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9/15/2011 8:14:00 PM Major mistake 1: The attempt to comprehend the whole.

Never think about a hypo or a problem from a substantial standpoint of what is gong on here legally? Preliminary overview: 2 phases Phase 1: Immediately read any instructions and flip through the exam to gather an over all sense of the format. 30-45 seconds! Phase 2: read the question at the end The only way to consistently achieve a concise, orderly, relevant discussion is to have perspective before you write, to follow a plan. to 1/3 of the time should be allotted to the planning phase if longer hypo i.e. 90 minutes, break planning down into two 10ish minute chunks stick to these limits. It forces you to hustle and get something down on paper plan, write, plan write, in intermittent, energetic segments until time is called Planning phase: Step 1 Identify all conflicting pairings relevant to the questions/instructions at the close of the hypothetical, and the objective(s) of each party to the pairing. Remember, goal of law is conflict resolution so there are bound to be conflicts in hypos Objectives DOES NOT mean legal objectives, but real world objectives i.e. money, jailtime, making P whole again. Analysis must be practical, two sided and goal oriented The examinee who adopts an aggressive, exploitative attitude and approach is much more likely to mull over the facts and pull out subtle points meriting discussion. Person will exhaust the hypos possibilities] Step 2 Identify all the premises Identify counter premises (i.e. exceptions to the rule) Premise = legal basis Break it down into chunks and read selectively. Phrase here, sentence there.

Step 2 doesnt call for an analysis of whether a premise can succeed. Merely identify it as colorable. NEW (RELEVANT) LAW, NEW (RELEVANT) THINKING Dont exclude analysis of something because you think its too obvious and that the professor doesnt want to see it. Likely, he does. o Question is not whether or not to show it but how much time to expend on it (major v. minor issues) For every premise raised, consider the colorable response that could be make by other side.

Be objective, and consider the issue from both standpoints o Any sort of emotional involvement with facts hampers objectivity. Do not reach a conclusion before your analysis o Treat is like a tennis/ping pong back and forth battle Stepts 1+2+preliminary overview = THE BLENDER. This is all you need for initial issue spotting. Elements/subelements/subsubelements create premises which are to be analyzed in paragraphs. Most of the issues arise of such elements You must learn to think about elements, not overall premises, in order to pinpoint what specifically needs to be discussed in order to resolve the issue A common sense view of things is the most important ingredient in fashioning a lawyerlike analysis. Quickly identify the real issue o To ID a non-issue, ask are any of the parties contesting this? if not, its likely a non-issue. Step 3: preview as best as you can which premises constitute major issues, and which ones a minor. Preview whether one element is so obviously lacking as to immediately dispose of the premise. Second, whether any real issues are raised by the premise. If you cant find any conflict in elements, you are probably not looking closely enough Where contest over elements is close (real issue), display the most creative, insightful, logical arguments that the opposing party

can make within the confines of given reasonably inferable facts. This is where policy discussion may come in handy All you want at this stage is a sense that an elements is lacking, or that competing arguments exist Introducing the premise (issue) Just launch into a paragraph, beginning with a statement of the law that is relevant to the premise. The issue is thereby implied. NEW LAW, NEW PARAGRAPH. Avoids needless wordy introductions and transitions. ABRUPTLY BEGIN EACH PARAGRAPH WITH A NEW LAW. No filler, time consuming transitions necessary. Cover counter-premises/counter-issues, even though the question does not explicitly state it. Teacher probably wants to see this analysis. Analysis step: you can go premise/counter premise for each and every element. OR you can do premise premise premise premise followed by counter counter counter. Just make sure the reader can follow you. You simply continue the discussion by matching numbers with evidence/arguments for and against the establishment of the number represented by the element In a case where one of the elements is clearly missing (not a real issue), still law out all of the elements of the law in case your reader might presume that you dont know the law. Play it safe. Express only what needs to be said on the exam concisely. Get good at the game. Become focused on analysisthe thinking process. Fascination with the game of making arguments, with exploring all possibilities as an end in itself will likely result in arguments and insights, surprises (including issues the professor may have overlooked, but should have noted) that impress the grader and earn the A Dont commit strongly in your conclusion. Use phrases like probably, on balance o Also, mention the main points that the conclusion relies on (the real issues), which further distracts the grader from the


conclusion towards the analysis. Hedge these as well (inter alia) Arguments are factually based. They marshall and interpret evidence, facts. They occur in the context of establishing a premise. Premises and counterpremises are legal concepts, each sufficient in itself (a complete legal theory of entitlement) o Imagine each party and client in a hypo is real. Gives you a sense of urgency to solve their issues because something of value is at stake. It forces you to dig deeper. o A policy argument is nothing but another tool. A policy argument is just another premise! o