Restaurant critiques Forum

[Scribe]

Check 'em out here: http://www.top-law-schools.com/forums/v ... 0#p1972827

[apper123]

Well done! Great and accurate guide.

[Scribe]

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[anli]

Great advice! I performed similarly at a top law school, and was considering writing a similar memoir / log about exam taking. I'm glad that you did it instead.

I'll add one additional piece of advice. Confidence is key. Write like your professor would -- not a lawyer, not a student, not a judge. Assume you know the material inside and out, and that your job is to briefly summarize and assess the legal story each side will tell.

There was a website where a professor compared three student answers, but I can't find the link anymore. I'll borrow his format -- here goes!

Suppose you have an exam question that has a big ol' Parol Evidence Rule sign looming over it. Here's three answers:

Example 1: IRAC
A had an oral agreement for B to remove an icehouse. However, A also had a written contract with B so this triggers the parol evidence rule. The parol evidence rule bars evidence of a simultaneous oral agreement that contradicts a partially integrated contract, or any simultaneous oral agreement in the case of a fully integrated contract. Since A's contract with B has an integration clause, it is fully integrated. Therefore, I conclude that A will not be able to get its oral agreement enforced.

On a five-point scale, this will get two points. It identifies the issue and assesses it, but completely ignores the opposing argument. This is one, but not the only problem with using too restrictive a structure in writing your exam answer.

Example 2: LEEWS
A will try to get in evidence of its oral agreement with B. However, B will argue that the parol evidence rule bars introduction of this agreement. The parol evidence rule bars evidence of a simultaneous oral agreement that contradicts a partially integrated contract, or any simultaneous oral agreement in the case of a fully integrated contract. A's contract with B has an integration clause, so it appears to be fully integrated, and A can't introduce its oral agreement. A will reply that the "four corners" rule is too strict, and that the oral agreement shows that the written agreement isn't really fully integrated (see the California cases). However, I think the court should enforce integration clauses as a matter of policy, so B will win.

This might get three or four points. It identifies the issue, states the rule, and has an argument from each side. However, its assessment is relatively narrow and sticks to the standard arguments from the caselaw. If you can do this for each issue on the test, you might get an A, but you have to see a large number of issues (difficult!) and write a consistently good point-counterpoint for each one (tiresome!).

Example 3: You
A has an oral agreement with B, but B will invoke the parol evidence rule to argue that the integration clause in their written agreement bars A's introduction of the evidence. A might reply that the oral content suggests that the integration clause should be disregarded, but most jurisdictions outside of California prefer a "four-corners" approach to interpreting contracts.

A's better argument is that the parol evidence rule is not triggered at all: the oral agreement was for at-cost removal of the icehouse, so it has its own consideration independent of the written agreement. B will reply that even so, the at-cost provision was collateral to the written agreement; why would it perform a commercial transaction for no profit?

B's position is clearly stronger: either the PER is triggered on the oral agreement itself, or on A's alternate analysis, the PER is triggered on the at-cost part of the oral deal (this would still leave it with the obligation to remove the icehouse, but on the default rule of ordinary commercial terms.)

This is a five-point answer. It quickly identifies the issue and assesses A and B's primary point and counterpoint. But then it goes further: given A's clearly losing position on the PER, develops an alternate line of argument that positions A favorably. It then provides B's strongest reply and the outcome-consequence of that reply.

Cynics will point out that this third answer is the longest of the three. This is true, but it deals with the expected part of the answer much more quickly and succinctly than either example 1 or 2. It covers in two sentences what example 2 does in an paragraph.

A better critique is that the extra work only nets you one or two extra points. This is also true, but (1) if you deal with the ordinary stuff quickly, you have more time, (2) you don't have to come up with a strong answer to every question and (3) those marginal points, gained over a number of issues, is what separates an A from a B.

[vanwinkle]

I just read your blog post. Excellent advice, dude.

[JPeavy44]

great blog...thanks. i really liked the quotes you added in.

[solidsnake]

the PER is triggered on the at-cost part of the oral deal (this would still leave it with the obligation to remove the icehouse, but on the default rule of ordinary commercial terms.)

I don't have a question re exammanship, but rather re the substantive law here. I was with you up until the above-quoted point. If the parol agreement gets enforced here, then how is the PER "triggered"? The PER exists to bar enforcement of parol agreements that don't have separate consideration. If you are making the structural argument of an at-cost provision (and hence independent consideration), then the PER wouldn't be triggered.

Also, what is the "default rule of ordinary commercial terms"? That sounds like UCC, which wouldn't have any place in a Mitchell v. Lath fact pattern.

[anli]

B would argue that A's oral agreement goes something like this:

B agrees to remove the icehouse. A agrees to pay B ______. ______ is discounted to at-cost.

B will argue that even though the oral agreement has separate consideration, the term "______ is discounted to at-cost" is collateral on the written contract. This would be a rather novel argument, going beyond Mitchell or any of the cases I, at any rate, read. In my view, the court would then have two choices: it can exclude the entire oral agreement, or it can just exclude the at-cost part. In that event, it would have to replace ______ with some default term. In this case, I think ______ would be replaced with market value.

[legends159]

Great thread. I would add that when taking PT and reading model answers, dissect the model answer to figure out what your professor wants to hear. This is especially true for professors that have taught the subject for many years b/c you're not going to wow them by posing some creative new interesting issue (their fact hypo likely won't give rise to it and you'll just be making up stuff), you'll wow them by noticing little nuances that they stress throughout the semester but 99% of the class ignores b/c it's so nuanced.

[OperaSoprano]

Scribe, first Arrow, and now you!

Translation: you are [strike]on track for[/strike] already deserving of legend status.

[A'nold]

This semester I am going to focus even more on fully dissecting the fact pattern and its ambiguities and focus less on making sure I throw out hail mary answers no nail a few more points. I should have focused more on a clean, thorough, accurate analyis of the big issues. There are probably small points inside of the big ones that I missed which time I used to reach for some points with kitchen sink kind of crap. I hope this proves to be the right move.

[Arrow]

Hi everyone,

I've blogged about my super-fun 1L year in the blog section since things got under way. I recently wrote an (embarrassingly long) article about law school, especially how to take law school exams. I thought I'd mention it here where there's a bit more traffic in the hopes that it gets out to those who could use it.

In terms of bonafides, I am a first year law student who wound up at or very near the top of my class at a school that I can refer to as a 'top' law school without getting mocked on this board.

Hope it's useful!

http://www.top-law-schools.com/forums/v ... 0#p2599055

Wow. That was amazing.

First of all, it was incredibly interesting to learn about your approach, as I can always use more advice (especially now that I am at a similar school). Second of all, that must have taken you at least 6 hours to write, so thank you for putting in the time.

Your guide is even more focused (on the law school exam, which is all that matters). It is organized, well-written, interesting, and clear (like your law school exams I bet). Your point is dead on. "Apply Law to Facts." I especially love the quotes you put in and I am definitely linking this on my original page.

Congratulations on your success in figuring out legal reasoning and the perplexing puzzle of the law school exam. Seriously, you owned it first semester (and at a top law school not to mention).

TLS owes you a deep gratitude and thanks for sharing. You are going to be so rich and famous. =P

[sayan]

Very nice. I had read your blog previously and am glad your hard work paid off.

[solidsnake]

B would argue that A's oral agreement goes something like this:

B agrees to remove the icehouse. A agrees to pay B ______. ______ is discounted to at-cost.

B will argue that even though the oral agreement has separate consideration, the term "______ is discounted to at-cost" is collateral on the written contract. This would be a rather novel argument, going beyond Mitchell or any of the cases I, at any rate, read. In my view, the court would then have two choices: it can exclude the entire oral agreement, or it can just exclude the at-cost part. In that event, it would have to replace ______ with some default term. In this case, I think ______ would be replaced with market value.

Oh, I see. You are saying even if a court enforces the parol agreement, B will argue that the provision stating "______ is discounted to at-cost" was extrinsic to that secondary agreement, and therefore the provision shouldn't be enforced. Interesting argument. Of course, the policy behind PER is to encourage agreements to be put in writing; applying PER to only part of an oral agreement doesn't further that purpose in any way. I think B's better argument would be that the conflicting price terms demonstrates that there was never mutual assent as to this particular bargain to begin with, so the entire purported parol "agreement" to remove the ice house should be tossed for lack of acceptance. But you make a very interesting argument nevertheless; you are smart.

[anli]

Thanks. I also like your argument - I hadn't thought of using the pricing disagreement to discredit the oral agreement in the first place. That's a good tack.

Anyway, point is there are a number of ways to approach an issue, and that the most obvious approach usually only gets a couple of points. Articulating the issue in the strongest way from both the plaintiff and defendant's view is key when applying the law to the facts.

[solidsnake]

Oh totally. Thinking like a lawyer entails coming up with different theories of the case, from both adversarial sides. Sometimes this means stating the obvious, sometimes this means being creative. Demonstrating sound, professional judgment, which i think is ultimately what profs want to see on our exams, is knowing which theories are persuasive applications of law to facts.

[jrs12]

It feels almost shameful to drop a a couple of tips after such a comprehensive treatise, but there are a few things that I think gave me an edge (perfect grades first semester). The first was reading my professor's publications. Particularly for the professors who don't like to betray their actual opinions in class, their law review articles give you a good sense of what kind of arguments they find persuasive. The other tip is to cite cases from outside the reading. Professors will always tell you not to do outside research, but when they see a full bluebook citation of a case that's really on point, but that they didn't assign, inevitably they will picture an especially competent law student in their head. At top schools, where the difference between the top and bottom of the class may not be that great, little things like that can affect professors. By the way, a former SCOTUS clerk gave me these exam tips initially, for what it's worth.

[apper123]

It feels almost shameful to drop a a couple of tips after such a comprehensive treatise, but there are a few things that I think gave me an edge (perfect grades first semester). The first was reading my professor's publications. Particularly for the professors who don't like to betray their actual opinions in class, their law review articles give you a good sense of what kind of arguments they find persuasive. The other tip is to cite cases from outside the reading. Professors will always tell you not to do outside research, but when they see a full bluebook citation of a case that's really on point, but that they didn't assign, inevitably they will picture an especially competent law student in their head. At top schools, where the difference between the top and bottom of the class may not be that great, little things like that can affect professors. By the way, a former SCOTUS clerk gave me these exam tips initially, for what it's worth.

Highly agree with your first point.

Could not disagree more with your second. Citing outside cases is dangerous and will likely give you next to no edge. If it is on your exam, then a case or note case in your reading is almost certainly on point or can be used to support one of the arguments. Researching outside cases seems like a waste of time and can very easily confuse a professor.

Also bluebook citations are just a way to waste time on an exam unless your professor asks for them or stresses cites for some reason (I have never heard of a professor that wants exact BB definitions). Most of my professors have said we don't even need to recall the case name; we simply need to state something that makes it clear we are referring to that case. The exception being real landmark and important cases, of course (Palsgraf, for example).

[jrs12]

My professors said IF you use outside cases, you need full BB citations.

The casebooks most certainly do not have all the relevant authority on the topics they address. Also, I suppose I should have explained that extra cases should be the kind of cases that professors are going to know, and you should give them enough information to understand how you're using them, much like you would cite a case in a brief. In common law courses, outside cases can offer good illustrations of a different take on a rule. For example, say you're talking about negligence. You might say, "Granted, there are a few examples of courts finding that statutory compliance impliedly preempts negligence liability, see e.g., Smith v. Jones (holding that, when ZZZZ, XXXX). Nevertheless, such cases are extreme outliers." This is a better answer tha: "statutory compliance is not a defense against negligence liability unless the statute explicitly preempts liability."

In con law or statutory courses, keyciting will make it really easy to find the relevant lines of cases. You will almost certainly not be reading all of these cases in class, so you can fill in your outline with VERY short notes about the rest of the history, both prior and subsequent. This can help you understand the cases better, even if you don't end up citing them, because you'll be reading what smart judges have said about some of the cases you've read. An example of how you might use these on an exam: "Although the Supreme Court has held that XXXXX, that does not necessarily mean that our client cannot assert YYYYY. The court's ruling is somewhat ambiguous, and may not apply in cases of ZZZZZZ. In fact, one federal district court has recently interpreted this ruling much more narrowly. See Smith v. Jones."

This kind of research takes almost no time. Many of the cases you will just find in commercial outlines or law review articles (which I do recommend reading, if they're on topic). I would guess that I spent no more than one hour per class on this research, total, spread out over the semester.

Granted, this is icing on the cake, but I felt that's what I needed. Maybe it's just that my section is pretty tough, but it seems like basically everyone had a really solid grasp of the material before exam prep even began. I wouldn't bother with this until I knew everything else; yet, as noted above, this is not entirely a distinct exercise from studying assigned material. At least two law review articles really helped me to understand some of the class material that I was having trouble with, and some of the best summaries of challenging cases are found in subsequent cases that I found by keyciting.

[toolshed]

Great post. Thanks.

[Scribe]

I love pizza.

[holydonkey]

Thanks for this!

[jrs12]

Dude, did you read my comment? My professors TOLD ME that bluebooking was necessary for outside sources. I wouldn't suggest it otherwise.

As far as "fatal to your score," my experience, as well as that of some of the best students I know, contradicts that. Literally EVERYONE I've ever spoken to who has cited outside sources on an exam has gotten an A-/A/H on that exam. Usually it's people who have done outside research for another project, and just happened to get a question that was on point. Knowing outside sources means that you have a broader and deeper understanding of the issue. It's not that outside sources per se are going to get you good grades; it's that outside sources can be one component of demonstrating a deep and sophisticated understanding of the law and its applications.

I'm sure it would be fatal if you didn't know what you're talking about, but that's a different issue. It's also different if a professor specifically tells you not to cite outside sources. Mine said that it was absolutely not necessary, and that it wasn't an advisable way to study, but if we do it anyway, we should cite properly. I don't trust much that my professors say about how to study. Their advice reflects how they wish law school were, rather than how it is.

[apper123]

Literally EVERYONE I've ever spoken to who has cited outside sources on an exam has gotten an A-/A/H on that exam.

I have never heard of anyone using outside sources, however do you think they got an A-/A because they used outside sources or because the type of student likely to go so far to use outside sources would get an A-/A anyways?

[jrs12]

Oh, I'm sure it's mostly the latter. I do believe that the outside research helps you get a more complete understanding of the law. I also believe that a professor reads the outside case cite and inevitably sees the author of the exam as that kind of student, then she's more likely to give you a high grade. Of course, it's a bit of a gamble, because you need to be perfect. Otherwise, you'll probably get crushed for trying it. That's why I'll admit that this probably isn't a tip I should have posted publicly, though I do think it helped me distinguish myself from others who also had pretty much mastered the material from assigned readings.