Examination Techniques

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Examination Techniques

• Where the Rubber Hits the Road

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Introductory comments

• This power point presentation is on my TWEN site
• The Wisdom of Insecurity Alan Watts
• My first law school exam was the worst experience
  I had in law school
• Remember the ultimate objectives of law school
  study Mastery (internalization) Automaticity
  (effortless retrieval) Articulation (clear,
  logical, structured expression while under time
  constraints)

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Introductory comments

• Many students wont write out answers (I dont
  know why) YOU MUST
• If you have any questions INTERUPT ME! If you
  dont want to speak in a public setting then
  please come see me
• Hypothetical questions distributed at end of
  presentation part 2 next week
• Need your feedback on ASP tell me what would
  help!

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Immediate Caveat

• If anything I say conflicts with something one of
  your professors has said, follow the professors
  advice
• At the end of the day it will be his or her exam
  and he or she will be evaluating your work

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Distinguish Between Analysis Communication

• There may be a lot of variety in how a particular
  exam question is analyzed
• But however the question is analyzed an answer
  must be communicated in a way that your audience
  (in this case your professor) will understand
• Therefore, analysis and communication are two
  different processes

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FOUR ASPECTS TO ANSWERING EXAM QUESTIONS

• Stating the question
• Identifying the legal premise or rule
• Applying the legal premise to this problem
• Framing the Conclusion

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1. Stating the Question

• This shows the reader where you are going
• Example The Question Presented is whether the
  injuries suffered by A were caused by B
• The wording does not have to be the same all the
  time Issue, Topic, etc., may work equally
  well depending on the structure of the question
  and the answer
• Try to avoid answering unnecessary questions or
  exploring irrelevant issues by reading the
  overall call of the exam question

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2. Identifying the Legal Premise or Rule

• Restatements, statutes, common law, rules from
  cases
• AUTHORITY is necessary to make the conclusion
  persuasive authoritative writing requires
  authority
• Real authority resides in the text of the law
• This is the step most often missed by beginning
  law students because it seems too obvious (seems
  like busy work)
• If more than one legal rule could apply YOU MUST
  MAKE A CHOICE AND EXPLAIN YOUR CHOICE for
  example, the facts may seem unclear as to whether
  an obvious assault resulted in a battery you
  must choose assault or battery and explain which
  facts led to the choice

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3. Applying the legal premise to this problem

• Feature RELEVANT facts provided in the question
• Determine if there are different judicial
  interpretations of the applicable rule, select
  one, explain
• Explain how the relevant facts relate to the law
  element by element
• Dont waste time if simple facts provide a clear
  solution - just apply them straightforwardly
• Murkier situations require working through a
  chain of reasoning, e.g., you may have to explain
  why you think certain facts are implied

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Applying the legal premise to this problem
(continued)

• TREAT FACTS SERIOUSLY WORK THEM HARD
• WATCH OUT FOR WHACKY FACTS THAT DONT SEEM
  NECESSARY TO TELL THE STORY THEY ARE THERE FOR
  A REASON
• Discuss alternative applications and arguments
• Facts and law are interwoven with policy to reach
  a conclusion and you must make a bridge between
  the LEGAL PREMISE and your CONCLUSION
• The process must be METICULOUSLY logical

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4. Framing your conclusion

• Accordingly, consequently, therefore
• Dont make the professor guess what conclusion
  youve reached
• Take a stand (But be fair)
• If there are different possible outcomes this is
  where the policy rationales come into play Do
  you conclude as you do because it is the fairest
  outcome? The most in line with a particular
  legal tradition? The most practical? The most
  economically efficient?

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Structure

• All four portions of the answer must be present
  but the order may differ
• IRAC is not a magic formula - The first
  section might be called topic or issue rather
  than question presented
• Signals can help the professor identify different
  sections of the answer for example, the legal
  premise section might start with the word
  under, the application section might begin with
  the word here, the conclusion might begin with
  the word therefore
• The structure may be dictated by the question
  you may be instructed to draft an opinion, write
  a memo to a partner, etc. follow instructions.
  (Short answer questions may not require a
  Question Presented section because it is
  already built in

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Example Question Presented

• The question presented is whether Smith has a
  cause of action in connection with an injury he
  suffered while working at his machine at ABC
  factory

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Example Legal Premise

• Under Maines workers compensation statute
  (rule) an injury is deemed to be compensable if
  it arose out of (element 1) and in the course of
  (element 2) employment and if work contributed to
  the resulting disability in a significant manner
  (element 3). A worker suffering such a
  compensable injury is not allowed a recovery in
  tort and workers compensation is the workers
  exclusive remedy (sub-rule).

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Example Applying the legal premise

• Here, the facts indicate that Smith was seriously
  injured at work while operating his machine
  (element 1). Smith was at his station working in
  the manner and at the time he was directed to do
  so (element 2), apparently ruling out a defense
  of frolic or horseplay. The facts do not show
  that Smith had a preexisting injury or suffered
  any subsequent injury outside of work (element
  3), so causation is not at issue. Finally, there
  is no indication that Smiths machine
  malfunctioned, ruling out the possibility of a
  third party action against the machine
  manufacturer (subrule).

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Example - Conclusion

• Therefore it seems that Smith has a cause of
  action under the workers compensation statute
  because his back injury arose out of and in the
  course of his employment (rule). It also appears
  that all of Smiths disability derives from his
  work injury and that his work clearly contributes
  to that disability in a significant manner
  (rule). Further, because any other action would
  likely be barred by the exclusive remedy rule,
  rejection of Smiths claim could prove ruinous to
  him and to his family, which would contravene the
  policy of the state that injured workers be
  compensated (policy).

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Important Writing Points

• READ THE CALL OF THE QUESTION
• THINK MORE, WRITE LESS 1/3 of your time should
  be devoted to outlining and organization
• Add section headings (with white space in
  between)
• Short, crisp sentences the longer the sentence
  the more likely you will become confused and lose
  your professor
• Refer to facts, dont repeat them
• Only discuss what you are asked to discuss
• Dont invent facts if you are making an
  assumption, say so and explain why!

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Important Writing Points (continued)

• One way to begin an outline of an exam answer is
  to laundry list
• Make note of every fact that seems to be
  important in the fact pattern
• After you are done go back to the beginning of
  the list and start structuring those facts
• If a fact is provided that someone is angry, why
  is that important? (Goes to state of mind -
  intentionality)
• If a fact is provided that someone lost a sum of
  money, why is that important? (Goes to damages)
• RESPECT THE DETAILS CONTAINED IN THE FACTS
  examinations are carefully put together and the
  facts are there for a reason

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Important Writing Points (continued)

• One of the best reasons for outlining and making
  decisions about what is relevant BEFORE WRITING
  is that it helps you to avoid two classic ways of
  wasting time 1) Exploring irrelevant issues 2)
  Restating facts and procedures there is no
  point to doing this (you are not writing a
  judicial opinion) - since you would not include
  this in an outline and you are writing the answer
  from the outline you will hopefully avoid
  unnecessary repetition
• By conserving time you can devote as much
  attention as possible to the logic of your
  ANALYSIS which is where most points are earned
  

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Important Writing Points (continued)

• Avoid conclusory terms obviously, clearly
  there is not likely to be much that is obvious
  on the exam
• Use legal vocabulary properly dont substitute
  your words for legal definitions unless you are
  pretty darned sure you are saying the same thing
• It is ok (and desirable) to simplify your
  language but dont simplify legal language

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A Word on Policy

• Policy may come into play at a number of
  different points in the exam (whenever there is
  an ambiguous question about how facts may be
  inferred, which rule should be applied, which
  interpretations of a rule should be utilized, or
  which conclusion should be adopted)
• Policy discussions on exams, however, are not
  opportunities for expounding jurisprudential
  treatises
• Keep such discussions brief and RELEVANT

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Open Book versus Closed Book

• Be clear about the honor code know what
  materials you are permitted to use on the exam
• Memorization of an attack outline for closed
  book exams is desirable writing down SOME of
  the outline at the start of the exam is ok but
  writing all of it may be too time consuming you
  can do the same thing when outlining your answers
  
• Prepare an attack outline even in open book exams
  there is often not enough time to re-read your
  outline during the exam
• Indexing of authorized materials for ease of
  access

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Your Body Will Also Be Taking the Exam

• Eat enough
• Drink enough
• Sleep enough
• Exercise

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In a Nutshell (from Law School Without Fear,
Helene Shapo and Marshall Shapo (New York
Foundation Press 2002)

• Clear Organization
• Identification of the Issue
• Analyzing the Issue, using the important facts
• Applying relevant legal rules and cases to
  specific facts
• Applying broad policy ideas to concrete
  situations
• Identifying the arguments for and against a
  particular result and arguing persuasively to a
  conclusion
• Clear writing
• Concision

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What to Do if You Are Behind in a Course

• Reading massive amounts the week before the exam
  wont help
• Focus on key areas of the course
• Memorize major concepts and know them cold
• It is even more important to do practice answers
  to make sure that you understand and can apply
  core concepts
• But it may be overwhelming to look at old exams
  so consider single issue questions from a
  commercial product like Examples and
  Explanations

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Memorization

• Not everything presented in class can or should
  be memorized
• Focus on memorizing only big picture framework
  (often provided by professors in the first few
  classes) and every major rule
• For example, The Law of Torts is about
  allocation of loss One of Professor Burmans
  big picture ideas
• A contract requires offer, acceptance,
  consideration and no defenses to formation
  (Major rule)
• Where memorization is required flashcards and
  mnemonics (dont get too cluttered with these)

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Taking the Exam

• 1) READ THE INSTRUCTIONS!
• 2) In a closed book exam, write/type memorized
  portions of the attack outline you may forget
  wherever you are authorized to do so (not whole
  attack outline)
• 3) Make prompt decisions about time allocation
  if your professor has made time allocation
  recommendations, follow them!

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Taking the Exam (continued)

• 4) Read and try to answer the first question
  first dont move to the next question without
  answering the first question unless the first
  question is very difficult
• If you jump around between questions, you may
  begin to confuse the facts of different questions
• But if a question seems very difficult it may be
  a good idea to move on so you can gain confidence
  by completing questions that feel more manageable

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Taking the Exam (continued)

• 5) Focus on the call of the question before
  reading any of the fact pattern
• 6) After reading the call, read the question
  through and begin to mark (underline, circle,
  highlight) key facts or issues
• 7) Read the question again to make sure you
  havent missed anything

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Taking the Exam (continued)

• 8) OUTLINE YOUR ANSWER BEFORE YOU BEGIN TO WRITE
• Depending on the structure of the question there
  are different ways to organize
• The Call may suggest the organization (discuss
  liability of A, B and C)
• If the call is open-ended, you can organize by
  chronological order of important events

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Taking the Exam (continued)

• If the question involves potential law suits (and
  the call does not focus you on specific law
  suits) you might organize your exam outline by
  parties A v. B, B v. A, C v. B, etc.
• You might organize your exam outline by
  transaction e.g., in a property exam you might
  chronologically track conveyances from one party
  to the next
• If chronology wont work in your outline, you
  might organize by dependency for example,
  whether a contract exists before discussing
  whether it is enforceable whether A is legally
  capable of committing a crime (infancy, insanity)
  before discussing particular crimes A may have
  committed.

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Taking the Exam (continued)

• 9) Avoid repeating rules as you move through the
  sections of your exam
• If you defined battery in the suit A v. B,
  dont define it again in B v. C. If your
  original definition occurred much earlier in your
  answer you can reference it when analyzing Z v.
  Y, you can say, Again, the rule is as I stated
  in A v. B

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Helpful Websites

• http//www.lawnerds.com/ - sample exam questions
  and answers
• http//www.4lawschool.com/ - same but some
  problems with broken links
• http//www2.cali.org/ - very good article on
  approaching law school exams