By Bill Childs
I just completed my first semester teaching. I had no teaching or grading experience, except as a recipient of both services over a number of years. In other words: I am like the Baby Spice of the professorial world…though my hair doesn’t do that sassy dangling thing.
With that caveat, I submit six things not to do on law school exams (hereafter “TNTDOLSE”). While they are based on this first semester of exams, I expect they would be useful advice for most law school exams. I should also note that, even though these are identified as things not to do, I was actually quite impressed by my students’ efforts this semester.
Not all of these TNTDOLSE are grade-dispositive. Indeed, you could probably do most of the TNTDOLSE to some extent and still pass – or even do well. Mess up the facts? I’ll knock you down a little but still evaluate what you did with your version of the facts. Ramble on without any organization? Well…I’ll try to find what’s there and give you credit for most of it. But if you avoid these mistakes, you’ll almost certainly do better:
6. Do not ignore the fact pattern. Put another way, read the silly thing. I understand that there’s a lot there (for my most recent, er, ahem, only exam, go here), and I know you’ll get some minor points confused. I also recognize that there are some ambiguities in every fact pattern, some intentional and some not. But there are some big facts that you should get correct – in the linked-to exam, for example, who owns and/or leases the land holding the various attractions. Yet at least five of seventy students misunderstood at least one of those facts, which are important for identifying the various duties owed.
5. Do not just write down your outline and turn it in. It’s great that you can recite the elements of a claim for negligence, and it’s a good start, but it’s not enough. It’s not even enough to write down the elements as a checklist and assert that the elements can, or cannot, be satisfied by the plaintiff. There are a lot of facts given for a reason – you need to work with them.
4. Do not rely strictly on commercial outlines. I told my students at the start of the class that anyone who told them they had a magic way to get through the first year of law school was probably selling something laminated and colorful. Sure enough, many exams came back with a good volume of material that clearly came from laminated and colorful outlines.
Generally, commercial materials can be a good supplement to your notes and understanding. And they’re pretty and the lamination is usually quite professionally done. That said, given a choice between analyzing an issue based something you read in a pretty Sum & Substance outline and analyzing it based on something I said in class, it’s probably not a big surprise that I’d rather you use my approach.
The most obvious example this semester was in the context of causation. I teach from the Robertson, Anderson, et al. casebook (no, Bruford, Wakeman and Howe are not involved), which emphasizes the use of the term “legal cause” in the place of the baggage-laden term “proximate cause.” I emphasized that approach in class, hardly using the term “proximate” except to note the confusion it has engendered (and at the same time noting that it remains the most common term used by practitioners and judges).
Nonetheless, back came many exams referring to “proximate cause” and using stock definitions (clearly from commercial materials) that ignored the variety-of-risk definition we used for the concept.
3. Do not just spew stuff onto the paper like you’re Faulkner on meth. Yes, law school exams are largely a volume business (more on that below), but come up with some semblance of organization, both for the exam as a whole and for each part. It doesn’t have to be IRAC – indeed, that’s often not the most effective structure – but I’ll take it over stream-of-consciousness. Unless you are quite confident in an alternative structure, IRAC will typically work just fine – in other words, you’re unlikely to lose points for using that approach.
But, you protest, Baby Spice Professor, exams are about getting as much material on paper as possible! Somewhat, yes, but this semester, my grading sheet had a set number of points available for each issue in the exam (e.g., up to 3 points for a discussion of a particular claim for emotional distress) and then an overall kicker for the general quality of the answer, incorporating structure, legal writing abilities, and so on. The kicker was designed to represent around a quarter of the grade. Spewing stuff out will hurt you on the kicker.
Faulkner on meth would not have done well on the kicker. Still, he would be fun to have in class:
Annie Operator muttered (‘Oh, Andy, Andy, you’ve fallen. Andy!’) and she stood there just as she had for thirty-five years or perhaps three months and she thought, the straight line he traveled seemed quick and harmless but then the straight line intersected the uttermost curved wall and the lines were no longer far apart but together, too together. Annie, brooding, musing, drooling, thinking, feeling, knew she had duty and breach (‘After all, the burden was less than the expected value, but those are just words that sing in our ears.’) and damages and causation but was it both factual and legal? She did not know and she was afraid she had been tricked by words, words full of agony and song again. Now, where can I score some crank? That gackle-a fackle-a shit Howard Hawks got me was great.
2. Do not get hung up on one issue at the expense of others. As noted above, law school exams are largely a volume business. You need to do a decent job with each of the issues, but if you go into a lengthy multi-page exposition on the history of emotional distress claims in tort law, you’re likely taking up time that you should be spending on other issues. You’ll get good points on that issue (assuming you don’t make something up – “Emotional distress claims were first recognized in the seminal Kermit v. Piggy case by Justice Gonzo”), and I’ll often try to reward that sort of thing in the kicker grade as well, but you need to show breadth as well as depth. Budget your time, and prepare mini-outlines before you start writing. (This will help with the Faulkner problem too.)
1. Do not write your law school exam as if you are instant messaging your junior-high lockermate. While recognizing the time pressure you may be under, never, for the love of God, use “u” instead of “you.” Ever. Two exams this semester contained that abbreviation. This is a law school exam, not a Prince album title.
About the Author: Bill Childs is an assistant professor of law at Western New England College School of Law in scenic western Massachusetts. He previously practiced as a litigator in Washington, D.C., avoiding jurisdictions like Evan’s like the plague, but is now certain Madison County is a delightful place to be for all parties. His academic life, web-wise, is at http://masstort.org.