.

Of course you will use use legal terminology (e.g., tortfeasor, party-in-breach, etc.) to demonstrate your

knowledge (and ability to apply) the law. Just don't get flowery.

Law School Exam-Taking TipsPOSTED BYDANIEL SOLOVE

Since nearly everybody on this blog is chiming in with postsabout exams, I thought Id do a post about exams too. Thispost consists of the advice handout I give to 1Ls about takinglaw school exams. I havent handed it out recently since Ihavent taught 1Ls in a while, though I think it could be of

help to 2Ls and 3Ls too.Unlike myprevious foray into the topic of exams,this post isserious. I hope it will be helpful to our law student readers.

So here it is:

I. ISSUE SPOTTING
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Catching the Issues

The questions all are stocked full of various issues. Even if you do not analyze an issuein depth, at least acknowledge its existence.

Formulating the Issues

Catching the issues is not the only important task. You must explain the issues clearly.

Prioritizing

Certain issues are very important and others are not. You should indicate which issuesare 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 youshouldnt reach these secondary issues, but you should indicate that they aresecondary.

II. ANALYSIS

Stating the Law

You need to accurately set forth the applicable law. I dont require specific casenames, but if youre referring to a case, say enough about the facts to identify thecase. If youre applying a test, rule, formula, or the like, you should set it forth in theexam. Avoid copying entire passages from class notes. This is often not responsive tothe 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 andunusual ways. You must be aware of these cases. You should not merely apply a ruleas if there were no case-law already applying it. The case law that applies a rule isinstructive in how that rule is applied. You should discuss whether any of those casesis 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 toexplain why a particular conclusion is reached. A conclusory exam isnt very good,even if I agree that your answers are correct. First, sometimes there isnt a rightanswer. Although there are right answersto certain issues, others are moredebatable. Im more interested in how you justify your conclusions than in the actualconclusions themselves. Second, I am not just grading your memory or howassiduously 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 thatyou 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 agood balance between catching the issues and analyzing them. An exam that spots all


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the issues, sets forth all of the applicable rules of law, and reaches conclusions isrespectable, but it is missing the most important component your ability todemonstrate that you can think through the problems, that you understand whats atstake, that youve really digested the cases we read and thought about ourdiscussions in class.

Discussing Counter-Arguments

Often, when an issue is difficult, there are arguments on the other side. A great examaddresses the counter-arguments to its conclusions. Often the questions on the examare not calling for you to be advocates of a particular position, but to appraise andevaluate the various issues. Even when youre writing to an advocate or as anadvocate, you must address the counter-arguments. After all, an attorney will surelyhave to address counter-arguments in oral argument before the court. The judge willconsider both sides of an issue. A good advocate must be able to anticipate thecounter-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 simplypresent both sides of an issue and then quit. I want you to come to a conclusion. Thisdoes not mean simply slapping a conclusion on at the end without a reason. So afterdiscussing the arguments on both sides, explain which side you believe has the strongargument.

Indicate the Strength of Your Conclusions

Not all conclusions are equally as well-supported in the law. You might have tospeculate as to how to resolve some issues. This is fine, especially when the law ismurky 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 notsimply write your conclusion as if it were clearly evident. This is misleading. When anissue is tough and the resolution is in doubt, say so. This will prove to be very helpfulto lawyers and judges who read your memos they need to know which are the easyissues and which are the tough ones.

Provide an Accurate Picture of the Law

Not all courts agree on particular issues. Decisions are sometimes conflicting. Aparticular issue could be governed by different lines of cases, each of which pulls youin a different direction. Dont let this alarm you. Welcome to the law! This is whatmany areas of law are like. Dont think that on the exam you need to make all cases

coherent and all rules work together in harmony. When you write an exam, youlloften be asked to analyze issues as in a legal memorandum, exploring all sides of anissue. The key is to provide the reader (me) with a good picture of the law and how itmight apply. A good picture is an accurate one. If the law is clear, say so. If the law isfuzzy or contradictory, say so. If the law leaves certain issues open and unresolved,say so.

Argue in the Alternative


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Suppose there is a contestable issue. If you decide it in manner #1, the analysis isover. But if the issue is resolved in manner #2, then there are other issues to reach. Ifthe issue is contestable (if theres a plausible argument on each side) and if youultimately believe manner #1 is correct, dont just stop there. You need to explainwhat happens if youre wrong, if manner #2 ultimately prevails. Therefore, you need

to examine the other issues that will only arise under manner #2. This is calledarguing in the alternative. Attorneys do it all the time. An example: My client is notguilty of stealing the money because he has an alibi. And if he did in fact take themoney, 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 enoughto spot all the issues and have a solid analysis of them. You must present yourthoughts in an orderly and logical sequence or else it looks like a jumble. One of themost important aspects of legal writing is to have a clear organization. Use headingsand sub-headings; this enhances the clarity and organization of your answer. Do nottax me in figuring out where youre going. A disorganized exam indicates that youlacked the ability to see the big picture, to understand how things relate to eachother.

Write Clearly and Well

Im not expecting you to write like Shakespeare, but style is important. The key is towrite clearly and concisely. If I read an exam that is full of run-on sentences, badgrammar, and awkward phrases, it becomes difficult and painful to slog through, and Ibecome frustrated. Trust me, you dont want me to be frustrated in any way when

Im grading you.IV. PITFALLS

Failing to Follow the Instructions

Pay close attention to the exam instructions. Ive read many an exam that ignoredkey instructions and analyzed extraneous issues.

Not Answering the Questions

Pay attention to the questions that are asked. Tailor your answers to what Im askingyou to do. For example, if Im asking you to advise a judge or an attorney, write youranswer 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 allsides 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 didnt ask. Forexample, sometimes in a scenario involving several actors, I ask you to analyzewhether a particular actor can be charged with a crime or crimes. I invariably receivea number of exams that analyze the charges against all the actors. This is not good,


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because you dont get credit for a brilliant analysis that doesnt have anything to dowith what I asked.

Misallocating Time

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 exama recommended amount of time to spend on each question. Try to follow myrecommendation. If you run short on time, at least flag certain issues if you donthave time to address them fully. Its better to flag issues than not flagging them atall.

Getting Psyched Out

There will be some easy issues, but there will also be some challenging ones as well. Idont expect you to be perfect. Do not feel that because you didnt have time toaddress every issue that you did poorly. I recognize that this is an exam, that youreunder a lot of stress, and that youve got very limited time. Just do the best you can

and dont get psyched out if a question seems complicated.

[Orin Kerr,February 13, 2007 at 5:34pm]Trackbacks

Bad Answers, Good Answers, and Terrific Answers:

Law students around the country recently received their fall semester grades. Students

are often puzzled about what professors are looking for on exams, so I thought it

might be helpful to offer some thoughts on what makes an answer bad, good, orterrific. Obviously different professors look for different things, but my guess is that

what works for me is relatively close to what works for other professors. Abstract

guidance on how to answer exam questions is easily found and usually pretty useless,

so instead I'm going to conjure up an imaginary law school class with an imaginary

exam. I'll then grade an imaginary set of five different answers and explain what

makes the different answers better or worse.

Welcome to the Imaginary Law School! Every 1L at ILS takes a mandatory class in

"Park and Recreation Law." The class includes coverage of Section 1 of the Park Act,

which states that "No vehicles are allowed in the park." The class covered two casesinterpreting this section. The first case was State v. Jones, where the court concluded

that roller skates were not vehicles. "Although the Park Act does not define the word

'vehicle," the court stated, "we follow the plain meaning of the term. The word

'vehicle' calls to mind a motorized mode of transportation, not a human-powered one."

The second case wasPeople v. Thomson, where the court held that a motor home was

a vehicle. "We think it clear that Thomson's motor home is a vehicle," the court
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explained. "The classic example of a vehicle is a car or truck. A motor home is much

like a truck in size and complexity, with a small living area connected to it. We can

imagine close cases that would force us to draw difficult lines as to the scope of the

Act. But this case is not one of them."

Okay, now imagine being the professor who wants to test students on Section 1 of

the Park Act as part of the final exam. Being a law professor, you'll create facts that

are annoyingly in the middle of these precedents this forces students to grapple

with the facts and the law, and you can grade them on how skillfully they do that.

Here is the question you write:

QUESTION X

Betty is a law student at ILS who lives off-campus. She often rides to class in agas-

powered scooter,a two-wheeled motorized scooter that has a one-cylinder gasoline

engine and a top speed of about 20 miles per hour. One day she decides to ride her

scooter through a nearby park on her way to school.

Analyze Betty's liability under the Park Act.

Ok, now imagine that the students have taken the exam and it's time to do some

grading. There are five students in the class and therefore five exams to grade. You

pick up the first answer:

1. Betty may face liability under the Park Act. However, I think she is in the clear. I

don't think her conduct violated the law. There are laws that regulate the park, but

here Betty has not violated them. The government may disagree, and it's possible that

there is a judge somewhere who would rule in favor of the government. But on thebasis of the law, I think it is absolutely clear that Betty is not liable.

Ack, this is a really terrible answer. Why? Well, it doesn't tell you anything. It tells

you that there is an issue of park law in the question which you would expect, this

being an examination on park law and that the student has a view that Betty is not

liable. But it doesn't tell you what the legal issue is or how it applies to the facts. Even

worse, the answer suggests that the answer to the legal question whatever it isis

"absolutely clear." You intentionally wrote a question that has no clear answer; a

student's announcement that the answer is clear suggests that the student is just

missing the boat.

Time to move on to the next exam. Here it is:

2. The issue is whether Betty is liable under Section 1 of the Park Act because she

may have brought a "vehicle" into the park. This is a close question. On balance,

though, I don't think the scooter was a "vehicle."

This is still a below-average answer, although at least it's an improvement over the

first student. On the plus side, the students clearly recognizes the legal issue:
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specifically, whether the scooter is a "vehicle." But the answer is still very weak; I

need to know why the student thinks the issue is hard and whythe scooter wasn't a

vehicle. There are good reasons and bad reasons to reach that particular conclusion,

and I need to hear the reasons so I can tell which are guiding the answer.

Now you pick up answer number three:

3. The issue is whether Betty is liable under Section 1 of the Park Act because she

may have brought a "vehicle" into the park. Vehicle is not defined, but

underJoneswe follow the "plain meaning" of the term. This is a close question; on

one hand, a scooter is kind of like a car, but on the other hand, its also pretty different.

Under the plain meaning approach, I don't think a scooter is a "vehicle."

This answer is better than number two; it's roughly an average answer. Note that

answer 3 did two things that answer 2 did not: first, it used a relevant case to focus the

intepretive inquiry (plain meaning under Jones), and second, it suggested a reason

why the case was hard (like a car in some ways, not like it in others). On the other

hand, it didn't offer a very clear rationale for its conclusion; "pretty similar" and

"pretty different" can mean lots of different things, and I need to know what the

student means by that.

Now you pick up the fourth exam:

4. Did Betty violate Section 1 of the Park Act because she brought a "vehicle" into the

park? Vehicle is not defined, but underJoneswe follow the "plain meaning" of the

term. That advice is not very helpful here, though as whether a scooter is a vehicle

does not seem plain one way or the other. I think the scooter is probably a "vehicle"

because it has a motor, which seemed to be a very important factor in theJones case.Roller skates don't have motors, but Betty's scooter had a one-cylinder gas-powered

engine.

This is a very good answer, definitely above-average. The student did everything that

that the student did in #3 but added two important steps. First, the student offered a

clear rationale as to why one case was distinguishable: in the roller skate case, Jones,

the Court had pointed out that vehicle suggests the presence of a motor; in this case,

by contrast, there was a motor. Second, the student had the presence to see that the

"plain meaning" guidance isn't very helpful in this particular case; while it's a broad

principle worth noting, the real answer to this particular question comes from the prior

cases and their reasoning.

Now you pick up the last answer. It reads:

5. Betty's liability hinges on whether her motorized scooter was a "vehicle" under

Section 1 of the Park Act. The Act does not define vehicle,

butJonesand Thomsonprovide guidance. The facts here are somewhere between

those two cases. Unlike Jones's roller skates, Betty's scooter has a one-cylinder gas


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engine: It is "a motorized mode of transportation, not a human-powered one"

underJones. On the other hand, it is a very modest means of transportation that is far

from the size and complexity of a car or truck under Thomson. This seems to be one

of the "close cases" mentioned in Thomson, in part becauseJones's focus on the

powerplant points in one direction and Thomson's focus on size and complexity points

in another direction. Scooters are powered but small and simple. It's unclear which

matters more, and Betty's liability under Section 1 depends on it.

This is an off-the-charts A+ answer. First, the student directly and accurately

identified the precise legal question and exactly what makes it hard. Second, the

student explained exactly why the two cases point in different directions without

resolving the question. The student clearly gets it: she seems to know the relevant law

perfectly and has mastered applying that law to the facts. The answer is so good it's

like the student read your mind this is exactly what you were thinking when you

wrote the question. And the student did it all in the context of a high-pressure 3-hour

in-class examination. Wow, that's incredible. As they would say on eBay,

A++++++++.

So what do these examples tell you? I think the basic advice is that precision and

explanations are everything. To get a top grade, a student needs to identify the

relevant legal question accurately, and then articulate exactly why applying the law to

the facts leads to a particular outcome. Of course, when stated that way, the advice

sounds pretty general. At bottom it just means that you need to show your professor

that you are an excellent lawyer. Which of course is exactly the point.

Anyway, I hope this is helpful. The hypothetical is of course highly stylized, as it

involves only one part of exam-taking (rule application). But I hope it gives students a

flavor of what their professors want on exams. And I'm particularly interested in

hearing from other professors on whether they agree with my scale or would use a

different approach.