HOW TO WRITE LAW EXAMINATIONS volving various types of legal controversies and requiring some sort of decision as to those controversies, In principle and objective such questions are similar to the problems in a mathematics quiz, but they are not so easy to answer properly because they require an in- telligent use of the English language rather than symbols and formulae. Problem questions are an almost ideal tool for testing your “lawyer ability” because they present you with just the sort of thing you will be running into throughout your legal career—concrete legal controversies. Their big value lies in the fact that they test all the things you are supposed to learn in studying law. They require an understanding of legal classifications and the organization of the var- ious fields of law because you first have to classify each controversy, recognize what gen- eral type it is, and then ‘see the points” or spe- cific problems involved in it, Furthermore, you have to have a reasonably adequate knowwl- edge of the cases you've studied, the rules of law involved and the reasons and policies un- derlying the rules because you are expected to decide each issue and the whole controversy (82) WHAT EXAMINER LOOKS FOR on the basis of them, Finally, you have to demonstrate your ability to argue logically, in- ductively and deductively, to discriminate be- tween situations that are superficially similar but that differ materially in one or more re- spects, and show that you understand how the legal system operates in the decision of cases. Learning how to answer this type of ques- tion properly is really a part of your legal edu- cation, and strange as it may seem, taking one of these exams can actually be an interesting and stimulating experience when you under- stand them and know what you are supposed todo, Before we go into the details of writing a proper answer, however, let's consider brief- ly what things a law teacher or bar examiner is looking for when he gives you these prob- Jems. WHAT THE EXAMINER LOOKS FOR IN YOUR ANSWER. There is always a good deal of speculation in law school as to just what old Dean Glutz expects in an exam paper, or what you have to do to get a good grade from Prof. Soandso, or what you have to know in order to “pass the bar.” In every school a venerable body of [83]‘HOW TO WRITE LAW EXAMINATIONS opinion on these matters is handed down from. class to class, and nearly everyone accepts it as “the clear dope” without ever bothering to ask the instructors about it. , Even when some kind hearted teacher takes the trouble to explain what he expects, there are many who smile knowingly at his naive attempt to conceal the “seal facts” from them. ‘They got fooled about Santa Claus and the Stork, and they're not going to be so gullible again. ‘The trouble is that now the shoe is on the other foot and that ninety percent of their “real facts” just “ain't so.” Tt is undoubtedly true that no two individual instructors or bar examiners are in absolute agreement as to what constitutes a perfect an- swer to a problem question, or as to the rela~ tive importance of the various parts of it, and it would not only be foolish but impossible to tell you exactly what things each one wants emphasized in an answer without first asking him, Nevertheless, there are certain funda- mental aspects of a good answer to a question of this type that all competent law teachers and examiners look for when they grade a pa- per, and those things can be pointed out with a fair amount of definiteness, 84] WHAT EXAMINER LOOKS FOR First of all, remember that your answer is expected to be an answer. When you are giv- ena set of facts and a question about them, you are expected to answer the question that is asked. Don’t get the idea that these problems are made up merely to give you an opportunity to regurgitate all the rules and cases you can think of or to put on a display of legal pyro- technics dressed up in Latin phrases. When a client goes to a lawyer with his problems, he wants a solution of those problems, and when an examiner gives you a problem he is looking for your solution to that problem. He wants to find out whether you have the ability to do what all lawyers are expected to be able to do, namely, properly apply their legal knowledge in solving their client’s problems. The main object of law study is to develop that ability, and he wants to discover whether you are achieving that object. A mere “yes” or “no”, however, is not a suf- ficient answer. Even judges give reasons for their decisions, and you are supposed to do the same. The examiner expects you to sup- port your conclusions with arguments based on the cases, rules and principles you have 851HOW TO WRITE LAW EXAMINATIONS studied, and your answer should therefore be a concise legal opinion similar to those handed down by the courts, You are supposed to ex- plain why you think the law requires the par- ticular decision you are making. Assuming that yeu comply with these gen- eral requirements and give the examiner a definite answer to the question he asks with a clear, concise argument or opinion in support of it, what specific things does he look for in that argument? What are the important parts —the things on which your grade depends? In the first place he looks to see whether you have seen all the points and discussed all the issues that were involved in the problem. Al- most every legal controversy involves a num- ber of subsidiary issues, specific questions of law or fact that must be decided before a final conclusion can be reached. When a lawyer gets a case and has dug out all the available facts, his next task, like that of a doctor, is diagnosis. He has to consider every possible cause of action, basis of liability or legal wrong that may be involved, as well as all the possible defenses that may be set up. He can’t go to the books to find out what decisions and [85] WHAT EXAMINER LOOKS FOR rules govern his case, any more than the doc- tor can look up a proper treatment, until he has determined what sort of a case he has and what sort of rules to look for. If he overlooks @ point, his conclusion and argument are con- siderably weakened. Consgquently, the valte and soundness of your argument and conclu. sion depend upon whether, in the light of all the cases and rules you have studied, you have accurately classified the problem given you, picked out all the particular cases and rules that dealt with that type of problem, and dis- cussed their bearing on it. If you have done that, the examiner knows that you have the first attribute a lawyer has to have. To the extent you have failed to do it, your grade _ The next thing he looks for is your discus- sion or statement of the cases and rules on which you are basing your decision. Granting that you have seen all the issues and picked out the cases and rules that are pertinent in deciding them, he wants to know whether you understand what those cases held and what the rules are. After all, if you're going to decide the issues according to law (as you are expect- U1HOW TO WRITE LAW EXAMINATIONS ed to do) you have to have a fairly accurate understanding of what the lazw is on each issue if there is any, whether it is well settled or whether it is doubtful in view of conflicting or ambiguous cases. If it happens that your problem involves.a point that has not been passed on by the courts, he wants to see rl er you know that fact and what rule you thi ‘a court might adopt in view of analogous cases. Lastly, the examiner looks for your applica~ tion of the pertinent cases and rules to the facts he has given you. No two legal contro- versies are exactly alike in every detail, and although the case you are deciding may be quite similar to others you have studied, there may be some aspect of it that requires a dif- ferent decision. He wants to see whether you recognize the similarities and differences ané whether, by reference to the reasons and poli- cies underlying the various pertinent rules and past decisions, you have arrived at a logical and sound conclusion. (0) , clusions_and_ Decision. ) © 88] ‘Those are the basic WHAT EXAMINER LOOKS FOR elements of a good legal argument or opinion, and those are the things the examiner is look- ing for in your answer. As previously indi- cated, it’s impossible to tell you just how much value your particular instructor or bar exam- iner attaches to each of them, or the ones he thinks are the most important, You'll have to find that out from him, In that connection, however, there are one or two things to bear in mind. In the first place, your instructor in law school is testing you on the basis of a definite. body of cases and rules that have been covered in his course, He knows what material you've covered and what you haven’t, and ordinarily he does not give you problems involving phases of law that are wholly unfamiliar or that have not been referred to in the course. Conse- quently, he usually expects you to know and understand the pertinent cases and rules quite thoroughly—the conilicting lines of decisions, majority and minority views, reasons for each, and so on, Furthermore, he usually expects you to confine your discussion to the legal questions pertinent to his course, and not drag in matters from other courses even though the problem may involve them, [9]HOW TO WRITE LAW EXAMINATIONS Bar examiners, on the other hand, are deal- ing with students irom many different law schools whose courses frequently have not been identical in content. Consequently, they do not know exactly what material each of you has studied in each course and, in selecting problem questions, they are to some extent “shooting in the dark.” Most of them realize that some of their problems will be utterly strange to some of you and that your answers to them will have to be based on the broad gen- eral principles you have learned rather than on specific cases or statutes. Therefore they usually do not expect or require as thorough and accurate an understanding of the estab- lished rules as a law teacher does. It is true, of course, that bar examiners differ greatly from state to state and that it is difficult to generalize about what they want, Many of them expect a fairly detailed understanding of the principal statutes and decisions in their ‘own state, but on the whole their grades are based more on your analysis of the problems and your ability to present a sound, logical argument in support of your conclusions than ‘on the number of statutes, cases and detailed rules you can accurately remember, [90] WHAT EXAMINER LOOKS FOR Another thing to keep in mind is that bar exams cover your whole law school course rather than a few specific subjects. In some of them the problems are not even grouped and labeled with such titles as Torts, Property, Procedure, etc,, and a single problem may thus contain points involving material you have dealt with in several different courses. Even in those exams where the problems are group- ed under the conventional headings, they may. not be of the same type as those you consid- ered in the law school courses of the same names. Thus a bar exam problem listed un- der the heading of “Contracts” may involve nothing but questions of Specific Performance which you may have studied in a course in Eq- uity. And a problem classified under the title of “Evidence” may deal wholly with the Parol Evidence Rule which you perhaps learned about in your course in Contracts or in some other law school course. Nevertheless, you will be expected to discuss all pertinent points in these problems and will therefore have to consider them on a much broader basis than you did the problems in your school exams. In view of these and other differences be- tween law school and bar exams, it is wise to * rayHOW TO WRITE LAW EXAMINATIONS get as much reliable information as you can about the type of bar exam given in your state and what the examiners require. Don’t rely ‘on mere rumor, however. Ask someone who knows. Writing the Answers. If you keep in mind the preceding explana- tion of the nature and object of law exams and. the sort of answers you are expected to give to problem questions, you shouldn't have much trouble in writing a good paper, provided, of course, you have the necessary native ability to be a lawyer and have done a proper and thorough job of studying. Nevertheless, some specific suggestions about the actual procedure of writing answers may be helpful. Most of us are inclined to get the jitters when we ac~ tually find ourselves in the exam room, and it helps a lot to have some definite, concrete ideas about what to do and what not to do. Some people like to start an exam by read- ing all the problems through once before try ing to answer any of them, just to get a better perspective. You may find this confusing, however, especially if you are nervous or ap- prehensive. After all, you've got to answer [92] WRITING THE ANSWERS the questions one at a time no matter how you start out, and you may have less difficulty if you finish each one before you even look at the next. Whichever approach you adopt, be sure to apportion your time in view of the number of problems and try to stay on sched- ule. Don’t dawdle over the first two or three questions and then rush madly through the others. On the other hand, don’t get panicky and start writing before you know what you want to say. You'll usually be given plenty of time to finish the whole exam and do a good job if you don’t waste it. The secret of writ- ing a good paper without wasting time is to work systematically. Allot a certain amount of time to each prob- Jem and then follow a definite procedure in analysing it and writing the answer. Spend about half the allotted time thinking about the problem and planning your answer before you write anything, You can’t build a good house unless you've first determined exactly what kind of a house you want and have made some plans. You can't write a good answer until you've thoroughly examined the problem, an- alysed it in the light of the cases and rules [93]HOW TO WRITE LAW EXAMINATIONS you've studied, and determined what your an- ‘swer and argument are going to be. This, of course, seems rather obvious, but the urge to grab your pen and start writing is frequently so strong you may forget it unless you work: out a definite program and follow it. It’s im- possible, of course, to tell you exactly how to proceed. Problems vary and human minds work differently. There are, however, several basic steps that have to be taken, and the fol- lowing suggestions about them may prove helpful to you in working out a systematic pro- gram for yourself. ]) Reading the Problem. ‘Be sure you get the facts straight and un- derstand who the parties are, what they did, and what happened to them. Pay particular attention to the question that is asked, Find out exactly what you are supposed to decide— whose rights or what liabilities are involved— just what you are asked to determine. Read the whole problem through at least fwice. The first time you read one of these exam ques- tions it nearly always seems strange and unfa- miliar, and you may be inclined to get panicky. Go over it again, slowly and thoroughly, line [94] ANALYSIS by line and phrase by phrase. You'll find a lot of things you missed the first time. Try to visualize the situation that’s involved. Draw a diagram on scratch paper if the facts are complicated. It doesn’t take long to do this, and when you really understand the situation you'll usually find that the problem is not so unfamiliar as it seemed at first. Above all, be sure you haven't misread what is stated or misunderstood the question. ‘That’s inexcus- able and will spoil your whole answer. Fur- thermore, don’t assume facts that are neither Stated nor inferable from those that are. Anal, _ Im analysing a problem start with the qiles- tion asked or the statement of what you are to decide. That’s the focal point of the whole Problem. Then figure out, step by step, what the answer depends upon in view of the facts given and the rules and principles of law you have studied. In other words, determine all the subordinate questions and the ultimate, specific issues of law and fact that will have to be decided before you can make your deci sion on the main question. Then determine 195]HOW TO WRITE LAW EXAMINATIONS how those ultimate issues ought to be decided in view of the specific rules and cases applica- ble to them, Perhaps the best way to explain this process is to illustrate it. Suppose that you were given the following problem in a Contracts exam: “B owed A $100 presently due. A wrote a letter to B on May Ist, telling him that he, A, needed money and that if B would send him $75, A would cancel the $100 debt. Bey this letter on May 3rd, but did nothing until May 11th. On that day B wrote to A, enclos- ing $75 and requesting a receipt in full for the debt. A received this letter on May 13th, but immediately wired B that he would not a the $75 as full payment, that B had waite: too long and that A now wanted the full $100. B refused to pay any more, Has A a cause of action against B?” i (The question might, of course, be stated in various ways. For example: wae “Is A entitled to recover anything from BP “A brought an action against B for $25. Decide the case.” 96] ANALYSIS “A brought an action against B, alleging the foregoing facts in his complaint, B demurred to the complaint, Should the demurrer be sustained?” In any of these forms, however, the question still calls for a determination of A’s rights against B.) In analysing this problem you would ob- serve that the answer to the question neces- sarily and obviously depends upon whether A’s promise to cancel the debt became legall hinding-on him, because ¥f jt did, he-ctearly has no rights against B. Zit did not, how- ever, the debt has not yet been fully paid and A has a cause of action against B. Now, whether the promise was legally binding on A depends, of course, upon the rules of Jaw governing the legal enforceability of promises in general, and you would therefore go back mentally over the various rules you have studied which dealt with that question, and determine whether all the requirements are resent in this situation. You would recall the general rule that simple, unsealed prom- ises (like A’s) are not legally binding unless they are part of a bargain and are supported Law study? [97]HOW TO WRITE LAW EXAMINATIONS byal ‘ent consideration. ‘Thus, un- less there has been an agreement between A and B—an offer_and acceptance—supported by consideration, A’s promise was not binding on him. Mentally reviewing the specific rules and cases dealing with offers, you would prob- (ably conclide that A’s promise in his letter was clearly an offer to B requesting an act on B’s part (offer for unilateral contract), and that since it specified no time for acceptance it remained easonable time. Since( B clearly did the requested act and thus pur- ported to accept the offer unconditionally, the only debatable point on the question of offer and acceptance is whether he did so within a reasonable time, and that would be the first ultimate issue. But even if B did accept A’s offer within a reasonable time and thus con- summated an agreement with him, A still would not be bound unless his promise was ted by a Jegally sufficient-consideratian. Mentally Poing fever Cieiapene aaa cases on that subject you would recall that the question of consideration depends generally on whether B's act of sending $75 involved any legal detriment to him or legal benefit to A, and that would be another ultimate issue, (98) ANALYSIS Then, to be sure that the facts involved no other questions on which A’s rights might de- Pend, you would mentally go over the other general rules governing the legal enforceabil- ity of promises to see whether any of them might be applicable, Finding none, you would then draw your conclusions on the two issues found. On the issue of reasonable time you would most likely conclude that the question was simply one of fact, that it was sufficiently doubtful to go to a jury, and that it could Properly be decided either way. On the issue of consideration you would recall the cases in- volving the question of whether part payment of a liquidated debt is sufficient consideration for a promise to discharge the balance; you would remember that despite persuasive rea- sons and a few decisions and statutes to the contrary most of the cases had held that stich Part payment was not sufficient consideration; and, although the point could be plausibly ar- gued either way, you might well conclude that there was no consideration for A’s promise in this case, that it was thus not legally binding on him, and that he is therefore entitled to re. cover the balance of the $100 debt from B, [9]HOW TO WRITE LAW EXAMINATIONS ‘This description of the steps you would pre~ sumably take in analysing the suggested prob- lem is, of course, merely illustrative. It is sim- ply an attempt to indicate the sort of mental process you have to go through, consciously or subconsciously, in determining the answer to any legal problem. It is not set forth as an ideal pattern that should be rigidly followed even in analysing this specific problem. In many instances you will immediately rec- ognize soine of the ultimate issues involved in a problem as soon as you have read it. In others you will have to go through a complex series of logical propositions and consider a variety of rules and cases before you discover the basic questions involved. The important thing is to understand what you are trying to do, and then do it thoroughly. Be sure you have found and considered all the arguable questions pro and con—all the possible bases of liability, defenses, exceptions, and so on— that might be involved in view of the facts given and the various cases and rules you have studied. Don't be content to give a decision ased on your conclusion as to one issue when a contrary conclusion on that issue would re- [100] PLANNING THE ANSWER Quire a consideration of further questi ee all the possibilities, On te oe | when you have found all the issues that seem pertinent, consider them carefully to see aes ‘ey really are involved in the prob- , r, in view of th could not properly be raised. Dante Feach or support a decision by an agua at is not applicable to the facts. Planning the Answer. Before you start writing, take a moment o1 two and figure out the best order in which to Present your argument. Don’t jist spray th Paper with unconnected sentences and pe Sraphs, and then try to organize them later by rewriting, crossing out, interlineating and in. ae arrows Observe the logical aie e various issues you're going to dis. cuss follow one another, and plan ‘ei z f a uss then a ae eiting takes far more t n s- One or two mii coe ore Ce writing page that has to be crossed out uurthermore, remember that you're building a structure of ideas for someone else to an amine, and that it will be better understood if [u0ry