Legal Commentary

A Common Law School Exam Mistake

By Orin Kerr

With law school spring exams around the corner, I wanted to blog on a common law school mistake on ?issue spotter? exams: Writing too soon, and then writing too much on the facts at the top of the fact pattern. This probably won?t make much sense to non-lawyers, and it will only trigger bad memories for most lawyers, but I hope it will be useful to the current law students in the VC readership.

Here?s the problem. Say you have 1 hour to write an answer on a long fact pattern. You read it over quickly, and you spot a few issues. The instinct is to say that there?s no time to waste: You gotta start writing now to get it all in. And because you?re writing early, you feel you have more time to write (almost a full hour!), so you start to write in pretty serious detail, even pausing to flag minor issues just to let your professor know you can think of everything. Sounds good, right? But then after a while you look at the clock, and you realize you?re behind, and you need to really pick up the pace: By the end you?re rushing through the issues. But you?re thinking you probably did a good job: The professor will start at the beginning of the essay, and the professor will see how carefully and thoroughly you analyzed all those issues at the beginning. That?s the thinking, anyway.

But I think it?s a mistake. To see why, look at it from the perspective of a professor. Say your professor has to grade 100 exams, and your exam comes up in the middle. After grading 50 exams, the professor know exactly what he is and is not looking for. There are a few issues that are easy to spot but tricky to analyze; other issues that are hard to spot that the professor will want you to see; other issues that at first look complicated but upon close analysis turn out to be easy; and other aspects of the fact pattern that are not real issues that the professor didn?t want you to waste time on. The professor wil want you to analyze the obvious issues expertly; spot the tricky issues; explain why the issues that look hard are easy; and ignore the non-issues.

The exam that follows the instinctive approach described above isn?t likely to be well-suited for that for three different reasons. First of all, the time going into major detail on minor issues at the beginning of the fact pattern may create the impression of spending time on non-issues. Sure, you can flag a very minor issue quickly in one sentence; but if you spend a lot of time on it, it creates the impression that you think the minor issue is actually a major one and that you don?t quite understand the law. Second, going into great detail in the beginning means you don?t have time to provide the thorough analysis of the issues raised later in the fact-pattern because you?re running out of time. This is a particularly troublesome dynamic because more significant issues are likely to be raised near the end of the fact-pattern: Those tricky issues usually require a lot of facts, and there won?t be enough facts until near the end of the fact-pattern.

Finally, by starting to write at the beginning, you?re robbing yourself of the best opportunity to really get a sense of the fact pattern. Law professors write exams so that they contain some interesting tricks and turns. It?s easy to miss those tricks and turns if you just read over the facts once or twice and then start to write. I think the much better approach is to give yourself about 25% of the time period of the exam just to think and sketch out ideas for your answer. For a 1-hour exam, spend 15 minutes really thinking through the question, trying to deconstruct what your professor is thinking ? that is, trying to figure out the twists and turns your professor had in mind. Map our your answer and flag the tricky issues that really need analysis. By the time you start to write, you?ll know exactly where you?re going in your answer; what you need to talk about; and what not to talk about.

Full post as published by The Volokh Conspiracy on April 14, 2010 (boomark / email).