a. Every Legal Subject Has a Structure that is Inherent to the Material
One thing I wish I understood when I started as a first year law student is that each legal subject has a structure that is somewhat inherent in it. Sometimes that can be seen through looking at the structure of the applicable state or federal code.
For instance, to maintain a tort claim, one must demonstrate (1) the defendant owed a duty to the plaintiff; (2) that duty was breeched in some way; (3) some harm of value resulted; (4) there is a causal relationship between the breech and the resulting harm. If any of these elements are not met, plaintiff is not entitled to relief. Thus, defendants will try to attack the facts on each element and the plaintiff needs to show to the court that each element is met so the court does not throw the case out.
Accordingly, law professor examine their students with this in mind.
For instance, if I am in an auto accident with another (causing injury to both cars) and I want to hold the other responsible, it is not enough for me to want the other to pay for the injury, as the other would similarly want me to pay for his or her injury. Accordingly, the question is who had a duty and violated that duty, and did that violation cause the damage that resulted. It is this very type of analysis that each professor is seeking from their students, and this very analysis that is used in the practice of law.
By way of another example, every contract dispute leads to the following questions, also going through the elements: (1) was an offer made; (2) did the other party accept the offer; (3) was the consideration adequate, namely did each party give something up in order to effect the contract; (4) legality of contract; (5) performance; (6) breech; (7) damages. For instance, if I have a conflict between another person in relation to an agreement that we entered into, the court will first want to determine if indeed there is a legally enforceable contract.
For instance, lets say Bob and John enter into a contract that says that in exchange for Bob giving John $100 a month, John will no longer go into Bob's house unannounced and take his money and things or punch Bob. This contract would not be legally enforceable because John is already legally bound to not go into Bob's house without permission and take his money and punch him. In other words, Bob is not getting anything in return for his $100 that his is not already entitled to under the law. That is consideration. Thus, a judge would invalidate the contract and not worry about whether it was breeched or if damages are owed. (In this example, the judge might also refer John to the criminal authorities for extortion, thereby making this an issue in both contract law and criminal law.)
b. Law School Exams Usually Are Designed to Test a Students Understanding of the Structure of the Material, Not Just a Right Answer
In each course during the first year, it is typical to receive an exam with one or more factual scenarios that require you to recommend a course of action to your boss. In criminal law, for instance, one question often requires you to play the role of assistant district attorney and recommend to your boss, the district attorney, each crime you would consider charging potential defendants identified in the factual scenario -- and possibly identify too what their defenses are likely to be. In tort law, you might be visited by a potential client who went through a series of horrific injuries, and the boss in your firm needs a recommendation as to determine who to sue for which torts.
The above paragraph represents the first activity, namely issue spotting. Issue spotting is what it sounds like: spotting the legal issues that comes up in the scenario.
Once you issue spot, you will want to identify the elements of the analysis so you can go through the right analysis to come up with a legal conclusion.
b. Outlining is a Great Way to Keep Track of these Structures
The biggest mistake I made during my first year of law school was to not fully understanding why you as a student are asked to walk through the elements of the respective crimes or torts. In fact, every single legal problem should be addressed by first identifying what formula should be used to evaluate the problem. By identifying and spelling out the legal formula, and then applying it systematically, we lawyers are able to convince courts that our understanding of the legal implications of the facts are correct.
Although it would be more satisfying to test students by having them write commentaries on the philosophies discussed in the course, this methodology of testing actually reflects what legal practitioners do when thinking through legal problems. Had I appreciated this during school, I would have done a lot better.
Because each subject matter has an inherent structure, writing an outline of the material helps one's mind think through how to walk through that structure. As lawyers, when intaking a new issue, we often use outlines of subject areas as a checklist to think through what sort of problems are at issue in the matter being presented to us. Quite candidly, during law school, I did not fully appreciate how valuable a good outline would be to assure I understood the material.
c. Outlining Helps Avoid Memorizing
It is true that to do well on an exam, there may be a lot to remember. However, by outlining, one finds themselves less dependent on their memory. That isn't to say that the memory isn't critical. However, by having a good outline on paper and ultimately in one's mind, legal problems can feel manageable because rather than just having numerous legal ideas in one's head, one can reason through the problem at hand in a systematic way.
d. Every Judge and Profession Has His or Her Unique Concerns - Listen Carefully
During your semester, you should listen carefully to how your professor thinks through the problems because there may be keys to exam patterns. However, more generally, as there is limited time in an exam, there is always somewhat of a balance between issue spotting and factual analysis. Before walking into the exam room, you should already have an impression as to how much analysis to apply to a given problem. This you may be able to figure out by listening carefully to what the professor wants. For instance, some professors may be more interested in making sure that mention every single legal problem raised by a fact scenario and another professor may be more interested to assure that each legal problem you identify is outlined with the analytical approach. Additionally, a third professor might care more that fewer legal issues are raised and that you show that the legal issues you raise are analyzed from multiple perspectives.
You should also expect that you will miss important facts your first read through the problem and may find your opinion on certain issues changing as you continue through the problem. Thus, you should have a process for adding to your work. For instance, if you are walking through a problem with 5 torts, you may want to leave space when you are done with tort 1 so that as you complete tort 5, you can add to your discussion of tort 1.
Again, each professor is likely to have preferences about how to stylistically handle this. Frankly, this is quite analogous to practicing law, as each judge has a preference as to how to handle it if one submits a brief with errors or if one, after submitting a brief, finds new facts or new law that should impact what one wrote. Some judges will want the original brief rewritten and other judges will simply ask for short addendum. Accordingly, your law professor probably has a stylistic preference concerning how to approach this problem -- which is inevitable for any thinking law student or lawyer.
Thus, as I said, listen carefully to your professor. Every judge has their passions and prejudices, such as whether they want long briefs, short briefs, briefs with lots of quotes from the testimony, briefs with minimal quotes and generic descriptions. Similarly, law professors have prejudices too about style. When they indicate their prejudices, take it seriously as it could mean a few points here and there.
If you are able to review and study old versions of the professor's exams, I strongly urge you to examine those. Although there is never a guarantee of consistency, you may be able to see some past patterns, and even how the professor grades. For instance, do they give a point for each element of crime or a point for the whole crime in general? Thus, you'd figure out if it is better to make sure to identify echo and every crime on the page or if it is better to go thoroughly through the ones you first identify.
Unless things have changed since I went to school, there are no added points for finishing early. I know many successful lawyers who are successful in brief writing because they take all the time available to us to make sure we have addressed all the points that should be addressed. You do very well at this field by demonstrating to the judge or professor that you are the master of the facts and law. If you show you are the master, you often win. Thus, if the professor sees you've thought through the problem, you get the points.
I Hope this has been helpful and not too redundant. No one really said these things to me before my first exam, and I wish they had.
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