Improving Exam Performance: Reviewing

Common Missteps on Fall Semester's Exam Answers

Elements for succeeding on law school exams

• Ability to Spot the Category

• Knowledge of the Law (Rules)

• Ability to Analyze (Apply law/rule to facts)

• Demonstrating Ability to Analyze – Writing an effective exam answer

I R A CSSUE

ULE

NALYSIS

PPLICATION

ONCLUSION

What is your role?

• Read the fact pattern (the “story”); identify issues (categories) raised by the story

• Explain to the reader—issue by issue (category by category)—what the law (rule) is and how it applies to the set of facts provided

• Five Most Common Missteps

1. Make the argument

2. Conclusory (IRC)

3. Lack of Focus

4. Restate the facts (IRFC)

5. No Rule (IAC)

• NEW in 2010 (and mentioned every year since): MAKE THE ARGUMENT!!!!

• I’ve been getting two lists of arguments on each side of an issue with no analysis of what the answer should be: Party A will argue this . . . Party B will argue that . . . The end.

• I still get long lists of “arguments” to the effect “plaintiff will argue a, b, c, d, e and defendant will argue f, g, h and plaintiff wins because of d.”

• The main problem is listing arguments with no analysis or conclusion.  I repeat this over and over again, but I still had a student who listed 13 (!!) "arguments" on the first page ("First plaintiff will argue..., next plaintiff will argue...) and then simply declared "plaintiff wins." I do not award points for "arguments" with no analysis, which I also tell them repeatedly.

• One thing I am seeing a lot in exam answers is students thinking they are arguing both sides of an issue by the form of "P could argue XXX."  "D could argue XXX."  That is typically the end: no evaluation of which is better, of whether the argument is any good, what the conclusion is, etc.  I always cross out the "could argue" and write go ahead and make the argument.  This is after I specifically in class told the students more than once that this is not a good form of argument and it annoys me (and it is annoying me more every year). 

• I still get students providing a long list of "arguments" that the plaintiff will make, followed by a long list of "arguments" the defendant will make, followed by a simple pronouncement that plaintiff or defendant wins.   But in these instances there never is an evaluation or analysis of all the arguments that are listed. 

2) Even though I specifically told my classes this fall not to use a format such as "Plaintiff can argue" and then "Defendant will argue," and I found much less of it this year, still about one-fifth of the students (usually the weaker exams) use this structure.  Usually they throw out a couple of arguments on each side and leave it to me to piece them together.  No.  Make the arguments.  Put them together in a synthesis.  Give me your conclusion.

Every year I ask the students not to merely list arguments without evaluating those arguments.  In bold type the exam instructions scream they will not score well if they do this.  One quarter of the students still simply list arguments...and predictably do not score well.

"Plaintiff argues A, then Plaintiff argues B, next Plaintiff argues C, and on and on... (followed by)

Defendant argues H, then Defendant argues I, next Defendant argues J, again on and onPlaintiff wins.  The end."

No analysis of the vast majority, or often any, of the so-called arguments.  Anyone can argue any nonsense. 

The key is whether an argument is persuasive,

and why.

• Try to can get the students to understand that they take their first false step with a sentence that begins “Plaintiff will argue . . .”, because that is a description, usually of a conclusion, rather than an argument.

• http://www.youtube.com/watch?v=A7uvttu8ct0

Rule

• Generally, the children may purchase ice cream if they have been well behaved and it is sufficiently early in the day such that it will not ruin their dinner. However, purchasing ice cream must remain a special treat, not an everyday expectation.

• The children can argue that they have been sufficiently well behaved to deserve ice cream and that it is early enough that it won’t ruin their dinner. They can also argue that ice cream will remain a special treat not an everyday occurrence.

• The children can argue that they have been sufficiently well behaved to deserve ice cream and that it is early enough that it won’t ruin their dinner. They can also argue that ice cream will remain a special treat not an everyday occurrence. Defense will argue the children have not been sufficiently well behaved and that it is too close to dinner. They will also argue getting ice cream today will make it an everyday occurrence.

Because the children completed chores early in the day (washing the car and mowing the lawn) [they can argue] they have been sufficiently well behaved to be entitled to ice cream despite going to the Super America store without permission. In addition, because they asked to buy ice cream at 3:30, relatively early in the afternoon and a full hour before dinner was planned, [they can argue] it is unlikely that the ice cream will ruin their dinner. Finally, because the children did not get ice cream the previous day, [they can argue] buying ice cream today will not make it an every day occurrence; it will remain a special treat. Therefore, . . .

Because the children completed chores early in the day (washing the car and mowing the lawn) [they can argue] they have been sufficiently well behaved to be entitled to ice cream despite going to the Super America store without permission. In addition, because they asked to buy ice cream at 3:30, relatively early in the afternoon and a full hour before dinner was planned, [they can argue] it is unlikely that the ice cream will ruin their dinner. Finally, because the children did not get ice cream the previous day, [they can argue] buying ice cream today will not make it an every day occurrence; it will remain a special treat. Therefore, . . .

Treats-Entitlement to Ice Cream

Because the children completed chores early in the day (washing the car and mowing the lawn) they can argue that they have been sufficiently well behaved to be entitled to ice cream despite going to the Super America store without permission. In addition, because they asked to buy ice cream at 3:30, relatively early in the afternoon, it is unlikely that the ice cream will ruin their dinner. The fact that dinner is planned earlier than usual is a problem, but the purchase will still be a full hour before dinner. Finally, the children can argue that because they did not get ice cream the previous day, buying ice cream today will not make it an every day occurrence; it will remain a special treat. They will have to overcome the counter argument that buying ice cream three times in one week, and three out of four days, makes it virtually an everyday occurrence, not a special treat.

Because the children completed chores early in the day (washing the car and mowing the lawn) they can argue that they have been sufficiently well behaved to be entitled to ice cream. The parents will point to the fact that the children went to the Super America store without permission to suggest they have not been sufficiently well behaved. In addition, because they asked to buy ice cream at 3:30, relatively early in the afternoon, the children will assert that it is unlikely that the ice cream will ruin their dinner. The parents will point out that dinner is planned earlier than usual, but the children can counter that the purchase will still be a full hour before dinner. Finally, the children can argue that because they did not get ice cream the previous day, buying ice cream today will not make it an every day occurrence; it will remain a special treat. They will have to overcome the parents’ counter argument that buying ice cream three times in one week, and three out of four days, makes it virtually an everyday occurrence, not a special treat.

A promise which the promisor should reasonably expect to induce reliance, and which does induce reliance, is binding if injustice can only be avoided by enforcement of the promise. The remedy may be limited as justice requires.

P will argue that D promised to pay for law school and should have reasonably expected P to rely on the promise. P will argue she did rely on the promise and suffered a detriment as a result, and that justice can only be avoided by enforcement of the promise.

D will counter that his words do not amount to a promise, and that they were too vague for P to reasonably rely on. D will also argue that P has not suffered a detriment by graduating from law school and therefore justice does not demand a remedy.

• Respondent can argue that appellant reasonably should have expected his promise to induce action by respondent. She can argue the promise did induce action by respondent and left her with a substantial debt when appellant failed to keep his promise. Because it would be unjust to require respondent to pay a debt that she incurred in reliance on appellant's promise to pay the debt, respondent can argue appellant's promise is enforceable.

• “Because appellant's expensive home and car and position as a successful business owner made it appear as if he was fully capable of keeping his promise to pay respondent's law-school expenses and because appellant had bestowed his generosity on respondent several times before he promised to pay her law-school expenses, appellant reasonably should have expected his promise to induce action by respondent. The promise did induce action by respondent and left her with a substantial debt when appellant failed to keep his promise. Respondent quit her job and attended law school with the expectation that appellant would pay her law-school expenses and she would not be in debt for these expenses when she graduated. Because it would be unjust to require respondent to pay a debt that she incurred in reliance on appellant's promise to pay the debt, appellant's promise is enforceable notwithstanding the statute of frauds.”

• Conrad v. Fields, 2007 WL 2106302 (Minn. Ct. App. 2007)

IRC • no analysis; failing to make the argument by pointing to facts; conclusory—no factual analysis

1. Make the argument (point to facts that demonstrate rule/element of the rule is either met or not met).

1. Arguments are too conclusory. They do not fully utilize facts in developing reasons for reaching a particular conclusion. Too often the students settle for issue spotting and stating a summary of the legal doctrine applicable.

• Lack of factual analysis/discussion (application of law to fact pattern presented)

• 2) not enough factual analysis—some students had a tendency to give me I, R, and C, instead of using the facts in the question. For example, the discovery question had a request for physical and mental exams. The question said the plaintiff had been in a mental institution and had been dragged away from a door frothing at the mouth. Those facts should have appeared in the answer, but maybe only about half mentioned them.

• Making conclusory statements where analysis was needed.  For example, "It was foreseeable that a customer might die, if the cook just eyeballed the meat instead of using a thermometer."  Why, given available facts in the fact pattern, was it foreseeable that someone would be poisoned?  That someone would die? 

(1)The conclusory (and often correct) answer that reflects no analysis.

Example: In a problem involving a sign in a store window advertising a particular item in some detail, a potential buyer enters the store, picks up the sign, and attempts to accept the opportunity. The student will provide a one-line answer: “Since advertisements are usually not offers, the acceptance was not effective.” This kind of response kills me because the student definitely was on the right track, but failed to provide enough substance to do well on the answer.

• The biggest global failing of law students in exams is their inability to perform the task of constructing an argument that use both law AND facts.

• More recently, the big problem is lack of analysis, i.e. IRAC without the "A." Students who come to talk with me about their grade often realize that they did the analysis in their head but didn't put it on paper and just moved on the next issue.

• Do not state legal conclusions without reasons

• The right conclusion is NOT the right answer

• Signals that you are doing legal analysis

Because Even ifHowever SimilarlyAlternatively In contrastLikewise

THE FINAL THREE• Lack of focus

• Writing a mini-treatise• Listing all the rules related to a topic whether or

not they apply to the particular issue/s raised• Dealing w/ extraneous issues; changing facts• Failing to discuss the most important issues

• IRFC (restating the facts w/ no legal analysis)

• IAC (no statement of the rule)

LACK OF FOCUS: Mini-Treatises and Related Issues

• Encompasses several “missteps”

• Some easy to correct; some more challenging

Writing a “mini-treatise”

• Writing a "treatise" on all the law applicable to all of the issues in the question at the beginning of the question, instead of dealing with the legal principles as you come to each issue.

Writing a “mini-treatise”

• Don't just regurgitate the law.  You need to know the law and be able to analyze all of it, but don't write down everything you think.  Focus on what is relevant to answer the call of the question.

• The most common problem I call the "preface syndrome" restating the question, framing it with respect to other issues not asked about in the question, etc.--i.e. taking too long to get to the point--sort of like dancing around the issue.

Writing a “mini-treatise”

• This should be easy to remedy—DON’T DO IT!

How do I stop myself?

What is your role?

• Read the fact pattern (the “story”); identify issues (categories) raised by the story

• Explain to the reader—issue by issue (category by category)—what the law (rule) is and how it applies to the set of facts provided

• Learn by Category

• Think by Category

• Write by Category

• STOP WITH THE INTRODUCTIONS

• DO NOT WRITE A WORD UNTIL YOU HAVE IDENTIFIED THE CATEGORY YOU ARE DISCUSSING/ANALYZING!

• Mutual Assent• Objective Theory of Contract• Offer and Acceptance in Bilateral Contracts• Offer and Acceptance in Unilateral Contracts• Other Methods of Mutual Assent

• Consideration• Defining Consideration• Applying Consideration

• Applying the Concept of Mutual Assent• Limiting the Power to Revoke: Pre-Acceptance

Reliance• Irrevocability by Statute: Firm Offer• The Battle of the Forms• Agreements to Agree• Electronic Contracting

• The Doctrine of Promissory Estoppel

• Listing all the rules related to a topic whether or not they apply to the particular issue/s raised

• Only set out the rule(s) related to the category you have identified and are discussing.

Writing a “mini-treatise”: Version 2

Write by category

• ONE CATEGORY at a time—DO NOT MIX CATGORIES

• Everything you say should be related to the category you are discussing

• Helps you avoid one of the other common missteps identified

Other “lack of focus” common missteps• Dealing w/ extraneous issues; changing facts

• Failing to discuss the most important issues; ignoring the call of the question

• These are the difficult/challenging “lack of focus” missteps (other than the call of the question)• The most important role of attorneys• The most important role of exam writers trying

to demonstrate their ability to be a lawyer

• 1) no focus--talking all around an issue instead of sharply hitting it, e.g., on an issue of whether another contract was relevant for the scope of discovery, many students told me everything about discovery, including work product;

• 4. If you identify the issues and analyze them correctly you will get a passing grade.  If you want to get a really good grade, you need to organize your answer in a way that demonstrates an understanding of the hierarchy of issues.

One thing I did notice more than usual this semester was an apparent inability to identify the issues raised by the questions.

Even though the question told the students what four issues to discuss, some students had difficulty being relevant.  One issue asked whether venue was proper.  The question quoted the venue statute, so all that was required was to apply it.  Many students went on at great length about whether venue should be transferred.  Not asked.

In torts, the issues were not "given," so some students had more difficulty spotting all of them.  Both questions asked for evaluation of plaintiff's claim, and several students did not discuss possible defenses.  The second question (involving a crowd of frenzied shoppers trampling a temporary store employee) presented duty/proximate cause issues against the store, but several students thought they saw possible intentional torts against the store.

• Example: Probably the easiest example involves a UCC problem in which the student correctly notes that essay involves a transaction in goods, then spends pages talking about what the results would have been, if the UCC did not apply.

• Changing the facts of the question (despite my instruction to "answer the question asked, not the one you wish had been asked"). For instance, if the exam fact pattern states that the taxpayer sold his house, students will answer that "if the house hadn't been sold, here are some other tax consequences" or "I need more facts to answer this question, such as whether the sale really didn't happen because the deed was flawed."

• One problem I have seen is the failure to take on the role requested in the exam question. For example, at least one of my essay questions usually asks the student to draft a letter to the client with analysis and advice on how to deal with a particular factual scenario. I warn them in class about this before the exam but always seem to get a least half a dozen answers that are just a dump of what they know about the legal issue with no semblance of advice or client orientation.

• Answering a question that was not asked.  For example, a Torts question asked about the claims of A against B.  Some students also analyzed A's claims against C.  That was wasted time.

• 5. Don't forget to discuss/analyze the most important issue.

IRFC

• I still see the IRFC problem. I tell my students to argue the facts, rather than merely present or order the facts in regard to the rule.

• I saw a few more than usual of RRRFFF --there are no statements of issues and, of course, no analysis.

Treats-Entitlement to Ice Cream

Generally, the children may purchase ice cream . . .

In this case, on a hot, muggy Friday at 3:30, the children asked for ice cream. Earlier in the day, they washed the car and mowed the lawn, but then they went to Super America without asking permission and bought candy. Dinner was planned earlier than usual (4:30). The children did not get ice cream the previous day, but did the two days prior to that.

Because the children completed chores early in the day (washing the car and mowing the lawn) they have been sufficiently well behaved to be entitled to ice cream despite going to the Super America store without permission. In addition, because they asked to buy ice cream at 3:30, relatively early in the afternoon and a full hour before dinner was planned, it is unlikely that the ice cream will ruin their dinner. Finally, because the children did not get ice cream the previous day, buying ice cream today will not make it an every day occurrence; it will remain a special treat. Therefore, . . .

IAC• 2. Failing to give the "R" in IRAC--no

principle/definition/rule of law in the answer.

• (2) The answer that jumps feet-first into the analysis without setting up the issue or rules. This leaves me attempting to extract rules from the analysis and is unsatisfactory all the way around.

• Example: "The sign in the window identified the item for sale, its price, and some details regarding its availability. These specifics might take the sign outside the usual presumption regarding advertising 'offers'.“

• Leads to “lay person” analysis

Miscellaneous (but still important)

• 3. "Waffling" on an answer--giving the arguments on each side, but failing to conclude which one is the stronger argument and why.

• Don’t leave points on the table!• Leaving points on the table by not discussing

issues because they seem "easy" or "obvious" and not arguing both sides of an issue.

• “It is clear” “There is no question” “The facts demonstrate”

Leaving Points on the Table

The Little Things That Are Bigger Than You Think

• do not write just one huge paragraph--instead, make new paragraphs for each issue

• I continue to see one-paragraph 60-minute answers, but these were fewer this year. 

• remember to number the question/answer• FOLLOW INSTRUCTIONS:

• NOTIFY PROCTOR IF NOT ON BEGIN SCREEN• WATCH THE CLOCK (NOT THE SOFTEST TIMER OR

OTHER PEOPLE IN THE ROOM)• USE THE RIGHT EXAM NUMBER

• Don't assume because your answer is typed it is legible.  I now warn students that I will dock an exam one half grade for excessive typos.  Also, they still need to use capital letters and punctuation.

• I gave my students a stern lecture about typos and such this time, showing them a page I had marked up with highlighter from a student's exam. I got only a small handful of poorly written exams with typos and such, which makes me think that in the past, they have just been sloppy because they didn't think it would matter.

Grammar:• “would of” “could of”• Random use/non-use of apostrophe (if one

party benefit’s from another parties actions . . .)• Random use of commas• “borrow” when you mean lend or loan; “he

borrowed him the money”; “she borrowed him the car.”

• “based off” rather than “based on”• Run on sentences/sentence fragments

Question I (20 points)

After five stormy years of marriage and two children, Wanda and Harry divorced, with Wanda granted custody of the children. Wanda and Harry continued to battle over the children and, on three occasions, Harry struck Wanda when he came to pick up or visit the children. After the third occasion, Wanda sought and was granted an “Emergency Protective Order,” which ordered Harry to stay away from Wanda and the house in which Wanda and the children lived.

The EPO was served on Harry at 5 pm. After drinking for the next three hours, Harry went to Wanda’s home and demanded that she allow him in to see the children. She would not open the door. He continued to bang on the door and said he was going to break the door down and that he would “make her pay when he got in.” By this time Wanda had retrieved a loaded pistol from the bedroom. Distraught, Wanda yelled that she had a gun and would shoot if Harry didn’t leave. Harry yelled back that she “couldn’t keep him from seeing his kids,” and that he “would fix her good for this.”Wanda fired three shots through the wood door. Because the door was solid (no glass) she could not see Harry on the other side. The bullets struck Harry in the chest and killed him.

Wanda has been indicted for murder under the state’s homicide statutes which are identical to the Model Code provisions. Discuss her liability for murder (or, if applicable, a lower level of homicide), including any defenses she might have. Her testimony would be that she thought Harry was going to break the door down, hurt her, and take the children, that she was frightened and upset, but that she hadn’t intended to kill him when she fired through the door.

The state’s burglary statute provides as follows: “One who breaks and enters a dwelling house with intent to commit a crime therein is guilty of burglary, a Class B felony.”

• A person is guilty of murder if she acts purposely, meaning it is her conscious object to cause the result (death of a human being).

• A person is also guilty of murder if she acts knowingly, meaning she was practically certain her actions would cause the result (death).

• A person is also guilty of murder if she acts recklessly (with conscious disregard of a substantial and unjustifiable risk that involves a gross deviation from the standard of conduct that a law abiding person would observe in the actor’s situation) and with extreme indifference to human life.

Wanda- MurderWanda will be guilty of murder if she purposely or knowingly killed Harry, or if she did so acting recklessly under circumstances manifesting extreme indifference to the value of human life.

A person acts purposely if it is their conscious object to cause the result. Here, Wanda’s testimony that she “hadn’t intended kill him when she fired through the door” suggests it was not her conscious object to kill Harry. While is it up to the jury whether to believe this testimony, it is plausible that she intended only to scare him and make him stop trying to break in.

Wanda would also be guilty of murder if she acted knowingly, meaning she was practically certain her actions would cause the result (death). It may be that Wanda had no idea bullets could go through a door, and she may not have been “practically certain” Harry was directly on the other side of where she shot. If she can present evidence to support those possibilities, she could avoid liability for knowingly killing Harry.

It seems more likely that a jury could find that shooting through a closed door when another person is on the other side of the door is acting recklessly with extreme indifference to the value of human life. However, such recklessness requires a conscious disregard of the risk, so if Wanda did not have any idea bullets could go through a door, she could avoid reckless liability as well. If a jury finds she was reckless, the circumstances (blindly shooting a deadly weapon) certainly suggest extreme indifference to human life.

Wanda – Manslaughter