Top Law Schools

I have a contracts mid-term tomorrow, and I'm reading over some old sample exams/answers, and one of them had a very minor promissory estoppel issue, which obviously had no merit if the plaintiff decided to raise it, and in the sample answer from the prof didn't even mention it at all

on your exams do you even mention these at all? I am struggling with the concept of do I bring up trivial issues and dismiss them quickly, aka within 2-3 sentences, just to kind of show that I recognize that it COULD be an issue, but obviously isn't

or

do I just ignore these things and spend more time adding babble to my main issues?

At my school, there's no such thing as a "-1" on exams. Just "+1's". Assuming you don't detract from your other arguments by spending time on trivialities, spotting issues is rarely a bad idea. But don't be conclusory and give both sides of the argument.

Part of what separates A exams from B exams is knowing which issues are worth spending time on. Most exams will have so many issues on them that you couldn't hit them all with an extra hour; the point is to show the professor you can identify the significant issues that a case would actually be likely to turn on, and hit those.

Something like that sounds like it might be worth a paragraph or two at most, just to identify that it's there as something that one party could raise, and also that the other party could easily defeat it and why, to score extra points for having identified it. The professor won't know that you saw it if you don't mention it, and you only get points on things you mention. But you should really only do that if you have time to after adequately addressing the more important things and making sure your analysis is thorough enough there, and if you're out of time, then leave it.

It depends on how the prof grades. Is he/she evaluating holistically, or using a checklist?

I include a fair amount of these, with favorable results. A few things to keep in mind.

1. Know your professor. If the sample exam is clear, organized, concise and only touches on the most pertinent issues, then avoid these throwaway arguments. If they subtract points (you can ask) consider this as well - but most profs only add.

2. Time management. If I have 10 minutes left for a question, I'm definitely going to start picking apart the facts and finding throwaway arguments. If you get even a few +1's out of this it's worth it. BUT if I need every second just to hit the main/obvious issues, there won't be any throwaways.

Taking exams well comes down to staying calm and thinking about the reward/return analysis of everything you do. If you've prepared correctly and have practiced a strategy this should be natural come exam day.

If you choose to include these arguments in your answer (I usually don't and I think this has helped my grades), I highly recommend you devote very little space to the issue and avoid an "argue both sides" structure. When issues are clear, you want to do everything you can to convey certainty as to the outcome.

edcrane wrote:If you choose to include these arguments in your answer (I usually don't and I think this has helped my grades), I highly recommend you devote very little space to the issue and avoid an "argue both sides" structure. When issues are clear, you want to do everything you can to convey certainty as to the outcome.

Gotta to on record as Strong Disagree. If you're going to include it, argue both sides. If you truly don't think there are two sides to the argument (though you're probably wrong), leave it out.

MrKappus wrote:

edcrane wrote:If you choose to include these arguments in your answer (I usually don't and I think this has helped my grades), I highly recommend you devote very little space to the issue and avoid an "argue both sides" structure. When issues are clear, you want to do everything you can to convey certainty as to the outcome.

Gotta to on record as Strong Disagree. If you're going to include it, argue both sides. If you truly don't think there are two sides to the argument (though you're probably wrong), leave it out.

Are you suggesting that there are two sides to every single issue? I suppose that's true, but sometimes one side is so profoundly stupid that no attorney would bother making the argument. I think it's a mistake to blindly "argue both sides." One of the things you'll be graded on, even if there's a checklist, is analysis. If you fail to communicate sounds judgment as to the viability of arguments, you're probably not going to get all of the allocated points.

edcrane wrote:

MrKappus wrote:

edcrane wrote:If you choose to include these arguments in your answer (I usually don't and I think this has helped my grades), I highly recommend you devote very little space to the issue and avoid an "argue both sides" structure. When issues are clear, you want to do everything you can to convey certainty as to the outcome.

Gotta to on record as Strong Disagree. If you're going to include it, argue both sides. If you truly don't think there are two sides to the argument (though you're probably wrong), leave it out.

Are you suggesting that there are two sides to every single issue? I suppose that's true, but sometimes one side is so profoundly stupid that no attorney would bother making the argument. I think it's a mistake to blindly "argue both sides." One of the things you'll be graded on, even if there's a checklist, is analysis. If you fail to communicate sounds judgment as to the viability of arguments, you're probably not going to get all of the allocated points.

Perhaps we agree. I'm just saying don't frame it as an "issue" if you're not going to argue both sides.

MrKappus wrote:

edcrane wrote:

MrKappus wrote:

edcrane wrote:If you choose to include these arguments in your answer (I usually don't and I think this has helped my grades), I highly recommend you devote very little space to the issue and avoid an "argue both sides" structure. When issues are clear, you want to do everything you can to convey certainty as to the outcome.

Gotta to on record as Strong Disagree. If you're going to include it, argue both sides. If you truly don't think there are two sides to the argument (though you're probably wrong), leave it out.

Are you suggesting that there are two sides to every single issue? I suppose that's true, but sometimes one side is so profoundly stupid that no attorney would bother making the argument. I think it's a mistake to blindly "argue both sides." One of the things you'll be graded on, even if there's a checklist, is analysis. If you fail to communicate sounds judgment as to the viability of arguments, you're probably not going to get all of the allocated points.

Perhaps we agree. I'm just saying don't frame it as an "issue" if you're not going to argue both sides.

Yeah, that's fair. On the other hand, I don't think that means you should always omit discussion of red herrings--if your prof has emphasized that courts misapply promissory estoppel and you see what appears to be an invitation by the prof to misapply it on the exam, it might be that your prof wants you to explicitly point out that it shouldn't be applied.

well, that midterm kicked my ass

was a case where there were enough issues that stood out pretty solidly, that just focusing on those was gonna take up the whole time, I saw one issue that may or may not be relevant, and ended up talking a bit too much about it

in the end I found I spotted the issues well enough (at least i felt that way after talking with class mates, missed one that I should have hit, but w/e), but ya, I really underestimated the value of practicing writing out exam answers. My exam answer turned out to be very disorganized, and I kinda realized how I should have presented everything with 10 minutes left, but by then a little too late.

Al the practice hypos/exams i've done, i've been lazy and just kinda outlined answers, saw I hit the right issues. When the pressure is on and time is short, and you have 8+ issues that all need to be intertwined to make sense, and connected to one another, some that need to be included within other issues, if you don't practice actually outlining it AND THEN writing it, it can go bad real quick on exam day

lesson learned, no more exams till December, luckily I have plenty of time to correct this issue, and this midterm is only 10% at most, of one class

Graded midterm. harsh. Goodluck in December, this really is a blessing in disguise for you.