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Friday, June 01, 2012

Exams and the Omniscient Narrator

I've written before (here and here) about the creative writing that goes into exam essay questions. I feel it is an unrecognized medium of short-fiction expression. This job of the exam writer is to create a scenario that is clear and understandable while also being nuanced enough to resemble real life. In my view, the best essay questions create real people with real problems.

One issue I think I haven't adequately addressed in my exams, however, is the role of the narrator. In my essays, the test taker is always given a role: a solo practitioner, an associate at a big firm, a clerk for a judge. With the exception of the clerk, the roles usually require the student to represent a particular client, usually prior to any litigation, and to give the client an honest and thoughtful evaluation of the legal ramifications for her/his/its situation. And it's usually implied that the information about the scenario comes from the client.

On one of my essay questions this year, I included information that the client would probably not have known about. I slipped into the "omniscent narrator" mode to provide a conversation between two of the officers at a company; the client was an employee who had no means of knowing about that conversation. I needed this conversation to raise a particular issue, or at least to make it clearly an issue. However, it was a departure from my past practice. I usually try to go with a limited narrator--one who only has access to information to which the client would have access. And in fact, a couple students raised the issue that the conversation would be great evidence, if in fact the client had some way of knowing about it and could present it in court.

So I'm wondering whether most law profs go with an omniscient narrator, to make the facts clear, or with a limited narrator, to more closely resemble the attorney's access to information? And has anyone ever gone with an unreliable narrator? They certainly exist in real life, but I think that'd be too confusing on a traditional doctrinal exam. But then again, if it were completely clear that the narrator was not to be trusted . . . .

Posted by Matt Bodie on June 1, 2012 at 10:49 AM in Life of Law Schools | Permalink

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I'm a fan of the omniscient narrator myself - I've liked that with crimpro and crim adjudication thus far in my very limited time creating exams. I haven't tried the unreliable narrator, but that just seems to hard too inflict on the students.

Posted by: Stew Young | Jun 1, 2012 2:20:43 PM

As one of my ad nauseam themes is that the rules are largely meaningless without a context, a frame of reference and a point of view, my exams always present a set of facts that the lawyer-student-examinee has presumably learned in the course of a discussion with the client or someone else, or through investigation.

As to an unreliable narrator on an exam, I think that would be unnecessarily tricking things up. I can usually count on an inconsistency I missed in the proofreading to do that - and it would (and does often) create huge amounts of student angst. I had a typo in my preliminary instructions on the value of the essay that you could figure out was a typo if you thought about it; some students got freaked, some figured it out, but it was a big mess.

The place for unreliable narrators is in litigation or transactional simulations. All of my in-class exercises use, as they say, asymmetric information.

Posted by: Jeff Lipshaw | Jun 1, 2012 5:26:03 PM

I have started using materials from real cases, with whatever information deficits that may entail, and I ask the students to prepare some reponse. So, for example, I give the students a complaint and tell them they represent the defendant and to discuss whether they could get it dismissed for, say, lack of jurisdiction. I tell them to consider and discuss what facts they lack or need and how those facts might affect their analysis. But this means I sort of do-away with any narrator at all.

Posted by: Howard Wasserman | Jun 1, 2012 7:53:37 PM

In Crim. Pro., I give them the "findings of fact" section of an opinion following a suppression hearing, naming the witnesses who testified, typically one or two police officers. I also make it clear that the court credits their testimony in full, although I have on occasion noted where the court did not credit a witness' testimony. In that way, I confine myself to the facts that those witnesses could have testified to.

Posted by: Michael J.Z. Mannheimer | Jun 4, 2012 12:20:43 AM

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