Chapter Six: Taking an Exam
The day has arrived. Your final exam sits on the desk in front of you. What do you do with it?
Remember your goals
The primary tasks in writing an exam answer are:
Analysis. Analysis includes spotting issues and creating arguments, alternatives and applications of the law to those issues. For many examinations, issue spotting constitutes the most important aspect of the test. You must be able to efficiently and accurately identify as many issues as time permits. Just as in identifying issues in preparing a case brief, spotting issues on an exam requires understanding what an issue is and knowing the course materials well enough to recognize the issues in a fact pattern. Some students readily identify issues of law, requiring a choice between different rules or different interpretations of a rule, but miss the issues requiring application of the rule to the facts.
Some students do poorly on examinations because they are too “bottom line” oriented. They will ignore possible issues because they simply identify what they see as the “most important” issue. Or they will see areas of conflict (issues) but perceive that one or the other side has a much stronger position and so will simply conclude that the issue is not worth extended discussion. Be sure to ask yourself, “but if that’s doesn’t resolve the issue, the next argument/issue is…”
Knowledge and Understanding. You must be able to demonstrate that you know not just the rule, but why it applies to the specific facts before you. This means that you must be able to work with the relationship between legal rules. For example, many hypotheticals ask about wrongs that can be characterized a number of different ways — murder & manslaughter, for example. With these questions you should be able to demonstrate your understanding that the facts present a number of possible “causes of action”, using an organizational technique that demonstrates your understanding of the relationship between these wrongs (e.g., “at least — at most” or “first claim — fallback). Where several causes of action have an element in common, (intent, for example) deal with that element only once and simply refer back to that initial analysis for each subsequent claim (Note: use this internal reference only within a single question/hypothetical — do not refer back to prior questions because many professors grade each question separately).
Applying the law to the facts. Students need to apply the rule(s) to as many of the facts as are legally relevant (which, on most exams, is just about all of them). Some common errors in fact application include: failure to use the facts (mere statements of the law are not enough); restatement of the facts (repeating the facts without drawing inferences from them in legal terms is not using the facts); mere juxtaposition of the facts without explaining analysis. Probably the most common error is making statements of conclusions only. Point out even painfully obvious steps in your analysis. It is equally important to make legal principles clear. Be sure to define all legal terms and list all elements of a claim. Do not assume that your reader will know either what A or B is or how you got from A to B. Be explicit, complete and clear.
Exam-taking techniques
Come prepared. Being prepared means, first, academic preparation. You need well-organized materials that reflect mastery of the subject, clear expectations of what is expected of you and a checklist of issues/subjects to look for on the exam. Beyond this obvious preparation, however, you need to be physically prepared. Be well rested. Cramming the night before the exam can never give you the edge that a clear, well-rested mind can. Have supplies in hand: enough pens, pencils, clock or watch, food, exam number, etc. Be sure to bring your textbooks, class notes and outline if the exam is open book. (Although you should never expect you will have time to use them). Finally, prepare yourself psychologically. Focus on the now. Try to focus on this exam only without thinking about how you have performed in any other test-taking situation. Focus on you. Do not worry about how friends and other students are doing. Wear blinders and earplugs if need be. Be confident. Assume that you will do well and do not worry about the negative consequences of failure.
When you begin the exam, read the instructions on the exam carefully. Note how many questions there are and how much time you should allot to each one. STICK TO THAT SCHEDULE! Keep in mind that in a 20 point question, the first 5 points are a lot easier to get than the last 5. An extra 5 minutes spent on a question may not pay off, while unanswered questions will most certainly receive zero points.
Next, read the question. On your first read: read the question quickly, to identify: Who are the parties? What kind of question is this? (Analyze, argue, identify — open ended or guided). Read the call of the question carefully. Read the exam a second time to extract the pertinent facts (some professors include only relevant facts, others include many irrelevancies to test your discernment) as you read each fact, ask yourself: “does this fact raise a legal issue?” Some facts will be relevant to several legal issues.
Identify the relevant law. Jot down the claims and defenses that will be made for each party. If the exam is open-book, simply rip out the relevant pages from your outline and note “A v. B” or “first sale” on the top to indicate which general facts apply. Refresh your memory of the elements of each cause of action (mentally or on your outline).
Read through the exam question one more time carefully. By color, number or brief note, indicate the legal relevance of each fact to the outline of issues you have constructed. Be sure to keep one eye on the clock. Relax and breathe deeply, because this step is the most important and you need a clear mind. You are not writing an answer here, only identifying the material that will go into your answer.
Organize and write your answer. Decide upon the logical relationships between the controversies and block out the controversies to deal with one at a time (you can organize according to parties — A v. B, B v. C, C v. A — or according to transactions — first offer, written response, second offer. Use an organization scheme that identifies the issue or controversy or position that you will focus on and then identifies that portion of the law relevant to that issue. Next analyze, argue, and generate alternatives for that rule’s application to the facts creating the issue. Finally, draw a conclusion. This is sometimes called the IRAC (issue-rule-application-conclusion) formula, but it is really simply good organization and logical development of an argument. The key here is the “A” part — providing lots of logical analysis and reasoning and “but if” “even so” “on the other hand” arguments. As one law school teacher has noted; “Analysis is key – give an A; get an A.” Each paragraph of your answer should serve a purpose. Most answers should look like this:
A would argue that B’s actions constituted (claim). (claim) is (defined). In order to prove (claim), A must show that (elements).
The first issue, then, is whether (element 1) exists. (Element 1) requires proof that (explanation of element 1). A would argue that (fact 1) is (element 1) because (explanation of reasoning). Another fact indicating that (element 1) is (fact 2) because (explanation of reasoning). B would counter that (facts 1 and 2) are irrelevant because (alternative analysis of element 1’s requirements). Also B would argue that even if (element 1 is as A says), (facts 1 and 2) do not prove that element because (explanation of alternative inferences from facts). Finally, B would argue that applying (element 1) as suggested by A would undermine the purpose of (claim or element). That purpose is (policy or goal of law). By accepting A’s analysis (explanation of reasoning of why policy wouldn’t be served). Because (what you consider to be the most important factor in the analysis of this issue), (party) will likely prevail of this issue.
The second element that must be proved is… etc.
As you complete each section of the answer, quickly review the question to see if you left out any important facts, and review your outline to see if you covered all the legal elements. Does your answer make sense? Does it answer the question asked? Finally, proofread. Always leave at least two minutes. Proofread the last part of your answer first.
What do you do if you get stuck? First, RELAX! Do not let difficult questions or time pressure shake your confidence — tell yourself “If this question is difficult for me, it is going to be difficult for everyone else.” Take a deep breath, sigh, think a happy thought and smile, roll your shoulders and relax your jaw, say a little prayer, and dig back into your analysis. If you’re not sure what’s going on in the problem, try…
· Reading again, more carefully.
· Using a different part of the brain. Drawing a picture or diagram is often a good way to get going.
· Using some common sense. Try anything that makes sense to you. On occasion, professors may ask a question to test your general problem solving/ common sense solutions. Any analysis is generally better than a blank sheet of paper
· Rests (briefly–1-2 minutes) after you’ve been trying a while. Get up and stretch. Then try again.
Some General Tips
1. Use labels to organize your discussion. This can also help you double-check to make sure you’ve covered everything. For the same reason, you may want to underline key elements.
2. Unless you are told otherwise, write on only one side of the paper, reserving the left-hand side for issues or arguments that you think of later.
3. Watch your language use. Although no professor expects perfect writing on an exam, you should be careful to avoid slang terms and colloquialisms as well as unnecessary lawyer jargon. In particular, avoid too many abstractions – use concrete, specific language.
4. Avoid the interrogative trap – rhetorical questions that tend to be conclusory are dangerous on an exam. They often pose questions which introduce extraneous issues and invite unwanted responses from the reader. They never substitute for analysis — which is how they are often used.
5. Avoid excessive abbreviation – define all abbreviations use, don’t overuse.
6. Think before you write. Don’t continue to write when you’re befuddled. Stop, breathe, think, write.
7. Don’t be funny. Don’t try. Ever. Others will give you contrary advice. They are better wits and prefer more risk than I do.
8. Be legible. If your handwriting is poor, at least write large and in ink. Better yet, print or type.
9. Allocate your time.
