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Wednesday, May 14, 2008

What's Your Advice to 1Ls on Exam Writing Technique?

ExamsWhile grading exams – what I’m doing now – I worry that I am giving grades that largely indicate how well people can write law exams, rather than a purer measure of how well they’ve mastered the material in the course. Especially for 1Ls.

It seems inconsistent with basic notions of fairness that some students, tipped off by a mentor on how to write a great exam, get glowing report cards, while other students, who may have had similar great potential, get mediocre marks for lack of knowing what to do with their bluebooks.

There are two ways I try to remedy this inequity. One is to include multiple choice and class participation in the grade. But the main palliative, as far as I am concerned, is helping students to learn how to write better exams. Yet that is a daunting task.

This summer, I am going to put together a very slim guide – or a long memo with exhibits – for my 1Ls on how to get good grades on law-school exams.

Will you help me? Tell me: What wisdom do you pass on to your students? What quick-and-dirty fix-it tips do you have to offer? Is there a book someone sells (maybe yours?) that you would recommend?

I would be very grateful. Maybe this post and its comments will be a document itself I can refer students to. Here’s my boiled-down counsel to law-exam newbies:

Unsurprisingly, its mostly variations on a familiar theme: apply the law to the facts.

In fact, to save everyone time and annoyance, I will omit repeating myself by adopting this convention: Everywhere you see " * ", insert this phrase: "You’ve got to apply the law to the facts."

(1) Do not make moral arguments. Don’t argue what’s fair. *

(2) Do not write at length about the law without referencing the facts. * Merely regurgitating the law does not show your mastery of the subject or demonstrate your analytical abilities; it therefore earns you no points.

(3) The reciprocal is just as important: Do not write at length about the facts without referencing the law. * Merely rehashing the facts does not show your mastery of the subject or demonstrate your analytical abilities; it therefore earns you no points.

(4) No matter how nervous, anxious, or pressured you feel during the exam, do not rely on a crutch to keep writing to the exclusion of doing the hard work of legal analysis. Making moral arguments, regurgitating law, and rehashing facts (see 1, 2, and 3, above) are all dangerous temptations – they offer a way to keep writing, and thus provide the illusion that you are making progress. They are a Sirens' song. Resist.

(5) IRAC is not the Holy Grail. If you can write a good exam without IRAC, then you should absolutely forget about it. On the other hand, if some kind of structural aid is essential to get you to perform legal analysis in writing, then IRAC might help you.

(6) Consider employing these mechanical aids to force yourself to write better exams:

(a) Strive to mention the facts and the law within the same sentence, where reasonable. This may force you to do legal analysis and allow you to write in a more compact and effective manner.

(b) When you state a conclusion, write the word “because” afterward to force yourself to state reasons, supporting evidence, etc.

(c) When you make a relevant point relating law to facts, write the word “therefore” afterward to force yourself to carry your reasoning all the way through to its conclusion (for example, that a certain person has a certain cause of action or can successfully interpose a certain defense).

Now, convincing new 1Ls of the importance of learning how to effectively write an exam is another matter entirely. But maybe that should be a matter for another post …

[Note: Split infinitives and trailing prepositions herein are used with pride. See my prior declaration of grammatical freedom.]

Posted by Eric E. Johnson on May 14, 2008 at 07:29 PM in Teaching Law | Permalink


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In response to Matthew Weymar and 4L, I agree with you about examples. I've done that in the memo and associated materials I distributed last year. I've even put examples in color.


The midterm responses referenced in the memo can be found here:

http://www.eejlaw.com/courses/torts_0708/ (you'll need to scroll down)

Posted by: Eric E. Johnson | May 16, 2008 8:28:41 AM

As a recent law school graduate, I just wanted to register my total agreement with Matthew Weymar: I found law school exams quite frustrating, and I never felt like I figured out how they work, despite receiving advice like that you and Prof. Kerr offer. Examples of excellent, competent, and bad answers certainly would have helped. A bit more hand-holding generally would have helped to level the field, as those who went out and bought exam-taking self-help books or attended exam-taking workshops seemed to be on an inside track for reasons that didn't have much to do with their mastery of the material.

The lack of effort taken to explain the criteria by which we were evaluated was one more thing that made law school seem like an insider's game. I would be surprised if some of this were not deliberate. I asked a professor once what was most important to him in constructing an exam, and he ran his finger through the air in the shape of a normal distribution: the curve. I will grant that those who consistently got very high or very low grades deserved their places on the tails of the distribution. But to the rest of us who were a bit more all over the place, grades were noise, and they never resolved into a coherent message. Well, maybe one message: As long as you study as much as anyone else, attend as many study group meetings as you can handle, and outline until you're blue in the face, you are guaranteed a grade between a B- and an A.

Posted by: 4L | May 15, 2008 12:23:55 PM

One thing I always remind my students to do is answer the question, by which I mean answering the question I asked rather than the question they'd like to answer or some other question that the facts may suggest to them. To help with this, I often suggest as a good exam-taking strategy that, particularly in the case of long questions, they read the last part of the question first, so that they can then read the facts in light of the question they'll have to answer.

Posted by: Chad Oldfather | May 15, 2008 10:57:24 AM

When I teach Torts, I start the term out with a week of open-ended discussions of fact patterns that are old exam questions in disguise. Then I divide the class up into teams of 8-9 students. Every three to four weeks I devote a class hour to an oral argument exercise in which the facts are the facts in one of the fact patterns, the law the teams are permitted/required to cite is the assigned casebook material for the last three to four weeks. Each team has an assignment -- typically, four of the teams will represent parties, and the other four to six will be courts. The party teams argue a motion or an appeal; each of the court teams must write and turn in a two-page opinion resolving the motion or appeal, and I discuss the argument and the opinions in the next class. By the end of the term we've done at least four of these, and the students have had lots of practice in sorting out how to apply law to facts. They've also had an opportunity to assess whether they're "getting it" at the end of each rough unit. (And yes, a portion of each student's grade is his or her team's overall performance in the exercises.)

Posted by: Jessica Litman | May 15, 2008 9:05:21 AM

i wrote out my advice here. I give my 1Ls a slightly modified version of this.

Posted by: Orin Kerr | May 15, 2008 3:59:41 AM

One word for you: Examples. And don't just refer your students to the reserve desk. Offer them a guided tour of what you're looking for.

It's a little weird to me, coming from a world where performance more or less speaks for itself (portfolio management at a quasi-hedge fund), that this issue even exists, but given that it does, the best way to test students' mastery of the *material* is to level the test-taking field by teaching the subject directly so that you can establish clear expectations. Kudos to you for taking some responsibility for this, as evidenced by this post.

Re "convincing new 1Ls of the importance of learning how to effectively write an exam:" I am not sure that this is "another matter entirely." Isn't the best argument for this that you cannot successfully demonstrate your mastery of the material without good test-writing skills? If so, this point may be best made via the examples by which you illustrate good test-writing technique.

To wit: "The following answer demonstrates mastery of the material: EXAMPLE ... The following answer is /consistent/ with the material - so may have come from someone who has mastered the material - but it does not *demonstrate* mastery of the material: EXAMPLE ... Here are the questions this answer leaves me with: LIST ... (Note that the first answer answers these questions.)"

I have just finished the first 60% of 1L. Based on my satisfactory, but nonetheless disappointing exam performance, I really don't "get" law school exam-writing (yet). Our professors tried to prep us for the writing of our exams - in addition to reviewing the material - and I made a concerted effort to focus on this. Still, I feel as though my efforts failed -- and I still don't feel like I know what is expected of me.

This is very frustrating - and distracting from the interests that motivated me to come to law school in the first place. I offer my story as an index of what's at stake here.

Good luck with your efforts! They are well worthwhile.

PS - Although I appreciate the motivation underlying the weighting of class participation too, this is typically completely discretionary, and so will likely undercut any attempt to create clear expectations re exam-writing. Just a thought....

Posted by: Matthew Weymar | May 15, 2008 2:51:33 AM

When I was a 1L, but even as a 2L, the hardest part about exams was to learn NOT to do my best writing. I think those of us who come from liberal arts disciplines get very wrapped up in communicating effectively and creatively, and when the professor is grading by checking off which points you mastered, a bulleted list with no real writing style would have been better. When one of my professors suggested bulleted lists, I cringed, and I still refuse to use that technique, but it did help me understand what he was looking for. It's good to understand going into your first exams that time is extremely limited, and it's best to leave out introductions, conclusions, and all your exposition teachers ever taught you and just focus on nailing the law and the application to the facts.

Posted by: Judith | May 14, 2008 11:17:10 PM

Coming from a student who consistently is commended for well written exams, as important as applying the law to the facts is, organization is equally if not more important. Also, short sentences.

Encourage the students to clearly divide up the issues, if the exams is torts, make each of the elements a clearly labeled section and each of the theories it's own paragraph.

This not only helps the professor read the exam, it helps the student see where they are, what they still have to do, and it's an easy way to make sure you've done everything.

Posted by: Snitty | May 14, 2008 8:12:49 PM

...and I seem to have managed to leave a typo in the comment. Apologies.

Posted by: nandita | May 14, 2008 8:09:49 PM

Two comments:
1. Another way around the problem is to have a detailed grading rubric in which you award points for answers that appear to show mastery of the material even if clumsily presented.

2. Here are some tips I put in my end of class memo last semester. I'm sure I will have some more this semester.

I also want to provide a couple final notes on exam taking – these notes are intended to aid you in
future law school exams, but more importantly to aid you on the bar.
First, assuming you spotted the Issue, the Application (A) in IRAC is far, far more important than the Rule
(R). It is important to know the rule, but many exams I read used valuable space quoting the statute
rather than briefly stating the rule and spending time explaining how the rule might apply to the facts of
the case. In many cases, there was no application at all, and on a take‐home exam this will score you
few points. For example (not from an actual test), some answers said something like: “There might be
an issue of inequitable conduct. If Holder withheld or misstated material information, with an intent to
deceive, then all of the claims would be unenforceable.” Though this is a concise (yet incomplete)
statement of the rule, it would score almost no points. Why? First, you haven’t shown that you have
spotted the issue – is there an argument for inequitable conduct or not? Second, you haven’t applied
the facts to the standard, which makes it difficult to discern whether you really understand the rule, or
whether you just copied it out of your notes.

Second, never assume a fact is irrelevant. Some professors include facts that are irrelevant to see if you
can determine what is relevant and what is not. However, most professors include facts that could,
somehow, be fit into the rules and themes of a class. As discussed above, few people distinguished the
infringement analysis between the Urban and Jungle products. There was a reason there were two
products, and that they were different. Those differences were there to test particular things, and
should give you a clue as to what the important points might be (indoor v. outdoor). The bar exam will
be no different – if a question has two defendants, ask yourself what the differences between the
defendants are, and why those differences might be important.

Third, organization is critical. Taking a few minutes to put an outline together before you start writing
can help you make sure you get the points out in a clear manner. This is important for two reasons: a)
organization shows clarity of thinking and is thus rewarded, and b) perhaps more important, if an
answer is disorganized, the grader is more likely to miss points that you made because they are buried in
irrelevant sections.

I realize that all of the above tips are easier said than done. However, they are areas on which I suggest
you focus as you prepare for exams and for the bar, as they will no doubt give you a leg up.

Posted by: Michael Risch | May 14, 2008 8:09:15 PM

I'm not a law prof. but I thought I'd leave a link to a book I used in my first year of law achool called 'How to Write Law Essays & Exams' by S I Strong. I'm sure it's not the best book which has ever been written and it does rely on IRAC but, at the time, it was useful.


Posted by: nandita | May 14, 2008 8:05:29 PM

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