What makes a good law school exam answer?

A few weeks ago, I finished grading the latest batch of final exam answers. As would be expected from classes that exceed 30 or so students, the individual performances ranged from the excellent through the acceptable to the “have you considered getting an education degree, instead?” Just kidding on that last one. Mostly.

The Wall Street Journal’s Law Blog decided to celebrate the exam season by offering the views of several law professors from more-or-less prominent schools on what constitutes a good exam answer. Their responses ranged from excellent through acceptable to “have you considered actually providing useful information?” Not kidding on that last one. And it is the last of the responses I am most looking at here. From my law school alma mater, I note with chagrin. Some of the comments to the post are enlightening, as well.

Oddly, I was not included in this survey. But, this being my blog, I will ask myself to offer an opinion. Mirabile dictu, I have agreed to respond. My answer is similar, understandably, to the more thoughtful responses from the legal Socrateses queried by the Journal. I agree substantially with Professors Gerken and Friedman.

Law school exam questions typically pose a problem with a number of facts in evidence. Students are then asked to identify and evaluate various legal claims raised by the fact pattern. One problem that students have is that they do not answer the question. That takes two forms. They may ignore the facts presented and, frequently, make up new ones. That might be described as “soft” avoidance of the problem. The students have no answer for the question, so they reshape it more to their liking. Or, worse, the students violate clear instructions, such as, “Do not address any issue of [            ] that you might see.” Or, “Be sure to consider the parties [             ].” When those explicit instructions are not followed, this might be described as “hard” avoidance of the problem. The “soft” version is more prevalent than the “hard” version. It may be a more unconscious action. The latter shows that the students simply have not read the question, even though I warn them repeatedly that the instructions are the most important part and need to be read first and then followed.

Either form of avoidance is a problem, not just on my final exam. The state bar examiners make it clear that a failure to answer the questions or address the legal problems raised in the questions will be fatal to success on the exam. Once in practice, a failure to answer the problems raised by a client’s case is at best a waste of the client’s money. Similarly, the attorney’s failure to address the actual legal issues in a hearing will doom the client. So, answering the question posed is a critical start.

Moreover, the exam answer needs to be organized. This is not the time for free-form flow-of-consciousness writing. Just as a book uses chapter headings, and a formal legal complaint uses a heading for each claim and remedy, the exam answer should have a heading to introduce the specific legal issue. It is not enough to say, “What are B’s rights against A” or “Is the law constitutional?” That’s about as helpful as analyzing the client’s problem by saying, “Can the IRS come after you?” “Did A commit a battery when he flicked the lapel of B’s jacket,” or even “B v. A: Battery,” works; “Can B sue A” does not.

Another, practical, reason is that the exam reader is reading many exams. It always helps to make the answer easily readable. A good rule: Make the grader your friend. Non-descriptive issue headings (or none at all), illegible handwriting, failure to use paragraphs (or even sentences), and abbreviations requiring the use of a decoder ring or a knowledge of shorthand do not make the reader one’s friend.

After a proper recognition of the appropriate legal issue to be addressed, I next look for a thorough and clear statement of the proper legal/constitutional framework. I need to see that the student knows the appropriate elements/factors/analytical talking points that the courts would apply. That doesn’t necessarily require verbatim regurgitation of what was learned in class or what is in an outline. It does require that the student be able to figure out the relevant concerns those elements, etc., address and setting those forth adequately. This “rule statement” is the general “formula” by which the problem will be solved. It explains to the reader/client/judge what authoritative legal standards/rules apply.

But the general formula does not solve the specific problem. That requires an analysis of the relevant facts that are problematic for a resolution of the issue. Those facts have to applied to the relevant parts of the legal test. There is no need to analyze the obvious, but there needs to be a discussion of the facts that might cause the client difficulties or result in contested arguments, even if, at the end, the facts lean in the direction of one party or the other.

Analyzing those facts is not the same as simply restating them. I need to see how the student relates the facts to the law, the specific issue to the general formula. Phrases such as “In this case,” make the general rule specific to the facts. Even more significant than that are connectors, such as “because,” “since”, and “as.” Those show an analytical connection.

Moreover, exams are usually a “closed factual universe.” It is important to focus the analysis on the given facts and not to make up new ones. If the problem involves the constitutionality of a statute, it is important to look at what the statute says, not at what the student would like it to say. In this manner, exam questions are like motions to a court. The facts are given. On the other hand, real world advice to clients, in estate planning, for example, might start with an analysis of the facts but then move to recommendations about how to change those facts in the future to achieve a desired result.

In the issue analysis, students should also avoid a robotic “A will argue,” then “B will argue,” then “A will argue,” then “B will argue,” etc., approach. First, it looks stupid and grates on the reader. I once counted 46 such phrases in the course of an essay exam. Second, it tends to lead to a point-by-point approach that becomes an unduly miniaturized analysis, rather than a comprehensive analysis. Third, it prods the writer into making up facts or concocting weak or meaningless opposing arguments (e.g., “B will argue the opposite”) just so that he has something to say in opposition. Sometimes, the facts really are strongly in favor of one side. If the facts regarding a legal issue favor one side in one part and the other in another part, the analysis can reflect that in a more elegant manner than the “will argue” ping-pong. For example, “On the one hand, A has met the standing requirement because the invasion of his privacy rights by the government’s agent hiding under his bed constitutes a concrete injury in fact. On the other hand, the agent’s subsequent death prevents the court from effectively granting relief to A, which might fail the third prong of the standing test.”

Fact-law analysis is a significant component of a good answer. Conclusions are less important on my finals, in the sense that some conclusions cannot readily be predicted. In that case, if further analysis of the problem depends on an answer to a preliminary issue, the student may have to argue in the alternative. A Sometimes that might be quite simple. For example, if there is a disputed preliminary issue whether the plaintiff even has standing in court to bring the suit, a matter that often depends on highly nuanced and unpredictable fat weighing, the student in the end has to assume that the plaintiff has standing in order to get to the merits of the legal argument. Indeed, that is true even if it looks to the student that the plaintiff likely does not have standing. After all, if this were a contested case, the defendant likely would not rest his case solely on the gamble that the court will deny the plaintiff his day in court. Rather, the defendant would also prepare to address the merits of the plaintiff’s case.

A good answer also will avoid being distracted by irrelevant, non-legal considerations. This is particularly true in my main area of teaching, constitutional law. The exam answer is not the time to get on a political soapbox or to launch into economic/sociological/critical theory-based arguments how the proposed law “won’t work” or is “unfair.” In similar vein, the student must avoid trying to divine what response I would like from an ideological standpoint. I am only interested in seeing a legal analysis as the courts would undertake it, not what I would like to see politically in a world where I was a Platonic demiurge.

Students also should be aware of the oldest professor’s trick in the world. For whatever reasons, students tend to be very much pro-plaintiff in civil cases and pro-defendant in criminal and constitutional cases. Just as there is a need for a certain detachment when it comes time to addressing clients’ problems, students need to learn personal detachment from the parties in exam fact patterns. It is not unheard of for professors, ahem, to load the dice. I might write the facts so as to have a sympathetic-appearing defendant with various constitutional claims against the government but write a statute that, under current law, is clearly constitutional. It is important to resist the temptation to do anything but analyze the problem soberly.

Beyond that, there is something to be said for using common sense. While common sense is not a guarantee of success, it is often enough. If the argument really sounds weak or leads to utterly preposterous results, it is probably a dead end. If the student finds it necessary to say, “This is a weak argument,” as happens with disturbing frequency, the argument is best not made.

Finally, address most carefully the issues that jump out from the facts. I am reminded of a story from a former acquaintance whose ex-husband took the bar. She told me that a criminal law question on the bar exam involved a bank robbery. Among other facts, the robbers got into a shoot-out with the police and one of the robbers was killed by police. Before escaping, the robbers let out the air from the police car’s tires. The question’s main focus was on the defendant’s guilt for the policeman’s killing of the other robber, under the felony murder doctrine. The genius bar applicant wrote nothing about felony murder, but was proud about his thorough discussion of the “larceny of the air” from the tires. Perhaps needless to say, he failed the bar.

So, for a good answer, the student should identify the precise legal/constitutional issue, recount fully the applicable legal/constitutional rule, actually analyze and apply the relevant facts to the law, and avoid emotional, unreasonable, weak, and concocted arguments. Most certainly, the student must not fall into the trap of either hard or soft avoidance of the problem; in other words, answer the question.