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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 classic from 2006 on the now-defunct Blawg 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.

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.

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. For
future exams, practice applying the 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 the
semester. 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.

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.

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 always easier to read
something--an essay, magazine article, memo, anything--if the author first gives a roadmap. So even if an
introduction 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 with
phraseology. 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 Tips
Since nearly everybody on this blog is chiming in with posts
about exams, I thought Id do a post about exams too. This
post consists of the advice handout I give to 1Ls about taking
law school exams. I havent handed it out recently since I
havent taught 1Ls in a while, though I think it could be of
help to 2Ls and 3Ls too.
Unlike my previous foray into the topic of exams, this post is
serious. I hope it will be helpful to our law student readers.
So here it is:

Catching the Issues
The questions all are stocked full of various issues. Even if you do not analyze an issue
in depth, at least acknowledge its existence.
Formulating the Issues
Catching the issues is not the only important task. You must explain the issues clearly.
Certain issues are very important and others are not. You should indicate which issues
are 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 you
shouldnt reach these secondary issues, but you should indicate that they are
Stating the Law
You need to accurately set forth the applicable law. I dont require specific case
names, but if youre referring to a case, say enough about the facts to identify the
case. If youre applying a test, rule, formula, or the like, you should set it forth in the
exam. Avoid copying entire passages from class notes. This is often not responsive to
the 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 and
unusual ways. You must be aware of these cases. You should not merely apply a rule
as if there were no case-law already applying it. The case law that applies a rule is
instructive in how that rule is applied. You should discuss whether any of those cases
is 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 to
explain 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 right
answer. Although there are right answers to certain issues, others are more
debatable. Im more interested in how you justify your conclusions than in the actual
conclusions themselves. Second, I am not just grading your memory or how
assiduously 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 that
you 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 a
good balance between catching the issues and analyzing them. An exam that spots all
the issues, sets forth all of the applicable rules of law, and reaches conclusions is
respectable, but it is missing the most important component your ability to
demonstrate that you can think through the problems, that you understand whats at
stake, that youve really digested the cases we read and thought about our
discussions in class.
Discussing Counter-Arguments
Often, when an issue is difficult, there are arguments on the other side. A great exam
addresses the counter-arguments to its conclusions. Often the questions on the exam
are not calling for you to be advocates of a particular position, but to appraise and
evaluate the various issues. Even when youre writing to an advocate or as an
advocate, you must address the counter-arguments. After all, an attorney will surely
have to address counter-arguments in oral argument before the court. The judge will
consider both sides of an issue. A good advocate must be able to anticipate the
counter-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 simply
present both sides of an issue and then quit. I want you to come to a conclusion. This
does not mean simply slapping a conclusion on at the end without a reason. So after
discussing the arguments on both sides, explain which side you believe has the strong
Indicate the Strength of Your Conclusions
Not all conclusions are equally as well-supported in the law. You might have to
speculate as to how to resolve some issues. This is fine, especially when the law is
murky 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 not
simply write your conclusion as if it were clearly evident. This is misleading. When an
issue is tough and the resolution is in doubt, say so. This will prove to be very helpful
to lawyers and judges who read your memos they need to know which are the easy
issues and which are the tough ones.
Provide an Accurate Picture of the Law
Not all courts agree on particular issues. Decisions are sometimes conflicting. A
particular issue could be governed by different lines of cases, each of which pulls you
in a different direction. Dont let this alarm you. Welcome to the law! This is what
many 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, youll
often be asked to analyze issues as in a legal memorandum, exploring all sides of an
issue. The key is to provide the reader (me) with a good picture of the law and how it
might apply. A good picture is an accurate one. If the law is clear, say so. If the law is
fuzzy or contradictory, say so. If the law leaves certain issues open and unresolved,
say so.
Argue in the Alternative
Suppose there is a contestable issue. If you decide it in manner #1, the analysis is
over. But if the issue is resolved in manner #2, then there are other issues to reach. If
the issue is contestable (if theres a plausible argument on each side) and if you
ultimately believe manner #1 is correct, dont just stop there. You need to explain
what 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 called
arguing in the alternative. Attorneys do it all the time. An example: My client is not
guilty of stealing the money because he has an alibi. And if he did in fact take the
money, he did it because he mistakenly thought it belonged to him.
Good Organization is Critical
This is very important and is why I explicitly factor it into my grading. It is not enough
to spot all the issues and have a solid analysis of them. You must present your
thoughts in an orderly and logical sequence or else it looks like a jumble. One of the
most important aspects of legal writing is to have a clear organization. Use headings
and sub-headings; this enhances the clarity and organization of your answer. Do not
tax me in figuring out where youre going. A disorganized exam indicates that you
lacked the ability to see the big picture, to understand how things relate to each
Write Clearly and Well
Im not expecting you to write like Shakespeare, but style is important. The key is to
write clearly and concisely. If I read an exam that is full of run-on sentences, bad
grammar, and awkward phrases, it becomes difficult and painful to slog through, and I
become frustrated. Trust me, you dont want me to be frustrated in any way when
Im grading you.
Failing to Follow the Instructions
Pay close attention to the exam instructions. Ive read many an exam that ignored
key instructions and analyzed extraneous issues.
Not Answering the Questions
Pay attention to the questions that are asked. Tailor your answers to what Im asking
you to do. For example, if Im asking you to advise a judge or an attorney, write your
answer 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 all
sides 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. For
example, sometimes in a scenario involving several actors, I ask you to analyze
whether a particular actor can be charged with a crime or crimes. I invariably receive
a number of exams that analyze the charges against all the actors. This is not good,
because you dont get credit for a brilliant analysis that doesnt have anything to do
with 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 exam
a recommended amount of time to spend on each question. Try to follow my
recommendation. If you run short on time, at least flag certain issues if you dont
have time to address them fully. Its better to flag issues than not flagging them at
Getting Psyched Out
There will be some easy issues, but there will also be some challenging ones as well. I
dont expect you to be perfect. Do not feel that because you didnt have time to
address every issue that you did poorly. I recognize that this is an exam, that youre
under 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, or
terrific. 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 cases
interpreting 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 was People 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
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:

Betty is a law student at ILS who lives off-campus. She often rides to class in a gas-
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 the
basis 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 is is
"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:
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 why the 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
under Jones we 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 under Jones we 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
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,
but Jones and Thomson provide guidance. The facts here are somewhere between
those two cases. Unlike Jones's roller skates, Betty's scooter has a one-cylinder gas
engine: It is "a motorized mode of transportation, not a human-powered one"
under Jones. 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 because Jones'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,

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.