Hard does it: How to answer law school exam questions

“...Remember, never take no cut-offs and hurry along as fast as you can.” – Virginia Reed, age 12, Donner Party survivor

The gift of fear

Of course you’re nervous, which is a good thing. If you weren’t, that would mean that you’re overconfident or that you don’t care. This fear is helpful and will force you to work hard to prepare for exams.

Law school exam questions are different than those on any other exam you’ve taken, even in the hardest undergrad courses. Plus, your entire course grade is riding on your performance on this one exam.

That’s scary, but if you approach the exam in the right way, you’ll do well.

The two biggest fears that you’re probably experiencing are: 1) Will I be able to spot the issues at all, and 2) Even if I spot the issues, will I be able to analyze them in the amount of time I’ve got?

A method of analysis

To avoid both of these problems, I urge you to develop a method of analysis that you can use for each area of law. If you do this, it will serve you well on every law school exam, on the bar exam, and in your law practice.

Naturally, if your professor has told you that he or she wants you to answer questions in a certain way using a particular format, you must do is just that way. Otherwise, consider this method.

For my example, I’ve written a hypothetical from the law of Contracts, because this subject lends itself to a linear method of analysis. My Contracts professor, Richard Hagedorn, developed this particular method, which he calls the “picket fence.” Questions in other areas of law won’t lend themselves to this linear method of analysis. Instead, these questions may be best answered using a flow chart, a checklist, or even a circle or some other method.

No matter how you choose to analyze an exam question, if you consider which method to use and then practice on sample questions using your method, the practice itself will teach you the law and help you prepare for exams.

Remember: There is no substitute for hard work.

Practice

Don’t be lazy. The law library and online sources have unlimited sample exam questions. Get ten or so of these samples and outline your answers. (It’s not necessary for you to draft an entire answer unless you feel weak in that area; just do an outline.)

This will seem tedious. It is, but you need to get used to this level of tedium. When you study for the bar, you’ll be grateful that you’ve developed this habit. The more questions you outline using your chosen method of analysis, the better you’ll become at spotting issues, understanding exam questions and answering them. Once you’ve outlined an answer, read the sample answer and evaluate how you can improve.

Meanwhile, practice with as many multiple choice questions as possible. One great source is the PMBR and similar books in the law library’s reserve room. I know the exam likely consists entirely of essay questions. It doesn’t matter. Answering multiple choice questions will make you an expert at spotting the fine distinctions in the law. Trust me on this. I did this when I was in law school, but not enough. It wasn’t until I studied for the multiple choice section of the bar that I realized how helpful a learning tool this was—even for the essay questions.

Speaking of tedium, here is the way to do it: Read the question and try to answer it really quickly in your head. Then, look at the choices and pick one. Consider why you picked that one. Then, look at the answer and explanation and see whether you were on the right track (or evaluate how far off the mark you were). Then, go to the next question.

Pick your way through at least 50 multiple choice questions in this manner, and don’t panic when you get many of them wrong. You will get better at it, but in order to do that, you must answer a number of them wrong (or get lucky with the occasional correct answer), and then read the answer and explanation and learn from those.

Again, all of this practice is tedious and disheartening, because it’s slow going and you won’t be good at it at first. Keep at it, however, because you are getting better by the moment with this practice.

Follow directions and mind the call of the question

You’d be surprised how many students fail to follow basic directions (for example, “don’t discuss damages”) or fail to read and specifically respond to the call of the question (such as “identify any possible causes of action that P can bring against D). This is where your nerves get the better of you. Take a deep breath and read the question twice, and then answer what it asks.

Time management during the exam

Nearly everyone will advise you to avoid writing until you’ve thoroughly outlined the answer. “Spend several minutes outlining before you start writing!” they admonish.

This is terrible advice, and I encourage you to disregard it.

First, let me repeat my warning above: You must understand the question and take the call of the question to heart. Spend a minute or two doing that. This is a good place to spend time.

Second, it’s never a good idea to listen to someone else’s ideas about how to do something that is so unique as writing an exam answer (including my ideas). Maybe that’s what worked for them, but everyone is different.

Third, you’ve got so little time that it’s important to not waste time trying to craft beautiful answers. Instead, you’re trying to write complete and completely analyzed answers.

I was able to read and re-read the question and then scratch out a few quick notes in a total of two or three minutes. I spent the rest of the time that I had budgeted for the question on actually writing my answer to the question.

Speaking of budgeting, I took a few seconds at first to scan the exam. I noted how many questions there were (usually three or four), considered how much time I had total (usually three hours), and then I VERY quickly made a budget for myself in this way: “First question is 40 percent of the grade. First hour goes to that. Second question is the same. Second hour goes to that. Third and fourth questions are small, 10 percent each. Last hour goes to those in equal parts.”

Do your best to stick to your budget, but if you’re really on a roll, you may be getting points by answering that one question very well, so it’s OK to violate your budget a little bit. It’s just a guideline. It’s OK to be a little flexible, but only a little (five or ten minutes of spillover, max).

I just asked my colleagues about this, and all of them agreed that they did it exactly the same way. They all strongly agreed that the “carefully map out your answer for several minutes before you start writing” is bad advice.

Ignore this piece of advice: “Read each question and start with the easiest one to build confidence!” You’ve got to answer all of the questions anyway, so start with the first one and don’t waste time and risk confusing the issues by reading all of the questions before you start writing.

Road maps and sign posts

Legal writing in general (and exam answers in particular) differ from other forms of writing. This is no time to be creative, and it’s no time to worry about perfect prose.

Rather, this is the time to demonstrate that you understand the call of the question, that you have spotted the issues, and that you can analyze the issues by applying the law to the facts. Understand that the person grading your exam is reading a bunch of these answers and is weary and cranky, so you must demonstrate that you’re answering the question correctly by stating these things clearly.

For example: “This question is about Negligence. First, I’ll analyze whether P can demonstrate that D had a duty of care, whether D breached the duty of care, and what damages P can recover.” Spell it out that directly. If you think this sounds elementary and repetitive, you’re right. That’s the point. For the remainder of your career, legal writing will always seem this elementary, so get used to it. Professors, bar exam graders, colleagues, and judges must be able to at a glance that you know what you’re talking about, and this is the only way for you to demonstrate that.

Leave nothing behind the curtain

Get used to stating the obvious, because you’ll need to do it in another key way.

We all made this mistake early on: We thought, the reasoning behind this statement is so obvious that I need not spell it out.

When in doubt, spell it out.

One law school professor put it this way: Remember the refrain in the song “We’re off to See the Wizard” from “The Wizard of Oz.”

“Because, because, because, because, becauuuuuuuuse….”

Don’t just make a statement, add a “because” and state the law behind it or otherwise explain it. You know it, and your grader knows it, but the point is to let the grader KNOW that you know it.

Example: “P cannot bring the suit in federal court” is incomplete. Instead, “P cannot bring the suit in federal court, because the amount in controversy is less than $75,000.”

IRAC

You are already familiar with the format of “Issue, Rule, Application, Conclusion.” It is key to follow format simply and clearly here. Then, you can raise and dismiss counterarguments and perhaps state policy or give a nod to case law that you remember from the course if possible. (If you can’t remember a case on point, don’t worry about it. If you can, note it here even if you can’t remember the name of the case, i.e. “This is similar to the facts in the case we read regarding the wagon accident.”)

Example: “Battery is an intentional harmful or offensive touching with a person or an item closely related to the person. Here, the touching was harmful/offensive because D swung at P and knocked his hat from his head. D will try to counterargue that he did not touch P’s person, but this argument will fail because D touched an item that was “closely related” to P’s person—he was wearing the hat on his head at the time. Therefore, P’s can show that D committed battery, because D intentionally touched an item closely related to P’s person. This is distinguished from the Smith case that we read, in which the umbrella was not closely related because it was in another room….”

Professor Hagedorn’s Picket Fence for Contracts

This is the method of analysis I used (and still use) in Contracts questions. Contracts, Secured Transactions, Commercial Paper, Sales (of Goods), and other related areas of law should be analyzed this way (unless your professor has given you a different direction).

This is a great one, because you won’t leave anything out and it’s simple and easy to follow (for you and for your grader).

1. What law governs—UCC Article 2 or the common/case law of contracts?

2. Is/are the promise(s) made in the fact pattern “validated” and therefore enforceable?

3. Is/are the promise(s) validated by a bargained-for-exchange and therefore enforceable?

4. Is there an offer?

5. Has the offer terminated prior to acceptance?

6. Is there an acceptance?

7. Is consideration present?

8. Are there any defenses to enforcement of the promise(s) otherwise enforceable as validated by a bargained-for-exchange?

9. Assuming an enforceable promise is validated by a bargained-for-exchange and that there are no defenses that preclude enforcement of the promise, what are the terms and what is the meaning of those terms?

10. Are there any “third-parties” (non-offerors/offerees) with rights/duties associated with the bargained-for-exchange?

11. Has the promise as validated as a bargained-for-exchange been performed/breached?

12. Assuming a promise validated by a bargained-for-exchange has been breached, what remedy will a court provide the aggrieved promisee?

13. Even if BFE is not present, is/are the promise(s) made in the fact pattern validated by promissory estoppel/detrimental reliance and therefore enforceable?

14. Was a promise made?

15. Did the promisor know or should reasonably have known that the promise would rely on the promise?

16. Did the promisee reasonably rely on the promise?

17. Did the promisee suffer a loss/detriment as a result of the reliance?

18. To avoid an injustice, must the promise be enforced?

19. Assuming the promise validated by promissory estoppel/detrimental reliance has been breached, what remedy will the court provide the aggrieved promisee?

Sample exam question

Obviously, this is shorter and less detailed than a real exam question, and I won’t write an entire answer because it’s not necessary. I’ll cover the first few points, so you’ll get an idea.

Question: Polly’s needs to get her house painted. She runs into her acquaintance Dolly, who is a house painter, on the street, and asks her how much she’d charge to do the job. Dolly says, “I’ll come over this Friday the 13^th and paint the whole house for $500.” Polly, who is thrilled with the low price, says “Great! See you then!” It’s now Saturday the 14^th. Dolly hasn’t shown up and Polly can’t get in touch with her.

Polly wants to sue Dolly for breach of contract and wants the court to force Dolly to paint her house for $500. What result?

Sample answer

Remember that we’re reading the call of the question and responding to that.

The call of the question is: “Polly wants to sue Dolly for breach of contract and wants the court to force Dolly to paint her house for $500. What result?”

This is how I would begin to answer it:

Source of law: I will analyze this question using the common law of contracts, because this question concerns a service. I will not use the UCC because this is not a contract that concerns goods. The UCC defines goods are tangible, movable objects identified as such at the formation of the contract. The action of painting the house that is central to any contract that may have been formed, and this is a service and not a tangible, movable object. Therefore, it is not a good, and the common law of contracts is used and not the UCC because there are no goods here.

Offer, acceptance and consideration that form a contract:

For a contract to be formed, it is necessary to have the presence of a valid offer that has not been withdrawn, acceptance that has not been revoked, and consideration. I will discuss each of these elements in turn:

An offer is a promise that manifests an intent to be presently bound to a specific/definite future undertaking that is communicated to the offeree in such a way that creates in the offerree the power of acceptance. Here, Dolly manifested an intent to be presently bound to a specific definite future undertaking (paint the house this Friday the 13^th for $500) that she communicated (told her on the street) and created in Polly the power of acceptance (Polly heard her, understood, and agreed). Therefore, Dolly made an offer to Polly.

The offer was not revoked because…

Acceptance is… and Polly accepted when she said….

Consideration is… and was present here when….

And that’s how I would start it, going through each picket of the picket fence until I was done. (Again, the picket fence is obsessively complete for an entire huge Contracts exam question that would appear on an exam at the end of the first year of law school. You need only analyze the points that the call of the question asks you to analyze.

After the exam

No matter how poorly or how great you think you did, you’ve got to let it go the moment you turn in your exam. You’ve got other exams to come, and you’ve got to focus on those.

Take heart: If you think you left things out, you did because it’s impossible to put everything in there. Nobody can do that. When you leave an exam feeling like you did terribly, you probably did just fine. It’s the right place to be: To know that you don’t know everything.

You know you don’t want to feel like you included everything and had time left over. That would be bad.

To this end, try very hard to limit how much you talk to classmates after you emerge from the exam. They’ll be bragging about how they spotted this or that, and you’ll freak out because you didn’t. If they feel good about how they did, they’re wrong. On the other hand, if they’re panicking because they feel that they did poorly, you’ll start freaking out, too. It’s best to avoid this. It’s nearly impossible to avoid debriefing after the very first exam, but try to limit it to a quick lunch, and then move on.

Note that the people who volunteer in class, who rush the podium after class, and who brag about how great they did in the exam, are never ever the people who get the best grades. It’s the quiet ones (and they’re quiet because they’re working hard and thinking and then working hard some more).

Don’t listen to other people. It’s irrelevant and wholly inaccurate.

Don’t compare your insides to other people’s outsides.

An encouraging word

You can do this. You have prepared for your exams all semester, and you wouldn’t be in law school if you lacked the capacity to do well.

My colleagues and I agreed on this key point: Success in law school, on the bar exam, and in the practice of law belongs to those who work hard. Again, there is no substitute for hard work. That is the secret… that there is no secret, just the willingness to work hard after everyone else has gone home.

Good luck to you. I know you can do it.