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Whether writing an examination answer, counseling a client, or presenting an argument to a judge or jury, an attorney's first goal is to communicate effectively. The key to effective communication is preparation. What should you prepare? Regardless, of the setting, effective communication requires that you know your goals, know your subject, and know your audience.
Your goal on most law school exams is to demonstrate a variety of skills, only one of which is knowledge of the legal rules.
The primary aspects of exam questions are:
Analysis (often termed "issue-spotting"). For many examinations, issue spotting constitutes the most important aspect of the test. You must be able to efficiently and accurately identify as many issues as time permits. How do you learn to spot issues? This is a skill you are practicing each time you brief a case for class. The process does not differ significantly in analyzing problems presented in an exam. Many students do poorly on examinations because they are too "bottom line" oriented. They will ignore possible issues because they simply identify what they see as the "most important" issue. Or they will see areas of conflict (issues) but perceive that one or the other side has a much stronger position and so will simply conclude that the issue is not worth extended discussion. Be sure to ask yourself, "but if that's doesn't resolve the issue, the next argument/issue is..."
Knowledge and Understanding. You must be able to demonstrate that you know not just the rule, but why it applies to the specific facts before you. This means that you must be able to work with the relationship between legal rules. For example, many hypotheticals ask about wrongs that can be characterized a number of different ways-murder & manslaughter, for example. With these questions you should be able to demonstrate your understanding that the facts present a number of possible "causes of action", using an organizational technique that demonstrates your understanding of the relationship between these wrongs (e.g., "at least-at most" or "first claim-fallback). Where several causes of action have an element in common, (intent) deal with that element only once and simply refer back to that initial analysis for each subsequent claim (Note: use this internal reference only within a single question/hypothetical-do not refer back to prior questions because many professors grade each question separately).
Applying the law to the facts-as many of the facts as are legally relevant (which, on most exams, is just about all of them). Some common errors in fact application include: failure to use the facts (mere statements of the law are not enough); restatement of the facts (repeating the facts without drawing inferences from them in legal terms is not using the facts); mere juxtaposition of the facts without explaining analysis. Probably the most common error is making statements of conclusions only. Point out even painfully obvious steps in your analysis. Equally important, make legal principles clear. Be sure to define all legal terms and list all elements of a claim. Do not assume that your reader will know either what A or B are or how you got from A to B. Be explicit, complete and clear.
Post Exam Review As a Tool for Knowing Your Goal
Students often neglect to use the single greatest tool for improving their exam performance-a review of their prior exam performances. All your professors will review completed exams with you to provide additional feedback. Your own inventory of study approaches and exam writing techniques is just as critical however. Some question to consider:
Given that demonstrating your skill is as important as demonstrating knowledge, part of your subject includes those legal skills. How do you learn those skills? By daily class preparation and class attendance, in which you regard each case not as a subject to be "learned", but as an exercise in problem solving with at least one suggested solution included.
But class is not the only place in which to hone your analytical skills. Practice analyzing hypotheticals with your study partners: invent hypotheticals and then test them out on one another. More importantly, practice writing out your analysis. Where can you find hypotheticals on which to practice? Use the old exams on file in the library, look through your casebook for hypotheticals in the notes following cases, some commercial study guides provide hypotheticals with suggested answers, the restatements have illustrations following most principles that you can analyze for yourself, there are exams available on line, or you can ask your professor for guidance.
A second important aspect to knowing your subject is, of course, knowing the law. You must know the black-letter law that is covered in your courses. This means knowing the rules, the elements of these rules, the variations in the rules, and the policies underlying those rules. Part of your task throughout the semester is to study and learn this "law". You should know the rules thoroughly by semester's end. Besides studying the course materials and your notes from class, you can get further help in learning the rules through (in order of reliability....) hornbooks, the restatements of the law, commercial study guides, outlines from other students and many other sources. Increasingly, you can access an entire library of student outlines on line (though you have little perspective on their reliability). Your professor would be happy to suggest additional reading for course subjects. Also, if your school is a member of CALI you can use computer assisted legal instruction programs to help you learn the law. Recent advertising strewn about the law school indicates that "flash cards" are now available to assist in learning the law as well. This tried-and-true method of memorized learning may be useful in your studying; however, I believe it would be less expensive and more productive if you made your own flash cards, tailored to the course.
Additionally, you must synthesize these legal rules & policies into a comprehensive whole. During class we break down the cases, discuss possible interpretations and policies explaining the results, and project the scope of those interpretations and policies. We spend very little time on review. Yet review and synthesis is essential if your understanding is to move beyond the level of your day-to-day reading of discrete cases.
The best way to bring the class into a whole is to outline. And the most important thing to remember about outlines is that preparing an outline is just as important than having an outline. How do you go about outlining? It depends on how you learn best. Some people need to force their thoughts into a rigid organization (IA1a outlines); others need a visual outline (charts); still others need to write and re-write (essay outlines). It doesn't matter whether you type a grammatically correct, perfectly structured traditional outline or whether you make a massive multi-colored poster on your study wall. What matters is that you force the materials into some structure, so that you understand the elements of the law, the policies and theories necessary to identify facts relevant to those elements, and the relationship between areas of the law. Your focus should be on these elements, policies and relationships, rather than on the cases you have studied as examples.
The third aspect to knowing your subject is structuring your knowledge into a useable form. Now you may think that the outline serves that purpose. However, outlining is for the purpose of achieving a complete understanding. A review outline is rarely useful in preparing to use that knowledge. Rather, you need to take the additional step of condensing your outline into a list of the issues you will be looking for in a hypothetical.
Once you have reviewed your subject thoroughly and comprehensively by some process of outlining, go back and make a "checklist": an outline of the outline. Try to limit this checklist to one page, containing only the major categories of the course (e.g. in property; ways of acquiring property; estates; etc.; in torts, battery, assault, negligence, etc.) and the elements of each of those categories. This "checklist" is a failsafe mechanism of sorts. It insures that you haven't overlooked crucial areas of the law that might present issues in a fact situation. If the exam is open-book, you want this checklist on the top of your outline or inside cover of your book. If the exam is closed book, you want to memorize the checklist, perhaps through some mnenomic devices. Be sure to "test drive" your checklist: project the type of exam and the subject matter that you expect for each class (you may be able to rely on past exams for the course) and practice using your checklist in writing a time-pressured answer to that exam. Review the results with your colleagues and with the professor. Revise your outline and checklist appropriately.
Each professor may stress one aspect of the law or one approach to legal analysis more than others. You should know that professors differ in their use of the classroom: some professors emphasize your ability to analyze a case to determine how and why a new legal rule was developed, others (using the same materials) will focus on the application of that rule to fact situations. Very often, the professor's approach to class will give you some clue to his or her likely approach to the exam as well. However, you should not rely on the professor's class approach to project how they are likely to test. You need to also practice taking exams used by that professor in the past. Another aspect to knowing the professor's preferences is reading the instructions on the exam. Students every year receive substantially lower grades than they might have, simply because they did not read and pay attention to instructions. Finally, ask the professor and your fellow upper-class students what skills, subjects or approaches to emphasize in a particular course's exam
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