Tip #1:
By Noah P. Melnick
There have been many books written on the subject
of law school exams. Professors will suggest a plethora of ways to prepare,
practice, and excel. From my perspective there are two areas to be addressed
in doing well on law school exams. First, there is preparation. Second,
there is the actual vocational skill of writing an exam. To excel on law
school exams you must be a master of preparation as well as a master of exam
writing.
Preparation means going to each and every class
no matter how boring or seemingly irrevelant. Professors generally spend
time teaching about what will be on the final. Commercial outlines are
not a good substitute for attendance and/or paying attention in class. Moreover,
it is only by listening carefully to everything your professors say that you
will absorb the quirks of each professor which will later become manifest in
how they grade papers. Read the assigned materials. Prepare for
class by actively taking notes before, in, and after class. Start your
outlines on the first day of class and update them regularly. Diligent
preparation on a regular basis will vastly improve your chances of doing well
on your finals.
There is more to law school exams than preparation
alone will provide for. Remember, exam writing is like any other skill.
Only through practicing will you master the art of exam writing. Your
professors will have their old exams on file in the library. Approximately
50% of the way through the semester you should obtain these old finals. Start
doing one per week. As the end of the semester approaches start doing
two or three per week. By the time you actually write a real final you
will be so practiced that it will seem like nothing. Practice is essential
to learning any skill, why should writing an exam in law school be any different?
In short, prepare and practice and thou shalt
excel. When all else fails remember the words of Theodore Roosevelt, "The
credit really belongs to the man in the arena who at best knows the triumph
of high achievement and who at worst fails, but fails while daring so greatly
that his place shall never be among those cold and timid souls who know niether
victory nor defeat."
Tip #2: [SOME
TIPS FOR THE OLDER STUDENT]
By Lena Holubnyczyj
When I was
asked by my colleagues to jot down some advice for our new evening division
students I immediately thought, what advice can I possibly offer that's not
already available in the large number of books and web sites addressed to the
first year law student? Then I thought back to the reading I did the summer
prior to the start of my 1L year. What was missing was some sound advice for
the – dare I say it – 'older” student. If you are like I was exactly one year
ago, you have been away from a formal classroom for more years than you wish to
recall and are coming to law school to perhaps start a second career. And just
maybe, you are a bit put-off by the young blood you see around you and just
maybe you are both a bit exhilarated and edgy about the entire process. If you
are, then please read on. What follows are some pointers, in no particular
order, from an 'older” student that just happened to survive her first year!
FIND
YOUR CHRONOLOGICAL PEERS
By all means seek out and find
each other. There is no better way to start your law school experience (i.e.
ordeal) than by kibitzing with those among you that have similar life
experiences.
DON'T RESIST REFINING OLD STUDY
TECHNIQUES
Tried and true study habits
that you relied on in college to get you through your four years may in fact
fall short this time around. Law school is not like college. I found out early
enough (thankfully!) that my very passive study habits that did me well in
college, those many years ago, just didn't adequately prepare me to get the
most out of my classroom experience. Particularly when it came to discussing a
case or analyzing a topic with the professor.
Getting the
best out of your weekly reading assignments requires active participation
with what you are doing. What works best for me is briefing each case
and taking notes as I read along thus creating a nice assignment package
so to speak, which I causally review before each class and have readily
available during lectures.
To contribute your own thoughts on exam techniques to this page simply
e-mail us your submission and we will post it. Submissions may be e-mailed to:
esa@nyls.edu
Tips From Beyond The NYLS Community:
Tip #1:
Writing Law
Examinations
By John H. Langbien Professor of Law, Yale Law
School
Author's Note: Some years ago I prepared this little essay for the
guidance of my students. When the essay began to circulate elsewhere, West
Publishing volunteered to publish it in these pages with the thought that it
might be of help to a wider audience. I hope it is. (Note:
Professor Langbien has graciously granted the ESA permission to reproduce his
essay on this web site.)
Law examinations
share a good deal in common with other stock forms of legal writing, such as the
brief, the law office memorandum, and the judicial opinion. Developing proper
skills of exam writing will have, therefore, permanent returns.
Ideally,
a good law examination tests how well a student has mastered the course
material, and the ability to apply this knowledge to new situations. There are,
however, some recurrent mistakes, oversights and unwise practices that prevent
students from doing as well as they might. If your are alert to avoiding these
pitfalls, you will improve your examination results.
Lack of
Organization. The most costly mistake an examinee can make is to fail to
organize an answer well. An answer which flails at the examination question
without a plan will overlook issues and connections between issues. There is not
universal scheme of organization. Depending upon the layout of the question, it
may be convenient to organize by parties or by legal issues. When the facts set
out a substantial number of transactions or events extending over time, it may
be best to organize by dates, beginning with the earliest facts and working
forward, explaining what issues and arguments change as the plot thickens.
Especially in property and tax courses, it is sometimes quite sensible to key
your answer to the treatment of particular assets or groups of assets.
Regardless of the mode of organization, organize. You are not wasting time when
you sit in an examination room thinking about how best to approach and argue the
issues. Careful organization can also spare you the serious error of
inconsistency in your treatment issues. I doubt that a mental checklist is
enough - I think you need to jot down a little outline to which to refer as you
write your answer.
Of course, virtue can be carried to excess: it is
possible to overorganize, to splinter your essay into useless subheadings that
lose continuity and conceal interrelations. One mode of organization that is
usually unwise is to segregate the pros and cons of a great number of issues
("Plaintiff makes the following eight arguments....Defendant offers the
following nine responses..."). Usually, the time to say what's wrong with an
argument, or what difficulties may ensue if a certain rule is applied, is right
after you state the case for the argument or rule. I recommend that you try to
address liability-creating factors before you discuss defensive ones. Defective
considerations are difficult to evaluate in the abstracts. You get the cart
before the horse when you raise the defensive position in advance of the
notional theory of liability that would bring it into play.
Regarding
the fact. Before you can organize, you must know what your are organizing.
It is worst sort of false economy to hurry through the facts in order to start
writing bilge.
Examination questions are dense: every sentence, every
word may have significance. You should read a question through to get its
general drift, then reread it with care. You must question the question. "Why is
this fact being told me, why this date, why these parties?" Above all, get the
facts right. It is easy to confuse parties and places on an examination because
you have not had long familiarity with the facts. Only your own commitment to
avoid carelessness can save you from doing it.
Here too excess is
possible. Some answers display a preposterous suspicion of the facts, e.g. the
examinee who has been told that Mr. Corpse is dead, but insists on reciting that
"Mr. Corpse appears to be dead," or "If Mr. Corpse is in truth
dead..."
The importance of role. Pay attention to the role the
examiner has assigned you. If you are told to be an advocate, you will
necessarily approach a question differently than if you are put in the shoes of
an impartial judge or legislative draftsman. Be alert to the common tendency of
examiners to change role assignments when they change questions. Be sensitive to
the significance of your role when looking at the state of the facts in the
examination question: have the facts been found below in the lower court or are
you being asked to shape them for argument to a trier, and if so to whom, a
professional or a jury of layperson?
Read the instructions. I have
been staggered by the amount of abject carelessness that is exhibited by
examinees. Some students disregard plain instructions to begin a new question in
a new bluebook. Some omit their examination numbers. Other misallocate their
time although told in advance and again on the examination itself what the
relative weight of the question will be. You should go into an examination with
a schedule. When you have been told in advance that there are three questions of
equal weight and that you will have two and one half-hours to write the
examination with a schedule. When you have been told in advance that there are
three questions of equal weight and that you will have two and one half hours to
write the examination, you should work out beforehand that at 9:45 you will move
on to Question Two, and at 10:30 to Question Three. The student who writes a
total of four sentences on the last question, concluding with the breathless
report, "Time!", is displaying a self-inflicted wound whose consequence is
deserved.
Padding. No examiner gives credit for quantity of words
written. Nonetheless, a huge proportion of examination papers contain many
paragraphs that should not have been written and for which no credit can be
given. The two most common varieties of padding are regurgitating the facts, and
what I call wind-ups (lengthy preliminary discussions of issues which might be
involved, or of general policies or values like enforcing intention, or of the
scheme of organization the essay is going to utilize). The examiner has written
the question and knows what the facts are. You will never get credit for
summarizing them all over again, even if your "role" in answering the question
is that of the judge.
Go immediately to the issues, then mention those
facts that are relevant when they are relevant. A particular variety of padding
is to write out quotations from casebook materials or statutes in an open book
exam. Cite it, don't copy it.
Inventing facts. An especially
maddening trait of some examinees is the manufacture of facts. Usually these are
very convenient facts that let issues be avoided. Typical: "The law in this
jurisdiction is...." Or "It was argued in this matter..." Never add to what the
examiner has told you about the facts. If you don't know what positions were
taken into court, deal with them as possibilities rather than attributing them
to particular parties. If the examiner hasn't told you what jurisdiction you are
in, and you know that there is a conflict of authority on the issue, talk about
the conflict, don't try to weasel out by assigning the governing rule. It may
sometimes be in order to tell the examiner that particular additional facts, if
present, would affect your analysis in some particular aspect, but do not dwell
on such matters.
Authority. There are two opposite extremes to be
avoided in citing statutes and cases. If you are taking an open book
examination, especially in a statutory course, don't neglect to mention the
statute section numbers you are referring to. That is to say, when relevant
authority is close to hand, take advantage of the opportunity to make your
answer more precise and lawyerly by citing the statutes or cases you are
discussing. The greater failing, however, is senseless reference to authority.
It weakens rather than strengthens your argument when you cite case names whose
relevance you do not and cannot explain.
Negative issue spotting.
It is usually quite appropriate to say that on these facts, a particular
issue that might have arisen does not arise, having been foreclosed by
such-and-such fact or factor. But this shades into a flagrant error that will
cost your points. If you have come prepared to talk about the ABC issue, and
disappointed to find no ABC issue on the examination, it is not solution to
write an essay about the subject of your disappointment. (Since I don't find an
ABC issue on these facts, I'll tell you that there is no ABC issue here, and
then I'll spend a page telling you about ABC.") The examiner knows what's on the
exam.
Knowledge. A common failing in a needlessly weak
examination essay is the tendency to try to barf back the contents of classnotes
or course materials. What the examiner look for is not memorized knowledge, but
ability to use the knowledge of the course. To be sure, you have to have
the knowledge. That's the essential precondition. But what distinguishes strong
work is that the student brings that knowledge to bear on a new problem, or that
(in response to a question) the student uses that knowledge as a basis for
thinking about new facts or new issues.
Another way to make this point
is to say that you must not expect to employ everything you know about a course
on the examination. Often a course starts with the basic concepts, then adds
more advanced knowledge, and in these circumstances the examiner is likely to
probe for the advanced knowledge. You have not wasted your efforts learning the
basics that are not called for on the examination. Without the basics, you
couldn't deal with the frontier. It is a major blunder in such circumstances to
insist on emphasizing the rudiments when the question invites you to higher
ground.
Procedure and remedy. Common procedural issues cut across
most substantive issues: does a particular party have sufficient interest to
have standing; what are the remedy implications of the substantive legal rights
you think pertinent; has there been delay such as to raise laches or statute of
limitation problems. Remedy is especially important. It will be a rare
examination that does not pose problems of remedy. Consequently, to speak in
tort terms, get in the habit of asking yourself: "Now that I see there has been
a wrong, which of the many conceivable things a court can do about the wrong
seem appropriate here and why?"
Question-begging. The most
recurrent error that we all make in legal analysis is failing to justify our
conclusions. The art has many forms. Beware the adverb "clearly" or the phrase,
"It is clear that..." Examiners tend not to set questions that can be resolved
by sentences that properly begin with the word "clearly." I do not mean to
suggest that there are no easy issues on law exams. There are. One thing your
examiner is testing for is your ability to distinguish straightforward problems
from complicated ones: a hallmark of a weak answer is that the student spends
time thrashing an easy point to death rather than facing up to the hard
problems. Because legal issues do not involve the same degrees of doubt, you
should signal your awareness of how open a particular issue is.
Under the
heading of question begging, the basic failing I am talking about is the
practice of stating legal conclusions without giving the reasoning. You will get
little credit for saying "Bloggs committed fraud and so his legacy fails." You
have to show why the issues inheres in the facts (what conduct amounted to fraud
and why), why your result follows from the facts and the law. The right answer
isn't right unless you show why.
Issue spotting is not enough. We
emphasize issue spotting on law examinations because it is so central to the
lawyer's job. Your client is not going to come in and say "I have a Section 1983
action I'd like you to bring." Instead you will hear something of what happened,
or what the client wants to achieve, and it is you job (after getting at the
facts) to see what legal issues may arise on those facts.
But however
important issue spotting is, you need to do more. It is not enough to hit the
side of the barn. Once you see that an issue is in question, that doctrine or a
statutory section applies, continue to ask yourself: what are its implications,
its ramifications for the various parties, the difficulties it raises? Have you
indeed spotted the applicable rule, or can the rule be distinguished? The
examiner will commonly set a question whose facts suggest, but do not quite fit,
some conventional rule of law. The student who displays sensitivity to
distinguishing the particular case according to the purposes of the seemingly
applicable rule is on the way to an A.
If you are going to get beyond
issue spotting, you must refrain from dealing with issues in generalized terms
that prevent you from developing your analysis. Abstract discussions of legal
doctrine are seldom justified. The examiner wants to know which facts raise the
issue and how the issue affects the rights of parties.
The other
side. The hardest part of legal analysis, I think, is to keep one's mind
open to all sides of an issue. We tend especially in the adversary process to
blot out opposing positions. We take a stand and justify it. But there is almost
always another side, or several. And you can't be sure that your view is (a)
correct or (b) properly articulated and defended, unless you have asked
yourself: "What can be said against my interpretation of the facts and the law,
what would the other side argue?" A really good examination answer not only
suggests the preferred solution, but it develops both sides of the problem.
You should master the technique of arguing in the alternative. If you
deal with an issue and resolve it, and you are aware that had you resolved it
the other way you would have had to deal with other issues consequent to the
other solution, argue the point in the alternative. Don't duck issues that the
facts do invite you to discuss.
Irresolution. It is usually best
to reach results. Lawyers are paid to advise and judges to decide. Hence you are
not doing your job on the typical examination questions if you say that only
such-and-such doctrines may apply. Do they? Why and how? A strong essay
constantly signals the weight being attached to various issues, rules and
arguments, and it suggests in a reasoned fashion the probable
outcome(s).
Inspiration. It sometimes happens that the examiner
puts an issue on the exam about which you have thought long and hard, or indeed,
about which you find yourself with something daring to say even though you have
not thought long and hard. You have an analysis that not prior legal thinker has
ever suggested, or you think the relevant doctrines to be quite wrong for
such-and-such reason. It is quite proper for you to put such observation on your
examination answer, they are the stuff from which A-plus grades can be made. But
before you reach the unconventional, be prudent. Set out the ordinary analysis
that would govern the problem in case the court or the examiner where to think
less of your inspiration than you do.
The seamless web. In
statutory courses students have a tendency to overlook consideration not
directly tied to code number. Statutes do not work in isolation in our legal
system. The code may not reach all aspects of the problem. Furthermore, don't
let course titles become blinders. Don't be afraid to use your knowledge from
one course in another. It may be quite appropriate to point out on a torts exam
that a problem would also be susceptible to contract analysis. On the other
hand, don't get carried away with such efforts. If it's a torts exam, the bet is
good that the examiner has supplied you with lots of torts issues to write
about.
Writing. No matter what the level of your writing skills,
there are some mechanical things you can do to present your work at its best.
Break up the main scheme of your answer into paragraphs. Use complete sentences
and avoid abbreviating ordinary words. Avoid slang; expressions like "to throw
out of court" can conceal distinctions that your examiner regards as important.
Write legibly, if you have difficult handwriting, skip a line between each
written line. Leave a conventional left-hand margin for your examiner's
notations. Remember that if your examiner is spared having to decipher your
script, more time will be available to concentrate on the nuances of your
meaning.
Typing. I recommend to students that they consider
typewriting or word-processing examination answer whenever it is allowed. Even a
hunt-and-peck typist is not at a particular disadvantages, because it will not
be necessary to do copy-typing on a exam. My hunch is that for most student
typing facilitates clarity.
Avoid jocularity. Your examiner takes
seriously the questions propounded on the examination. I don't suppose that I
mean to recommend against all levity, but rather to say that in my experience
most attempts seemed strained an cloying, and most seem needlessly to have
preoccupied the examinee. As an empirical matter humor is associated with error
and bad-exam-writing in a surprisingly high correlation. (Some students think
that jocularity is invited because the examiner uses bizarre names for the
parties and places in setting a question. This is done in order to help students
avoid confusing the parties. Even when the examiner uses very awkward names, a
goodly minority of examinees still confuses them. You have no reason to imitate
the examiner's art in this manner).
Panic. Somehow it happens that
a few students get all the way to law school without learning to steel
themselves against panic psychology in exam taking. The thought process must be
something like this: "Because this exam is important to me, I have to abandon my
analytical good sense in a race to slop something on paper. I also have to
jettison my usual attention to grammar, spelling and punctuation, and I shall
adopt stream-of-consciousness prose style in order to show the examiner how
desperately urgent I thought it all was." No matter how important the exam,
panic will not help. It only renders you less capable and less persuasive then
you otherwise would be.
