Unlike problem questions which require you to apply the law to fact patterns, law essays require you to resolve a legal controversy of some kind. This can sometimes seem a daunting and impenetrable task. However, by understanding what is required of you, and following some basic principles to understand the question, formulate your arguments and structure your answer, you will soon find that excellent marks are in your grasp.
An outstanding law essay requires:
A clear and well-defended thesis, which requires
Clearly identified legal authority, which requires
Sophisticated legal arguments, which require
Critical evaluation and analysis, which require
Clear and precise organisation, which requires
Simple, concise and direct language
This guide will gives practical guidance on how to achieve these things.
While the writing of a law essay requires the same skills as a problem question, those skills are used and evidenced in a slightly different way. This guide will demonstrate the skills that are needed to translate your legal knowledge into a first class essay.
Very few law schools take the time to teach their students how to write legal essays, and even fewer do it well. However, good essay technique is fundamental to achieving a good grade on a dissertation, term paper or exam answer. While good essay technique cannot be used as a substitute for solid legal understanding and knowledge, understanding the law is not itself enough to guarantee a good performance in essays. That understanding must be applied in a concise, structured and critical manner in order to achieve a top grade. This guide will show you how to achieve this goal.
1. What all good essays have in common – some basic points
All law schools have explicit criteria regarding what constitutes a first class essay, an upper second, a lower second, and so on, and these may differ superficially However, there is an overwhelming consensus regarding what is required to achieve a high mark in a law essay, whether as an assignment or an exam.
All first class essays will include:
- Attention to detail when considering the precise requirements of the question. A good essay will not talk generically about a subject, but will seek to address the precise controversy raised in the wording of the question.
- An in-depth understanding and knowledge of the relevant law, accurately described.
- Clear structure and a stated and well-defended thesis (argument).
- A demonstration of the wider context within which the law exists. This may include the relevant policy considerations, the historical development of the law and its genesis, and the academic controversies which exist regarding this precise area of the law
- An excellent critical approach in answering the question posed, involving analysis and evaluation, as well as accurate description of the ‘black letter law’. The best candidates demonstrate creativity and flair in their answers, and engage in lateral thinking.
- The inclusion of less obvious points of law or analysis.
- Appropriate use of sources, supporting arguments and ideas.
- Correct and appropriate use of quotations, paraphrasing and citation.
- The consideration of opposing arguments and sources.
- The exclusion of irrelevant law and arguments.
- Excellent style, concise writing, and flawless grammar and language. Poor style will only hinder the marker from identifying your arguments. The key to good style can be summed up in three words: Keep it simple!
Marks will fall into the second class, and then third class, or lower, as these principles are departed from. The less you abide by them, the lower your mark will be.
You will notice that almost all of the points are connected to organisation, technique, style and organisation in some way or another. Knowledge of the law is of course paramount, but it will not be enough alone. In order to score a high mark for any essay you must use good technique and structure. It does not matter how well you think you know the law, a poor essay technique will mean a lower grade than you deserve, perhaps considerably lower.
When you write an essay, compare it to the list of criteria listed above and consider how many of the requirements you have met. You will be surprised how accurately. In the following sections, you will find detailed guidelines on how to improve different aspects of technique, helping you to perfect your essay-writing skills.
2. Common pitfalls – What to avoid
There are some very common mistakes in terms of essay-writing style that can be pointed out immediately. You should always try avoid these:
- Students often write in a casual, informal or insufficiently academic style. ‘I don’t think that he is right’ is poor style in a law essay. ‘The author’s argument is unconvincing [for the following reasons...]‘ is far more appropriate.
- Colloquialisms, slang and spoken abbreviations should always be avoided. ‘Does not’ instead of ‘doesn’t’.
- Make sure that you write in full prose. This means writing in full sentences, in paragraphs of appropriate lengths (not to long, not to short – just enough for your point to be made). Do not write in incomplete sentences or in lists or bullet points. As you will see, writing in complete prose allows you to engage in evaluation and analysis, a key component of a good essay.
- Students do not cite cases or legislation correctly. Law schools have different rules regarding this matter, and those rules are usually different for dissertations, shorter essays and exams. Make sure you learn the rules and apply them. There is no reason to lose marks for something so silly.
- Ensure that you credit your sources. This is the number one rule in legal argument, and in legal essay writing. Without a source, legal argument is almost meaningless.
- Similarly, do not simply cite sources for no reason. This is remarkably common. Know why are citing a case, for instance.
- Do not forget to respect the formatting requirements that your law school dictates.
3. What is an essay asking you to do? The importance of having a thesis.
Essay titles will vary greatly, from long quotes to short, sharp questions. In essence, however, all essays will require you to ‘discuss’ some legal controversy or other. Indeed, many essay questions will include the instruction ‘discuss’. What that thing may be will vary, and will be considered below. However, what many students misunderstand or ignore is the need to resolve the controversy.
Some students live in the mistaken belief that you must simply ‘take a position’ or ‘take sides’ in the controversy that you are discussing. While this may be a tactical device that you may need to adopt in an emergency, it is not a healthy practice in general. What an essay must do is propose, discuss and prove a thesis, that is to say a way to resolve, to answer the question that has been. What is important is not that you do not consider other potential arguments, but rather that you consider and disprove them. Very few students seem to appreciate the need to prove their arguments, or even to have an argument in the first place. An essay without a thesis is very unlikely to achieve a high grade, and will prove far more difficult to answer, structure and write.
Whereas problem questions will ask you to resolve many separate legal problems, an essay will ask you to resolve perhaps one or two. As such, the entire essay must be dedicated to the resolution of this issue. While in problem questions, the order of the question will be a failsafe guide in terms of structuring your answer, essays are far more difficult to structure and write. Because they leave more freedom to the student, you must take far more care over your thesis, arguments and structure. However, this freedom also means that a good essay will stand out more easily than a problem question, where all satisfactory answers will resemble each other.
While a good essay requires detailed argumentation and legal analysis, its thesis should be capable of being summed up in a sentence or two – indeed these may constitute your conclusion. Your essay should prove this conclusion, and disprove competing views.
In order to do this you will need to be able do several things: Understand what different types of essay are asking you to do, understand how to engage in legal analysis and answer the question, and how to structure this legal analysis into a coherent and successful structure. The following sections should help you in understanding how to do these things.
4. Working out what is being asked
The wording of essay questions can often seems obtuse. Have a look at an exam paper of a law module that you have not yet studied; at least some of the questions will seem complete enigmas, alluding subtly to controversies and issues that you cannot possibly hope to identify, let alone resolve. This may also seem to case with essay questions on subjects that you do know well ad ave revised thoroughly. Lots of candidates in exams are put off answering essay questions because they seem to ‘vague’ or ‘obtuse’. However, these are often the questions that best allow candidates to show off their legal knowledge analysis. What you need to be able to do is identify what the question is asking you to do.
Firstly, almost all questions will be alluding to a controversy that you are familiar with. These questions are asking you to discuss and resolve this controversy through legal analysis, proving your thesis, as discussed in section 3. Try and identify the controversy that the question is alluding to. Sometimes the question will be a quote which rather than ask a question, actually proposes a answer to a question.
Take, for instance, the question:
“The TOLATA does not sufficiently displace English land law’s obsession with the commodity value of land.” (Joe Bloggs). Discuss.
What is this question asking you to do? How do you go about ‘discussing’ this (fictional, but very realistic) quotation? The first rule is to understand that such quotations are in fact a potential conclusion to a question. In order to ‘discuss’ it, you must first identify the question that it answers and understand the arguments that could lead to this conclusion. You are in essence being asked, not to consider the quotation as such, but to reconsider the question that it is asking, and as a consequence, consider whether this is the correct answer to that question. As such, you need to consider counter-arguments to the conclusion that is hinted at in the quotation. These arguments will usually be familiar. The same controversies always arise in the same modules, even across different questions. What is being asked of you is to apply that particular aspect of the law to that controversy.
So, what is being asked in this question? The broad controversy in land law is whether property law should protect the valuable use of land, or whether it should protect the commercial value. In the case of TOLATA it is whether the numerous rights that are given to beneficiaries (right to occupy etc) are sufficient, or whether they should be extended to give more rights to people who live on land. The first step in answering this question is to understand that this is what is being asked of you – you must resolve this dispute with a thesis (your answer) proved by legal argument and analysis in a good structure.
The same controversies arise again and again in law essays, with merely different emphasis on where to concentrate the focus of your answer. Just as problems questions will always focus on the ‘margins’ of the law – the areas where the law is less clear, essay questions will (by and large) focus on areas where there is general disagreement. Understanding where these areas lie will help you identify what a question is asking. While essay questions may seem complex or difficult to understand, this is not usually their point. Unlike in problem questions, where there will often be red herrings, or tricks to knock you off track and try and catch you out, essay questions do not generally do this – they are looking to inspire your answer by being controversial and thought-provoking. A word of advice though – just as you should not merely ‘take a side’ in a controversy, do not think, as some students do, that the best course is to merely disagree with the quotation or essay’s wording. You should give an answer which considers the argument fully and resolves it in a clear thesis.
5. Different types of essays
While essay questions can take an infinite number of forms, they can generally be grouped into three types, each of which requires a slightly different form of answer. However, they all still require a thesis, analysis and a good structure,
A. Legal theory
Questions on legal theory are asking you to discuss why the law takes the form and shape that it does, and to discuss its merits. Lots of candidates perform poorly in essays because they fail to understand this aspect of essay-writing. They do not require you to merely discuss what the law is, but also WHY it is like this and/or whether it should be like this. This is probably the most common form of essay question.
Here are some examples from different subjects:
- “The rules of offer and acceptance are no longer suitable for modern transactions.” Discuss.
- Could Community law have achieved any effet utile without the mechanism of direct effect?
- Tort law has no coherent uniting thread. Discuss.
- The Separation of Powers has no place in the UK Constitution. Discuss.
B. Legal reform
Legal reform questions can take two principal forms: those questions which ask you to evaluate a recent reform of the law, and those which ask you to consider whether a certain area of law should be reformed. These questions require you to engage in the same process as legal theory questions but put greater emphasis on the comparison between two different legal solutions to a problem (either new and old, or current and future). To answer these questions you need be familiar with the problems with the past (or current) law, and the ability of the new (or proposed law) at resolving these problems. Identifying these questions is relatively simple – they will draw attention to a recent change in the law (such as legislation or a landmark case) or ask you to suggest such a change.
Here are some examples:
- The Contracts (Rights of Third Parties) Act 1999 has not resolved the problems it set out to resolve. Discuss.
- The decision of the ECJ in Viking has resolved the tension between free movement and freedom of association in a satisfactory manner. Discuss.
- How should the law of manslaughter be reformed?
- The law regarding charitable trusts is now settled and satisfactory. Discuss.
C. Legal history
Legal history questions are asking you to pace more emphasis on a gradual change in a certain area. They still require you to consider the issues of legal theory and legal reform, but place more emphasis on the historical changes that have occurred. In some ways, legal history questions may seem more appealing, and they are easy to structure (chronologically) and seem to involve less ‘risk’ if you know the cases and legislation well. This may be true to a certain extent, in order to achieve a second class grade at least. However, legal history questions which achieve a high mark still require legal analysis, a thesis and a good structure. A list of cases or statutes can only get you so far. You still need to be creative in your answers, perhaps more so, as questions like these will often generate many similar answers for the marker to go through. If you look at the wording carefully there are usually not only asking you to list facts or trends but also critically evaluate those trends, just as with legal theory questions.
Some examples of legal history essays:
- The requirements for locus standi in UK courts have become too relaxed over time. Discuss.
- “Legislative reform has pushed land law closer and closer away from a system based on flexibility and fairness. ” (John Doe) Consider this statement using legislation passed since 1925.
- Direct effect is a doctrine which has lost its coherence as it has developed. Discuss with reference to relevant ECJ jurisprudence.
- Has the scope of labour law kept pace with new employment practices?
There is a fourth form of question, which is the purely theoretical legal essay question, which is usually limited to jurisprudence or legal philosophy. This will require you to consider theoretical controversies in a more abstract manner. However, such questions do no depart as far as one would imagine from the principles discussed above, but rather require greater emphasis on the theoretical merits of arguments.
While it is paramount that you are able to identify which kind of question is being asked, it is important not to overstate the difference between them. The difference is one of degree; all three questions still require the same basic tenets of thesis, legal analysis and structure. However, it is important to be able to differentiate between these different kinds of questions. Where the focus is on legal theory an unthinking ‘trotting out’ of the history of a doctrine is wholly inappropriate. Similarly, where the focus is on legal history, you should not simply focus on the most recent reform.
6. Legal Argumentation – Sources
So, you have your thesis, having correctly identified the area that has to be examined and what type of question it is. How do you go about writing your essay? This requires two elements – good legal argumentation and good structure. Here we look at how to engage in legal analysis and evaluation, and in the following part we look at how best to structure those arguments.
Essay questions may seem to be looking for an opinion, and indeed they are on some level. However, they are not looking for opinion of the sort you would find in a casual conversation about politics in a pub, or about last night’s match over lunch. Legal argumentation – analysis – must respect certain principles.
What form does legal argument take? While this guide will give you an excellent overview of how a law student should structure his arguments, the best way to learn is from judgments. Some tutors will insist you read lots of cases, while others will place less emphasis on this. Whatever they say, there is no better way to learn to reason like a lawyer than to read judgments, in particular Supreme Court (formerly the House of Lords) and European Court of Justice cases. This will also help immensely with answering problem questions. Another great way of understanding how to structure critical legal thinking is to read academic articles, beyond your simple text-book reading. These articles will often appear on your reading list as extra reading. Reading them will give you concrete examples of the kind of how to resolve the controversies that law essays require you t resolve.
Reading cases and academic articles will help you in a more fundamental manner when it comes to legal argument however. They are examples of the most crucial component in legal analysis – sources! When identifying, evaluating, analysing or criticising the law, the most important thing is the source of anything you say. In law what determines an argument’s validity is not primarily its logic or its attractiveness but its source. In essence, just as important as what is said is who said it. This is the principle of authority
There are fundamentally two kinds of authority in legal argument: Binding authorities and unbinding authorities. Both are fundamental to a good argument in a legal essay.
A. Binding authorities.
When you identify a legal principle you must identify its source. Binding authorities tell you what the law is: these almost exclusively stem from either case law or legislation. When you try and explain the current (or past) state of law, you must be clear in your attributing any principle of law to a source. A principle without a source has no validity at all. Similarly, however, you must not cite sources for no reason, or simply cite sources at random. Principles and sources must only be used where they are relevant.
Where considering the law in a particular area, you will need to identify the general rule, and, where applicable, the exceptions to that rule. Without sources this is impossible. The basic rule is: What is the principle? What is the source?
While in problem questions most of your answer will be dedicated to this task and applying in to the facts of the question, in essays the identification of the correct principles and sources will usually require less time and will cover fewer principles. This is because more emphasis should be placed on the consideration of the second kind of legal authority: non-binding, or persuasive authorities.
B. Persuasive authorities
These are crucially important in questions of legal theory and legal reform, and play a very important role in legal history essays. At least some persuasive authorities must be considered in a law essay to achieve a good grade.
- ‘Public Policy’. Public policy is the broadest form of non-binging authority, and is often poorly used by students in law essays. Public policy covers all forms of political and moral argument which can be applied to the law. It can be used to criticise or praise law or legal reform, and used to propose new laws or explain historical changes in the law. Public policy arguments must be used precisely however. Firstly, they must be identified correctly. You cannot simply say ‘this law is unfair for public policy reasons’. You must identify and explain those reasons, and then further explain how they apply to this area of law. Also, you must always consider the opposing view. If the use of constructive trusts in the context of the family home is unfair because it penalises women, what is the argument that justifies the approach? Only if you consider such counter-arguments will your use of public policy be successul.
- Legal commentary. All good law essays contain the principle and source of legal commentaries, that is to say articles and case notes written by academics. The identification of an academic’s argument and its citation, and it’s application to your current essay is a great way of increasing your mark, especially if you engage critically with the commentary, considering its validity, either on your own or by making use of other academics’ views. Remember: if you use someone’s ideas, mention their name, and the source. Without the name it is at best aimless and at worst plagiarism; with the name is great use of persuasive authority.
- Dissenting judgments. The use of dissenting judgments is a tell-tale sign of a top-class student. You can use them to give extra weight to your arguments, and serve the purpose of demonstrating to your marker that you have read cases.
- Legislative papers/Proposals for reform. Green and white papers, draft Bills of legislation, Law Commission reports and Commission proposals are all excellent sources of non-binding authority. They are of particular use in legal reform questions.
- International law. Because of the structure of English law international law is not immediately incorporated into our legal system. As such, it is a non-binding authority which can be used to support a claim in legal theory essays.
- Law from other jurisdictions. It is often useful to look at the solution of other jurisdictions where there is a gap in English law, or you have made a case for reform. As such, this form of non-binding source is particularly appropriate for legal reform questions, but can also be used in legal theory questions as a point of comparison. Because of their similarity in structure and use of similar concepts, other common law systems are most commonly used, but you should not feel limited to those systems if you think a different legal system offers a better solution to a legal problem.
A good essay will contain the correct mix of binding and persuasive authorities. It is impossible to write an outstanding essay without including both. One is not enough.
Some more tips on using authorities:
- Always obey the rules at your law school regarded correct citations.
- Use quotes and paraphrasing where appropriate. Do not make the mistake of including long quotes, especially from statutes, where concise paraphrasing would be more appropriate. However, a brief quote from an academic or judgment, when it makes a good point succinctly is often very impressive.
An essay question will give you strong clues regarding both which types of binding and persuasive authority you should focus on. While it is important to always use sources, you must always ensure that these sources are relevant to the question that has been asked. Using the wrong sources will not help you answer the question, and will no get you a better mark. Remember what we went through regarding identifying the content of the question, and the type of question that is being asked. Where a source is not helpful in discussing your thesis in response to this question, it should not be included. Do not fall into the trap of trying to show that you know everything about the law.
Structure is a crucial element in all essays; a good essay must have a good structure. How do you go about structuring an essay? There are no cut-and-fast rules regarding how to structure a law essay, but there are several principles which you should always respect. Remember what we discussed in part 3 regarding the importance of having a thesis. This thesis should provide you with a ready-made structure for your essay – you must structure your essay so that it supports your thesis. Those essays which lack structure are almost always those which are lacking a thesis. Structuring an essay without a thesis is almost impossible. Writing an easy without a thesis or structure is almost impossible, and will produce a painful read for the marker.
Many students do not appreciate the fact that they must organise their legal argumentation so as to support their thesis. Their introduction should inform the reader of the thesis, the body of the essay should examine the various arguments for and against this thesis in a clear and precise manner (see section 6) and these should lead logically to your conclusion. The ‘substance’ of your essay (your legal argumentation) should come in the middle paragraphs.
There are several ways of structuring an essay.
- A. The five paragraph essay
Perhaps the best way of structuring an argument is the classic ‘five paragraph’ structure. There is nothing sacred about there being five paragraphs – there may well be more – but this basic structure is a good basis for any essay, whatever the thesis. It can be illustrated graphically like this:
As you can see from the diagram, this kind of essay involved an introduction where you explain the thesis that you will defend, three paragraphs which critically assess (using the correct forms of legal argumentation discussed in the previous section) three supporting arguments for your thesis, and your conclusion sums up the findings of these paragraphs. This will ensure that you have a concise and focussed analysis of relevant factors, without straying from your overall thesis.
- B. The ‘French’ method: Thesis, antithesis, synthesis.
This structure might be more suited to more focused essay questions where you need to consider fewer issues but in greater detail.
As you can see, the introduction and conclusion fulfil the same role as in the five paragraph essay, however the middle ‘substantive’ paragraphs consider first a the arguments for a particular proposition, followed by a paragraph against that proposition, with a third paragraph which seeks to resolve the tensions between the first two paragraphs. This is a difficult essay structure to pull off successfully and candidates may often lose their way more easily as compared to the more focused five paragraph structure. However, it is possible to write an excellent essay using this structure.
- C. The historical overview essay
As the name suggest, this form of essay is best suited to those questions which fall into the legal history category considered in part 5. It could be illustrated like this:
In a historical structure, the paragraphs are used to separate separate strands or periods in legal history. While this form of essay might seem to be very appealing in terms of easy structure, beware! It is more difficult (but not impossible) to include a strong thesis and advanced legal argument involving persuasive authority rather than just a list of binding authorities. You still need to include this thesis in your introduction, and your conclusion.
Some more general points.
There are no rules regarding essay structure, and several more basic structures could be listed here. Feel free to be more creative with structure, but bear in mind that you should only change the structure of an essay to the extent that it helps to back up your thesis.
Some more general points of advice include:
- Avoid long, scene-setting introductions or over long opening paragraphs
- Do not spend too long on one aspect of your middle paragraphs. Give each point more or less equal weight.
- Do not, as a general rule, introduce new points in your conclusion (with the exception of a proposal for reform in legal theory or legal history essays). While a twist may occasionally make for a very entertaining essay, generally speaking your conclusion should simply reflect what you have proven in your substantive paragraphs.
8. Be creative
This guide, if followed, will certainly improve your essays immeasurable, however it cannot teach you the most effective way to achieve a good thesis and exceptional legal analysis to prove that thesis: Creativity. You must be prepared to think laterally and creatively – use all your intellectual flair – to apply to legal knowledge to the question your are answering. In law essays, you will often have to consider issues from different parts of the syllabus, or even outside the syllabus in the case of public policy arguments. However, this does not mean that ‘anything goes’ – far from it. A good essay will be rigourous in its legal argumentation and use of authority, but creative and original in its thesis.
What's Being Tested?
In most law schools, the exam counts for the entire grade in a course. Your class participation might count only if it is extraordinary. It's entirely up to the professor. Needless to say, this puts enormous stress on students to perform, which is all the more reason to understand exactly how exams are given and what the professor is looking for.
Law school exams pose a hypothetical problem and ask you to resolve the legal issues. Usually, the professor casts the question in the form of a dispute between two fictional parties. Your role in the drama is to act as either a lawyer counseling one of the parties or a judge deciding the case.
The professor tests two skills.
- Issue spotting and
Issue spotting requires you to know what factual circumstances signal various legal problems for your client.
Analysis requires you to apply the rule of law to the set of facts. Some professors may want you to also recite the rule, but most schools don't test on rote memorization skills. After all, you can always look up the rule of law. Professors want to test whether you know when a problem is present (i.e. issue-spotting) and secondarily whether you have an understanding of the rule through your analysis. Usually, there is no right answer to the dispute. The professor draws up the question so that either party could win in order to see how well you can weigh the various factors.
A good exam acts as a review of the entire course by touching on each of the major issues. Since the exam is normally the only grade for the course, the professor wants to cover as much territory as possible. Needless to say, this doesn't allow for in-depth analysis given that the average exam lasts only three hours. Consequently you only have time for a big picture analysis. Another way of putting it is that the writing should be wide and shallow. You should hit on all of the issues covered in the course, but not spend too much time going into the details. In the words of one professor, the best exams have the character of inspired superficiality.1
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Know Your Audience
The first principle of exam writing (or any writing for that matter) is to know your audience, then write specifically for that audience's level of understanding. Your audience is one person - the professor. Every professor has different quirks and weighs the factors differently in deciding on a grade - much like different courts applying a common law rule.
You should ask your professor what she values in an exam. Some will insist that you state the rule; others favor policy arguments. Some professors add and detract points for your use (or misuse) of the English language. Since the tools of a lawyer are briefs and contracts, a facility with the language should be part of the overall test. Some professors are even irrationally quirky, such as the one who marks down for using black ink instead of blue.
Questions to ask your Professor before the exam:
By listening closely during semester, you should have a good idea of what type of person your professor is. Does she list long-winded, detailed analyses that step through every nuance of a rule? Or does she like quick answers that are based on broad policy concerns?
Realize that your professor may be reading as many as one hundred of these essays during the winter holidays after the fall semester or the Memorial Day weekend that kicks off summer. Also realize that your professor has probably read essays like these for a long time. In other words, your professor has seen it all. The point here is that it pays to be brief and to get to the point. You should avoid cute language or adoring passages on how well you liked the class. Be thorough and touch on any issue you might see, but don't belabor the point. You only get so many points
How Professors Grade
Ultimately, professors have to come up with some sort of point system for grading; otherwise the subjective quality of essays would result in unfairness. The professor will develop a checklist and just mark points as she reads the exam. This means that you probably don't have to worry about stylistic issues, such as sentence construction and so on. The professor is looking for concepts, not grammatical mistakes. Be aware, however, that good writing is likely to be appreciated.
The most conscientious professors will read the exams three times. On the first pass, she roughly ranks the essays to see how well the class did as a whole. This gives her a benchmark against which to grade each exam. On the second pass, the professor actually scores the exam. On the last pass she just flips through the exams to make sure that she got it right.
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The First Ten Minutes of the Exam
Step One:Take three deep breaths. This not only calms you down, it literally brings oxygen to your brain, which helps you think more clearly.
Step Two:Get the big picture. Spend one minute and flip through the entire exam to get the big picture. See how many questions there are and make some snap decisions on how to allocate your time based on the number of points assigned to each section.
You should also note the nature of the essay questions. For a Torts exam consisting of three questions, for instance, you know the teacher is likely to ask one question about each of the major areas - intentional torts, negligence and product liability. Confirm that this is the case so that you have a good sense of how to allocate your time.
Step Three:Allocate your time. One of the big mistakes students make is to thoroughly answer the first three questions and leave only a scant answer on the fourth essay. Getting an overview and allocating your time allows you to pinpoint when you have to move onto the next issue.
You should even allocate time within each essay question so you know how much time you have to spend on each major issue. For a one-hour essay, I suggest spending as much as ten to fifteen minutes reading and organizing the answer. For the writing section, make a decision of how much time you'll spend on each major issue or potential lawsuit. Just split the time evenly among the issues. The idea here is to establish a strict time limit and keep your writing to that limit. Once, the time expires, move onto the next essay.
Step Four:Read the first question twice. On the first pass, make notes in the margins of the big issues. Pay attention to the call of the question. What is the professor asking you to answer?
Many students have programmed themselves to write a completely thorough answer the minute they spot an issue. However, sometimes the professor may provide enough facts to do a complete analysis but really only want you to answer a specific question about the case. Be sure to note that one of the things professors like to test is whether you can follow directions.
Step Five:Outline an answer. See below.
The Critical Step of Outlining an Answer
Most students start writing as soon as they read the question. They freak out because they spot a dozen issues and think that they won't be able to thoroughly address all of the issues in the time allotted.
It pays to think before writing. Outlining helps you spot the issues. Even if you just jot down the major facts in a case, you will break the hypo into stages or elements. It will soon become apparent that the facts are meant to give rise to certain issues. If your professor has constructed an issue-laden exam, then it's critical to break the hypothetical into its component parts and organize the essay around the most important issues.
How you outline an answer differs with each course. In a Contracts exam, you usually write about events chronologically. Timing about what was said when is usually an important factor in Contracts, thus the best way to analyze is chronologically. In contracts, Torts exam are usually organized according to parties. In Torts, the big question is who is liable for what harm? Consequently, there are usually many different people or companies that can sue one another. You can make the best sense of a Torts question by outlining according to the party.
Another important step during outlining is to adopt a position. Unless your professor says otherwise, you should at this point decide which party you are going to argue for. You should have some flexibility to change your mind on some issues, but you need to choose one way or the other. Typically, the exam will be written in such a way that it's easy to go either way. One common trap for first year law students is to always want to prove the rule or legal theory to be true. Remember that you can find for either side. You need to adopt a point of view that you feel is strongest.
Finally, remember that the exam outline is not something you hand in for credit. Consequently, don't spend time making it look pretty. Rather, develop shorthand for the principle issues in the case law.
For instance, in Contracts, you might use
for the issues of Offer, Acceptance and Consideration, which are the principal building blocks of a valid contract.
Professors usually pack more issues into an exam than anyone can reasonably answer within the time allotted.
Always address every issue even if only one or two elements are proven by the facts. Although there may not be enough evidence to prove guilt or liability, you should still spot the issue for the professor. Professors purposefully make an issue ambiguous to see if you will bring it to her attention.
Of course, you need to rank the issues according to importance. Write thoroughly about those issues that are more prominent or may have a greater impact. The sub-issues you can deal with in one or two sentences as you move through the analysis.
Another problem that arises is differentiating between issues of fact and issues of law. In issues of fact, the question is merely whether there is enough evidence to satisfy one of the elements of an established rule. Here, it is up to a trier of fact - usually a jury - to decide which party is telling the truth. Depending on the nature of the rule, one of the parties may bear the burden of proving the truthfulness of the fact. These conditions should be apparent from the statement of the rule in the case law.
An issue of law is one in which the facts are undisputed. The parties agree on what happened. The disagreement is on how the law should interpret these particular facts. Judges -not juries - rule on questions of law.
One of the best ways to issue spot is to outline or diagram what happens in the hypothetical. By identifying the parties involved or breaking major facts out of the hypo, you get a sense of where to focus your analysis.
The First Paragraph
First impressions are important. Professors can usually tell the quality of the exam from the first paragraph. There are two different methods for writing the first paragraph:
- Summary of Outcome paragraph
- Or Issue Identification paragraph
In the summary of outcome paragraph, you tell the professor the bottom line - i.e. your resolution of the case - and why. It helps to give a framework for the rest of the paper. The problem with the summary of the outcome paragraph is that students sometimes change their mind on the conclusion of the problem in the middle of the essay. In the process of the analysis, they see something that leads them to another way of thinking. However, if you've already written your first paragraph, that realization makes for a lot of stress since you're now defending a position you don't think is correct.
The second technique is to mention the general framework of the issues but not give any specifics on your conclusions. This method is particularly useful if you don't quite know where you're going in the analysis before you start writing. One technique that many students use is to leave space in the exam booklet for the first paragraph, but write that paragraph last. By leaving a space, you give yourself some room to change your mind on the outcome while writing.
Analysis - The Actual Essay
Unless your professor says otherwise, jump right into the analysis of the problem. Don't recite the facts of the hypothetical as you would for a case memorandum in a legal writing class. It's a common mistake for first year students to apply the techniques of their legal research and writing course to exam writing. It's natural to think that there should be only one way to write in the legal field and to adopt those techniques for the exam. However, the exam tests different skills. The professor doesn't require that you repeat the facts. After all, she wrote up the hypothetical. However, this doesn't mean that you don't mention the facts. Use the facts to prove or disprove the rule. (See below.)
Furthermore, don't spend a lot of time stating the rule. Up until now, we have placed a lot of emphasis on breaking the rule into its component parts (or terms of art) and then proving the rule through tests, etc. One mistake that most students make in an exam is to spend most of their time citing the rule of law in order to prove to the professor that they know the law. Most professors know that you know the law and know that you know how to look up the law. What they want to test is your ability to analyze.
Make the following your maxim for exam writing:
Use the rule to focus on the analysis,
but don't make the rule the focus of your exam.
Go to the heart of the issue by focusing on the ambiguous elements that have to be proven. Ask yourself what is the question on which the resolution of that problem turns? If there is something central to the fact situation that most of the elements are easily present for the rule to apply except for one element, don't spend a lot of time on the elements that are present. Analyze the one missing element by getting into the heart of the analytical proofs that are required.
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The 9-Step Exam Writing Formula
Successful exam writing can be a formula. You can save time and earn stylistic points by pre-writing your exam. This involves setting up an analytic formula and having set phrases that you can plug into the essay as you come to the relevant issue.
Use the following formula to pre-write your essay.
State the issue.
Identify the rule, but don't waste time stating the rule.2
Summarize the elements of the rule that are easily satisfied by the facts.
State the sticking point on which this issue turns - i.e. the ambiguity in the facts that makes it a difficult question.
Apply one or more of the four types of Analysis to the problem.
Contrast conflicting authority.
What are the defenses?
Make a conclusion.
Go to the next issue.
To illustrate the process, here is a sample exam question.
EXAMPLE ESSAY QUESTION
Peter Plaintiff and David Defendant are neighbors who bear each other a grudge. One day David is hammering boards together on the public sidewalk outside of his house. Peter sees David hammering and walks behind him in order to avoid talking with him. As Peter walks behind David, David brings his hammer back to hammer the boards and hits Peter in the head causing substantial injury.
Step One:State the issue. Write one sentence that identifies the issue as suggested by the facts. Get used to stating the issue by using every fact that you can.
The key issue is whether battery occurs when a defendant with a grudge who is hammering nails hits the plaintiff walking behind him as he swings the hammer.
Step Two:Identify the rule, but don't waste time analyzing the rule. Rather, incorporate the rule into your analysis of the facts.3
The governing law on the issue of battery depends on the jurisdiction, though most commonly the Common Law rule suggests that the key elements are intent, harm and causation.
Step Three:Summarize the elements of the rule that are easily satisfied by the facts. Make sure that you don't make up or infer facts from the hypothetical. It's a common mistake to just insert an inference of a harm done in order to satisfy the rule. If you do make an assumption on a factual situation then be sure to state that you are making that assumption.
Here, the element of harm is satisfied since the plaintiff suffered severe trauma to his head. Furthermore, the element of causation is proven because but for the defendant's swinging the hammer, the plaintiff would not have been harmed.
Step Four:State the sticking point on which this issue turns - i.e. the ambiguity in the facts that makes it a difficult question.
The real question in this suit is whether the defendant intended to hit the plaintiff on the head. Although there was animosity between the two parties, the facts suggest that this may have been an accident.
Step Five:Apply one or more of the four types of Analysis to the problem. Contrast conflicting authority.
Use one or more of the four types of proof to prove or disprove the rule.
Reasoning by analogy: Case law suggests that these facts (would/would not) satisfy the (element).
Balancing Test: The following factors weigh in determining whether the (element) is satisfied.
Judicial Test: Courts have applied the following test to prove whether the (element) is satisfied.
Policy: The underlying policy of the rule (is/is not) furthered by its application in this scenario. (Cite policy.)
EXAMPLE - Judicial Test
The standard test that courts apply for the general intent necessary to hold the defendant liable is that he knew with substantial certainty that harmful consequences would result from his action. Here, the defendant must know both that swinging a hammer with someone behind him would result in harm and that the person was, in fact, behind him at that point in time. Whether the defendant knew with substantial certainty is an issue of fact that is up to a jury or judge to decide. Animosity by itself, or even a motive, does not prove intent.
Step Six:Contrast conflicting authority.
Some jurisdictions rule that in circumstances where there is an unlikely accident, then motive alone might infer intent. Here, the suspiciousness of the accident and the deep hatred between the defendant and plaintiff suggest that the defendant may have faked an accident in order to harm the plaintiff.
Step Seven:What are the defenses? Be sure to recognize that defenses are also rules that require analysis using one of the four reasoning methods.
The defendant has the affirmative defense of self-defense. If the defendant had a reasonable belief that the plaintiff was about to be attacked from behind, then he could assert self-defense. However, the defendant has the burden to prove he used only as much force in swinging the hammer as was reasonably necessary to protect himself from potential injury.
Step Eight:Make a conclusion.
In writing the Conclusion you want to hedge.
Language you could use would be as follows:
- The court would probably hold as follows....
- A probable result would be....
- Given the facts, it is highly likely that...
- Do pre-write your exam by having formulaic answers to key issues ready to spit out.
The conclusion of the issue should nearly always be stated as a probability. Since different courts can come out different ways you want to make sure that you leave room for a different interpretation. There usually is no right answer. The art is in the analysis.
In all likelihood, the defendant will not be able to assert a credible defense of self-defense because there is no evidence that the plaintiff was going to attack the defendant.
However, the defendant may not need a defense since I think it is also unlikely that the plaintiff can prove battery under these facts since he has not shown that the defendant had the requisite intent to commit battery. Consequently, the defendant will probably not be held liable for battery and the plaintiff will have to seek relief under a negligence theory.
Step Nine:Go to the next issue.
Peter will seek to recover damages in negligence if he can prove....
Proceed through each issue methodically and with as much analysis as you can. Try to use every fact to either prove or disprove an issue.
About case names...
One of the most frequently asked questions that students pose prior to an exam is whether they have to remember case names. The answer is that it entirely depends on the professor.
Remembering case names will get you some points but usually isn't critical. Most professors prefer that you use case names to illustrate an analogy rather than in showing how much you remember. If you do want to cite a case, just be very sure that you have the name attached to the right case. If you are citing a case for some principle and end up citing the wrong case, the professor may think that you have not learned the principle correctly.
You should make liberal use of headlines in your essay to signal the start and end of sections. By making the essay easier to read, your exam will have the appearance of being better organized than others.
DOs and DON'Ts of Exam Writing
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Take a break. Don't start studying for your next exam right away. Schedule yourself some down time to have fun and clear your mind. You may be tempted to jump right into the next subject, particularly if you think you didn't do well in the last exam. However, you run the risk of diminishing returns. Tests take a lot out of you physically and mentally. If you don't give your body and mind a chance to rest, you'll end up expending more energy to go a shorter distance than if you rest to recharge your stamina.
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Major Points in Test Taking
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