Success in Your First Year of Law School
By Talon. Published October 2010.
I couldn't have graded on to law review at my school (a T-10) without the advice of the guides already posted here. Hopefully, I'll be able help a few more people do well by offering my own thoughts. For those looking to get good grades, I would recommend reading every one of the guides posted on TLS, as well as any useful threads you come across (this post contains links to several TLS guides). There are a variety of ways you can approach studying, outlining, and the exams themselves, so read about the different approaches, and as you outline and take practice exams, figure out what works best for you. Don't think of this guide as "what you must do to be successful." Rather, recognize that this guide simply contains what worked well for me last year, and use it, combined with other resources, to give you a sense of direction in what will be an incredibly confusing, frightening, and exhausting year.
In my view, there are basically only two things you must do to be successful. One, you must learn the law, and two, you must learn how to write good answers on law school exams. You can't write good answers on exams if you don't know the law, and likewise, your knowledge of the law will get you nowhere if you don't know how to use it properly on an exam. Most of what I advise you to do (or not do) will be oriented to one of these two essentials.
Before Law School Begins
Every law student will advise against trying to learn the law before law school starts, and many 0Ls think they know better and ignore that advice - I certainly didn't listen as a 0L! That said, trying to learn the law by reading supplements before you begin law school is a bad idea for several reasons.
First, it won't give you an advantage. Your first exams will be in December, and at that time, whether or not you read a supplement in July will make no difference. Second, you won't know what to study – many (if not most) sections in the supplements will not be covered in your classes. Third, you will be better off when school begins if you just concluded a fun and memorable summer. You don’t want to begin law school already sick of studying the law.
So what would I recommend doing? At a minimum, you should read some of the threads on doing well in law school that are posted here. You ought to know what you're getting yourself into before law school begins, and you'll be able to use your time more efficiently if you know what studying techniques should and should not be used.
Beyond reading the advice posted here, I would recommend skimming Getting to Maybe over the summer. You can skip the chapters on policy arguments if you want (for now), but you should try to understand the concept of "forks" in the facts and in the law. If you have at least some knowledge of what a law school exam consists of, and what makes for a good answer to an issue spotter, you will be able to read cases and take notes in class with an eye towards the exam.
Most importantly, enjoy your summer! The few hours it takes to do the above should be the extent of your preparation. Resist the urge to crack open the supplements.
Other Useful Things to Do
First, and most importantly, get yourself situated in your (new) location before law school begins. Law school will consume a lot of time from the moment classes begin - it's not like college where you often have a week or two to slack off before the workload picks up. Buy your furniture and other essential items, make sure your computer is in working condition and has all of the necessary software, learn your way around town, etc. You don’t want to be doing these tasks after school starts.
Second, update your resume and draft a generic cover letter if you are at all interested in applying for "competitive" 1L summer jobs - summer associate positions (they still exist), some government and public interest jobs, and judicial internships. December 1 is the first day you can apply to many of these positions, which happens to be right around exams. There's nothing wrong with spending a little time around December 1 sending out applications, but getting the basic work out of the way during the summer will save you time around exams, when your time is much more valuable.
Third, if you haven't already, learn how to type with ten fingers. I'll discuss typing speed in more detail when I discuss taking law school exams. You don't need to get your WPM up to 80 or 100 or whatever, but if you are still typing with two fingers, you should probably fix that while you have time.
Part I: Learning the Law
What do I mean by "learning the law?" You must learn the common law rules that have been developing for centuries, the Constitution and the cases that interpret it, the state and federal statutes and the cases that interpret them, and the policy goals that drive the decisions of the courts and the legislatures. While attempting to learn "the law" may seem daunting, it isn't much different than learning the material for a typical class in college. A lot of first-year law students seem to think "now that I'm in law school, I need to do everything completely differently to succeed." That's not true at all - the studying techniques you acquired in high school and college can be utilized to learn the law. It's only the exams themselves that are completely different.
Before you begin, it’s important that you understand that a law school exam typically involves “sophisticated application of basic doctrine,” as Joseph Glannon puts it. You should focus your efforts on mastering the basic rules, and on learning the arguments that can be made by both sides when applying those rules. Success on an exam will almost never depend on whether you or not you remember an advanced rule from class. For example a torts exam isn’t going to test you on when foreign-based employers can face punitive damages for the negligent torts of their employees, so if encounter a rule for such a situation, you can mostly ignore it.
You have three main resources to help you learn the law: your casebook, your class notes, and supplements. How you utilize these resources is entirely up to you. I personally relied primarily on the casebook, and used supplements only to clarify areas that I didn’t understand, but some people rely mostly on supplements. Ultimately, you should compile everything you learn from these resources into an outline for the course, which should contain everything you need to know for the exam. I’ll discuss these resources, and the outlining process, in more detail below.
Unless your professor doesn’t cold call, you will likely have to read the assigned cases in your casebook to prepare for class. However, the casebook can also teach you the law fairly well, should you choose to use it over supplements.
First, when you’re reading a case, figure out why the case is even featured in the casebook. A case can make the casebook for a variety of reasons - it may establish a new rule, it may extend an existing rule to a new situation, it may misapply a rule, it may illustrate a sophisticated application of a rule, it may involve the court having to choose to adopt one of two competing rules that are in use in other jurisdictions, it may give a very good overview of a particular area of the law, or it may be written by Cardozo or Posner. When you know why the case is important, you will know what to get from it. There are several basic things you should take note of.
The Court's Holding: If you learn nothing else from a case, at least learn what came out of it. Obviously, for example, when you read International Shoe, you had better take note of the part about "minimum contacts."
Preexisting Rules and Tests: Many opinions will state rules that have already been established. These are fairly easy to see. If you see "landowners cannot set traps for trespassers" or "in justifying its action, the government must show (1) it has a compelling interest, and (2) its means are narrowly tailored," take note.
Factors: Similar to rules and tests, sometimes courts will reach an outcome by considering various factors; for instance, Brennan's "fairness factors" in Burger King. If you see language like "courts must consider the following factors..." you should note each factor that is listed.
Statutory Laws and Restatements: If the case applies a statute, or, more likely in the first year curriculum, applies a restatement of the law, you should note it. Restatements are useful for understanding the law.
Forks in the Law: If the court lists alternative approaches to the issue that other jurisdictions take, note these. You'll know exactly what to look for if you read Getting to Maybe.
Policy Arguments: Whenever a court explains why a certain rule is used, or why it is reaching a certain result, take note. After a few weeks of reading cases, you'll notice that there are basically only a handful of policy reasons that are common - fairness to the parties, efficiency, rewarding good conduct, deterring bad conduct, predictability in outcomes, to name a few.
Squib cases usually follow the assigned case. Although they often don’t get discussed in class, you should definitely read them if they are assigned. A squib case might be the basis for an exam question, or, at the very least, having the case in your arsenal of knowledge may provide you with another argument to make on the exam. However, if a squib case involves a topic that was never covered in class, you can probably ignore it without worry. For instance, if you are “assigned” 2 pages of squib cases on CERCLA in torts, but you never discussed CERCLA in class, you can probably ignore those cases.
Should you brief cases? No. Having a good case brief may help you answer cold calls more quickly, but that won’t affect your grade at all, since grading is blind. The exam will not ask you questions like “what was the procedural history of Hawkins v. McGee?” Writing case briefs wastes time; you should easily be able to get through a cold call simply by writing things like “procedural history” in the margins of your casebook when appropriate – there is no need to type anything up.
That being said, do not ignore the facts of the cases. To prepare for exam questions that directly involve a particular case, you’ll need to have a solid understanding of that case to write a good answer. So, even though you shouldn’t be briefing for class, you should still try to understand the details of each case.
Hopefully you learned how to take notes after four years of college. If not, I can't help you. This phase of your learning doesn't differ much from college – it’s mostly common sense. If your professor says something is important, write it down. If your professor likes to emphasize something a lot, it's probably because he thinks it's important - write it down. If your professor spends fifteen minutes doing complex math on the chalkboard to illustrate the Hand formula in Carroll Towing, you can ignore it - obviously the professor isn't going to expect you to do complex math (which, by law school standards, is anything beyond single-digit addition and subtraction) on an exam.
Finally, try to pay attention. When the class idiot asks "what would happen if the plaintiff were hit by a piano instead of a train?" you don't need to write down your professor’s answer, but if you start browsing the Internet, you may find that 30 minutes have passed and the professor has been discussing something relevant for the past 25 minutes, which you have missed entirely.
For each first-year course, there are at least half a dozen supplements commercially available that will explain the law quite well, unlike your casebook, where the law is often buried somewhere in a case that does a terrible job of explaining it. Inevitably, there will be an area of the law that you don’t understand after reading your casebook and attending class. That’s where supplements come in. If you buy a good supplement, it should clear things up for you.
There’s already a lot of discussion here about what supplements to get, so I’ll avoid making a recommendation for each class. So far, the best supplement I’ve read is Chemerinsky's constitutional law supplement, which I would recommend getting no matter what. I also think the section at the back of the Torts Examples and Explanations (by Glannon) on taking law school exams is worth a read, but since so many people have this supplement, you can probably just borrow it from someone for an hour or two. With regard to supplements, there are a couple things you should keep in mind.
First, if your professor wrote a supplement for your class, buy it and read it. No exceptions. This will give you great insight into your professor's thinking - what he thinks of an area of the law and possibly even what he looks for on an exam.
Second, one supplement should be sufficient for any class. Some of your classmates will undoubtedly purchase three or four supplements per class and read them all - don't let this intimidate you. If you select your supplements wisely, by using the advice on TLS, you should be able to learn everything you need to from the supplement you choose.
Making an Outline
You've read the cases, you've took notes from class, and you've used supplements to fill the gaps in your knowledge. The next step is the outline. Learning the law by rereading your marked-up casebook, notes, and supplements over and over again will take far too long. An outline, by contrast, contains all of the useful information you have come across and nothing more, so that there are no distractions.
Before I get into more detail, I'll note that many people do not recommend making an outline, and instead advise simply reading outlines made by upper-level students who had your professor. I have no doubt that this strategy can work for some people - if you have a good outline for your class, you can use it to quickly learn the law and save yourself a lot of time. However, for me, the best way to learn the law is to assemble an outline myself - I learn and remember information a lot better if I am interacting with it, and not just reading it over and over.
What is the Purpose of an Outline?
The purpose of an outline is, as stated above, to help you learn the law. The purpose is not to carry you through an exam. A lot of students seem to think that having a great outline is the key to success. It is not. When you're staring at a bizarre fact pattern involving multiple parties and dozens of different torts committed, having a massive 30 page outline in front of you will not help - you'll be spending too much time combing through the outline to find issues and good arguments to mention, while some of your classmates will be finding those issues and making those arguments without the assistance of an outline. The point of having an outline is that, after making it and reading it several times, you know everything that is in there so that you can spot issues and make arguments as soon as you read a question, without having to turn to any written materials for assistance.
That's not to say you will never use an outline during an exam. You probably will – I usually refer to an outline several times during an exam. But when I refer to my outline, I know exactly what I am looking for - a particular case that is directly on point, a possible interpretation of a rule that is applicable, an alternative approach to resolving a certain issue, etc. I don’t spend time sifting through it for ideas.
When Should You Start Your Outlines?
I highly recommend starting your outlines early into the semester, for three reasons. First, it's easier to outline an area of a course when you've just covered it in class, rather than when it was two months ago and you don't remember any of it. Second, starting early will give you more time for other things towards the end of the semester, when your time is much more valuable. And third, assuming outlining helps you learn the law, learning the law earlier means you can start taking practice exams earlier, which helps because taking practice exams is, in my opinion, the best way to help you achieve success in law school. The earlier you can start, the better.
You can start an outline when you've completely covered a section of your course. You can use your syllabus to determine when a section has been completed. For example, in torts, you'll probably spend a week on intentional torts. Once that week is over, you should start outlining intentional torts.
What Goes in an Outline?
First, and most importantly, the "black letter" law. These are the basic principles of the law that are well settled. For instance, you must absolutely include in your property outline that adverse possession requires (1) an actual entry giving exclusive possession, (2) the entry is open and notorious, (3) the possession is adverse and under a claim of right, and (4) the possession is continuous and uninterrupted. You should have no trouble finding the black letter law and incorporating it into your outline - if your casebook doesn't have it, a supplement will. Related to this, note all of the different forks in the law that you come across. For requirement (3) of adverse possession, some states require that the trespasser intend to acquire title through adverse possession, while other states require that the trespasser have an innocent motive, and a third set of states don't care about the state of mind of the trespasser. This must be included.
Second, the policy rationales behind the law. Your professor will probably discuss several reasons why the common law even has the concept of adverse possession. Knowing the rationales behind the law is crucial to making good arguments on exams, as I will explain later.
Third, the cases. When you're making your outline, open up your casebook, and incorporate all of the important information from the cases (the stuff you highlighted, your notes in the margins, etc.) into your outline, or perhaps do this in a separate document that just consists of cases. This is only to prepare for a surprise question that requires you to know a particular case very well. If your professor only asks traditional issue spotters, you can probably get away with nothing more than one or two lines of text that just briefly explain each case.
Fourth, anything that will help you make a good argument. In your class notes, did you write down what your professor thinks courts actually care about when deciding adverse possession cases? If so, this is something that can be used in an argument on an exam, so put it in your outline. The same thing goes for assigned law review articles, and squib cases.
Your outline should emphasize the basic doctrines from the class. Remember, law school exams involve “sophisticated application of basic doctrine.” You don’t want to crowd your outline with absolutely everything you learned. My outlines usually ranged from 20-30 pages. Length isn’t important, but if your outlines start running over 50 pages, you might be trying to pack in too much unnecessary information.
How to Improve Your Outlines
Although you may have added the last section of the course to your outline, it is still not finished. There are two ways you can improve your outlines.
First, read other outlines for your professor’s course if you can obtain them (ask other students, or join a student organization with an outline bank). By comparing your outline with another outline, you’ll inevitably see things you missed, and see ways that you could present the information more clearly and concisely.
Second, take practice exams. After taking a practice exam, if you realized you wanted something in your outline that wasn’t there, be sure to add it. This is a never-ending process, since you will always think of improvements. I personally am making changes to my outlines until the day of the exam. Again, the outline itself usually isn't too valuable during the exam, but it's the process of making it and continually improving it that helps me get a solid understanding of the law.
Once you've made an outline, you should have a good enough understanding of the course to start taking practice exams. If you're anything like me, the first practice exam will probably look ugly, but you'll learn a lot from the process. Keep doing practice questions, rereading your outline, and using whatever resources you have to continually improve your outlines. In the days leading up to an exam, I usually read the outline for the course at least once a day. Having the information in a Word document is not good enough; you should come to know that information.
You can never completely learn the law, of course. Your goal is simply to get to the point where you can recognize issues on a law school exam and make strong arguments for both sides. The better understanding you have of the law, the quicker you can think through an exam question, which will hopefully allow you to analyze more issues more thoroughly than your classmates.
Part II: Taking a Law School Exam
This is the important part. Almost all of your classmates will learn the law well, but many will not learn how to apply it properly on an exam. Law school exams are entirely different from any other exam you’ve taken before. On a math exam, for example, if you’re not sure whether to calculate the derivative or an integer of an equation, you’re probably in trouble. By contrast, on a contracts exam, if you’re not sure whether to apply the UCC or the Restatement because you’re not sure if something is considered a good or a service, you’re in great shape – you’ve got something to discuss at length! Your goal on a typical law school exam is to identify the questions that are most difficult to resolve (the issues) and to then make the strongest arguments you can for each possible resolution.
In this section, I’ll discuss what you should do to prepare for exams, how to tackle the various types of questions that typically get asked, advice for each class you’ll likely take during your 1L year, and tips to keep in mind during the exam itself.
The first step in your preparation is learning the law, discussed in Part I. You should have a clear understanding of at least the majority of a class before you start taking practice exams for that class. Also, if you haven’t already, read Getting to Maybe and the TLS threads on taking law school exams. Taking practice exams will be a useless exercise if you don’t actually know the law you’re supposed to apply, and if you don’t know what it takes to write a good answer, you won’t be able to adequately critique your practice exam afterwards and learn from it. Once you’ve done the above, you should be ready to start taking practice exams.
Taking practice exams is, in my opinion, the best way to prepare for the real exam. First, you must obtain exams. The best resource is exams from your professor – obviously, these will be most similar to the actual exam. Most professors give out one old exam at most, so don’t look at it until you use it for practice. You can also use exams from other professors at your school (swap exams with your friends who have different professors), and there are several schools that post their exam banks online, that are accessible to the public. Here's a good place to start looking. Also, your password as an undergraduate might get you access to your alma mater’s law school exam bank.
Make sure that you have either (a) a model answer from the professor, or (b) if no model answer is provided, another student from your class to discuss the practice exam with after you both have taken it. You need something to compare your answer to.
I’d recommend you start taking practice exams about a month before finals, which won’t be too early if you’ve been updating your outlines regularly and not saving them until the very end. The earlier you start taking practice exams, the more time you’ll have to correct your errors. Take the practice exam as though it is the actual exam. Don’t look at it in advance, use only the allotted time on each question, and avoid any distractions if possible. Spending four hours taking an exam is more exhausting than it sounds, so you should try to get used to it.
After you finish, either compare your answer to the model answer, or discuss the exam with the other student(s) who also took it. This phase is just as valuable as taking the exam itself. Inevitably, you will have made mistakes on the practice exams, and it’s important that you identify them by comparing your answer to another. Personally, my first practice exam answers were awful – I missed major issues, misapplied the law, and made weak arguments. However, after a month of taking practice exams and determining my errors, I was able to avoid making any of these major errors on the actual exams.
Taking practice exams not only teaches you what mistakes to avoid, but allows you to get comfortable with the law. For instance, if you’ve taken an adequate amount of Constitutional Law practice exams, you’ll know exactly what to do for a Commerce Clause question. You’ll be able to apply the Commerce Clause cases quickly and accurately, so that you have more time to analyze other issues that arise.
I attribute most of my success in the first year to taking tons of practice exams. There’s always room for improvement – you can never write a perfect answer. The more practice exams you’ve taken, the less error-prone you’ll be, and you’ll be quicker and more efficient in your analysis so that you can pack more analysis into your answer.
Being able to type quickly will give you an advantage. The faster you can type, the more analysis you will be capable of. That said, the key to typing a lot is not having a super high WPM. Rather, you should aim to be constantly typing throughout the entire exam. This is why learning the law matters so much. If you know the law well, you will always have something to write about on a typical exam, so you won’t waste time reading your outline for ideas, or thinking through the questions in your head for several minutes at a time.
Fast typing speed is not essential for success. I’ve seen exam answers that have received a better grade than mine with half the words. However, on an exam where your goal is to distinguish yourself from your peers, being able to produce more analysis than your peers can is one reliable way of distinguishing yourself.
If you take a lot of practice exams, you will likely see a dramatic improvement in your typing speed, because you’ll become so familiar with the law that you’ll be able to apply it without thinking. Whenever I would start taking practice exams, I would average about 1000 words per hour, and would usually reach a pace of about 2000 words per hour in time for the actual exam.
The Types of Questions on Exams
It’s important that you know what types of questions may be asked so that you aren’t caught by surprise. I’ve attempted to cover the common question types I’ve seen, but there are certainly more out there.
These are the traditional law school exam questions. Almost all exams will have at least one issue-spotter, and many exams will consist of only issue-spotters. These questions vary greatly in density – some will have only a few issues, while others will implicate literally everything you learned in the class. Doing well on these questions requires (1) spotting the issues, and (2) strong analysis of the issues.
Spotting the Issues
On many fact patterns the issues raised will be obvious. But sometimes, the issues are well hidden, and only a few students will notice them. Taking practice exams will develop your ability to spot issues, and you’ll become good at recognizing common patterns. For example, in torts, if a statute prohibiting certain behavior is mentioned in the fact pattern, there’s probably a negligence per se issue.
To ensure you don’t miss anything, I recommend creating an “issue checklist,” which is basically just a list of all of the topics and basic principles you learned in class. It should be only a page or two. As an example, here’s my checklist from torts. It’s simply a list of things to mention if the opportunity arises.
During the exam, when you’re out of ideas or just curious if you’re missing something, scanning a one page checklist will take much less time than flipping through your entire outline in search of ideas. It doesn’t take very long to create a checklist – it’s pretty much just an outline of your outline – and I’ve found checklists to be very useful on every exam.
Spotting the issues alone is not enough. Simply telling your professor “I see that these facts raise a felony murder issue” will not get you many points. Once you find the issue, you must analyze it well – you must develop arguments and counterarguments that the parties will raise. How much analysis you give an issue is a judgment call. You should consider how difficult the issue is (some issues can be dismissed in a sentence, others may need paragraphs of analysis), how much time you have remaining, and how many other issues you have left to cover.
At the very least, for each issue that arises, I try to provide an argument for each party. There are a lot of possibilities. You can make arguments based on common knowledge (“a reasonable person could construe the term ‘deadly weapon’ to include box cutter knives in light of the September 11 attacks”), based on precedent (“Smith v. Jones construed a similar statute to cover pocketknives, so it is possible the court will construe the statute here to cover box cutter knives”), and based on policy (“construing the statute to cover box cutter knives does not further the criminal law’s retributive goal, since the vast majority of people who possess box cutter knives in parks, including the defendant, are not morally blameworthy persons”). On an large issue spotter, usually I’ll just keep making arguments until I run out of ideas, and then move on – once you’ve provided some analysis, you’ll probably be better off moving on to other issues instead of spending your time thinking of more arguments to make.
One useful tool for making arguments is lists of “factors” that courts use. If you get the opportunity to apply these factors, mention every single one. For instance, if in civil procedure, you see a personal jurisdiction question that implicates Burger King, mention all of Brennan's "fairness factors" - not just one or two of them. In addition to my issue checklist, I always list all of the important factors to keep in mind on a sheet of paper. As an example, see the second page of my torts checklist.
Here’s a short set of facts, somewhat influenced by my real torts exam, to give you an idea of what level of analysis you can choose to provide.
Facts: Without stopping to look for cars, John runs across a busy street while chasing a thief who stole his wallet. Mary, driving at 35 MPH, doesn't see John until it's too late. She slams her breaks, but not before hitting John and rendering him a paraplegic. The speed limit on this street is 30 MPH. John sues Mary for damages. What result?
Weak Answer: Because Mary was driving over the speed limit, in violation of the law, she was negligent per se. But for being hit by Mary's car, John would not have been injured. Thus, Mary's negligence is the cause of John's injuries.
Better Answer: Because Mary was driving over the speed limit, in violation of the law, she was negligent per se, since speed limit laws exist to prevent these accidents. When a driver follows the speed limit, she has more time to stop, which will result in fewer and less severe accidents.
Mary may argue that everyone typically drives 5 MPH over the speed limit, so she shouldn't be found negligent per se. However, this argument will probably fail. The fact that a majority of the population violates a law should not excuse Mary from liability for damages caused as a result of her violation. Perhaps fewer people would violate the law if people like Mary were held liable.
Mary may also argue that the roads are safer if all drivers drive at the same speed. Thus, driving at 35 MPH was the safest choice Mary could have made. The success of this defense will first depend on whether most drivers were driving at 35 MPH, which the facts do not say. Assuming that 35 MPH was the norm, however, this argument is still weak because driving at 35 MPH instead of 30 MPH does not seem to be safer. This isn't at all like a freeway situation, where it is arguably unsafe for someone to drive at the speed limit of 55 MPH if the norm is 70 MPH. So, while this defense might be persuasive if John ran onto a freeway and were hit by a speeding driver who was simply following the norm, it doesn't sound persuasive here.
But for being hit by Mary's car, John would not have been injured. Thus, Mary's negligence is the cause of John's injuries, John will argue. In response, Mary will point out that, even if she were driving at the speed limit, she probably would have hit John anyway, as the difference between 30 and 35 MPH is minor. However, this defense will probably fail; surely if Mary were driving at the speed limit, John's injuries would have been less severe assuming the collision was unavoidable. Perhaps John would have only broken a leg, and not been rendered a paraplegic. John should have no problem establishing causation.
Is the “better answer” perfect? Of course not – you can probably think of responses Mary may have to John’s counterarguments, and the issue of John’s contributory negligence was not mentioned at all (mainly because of my laziness). However, the better answer would score many more points. If the fact pattern on your exam is ten times as long as the example, and you can provide the level of analysis that the better answer provides for each issue, you’ll be in good shape.
Organizing Your Answers
Since your answers can get quite long, I recommend using headings to separate each issue. Headings are helpful to you, because in case you have extra time and want to revisit an issue you’ll know exactly where to go, and they make it clear to the professor what you’ve covered.
On a large issue-spotter, especially one that involves several parties with claims and against each other, you’ll probably need to organize your answer first to keep track of all the issues and ensure you have time to analyze each one. The simplest way I’ve found to do this is to simply make the headings and subheadings in the Word document before you begin your answer. You should start by organizing by plaintiff (or by defendant). Here are two ways you can organize an answer on a typical torts exam.
Claims by A
-- Against B
---- Negligence for failing to adhere to custom
---- Products liability
-- Against C
Claims by B
-- Against A
-- Against C
Claims against A
-- By B
Claims against B
-- By A
---- Negligence for failing to adhere to custom
---- Products liability
Claims against C
-- By A
-- By B
Finally, in some cases making a flowchart before an exam might help you. If you follow the flowchart when you’re answering the question, you’ll answer it in an organized manner, and you’ll be able to ensure you don’t miss anything major. Flowcharts are best when analysis requires several steps that can be hard to keep track of, e.g., personal jurisdiction. Here’s my personal jurisdiction flowchart as an example. You can see that it also functions as an issue checklist.
These questions involve only one or two difficult issues, usually apparent, and your goal is to provide the most well-reasoned analysis you can. As an example, pretend the John and Mary fact pattern from above consists of an entire question (and not merely a small chunk of a larger issue-spotter), and you are given 40 minutes to construct an answer. Almost everyone taking the exam will recognize the issues and recognize that simple conclusory statements will not suffice.
The tips from the “strong analysis” subsection still apply here, of course, but you can’t simply move on to another issue when you’re out of ideas, since you only have a very small number of issues to deal with. If you can’t think of any arguments based on common knowledge, turn to precedent. Are any cases on point, even indirectly? Look at all of the policy goals behind tort law. Which goals are served by holding Mary liable? Which goals are not served? For example, as the better answer alluded to, do we want to deter Mary’s behavior – driving 5 MPH over the speed limit – or not?
If you’re truly struggling, then turn to the sections of your outline that deal with the issues and start reading. While this is generally a bad idea on issue spotters because there are probably easy points available somewhere else on the question, on these types of questions, points will be harder to earn, so you won’t be doing yourself too much harm if you have to spend a little time scanning your outline for arguments to make.
These questions are generally like the analytical questions, except with a word limit. They can be quite nasty. Almost always the word limit will be too restrictive – if you understand the law you’ll realize just how much there is to discuss – so you have to choose what to write about. Ultimately, you’ll have to guess what your professor does and doesn’t want to read. You should either ignore entirely or give as little attention as possible to the easy issues, and focus on resolving the hardest issues presented. Only raise arguments that actually have merit – don’t raise the arguments that seem almost frivolous. By presenting only the strongest arguments about the most difficult issues, you’ll be able to leave yourself as much room as possible to provide good analysis.
These questions can be nasty if you didn’t study the case(s) that the question asks about. This type of question can come in a variety of forms. It may simply change the facts of a case and ask you how the result would change. (“How would Palsgraf be resolved if the passenger carrying the explosive package were actually an employee of the defendant railroad?”). Or it may be trickier. ([After an issue-spotter question] “How would your result change if the accident took place in New York and Judge Andrews’ dissent in Palsgraf were actually the majority opinion?”). Or it may just get totally bizarre. (“Suppose Palsgraf were decided before MacPherson. You are a judge on the MacPherson court. Applying the views of the majority and dissenting opinions from Palsgraf, discuss how MacPherson should be resolved.”)
If you only gave Palsgraf and MacPherson a single line in your outline, you’re in for a struggle. Open your casebook and class notes and hope you can find something useful to say. But if you included a bit more information about the cases in your outline, hopefully you’ll have enough information to get you through the question. If you didn’t have time to include a more thorough analysis of the cases in your outline, but the exam happens to be open-everything (including other students’ outlines), perhaps you’ll have a good summary of the cases stored somewhere on your computer.
These questions generally either require you to develop a new law to deal with a problem, or assess whether a particular law is good or bad. For example, you might be asked to evaluate a proposed piece of legislation, or you might be asked for your opinion on how the felony murder rule should be reformed. Hopefully you read Getting to Maybe. The section on policy questions is quite useful.
If you paid attention to the reading at all, you noticed that a few policy considerations drive the decisions of the courts and the legislatures. For example, criminal law is concerned with both retribution and social control. So, in evaluating a proposed criminal statute, discuss how that statute does and does not serve those two policy considerations. If the question requires you to reach a conclusion, play up the strengths of your proposal, then play down the weaknesses. This bears some resemblance to the writing portion of the LSAT. I would keep writing, but Getting to Maybe should provide more than enough guidance – if you can follow even half its recommendations for dealing with policy questions, you’ll be set.
These questions involve the themes of the class. For example: “Famous scholar X once remarked that ‘tort law is primarily concerned with deterring conduct society deems wrong.’ To what extent do you agree and disagree with this statement?” You’ll probably know in advance whether or not your professor will ask this type of question – most do not. While these questions might seem difficult because they are so different from most other types of law school exam questions, there’s an easy way to prepare for them.
There are only a handful of themes that are prevalent in each class. So, if you expect a thematic question on the exam, prepare answers in advance. That’s right! Think of all the themes of the class (make the list with a friend to ensure you’ve covered everything) and make a list of things that you will write if that the question happens to involve that theme. For example, here’s how I prepared for a torts theme involving deterrence in advance.
Deterrence as the rationale for decisions
• Deter abnormally dangerous activities: Rylands, Spano
• Use negligence to deter carelessness: Indiana Harbor
• Deter marketing of defective products: Escola
• Π’s ContN not dangerous, no need to deter it: Beems
• Necessary when causation not found: Summers
• Voiding of contractual waiver for deterrence: Dalury
• Deter b/c other workers placed in danger: Gyerman
Deterrence trumped by other goals
• Compensation is the goal: McDougal
• Can’t deter harm that’s not foreseeable: Wagon Mound
Deterrence Through Damages
• Lost chance damages for (over)deterrence: Herskovitz
• Punitive damages: Kemezy, State Farm
Each bullet point is designed to merely trigger my memory of a particular case, so that I can write a few sentences about it. If deterrence arose, I would simply discuss each bullet point, then write a conclusion and move on to another question. With thematic questions, there’s not nearly the same potential to get points as on an issue spotter, so your goal should be to write a decent answer very quickly so that you have more time for the issue spotters.
Some professors ask true/false or multiple-choice questions. The questions may just ask directly what the law is, or they may involve a fact pattern. These types of questions aren’t much different than any other objective questions that you’ve dealt with on exams throughout your entire life, so I don’t have much advice to offer. However, remember that there are only a limited number of points here, so like with the thematic questions, you should try to finish these as quickly as possible so that you have more time for the issue spotters.
The First Year Classes
In this section I’ll briefly describe what to expect on each class’s exam, and maybe offer some advice.
Civil Procedure: Get ready to learn a ton of complex rules. This was the only 1L class I used flowcharts for. Also, study the personal jurisdiction cases well – since those cases basically provide the only guidance in that area, you’ll need them. If you enter the exam with a flowchart for each situation that can arise (personal jurisdiction, party and claim joinder, etc.), you’ll be able to easily navigate through the facts and reach a conclusion. Usually the issues on the exam will be obvious (exception: Erie), but if you don’t know the rules well you may miss something critical to answering the question.
Contracts: As you can expect, the exam will involve at least one contract. Here are the questions you should be asking: Does a valid contract actually exist? If so, what are its terms? Has a party breached it? If so, does he have an excuse? If not, is the contract void for policy considerations? If not, what is the remedy for the breach? Personally I think most exam questions are fairly straightforward, and you’ll have to make strong arguments to distinguish yourself. Just watch out for UCC 2-207.
Criminal Law: Questions usually involve a criminal statute, and ask you to determine whether or not it has been violated. You should definitely make sure you understand mens rea very well. Keep your eye out for ambiguous terms in the statute – “deadly weapon” could mean a lot of things, for example. Also, on almost every question there is the opportunity to say a lot about how punishing the defendant will and will not serve the goals of criminal law, so you should definitely turn to policy considerations if you have time.
Torts: Torts questions tend to feature the longest and most complex issue spotters. Don’t be surprised if you see a dispute involving ten parties and several dozen torts. Since there will likely be more to write about than you can possibly hope to cover, typing quickly is especially important here. Two important things to keep in mind: first, if a product causes damage to a party, ask whether the product’s manufacturer can be sued. This might not be obvious if the product’s manufacturer is not actually named in the fact pattern. Second, if a party is a plaintiff, ask whether he or she was negligent in any way. Contributory negligence is easy to miss when there’s so much else going on.
Constitutional Law: Unlike your other classes, where knowing the cases well isn’t critical for an issue spotter, you must know the cases here extremely well. Note all of the important statements the court makes that could possibly be applied to new situations. For instance, if you get a question on human cloning, there are no cases directly on point. But if you’re familiar the Casey and Glucksberg opinions, you’ll be able to make strong arguments. During your exam preparation, think about how the constitution applies to current issues – human cloning, gay rights, national healthcare, the Arizona illegal immigration law, for example – as these are popular topics. I highly recommend Chemerinsky's supplement – it tells you exactly how to approach many issues that will arise on your exam.
Property: A question will basically involve determining who possesses what, or what the rights of a property owner are. This class definitely has the most forks in the law of the 1L classes – there are jurisdictional variations in almost every area. Make sure you’re aware of them, and the arguments in favor of each approach. Many outcomes on exam questions will depend on the jurisdiction’s particular laws. Also, watch out for future interests – this is one of the most difficult concepts in the first year curriculum, in my opinion.
Tips for the Exam Itself
Here are a few tips, not necessarily in order of importance, to keep in mind as you take the exam.
Read the question carefully
After you’ve taken a few practice exams, you’ll probably make a major mistake because you misread a question. You don’t want to do this on the actual exam. Make sure you understand exactly what the question asks for, and if you think a fact is critical to the outcome, make sure you have correctly read that fact. You don’t want to write an answer that discusses liability of the wrong party, or that operates under a false assumption.
If you read a question and have absolutely no idea what to do, stay calm. Maybe even go and get a drink of water. Typing frantically without any direction will accomplish nothing. Scan your issue checklist and perhaps your outline – eventually you’ll figure it out. If you honestly can’t figure out how the law applies, or even what the law is, use policy arguments to make a guess at what you think the law is, and then apply that law. Sometimes professors will deliberately ask questions that require you to guess what the law is. Just remember, if you studied well and are struggling for ideas, your classmates are probably struggling too.
Don’t just restate the law
On a typical essay exam in an undergraduate course, you could do well simply by demonstrating that you knew absolutely everything about the subject. That’s not going to work here. You must apply the law to the facts. Simply stating what the law is will not earn you points.
Don’t change the facts
Professors don’t like it when you modify the facts of the exam to make resolution of the issues easier. Don’t do it. That said, if the facts are ambiguous, feel free to state what you are assuming, and then to operate under those assumed facts, as long as your assumptions are reasonable.
Don’t exceed the allotted time on any questions
No exceptions. There are diminishing returns for adding more analysis to an already long answer. By contrast, not having enough time to even address the most basic issues on the final question of the exam will hurt, since you’ll miss out on a lot of easy points that your peers will get. If you really feel that you need extra time, try to shave off five minutes from the remaining questions if possible, so that you can go back at the end. If for some reason you go over the allotted time on a question, try and spread the loss over the remaining questions, instead of saving it all for the last question.
Try to save time on questions that aren’t issue spotters
There aren’t nearly as many points available on questions that aren’t large issue spotters. On a large issue spotter, there will likely be more than you can possibly hope to discuss, whereas on other questions, eventually you’ll exhaust the arguments that have merit. If you can use under the allotted time on these questions, you’ll have more time for the issue spotters. I got an A+ in a class by grabbing an extra 30 minutes to use on the issue spotters.
-Earplugs to block out the noise from everyone typing.
-A snack to keep you from getting hungry.
-A mouse to navigate quicker.
-Your casebook in the event that a question directly involves something from it.
I'm probably forgetting something.
Remember, the above is simply what worked for me last year. Don't feel that you need to follow all - or even any - of my advice. As I stated in the beginning, use it to help give you a sense of direction.
You might be wondering how hard you'll need to work. If you majored in liberal arts in college, you'll definitely need to put in a lot more work to do well in law school, but by no means should law school consume the majority of your time. I saw a TLS poll where most respondents reported studying more than 80 hours a week. I never studied close to that much, not even during finals. If you start your outlines early instead of saving it all for the period leading up to exams, you'll spread the work around, and you'll still have lots of time to do other things.
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