Legal educators often don’t feel compelled to teach exam-taking techniques for a couple of reasons. First, the main function of an exam is to place students on a grading curve according to their scores. Unlike in college, where some students study harder than others and consequently know the material better, in law school it is common for virtually all of the students to have learned the law thoroughly. This fact makes it very difficult for law professors to place all of their students in different places on the grading curve. Thus, if some students apply good legal reasoning skills and some don’t, deriving the grading curve becomes easier.
Second, many law professors believe that there is a direct correlation between intelligence and the innate ability to analyze a problem like a lawyer. Because of this belief, they’re reluctant to upset the natural balance by teaching exam-taking skills to anyone. While there is some correlation between IQ and law school success, it’s not uncommon for very bright students to do poorly because they lack legal reasoning skills or don’t how to write an exam. The good news is that the technique of legal reasoning can be taught just as easily as the technique for playing the piano.
Three Principles of Legal Reasoning
If you’ve had or are currently in a first-year legal writing course, you probably learned some of the basic principles of legal analysis when you learned how to write a research memorandum. There are three main principles to be aware of.
First, analyze by individual issue, not holistically. Don’t oversimplify. When you look at a complex legal hypothetical, you may be tempted to boil everything down to a general observation or conclusion about the applicable law and likely outcome. At all costs, you must avoid this temptation. Legal hypotheticals simply cannot be analyzed in an overall manner like this. Rather, they must be analyzed part-by-part, issue-by-issue.
Second, spot every issue, but only elaborate on major issues. Don’t overwrite unimportant issues. Legal rules are generally comprised of several elements. For example, negligence consists of four elements: duty, breach, cause and damages. Typically, when an exam hypothetical calls for the application of a rule, some of the elements will clearly be present and some will not be. When you write your answer, you should merely touch on the elements that are clearly present, in order to show that you know they are required. However, you should spend ample time discussing elements that are not clearly present or are in dispute.
Be careful when determining whether an element of a rule is in issue or not. Sometimes your feeling that an element is clearly established may be wrong, and there may be arguments on both sides. Before deciding to treat an issue summarily, satisfy yourself that no colorable arguments can be made against it.
Third, analyze every major issue from both viewpoints. The ability to analyze facts objectively is an extremely important lawyering skill. When you begin practicing, clients will frequently ask your opinion concerning their potential civil or criminal liability, or the liability of others, for past or future acts. With the threat of a malpractice suit looming in the background, you will almost never make statements that suggest a party is definitely liable or not liable, or a questionable act is definitely legal. Rather, you will limit your answer with disclaimers and couch it in a consideration of arguments on both sides.
To be sure, this tendency of lawyers to hem and haw drives clients crazy and is one reason people hate us. Nevertheless, it is a method that you will use frequently when you practice and should begin using now on exams. Whenever a legal proposition is subject to differing interpretations or outcomes under the facts, you must present every argument you can think of both for and against the proposition.
In other words, don’t try to solve the problem – just analyze it.
Before the Exam
When you arrive at the exam room, try to avoid discussing the law, potential issues, likely questions or other matters pertaining to the exam or the course with others before the exam. Such last minute conversations are likely to confuse you or sap your confidence. Another student may advance some abstruse policy argument of which you were unaware, or state a legal rule in a different way from the way in which you are accustomed. You probably won’t learn anything from these discussions, and you risk becoming confused or agitated.
During the Exam
You may want to wear earplugs during the exam. If sounds of paper rustling, chairs creaking and people coughing are likely to be even marginally distracting to you, then earplugs are a wise investment. These things always distracted me, and I wore earplugs routinely.
Don’t let yourself get intimidated by the exam or by other students. In an open-book exam you’ll see students with all sorts of hornbooks and other materials, including some that you didn’t even know existed. Your natural tendency may be to think “Wow – if they have all those resources, they’ll probably do better than I will.” In fact, few students will (or should) use their materials during an exam, and those who use their materials extensively will almost certainly do worse than you. Except for a course outline or codified rules such as the UCC or the Federal Rules of Evidence, most secondary materials will at best be only marginally helpful.
After the Exam
Unless you enjoy feelings of anxiety, regret and remorse, don’t talk about your exam when you’re finished. Instead of giving you a warm fuzzy feeling, post-exam conversations will usually leave you with nagging questions and doubts. If you have other exams left to take, allowing yourself to slip into a negative attitude can be destructive. There are many ways to write a good exam answer, and you’re not going to spot every single issue or argument on an exam. You might as well move forward with the attitude that you did well, and let your professor be the judge.