Improving Exam Improving Exam Performance: Reviewing Performance: Reviewing Common Missteps on Fall Common Missteps on Fall Semester's Exam AnswersSemester's Exam Answers

I R A CSSUE

ULE

NALYSIS

PPLICATION

ONCLUSION

What is your role?What is your role?

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

Lack of focusLack of focus– Writing a mini-treatiseWriting a mini-treatise– Listing all the rules related to a topic Listing all the rules related to a topic

whether or not they apply to the particular whether or not they apply to the particular issue/s raisedissue/s raised

– Dealing w/ extraneous issues; changing Dealing w/ extraneous issues; changing factsfacts

– Failing to discuss the most important issuesFailing to discuss the most important issues IRC (no analysis; failing to make the IRC (no analysis; failing to make the

argument by pointing to facts; argument by pointing to facts; conclusory—no factual analysis)conclusory—no factual analysis)

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

IAC (no statement of the rule)IAC (no statement of the rule)

LACK OF FOCUS: Treatise and LACK OF FOCUS: Treatise and Related IssuesRelated Issues

Encompasses several “missteps”Encompasses several “missteps” Some easy to correct; some more Some easy to correct; some more

challengingchallenging

Writing a “mini-treatise”Writing a “mini-treatise”

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

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

Writing a “mini-treatise”Writing a “mini-treatise”

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

Listing all the rules related Listing all the rules related to a topic whether or not to a topic whether or not they apply to the particular they apply to the particular issue/s raisedissue/s raised Only set out the rule(s) related to the Only set out the rule(s) related to the

category you have identified and are category you have identified and are discussing.discussing.

Writing a “mini-treatise”Writing a “mini-treatise”

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

How do I stop myself?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 CategoryLearn by Category Think by CategoryThink by Category Write by CategoryWrite by Category

STOP WITH THE INTRODUCTIONSSTOP WITH THE INTRODUCTIONS DO NOT WRITE A WORD UNTIL YOU DO NOT WRITE A WORD UNTIL YOU

HAVE IDENTIFIED THE CATEGORY HAVE IDENTIFIED THE CATEGORY YOU ARE DISCUSSING/ANALYZINGYOU 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

Write by categoryWrite by category

ONE CATEGORY at a time—DO NOT ONE CATEGORY at a time—DO NOT MIX CATGORIESMIX CATGORIES

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

Helps you avoid one of the other Helps you avoid one of the other common missteps identifiedcommon missteps identified

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

factsfacts Failing to discuss the most important Failing to discuss the most important

issues; ignoring the call of the questionissues; ignoring the call of the question These are the difficult/challenging “lack of These are the difficult/challenging “lack of

focus” missteps (other than the call of the focus” missteps (other than the call of the question)question)– The most important role of attorneysThe most important role of attorneys– The most important role of exam writers trying The most important role of exam writers trying

to demonstrate their ability to be a lawyerto demonstrate their ability to be a lawyer

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

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

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

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

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

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

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

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

2. Mistake of doctrinal category: In 2. Mistake of doctrinal category: In Con. Law I that means trying to make Con. Law I that means trying to make a Dormant Commerce clause a Dormant Commerce clause argument when the core issue argument when the core issue involves the Affectation doctrine. involves the Affectation doctrine. This comes from either not reading This comes from either not reading closely closely or trying a general or trying a general shotgun approachshotgun approach

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

IRCIRC 1. 1. Make the argumentMake the argument (point to facts that (point to facts that

demonstrate rule/element of the rule is demonstrate rule/element of the rule is either met or not met).either met or not met).

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

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

(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.

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

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

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

NEW in 2010 NEW in 2010  I’ve been getting two lists of I’ve been getting two lists of

arguments on each side of an issue arguments on each side of an issue with no analysis of what the answer with no analysis of what the answer should be: Party A will argue this . . . should be: Party A will argue this . . . Party B will argue that . . . The end.Party B will argue that . . . The end.

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

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

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

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

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

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

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, . . .

IRFCIRFC I still see the IRFC problem. I tell my I still see the IRFC problem. I tell my

students to argue the facts, rather students to argue the facts, rather than merely present or order the than merely present or order the facts in regard to the rule. facts in regard to the rule.

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

Treats-Entitlement to Ice CreamGenerally, 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, . . .

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

principle/definition/rule of law in the principle/definition/rule of law in the answer.answer.

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

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

Leads to “lay person” analysisLeads to “lay person” analysis

Miscellaneous (but still Miscellaneous (but still important)important)

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

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

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

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

IV. THE LITTLE THINGSIV. THE LITTLE THINGS do not write just one huge paragraph--do not write just one huge paragraph--

instead, make new paragraphs for each instead, make new paragraphs for each issueissue

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

remember to number the remember to number the question/answerquestion/answer

I also tell students not to write in green I also tell students not to write in green or red or purple ink [less of a problem or red or purple ink [less of a problem these days] and tell students with bad these days] and tell students with bad handwriting to skip lineshandwriting to skip lines

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

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

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

(if one party benefit’s from another (if one party benefit’s from another parties actions . . .)parties actions . . .)

• Random use of commasRandom use of commas• ““borrow” when you mean lend or borrow” when you mean lend or

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

• ““based off” rather than “based on”based off” rather than “based on”• Run on sentencesRun on sentences

Question I(45 minutes; 25 points)

On July 30, 2008, Mark and Ralph arrived in Mark’s automobile at the plant where both were employed. Ralph had been drinking alcoholic beverages and was clearly intoxicated—he decided to call in sick and go home to “sleep it off.” Mark, knowing that Ralph was intoxicated, loaned his car to Ralph so Ralph could get home and proceeded into the plant to begin work. Ralph drove Mark’s car away.

Approximately ten minutes later, Ralph, driving recklessly, collided with a car driven by Susan. As a result of the accident, Susan was seriously injured but survived, while the passenger in Susan’s car—her sibling—was killed.

The District Attorney, your boss, wants to seek the following charges against Mark and Ralph: 1. Against Ralph: 1 count of reckless manslaughter and 1 count of attempted reckless manslaughter.2. Against Mark: 1 count of reckless manslaughter (as either a principal or an accomplice)

Your boss would like you to analyze the appropriateness/viability of each of these charges. Are there any legal impediments to prevailing on any of these charges? What must be shown to prevail on each? Would different homicide charges (greater or lesser) be more appropriate and viable? [Do not discuss possible non-homicide charges (e.g. DUI, etc.) Assume the State has no special statutory provisions relating to vehicular homicide; the general homicide statutes—which are identical to the MPC—must be utilized.]

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