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CALI has two very good exercises that will help with exam taking and applying law to fact. Take the two sessions Learning Legal Analysis Through Its Components: Issue, Rule, Application, ConclusionIRAC and Writing Better Law School Exams: The Importance of Structure
University of California, Berkeley Boalt Hall School of Law Professor Willie Fletcher
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Test Yourself!
Do you want the rule stated or should we incorporate the rule into the analysis? How many questions will there be on the exam? What are the time restraints for each question? Can we bring in outlines or other source material? Do you want case names cited? Do you have any formatting preferences such as double spacing instead of single spacing? How do you distinguish between an excellent exam and a good 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
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.
For instance, in Contracts, you might use O A C for the issues of Offer, Acceptance and Consideration, which are the principal building blocks of a valid contract.
Issue Spotting
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.
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.
Step One: Step Two: Step Three: Step Four: Step Five: Step Six: Step Seven: Step Eight: Step Nine:
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. EXAMPLE 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 EXAMPLE 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. EXAMPLE 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. EXAMPLE 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. EXAMPLE 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. EXAMPLE 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 selfdefense. 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. EXAMPLE 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. EXAMPLE 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.
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Unless your professor says otherwise. Unless your professor says otherwise.
Formatting
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.
Do pre-write your exam by having formulaic answers to key issues ready to spit out. Do outline your answer using about ten minutes for an hour-long answer. Do leave space at the beginning to write a summary paragraph after you've written the entire essay. Do jump right into the analysis of the major issues. Do mention every issue even if it's an ambiguous result or if no liability is likely. Do use every fact as proof or disproof of the validity of a rule. Do pay attention to the call of the question. Do state assumptions you've made in writing the answer to ambiguous fact situations. Do leave your biases at home. Do write legibly.
DON'T...
Don't restate the facts of the problem. Don't answer questions the professor doesn't ask about. Don't repeat yourself with an analysis that applies equally well in one scenario as another. Make the distinction then refer back to a previous analysis. Don't waste time on your outline making it look pretty. You don't get credit for an outline. Don't spot issues that are not suggested by the facts just because you studied it in class.
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Post Exam
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. Return to Top Test Yourself!
Exams test two areas - issuing spotting and analysis. Professors differ in how they want exams written. Ask yours what she wants to see in a good exam. Create a one-page attack outline giving yourself an analytical framework for writing and to serve as a checklist for major issues. Read the question twice before writing. Spend ten minutes outlining an answer for every hour-long question. Write about issues even if the outcome is ambiguous or uncertain. Mention issues even if the rule is not satisfied by the facts. Use the rule to focus on the analysis but don't make the rule the focus of your exam. Don't recite the facts of the hypothetical. The professor knows the facts since she wrote the essay. Use every fact if your analysis. The professor only puts facts into a hypothetical for a reason. To get you to use them for some persuasive purpose in the exam.
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Test Yourself!