Tips for Students Taking Law School Exams:
|By VIKRAM DAVID AMAR|
|Friday, Dec. 08, 2006|
This week and next, around the country, law school final exams are in full swing. Like many of my law professor colleagues, I find writing and grading tests to be the most unpleasant aspect of what, overall, is a great job. Exam drafting and evaluation is necessarily time-consuming and tedious. And no professor can avoid feeling somewhat bad about knowing that the grades he gives will be disappointing, if not devastating, to some significant number of students who, until they got to law school, had rarely gotten any marks lower than an A- or B+.
But another, perhaps bigger, reason I dread grading finals is that I often feel, after reading bluebooks, that my students didn't learn as much as I thought they had. In fact, and on reflection, I believe that students generally do learn what professors desire and expect, but that students often don't effectively convey what they really know on written exams. That is, I think many law students do not effectively demonstrate all the substantive legal knowledge and sophistication that they in fact possess, when it comes time for them to write their final exams. While this is frustrating more me, it must be many times for frustrating for students who know they know more than they have been able to get down on paper.
So below I offer, based on my dozen-plus years of giving and grading law school tests, a few unsolicited pieces of advice for students looking to write effective law school exams.
Suggestion Number One -- Answer the Question(s) Being Posed
Law school exam questions, even of the traditional "issue spotting" variety, usually do not ask a student to "write about any issues that come to mind based on the preceding narrative." Instead, they are often more focused, and ask students to examine and analyze particular issues from the perspective of particular participants in a scenario.
If the "call" of a question asks the exam-taker to assess "subject-matter jurisdiction" in a given case (that, to examine whether a litigant has filed suit in the right system or kind of court), students should not spend time talking about other concepts - like "personal jurisdiction" (that is, whether a particular court located in a particular place has power over the defendant). These additional concepts, while they may very well be implicated by the fact pattern presented, are not subsumed within the precise question being posed.
Of course, if the question asked the student to address whatever questions of "jurisdiction" she might see, then a discussion of both topics would be appropriate. But the key point is this: The scope of the answer must attend to, and track, the scope of the question.
Students should also make sure that if a question asks for a bottom-line conclusion - as many (most?) do - a response that merely identifies arguments on both sides (generally a good thing to do, see below) but never resolves these competing arguments to arrive at (and defend) a bottom-line, is not really responding to the question asked.
For example, if a question asks: "Does the court have subject matter jurisdiction over the case as described?", an answer that identifies the best arguments for and against the exercise of jurisdiction, but that does not make clear to the reader which set of arguments the exam writer finds more compelling (and why), is no answer at all.
Suggestion Two: Show Your Work
I got many good pieces of advice from my grade-school teachers. One was always to "look things up yourself" - that is, don't trust other people's characterizations of primary sources and documents. (That has been especially good advice as relates to reading judicial opinions; many people read them different ways, and you should generally read things for yourself whenever possible.)
Another gem was, in a test format, to "always show your work." That is, show what led you to arrive at the conclusion you reached. That advice was most obviously relevant in the math setting (where the concept of "partial credit" for wrong answers that displayed some knowledge of the subject matter was big), but it also applies nicely to law school exams.
Whether on an exam or in the real world, lawyers and would-be lawyers are valuable not just because they have good instincts about what the "right" bottom-line answers are, but rather because they can defend their instincts by making arguments that have support. Although law school exam questions are often referred to, as I noted above, as "issue spotters," in reality the questions typically ask students to do much more than "spot" issues; students are tested on their ability to spot, argue and resolve issues.
And of the three aspects, the argumentation of the issues is probably the most important. Spotting an issue is often not that hard, and saying how you would come out on it requires only that you be somewhat decisive. Defending how and why you came out that way is the real lawyering, the part of the exam answer that should be most heavily credited and evaluated.
How do you argue and defend legal positions? By reference to authority, which can take the form of, among other things, judicial or other precedent, textual manipulation of words enacted by a legislative body, and sometimes pure logic or old-fashioned common sense.
How do you use these materials? Much of traditional legal analysis (on exams and elsewhere) involves making analogies and distinctions - likening the situation at hand to some that have already been discussed in the real or theoretical worlds, and/or distancing the present case from others. Showing your work and supporting your results thus often takes form of using these devices of analogy and distinction. Conclusions, even "correct" ones, that lack this kind of authority or support behind them rarely do (or should) get full credit.
Suggestion Three: Anticipate and Address Likely Counterarguments
Regardless of the role(s) you are asked to assume on an exam (e.g., the role of a lawyer for one side in a dispute, a judge or a law clerk to a judge, a legislator or legislative aide, etc.), in general you will want to see and discuss all of the major sides of any issue you address. A good and well-supported argument (see Suggestion Two) is generally one that deals with its own weaknesses, and explains why those weaknesses are less problematic than those that plague any other argument or resolution that could be made.
None of this means, of course, that students should set up, and knock down, "straw men" responses to the arguments they make. Rather, the counterarguments that should be anticipated and dealt with, are those that are likely to occur to someone who understands the area of law at a reasonable level of sophistication, but who is not necessarily inclined to agree with the outcome the student is advocating without some persuasion.
Nor does this mean that a student should leave the matter discussed in equipoise. Discussing counterarguments does not, at least where the call of a question seeks a bottom line, relieve a student of her obligation to resolve the competing arguments, and explain why one set seems stronger than the other. (See Suggestion One above).
Suggestion Four: Organize Your Response to Clue the Reader In to Your Thought Process
Many students seem to forget that a good law school exam essay, like other good non-fiction essays, should be structured so as to make the writer's thought process as transparent as possible. This means using paragraphs that are each limited to one thought, writing topic sentences that explain what the thrust of each paragraph is, employing transitional phrases and sequencing points to make clear the relationship between what is being discussed at present and what came before (or will come later) in a response, and so on.
Many exams I have read at both UC Hastings and UC Berkeley make use of three- and four-page paragraphs that collapse six or seven ideas or points into one dense mix. While the substance of these paragraphs is often not wide of the mark, as a grader I can't easily know what the student thinks the relationship between all these jumbled points is, and often what I am trying to test on is knowledge not just of points but rather their relationship to each other.
Suggestion Five: Use Time and Space Allotments Wisely
Finally, it always pays to consider time and space at the start of an exam, rather than trying to figure these things out when you are in the midst of trying to answer each question substantively.. For starters, do pay attention to the professors' suggested time allocations for various questions, because they generally correspond to the relative weights the professor will give the questions on an exam when she grades. So spending only a half an hour on a question for which the professor indicated a suggested time allotment of an hour, say, is always a dangerous ploy.
But more difficult, and less obvious, is the knack of allocating time wisely within a question. Just because a question implicates two issue of law, or because the call of a question asks you to address two legal topics, you should not assume that each of those two topics warrants 50% of your energy and words.
So how, then, should you divide your time? As a general rule of thumb, students should allocate their time in discussing issues on an exam in the same way they think someone looking at these questions in the real world would. Suppose one issue, which was either explicitly mentioned in the question, or plainly important to include in a complete answer, has an easy, wrinkle-free, resolution. Discuss that issue, and move on, especially if another issue has a lot more difficult twists and turns that need to be explored and explained before a resolution can be reached and justified.
If you take all these suggestions, I very much hope both you and your professor will feel that your exam reflects the sum of your hard-earned knowledge, not just some fraction of that sum.