Improving Exam
Performance: Reviewing
Common Missteps on Fall
Semester's Exam Answers
Elements for succeeding on law
school exams
• Ability to Spot the Category
• Knowledge of the Law (Rules)
• Ability to Analyze (Apply law/rule to facts)
• Demonstrating Ability to Analyze – Writing
an effective exam answer
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What is your role?
• Read the fact pattern (the “story”); identify
issues (categories) raised by the story
• Explain to the reader—issue by issue
(category by category)—what the law (rule) is
and how it applies to the set of facts provided
• Five Most Common Missteps
1.
2.
3.
4.
5.
Make the argument
Conclusory (IRC)
Lack of Focus
Restate the facts (IRFC)
No Rule (IAC)
• NEW in 2010 (and mentioned every year
since): MAKE THE ARGUMENT!!!!
• I’ve been getting two lists of arguments on each
side of an issue with no analysis of what the
answer should be: Party A will argue this . . .
Party B will argue that . . . The end.
• I still get long lists of “arguments” to the effect
“plaintiff will argue a, b, c, d, e and defendant will
argue f, g, h and plaintiff wins because of d.”
• The main problem is listing arguments with no
analysis or conclusion. I repeat this over and
over again, but I still had a student who listed 13
(!!) "arguments" on the first page ("First plaintiff
will argue..., next plaintiff will argue...) and then
simply declared "plaintiff wins." I do not award
points for "arguments" with no analysis, which I
also tell them repeatedly.
• One thing I am seeing a lot in exam answers is
students thinking they are arguing both sides of
an issue by the form of "P could argue XXX." "D
could argue XXX." That is typically the end: no
evaluation of which is better, of whether the
argument is any good, what the conclusion is,
etc. I always cross out the "could argue" and
write go ahead and make the argument. This is
after I specifically in class told the students more
than once that this is not a good form of argument
and it annoys me (and it is annoying me more
every year).
• I still get students providing a long list of
"arguments" that the plaintiff will make, followed
by a long list of "arguments" the defendant will
make, followed by a simple pronouncement that
plaintiff or defendant wins. But in these
instances there never is an evaluation or
analysis of all the arguments that are listed.
2) Even though I specifically told my classes this fall not to
use a format such as "Plaintiff can argue" and then
"Defendant will argue," and I found much less of it this
year, still about one-fifth of the students (usually the
weaker exams) use this structure. Usually they throw out
a couple of arguments on each side and leave it to me to
piece them together. No. Make the arguments. Put them
together in a synthesis. Give me your conclusion.
Every year I ask the students not to merely list arguments
without evaluating those arguments. In bold type the exam
instructions scream they will not score well if they do this. One
quarter of the students still simply list arguments...and
predictably do not score well.
"Plaintiff argues A, then Plaintiff argues B, next Plaintiff argues
C, and on and on... (followed by)
Defendant argues H, then Defendant argues I, next Defendant
argues J, again on and on
Plaintiff wins. The end."
No analysis of the vast majority, or often any, of the so-called
arguments. Anyone can argue any nonsense.
The key is whether an argument is persuasive,
and why.
• Try to can get the students to understand that
they take their first false step with a sentence that
begins “Plaintiff will argue . . .”, because that is a
description, usually of a conclusion, rather than
an argument.
• http://www.youtube.com/watch?v=A7uvttu8ct0
Rule
• Generally, the children may purchase ice cream if
they have been well behaved and it is sufficiently
early in the day such that it will not ruin their
dinner. However, purchasing ice cream must
remain a special treat, not an everyday
expectation.
• The children can argue that they have
been sufficiently well behaved to
deserve ice cream and that it is early
enough that it won’t ruin their dinner.
They can also argue that ice cream will
remain a special treat not an everyday
occurrence.
• The children can argue that they have been
sufficiently well behaved to deserve ice cream
and that it is early enough that it won’t ruin their
dinner. They can also argue that ice cream will
remain a special treat not an everyday
occurrence. Defense will argue the children have
not been sufficiently well behaved and that it is
too close to dinner. They will also argue getting
ice cream today will make it an everyday
occurrence.
Because the children completed chores early in
the day (washing the car and mowing the lawn)
[they can argue] they have been sufficiently well
behaved to be entitled to ice cream despite going
to the Super America store without permission. In
addition, because they asked to buy ice cream at
3:30, relatively early in the afternoon and a full
hour before dinner was planned, [they can argue]
it is unlikely that the ice cream will ruin their
dinner. Finally, because the children did not get
ice cream the previous day, [they can argue]
buying ice cream today will not make it an every
day occurrence; it will remain a special treat.
Therefore, . . .
Because the children completed chores early in
the day (washing the car and mowing the lawn)
[they can argue] they have been sufficiently well
behaved to be entitled to ice cream despite going
to the Super America store without permission. In
addition, because they asked to buy ice cream at
3:30, relatively early in the afternoon and a full
hour before dinner was planned, [they can argue]
it is unlikely that the ice cream will ruin their
dinner. Finally, because the children did not get
ice cream the previous day, [they can argue]
buying ice cream today will not make it an every
day occurrence; it will remain a special treat.
Therefore, . . .
Treats-Entitlement to Ice Cream
Because the children completed chores early in the day
(washing the car and mowing the lawn) they can argue that
they have been sufficiently well behaved to be entitled to ice
cream despite going to the Super America store without
permission. In addition, because they asked to buy ice cream
at 3:30, relatively early in the afternoon, it is unlikely that
the ice cream will ruin their dinner. The fact that dinner is
planned earlier than usual is a problem, but the purchase will
still be a full hour before dinner. Finally, the children can
argue that because they did not get ice cream the previous
day, buying ice cream today will not make it an every day
occurrence; it will remain a special treat. They will have to
overcome the counter argument that buying ice cream three
times in one week, and three out of four days, makes it
virtually an everyday occurrence, not a special treat.
Because the children completed chores early in the day
(washing the car and mowing the lawn) they can argue that
they have been sufficiently well behaved to be entitled to ice
cream. The parents will point to the fact that the children
went to the Super America store without permission to
suggest they have not been sufficiently well behaved. In
addition, because they asked to buy ice cream at 3:30,
relatively early in the afternoon, the children will assert that
it is unlikely that the ice cream will ruin their dinner. The
parents will point out that dinner is planned earlier than
usual, but the children can counter that the purchase will still
be a full hour before dinner. Finally, the children can argue
that because they did not get ice cream the previous day,
buying ice cream today will not make it an every day
occurrence; it will remain a special treat. They will have to
overcome the parents’ counter argument that buying ice
cream three times in one week, and three out of four days,
makes it virtually an everyday occurrence, not a special
A promise which the promisor should reasonably expect
to induce reliance, and which does induce reliance, is
binding if injustice can only be avoided by enforcement
of the promise. The remedy may be limited as justice
requires.
P will argue that D promised to pay for law school and should
have reasonably expected P to rely on the promise. P will
argue she did rely on the promise and suffered a detriment
as a result, and that justice can only be avoided by
enforcement of the promise.
D will counter that his words do not amount to a promise, and
that they were too vague for P to reasonably rely on. D will
also argue that P has not suffered a detriment by graduating
from law school and therefore justice does not demand a
remedy.
• Respondent can argue that appellant reasonably
should have expected his promise to induce
action by respondent. She can argue the promise
did induce action by respondent and left her with
a substantial debt when appellant failed to keep
his promise. Because it would be unjust to require
respondent to pay a debt that she incurred in
reliance on appellant's promise to pay the debt,
respondent can argue appellant's promise is
enforceable.
• “Because appellant's expensive home and car and position
as a successful business owner made it appear as if he was
fully capable of keeping his promise to pay respondent's lawschool expenses and because appellant had bestowed his
generosity on respondent several times before he promised
to pay her law-school expenses, appellant reasonably should
have expected his promise to induce action by respondent.
The promise did induce action by respondent and left her
with a substantial debt when appellant failed to keep his
promise. Respondent quit her job and attended law school
with the expectation that appellant would pay her law-school
expenses and she would not be in debt for these expenses
when she graduated. Because it would be unjust to require
respondent to pay a debt that she incurred in reliance on
appellant's promise to pay the debt, appellant's promise is
enforceable notwithstanding the statute of frauds.”
• Conrad v. Fields, 2007 WL 2106302 (Minn. Ct. App. 2007)
IRC
• no analysis; failing to make the argument by
pointing to facts; conclusory—no factual analysis
1. Make the argument (point to facts that
demonstrate rule/element of the rule is either met
or not met).
1. Arguments are too conclusory. They do not
fully utilize facts in developing reasons for
reaching a particular conclusion. Too often the
students settle for issue spotting and stating a
summary of the legal doctrine applicable.
• Lack of factual analysis/discussion (application
of law to fact pattern presented)
• 2) not enough factual analysis—some students had
a tendency to give me I, R, and C, instead of using
the facts in the question. For example, the
discovery question had a request for physical and
mental exams. The question said the plaintiff had
been in a mental institution and had been dragged
away from a door frothing at the mouth. Those
facts should have appeared in the answer, but
maybe only about half mentioned them.
• Making conclusory statements where analysis was
needed. For example, "It was foreseeable that a
customer might die, if the cook just eyeballed the
meat instead of using a thermometer." Why, given
available facts in the fact pattern, was it
foreseeable that someone would be
poisoned? That someone would die?
(1)The conclusory (and often correct) answer that
reflects no analysis.
Example: In a problem involving a sign in a store
window advertising a particular item in some
detail, a potential buyer enters the store, picks up
the sign, and attempts to accept the opportunity.
The student will provide a one-line answer: “Since
advertisements are usually not offers, the
acceptance was not effective.” This kind of
response kills me because the student definitely
was on the right track, but failed to provide enough
substance to do well on the answer.
• The biggest global failing of law students in
exams is their inability to perform the task of
constructing an argument that use both law
AND facts.
• More recently, the big problem is lack of
analysis, i.e. IRAC without the "A." Students
who come to talk with me about their grade
often realize that they did the analysis in their
head but didn't put it on paper and just moved
on the next issue.
• Do not state legal conclusions without reasons
• The right conclusion is NOT the right answer
• Signals that you are doing legal analysis
Because
However
Alternatively
Likewise
Even if
Similarly
In contrast
THE FINAL THREE
• Lack of focus
• Writing a mini-treatise
• Listing all the rules related to a topic whether or
not they apply to the particular issue/s raised
• Dealing w/ extraneous issues; changing facts
• Failing to discuss the most important issues
• IRFC (restating the facts w/ no legal analysis)
• IAC (no statement of the rule)
LACK OF FOCUS: Mini-Treatises and
Related Issues
• Encompasses several “missteps”
• Some easy to correct; some more challenging
Writing a “mini-treatise”
• Writing a "treatise" on all the law applicable to
all of the issues in the question at the
beginning of the question, instead of dealing
with the legal principles as you come to each
issue.
Writing a “mini-treatise”
• Don't just regurgitate the law. You need to
know the law and be able to analyze all of it,
but don't write down everything you
think. Focus on what is relevant to answer
the call of the question.
• The most common problem I call the "preface
syndrome" restating the question, framing it
with respect to other issues not asked about
in the question, etc.--i.e. taking too long to get
to the point--sort of like dancing around the
issue.
Writing a “mini-treatise”
• This should be easy to remedy—DON’T
DO IT!
How do I stop myself?
What is your role?
• Read the fact pattern (the “story”);
identify issues (categories) raised by
the story
• Explain to the reader—issue by issue
(category by category)—what the law
(rule) is and how it applies to the set of
facts provided
• Learn by Category
• Think by Category
• Write by Category
• STOP WITH THE INTRODUCTIONS
• DO NOT WRITE A WORD UNTIL YOU HAVE
IDENTIFIED THE CATEGORY YOU ARE
DISCUSSING/ANALYZING!
• Mutual Assent
•
•
•
•
Objective Theory of Contract
Offer and Acceptance in Bilateral Contracts
Offer and Acceptance in Unilateral Contracts
Other Methods of Mutual Assent
• Consideration
• Defining Consideration
• Applying Consideration
• Applying the Concept of Mutual Assent
• Limiting the Power to Revoke: Pre-Acceptance
Reliance
• Irrevocability by Statute: Firm Offer
• The Battle of the Forms
• Agreements to Agree
• Electronic Contracting
• The Doctrine of Promissory Estoppel
Writing a “mini-treatise”: Version 2
• Listing all the rules related to a topic whether
or not they apply to the particular issue/s
raised
• Only set out the rule(s) related to the category
you have identified and are discussing.
Write by category
• ONE CATEGORY at a time—DO NOT MIX
CATGORIES
• Everything you say should be related to the
category you are discussing
• Helps you avoid one of the other common
missteps identified
Other “lack of focus” common missteps
• Dealing w/ extraneous issues; changing facts
• Failing to discuss the most important issues;
ignoring the call of the question
• These are the difficult/challenging “lack of focus”
missteps (other than the call of the question)
• The most important role of attorneys
• The most important role of exam writers trying
to demonstrate their ability to be a lawyer
• 1) no focus--talking all around an issue instead
of sharply hitting it, e.g., on an issue of whether
another contract was relevant for the scope of
discovery, many students told me everything
about discovery, including work product;
• 4. If you identify the issues and analyze them
correctly you will get a passing grade. If you
want to get a really good grade, you need
to organize your answer in a way that
demonstrates an understanding of the
hierarchy of issues.
One thing I did notice more than usual this semester was an
apparent inability to identify the issues raised by the
questions.
Even though the question told the students what four issues
to discuss, some students had difficulty being relevant. One
issue asked whether venue was proper. The question quoted
the venue statute, so all that was required was to apply
it. Many students went on at great length about whether
venue should be transferred. Not asked.
In torts, the issues were not "given," so some students had
more difficulty spotting all of them. Both questions asked for
evaluation of plaintiff's claim, and several students did not
discuss possible defenses. The second question (involving a
crowd of frenzied shoppers trampling a temporary store
employee) presented duty/proximate cause issues against the
store, but several students thought they saw possible
intentional torts against the store.
• Example: Probably the easiest example involves a
UCC problem in which the student correctly notes
that essay involves a transaction in goods, then
spends pages talking about what the results would
have been, if the UCC did not apply.
• Changing the facts of the question (despite my
instruction to "answer the question asked, not the
one you wish had been asked"). For instance, if
the exam fact pattern states that the taxpayer sold
his house, students will answer that "if the house
hadn't been sold, here are some other tax
consequences" or "I need more facts to answer this
question, such as whether the sale really didn't
happen because the deed was flawed."
• One problem I have seen is the failure to
take on the role requested in the exam
question. For example, at least one of my
essay questions usually asks the student to
draft a letter to the client with analysis and
advice on how to deal with a particular
factual scenario. I warn them in class about
this before the exam but always seem to get
a least half a dozen answers that are just a
dump of what they know about the legal
issue with no semblance of advice or client
orientation.
• Answering a question that was not asked. For
example, a Torts question asked about the
claims of A against B. Some students also
analyzed A's claims against C. That was wasted
time.
• 5. Don't forget to discuss/analyze the most
important issue.
IRFC
• I still see the IRFC problem. I tell my
students to argue the facts, rather than
merely present or order the facts in regard to
the rule.
• I saw a few more than usual of RRRFFF -there are no statements of issues and, of
course, no analysis.
Treats-Entitlement to Ice Cream
Generally, the children may purchase ice cream .
..
In this case, on a hot, muggy Friday at 3:30, the
children asked for ice cream. Earlier in the day,
they washed the car and mowed the lawn, but
then they went to Super America without asking
permission and bought candy. Dinner was
planned earlier than usual (4:30). The children
did not get ice cream the previous day, but did the
two days prior to that.
Because the children completed chores early in
the day (washing the car and mowing the lawn)
they have been sufficiently well behaved to be
entitled to ice cream despite going to the Super
America store without permission. In addition,
because they asked to buy ice cream at 3:30,
relatively early in the afternoon and a full hour
before dinner was planned, it is unlikely that the
ice cream will ruin their dinner. Finally, because
the children did not get ice cream the previous
day, buying ice cream today will not make it an
every day occurrence; it will remain a special
treat. Therefore, . . .
IAC
• 2. Failing to give the "R" in IRAC--no
principle/definition/rule of law in the answer.
• (2) The answer that jumps feet-first into the
analysis without setting up the issue or
rules. This leaves me attempting to extract
rules from the analysis and is unsatisfactory
all the way around.
• Example: "The sign in the window identified
the item for sale, its price, and some details
regarding its availability. These specifics
might take the sign outside the usual
presumption regarding advertising 'offers'.“
• Leads to “lay person” analysis
Miscellaneous (but still important)
• 3. "Waffling" on an answer--giving the arguments
on each side, but failing to conclude which one is
the stronger argument and why.
Leaving Points on the Table
• Don’t leave points on the table!
• Leaving points on the table by not discussing
issues because they seem "easy" or
"obvious" and not arguing both sides of an
issue.
• “It is clear” “There is no question” “The facts
demonstrate”
The Little Things That Are Bigger Than
You Think
• do not write just one huge paragraph--instead,
make new paragraphs for each issue
• I continue to see one-paragraph 60-minute
answers, but these were fewer this year.
• remember to number the question/answer
• FOLLOW INSTRUCTIONS:
• NOTIFY PROCTOR IF NOT ON BEGIN SCREEN
• WATCH THE CLOCK (NOT THE SOFTEST TIMER OR
OTHER PEOPLE IN THE ROOM)
• USE THE RIGHT EXAM NUMBER
• Don't assume because your answer is typed it
is legible. I now warn students that I will dock
an exam one half grade for excessive
typos. Also, they still need to use capital
letters and punctuation.
• I gave my students a stern lecture about typos
and such this time, showing them a page I had
marked up with highlighter from a student's
exam. I got only a small handful of poorly
written exams with typos and such, which
makes me think that in the past, they have just
been sloppy because they didn't think it would
matter.
Grammar:
• “would of” “could of”
• Random use/non-use of apostrophe (if one
party benefit’s from another parties actions . . .)
• Random use of commas
• “borrow” when you mean lend or loan; “he
borrowed him the money”; “she borrowed him
the car.”
• “based off” rather than “based on”
• Run on sentences/sentence fragments
Question I (20 points)
After five stormy years of marriage and two children, Wanda and Harry divorced, with
Wanda granted custody of the children. Wanda and Harry continued to battle over the
children and, on three occasions, Harry struck Wanda when he came to pick up or
visit the children. After the third occasion, Wanda sought and was granted an
“Emergency Protective Order,” which ordered Harry to stay away from Wanda and
the house in which Wanda and the children lived.
The EPO was served on Harry at 5 pm. After drinking for the next three hours, Harry
went to Wanda’s home and demanded that she allow him in to see the children. She
would not open the door. He continued to bang on the door and said he was going to
break the door down and that he would “make her pay when he got in.” By this time
Wanda had retrieved a loaded pistol from the bedroom. Distraught, Wanda yelled that
she had a gun and would shoot if Harry didn’t leave. Harry yelled back that she
“couldn’t keep him from seeing his kids,” and that he “would fix her good for this.”
Wanda fired three shots through the wood door. Because the door was solid (no
glass) she could not see Harry on the other side. The bullets struck Harry in the chest
and killed him.
Wanda has been indicted for murder under the state’s homicide statutes which are
identical to the Model Code provisions. Discuss her liability for murder (or, if
applicable, a lower level of homicide), including any defenses she might have. Her
testimony would be that she thought Harry was going to break the door down, hurt
her, and take the children, that she was frightened and upset, but that she hadn’t
intended to kill him when she fired through the door.
The state’s burglary statute provides as follows: “One who breaks and enters a
dwelling house with intent to commit a crime therein is guilty of burglary, a Class B
felony.”
• A person is guilty of murder if she acts purposely,
meaning it is her conscious object to cause the
result (death of a human being).
• A person is also guilty of murder if she acts
knowingly, meaning she was practically certain
her actions would cause the result (death).
• A person is also guilty of murder if she acts
recklessly (with conscious disregard of a
substantial and unjustifiable risk that involves a
gross deviation from the standard of conduct
that a law abiding person would observe in the
actor’s situation) and with extreme indifference
to human life.
Wanda- Murder
Wanda will be guilty of murder if she purposely or knowingly killed Harry, or
if she did so acting recklessly under circumstances manifesting extreme
indifference to the value of human life.
A person acts purposely if it is their conscious object to cause the result.
Here, Wanda’s testimony that she “hadn’t intended kill him when she fired
through the door” suggests it was not her conscious object to kill Harry.
While is it up to the jury whether to believe this testimony, it is plausible that
she intended only to scare him and make him stop trying to break in.
Wanda would also be guilty of murder if she acted knowingly, meaning she
was practically certain her actions would cause the result (death). It may
be that Wanda had no idea bullets could go through a door, and she may
not have been “practically certain” Harry was directly on the other side of
where she shot. If she can present evidence to support those possibilities,
she could avoid liability for knowingly killing Harry.
It seems more likely that a jury could find that shooting through a closed
door when another person is on the other side of the door is acting
recklessly with extreme indifference to the value of human life. However,
such recklessness requires a conscious disregard of the risk, so if Wanda
did not have any idea bullets could go through a door, she could avoid
reckless liability as well. If a jury finds she was reckless, the circumstances
(blindly shooting a deadly weapon) certainly suggest extreme indifference to
human life.
Wanda – Manslaughter