A. GETTING STARTED
1. Everyone gives you different advice. Take what sounds right to you and ignore the rest.
2. The best way to do well on exams is all too obvious: study! Even if you’ve slacked off until now on this requirement, it's still not too late to put in the time. Okay, studying is hard work, but whoever said you only get to do easy things in life? This is your chosen profession—right?—so it deserves the massive effort necessary to acquire the knowledge to do your job competently.
3. Clear up things you still don't understand that are necessary for the exam. What are the foggy parts of your notes? The difficult issues for you in this course? If you can’t figure them out yourself, get help. Ask your fellow students, consult other texts or student outlines, contact the professor. But don’t leave major gaps in your knowledge unfilled.
4. Try to organize the details into a bigger picture. But don't overdo it. Trivia can drive you crazy and get you sidetracked. READ THE PROFESSOR. What was important to him/her in the lectures? Things that the professor emphasized are likely to be on the exam. Things that were not emphasized are unlikely to be major features of the exam.
5. Word List. For closed-book essay exams, I recommend you memorize a short (no more than 20 words) list of topics that are likely to be on the exam. For example, in a Contracts course the word list might contain words such as: liquidated damages, mitigation, forseeability, quasi-contract, etc. Below I will tell you how to use this list during the exam.
6. Mental Attitude. This is going to sound strange, but you should enjoy taking exams. Why? Well, think about it. For the most part your role in the law school learning process is passive: you just sit there and absorb things as if you were a sponge. But when it comes to the exam you are the active participant, taking stage center, and it’s time to show off what you know and how well you can present it. As a lawyer you will often be in the position of taking charge, so here’s your chance to do it while in law school. The opposite attitude (“I hate exams and I’m scared I’ll do badly”) won’t help you a bit in approaching the exam with the confidence you should be exhibiting. See if you can cultivate “I’m good, so get out of my way.”
7. The night before the exam: GET A GOOD NIGHT’S SLEEP! One of the major things you’ll be tested on is how well your brain works. If you spent the night cramming for the exam with coffee, drugs, or who know what, your brain will be fried and your exam performance dismal. A rested brain is more important than last minute knowledge gained.
8. If Big Things Go Wrong. What if the unexpected happens—you get sick, a family member dies, you get a distress call from your best friend to fly across country and rescue him/her—should you postpone the exam? Obviously things can occur that would keep any rational person from taking the exam on time, and I’m not saying otherwise. But here should be your rule: if it is at all possible to take the exam, do so. I’ve too often seen students with the opposite attitude (“I hope something comes up so I can duck the exam!”). A postponed exam has a way of never getting done. I’ve seen legal careers wrecked because the postponement of the exam was the end of everything.
9. If Little Things Go Wrong. You need to consider ahead of time the small matters that can turn the exam experience into a nightmare, and develop fail-safe backups. I’m referring to such things as getting the date or time of the exam wrong, the alarm clock that doesn’t go off, the car that won’t start, the pen or computer that won’t work, etc. Make sure your understand well ahead of time all the rules of the exam, particularly what you’re allowed to bring with you into the exam and what not, and how to turn in the exam. Learn the honor code and pay attention to its rules.
B. THE EXAM ITSELF
1. Fill out the exam as instructed. When the starting signal is given, first set up your time schedule. DON'T MAKE MISTAKES ABOUT THIS. When I’m grading exams I’m unforgiving if students make mistakes about time. What does it say about how they'll later practice law where doing things on time is very important?
2. Write down your word list separately and save it.
3. Plan to answer all the questions asked unless told parts the exam are optional. On objective questions guess unless told that there are penalties for so doing. (If enough people miss the same objective question the grader will frequently throw it out—so get in there and do your share by missing it too). On essay questions, if you don't know, fake it. What? Yes, fake it (this is particularly important on bar exams). Pretend you’re the monarch of your own jurisdiction and boldly invent the rules. Our law is not so perverse that it deviates much from common assumptions, and your guess will often get you some points, whereas a blank sheet of paper will get you nothing. Some of you reading this are very, very good at this faking skill, having honed it through years of educational endeavors, and it’s time to strut your stuff.
4. Inserts and abbreviations are fine if clear. Don’t confuse the grader. If you can’t remember the name of the case you want to cite, describe it (“the hairy hand” case, for example).
5. On essay questions, read each question carefully, trying to get a sense of its bigger meaning. Issues will jump out at you. This will give you a sense of relief, but it’s no time to relax. Now re-read the question carefully, underlining important points, making marginal notes about the issues or thoughts you have you want to include. Now go back and look at the question. Are there major parts of the essay question about which you are saying nothing? That’s suspicious. Has the professor thrown in surplusage? That would be rare. Most likely there’s some hidden issue in the unexplored part.
7. Check your outline against the word list. For each word on the list ask yourself is this issue hidden in the question. For example, if one of the words on your word list is “promissory estoppel” ponder whether there are promissory estoppel issues that you haven’t thought about presented in the given fact pattern. If you do this carefully with each of the words on your list, I guarantee you that ideas will pop into your head that will earn you extra points you would otherwise have forfeited.
8. It's time to start writing. On essay questions, should you take it issue by issue or first present one side’s case and then the other side’s case? The exam may tell you which to do, but if not, please yourself. Just make it clear to the grader what you are doing, and then do it methodically as announced.
9. Answer the exact question asked. If the question says “Give the arguments of the parties” don’t begin your answer with “The court rules that . . .” Your instructor wants to hear what the parties will argue. Remember that you’re being trained to be an advocate, not a judge, so lets hear what you’ll say as a lawyer.
10. Don't assume away the hard parts and make the exam too easy. This isn't a contest of wits; it's a performance, and you’ll get few points for evading the hard issues.
11. Don't repeat the facts except as necessary to your analysis. Unnecessarily repeating the facts is a waste of precious time. Good attorneys, however, do use the facts to make their points (“The plaintiff chose to send an email because it was faster than the postal service, thus showing the plaintiff's emphasis on speed”).
11. What issue should you start with? Here’s valuable advice: start with the most important issue, the most vital one, the one at the heart of it all. One of the things we’re testing you on is whether you can spot the most important issue. If your answer starts with something petty that no lawyer is going to spend much time on, this tells the grader you don’t know what’s important and what’s not, a bad message to convey. The exam has so much time pressure that if you spend your valuable minutes on minutia you’ll convince the grader you don’t understand how to hone in on the heart of a controversy. Who wants a lawyer who makes that mistake?
12. On an exam I want to see the following three things repeated over and over: spotting the issue, an explanation of the relevant black letter rules of law, and then an argument about how these rules apply to these facts. Some instructors don’t require you to repeat the black latter rules of law, but I want to see them. I think that lawyers spend a lot of time explaining what these rules are (to clients, to the other side, to the judge, to the jury) and so I’ll judge you on how clearly you can delineate them.
13. Avoid unexplained value judgments: “The plaintiff's conduct was reasonable." Too easy to say and it conveys nothing. Back it up with facts and explanations showing why it was reasonable.
14. Give parallel arguments. Having presented the plaintiff’s brilliant argument the student frequently has so impressed him/herself that he/she then forgets to say what the other side will argue in response. When you go over the exam with the professor afterwards the professor will point to this problem and say, “How often do you think when one lawyer makes an argument that the other lawyer just sits there, admires it, and gives up?” We are training you to be an advocate. Be careful that you don't convince yourself and leave the other side mum.
1. An exam is a performance: and all good performances have some things in common, particularly they have a big start and a big finish. It’s not the goal to get the "right" answer—after all this isn’t a math exam with just one correct solution. It's your mastery of the subject and your analysis that's being judged. You’re being compared with others, so your exam must stand out. Therefore add special things: brains, clever analysis, how this problem would come out in the “real world,” policy, etc. Most exams are as interesting to read as the printed verse on Christmas cards; make yours more interesting than the other exams and you’ll get a better grade. Start well, and for heaven’s sake have a great sentence at the end, typically a policy statement (see below). When I’m grading an exam that just stops mid-thought (sometimes with the word “TIME” written last), I ask myself what kind of lawyer is that person going to be, and the answer is that he/she can’t plan well or get all the important thoughts into the allotted time (skills any good attorney possesses while bad ones commit malpractice).
2. To get extra points, put yourself in the place of the person grading the exam. What will please him/her? What does the instructor want from students? How about humor? Citing cases? Favorite theories or causes? Does your instructor have pet peeves? [Mine: “breach” is spelled with an "a"; don't use exclamation points!] Be as literate as possible (and it’s here that you English majors will have a leg up on the others].
3. The big finish. Try a policy statement that explains why the result you’ve come up with will make things better for the future. Phrase it well. Remember that as soon as you quit writing this last sentence the instructor immediately assigns a grade, so this is the moment when impressing the grader is most important.
D. AFTER THE EXAM
1. If you have other exams yet to take, stop any thoughts or discussions about this exam immediately and concentrate on the upcoming ones. Panic later, when all exams are over.
3. Good luck on your exams. Once you’re done with the law school and bar exam ones, you’ll likely never have to take another exam in your life, so work towards that happy moment which, trust me, will come.
“How I Became a Law Professor,” January 27, 2010
“The Socratic Dialogue in Law School,” January 31, 2010
“Clickers,” March 17, 2010
"Elena Kagan and Me," May 23, 2012
"Elena Kagan and Me," May 23, 2012
“The Summer Bar Review Tours,” June 15, 2010
“The Sexy Promissory Note,” August 17, 2010
"Mortgage Foreclosures: The Disaster of Unintended Consequences," October 27, 2010
"Update: Mortgage Foreclosure and Missing Notes," November 16, 2010
"Women in My Law School Classroom," January 8, 2011"The Exploding Alarm Clock," February 19, 2011
"One More Story From Law School," February 27, 2011
"I Threaten To Sure Apple Over an iPad Cover," April 8, 2011
"Bob Whaley Goes to Law School," June 3, 2011
"The Payment-In-Full Check: A Powerful Legal Maneuver," April 11, 2011
"Adventures in the Law School Classroom," September 10, 2011
"What Non-Lawyers Should Know About Warranties," October 11, 2011
"How To Write and Effective Legal Threat Letter," October 19,2011
"Funny Law Professors," January 15, 2012
"Funny Law Professors," January 15, 2012