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What Exams Want
Most law school exams are stories: long, complicated sets of facts in which cars crash, businesspeople break promises, police act thuggishly, and unpleasant things are done to people with questionable pasts. At the end of the story, the exam will ask something like, "Who can sue whom?" Your job is to go through the facts and make sense of it all.
Read this unrealistically short example of an exam question, and consider what skills you'd need to answer it. It deals with torts, one of the core subject areas taught in the first year of law school. (For now, you can think of "torts" as "things you can sue someone for, other than breaches of contract.")
A sadistic law school professor gives an exam that's absurdly difficult. Nobody knows any of the answers. One of the students has an unusual anxiety disorder, and has a heart attack, which she barely survives. Another, losing his mind temporarily, attacks one of the proctors, a woman named Proctor, breaking her arm.
The professor, it turns out, got the exam from a website that encourages professors to work out their aggression by giving impossible exams. The website is run by the members of a religion called Belligerism, which encourages its followers to start conflict wherever possible.
Needless to say, several lawsuits follow. Explain who sues whom, and why, and who wins.
Your answer will discuss each of the various legal issues raised by this fact pattern. The exam won't tell you what those issues are; it's your job to identify the legal questions you'll be answering. For each legal issue—each question—you'll then discuss the best arguments on both sides.
Traditional Exams Require Three Skills
Exams are typically graded using a point system. Professors give you points for specific things they like in your answers. You get points for three different kinds of things, each of which requires a different skill:
(1) Identifying the relevant legal concepts. This requires the skill of distilling the law: turning the long, difficult legal texts you read into concise, well-articulated statements of the legal principles they contain.
(2) Identifying the legal questions that the exam's fact pattern raises. This requires the skill of issue spotting.
(3) Identifying the best legal analysis that supports either answer to a given legal question. This requires the skill of argument.
Those three skills—distilling, issue spotting, and argument—are the three skills you'll need in traditional law school classes. Part 2 of this book talks about each of them in detail. This chapter gives you a quick overview of how you'll deploy these skills on exams.
Distilling the Legal Propositions
To do well on exams, you have to have the relevant legal doctrines at your fingertips. You can't spot legal issues or make legal arguments unless you understand the issues you're looking for and arguing about. So you'll need to have distilled the law over the course of the semester. Distilling means creating succinct, well-articulated statements of legal principle that summarize the complicated, jargon-filled legal texts you read during the semester. In other words, it means reducing your reading to legal propositions. A legal proposition is a single concept, like "no one under thirty-five can be president" or "the purpose of a legal system is to resolve conflicts peacefully." You will spend a great deal of time during the semester trying to reduce your reading to brief, useful statements like these, because at exam time they're indispensable.
On a typical exam, you'll get some points just for correctly identifying the legal doctrines that are relevant to the problem. You won't get a lot of points for this; most law school exams are open book, so they demand that you do more than just state the law well. You won't get nearly enough points to do well unless you're able to spot issues and make arguments too. But you can't even get started on exams unless you're ready to state the legal doctrines that apply.
Before you start discussing anything at all on an exam, you'll have to spot the issues that need to be discussed. Looking back at the Belligerist fact pattern, here are questions you might ask—the issues you might spot:
Can Proctor sue the professor, even though the student (not the professor) attacked her?
Can Proctor sue the student who attacked her, although the student was temporarily out of control because of the sadistic exam?
Can the student who attacked Proctor sue the professor for causing the student's own actions?
Can the student with the anxiety disorder sue the professor, even though he couldn't have known about her condition?
Can anybody sue the Belligerist website for encouraging the whole thing?
Once you've identified these questions, you'll need to frame each of them in terms of legal doctrines. To do that, of course, you'll need to know some legal doctrines.
For example, consider the first question: whether Proctor, who was attacked by an enraged student, can sue the professor. You'll need to know that the relevant legal concept here is negligence. (For the time being, you can think of negligence as a failure to take sufficient care to protect someone else.) Once you've taken a class on torts, you'll know that a plaintiff suing for negligence must show that the defendant caused the harm. You'll say this in legal language: Proximate cause is an element of negligence.
By the time you get to the exam, you'll have studied different rules on proximate cause. These rules appear in what lawyers call "cases"—opinions written by judges to explain why they ruled in favor of one party or another. (The word "case" can mean either the dispute itself or the judicial opinion that explains how it was resolved.) In law school, most of your reading consists of cases, compiled in textbooks called "casebooks."
For example, you might have read the case In re Polemis, which says there is a rule that a plaintiff can show negligence only if the defendant directly caused the harm. But you might also have read a case called Wagon Mound, which says that there is proximate cause only if the harm was foreseeable. In other words, Proctor doesn't have to show that the professor directly caused her injury—only that the professor should have foreseen it. On law school exams, you'll have to identify the different rules that might apply. You'll say something like this:
The question is whether the professor proximately caused Proctor's injury. Two rules might apply here. If the Polemis rule applies, Proctor must show that the injury was directly caused by the professor's negligence. If the Wagon Mound rule applies, Proctor must show that the professor could reasonably have foreseen the injury.
That's issue spotting: framing questions about a fact pattern in terms of the specific legal doctrines you've studied in class.
Notice that when you spot issues on the exam, you're not just identifying one rule. Law school exams frequently present you with situations where more than one rule might apply. You don't go to law school to learn "the law"; you go to law school to learn to identify the multiplicity of rules that might apply to a particular fact pattern.
Exams test you on your ability to work with ambiguity. Most nonlawyers think that legal work is a matter of finding rules and applying them. That's part of it. But legal work involves much more than the simple application of rules. Lawyers often encounter situations where rules conflict, or where rules are ambiguous, or where there are no rules at all.
Sometimes a single legal text could be read to create two different rules. Many law school exams will require you to discuss the different rules that might be seen in a single judicial opinion, or a single piece of statutory text. Clear rules are sometimes found in the law—but they're the easy part of the job, the part you hardly need a law degree to deal with. Ambiguous rules and conflicting rules are what require serious legal thinking. That's what law school exams test.
So a single question—Can Proctor sue the professor?—becomes several questions. The first is a question about legal doctrine: which rule should apply, Polemis or Wagon Mound? Then, for each rule, you'll have to ask how the facts fit the rule: If Polemis applies, was Proctor's injury directly caused? If Wagon Mound applies, was Proctor's injury foreseeable? You will get points just for identifying these questions. That's issue spotting.
Arguments and Counterarguments
Once you've spotted the issues, you make arguments. On the question of which rule should apply, you might point out that foreseeability is a more widely accepted test than directness. (Your professor told you this in class.) But unless the exam tells you which state you're in, you'll have to discuss and apply each of the rules you've studied in class. Remember: law school exams don't want the right answer; they want all the possible answers.
For full credit, you'll have to discuss the arguments for and against each approach. You might say, for example, that the foreseeability approach leads to better consequences. If people have to pay for unforeseeable injuries, they'll take expensive precautions against extremely unlikely events, which is a bad idea. (We don't, for example, think that the professor should have asked for a battery of psychological tests on each student, to make sure that none of them was likely to attack Proctor. Or do we?) You might also say that the foreseeability rule is more fair. It's just not right to hold someone liable for an injury they couldn't have foreseen.
You'll also want to rebut each argument with the best argument for the other side. If you've spotted a genuine issue, every argument has a response, and you'll only get full credit if you identify the response too. Remember: law school exams don't want to know which argument is right; they want the best arguments on both sides.
Once you've discussed which rule should apply, you move on to the facts on the exam. You'll have to discuss the analysis that applies under both rules; we may as well start with the Polemis directness test. Did the professor directly cause Proctor's injury? The professor will say no: he didn't attack Proctor; the student did. So his negligence was only an indirect cause. Proctor, on the other hand, would argue that the professor was the proximate cause of her injuries, because the student was just a puppet on the professor's strings.
Once you've set these arguments and counterarguments out, you've explained the analysis that would apply under one of the two available rules. That's not the end of your discussion. You still have to explain how the analysis would work if the Wagon Mound foreseeability doctrine, instead of the Polemis directness test, applied. You'll keep going until all possible doctrines have been applied to each of the facts on your exam.
Here's a very important point: you must make the counterarguments. You can't just say "If the test is foreseeability, the professor was probably the proximate cause." You have to give the best arguments on both sides: the best argument that the professor could have foreseen the attack on Proctor, and the best argument that he couldn't have foreseen it. Then you have to do the same thing with the second doctrine that might apply: make the best case that the professor directly caused the harm to Proctor, and then make the best case that he didn't. A relatively simple question may have four different answers, and you'll need to give all of them.
Once you've applied all of the available rules, you need a conclusion. It'll be something like this: "... which is why I think the foreseeability test should apply, and why I think the professor prevails." But your conclusion is usually tentative ("the court would probably find for the defendant"). What really matters isn't which conclusion you reach; it's whether you've spotted all the issues and made all the arguments.
This has been an intentionally simplified discussion of complicated legal doctrines, but even in this simple version you see how the arguments multiply. That's why law school exams are so hard. That's why law is so hard.
Many books on law school will advise you to use an approach to exams called IRAC, which stands for Issue, Rule, Application, and Conclusion. It's a useful way to begin thinking about legal analysis, but it oversimplifies. As you can see from the discussion above, the way to get the most points on an exam is to find places where more than one rule applies to the facts. Often, the best way to get points is to discuss which rule should apply, and why. You have to list the various possible rules first, then analyze the case under each of the various rules.
And for many of the rules, you may have to make not just one argument, but counterarguments too. That kind of analysis doesn't fit well into the IRAC structure. IRAC misleadingly suggests that there is only one argument and one conclusion for each issue. If you fail to give counterarguments on law school exams, it is virtually impossible to get a good grade.
IRAC may serve you well in other contexts; it's a perfectly good structure for answering questions on the bar exam, for example, and when you're writing a legal brief or memo, it's helpful to follow the IRAC structure. (You may be surprised how easy it is to forget to come to a conclusion—even that "C" can be a helpful reminder sometimes.) But traditional exam essays often have to use a more complicated structure than IRAC suggests.
So far we've been talking about traditional law school exam questions, but not all exam questions are issue spotters like the Belligerist example. Many exams feature, as their final question, something called a policy question: a question that asks you to analyze the practical implications of the legal doctrines you've studied, or the theoretical arguments for and against those doctrines.
A few professors give a whole exam consisting of a single policy question. A Yale professor in 1939 gave his class an exam that asked them to criticize or defend this proposition: "It is practically useless to pass a pro-labor statute in these United States. The courts will emasculate it.... They already have." That was it. But exams that are entirely made up of policy questions like this are unusual; much more common is an exam with mostly issue-spotting questions and a policy question thrown in at the end.
Policy questions require the same three skills as traditional questions—distilling the law, issue spotting, and argument. The issue spotting is a bit harder on policy questions, though. Instead of spotting the issues that arise from a set of facts, you'll spot the issues that arise from a general proposition or general question. But it's still issue spotting. Your job is to frame the question in terms of the doctrines you've discussed in class, and then discuss the arguments and doctrines that might be offered to support each side of the policy question. The trick here is to find out in advance, if possible, whether your professor gives policy questions, so you can practice creating the kind of answer they call for.
Short Answers and Multiple Choice
Two more common variations on the traditional issue spotter are short-answer questions and multiple-choice questions. Again, it's important to find out early in the semester, if possible, whether your exam will include either of these types of question. If it will, you'll need to prepare differently, because the skills you need for short-answer and multiple-choice questions are different from the skills you need for issue spotters: you don't do any issue spotting, and you don't make arguments.
A few exams are entirely short answers, but it's more common to see exams with one big fact-pattern and a few short-answer questions. Many short-answer questions test your distilling skills directly; they require you to understand the law, rather than apply it. For example, you might be asked to simply summarize in one sentence the holding of a case you read during the semester. If you've been doing a good job distilling the law, this will be easy.
Not all short-answer questions test your distilling. Some professors use short-answer questions to test you on the factual or procedural details of important cases; they want to make sure you were paying attention in class. If your professor is going to test you on details, you'll need to take notes in a way that keeps those details readily accessible.
Excerpted from A Student's Guide to Law School by Andrew B. Ayers. Copyright © 2013 The University of Chicago. Excerpted by permission of THE UNIVERSITY OF CHICAGO PRESS.
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