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How to write law essays and exams

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How to Write Law Essays & Exams Paperback – 15 Mar. 2018

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• ISBN-10 0198811152
• ISBN-13 978-0198811152
• Edition 5th
• Publisher OUP Oxford
• Publication date 15 Mar. 2018
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• Publisher ‏ : ‎ OUP Oxford; 5th edition (15 Mar. 2018)
• Language ‏ : ‎ English
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• ISBN-10 ‏ : ‎ 0198811152
• ISBN-13 ‏ : ‎ 978-0198811152
• Dimensions ‏ : ‎ 15.8 x 1.48 x 23.1 cm
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Ten Tips for Success on Law School Exams

Every several years, around this time in the spring semester, I try to collect and update advice to offer to law students as they enter final-exam period (which is about to take place over the next few weeks at virtually every law school in the country). No one I know (including professors, who have to do the grading) particularly likes law school exams, but these exercises do provide generally useful, albeit incomplete and sometimes misleading, feedback—both to law students themselves and to interested outsiders—about the attainment of certain kinds of skills. I have argued (including on the pages of this website) that time-constrained exams are particularly imperfect, and that open-book take-home exams that give students a handful of days (a timeline like many in real-world settings) to complete might be the best way to gauge mastery of content and ability to convey understanding via a usable product. Unfortunately, such take-home exams have always brought with them the possibility of illicit cooperation (and the whole point of an exam is to measure something about each individual student). And with the emergence of generative artificial intelligence in the last few years, the administration of take-home exams is more challenging still.

I have no pat answers about precisely what the best kinds of exams to give are. But, as someone who reads scores of exams every year, I do have views on what could make for better performance on the part of the students. Even though different professors sometimes look for different things when grading exams, the suggestions I offer below should, at least to some extent, apply regardless of the precise format an exam takes (save for multiple choice exams, which constitute a whole different genus, and one that I have largely avoided using in my own career). So, for whatever they may be worth, here are my updated tips on law school exam success:

Suggestion Number One: Think (About Substance and Sequence) Before You Write

Many law students, understandably worried about finishing an exam within the allotted time period, begin writing before they really know what they want to say. As a result, many answers end up starting with one tone or focus, and end up with a different one by the time the student has figured out what she believes the best way to analyze the question (and the resulting best bottom-line answer) really is. Such internal inconsistency within a particular answer makes evaluation by a grader hard because to the extent that part of the answer is spot on and deserves credit, conferring such credit becomes complicated if the most persuasive credit-worthy parts of the answer are themselves in (direct or even subtle) tension with other things the exam-writer has said, such that the writer may be perceived to be wanting to have things both ways.

One way to avoid counter-productive drift and meander within each answer is to do a quick outline before beginning to craft sentences. Outlining one’s thoughts is old-fashioned to be sure, but it is one of those pedestrian techniques that have stood the test of time. Many of the strongest lawyers/writers I know almost always script, literally on paper or screen and not just in their minds, bullets of their main points, their sub-points, their evidence for both, and at least some semblance of a logical ordering before the actual writing begins.

Suggestion Number Two: Before You Settle Into a Structure for Answering a Question, Run Through in Your Mind All the Major Topics of the Course

While some professors like to test on minutiae, most try to devote the lion’s share of the exam to the major (as measured by the time during the semester spent reading about and discussing) topics and themes of the course as a whole. While no exam can test all the important subjects covered during a semester, you should during the exam run through in your mind the major components of the whole course itself. If you do, you’re much less likely to miss a big topic or doctrine the professor was trying to get you to think about in a particular exam question. For example, in a constitutional law class, if justiciability was something you spent a month covering, and an exam question involving a racial or gender classification asks you to discuss whether such a law would be invalidated by a court, make sure you talk not just about the merits but also about who could sue to challenge the law (unless, see below, the call of the question instructs you otherwise). It’s easy to jump into the “meaty” part of a question and miss some important preliminaries that need to be discussed, but you’re less likely to fall victim to that impatience if you have all the parts of the course firmly in your mind.

Indeed, one good way to start studying for a final exam is to study the syllabus for the course itself (and/or the Table of Contents of the casebook you used). Having firmly in mind not just the big picture of the field you have been studying, but also each of the specific doctrinal components and sub-components, can reduce your chance of missing altogether issues implicated by an exam question.

Suggestion Number Three: Answer the Question(s) Being Posed

Law school exam questions, even those of the traditional “issue spotting” variety, usually do not ask students to “write about any issues that come to mind based on the preceding narrative.” Instead, the queries are usually more focused, and ask students to examine and analyze  particular  issues from the perspective of  particular  participants in a scenario.

If the “call” of a question asks the exam-taker only to assess “subject-matter jurisdiction” in a given case (that is, to examine whether a litigant has filed suit in the right system or kind of court), students should not spend time talking about other concepts—like “personal jurisdiction” (that is, whether a particular court located in a particular geographical place has power over the defendant). These additional personal-jurisdiction concepts may very well be implicated by the fact pattern presented, but are not subsumed within the precise question being posed, and thus ought not to figure in the response.

Of course, if the question asks the student to address whatever questions of “jurisdiction” may be present, then a discussion of both topics would be appropriate. But the key point is this: The scope of the answer must attend to, and track, the scope of the question.

Students should also understand that if a question asks for a bottom-line conclusion—as many (most?) do—a response that merely identifies arguments on both sides (generally a good thing to do, as explained below) but that never resolves these competing arguments to arrive at (and defend) a bottom line, is not fully answering the question asked (and is thus not likely to receive full or near-full credit).

For example, if a question asks: “Does the court have subject-matter jurisdiction over the case as described?” an answer that identifies the best arguments for and against the exercise of jurisdiction, but that does not make clear to the grader which set of arguments the exam writer finds more compelling (and why), is not a complete answer.

Suggestion Number Four: Allocate Your Space Reasonably, and Don’t Devote Attention to Straw Man Arguments

It always pays to consider time and space at the start of an exam, rather than try to figure out these things when you are in the midst of answering each question substantively. For starters, pay attention to the professor’s suggested time allocations for various questions because these allocations generally correspond to the relative weights the professor will give the questions on an exam when the exams are graded. So spending only 30 minutes on a question for which the professor indicated a suggested time allotment of, say, an hour is a dangerous strategy.

But more difficult, and less obvious, is the knack of allocating time wisely within each question. As a general rule, students should allocate their resources in discussing issues on an exam in the same way they think someone looking at these questions in the real world would devote their comprehension resources. Even when the call of a question is rather broad or open-ended (such that many issues presented by the fact pattern could technically be deemed relevant), allocate your time (and characters) in rough proportion to the degree of difficulty each question presents. If the question asks about “jurisdiction” broadly, but the facts make clear that subject-matter jurisdiction undoubtedly exists but personal jurisdiction is a much closer call, then quickly dispose of the subject-matter jurisdiction aspect (offering a brief but authoritative explanation for why it exists) and spend most of your time focusing on the plausible arguments on both sides of the personal jurisdiction aspect. Don’t spend equal time and space on the two questions simply because there are two of them. That would be like thinking your favorite sports team has a 50-50 chance of winning because there are only two possible outcomes and one divided by two is .50.

Relatedly, when (as is generally wise, see below) you address counterarguments to your bottom line, don’t create far-fetched arguments simply so you can knock them down. If a hypothetical ordinance obviously implicating complex equal protection doctrine asks you to identify arguments that a plaintiff might make against the ordinance’s constitutionality and opine about whether they should/will prevail, don’t spend time observing (no matter how true the observation might be) that plaintiff could argue that the ordinance violates the Third Amendment’s ban on the quartering of troops, but that argument would be a loser.

Suggestion Number Five: Show Your Work

I got many good bits of advice when I was a kid from my grade-school teachers and members of my family. One was always to “look things up yourself”—that is, don’t trust other people’s characterizations of primary sources and documents. (That has been especially good advice as it relates to the reading of judicial opinions; many people interpret them in different ways, and you should read things for yourself whenever possible.)

Another gem was, in a test situation, to “always show your work.” That is, demonstrate what led you to arrive at the conclusion you reached. That advice was most obviously relevant in the math setting (where the concept of “partial credit” for wrong answers that nonetheless displayed some knowledge of the subject matter was big), but it also applies nicely to law school exams.

Whether on an exam or in the real world, lawyers and would-be lawyers are valuable not merely because they have good instincts about what the “right” bottom-line answers are, but also because they can defend their instincts by making arguments that have support. Although law school exam questions are often called, as I noted above, “issue spotters,” in reality the questions typically ask students to do much more than “spot” issues; students are tested on their ability to spot, argue, and resolve issues .

And of the three tasks, the argumentation of the issues is probably the most important. Spotting an issue is often not that difficult, and saying how you would come out on it is important but requires only that you be somewhat decisive. Defending how and why you came out that way is the real lawyering, the part of the exam answer that should be most carefully evaluated and assessed.

How does one successfully argue and defend legal positions? By reference to authority, which can take the form of, among other things, judicial or other precedent, historical context or evolution, textual analysis of enacted words, and sometimes pure logic, empirical data, or old-fashioned common sense.

How do you most effectively use these materials? Much of traditional legal analysis (on exams and elsewhere) involves making analogies and distinctions—likening the situation at hand to some that have already been discussed in the real or theoretical worlds, and/or distancing the present case from others. Showing your work and supporting your results thus often takes the form of using these devices of analogy and distinction. Conclusions, even “correct” ones, that lack any of this kind of authority or support behind them rarely do (or should) get full credit.

One question that sometimes arises is whether students will get credit for invoking legal materials that are quite relevant but that are also outside the scope of what all students in the class were asked to read and study. You should check with your professor about this before the exam, but in general, professors want to evaluate you based on your use of the materials in the class the professor was teaching you, rather than in your general knowledge of law that might be germane. That is one important way in which most exams differ from the real world, where invocation of your entire range of legal knowledge is almost always appropriate.

Suggestion Number Six: Anticipate and Address Likely Counterarguments

Regardless of the role(s) you are asked to assume on an exam (e.g., a lawyer for one side in a dispute, a judge or a law clerk to a judge, a legislator or legislative aide, etc.), in general, you will want to see and discuss all of the major sides of any issue you address. A good and well-supported argument (see Suggestion Five) is generally one that deals with its own weaknesses and explains why those weaknesses are less problematic than those that plague any other argument or resolution that could be made. (In this regard, there is often no argument free from problems, but the “best” argument is one with the fewest, or least serious, flaws.)

None of this means, as noted above, that students should set up, and knock down, “straw man” arguments (it appears that “straw man,” rather than “straw person,” is still the usage norm here). Rather, the counterarguments that should be anticipated and dealt with are those that are likely to occur to someone who understands the area of law at a reasonable level of sophistication, but who is not necessarily inclined to agree, without persuasion, with the outcome you are advocating.

Nor does this mean, again, as noted above, that a student should leave the matter discussed in equipoise. Discussing counterarguments does not relieve a student of her obligation to resolve the competing arguments (where the call of the question asks for a bottom line) and explain why one set is stronger than the other.

Suggestion Number Seven: Craft Your Responses in Ways That Permit the Reader to Understand Your Thought Process

Many students seem to forget that a good law school exam essay, like other good non-fiction prose, should be structured to make the writer’s thought process as transparent as possible. This means using paragraphs that are each limited to one thought, writing topic sentences that explain what the thrust of each paragraph is, employing transitional phrases, and sequencing points to make clear the relationship between what is being discussed at present and what came before (or will come later) in a response, and so on.

Many exams I have read make use of three- and four-page paragraphs that collapse six or seven ideas or points into one dense mix. While the substance of these paragraphs is often not entirely off the mark, as a grader I can’t easily discern what the student thinks the relationships between all these mashed-together points are, and often what I am trying to test on is knowledge not just of each discrete point but also how, precisely, the points relate to one another.

Suggestion Number Eight: Differentiate Between What Is Settled and What Is Debatable

Exams often feature a blend of “easy” questions (or parts thereof) that are meant to test basic understanding of clearly settled legal principles, and “difficult” questions that lie at the cutting edge of evolving doctrines. Readers (i.e., graders) want to know that you, as students, appreciate the differences between the two. Words like “clearly” are overused by some legal writers, but in the exam context can be useful to convey to the grader that you know the difference between tests and applications on which there would be widespread agreement, and those on which judges and analysts in the real world may diverge, either in the formulation or the application. But avoid using “clearly” in lieu of making a clear argument for one outcome over another; the word itself may helpfully signal your mindset but confers no persuasive weight.

Relatedly, many law school exam questions implicate policy considerations whose merits might depend on political/ideological viewpoints or on empirical questions as to which the data may be mixed or contested. Demonstrating an awareness of the policy/empirical elements of questions—and of the contested nature of some of the policies/empirical realities involved—by explicitly separating discussion of these matters from more mundane doctrinal recitation/application demonstrates a sophistication that will help set your exam apart from many others.

Suggestion Number Nine: Less Can Be More

Answers that spot and persuasively analyze the most important issues need not always be long. To be sure, to explain one’s reasoning, to discuss the relevant cases, to address the strongest counterarguments, etc. often requires many words. But explanations that avoid repetition, and that accomplish clarity with concision, are the most impressive. I often find that some of the shortest answers are lacking (because they simply don’t cover all the important topics or don’t adequately defend their assertions), but that most of the longest answers are also not the best because they ramble and often discuss issues not really implicated.

Of course, writing economically is hard under time pressure. Mark Twain is reputed to have once told someone he set out to write a short letter but didn’t have time so ended up with a longer letter instead. To be sure, it is most important to include what you need to include, even if doing so might be a bit wordy. But when possible, look for shorter sentences and paragraphs if they can convey your essential reasoning and invoke the proper authority in less space.