Over the next few weeks, law school final exams will be in full swing at almost every law school in the country. Like most of my law professor colleagues, I find writing and grading tests to be among the least pleasant aspects of what, overall, remains—notwithstanding recent stresses over the past few years—a great job. Exam drafting and evaluation is necessarily time-consuming and tedious. And no professor can avoid feeling somewhat bad knowing that the grades she gives will be disappointing, if not devastating, to some significant number of students who, until they got to law school, had rarely gotten any marks lower than an A- or B+.
But another, perhaps bigger, reason I lament grading finals is that over the years I have sometimes felt, after reading exam responses, that my students didn’t learn as much as I thought they had. In fact, and on reflection, I believe that students generally do learn what professors desire and expect, but that students sometimes don’t effectively convey what they really know on written exams. That is, I think many law students do not effectively demonstrate all the substantive legal knowledge and sophistication that they in fact possess, when it comes time for them to write their final exams. This is true at many of the fine law schools at which I have been privileged to teach, including the University of Illinois, and several of the campuses within the University of California system.
While this mismatch, if you will—between what students know and what they convey on tests—is frustrating for the instructors, it must be many times more frustrating for the students themselves. For that reason I offer below, based on my twenty-plus years of giving and grading law school tests, my updated (if unsolicited) half dozen pieces of advice for students seeking to write effective law school exams. While many of these pieces of advice seem straightforward (and perhaps have been offered to students before in other settings), they are nonetheless helpful to keep in mind as one enters the exam-taking phase of the semester. As with all advice, students should digest and analyze these suggestions, and then embrace those elements that make sense to apply to their particular situations.
Suggestion Number One: Answer the Question(s) Being Posed
Law school exam questions, even those of the traditional “issue spotting” variety, usually do not ask students to “write about any issues that come to mind based on the preceding narrative.” Instead, the queries are usually more focused, and ask students to examine and analyze particular issues from the perspective of particular participants in a scenario.
If the “call” of a question asks the exam-taker to assess “subject-matter jurisdiction” in a given case (that is, to examine whether a litigant has filed suit in the right system or kind of court), students should not spend time talking about other concepts—like “personal jurisdiction” (that is, whether a particular court located in a particular geographical place has power over the defendant). These additional concepts, while they may very well be implicated by the fact pattern presented, are not subsumed within the precise question being posed.
Of course, if the question asks the student to address whatever questions of “jurisdiction” he might see, then a discussion of both topics would be appropriate. But the key point is this: The scope of the answer must attend to, and track, the scope of the question.
Students should also understand that if a question asks for a bottom-line conclusion—as many (most?) do—an answer that merely identifies arguments on both sides (generally a good thing to do, as explained below) but that never resolves these competing arguments to arrive at (and defend) a bottom line, is not really responsive to the question asked (and is thus not likely to receive full or near-full credit).
For example, if a question asks: “Does the court have subject-matter jurisdiction over the case as described?,” an answer that identifies the best arguments for and against the exercise of jurisdiction, but that does not make clear to the grader which set of arguments the exam writer finds more compelling (and why), is not a complete answer.
Suggestion Two: Show Your Work
I got many good bits of advice when I was a kid from my grade-school teachers and members of my family. One was always to “look things up yourself”—that is, don’t trust other people’s characterizations of primary sources and documents. (That has been especially good advice as it relates to the reading of judicial opinions; many people interpret them in different ways, and you should read things for yourself whenever possible.)
Another gem was, in a test situation, to “always show your work.” That is, demonstrate what led you to arrive at the conclusion you reached. That advice was most obviously relevant in the math setting (where the concept of “partial credit” for wrong answers that nonetheless displayed some knowledge of the subject matter was big), but it also applies nicely to law school exams.
Whether on an exam or in the real world, lawyers and would-be lawyers are valuable not merely because they have good instincts about what the “right” bottom-line answers are, but also because they can defend their instincts by making arguments that have support. Although law school exam questions are often called, as I noted above, “issue spotters,” in reality the questions typically ask students to do much more than “spot” issues; students are tested on their ability to spot, argue and resolve issues.
And of the three tasks, the argumentation of the issues is probably the most important. Spotting an issue is often not that hard, and saying how you would come out on it is important but requires only that you be somewhat decisive. Defending how and why you came out that way is the real lawyering, the part of the exam answer that should be most heavily credited and evaluated.
How does one successfully argue and defend legal positions? By reference to authority, which can take the form of, among other things, judicial or other precedent, textual analysis of words enacted by a legislative body, and sometimes pure logic, empirical data or old-fashioned common sense.
How do you most effectively use these materials? Much of traditional legal analysis (on exams and elsewhere) involves making analogies and distinctions—likening the situation at hand to some that have already been discussed in the real or theoretical worlds, and/or distancing the present case from others. Showing your work and supporting your results thus often takes the form of using these devices of analogy and distinction. Conclusions, even “correct” ones, that lack this kind of authority or support behind them rarely do (or should) get full credit.
Suggestion Three: Anticipate and Address Likely Counterarguments
Regardless of the role(s) you are asked to assume on an exam (e.g., a lawyer for one side in a dispute, a judge or a law clerk to a judge, a legislator or legislative aide, etc.), in general you will want to see and discuss all of the major sides of any issue you address. A good and well-supported argument (see Suggestion Two) is generally one that deals with its own weaknesses, and explains why those weaknesses are less problematic than those that plague any other argument or resolution that could be made.
None of this means, of course, that students should set up, and knock down, “strawmen” responses to the arguments they make. Rather, the counterarguments that should be anticipated and dealt with are those that are likely to occur to someone who understands the area of law at a reasonable level of sophistication, but who is not necessarily inclined to agree with the outcome the student is advocating without some persuasion.
Nor does this mean that a student should leave the matter discussed in equipoise. Discussing counterarguments does not relieve a student of her obligation to resolve the competing arguments (where the call of the question asks for a bottom line) and explain why one set is stronger than the other. (See Suggestion One above).
Suggestion Four: Organize Your Response to Clue the Reader In to Your Thought Process
Many students seem to forget that a good law school exam essay, like other good non-fiction essays, should be structured so as to make the writer’s thought process as transparent as possible. This means using paragraphs that are each limited to one thought, writing topic sentences that explain what the thrust of each paragraph is, employing transitional phrases, and sequencing points to make clear the relationship between what is being discussed at present and what came before (or will come later) in a response, and so on.
Many exams I have read make use of three- and four-page paragraphs that collapse six or seven ideas or points into one dense mix. While the substance of these paragraphs is often not entirely off the mark, as a grader I can’t easily know what the student thinks the relationships between all these mashed-together points are, and often what I am trying to test on is knowledge not just of each discrete point but also how, precisely, the points fit together.
Suggestion Five: Use Time and Space Allotments Wisely
It always pays to consider time and space at the start of an exam, rather than try to figure these things out when you are in the midst of answering each question substantively. For starters, do pay attention to the professors’ suggested time allocations for various questions, because these allocations generally correspond to the relative weights the professor will give the questions on an exam when she grades. So spending only 30 minutes on a question for which the professor indicated a suggested time allotment of, say, an hour is a dangerous strategy.
But more difficult, and less obvious, is the knack of allocating time wisely within each question. Just because a question implicates two issues of law, or because the call of a question asks you to address two legal topics, you should not assume that each of those two topics warrants 50% of your energy and words.
So how, then, should you divide your time and words? As a general rule of thumb, students should allocate their resources in discussing issues on an exam in the same way they think someone looking at these questions in the real world would devote their comprehension resources. Suppose one issue, which was either explicitly mentioned in the question, or plainly important to include in a complete answer, has an easy, wrinkle-free, resolution. Discuss that issue quickly, and move on, especially if another issue has a lot more difficult twists and turns that need to be explored and explained before a resolution can be reached and justified.
Suggestion Six: Differentiate Between what is Settled and What is Debatable
This suggestion follows on the heels of the last one. Exams often feature a blend of “easy” questions (or parts thereof) that are meant to test basic understanding of clearly settled legal principles, and “difficult” questions that lie at the cutting edge of evolving doctrines. Readers (i.e., graders) want to know that you, as students, appreciate the differences between the two. Words like “clearly” are probably overused in legal writing, but in the exam context can be useful to convey to the grader that you know the difference between tests and applications on which there would be widespread agreement, and those on which judges and analysts in the real world may diverge, either in the formulation or the application.
Relatedly, many law school exam questions implicate policy considerations whose merits might depend on political/ideological viewpoints or on empirical questions as to which the data may be mixed or contested. Demonstrating an awareness of the policy/empirical elements of questions—and of the contested nature of some of the policies/empirical realities involved—by explicitly separating discussion of these matters from more mundane doctrinal recitation/application demonstrates a sophistication that will help set your exam apart from many others.
I hope that these suggestions that I have offered will increase the chances that you and your professors will feel that your exam answers accurately reflect the entirety of your hard-earned knowledge and analytic skills, not just some fraction of that sum.