Whether writing an examination answer, counseling a client, or presenting an argument to a judge or jury, an attorney’s first goal is to communicate effectively. The key to effective communication is preparation. What should you prepare? Regardless of the setting, effective communication requires that you know your goals, know your subject, and know your audience.
Your goal on most law school exams is to demonstrate your ability to use the law in analyzing hypothetical problems. The New York Bar Exam directions for essay answers are instructive in understanding what a good answer should include:
An answer should demonstrate your ability to analyze the facts presented by the question, to select the material from the immaterial facts, and to discern the points upon which the case turns. It should show your knowledge and understanding of the pertinent principles and theories of law, their relationship to each other, and their qualifications and limitations. It should evidence your ability to apply the law to the facts given and to reason logically in a lawyer-like manner to a sound conclusion from the premises adopted. Try to demonstrate your proficiency in using and applying legal principles rather than mere memory of them.
An answer containing only a statement of your conclusions will receive little credit. State fully the reasons that support them. All points should be thoroughly discussed. Although your answer should be complete, you should not volunteer information or discuss legal doctrines that are not necessary or pertinent to the solution of the problem.
You can see, then, that your goal on a law school exam is to demonstrate a variety of skills, only one of which is knowledge of the legal rules.
Given that demonstrating your skill is as important as demonstrating knowledge, part of your subject includes those legal skills. How do you learn those skills? By daily class preparation and class attendance, in which you regard each case not as a subject to be “learned”, but as an exercise in problem solving with at least one suggested solution included.
But class is not the only place in which to hone your analytical skills. Practice analyzing hypotheticals with your study partners: invent hypotheticals and then test them out on one another. More importantly, practice writing out your analysis. Where can you find hypotheticals on which to practice?
Use the old exams on file in the library, look through your casebook for hypotheticals in the notes following cases, some commercial study guides provide hypotheticals with suggested answers, the restatements have illustrations following most principles that you can analyze for yourself, there are exams available on line, or you can ask your professor for guidance.
A second important aspect to knowing your subject is, of course, knowing the law. You must know the black-letter law that is covered in your courses. This means knowing the rules, the elements of these rules, the variations in the rules, and the policies underlying those rules. Part of your task throughout the semester is to study and learn this “law”. You should know the rules thoroughly by semester’s end. Making and reviewing flash cards is a tried-and-true method of memorized learning that may be useful in your studying.
Besides studying the course materials and your notes from class, you can get further help in learning the rules through (in order of reliability….) hornbooks, the restatements of the law, commercial study guides, outlines from other students and many other sources. Increasingly, you can access an entire library of student outlines on line (though you have little perspective on their reliability). Your professor would be happy to suggest additional reading for course subjects.
If your school is a member of CALI, you can use computer assisted legal instruction programs to help you learn the law. These lessons are written by law professors, reviewed by an editorial board of experts, and keyed to the subject matter of your courses. Because they are interactive, they can provide important feedback and extend your learning. Additionally, you must synthesize these legal rules & policies into a comprehensive whole. During class we break down the cases, discuss possible interpretations and policies explaining the results, and project the scope of those interpretations and policies. We spend very little time on review. Yet review and synthesis is essential if your understanding is to move beyond the level of your day-to-day reading of discrete cases.
The best way to bring the class into a whole is to outline. And the most important thing to remember about outlines is that preparing an outline is just as important as having an outline. How do you go about outlining? It depends on how you learn best. Some people need to force their thoughts into a rigid organization (IA1a outlines); others need a visual outline (charts); still others need to write and re-write (essay outlines). It doesn’t matter whether you type a grammatically correct, perfectly structured traditional outline or whether you make a massive multi-colored poster on your study wall. What matters is that you force the materials into some structure, so that you understand the elements of the law, the policies and theories necessary to identify facts relevant to those elements, and the relationship between areas of the law. Your focus should be on these elements, policies and relationships, rather than on the cases you have studied as examples.
The third aspect to knowing your subject is structuring your knowledge into a useable form. Now you may think that the outline serves that purpose. However, outlining is for the purpose of achieving a complete understanding. A review outline is rarely useful in preparing to use that knowledge. Rather, you need to take the additional step of condensing your outline into a list of the issues that you will be looking for in a hypothetical.
Once you have thoroughly and comprehensively reviewed your subject through some process of outlining, go back and make a “checklist”: an outline of the outline. Try to limit this checklist to one page, containing only the major categories of the course (e.g., in property: ways of acquiring property, estates, etc.; in torts: battery, assault, negligence, etc.) and the elements of each of those categories. This “checklist” is a failsafe mechanism of sorts. It insures that you haven’t overlooked crucial areas of the law that might present issues in a fact situation. If the exam is open-book, you want this checklist on the top of your outline or inside cover of your book. If the exam is closed book, you want to memorize the checklist, perhaps through some mnemonic devices. Be sure to “test drive” your checklist: project the type of exam and the subject matter that you expect for each class (you may be able to rely on past exams for the course) and practice using your checklist in writing a time-pressured answer to that exam. Review the results with your colleagues and with the professor. Revise your outline and checklist appropriately.
Each professor may stress one aspect of the law or one approach to legal analysis more than others. You should know that professors differ in their use of the classroom: some professors emphasize your ability to analyze a case to determine how and why a new legal rule was developed; others (using the same materials) will focus on the application of that rule to fact situations. Very often, the professor’s approach to class will give you some clue to his or her likely approach to the exam as well. However, you should not rely on the professor’s class approach to project how they are likely to test. You need to also practice taking exams used by that professor in the past. Another aspect to knowing the professor’s preferences is reading the instructions on the exam. At least two or three people every year receive substantially lower grades than they might have, simply because they did not read and pay attention to instructions. Finally, ask the professor and your fellow upper-class students what skills, subjects or approaches to emphasize in a particular course’s exam.
Visit lawdibles.classcaster.net for the podcast related to this chapter: Outlining for Law School Exams.