Lawschool Survival

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FindLaw : Law Schools : Outlines : Commercial Outlines : Gilbert> First Year Survival Manual

First Year Survival Manual

by Professor Richard J. Conviser, Chicago Kent College of Law

Twentieth Ed. - 1996

Unnerving, isn't it?

The excitement of starting law school somehow evaporates when you walk out of the bookstorewith half a ton of study materials! Casebooks, hornbooks, restatements, and other strange texts -thousands of pages, crammed with unfamiliar language and terminology. Then there is the talk ofsummaries, outlines, and "canned briefs." And perhaps you've even been offered dog-eared notesfrom some second-year student. How are you supposed to cope with so much reading material?Is all of this material the law? If so, how can you possibly digest it?

To heighten your uneasiness, there's a gnawing uncertainty about class: What's this "Socraticmethod" all about? What's the purpose of the cat-and-mouse game? What are you supposed to dowith all those hypos, and with the mountains of class notes you're taking? How will you get ahandle on all this material when it comes time for finals?

The purpose of this booklet is to answer some of these questions for you.

First of all, you should understand that studying law is radically different from yourundergraduate studies. Law school doesn't follow the usual undergraduate pattern of "read,memorize, and regurgitate." You won't get far simply by having a facile memory and a quick

pen. Why? Because law is not a static subject that you can master by memorizing a set of rules.Indeed, there are few absolute rules that apply in all cases. (A hypo or two in class will openyour eyes on this point ! )

Rather, "rules" of law develop mostly on a case-by-case basis and are subject to continuedgrowth and change. Courts constantly review and evaluate earlier decisions in light of presentrealities; and, given the right circumstances, they may overrule or depart from those decisions.


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Also, the real world being what it is, new and different issues constantly arise which aren'tcovered at all by earlier decisions.

So, learning what's been decided in the past is only the first step. You must also develop theability to reason from past decisions to solve present problems.

What does that mean? For openers, it means that instead of simply memorizing the holding or"rule" of a case, you must be able to identify the particular factors that led the court to decide thecase the way it did, and then determine whether those same factors are present in the case you'renow considering. If different factors are present, you must decide whether they justify a differentresult.

It also means that you must consider any changes in the economic or social conditions thatsurrounded the earlier decision, any conflicting rules or theories from other cases, and, mostimportantly, the practical impact of your conclusions in the particular matter at hand.

In short, you must learn to analyze a problem rather than merely memorize rules. This is what"learning to think like a lawyer" is all about.

As you may surmise, this process doesn't lend itself to any magical short-cuts allowing you topass through law school without pain or strain. Nevertheless, there are techniques that willeconomize your time and help you get the most out of your study efforts. This booklet isdesigned to acquaint you with these techniques. It will also introduce you to GILBERT LAWSUMMARIES, relied upon by tens of thousands of students as an integral part of their lawstudies in addition, of course, to the immensely popular BAR/BRI First, Second and Third YearPrograms.

Your law professors have probably warned you to spend at least two hours preparing for each

hour of class. They're right. At least at the beginning of your studies, you'll probably find this is aconservative estimate of the time it takes to read and brief the assigned cases.

Here are some suggestions to help you get the most from the time and effort spent preparing forclass:

(1) Use a "road map" for your reading assignments: Before setting out, it always helps toknow where you're going. Therefore, before you start reading the assigned cases, look at the


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chapter headings and the table of contents in the casebook. These will tell you the topic towhich the assigned cases ostensibly relate, and where this topic fits in the overall course.

Next, learn a little about the topic before you start reading the assigned cases. You will find ithelpful at this point to look at the GILBERT LAW SUMMARY on the subject. Find the topic in

the summary of contents, and skim through the materials. This will give you a quick overview ofthe broad principles and problems you are about to encounter and enable you to read the assignedcases much more purposefully.

(2) Read - really read - the assigned cases: As you're already aware, your nose is going to beburied in the books for the next several years. So, your initial task is to learn to readcases."Read?" you say, "I can read. I certainly wouldn't have gotten this far if I couldn't." All well andgood. But you must now learn to read as a lawyer.

As you'll soon discover, speed-reading ability is not going to help. You must now read carefullyand critically; every paragraph, every sentence, every word may have some special relevance for

you to decipher.

To illustrate, read the following excerpt from one of Mark Twain's stories:

It was a crisp morning in early October. The lilacs and the laburnums lit with the glory fires ofautumn. Hungburning and flashing in the upper air, a fairy bridge provided by kind Nature forthe wingless wild things that have their homes in the treetops and would visit together; the larchand the pomegranate flung their purple and yellow flames in brilliant broad splashes along theslanting sweep of the woodland; the sensuous fragrance of innumerable deciduous flowers roseupon the swooning atmosphere; far in the empty sky a solitary esophagus slipt upon motionlesswing; everywhere brooded stillness, serenity and the peace of God.

Twain received many letters about this passage, the gist of which was, "What in hell is anesophagus?" In response, he published a letter indicating that the entire paragraph was a spoof.He notes:

Alas, if I had but left that one treacherous word out, I should have scored: scored everywhere;and the paragraph would have slidden through every reader's sodden sensibilities like oil, and leftnot a suspicion behind . . .

Lilacs of course bloom in the spring. In the fall, the leaves simply dry up and drop off. They arehardly lit with the glory fires of autumn. A laburnum is a poisonous Eurasian bush. And what

wingless things have you ever known that make their homes in the treetops?

The whole passage was sheer nonsense! But it serves to make the point: You cannot read legalcases this way. Your critical faculties must be constantly in operation, analyzing and questioningeverything you read. It isn't so much a matter of weeding out conscious trickery, as in the Twainexample, as it is ensuring that you really understandwhat you're reading.


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Don't read law cases when you're feeling tired. Don't attempt to skim or scan the pages. Don't letyour eyes or your grey matter get lazy. Concentrate on every phrase until you are sure that youunderstand it - really understand it!

(3) Keep a good law dictionary at hand: Part of your initiation into the legal profession is

learning its special language. Law is a technical language with technical meanings, and you mustabsorb these meanings as soon as possible.

So, when you're reading cases, always keep a good law dictionary at hand. When a word is usedwhich you don't understand - or when a word is used in some unusual sense - stop immediatelyand look it up. The meaning of one word or phrase may very well alter or affect the whole case,and you'll be spinning your wheels mentally until you focus on the correct meaning.

For example, consider the following passage:

From a review of the affidavits filed by the moving party, it is apparent that the property has

been restored so that the application for injunctive relief presents a question that has becomemoot. Said application is therefore dismissed.

What does the word "moot" mean? Unless you know, you surely won't understand whathappened. (As used here, it means that the question has become purely academic - i.e., no realcontroversy exists on this point between the parties.)

For day-to-day use, some of the paperback law dictionaries are as good as the hefty, boundvolumes. The better paperbacks usually have shorter and simpler definitions. They may not haveall the Latin phrases and terminology contained in the bigger dictionaries, but you won't needthose unless you have a casebook containing a lot of early English cases (or a particularly

sadistic law professor).

One good way of making sure you remember the meanings of legal terms is to use them in yourcase briefs. Once having done so, you'll tend to recall the context in which you used the word,and its meaning will sink in.

(4) Briefing cases: Law school classes are still largely based on the "case method"; i.e., theprofessor leads the class through an analysis and discussion of significant cases, as opposed to astraight lecture. It's your job to come to class prepared to discuss the assigned cases, and thatmeans learning how to read and brief those cases as efficiently as possible.

That is easier said than done, of course. Long, hard hours have to be spent learning how to brief acase. But don't begrudge this effort. Briefing cases is absolutely indispensable in "learning tothink like a lawyer." It gives you an organized approach to analyzing reported cases, and it forcesyou to distillthe facts and reasoning down to manageable size. These are abilities upon whichpracticing lawyers rely for their livelihood, and which you must therefore develop and polish inlaw school.

Here are some techniques and suggestions that will help you in briefing cases.


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(a) Learn "law school shorthand": Use abbreviations for words commonly involved inbriefing cases or taking class notes. Here is a suggested list of abbreviations:

AE ....................Assignee ............................complaintaff..................affirm(ed) c/a ....................cause of action

agt ......................agent c/c .......................counterclaim

ans .....................answer c/d .....................corpus delictiAR.....................Assignor c/l .........................common law

a/r .........assumption of risk c/p ............... condition precedent

b/c ................... because c/s .............. condition subsequent

b/p ............burden of proof CP ................. community property

B ..................beneficiary Con ................constitutional(ity)

BFP ........bona fide purchaser corp .......................corporation

br/K ........breach of contract ct .............................. court

dir ex ......direct examination pp ...................personal property

D ....................defendant p'ship .............. ..... partnership

dem ...................demurrer R ....................rule (or holding)

EE ....................employee RAP ......... Rule Against Perpetuities

eq ......................equity rev ........................ reverse(d)

ER ....................employer RIL.................. res ipsa loquiturev ....................evidence rp .......................real property

F ........................facts RS .........................Restatement

g/r ...............general rule ............................. sectionH ......................husband S ............................. statute

HDC .......holder in due course SC .......................Supreme Court

I ........................issue S/F ..................Statute of Frauds

int ...................interest S/L .............statute of limitations

J .....................judgment S/U ....................statute of uses

J/D......judgment for defendant T............................... tenant

J/P .....judgment for plaintiff TC ........................ trial court

J/aff ........judgment affirmed t/c .................. tenant in common

J/rev ........judgment reversed TE ............................ trustee

j/t ...............joint tenant TP ..................... .. third party

K .....................contract TPB ............third party beneficiary

LL ....................landlord

maj ............. majority view UCC ............Uniform Commercial Code

min ..............minority view

n/a .............not applicable v .............................. versus

neg .................negligence W ................................ wife

OE .....................offeree w/ ............................... with

OR......................offeror w/a ................weight of authority

P ....................plaintiff w/i ............................ within

p ......................partner w/o ............................without

PE ....................promisee x/c ........................cross-claim

PR ....................promisor x .....................cross complaintp/f ................prima facie x ex ................ cross examination

(b) Use a briefing system: Use a system that will force you to dissect the cases sufficiently foranalytic purposes. Often, "misreading" a case is entirely the result of failing to break it into itsessential elements. Here is a format that is useful for this purpose. (We'll use some abbreviationsfrom the previous page.)

F (facts): Briefly state the essentialfacts leading to the con controversy. For example:


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D refuses to perform promise to paint P's house, claiming mistake in offer as result of D'sunderestimating cost of materials. P sues for damages.

TC (trial court): State the judgment or decision in the trial court:

J/P

I (issue): State the issue or issues raised on appeal:

Does OR's mistake in estimating cost of performance, unknown to OE, prevent formation of K orexcuse performance of K?

R (rule): State the disposition on appeal and the rule of the case:

J/aff. OR's mistake was unilateral only and there is binding K on terms proposed to OE.

Rationale: This is the most important part of your case brief. You must get the gist of the court'sreasoning - i.e., why it arrived at its holding:

Objective theory of Ks: To protect reliance on promises, OR is held to perform that whichreasonable person would have under stood he promised. Fact that OR was mistaken as to somecollateral matter (here, price of materials) does not alter his obligation since OE neither knew orhad reason to know of OR's mistake.

As further illustration, a judicial opinion and case brief of that opinion are included in theAppendix to this booklet.

(c) Keep your "briefs" brief:Notwithstanding all the effort that goes into a case brief, it is notsomething to be retained for posterity. Its sole purpose is to help you recall the case in sufficientdetail to discuss it in class and to integrate it into your class notes. Once class is over and yournotes are in shape, it's unlikely that you will be reviewing your case briefs. Indeed, when exampreparation begins, you'll be relying on entirely different materials (more on this later).

Keep this in mind as you do your briefing. Don't attempt a detailed restatement of the entire case.Avoid copying citations. (You can always look these up in the casebook if you need to.) Simplytry to capture thegistof the facts and the court's reasoning, and put these in as few words aspossible.

Proficiency at briefing cases is absolutely necessary if you're serious about becoming a lawyer.Briefing forces you to summarize facts and distill reasoning and, equally important, to expresslegal concepts in your own words. There is just no substitute for the mental exercise of reading acase, picking it apart, and putting it back together in your own vocabulary. It is this ability that istested on law school finals and on which you will rely for your livelihood when in practice. Caseclosed!


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And now, a little good news: Learning how to brief cases is something that can be mastered byreasonable practice, and once you learn, it's like swimming or riding a bicycle - you're not likelyto forget. So you need not commit yourself to briefing every case in every class throughout yourlaw school career: You must simply commit yourself to fully briefing cases until you're verygood at it, which for most students means throughout the first year of law school.

(d) What about "book briefing"? This is probably the stage you will reach after- repeat, after- you've mastered the art of writing full case briefs. Most law students find that they canadequately prepare for class in the second and third years by "book briefing" the assigned cases.

A book brief is an art unto itself. It is notsimply a matter of underlining every sentence as yougo through the case. Rather, you must first read through the case quickly to get a sense of what itis about, and then go back through a second time, annotating the margins with the essentialpoints of the case. (Here's where your "law school shorthand" abbreviations will be invaluable!)

Be very selective in your underlining - mark the highlights only. You may find it effective to use

different colored pens to signal the various elements of your brief -for example, blue might beused for the "trial court" holding; red for the "issue" on appeal; yellow for the "rule," etc.Otherwise, the entire page may appear to be a confusing mass of lines when you are called on inclass.

In any event, strive to do as little underlining, and as much annotating of the margins, aspossible. Putting the facts and reasoning in your own words (however terse) forces your brain tostay in gear; i.e., it makes you read critically and carefully and analyze what you're reading. Andthat's what briefing is all about.

Law school classes are a world apart from most undergraduate classes. There is little "recitation"as such, and relatively little lecturing by the professor. Instead, the professor usually directs a

group discussion of the assigned cases.

This is generally done by a combination of questioning, cajoling, encouraging, baiting,embarrassing, and reasoning with one or more members of the class. A favorite of many lawprofessors is the Socratic method, sometimes known as "leading the helpless lamb to slaughter."In this venerable game, a student is led out onto the proverbial limb by a series of questionswhich ultimately forces him or her to adopt some totally indefensible position - whereupon thelimb drops of its own weight, to the chagrin of the luckless victim.


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What's the purpose of such a sadistic game? Basically, to stretch your analytic muscles and (onceagain) to teach you how to think like a lawyer. The give and take between you and the professorforces you to think on your feet, by reasoning and analogy. It also gives you a taste of theadversary process at work!

Here are some suggestions on how to handle yourself in classroom discussions:

(1) Focus on the reasoning of the assigned cases: If called upon to present one of the assignedcases in class, you should be prepared to state briefly the essential facts of the case, the preciseissue or issues decided in the trial court and raised on appeal, and - most importantly - thereasoningby which the appellate court reached its conclusion. As discussed below, for purposesof class discussion, the court's reasoning is usually as important as the "rule" or holding of thecase.

(2) Learn to make your own judgments of the case: The assigned cases should not be taken byyou as "gospel." As a matter of fact, some of the cases will probably express views that have

been discredited and are included in the casebook for purposes of comparison and criticism.

So, keep an open mind on the merits of each case and, especially, on the validity of the reasoningexpressed by the court. Analyze the decision with a little healthy skepticism. Don't be awed bythe fact that a respected appellate court decided the case in a particular manner. Consider theissues involved as if they had never been decided before, and weigh the arguments raised byeach of the litigants. Then make your own evaluation of the result reached and the reasoningexpressed in the decision.

(3) Make arguments that are practical and fair: Don't make the mistake of challenging adecision with generalities or loose talk. It never suffices to disagree with a case "as a matter of

principle," or because the decision "doesn't make any sense." Your professor will promptlyskewer you with questions probing your "principles" or "sense." Instead, make sure that yourcriticism of a decision is based on specific reasons, that these reasons are founded in logic, andthat they will lead to a just result.

Remember that the law is inherently practical. Therefore, always test your position by whetherthe result reached is a practical one. For example, wherever possible, try to argue for positionsthat will avoid or shorten the litigation or prevent further lawsuits. Furthermore, you shouldgenerally avoid positions based on pure technicalities that would impose an unconscionablehardship on some party or lead to obviously unfair results.

(4) Answering class "hypos": So far, so good, but you're not out of the woods yet. Theprofessor is still interrogating you, but now the questions have shifted from the assigned case tohypothetical fact situations - which may or may not resemble the facts in the assigned cases. Youare supposed to decide whether the "rule" or holding in the assigned case should apply here aswell.

The purpose of this exercise is to test just how far the rules in the assigned cases can beextended. You're expected to determine whether the various facts in the hypo posed by the


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professor are sufficiently similar to the facts in the assigned case that the same result shouldobtain.

Be cautious in answering these class "hypos" - don't jump to conclusions. Before you decide thatthe rule in the assigned case applies to the hypo, always ask yourself whether the reasoning

expressed in the assigned case justifies that application of the rule. You'll soon discover "pitfall"cases - mental traps for the unwary - where it would actually be inconsistentwith the court'sreasoning to apply the rule. You'll garner lots of points with your professor by being able to spotsuch cases.

(5) Join in the skirmishes: After your initial experiences with "student baiting" and theembarrassment of being hoist on your own petard during classroom discussion, you may wonderwhat the whole process achieves that wouldn't be better served by a lecture clearly explaining therelevant rules, exceptions, and qualifications. The short answer is that these professor-studentclassroom skirmishes, like the process of case briefing, are indispensable in acquiring the tools ofa successful lawyer. Your ability to analyze and argue a case is what your clients will be paying

for some day.

For this reason, you should approach law school classes as a valuable learning experience andparticipate actively in class discussion. It is a mistake to assume that "someone else can say itbetter," or that you will gain as much from listening and taking notes as from engaging in thediscussion. Therefore, even if you were not a "hand raiser" during your undergraduate years,force yourself to take an active part in law school class dialogues. You will find the long-termbenefits well worth the initial discomfort.

The work you do immediately following class is as important as your preparation for class. It isessential that you review your case briefs and class notes as soon as possible following class -preferably the same day. There are probably corrections or additions to make in your case briefs,

possible gaps in your class notes, or maybe you have some lingering doubt concerning a hypo orquestion raised in class.

Don't procrastinate. Right after class is the time to fill in those gaps and resolve those questions.Your notes will be fresh, and your mind will still be attuned to the problems involved. So, getthee to the library, do whatever additional reading or research is required, and put your notes andbriefs in proper shape.


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We heartily recommend this process of summarizing your notes. Creating your own summaryfrom scratch is the surest way of mastering the subject matter. Expressing the relevant legalprinciples in your own words assures your comprehension of them and gives you a perspectiveon how the various principles interrelate. (Your GILBERT will be of substantial help to you inwriting your own summary, as it contains all of the essentials in a logical outline format. You

can cross-check each section of your own summary against the GILBERT for organization andcompleteness.)

We also recognize that, due to time pressures and other factors, many students will find itimpossible to prepare their own summaries from scratch in every subject. Where this is the case,you can effectively create "your own" law summary by annotating and expanding yourGILBERT. After each class, simply plug in whatever additional material you deem significantfrom your class notes and case briefs. By following this procedure, you'll have everything youneed when it comes time to study for law school finals.

Whatever your personal study habits, there are several important practices to follow in preparing

for law school exams.

(1) Use your own materials: Your own words and phrasing will always be far more meaningfulto you than those of any other person. Therefore, don't make the mistake of slighting your ownsummary at exam time in favor of "cram" materials prepared by someone else. Stick to thematerial you have been developing during the course. This is the time to refine your ownmaterial, not to abandon it.

(2) Study reasoning rather than case names: Except for rare "landmark" cases (e.g., Palsgrafin the field of negligence), it's not necessary to memorize the names or holdings of particularcases for law exams. Instead, focus on the underlying policies and reasoning in the cases youhave been studying throughout the course. Your instructor is more interested in your ability toanalyze and resolve legal problems than in your ability to memorize case names and holdings.Therefore, make certain that you understand the policy factors and rationale that the courts haveexpressed - particularly in the difficult or unsettled areas of the course, because these are theareas most likely to be tested on your exams.

(3) Prepare study outlines: There's an old saw about the law student who preparedprogressively shorter outlines of the course until he had it boiled down to a single word, at which


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(b) Next, state the applicable law - the rule and reasoning applicable to the issue: If thecourts dealing with the problem have expressed divergent views, don't make the mistake of justdiscussing the "general view" or "majority view." Consider and evaluate all relevant views.Again, make certain that you express the underlying rationalebehind each view or rule of law.(c) Then, apply the law to the facts: Avoid the common error of stating a rule and then jumping

to the conclusion that the rule should be applied. Your instructor will not infer a supportingargument for you - you must spell it out. Therefore, with respect to each element of lawinvolved, show which facts in the case support (or prevent) application of the rule. Discuss andweigh the facts given and logical inferences to be drawn therefrom. But again, do not read in orstretch the facts to reach some distorted application of the rule.

(d) Finally, come to a conclusion on each issue: Make sure that you have answered thequestion asked(e.g., if the question is "What advice would you give?" state clearly andexplicitly your advice). Never leave an issue "hanging," or end your discussion of the problemwith a question. If a number of solutions are possible, discuss the merits of each, but alwaysselect one position as your decision and state why. Remember that in close cases, it is generally

best to select the most practical and fair decision, and avoid a decision that disposes of the issueson purely technical grounds. Most law instructors appreciate and encourage independent andoriginal legal reasoning. Therefore, don't consider yourself bound by the "general rule" or"majority view" in answering an exam unless the question clearly calls for such.

(5) Remember these other helpful pointers:

(a) Budget your time: If you have allocated one-fourth of your time to analysis andorganization, you should write only in such detail that you will cover all points raised in youranalysis in the remaining time. Also, always save at least two or three minutes at the end of theperiod to review your answerand to clarify and improve it. You may pick up grade points

simply by making your answer more readable or by catching obvious errors.

(b) Stick to the issues: It is not advisable to go into matters not directly raised by the examquestion. Avoid the temptation to recite broad segments of the law which you may havecommitted to memory but which in reality have little to do with the problem raised. You willoften find that you are short of time in writing a law exam, and it is therefore dangerous todigress from the actual issues.

(c) Emphasize what counts: Law exams are usually graded more heavily on certain issues thanon others. Therefore, in writing your answer, spend as much time as possible on the morecontroversial or difficult parts of the problem. You should not minimize or skip over preliminarypoints, but your instructor is usually more concerned with the way you handle the difficult issuesof the problem, and will grade accordingly. Except where the question clearly calls for it,discussions of historical materials, superseded doctrines, or discredited cases should be kept to aminimum.

(d) Make sure your answer is readable: A grader is not likely to be impressed by the logic ofan answer that cannot be read or is difficult to decipher. Therefore, if your handwriting borderson the illegible, it will be helpful for you to learn to type your exams. (Typing is also a boon to


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those whose handwriting is so slow that it puts them at a disadvantage timewise on law exams.)Whether you write or type, keep your sentences short and paragraph frequently. It is also agood idea to leave an extra line between paragraphs; it enhances readability and provides roomfor insertion of thoughts that occur to you later. A judicious use of underlining, for emphasis. isgenerally encouraged.

The key to success in the study of law is hard work, and there is just no way around this fact.You must learn now to do the reading, briefing, and organizing that are second nature to apracticing attorney. Accordingly, don't allow yourself to fall into the habit of skimping on yourstudies throughout the semester and then attempting to "cram" a course just before exams. Thisgenerally doesn't work at all. You must wrestle with the issues throughout the course in order toobtain the perspective essential to real understanding of the problems involved, and to doing wellon your exams.

It is our hope that the suggestions contained in this booklet will assist you in your study efforts,and in developing the abilities that will spell success for you in law school and as a practicingattorney. Good luck!

HOW TO TAKE A LAW SCHOOL EXAM

I. General Tips before exam

Before the exam, condense your outline to a short outline/ checklist.


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Practice old exams and possibly do one under time constraints. Compare withmodel answers and study group.

II. Tips about exam

In an open book exam, have your checklist next to exam. In closed book, youmay want to write down your checklist immediately.

Read instructions. Browse through exam and see how many questions and howmuch time to allot to each question.

Think of your answer as a memo to a lawyer who knows nothing, not the teacherwho knows everything. Thus, you have to explain everything to the reader.

Think of yourself as advising your boss: you want to advise him or her of thestrengths and weaknesses of the argument. Youre writing a memo, not a brief. Advise

the reader of all reasonably possible outcomes (not simply a conclusion).

Dont simply lay out different arguments and counterarguments tell the readerthe relative strengths and weaknesses. You should evaluate which arguments are likelyto be strong or weak.

III. Beginning your answer

Read the question at least twice before you start writing. Read it quickly the first

time to get an idea of what is going on.

As you read through the question a second time, start writing down thoughtsconcerning legal issues. Highlight important facts.

After reading the question a second time, formulate a BASIC plan or outline(nothing too elaborate; you do not have time for that). About a of your time.

Stylistic advice: in general, avoid introductions of any length (as well assummaries of your analysis at the end). This is hard advice because this is notnecessarily good writing. Just jump straight to, the first issue here is . Goal is to

score points.

IV. What should you discuss?


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All issues that are potentially troublesome should be addressed. If the case beforeyou were an actual case, and you were an attorney working on it, ask yourself whether aparticular issue would be a point of contention. If so, raise it.

When in doubt, cover it (if time permits, so leave it to the end).

You will normally not lose points for saying something irrelevant.

But at the same time, do not be non-responsive.

Also, even if an issue seems to resolve the entire case, keep the discussion going.However, if personal jurisdiction is found, then the next issue would be

V. IRAC

ISSUE: Identify the legal issue you are addressing. This must be clear and

concise. It must be clear exactly what legal theory you will be addressing.

RULE: This is a shorthand reference to the legal principles that govern the issueat hand. May be a statement, a definition, or a list of factors (this may involve describingimportant case law, although not usually). May encompass one or more paragraphs(maybe more), depending on complexity of governing law. Very important to make astatement of governing rules before you say anything about facts in question.

APPLICATION OF LAW TO FACTS (ANALYSIS): Dont simply restate facts.Consider ALL facts. Professor probably is not going to put in irrelevant facts. Do notsimply render superficial and conclusory application of law to facts. Professors expect a

detailed treatment of the facts. Apply the rule you stated earlier. If you state threefactors or prongs, analyze each in an organized fashion.

CONCLUSION: Least important. Do not spend much time deciding whicharguments should prevail; simply tell relative strengths and weaknesses.

VI. GENERAL TIPS

Keep Issues separate. Begin new paragraphs. Possibly use headings, if

appropriate. Do not label IRAC. Do not underline key words and phrases (most of thetime). People differ on this.

Use full sentences. Keep sentences simple! NEVER try to present two distinctthoughts in the same sentence. Use short paragraphs to move from one point to another.Easier to read and forces you to organize your thoughts.

VII. TIME MANAGEMENT


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Do not leave early. Youve studied forever, might as well spend a few extramoments re-reading exam and your answer. The more issues you find, the better.

If a prof. gives time guidelines, use them.

If you run into time problems at the end, mention everything briefly rather thangetting into detailed explanation of one type of homicide. Mention and define differenttypes of homicide, rather than discussing one of them in detail.

VIII. AFTER THE EXAM

DO not speak to anyone after the exam

Try to take the night off after an exam. Start afresh the next day after a goodnights rest. Hold off on drinking.

Forget about it.

Time Required: Several hours

Here's How:

1. Use your syllabus.

Your professors syllabus will let you know exactly the subjects that may appear on yourfinal exam. You should be able to create a working template for your outline based on thesyllabus and the general IRAC format, although in this situation, the C will stand forcase summaries, and youll include short summaries of the important cases for thatissue.

2. Use your class notes.

Once you have your template laid out, you should go through your class notes and fill inblanks with important information for the issue, rule, analysis, and case summaries.

3. Consult hornbooks or commercial study aids.

These materials can be quite useful if there are particular areas of law you still do notunderstand after filling in your outline. Go through the outside study aids and eitherphotocopy or remove only those pages that cover subjects that your professor covered inclass; use them to fill in any missing information in your outline if it helps youunderstand the concepts.

Tips:


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1. Don't wait until reading period to being your law school outlines. You want to use thattime to study, so your outlines should be nearly completed by the time classes end.

2. Although study groups can be helpful for working through aspects of the material thatyou're struggling with, you should prepare your outline on your own. You can then goand compare and contrast with other students -- but you should do so only after yours is

done.3. Your overall goal in creating a law school outline is to synthesize your semesters notesinto a cohesive document that you can use as your study guide for the major areas of lawcovered in the course. The big picture is important as you will be asked to spot legalissues on the exam and analyze them based on how they intersect with one another.

4. If your outline is much more than 15 pages, you should go back and cut it down; youprobably still have a lot in there that isn't getting to the heart of the issues that will betested.

What You Need

Casebook Syllabus and other handouts Class notes Case briefs you've prepared Hornbooks or other commercial study aids Computer

Exam tips

Here are a few practical tips to ensure that you get the best out of yourself in an exam.

1. Read the instructions at the top of the paper carefully. Usually you will need to answersome questions from part A and some from part B and mistakes can be costly. The format ofthe exam generally stays the same, but you cant guarantee this absolutely if you alwaystake time to read the instructions carefully you wont get caught out!

2. Watch your timing! Typically you will have 3 hours in which to answer 4 questions(but see note above about making sure you read the rubric, just in case this is not yoursituation!). This means that you will only have about 40 minutes per question. After thistime you need to finish and move on to the next, even if you feel you could say more. You

can always leave a gap and go back to fill in any extras at the end, ifyou have time. To dothis requires real self discipline, and can be very hard to do, but it is worth it. It is far easierto pass the exam with 4 complete so-so answers than with only 3 (or fewer...) good ones.Failure to answer all of the questions required is one of the most common causes ofdisappointing exam results, especially for otherwise very capable students, so dont let ithappen to you!


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3. Answer the question! This sounds very obvious, but you would be surprised at howmany examination scripts fail to do this. Students are often disappointed because they haverevised hard and remembered a lot of information but still gain poor results and this isusually the reason.

Essay questions

When you have spent a long time revising it can be a huge temptation to look at a question,see that it mentions, for example, consideration and launch into 4 pages of writing downeverything you can remember about consideration....regardless of whether it relates to thequestion. Avoid this approach at all costs! Read the question carefully and make sure thatyour answer is clearly focused on it. Of course you want to display your hard earnedknowledge, but you do need to make it appear relevant.

Ensure that essays are always well structured (it pays to take a little of your time to sketchout a brief plan first) and have an introduction, a body and a conclusion. The introduction

and conclusion mustrefer directly to the question asked, and it helps if you can refer back toit a time or two in the body of your essay as well. This will help keep you focused and willdo wonders to persuade the examiner that you are well focused, even if you have wanderedslightly!

Remember that the examiner has probably slaved for hours selecting an appropriatequotation to use or carefully crafting a question to provoke interesting answers. Nothingismore annoying to an examiner than reading a pile of answers that have plainly failed toappreciate this artistry and have offered a whole lot of waffle that has nothing to do with thequestion! It is almost certain that every examiner will have to wade through a large pile ofwrite all you know about... irrelevant answers. Imagine the joy when he/she happens upon

your clear, relevant and well-focused answer! Commonsense dictates that a happy examineris far more likely to be generous than an irritated one!

Problem questions

The same basic advice applies as to essays keep your answer relevant. Some problems canbe very complex, so make sure that you lay out your answer as clearly as you can thismakes it easier to mark and you want to keep that examiner happy!

The basic technique for answering a problem question is to take each point as it comes anda) state the law, b) cite authority (if you dont use authority, you havent stated the law!) and

c) apply the law to the facts of the question. Most answers fall down on c), but this part isvital. Anyone with a good memory can learn the law and slavishly recite it but only goodcandidates, with a real understanding of the subject, are able to apply what they have learnedto the given set of facts. As with essays, above, the examiner has thought carefully about thequestion and created a set of facts to provoke certain responses...and its only good mannersto show that you have noticed! Do refer explicitly to the facts in your answer.

e.g. A question tells you that Farmer A said to Farmer B, I would like to buy that horse


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from you for 30. If I dont hear anything from you Ill assume we have a deal. Farmer Bwas happy to sell his horse to Farmer A for 30, so didnt respond.

Student 1 explains generally all about offer and acceptance and, as part of this explanation,comments on the fact that silence cannot normally constitute acceptance, citing Felthouse v

Bindley as authority.

Student 2 states that an offer should be firm and definite and clearly communicated to the

offeree and notes that Farmer As statement I would like to buy that horse from you for

30 meets these criteria. It goes on to say that the statement if I dont hear anything fromou Ill assume we have a deal is very close to the facts ofFelthouse v Bindley and, in this

case, it was decided that there cannot be an acceptance by silence, even when the other

arty is seemingly happy with the agreement, as is the case with Farmer B in this scenario.

Which answer do you think would score higher marks?

Both of the above answers appear to show knowledge of the law but in Student 1s answerthere is a lot of general explanation and no real specific application. From the examinerspoint of view it is not entirely clear whether this student fully understands the law and isable to apply it, or whether the mention of acceptance by silence and Felthouse v Bindleywas just a lucky hit!

Student 2s answer is much better. The examiner is left in no doubt that the studentunderstands the issues clearly and is confident in applying them to a given set of facts. Thisstudent has clearly recognised all of the issues within the facts and has made use of them toshow detailed and specific application. The student in this case doesnt necessarilyremember any more information than the Student 1 (he/she may even remember less!) but

the answer technique is much better and will gain far more marks.

4. Finally..........you are aiming to revise well and remember as much information as youcan for the exam, but do keep in mind the fact that showing a real understanding is far moreimportant than proving that you are Mr Memory!

Of course you need to cite authority for statements of law and, ideally, you need toremember cases and dates. However, no one is perfect and there may be a time in the examwhen you just cant think of the name of the case....it can happen to everyone! If this

happens, dont just skip the authority its far better to say as in the case where the granny,granddaughter and lodger filled in the competition than it is to miss it out completely. Thiswill tell the examiner that you know what you are talking about, even if exam nerves got thebetter of you for a moment.


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10 Dos and Don'ts for Note Taking in Law School

No matter how much material you think you can retain just by memory, note taking will be oneof the most important skills to develop and perfect as you make your way through law school.Good notes will help you keep up during class discussions and will also become crucial when it's

time to outline and study for final exams; here are:

10 Dos and Don'ts for Note Taking in Law School

1. DO choose a method of note taking and stick with it.

There are now lots of options for law school note taking from software programs to the good oldpaper and pen method. Try some out early on in the semester, but decide quickly which one suitsyour learning style best and then keep going with it. The link section below has some reviews ofnote taking software if you need a starting point.

2. DO consider preparing your own notes before class.

Whether you do the classic case briefor something more free-flowing and whether you're usingcomputer software or handwritten notes, use a different color or entirely different pages toseparate class notes from your personal notes. As the semester wears on, you should see the twoincreasingly converging; if not, you're probably not picking up important concepts and what yourprofessors wants you to focus on, so get thee to office hours!

3. DO write down important concepts, rules of law, and lines of reasoning.

These things may be difficult to pinpoint at first, but you'll get better at this as your law school

years go on.

4. DO take note of recurring themes in your professor's lectures.

Does he bring public policy into every discussion? Does he painstakingly parse words ofstatutes? When you find these themes, pay special attention and take particularly copious notesas to how the professor's reasoning is flowing; this way you know what questions to prepare forboth for lectures and exams.

5. DO review your notes after class to make sure you understand what you've recorded.

If something is unclear either conceptually or factally, now is the time to clear it up either withyour classmates in a study group or with the professor.

6. DON'T write down everything the professor says verbatim.

This holds especially true if you're using a laptop. It can be tempting to transcribe lectures if youhave the typing ability, but you'll be losing valuable time in which you should be engaging with


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the material and group discussion. This, after all, is where learning takes place in law school, notsimply from memorizing and regurgitating rules and laws.

7. DON'T write down what your fellow law students say.

Yes, they're smart and some may even be right, but unless your professor puts her explicit seal ofapproval on a student's contribution to the discussion, it's most likely not worth a spot in yournotes. You will not be tested on your fellow law students' opinions, so there's no sense inrecording them for posterity.

8. DON'T waste time writing down facts of the case.

All the facts you need to discuss a case will be in your casebook. If particular facts are important,highlight, underline, or circle them in your textbook with a note in the margins to remind youwhy they're important.

9. DON'T be afraid to go back through several days of notes at the same time to try tomake connections and fill in gaps.

This review process will help you at the time with class discussions and later when you'reoutlining and studying for exams.

10. DON'T forego taking notes because you can get the notes of a classmate.

Everyone processes information differently, so you are always going to be the best person torecord notes for your future study sessions. It's great to compare notes, but your own notesshould always be your primary source for studying. This is why commercial outlines and those

prepared by previous law students aren't always the most helpful either. Throughout thesemester, your professor gives you a map of what the exam will be like throughout the course; itis your job to record it and study it.

How To Study for a Law School Exam

In most instances, your grade in a course will depend entirely on one law school exam. If thatsounds like a lot of pressure, well, quite frankly, it is, but there's good news! Some people inyour class have to get A's, so you might as well be one of them.

The following five steps will help you ace any law school exam:

Difficulty: Hard

Time Required: Three months

Here's How:


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analyze your exam-taking techniques as well, for example, did you use your time wiselyduring the test?

What You Need

Casebook Notes

Outline

Time

Law School Exam Writing This article was reprinted by permission from Study Partner .

Law School Exam Writing

Exam Writing is a skill that you cannot learn 1-2 weeks before your

first exam. In order to better understand the issues that affect your proficiency at exam writing, it is important that you

review some basic concepts. The two most important are your ability to spot issues and your proficiency at

dissertation. The following is a short recap on those two subjects. Examples are taken from the StudyPartner first year law series on the M.A.D. STUDY METHOD for TORTS, CONTRACTS, andCRIMES and from the R&R ISSUE SPOTTING METHOD.

THE M.A.D. STUDY METHOD THE M.A.D. STUDY METHOD IS UNIQUE TO THE STUDY PARTNER METHOD OF LAW

OUTLINES, AND FLASH CARDS. IT CONSISTS OF THE FOLLOWING STUDY METHODS:

MEMORIZEAPPLYDISSERTATE

Your success in law school and in law school exam writing will be in direct correlation to the amount ofeffort you put into memorizing the law as well as into learning how to apply the information in class. Thelaw that you need to memorize is contained in a concise and easy to learn format in the Study Partner first year law school series on Torts, Contracts, and Crimes. Contained in these study guides are all the

elements of the law and the definitions that you need to write essay exams in school and in Bar Exams. You must dissertate the law in order to get proficient at law school exam writing.

Success in law school exam writing requires in addition to the memorization and application that youlearned in class, you will have to spend a significant amount of time dissertating on the law. Dissertation ofthe law is a proprietary study method of Study Partner. Dissertation is essential to your completeunderstanding of the law and cannot be overlooked.

In order to dissertate, simply choose a topic and write down everything you know about the topic in fiveminutes or less. When you are finished, compare the completeness and accuracy of your writing with whatis contained in the Study Partner Study Guides and with your own class notes on the topic. What you didnot write down is what you do not know about the law.

The five-minute time limit is important in that it will help you quickly organize your thoughts on the topicinto a general outline. This will give you a significant advantage in law school exam writing in exams withtime limits. Pay particular attention to dissertating majority and minority law, as this will aid you

significantly in answering both MBE questions and essay questions. MAJORITY /MINORITY I.R.A.C. EXAM WRITING IS GREAT FOR ISSUE

SPOTTING Majority/ Minority I.R.A.C.(tm) law school exam writing is somewhat similar to the Issue, Rule of law,

Application, and Conclusion, IRAC, writing to which you may have already been exposed, except that withpractice it can result in superior exam writing skills.

There are two well founded reasons for this statement; the first is that by using majority/minority law as thebasis for your answer you will be able to dramatically shorten the outlining and writing process; the second


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is that by using majority/minority law, you will spot more issues in the fact patterns than most examinersare looking for.

If you have been dissertating on majority/minority law, you will already have all the law outline that youever need to create memorized. Thus all you will need to do is to dissertate on the exam with the factsapplied to each element of the issue. If the answer is organized in adversarial format, with the winnerarguing majority law and the loser arguing minority law, then the organization of your writing will take

care of itself. When reading the exam for issue spotting, simply write down one word to remind yourselfthat the issue is present. Afterwards, when you return to write the answer, just skim the facts looking forwords and phrases that support the argument for each particular element of the issue.

If you have been practicing your dissertation skills, your speed in dissertation should have progressed towhere you can concisely state in writing all applicable points of law in less than two minutes. That leavesyou an extra three minutes per issue to add some facts to create an answer that is complete beyond anyexaminer's greatest expectations. You can thoroughly discuss all of the elements of the issue, and theanswer will read well and make sense because it is organized in a well-defined adversarial format ofmajority/minority law and you will not waste a lot of time writing in the original IRAC format.

It takes about 100-200 hours of practice and another 100-200 hours of dissertation on the subjects you wishto write about to become extremely good at using this method of law school exam writing. Once you havethe ability to write in this fashion it never leaves you. All you will then have to do for the rest of law schoolis spend enough time dissertating on any subject to completely master it in a short period of time.

The first strategy of law school exam writing is to split your exam time into two periods. The first period isthe issue-spotting period and the second is the exam writingperiod.

THE ISSUE SPOTTING PERIOD The issue-spotting period must take at least 1/2 of the time allotted for each question. During the issue-

spotting period, you must read and reread the fact pattern presented to spot all the issues and to formulatethe structure of your answer. If you do not spend 1/2 of the time allotted on issue spotting, your answerwill be disorganized and you will not spot all the issues presented by the facts.

The average exam question can be read once every 3-5 minutes. The average exam length is one hour. Inthe thirty minutes allotted for issue spotting, you should by able to read the question at least six times.

The first reading should familiarize you with the interrogatory and the basic facts. You will begin to spotissues, but you will only spot 40% of what is really there. If you begin writing after reading the questionjust once, you will miss 60% of the issues and will not be able to use the adverbs and adjectives used in thefact pattern. Failure to use the adverbs and adjectives presented is a strong indication that you lackknowledge of the facts presented in the problem.

The second, third, and fourth readings should allow you to spot all the issues presented as well as focusyour outline and exam answer to the adjectives and adverbs used in the answer. If a blue cow committedthe crime, you should use the words 'blue cow' in your answer. This is known as writing about 'blue cowlaw.'

By the fourth or fifth reading, if time permits, you should have memorized the actual facts of theproblem. In addition, if the issues are word sensitive you will be able to determine which words supporthidden issues or presumptive issues. This will allow you to find the hidden issues that are not obvious untilyou start asking the question, "Why was this word chosen to describe the action or problems encountered?"

The key to good law school exam writing is to not start writing the answer until you understand the factsgiven in detail and their relation to the interrogatory presented.

OUTLINING FOR LAW SCHOOL EXAM WRITING Each time you read through the facts of the question your key word outline should expand as you spot more

issues. The law school exam writing outline should not be formal in nature, it should be a series ofabbreviations with elements of law highlighted as being the key to the legal analysis presented. Youroutline should be incomprehensible to anyone but yourself.

However, before you begin to write yourlaw school exam writing answer to an interrogatory you shouldmake a final organization of the outline. This is to create maximum efficiency in writing the answer. Agood example of this is felony-murder. It makes no sense to separate the inherently dangerous felony fromthe discussion on felony murder. Combining the felony into the murder discussion is essential if you wantto complete the writing using the least amount of words and time.

Spending 3-5 minutes to do a final organization of yourlaw school exam writing written answer beforebeginning to write will save significant amounts of time.


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USING THE FACTS GIVEN FOR SUPERIOR LAW SCHOOL EXAM

WRITING. Most students have great difficulty in realizing that most of the facts given in the problem should be

repeated in the answer. The average person can write 20-30 words per minute. The average exam answershould be 600-900 words in length At least 100-150 of the words written in any law school exam writingshould be taken directly from the problem presented. Adjectives and adverbs taken from the problem

should be used to describe the actions and quality of the parties. Basis IRAC skills.

Law school exam writing exam answers can be broken into four main parts. They are identification of theissue, statement of the rule of law, application of the facts to the law, and conclusion. The basic structurethat a student should use in writing exam answers is I.R.A.C. IRAC stands for Issue, Rule, Application,Conclusion. It is good for a basic structure, but do not write in I.R.A.C. from for an answer because thatmethod of writing is too inefficient and takes too much time. This book, will focus on writing with theI.(RA).C. structure. The I.(RA).C. method combines the rule of law and the application of the law to savevaluable time and reduce the overall amount of words used. This makes your arguments more clean, clear,and concise (C3.)

In addition, to using the I.(RA).C. structure, you must use majority/minority law to create an automatic lawoutline and counter-arguments for each issue. Many students have difficulty in putting down the first fewwords in an exam setting, and they lose valuable time frozen in a mental block. The use of

majority/minority law will alleviate any serious problems you may encounter in beginning to write an examanswer.

IDENTIFICATION OF THE ISSUE AND THE PARTIES. This advice is easy to give and easy to follow. Do not identify an issue with a question. For example, if you

are answering interrogatory #2 on a crimes exam and it asks if Deft is guilty of murder, do not write thefollowing:

2. Was Deft guilty of murder when he went to Sally's home and shot her in the head after she told him shewas moving out and going with Charles because Charles was a real man?

This looks good and it reads well but it takes 35 words and at least one minute to write. There are usuallyten issues on an exam and a student who writes in this fashion will spend 10 minutes of valuable timewriting nonsense. It is far better to write any of the following:

2. Deft's murder of Sally.2. Is Deft guilty of murder?

2. Deft's liability for killing Sally.2. Murder.

All of these law school exam writing alternatives are better than the first example with 35 words. If youidentify your answer as listed in any of the alternatives, you will have approximately 9 more minutes ofwriting time to discuss in detail any issue you may raise about Deft's culpability for the crime.

APPLICATION OF THE FACTS TO THE LAW USING MODIFIED IRAC IRAC law school exam writing requires that your state the Issue, Rule of law, Application, and

Conclusion. For the crime of burglary it would be necessary to write the following:

2. Burglary.

Burglary is the breaking and entering of a dwelling house of another in the nighttime with the intent tocommit a felony therein or larceny.

When Jake threw a brick through the window of Sally's house he satisfied the element of breaking. Bycrawling through the window (entering) immediately thereafter in the nighttime to murder Sally, he showedhis intent commit a felony.

Because Jake broke and entered into the house of another in the nighttime with the intent to commit amurder, a felony, he has incurred liability for common law burglary.

Comments: By carefully looking at the Rule of law and the Application, it is obvious that the definition andthe application can be combined, thus saving 23 words. That's almost a full minute of writing. The betterway to write the answer is to not waste time listing the definition and applying the law to the definition intwo steps. Just apply the law and make sure the elements of the definition are present in the application ofthe facts to the law.

Example:


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2. Burglary.

When Jake threw a brick through the window of Sally's house (house of another) he satisfied the element ofbreaking. By crawling through the window (entering) immediately thereafter in the nighttime, with theintent to murder Sally (felony) Jake has satisfied all the elements for culpability of common law burglary.

There is no difference in the quality of the answers, but the second requires a lot less time to write, whichmakes it the better alternative for a student in a hurry. That's the advantage of combining the Rule and

Application of the law in I.(RA).C. exam writing. CONCLUSION

The conclusion in the I.(RA).C. example merely lists the definition again and concludes that Jake is liablefor common law burglary. The conclusion in the second example states the same conclusion but with 17fewer words.

Learning the Skill of Law School Exam Writing If you think you can learn the skill oflaw school exam writing in two weeks you are the village idiot. The

sooner you start the better you will get. Before your first exam you must do at least 30 practice exams ineach subject you are taking. If you in fact do what we tell you to do, and become proficient you will noticesomething very reassuring when you take your first law school exam; you will see those less fortunate soulswho start writing an exam answer in the first 5 minutes of the exam.

These methods work and we know it because over 250,000 law students have used them in the last 21years. Don't think for one second that you know better because you don't. There are two types of law

students in this world; those who call us in February gushing about their fantastic grades and those lookingfor help.

Why are we so arrogant about our methods? Simple. Ourlaw school exam writing methods work and theyhave worked for a vast number of students. If you do them you will see immediate results in about twoweeks and the process of law school will become easy to understand. There is a lot of work but once youtake our path the anxiety will disappear and you will get grades like you did in undergrad. Those of youwho cannot spend the time or find an excuse for everything; Good luck to you in your law school examwriting.

WRITING LAW EXAMINATIONS

By John H. Langbein, Sterling Professor of Law, Yale Law School

uthor's Note: Some years ago I prepared this little essay for the guidance of my students. When

the essay began to circulate elsewhere, West Publishing volunteered to publish it in these pageswith the thought that it might be of help to a wider audience. I hope it is.

Law examinations share a good deal in common with other stock forms of legal writing, such asthe brief, the law office memorandum, and the judicial opinion. Developing proper skills ofexam writing will have, therefore, permanent returns.

Ideally, a good law examination tests how well a student has mastered the course material, and

the ability to apply this knowledge to new situations. There are, however, some recurrentmistakes, oversights and unwise practices that prevent students from doing as well as they might.If you are alert to avoiding these pitfalls, you will improve your examination results.

Lack of Organization. The most costly mistake an examinee can make is to fail to organize ananswer well. An answer which flails at the examination question without a plan will overlookissues and connections between issues. There is no universal scheme of organization. Dependingupon the layout of the question, it may be convenient to organize by parties or by legal issues.


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When the facts set out a substantial number of transactions or events extending over time, it maybe best to organize by dates, beginning with the earliest facts and working forward, explainingwhat issues and arguments change as the plot thickens. Especially in property and tax courses, itis sometimes quite sensible to key your answer to the treatment of particular assets or groups ofassets. Regardless of the mode of organization, organize. You are not wasting time when you sit

in an examination room thinking about how best to approach and argue the issues. Carefulorganization can also spare you the serious error of inconsistency in your treatment issues. Idoubt that a mental checklist is enough - I think you need to jot down a little outline to which torefer as you write your answer.

Of course, virtue can be carried to excess: it is possible to overorganize, to splinter your essayinto useless subheadings that lose continuity and conceal interrelations. One mode oforganization that is usually unwise is to segregate the pros and cons of a great number of issues("Plaintiff makes the following eight arguments....Defendant offers the following nineresponses..."). Usually, the time to say what's wrong with an argument, or what difficulties mayensue if a certain rule is applied, is right after you state the case for the argument or rule. I

recommend that you try to address liability-creating factors before you discuss defensive ones.Defensive considerations are difficult to evaluate in the abstracts. You get the cart before thehorse when you raise the defensive position in advance of the notional theory of liability thatwould bring it into play.

Reading the facts. Before you can organize, you must know what you are organizing. It is theworst sort of false economy to hurry through the facts in order to start writing bilge.

Examination questions are dense: every sentence, every word may have significance. You shouldread a question through to get its general drift, then reread it with care. You must question thequestion. "Why is this fact being told me, why this date, why these parties?" Above all, get thefacts right. It is easy to confuse parties and places on an examination because you have not hadlong familiarity with the facts. Only your own commitment to avoid carelessness can save youfrom doing it.

Here too excess is possible. Some answers display a preposterous suspicion of the facts, e.g., theexaminee who has been told that Mr. Corpse is dead, but insists on reciting that "Mr. Corpseappears to be dead," or "If Mr. Corpse is in truth dead...."

The importance of role. Pay attention to the role the examiner has assigned you. If you are toldto be an advocate, you will necessarily approach a question differently than if you are put in theshoes of an impartial judge or legislative draftsman. Be alert to the common tendency ofexaminers to change role assignments when they change questions. Be sensitive to thesignificance of your role when looking at the state of the facts in the examination question: havethe facts been found below in the lower court or are you being asked to shape them for argumentto a trier, and if so to whom, a professional or a jury of laypersons?

Read the instructions. I have been staggered by the amount of abject carelessness that isexhibited by examinees. Some students disregard plain instructions to begin a new question in anew bluebook. Some omit their examination numbers. Others misallocate their time although


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told in advance and again on the examination itself what the relative weight of the questions willbe. You should go into an examination with a schedule. When you have been told in advancethat there are three questions of equal weight and that you will have two and one half hours towrite the examination, you should work out beforehand that at 9:45 you will move on toQuestion Two, and at 10:30 to Question Three. The student who writes a total of four sentences

on the last question, concluding with the breathless report, "Time!," is displaying a self-inflictedwound whose consequence is deserved.

Padding.No examiner gives credit for quantity of words written. Nonetheless, a huge proportionof examination papers contain many paragraphs that should not have been written and for whichno credit can be given. The two most common varieties of padding are regurgitating the facts,and what I call wind-ups (lengthy preliminary discussions of issues which might be involved, orof general policies or values like enforcing intention, or of the scheme of organization the essayis going to utilize). The examiner has written the question and knows what the facts are. Youwill never get credit for summarizing them all over again, even if your "role" in answering thequestion is that of the judge.

Go immediately to the issues, then mention those facts that are relevant when they are relevant.A particular variety of padding is to write out quotations from casebook materials or statutes inan open book exam. Cite it, don't copy it.

Inventing facts. An especially maddening trait of some examinees is the manufacture of facts.Usually these are very convenient facts that let issues be avoided. Typical: "The law in thisurisdiction is...." Or "It was argued in this matter...." Never add to what the examiner has told

you about the facts. If you don't know what positions were taken into court, deal with them aspossibilities rather than attributing them to particular parties. If the examiner hasn't told you what

urisdiction you are in, and you know that there is a conflict of authority on the issue, talk aboutthe conflict, don't try to weasel out by assigning the governing rule. It may sometimes be in orderto tell the examiner that particular additional facts, if present, would affect your analysis in someparticular aspect, but do not dwell on such matters.

Authority. There are two opposite extremes to be avoided in citing statutes and cases. If you aretaking an open book examination, especially in a statutory course, don't neglect to mention thestatute section numbers you are referring to. That is to say, when relevant authority is close tohand, take advantage of the opportunity to make your answer more precise and lawyerly byciting the statutes or cases you are discussing. The greater failing, however, is senselessreference to authority. It weakens rather than strengthens your argument when you cite casenames whose relevance you do not and cannot explain.

Negative issue spotting. It is usually quite appropriate to say that on these facts, a particularissue that might have arisen does not arise, having been foreclosed by such-and-such fact orfactor. But this shades into a flagrant error that will cost you points. If you have come preparedto talk about the ABC issue, and are disappointed to find no ABC issue on the examination, it isnot a solution to write an essay about the subject of your disappointment. ("Since I don't find anABC issue on these facts, I'll tell you that there is no ABC issue here, and then I'll spend a pagetelling you about ABC.") The examiner knows what's on the exam.


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Knowledge. A common failing in a needlessly weak examination essay is the tendency to try tobarf back the contents of classnotes or course materials. What the examiner looks for is notmemorized knowledge, but ability to use the knowledge of the course. To be sure, you have tohave the knowledge. That's the essential precondition. But what distinguishes strong work is that

the student brings that knowledge to bear on a new problem, or that (in response to a question)the student uses that knowledge as a basis for thinking about new facts or new issues.

Another way to make this point is to say that you must not expect to employ everything youknow about a course on the examination. Often a course starts with the basic concepts, then addsmore advanced knowledge, and in these circumstances the examiner is likely to probe for theadvanced knowledge. You have not wasted your efforts learning the basics that are not called foron the examination. Without the basics, you couldn't deal with the frontier. It is a major blunderin such circumstances to insist on emphasizing the rudiments when the question invites you tohigher ground.

Procedure and remedy. Common procedural issues cut across most substantive issues: does aparticular party have sufficient interest to have standing; what are the remedy implications of thesubstantive legal rights you think pertinent; has there been delay such as to raise laches or statuteof limitation problems? Remedy is especially important. It will be a rare examination that doesnot pose problems of remedy. Consequently, to speak in tort terms, get in the habit of askingyourself: "Now that I see there has been a wrong, which of the many conceivable things a courtcan do about the wrong seem appropriate here and why?"

Question-begging. The most recurrent error that we all make in legal analysis is failing to justifyour conclusions. The art has many forms. Beware the adverb "clearly" or the phrase, "It is clearthat...." Examiners tend not to set questions that can be resolved by sentences that properly beginwith the word "clearly." I do not mean to suggest that there are no easy issues on law exams.There are. One thing your examiner is testing for is your ability to distinguish straightforwardproblems from complicated ones: a hallmark of a weak answer is that the student spends timethrashing an easy point to death rather than facing up to the hard problems. Because legal issuesdo not involve the same degrees of doubt, you should signal your awareness of how open aparticular issue is.

Under the heading of question begging, the basic failing I am talking about is the practice ofstating legal conclusions without giving the reasoning. You will get little credit for saying"Bloggs committed fraud and so his legacy fails." You have to show why the issues inheres inthe facts (what conduct amounted to fraud and why), why your result follows from the facts andthe law. The right answer isn't right unless you show why.

Issue spotting is not enough. We emphasize issue spotting on law examinations because it is socentral to the lawyer's job. Your client is not going to come in and say "I have a Section 1983action I'd like you to bring." Instead you will hear something of what happened, or what theclient wants to achieve, and it is your job (after getting at the facts) to see what legal issues mayarise on those facts.


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But however important issue spotting is, you need to do more. It is not enough to hit the side ofthe barn. Once you see that an issue is in question, that a doctrine or a statutory section applies,continue to ask yourself: what are its implications, its ramifications for the various parties, thedifficulties it raises? Have you indeed spotted the applicable rule, or can the rule bedistinguished? The examiner will commonly set a question whose facts suggest, but do not quite

fit, some conventional rule of law. The student who displays sensitivity to distinguishing theparticular case according to the purposes of the seemingly applicable rule is on the way to an A.

If you are going to get beyond issue spotting, you must refrain from dealing with issues ingeneralized terms that prevent you from developing your analysis. Abstract discussions of legaldoctrine are seldom justified. The examiner wants to know which facts raise the issue and howthe issue affects the rights of parties.

The other side. The hardest part of legal analysis, I think, is to keep one's mind open to all sidesof an issue. We tend especially in the adversary process to blot out opposing positions. We take astand and justify it. But there is almost always another side, or several. And you can't be sure that

your view is (a) correct or (b) properly articulated and defended, unless you have asked yourself:"What can be said against my interpretation of the facts and the law, what would the other sideargue?" A really good examination answer not only suggests the preferred solution, but itdevelops both sides of the problem.

You should master the technique of arguing in the alternative. If you deal with an issue andresolve it, and you are aware that had you resolved it the other way you would have had to dealwith other issues consequent to the other solution, argue the point in the alternative. Don't duckissues that the facts do invite you to discuss.

Irresolution. It is usually best to reach results. Lawyers are paid to advise and judges to decide.Hence you are not doing your job on the typical examination questions if you say only that such-and-such doctrines may apply. Do they? Why and how? A strong essay constantly signals theweight being attached to various issues, rules and arguments, and it suggests in a reasonedfashion the probable outcome(s).

Inspiration. It sometimes happens that the examiner puts an issue on the exam about which youhave thought long and hard, or indeed, about which you find yourself with something daring tosay even though you have not thought long and hard. You have an analysis that no prior legalthinker has ever suggested, or you think the relevant doctrines to be quite wrong for such-and-such reason. It is quite proper for you to put such observations on your examination answer, theyare the stuff from which A-plus grades can be made. But before you reach the unconventional,be prudent. Set out the ordinary analysis that would govern the problem in case the court or theexaminer were to think less of your inspiration than you do.

The seamless web. In statutory courses students have a tendency to overlook considerations notdirectly tied to code numbers. Statutes do not work in isolation in our legal system. The codemay not reach all aspects of the problem. Furthermore, don't let course titles become blinders.Don't be afraid to use your knowledge from one course in another. It may be quite appropriate topoint out on a torts exam that a problem would also be susceptible to contract analysis. On the


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other hand, don't get carried away with such efforts. If it's a torts exam, the bet is good that theexaminer has supplied you with lots of torts issues to write about.

Writing.No matter what the level of your writing skills, there are some mechanical things youcan do to present your work at its best. Break up the main scheme of your answer into

paragraphs. Use complete sentences and avoid abbreviating ordinary words. Avoid slang;expressions like "to throw out of court" can conceal distinctions that your examiner regards asimportant. Write legibly; if you have a difficult handwriting, skip a line between each writtenline. Leave a conventional left-hand margin for your examiner's notations. Remember that ifyour examiner is spared having to decipher your script, more time will be available toconcentrate on the nuances of your meaning.

Format. I recommend to students that they consider word-processing examination answerswhenever it is allowed. Even a hunt-and-peck typist is not at a particular disadvantage, because itwill not be necessary to do copy-typing on a exam. My hunch is that for most students wordprocessing facilitates clarity.

Avoid jocularity. Your examiner takes seriously the questions propounded on the examination. Idon't suppose that I mean to recommend against all levity, but rather to say that in my experiencemost attempts seemed strained and cloying, and most seem needlessly to have preoccupied theexaminee. As an empirical matter humor is associated with error and bad-exam-writing in asurprisingly high correlation. (Some students think that jocularity is invited because theexaminer uses bizarre names for the parties and places in setting a question. This is done in orderto help students avoid confusing the parties. Even when the examiner uses very awkward names,a goodly minority of examinees still confuses them. You have no reason to imitate theexaminer's art in this manner).

Panic. Somehow it happens that a few students get all the way to law school without learning tosteel themselves against panic psychology in exam taking. The thought process must besomething like this: "Because this exam is important to me, I have to abandon my analyticalgood sense in a race to slop something on paper. I also have to jettison my usual attention togrammar, spelling, and punctuation, and I shall adopt stream-of-consciousness prose style inorder to show the examiner how desperately urgent I thought it all was." No matter howimportant the exam, panic will not help. It only renders you less capable and less persuasive thenyou otherwise would be.

How to Outline for Law School Exams

In Academic on March 15, 2011 by NLLSA Attorney General Tagged: contracts, exam, lawschool, outline


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The key to success in the traditional law school class is to focus on the exam. The pressures ofthe Socratic method often lead law students to dwell on their performance in class instead of onthe only graded exercise in the course. Instead, spend your time creating a strong outline for the

exam.

Here, I will walk you through my first year Contracts Outline (attached in its entirety, below) asI describe my process of creating a solid law school outline. MORE

The curve - where do you fall?

Why do law students outline? Its not because, ten years from now, you want to remember thefact pattern inHawkins vs. McGee or because you want to force your yellowed outlines on yourchildren as mementos of an age when we still used paper.

You outline because you want to pass the exam.


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This means you should not try to record every detail or write the next treatise on torts. Instead,keep the information in your outline concise, and organize your outline in a way that is useful toyou when answering a law school issue-spotter.

{ Keep it Simple }

Preparing for class and preparing for the exam are two very different things. When you areworried about being cold-called in contracts, you tend to focus on the minutiae of each case. Inan exam, you will not have the time to re-read your paragraph description and most of the factswill be irrelevant to your answer anyway.

Heres an example from my first yearclass notes for Contracts:

Lucy v. Zehmer, 196 V.A. 493 (1954)FACTS: Both Lucy & Zehmer are drinking in a tavern Christmas Eve. They draft a contract onthe back of a receipt allowing Lucy an option to buy Zehmers land, re-write it (b/c it was insingular) get the wife to sign it. Lucy takes the contract, Zehmer says it was just a joke. Lucycomes up w/ the money, does a title search, gets a lawyer, and tries to buy the land.

Cumbersome, and not very useful. I went on to describe the procedural posture, issue, holding,and analysis for half a page. A better option is to do this:

Jokes that meet the Restatement definition of promise (above) are binding. SeeLucy v. Zehmer(contact signed in a tavern on the back of a receipt are binding) [p. 32]

This is how it breaks down:

[concise and generalized statement of the rule]. Case Name (relevant facts) [page number]

As you can see, the focus is on the generalized rule of law with the case name supplemental, justas you would use it on an exam. Then I include a short summary of the facts in a sentence Icould drop directly, word for word, into an issue-spotter, and finally the page number for that


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one unlikely occasion that I will actually need to know the specifics of the case in order toanswer a question.

Now that we have this simple two line case summary, where do we put it?

{ Organize }

There are two different types of information contained in an outline: area of law information and

rule information.

Area of Law information is the backbone of your outline. Getting a handle on overallorganization is essential to navigating your outline and ensuring you dont miss any large issueson the exam. You can organize the areas of law in any way that is intuitive to you, but this ishow I do it.

For example, in Contracts I broke the course down into six questions that track the naturalprogression of a contract:

1. Is there a Contract?

2. Is it Enforceable?3. What are the

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