In the past six years I have worked with students from four very different law schools. The outsider's most frequent question is "Aren't there big differences in the students? The students from X must need less help than the students from Y." My observation is that the differences among the students are minute compared to the similarities among them. Very few of them realize that the skills they acquired as undergraduates will not serve them well as law students. Superior students from prestigious schools are not immune to this sobering revelation. Students who are accustomed to being guided by clearly written, well organized textbooks are bewildered by the law school casebook. Students who wrote good essays in undergraduate school are not prepared for the issue-spotter law school type. Those who are used to being rewarded for "finding the right answer" do not adjust well to law school exams where the analysis is important, not the answer.
The situation is made worse by the lack of guidance given by law school faculty and the overabundance of advice, often conflicting, given by other students or study aid books. Professors are often very interested in the issues on the cutting edge of their field, and they prefer to use class time for a discussion of these issues rather than ground students in legal theories that underlie these discussions. Students are incredulous when they are told that their exams will require demonstrating their knowledge of those very theories their professors downplayed.
Many students are entering the most competitive school they have attended. With no instruction from faculty, most decide that the only way to do better than the others is to learn more. They construct long outlines (better called summaries) of their courses and try to memorize every detail. Although many schools provide exam questions from prior years to students to help them prepare, rarely do they provide answers. Therefore, students are reluctant to try to answer the questions, thereby exposing themselves to their own inadequacies, without first memorizing as much of their outline/security blanket as possible. Many students arrive at their first semester finals never having written out an answer to a released question. although they may have read the questions trying to identify the legal issue presented. In all the schools with which I am affiliated, the two most common causes of poor performance are:
• Preparing outlines that are too long and/or not rule based.
• Not writing out practice exams.
This situation is guaranteed disaster. I try to avoid the disaster in lectures and in the books by:
1. Demonstrating that the best way to learn course material is to produce a short, rule based outline. Start from a skeleton, then fill in detail shown to be important by class discussion about casebook reading.
2. Suggesting that students must be active learners. Although they may have succeeded in undergraduate school by learning their course material in the order it appeared in the book, it doesn't work in law school. Casebooks have very different structures, and professors have different approaches to the material. This means the order the student learns the law may not be the optimum order to use it to analyze a legal problem. Since many first year students have trouble reordering course material on their own, reorderings are suggested by my materials when necessary.
3. Proving to students that professors write exam questions carefully, and their success will depend upon their correct analysis of every word. This is often a surprise, because students have become accustomed to wordy cases. This is best demonstrated by reading with students many fact patterns and answers one legal rule at a time. They then see how a professor signals that the "intent" element is not a problem in one question, but is the major issue in another.
4. Providing opportunities for writing that stress the need to train to be a good writer. This entails reading fact patterns with answers about one legal rule at a time so that they can recognize the usual components of a question in this area. It also entails writing out answers to questions for which they already have answers. Writing is a skill that can best be acquired when students are not concentrating on the law at the same time. The skills of writing good rules, arguing both sides of an issue, and composing a well organized paragraph can be learned by reading an answer to a question and trying to write it in ones own words. When students realize how hard this is, they are more likely to take the need for exam practice seriously. My lectures and the books provide many examples of questions with both notes and complete answers to encourage students to PRACTICE.
LAW SCHOOL SUCCESS
You are one of a select group. You may be accustomed to being at the top of your class; you certainly want to do well in law school. However, it's possible for you to take the wrong path to success. Don't make the mistake of working hard, but not working smart. See if you have any of the following false assumptions.
Assumption 1
Since my professors spend so much time in class on the facts and the procedural issues of each case, that is what I need to know. I will prepare for exams by making an "outline" which will consist of summaries of the cases and my class notes.
Fact
In most courses, the details of the cases are the least important part of the course. "A" students may never mention a case name in most exams. Usually cases are in casebooks only as examples of the arguments lawyers make about legal theories.
Suggestion
You should prepare for exams by making an outline organized by legal theory. The requirements for liability under the theory should be framed in sentence form as a rule. Only then should you look to the cases for examples of the arguments lawyers have made about those requirements.
Assumption 2
The more I know, the better grades I'll get. The commercial outlines I see in the bookstore are 400 pages long! I need to learn at least that much to do well.
Fact
If you have this assumption, you will never think you know enough, and you will end up knowing too much. Many students are still memorizing their long outlines the night before the exam. They may know everything about the "trees", but nothing about the "forest."
Suggestion
You need a structure on which to attach any detail you learn. Without that structure you will get lost in trying to answer an exam question, and no knowledge of details will help you.
Assumption 3
All I need to do before the exam is memorize my outline.
Fact
Law school professors do not reward rote memorization. You probably will be asked to read a short story (called an issue spotter), identify which legal theories are relevant to that story, and then evaluate the likelihood any character in the story is liable to any other character under those theories. Taking law school exams is a skill and, like any other skill, requires practice to perfect. If you did well on the LSAT, you probably took many sample exams. You should take your practice for law school exams as seriously as you did your practice for the LSAT.
Suggestion
The easiest way to practice is with one legal theory at a time. You can start this practice while are still reading the cases about that theory. All you need is a rule and a list of the requirements for liability. Your first task is to learn what words professors select to clue you that an element of a legal theory is clearly present in the fact pattern so you do not waste time discussing it at length in your answer. The next task is to learn what words professors select to clue you that an element is not clearly present in the fact pattern so you do spend your time discussing it in your answer. You will learn to do this best if you read short fact patterns where you know the writer's intent; you know the legal theory you are supposed to use to answer the question, and you have either an answer or a list of complete notes for an answer. After you read the question and answer, you can practice writing.
Assumption 4
It can't be doing me any good if I know the answer before I write.
Fact
No matter how good a writer you were in another setting, you are a novice legal writer. The best way to become an expert is to start slowly. You should not be worrying about whether you know the law when you are learning how to write - although you may find that writing answers will actually help you learn the law.
Suggestion
First read an issue spotter question. Then read the answer or list of notes for the question. It will help if you then go back to the question and underline or somehow mark the words that were used in the answer. You will notice that very few sentences in the question are superfluous. If they are not necessary for your analysis of a legal theory, they are there to advance the story. You will find that sometimes sentences are there as red herrings (The answer uses them to show why a legal theory is not applicable.). After you are sure you understand the analysis, write out the answer in your own words. You will be surprised at how difficult this is at first. The more you practice, the easier it will be. Rules for the legal theory you are studying and rules for its elements will begin to flow from your pen. You will begin to develop a feel for the organization of an answer for the topic. If you work on each legal theory separately at first, later you can learn to integrate the theories to answer a complex question similar to your final exam questions.
You may find that you need to construct your outline with the legal theories in an order different from the order your professor is using in class. For example, many contracts courses start with damages, but you can't start analyzing contracts fact patterns with damages. Each of your courses has its organizational quirks, just as each of your professors has his or her idiosyncratic "take" on the law.
Assumption 5
My school makes exams available, but the professors don't give out answers. Therefore, I can't use this method.
Fact
You can use a variation on this method if you regularly study with a group or you can put together a group to prepare for exams.
Suggestion
You can assign one question to everyone in the group. All will prepare a list of the legal theories they spot in the question. Under each legal theory they should have the rules for the theories and the words from the fact pattern they used to decide which legal theories were applicable. When the group meets, share your insights. What one person doesn't find, another will. Then everyone should write out the answer. Again the group should meet to share. You can compare the structure of your answers and share the problems you had in working.
As you near exam time, practice under timed conditions. If the question you choose is an hour question, give everyone a half hour to prepare their notes for an answer. Then meet and share notes. Next everyone should take a half hour to write the answer. At this point in your exam preparation your major concern will be the structure of an answer to the complex questions of your professors. Your work will have paid off and you can feel satisfied that you can see how the course comes together.
Your work should save you from one of the biggest mistakes students make in exams. Students who have not practiced writing make the mistake of starting to write immediately in an exam. They see others writing and fear they are falling behind. However, the opposite is true. If you plan well before you write, you will see the problems before you start and work them into the organization of your answer. You can write quite fast when you know what you are writing. Those who start writing immediately will be the ones who fall behind as they are stopped in the middle of their answer by an issue they hadn't seen.
HOW TO AVOID THE COMMON MISTAKES MADE BY LAW STUDENTS
1. Know how you will be tested.
2. Don't spend too much time reading cases
a. Read some introductory material before reading the cases.
b. Develop an efficient format for taking notes on cases.
3. Don't waste time trying to produce the "perfect" outline.
4. Read lots of fact patterns.
5. Learn a basic format for exam answers.
6. Learn how to argue policy and philosophy.
7. Practice, Practice, Practice
INFORMATION NECESSARY FOR LAW SCHOOL SURVIVAL
CASE
You will spend most of your law school years reading cases. Although much of the law is made by our legislatures, judges also make law. The law they make and disseminate through cases has as much weight as the law written by legislatures. Most of the legal rules you will be learning during your first year are judge-made laws which have evolved over centuries. As lawyers, much of your work will be governed by state and federal case law. Therefore, the most important skill you should learn in law school is how to read cases. The problem for you is that cases are very hard to read -- for at least two reasons.
- Cases were not written as teaching materials.
You may be accustomed to college textbooks written by authors whose goal it was to help you to understand the subject matter. These textbooks may start out with introductory material and progress from the easy topics to the difficult ones. Textbook authors have editors who improve the readability of the manuscript. On the other hand, cases are written by judges for lawyers, not students. Judges are not always concerned with the clarity of their writing because they are writing for lawyers who already are familiar with the legal issues. Although casebook editors may eliminate some sections of the cases they use, they do not change the language of the judge. It is surprising to many law students that the case they read on their first day of law school is no easier than the one they will read on their last day of law school.
2. Cases are full of vocabulary you don't know.
You will learn many of the words later in the year in your civil procedure course, but that is of little help to you now. Very few law schools teach this vocabulary to you at the beginning of the year. The time you spend trying to understand this vocabulary is time you could be spending thinking about legal argument.
Most of the unknown vocabulary is the vocabulary of the bases of appeal. Most cases you will read are appellate cases, and formal requirements must be met before any case can be appealed. The requirement that produces the most difficult vocabulary is that the losing party must claim that the judge made an error during the trial that, if not made, would have resulted in the case being decided in its favor.
You will see in your cases only a few types of errors that the judge could have made. In some cases the judge stopped the trial and the losing party is appealing the fact that it never got a complete trial (motion to dismiss, motion on the pleadings, motion for summary judgment, judgment as a matter of law -- formerly called motion for directed verdict). Other errors do not stop the trial, but the attorney for the losing side objected to the judge's conduct at the time (jury instructions, evidence). The two other errors occur after the verdict has been given (motion for a new trial, renewal of motion for judgment after trial -- formerly called motion for judgment notwithstanding the verdict).
These claimed errors are called the "procedural issues" in appeals cases. You may see a sentence such as, "The only issue in this case is whether the trial judge erred in granting the motion to dismiss." Do not let this slow down your reading. Having a procedural issue is a legal formality, but it has little if anything to do with the reason you are reading the case in your torts course. You are reading the case for the tort law issue at stake. The legal issues are often referred to as the "substantive issues." The substantive issue in your case may be, "Does the fact that Dave is only six mean that he is not able to from the intent necessary for him to be found liable for battery?"
CASEBOOKS -- A MYSTERY
Although I think some casebooks are superb, others leave me and the students I work with confused. You have every right to assume that your casebooks should help you learn the skill of reading cases, but some casebook editors seem to assume that you are going to be able to understand how to read cases without instruction. They also assume that you should be able to learn both a rule of law and the skill of legal problem solving just from all the cases you read. However, I believe that most standard casebooks make this nearly impossible.
1. The cases in your casebook are from many jurisdictions.
Casebooks contain cases from any state and federal court. Therefore, you may read a battery case from
You may find yourself completely frustrated. You understood the
There may be somewhere a person who learned the legal rules necessary to the study of law from a casebook, but I have never met anyone who did. Most students quickly decide that the only way they will have any idea of what is going on in their course is to buy one of the commercial study aids you see in great numbers in your law school bookstore. This is really quite unfortunate. The result is that many students who get good grades rely almost exclusively on commercial outlines. I heard recently of a successful student at one of the schools at which I lecture who hadn't bought a casebook in three semesters.
2. Casebook editors often try to "hide the ball."
Casebooks, especially those for first-year students, could work better than they do if the people who edited them remembered that you are novices in the field of law and that they have voluntarily taken on the task to help you to become experts. Sometimes the casebook editor has included cases for some reason that has nothing to do with the topic of the chapter. Some casebook editors like to put poorly decided cases adjacent to well-decided ones. This can drive you crazy. You are new to the law. Even if you thought one didn't make sense, who are you as a first-year student to know better than an experienced law school professor? You may reread and waste another hour. If a case makes no sense to you, you cannot use it for any purpose. It cannot teach you a legal rule nor can it help you learn how to analyze legal argument.
A colleague of mine told me about his first few years of teaching. Because he was new he adopted one of the popular casebooks. During the summer before his first class, he found that he had to call the authors of the casebook three times because even with the teachers' manual he didn't understand what they had done. In an exasperated voice he said to me, "They included the major rule of law in a footnote. The principal case in the section was one they included because it was poorly decided." Since he is not a "hide the ball" type, two years later he began work on his own book, a problem-oriented book with only ten cases.
I believe that most casebook editors truly believe that they are contributing greatly to your education by giving you challenging material. However, many cannot remember the time when they knew nothing about the law. Even the professors who truly want to help you are caught. Unless they develop their own materials (a very time consuming process), they must use one of the traditional casebooks. One professor says that no book in his field is good, so each year he chooses the one that is "least bad" for his class.
TAKING NOTES ON CASES -- BRIEFS?
If we assume that one reason to read cases in law school is to learn how to take the facts of a client's problem and apply them to the law in such a creative fashion that your client wins, then the important pieces of information you should get from each case are:
1. the legal theory,
2. the element of the legal theory at issue in the case,
3. the facts relating to that element which influenced the court's decision, and
4. the reasons given for the court's decision (so that you can later use similar arguments).
If you were a practicing lawyer, you would need to take much more from a case. You would need to know which court in your state decided the case to determine the precedential value of the case. You would need to know from what stage of the trial the case was appealed so that you could tell how similar the facts of your client's situation need to be to the precedent case.
Almost all law schools teach their first-year students how to "brief." This is strange to me because the information in most traditional brief formats is the information that would be useful to you as the practicing lawyer in the paragraph above, but not to you as the law student. What is even stranger is that professors ask you this information in class. I believe that they ask you all this detail because they want to focus you on the importance of applying facts to the law, a worthwhile goal. However, from all of my conversations with students, this approach has only negative consequences.
This teaching technique is the major reason I find for student exhaustion and confusion. You spend far too much time reading cases and writing "briefs" and far too little time thinking. When you are told everything is important, then nothing is important. When I ask students what the point of the case is, they can't tell me. However, they can tell me that the defendant's car was white. When I show them their professors' exams and student answers that received A's, they are astonished and depressed to find that none of the detail they are spending hours on is relevant to the final exam. Yet they do not change their approach. Why? They say it is because they are afraid of being called on in class and not knowing the detail.
Public humiliation is not fun. To avoid it some students overwork, but others take a different approach. They buy books that "brief" the major cases for them. If you have not done this and have heard what you thought was a brilliant response to a professor's question in class, don't be surprised if that brilliant response came from a book, not from that student's head. The reality of law school is that almost everyone is confused.
I find it most depressing that first-year law students who try to learn the way they are told to learn are exhausted, discouraged and confused. I also find it depressing that other first-year law students become so cynical that they bypass the educational experience entirely.
I think there is a middle ground. You can continue to benefit from what is good about the law school experience without becoming discouraged. The most important place to start is to decide how to handle the problem of being called on in class. There are probably many solutions, but two occur to me. Since most everyone in your class is confused, this means that if you can't answer the professor's questions if you are called on, no one thinks you are stupid. Everyone else is just glad he or she is not taking the heat.
Add to this the knowledge that not having all the answers in class will have little or no effect on your grade. If you have read and thought about the case at all, you will be able to say enough for the professor to realize you have done your work. Most schools that give any points at all for class participation give only a few. If you start using your time to analyze legal problems instead of using it to write detailed notes, the points you will gain on your exam will far exceed the few you might lose in class participation. Unfortunately, you probably cannot change the few professors who seem to delight in embarrassing students.
Another approach you might try is to take notes only on the analytically important aspects of your cases. When you read the case, highlight in your book in different colors for each type of detail your professor might ask you about. Then you will be ready for class, but you do not have pages and pages of notes which are irrelevant the day after the case is discussed in class.
Some students find it helpful to take notes on cases only after they have read a whole section of cases on one topic. This was the only way I could do my reading. I couldn't understand the first case in a section until I had read the whole section. I read all the cases through quickly without taking any notes. Then I went back to the beginning, read the case again and took notes. This quick overview of the cases saved me a great deal of time. Often in this quick reading I could identify the cases which were included to provide a historical background, but which did not require detailed note taking. I also identified cases which were included to provide a good example of the area of law and, therefore, did require detailed note taking.
Something I didn't do, but wish now I had, was read some material about the subject matter of the section before I read the cases. We all learn best when we have a context for our learning. If I were in law school now, I would continue to use my technique of reading the whole section of cases quickly at the beginning. However, I would also read some context material. Look for something short in your law school bookstore that fits your style of learning.
The most important bit of advice is, "Don't obsess!" If you don't understand what a case is about, just write down a few facts so that you will recognize the case when it is discussed. You can find out at the next class what is important.
No book can tell you how to take notes on cases in order to be prepared for the class discussion approach taken by all of your professors; they will all be so different. Some professors will mention the following components of a case in class, some may never refer to them specifically. However, all will be helpful for you to know for exams.
The important components are (1) the legal rule which governs the decision in the case,
(2) the elements of that legal rule,
(3) the specific element at issue in the case, and
(4) the reasoning behind the court's decision. This is the crucial information for each case, and you will find an example in the section of the book on battery.
OUTLINING -- PERFECTION NOT NEEDED
In order to analyze problems on an exam you need to flesh out the rule and elements (or factors) you identified in your context reading with the information from the cases you read.
There are as many ways to construct an outline as there are law students. Some students feel they must write down everything and then, as they learn the material, keep shortening their outlines until they are of manageable length. If this approach has worked for you in the past, there is no need to change. However, don't spend so much time on your outline that you spend too little time learning how to analyze exam questions.
Another approach is to try to develop a draft outline from your context reading. Then instead of taking notes on each case individually, you can insert case material right into the outline. You will probably modify your outline as you go through the cases, but this technique focuses you on the structure of the area of the law you are studying right from the beginning. You can insert the information you get from class discussion on the case into the outline after class. This means you never have to face the task that seems most daunting to first-year students -- the construction of THE COURSE OUTLINE. You will be constructing it right from the beginning. If you know yourself to be someone who obsesses over detail, this approach might be worth a try so you don't burn out before your first exam. This book contains sample draft outlines for each topic which you can modify to fit your course.
LAW SCHOOL TESTING -- A SHOCK
"Trace the development of the doctrine of strict liability."
"What were the facts most important to the court's decision in Palsgraf?"
"Discuss the relationship between the growth of the railroads and the law of negligence."
Although essay and "think" questions like those above may appear on your first-year torts exam, you probably will see no more than one. This may be a surprise to you. They (especially the first) are similar in style to the history or political science exam questions you have encountered in undergraduate school. Moreover, you may have been led to expect questions like these because they seem to reflect what your professor focuses on in class.
Some professors focus in class entirely on individual cases, requiring you to be prepared to recite in detail the facts of these cases. They may spend no time connecting the cases to one another or to the general principles underlying the law of torts. If your professor teaches in this way you might expect your exam to consist of questions like the Palsgraf question. On the other hand, some professors spend class time reflecting on, and debating about, the different approaches the experts take in the analysis of the purpose of the law of torts. Logically, you would expect questions such as the third one from them. Unfortunately, few professors make it clear that the structure of their classes provides little guide to the structure of their final exams.
Although many professors include one "think" question on their final exams, most law school torts questions are stories (called "issue spotter" fact patterns) carefully constructed to test students' ability to recognize and analyze the legal theories suggested by the problems presented in these stories. Professors assume that the students who competently can analyze these usually fictitious stories will be able to analyze competently the problems in the stories told to them by their future clients.
You probably know that no law student has been known to wax enthusiastic about issue spotter exams. However, they may be the best that law schools can do to prepare you for the realities of practice. If professors could handle the logistical problems, they might prefer to have all students role play an interview with a client to demonstrate their mastery of the legal theories they have been studying.
One could imagine the following as an exam situation:
Attorney Oliver James was sitting in his office when he got a phone call from a Phillip North. Mr. North was obviously agitated.
My son Bill is in the hospital. The doctors told us that hell eventually be OK, but it will be a long while. He was riding his tricycle in our driveway when Jane, the girl next door, came home from school. She knocked him down off the tricycle and kicked him. We heard him crying and went outside. We have insurance that will cover the medical bills. But we think that little bully should be stopped. Is there anything we can do?
Mr. North, you mentioned that your son was on a tricycle. How old is he?
Only five.
And how old is Jane?
Six.
[Mr. James thought, There might be a claim for battery. There is clearly a harmful contact. I dont think children under seven are excluded from liability in this state, but
Mr. North, tell me about Jane.
Shes only one of a whole family of uncontrollable children. She has three older brothers who are the terrors of the neighborhood and have trained her well. Of course, I suppose the parents should be blamed. They dont make any effort to make them behave.
[Mr. James thought, It sounds as if we may have a claim against both child and parents. It seems as if Jane is capable of having formed the intent to hurt Pete.
Mr. James said, So you're sure that Jane and Pete weren't playing a game, and Jane acted that way she did because she was too young to know the consequences.
Oh yes, replied Mr. North emphatically. Im sure Jane knew exactly what she was doing. I've talked to several neighbors since yesterday, and they all have the same impression of Jane. They have complained to the parents about all the children. In the case of my son, he had just received the tricycle for his birthday. He was out having fun by himself.
Mr. James said, Mr. North, Im quite sure that you have a case, but I need to check on one detail. If you dont hear from me before then, please come in on Monday at 3 p.m. to discuss the matter.
Unfortunately, demonstrating knowledge in law school must be done in a format that will allow a whole class of students to perform at the same time. The conversation becomes the following short issue spotter fact pattern in which each word is very carefully chosen.
Five-year-old Bill was in the driveway of his parents house riding his tricycle when Jane came home from school. She was the six-year-old youngest child of the next-door neighbors. Her three older brothers had a great influence on her, and all four children had a reputation in the neighborhood for being aggressive. Although the parents knew of their childrens' reputation, they did nothing to control them. Bill was at the end of the driveway when Jane arrived. She knocked him off the tricycle and kicked him. What torts?
GRADING -- MORE MYSTERY
Law students come from all sorts of educational backgrounds. Some may have been math or science majors, where arriving at the right answer on an exam was very important. They may have had few courses recently in which much writing was required, and the timed writing of a law school issue spotter exam is daunting. However, some may have been literature, philosophy or history majors. In these subjects they may have done little else but write. They have usually been able to select the topic for their papers, and they have not been restricted in how much time they spend, nor in the conclusion they reach. No one is really prepared for the law school issue spotter.
Even after you understand the format of the issue spotter question, you may not be clear about how faculty will grade your answers. Law students learn that they cannot trust their instincts about their performance. One semester you find that you enjoy one class more than any of the others. You spend a great deal of time working on it, and you walk into the final exam feeling very confident. You may have paid much less attention to your other courses, and you walk into those exams feeling unprepared. You should not be surprised if you get the same grade in all your courses or even get a lower grade in your favorite course.
One reason for the problem is that you carry exam expectations with you from your past. If you were a math or science major you may have spotted the issues in the fact pattern, but you may have come to conclusions about them without doing an analysis of the arguments on both sides. If you were a humanities major, you may have spotted the issues in the fact pattern, but you may have spent too much time in worrying about the style of your writing to have enough time to cover them all.
If you knew what your professor was looking for, you would be able to modify your exam writing style. However, many professors do not give you much if any help, and they all seem to have a different approach. I know of one professor who has a multi-page score sheet for every exam question. Every time a student uses one of the words on that score sheet, that student gets a point. This per.son has been known to have 1000 possible points listed for an exam. This is not the norm, however. Few faculty members have the stamina for that kind of grading. At the other extreme is the professor who reads each exam, and, in what might charitably be called a "holistic" method, decides what grade the student deserves.
Most professors have some kind of score sheet. However, they may use their score sheets in very different ways, which may have a profound effect on your grade. Some people give you points for mentioning an issue even if you mention it in a way that is illogical. I have seen points awarded for unconnected sentences scribbled on the last lines of an answer just before the end of the exam. Other professors give no points unless the issues are discussed in an organized fashion. You will have some professors who give most of their points for philosophical or policy analysis, some who give few.
Students at most schools who receive low grades are encouraged to talk to their professors about their performance to see if they have a problem with exam taking which could plague them for the rest of their law school career. I believe that more and more students are actually meeting with their professors. However, I have had many discussions with students who say that they leave their meetings with the professors more confused than ever because the professors are unable to explain why their answers are any different from ones that received A's. Some of the difficulty for the professors may be that the discussion is taking place several months after the exam, and they may not remember what factors determined how they arrived at their grades. Many tell students that they "didn't apply the facts to the law." These students come to me because the professor can't seem to explain how to do that.
This book is designed to train you to be skilled at applying the facts to the law. The best way to explain this process is to begin by assuming that all professors use some kind of score sheet to grade your exams so that they have a method to test your ability to evaluate the words included in their questions as they relate to each of the legal issues presented. The
EXAM ANSWERS -- NEED FOR PRACTICE
There are two components to a successful exam answer. First, you must know the law. This is what your casebook is intended to do. Second, you must know how to analyze fact patterns that suggest which law is relevant and write about your analysis in a form your professors are expecting. Casebooks do not prepare you to do this. Casebooks are organized by legal theory and usually by elements of that legal theory. For example, you will read all the cases about the tort of battery in one section. You will also read all the cases about each element involved in determining the existence of battery in a separate subsection. By the time you have reached the end of the chapter on battery, you may have learned the common interpretations of each of the elements. However, you will have had no practice in applying your knowledge to a lawyer/client situation. Therefore, you will have had no practice in doing what you will be asked to do on your final exam -- to demonstrate that you know the law of intentional torts.
I believe that the harder of the two components is the analysis and writing. You cannot imagine how difficult it is to write a coherent answer. I demonstrate this in my lectures by giving students a packet of materials that includes a question, a list of the elements of the legal theory that is suggested by the fact pattern (including the words from the fact pattern that were included to relate to the elements), and an answer. After we discuss the question, the analysis, and the answer in depth, I ask them to write out the answer in their own words. They look at me in disbelief, "What good will that do us? We already know the answer." I say, "Just try it." At the end of the time allotted to write, the attitude has changed. Most students do not even finish. Even with a sample answer in front of them, they have trouble framing their own sentences and stringing them together into coherent paragraphs. They had assumed that knowing the law was enough. They did not realize that writing about it would be so hard.
If analyzing exam questions and writing answers is difficult when there is only one legal theory to contend with, think of the problems you will encounter on a more typical law school exam. Your professors will expect you to know how several legal theories relate to each other and sometimes compete with each other, but they will also expect you to know how to write logical answers to their questions.
"I panicked."
"I saw the issues, but I couldn't figure out how to talk about them."
"I got lost in the middle of my answer and never finished."
"I talked about battery, but I never got to anything else."
"I had no idea how to organize the answer."
These are the comments I hear from students every year. They always say, "I knew the stuff cold," and I'm sure that they are right because they mean that they learned the material as it was presented in the casebook and discussed in class. They thought it was enough to learn their outlines, and they worked exceptionally long hours in learning them. However, they were doomed from the start because they had not learned to demonstrate what they knew.
Since you need to show your professors that you can relate the facts in the issue spotter to the law, it is helpful to know an answer format you can turn to under the stress of an exam. I like to start each paragraph with the rule for the theory which I will discuss in the paragraph. If all the elements of that rule are not clear, then I like to get the elements that are clear dispensed with first by stating which words in the fact pattern make them clear. Then I turn to the element that is at issue. I would argue both sides of the issue, come to a conclusion, and go on to the next theory. Each chapter in this book will provide you with sample questions and answers using this format. Each chapter also will contain questions without answers so that you can develop your writing skills.
Practice is the key to your success on law school exams. Do not be tempted to think it is enough to read the questions and answers in this book. Although this might reinforce your understanding of the law, it will do nothing to help you be prepared for demonstrating everything you know about torts in a three or four hour exam. The time spent in writing out an answer to a question in your own words is time well spent.
USING PROFESSORS' OLD EXAMS TO PREPARE
Although many law schools provide some access to old exams, few provide answers to them. I find it dangerous to use these exams to test yourself. You have no way of knowing whether you have found the issues your professor intended for you to find. You also have no way of knowing whether you have understood the issues correctly. However, you can use these exams effectively if you can find a few people who are willing to work with you to prepare.
I think the most helpful method is to assign the same question to everyone in your group. All will prepare a list of the legal theories they spot in the question. Under each legal theory, they should write a rule for the theory and the words from the fact pattern they used to decide which legal theories were applicable. When the group meets, you can share your insights. What one person doesn't find, another will. When you have agreed on a list of issues, send everyone home to write out an answer. When everyone has a written answer, meet again to share. You can compare the organization of your answers and discuss the problems you had in writing.
As you near exam time, practice under timed conditions. If the question you choose to work on is an hour question, give everyone a half hour to prepare their notes for an answer. Then meet and share notes. Next everyone should take a half hour to write the answer. If you have written answers to one-issue fact patterns throughout the semester and have started your exam preparation by practicing with the multi-issue questions, you should be prepared. You should be able to spot the issues in a long fact pattern, know which words are in it for what purpose, and have a workable format for an answer. At this point in your exam preparation your major concern should be the organization of the answers to your professor's complex questions.
This method works just as well for policy questions for which this book cannot prepare you. You and your classmates should be able to list the professor's favorite "buzz" words and figure out how to use them to answer a question.Your undergraduate essay and paper writing have probably prepared you adequately for this type of question once you have determined just what your professor is after.
CONFRONTING YOUR FINAL EXAM - TORTS
Very few law school professors give any feedback throughout the semester. You will probably have no practice questions or midterms. Therefore, you will have little information from professors about how you are expected to respond to their questions. You are a most unusual person if you are not scared of having a three or four hour exam determine your grade in a course for which you have given so much of your blood, sweat and tears. Although you have practiced writing many exam questions if you have followed the advice in the previous sections of this book, you also need a strategy to ensure that you do your best on the actual final exam.
The first thing to remember is that your professor will probably test you on almost all topics covered in the course. I have found it useful to read through the entire exam before starting to answer any question. (You should know that this works for me but may not work for you.) I take my one page checklist of topics covered in the course (see next page for such a checklist for torts) and try to find them in all the questions. I then write down beside the item in the checklist the number of the question in which that topic is covered. At this point I have made no mark on the exam booklet.
Usually there are several topics on my checklist without a question number. Although it may be true that all topics don't appear on the exam, I always assume that I have just not seen them on my first reading of the exam. I do not panic if I don't find a topic or if I see whole sections of questions I don't understand. I will read these questions several more times before I put pen to exam booklet, and when I look harder I usually find the topics.
Since it would be wasteful to test most areas more than once on an exam, you should assume that if you see an issue in one question, it probably won't appear in another question. However, sometimes topics do appear in more than one question, but usually the topic is a major part of one question and a minor part of the second. (Negligence or strict liability are likely to appear in one question as the sole topic and in others as minor issues.) This means I know to give my most thorough analysis of the topic in the question in which it is most important.
You may find that you feel more confident about one question than the others. Unless the rules of your school forbid it, try starting with this question. While most of your brain is concentrating on this question, a part of it is ruminating over the other questions. Often flashes of insight on one question come while you are working on another. If this approach makes you more nervous, don't use it.
One of the most important things to remember is to allot only the amount of time to any question that is suggested by the professors. Since it is likely that they will grade you using a score sheet which allows only so many points per issue, your wonderful answer for one question cannot make up for slighting another question. After you have figured out how much time you have for each question, approach it as you have practiced. Spend about half of the allotted time writing your notes for your answer, crossing out the words you have used, and trying to find topics on your checklist for any sentences you have not used. Rearrange the issues you have found in order to make the best organized answer, and then write.
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