Succeeding on Law School Exams

Succeeding on
Law School Exams
principles for pleasing picky professors
• General strategies for taking law school exams
• Specific strategies for the fact pattern and
essay questions
• Dealing with stress and anxiety
• But first … a disclaimer!
An Essential Truth about Law School Exams
• Exams test performance, not knowledge.
• It’s not about what you know, it’s about how well you
write the exam.
• To do well, it’s not enough to know the rules. You have
to understand them and apply them in exam
– Don’t just study the rules you cover in class. Practice,
practice, practice.
– If you perform badly, that doesn’t necessarily mean you
didn’t know the law, it means you performed badly on that
exam. Go over it and try to figure out what went wrong,
then practice that skill before the next round of exams.
General Strategies
• Read the (overall) directions!
• They may tell you:
– How long to spend on each question
– What law applies
– Not to cover particular issues
– Whether to double-space, single-side, etc.
General Strategies
• Read the (question) directions!
• Tailor your answer to the questions actually asked.
– Don’t discuss issues that are not raised by the facts.
– Look out for issues foreclosed by the question.
– Think about what the question is actually asking you to do.
Most fact pattern questions ask you to: advise a party,
advocate for a party, or make an objective judgment.
• If the question asks you to advise someone, you must actually give
some advice. This means coming to some kind of conclusion. If it
asks you to assess someone’s liability then it’s more likely to be ok
to be equivocal.
General Strategies
• Outline thoroughly before you start writing.
– If you are running out of time, you can always write down your outline.
– If you are writing on a computer, input your headings and then fill in the text
between them.
• Show your organization.
– A well-organized answer is easy to mark, and therefore is likely to get a
higher mark. It makes the professor think, “This student knows what
they’re doing.”
• Eloquence doesn’t matter much. Exam writing is mechanical
and formulaic.
– Well-written answers make a good impression, but clarity and
accuracy are MUCH more important than style.
– Repetitive writing is fine. Your mantra should be: “The issue is .... The
rule is .... Here, we have .... Therefore, .... Next, ....”
General Strategies
• You have to “hit the bumpers”.
• Get to the point!
• Don’t psych yourself out.
– There will be some easy issues. There will be some
hard issues.
– So if one part of the question looks too easy, you
probably aren’t missing anything. On the other hand,
if the entire question seems obvious….
– Nail the easy issues for cheap points and do the best
you can on the hard issues.
General Strategies
• How much is enough?
• There’s no definite answer to this but it is a myth that more
is always better.
– Short answers (under 800 words/hour) tend not to have enough meat on
them. They probably miss issues entirely or give complex issues short shrift.
– Medium answers (between 800 and 1100 words/hour) have a strong
correlation between length and score.
– Long answers (over 1100 words/hour) tend to be all over the map—some are
just very thorough and some are rambling messes. At the long end, the
correlation between length and score is weak.
• So if your answer is short, the odds are you missed an issue
or need to add detail to the issues you’ve mentioned. If
your answer is medium, spend any extra time left at the
end of the exam adding details. If your answer is long,
check to make sure it isn’t padded out with useless filler.
Time Management
• Take a few minutes just to read all of
the questions and think.
• Spend at least 10% and up to 30% of the
time allotted for a question on planning.
– This will vary from person-to-person. Do practice
questions in exam conditions to work out your
own ideal ratio.
– On computer exams, you can usually afford to
spend a little more time on planning.
Time Management
• Balance time among the questions.
– Follow the suggested allocation.
– It’s always better to get something down on all questions
than to ace one but short-change others.
– Similarly, it’s always better to cover all issues in a single
question than to miss or short-change some of them.
• What about “little” issues?
– Balancing breadth and depth in exam conditions is one of
the major challenges of law school exams.
– Do this classic law school trick:
“The fact pattern raises issue X but, given time constraints, I am unable
to discuss it.”
– Not ideal, but better than nothing!
The Dreaded
Fact Pattern
Fact Pattern Questions: Getting Started
• Read the whole fact pattern, annotating as you go.
– Don’t hesitate to write on the exam paper.
• List the issues on a separate sheet of paper.
– Separate each distinct issue.
– For each issue, separate out the sub-issue elements.
– Don’t leave out clear-cut issues, but deal with them
efficiently when you write up.
• Outline your answer before you start writing.
Tips for Spotting Issues
• Look for all points of disagreement between parties.
– Don’t skip straight to what you think is the main issue.
• Put yourself in the position of each of the parties and
then of the judge.
– For the parties, think about what they would want to get
out of the lawsuit.
– For the judge, think about what you would want to know
to decide the case.
• Look for trigger words in the fact pattern.
– What is your prof obsessed with?
– Go to class, ask questions, do practice exams.
Fact Pattern Questions: Structure
• You can use a very formulaic structure.
• Remember IRAC (and equivalents).
– Not necessarily the best way to answer a given
question, but it won’t do you wrong.
– Even if you don’t use IRAC structure, you still need
all four components.
• Headings are your friends.
Fact Pattern Questions: Structure
• For a given issue, the “I” and the “C” can both be very
short, usually just 1-2 sentences.
• For the “R”:
– Explain (briefly) why each rule is relevant.
– State the source of the rule.
• Do you need to cite cases by name?
• Usually no, but it helps!
• You do have to cite cases when you are comparing the facts to
• If a statutory provision is applicable, you do need to cite it by
name and number and should quote it verbatim.
– If there is controversy or a split over the rule, this may
merit significant discussion.
• Don’t focus too much on the “R”!
• This is the dreaded “brain dump”.
The mistake many of my fellow law students made was to focus only on
the legal rules in preparing for exams. They thought that if they knew
all the legal rules backward and forward, they were guaranteed a good
grade. Unfortunately, it wasn’t true. Even if your memory of the rules
was foolproof, it meant nothing unless you were good enough at issuespotting to know which rules to use on the exam. You could have a
photographic memory of the rules, in other words, yet still do poorly.
• Students too often slip into their comfort zone in the “R”
– Beware the law school “bait and switch”
– On most undergraduate exams, this works. In stressful situations, it’s easy to
revert to what you know best.
• “A” answers are distinguished from “B” answers primarily by the
quality of their application of the relevant legal rules to the
specific facts in the question.
• Be thorough. Apply all relevant rules to all relevant facts.
• Go through every element of the applicable rules.
• Explain why the rules you cite lead to the outcomes you predict.
– Repeat facts, but don’t just regurgitate them; incorporate them into your
analysis at the relevant steps.
– State the specific facts that are tied to the legal rules you cite.
– You need argumentation, not just conclusions. Show every logical step,
even the obvious ones.
– Acknowledge counter-arguments. On close calls, argue both sides.
– Note areas of factual uncertainty. State any assumptions and explain the
different possible outcomes.
Dealing With Uncertainty
• What if you aren’t sure what the answer is?
– Don’t panic—getting the “C” right doesn’t always
– You need to show that you understand the
possible outcomes on individual issues and the
implications of those outcomes.
– Professors will say something like: “It’s ok that
there’s not an answer; you just have to explain
yourself and touch on all the issues.”
– Not really helpful, but it does tell you two things…
The Answer is to Refer to All Possible
“Issue A has three possible outcomes. First, the
rule from Case M can apply which would mean
X. Second, the rule from Case N can apply
would mean mean Y. Finally, the rule from Case
O would apply which would mean Z.”
Of course, you still have to do your “A”—show
how the different rules work with the facts in
the fact pattern to reach the different outcomes.
Putting this into practice
• Read the sample problem on your handout
• What issues can you spot?
– Consideration for the contract amendment
• Which rule applies?
– Valuable consideration needed (traditional rule)
– Conferral of a practical benefit suffices (Roffey Bros)
– No consideration needed for amendments (GFAA)
– Promissory estoppel
– Economic duress
Putting this into practice
For the amendment to the contract to be
enforceable, there must be consideration for
Olinda’s promise to pay the additional $200,000.
This is a close call because it’s not clear that
Charlie did anything in return for this promise. But
on balance, I think a court will find that there was
Putting this into practice
The issue here is the enforceability of contractual amendments.
Amendments must be supported by consideration. Consideration
constitutes something of value, either a benefit or a detriment,
that is bargained for as a result of an agreement between two
parties. To be valid, consideration may not be past, nor may it be
illusory. If no consideration is proven, then the promise may still
be enforced if it was given under seal or a promissory estoppel
may be proved. Consideration is not normally found if one party
promises only to complete a duty that it already owed under the
contract. However, recent jurisprudence has held that a practical
benefit conferred may suffice to support a finding of
consideration for a contractual variation, or that consideration is
entirely unnecessary for variations.
Putting this into practice
There may not be consideration for Olinda’s
promise to pay the extra $200,000. Charlie might
disagree, since he would argue that there was
consideration. Given the ratio in Williams v Roffey
Bros, it is possible that a court might rule in his
favour. But a court might also conclude that there
was no consideration.
Putting this into practice
Courts have debated whether consideration is
required for an amendment to a contract. (Gilbert
Steel v University Construction, Stilk v Myrick, Pao On v
Lau Yiu Long, Williams v Roffey Bros, GFAA v Nav
Canada). However, it is clear that consideration for
a variation can be found in the conferral of a
practical benefit (Williams v Roffey Bros). Therefore,
there was consideration for Olinda’s promise to
pay an extra $200,000.
Putting this into practice
I would find that both variations contracts are
enforceable. The first variation is secured by
consideration in the form of a practical benefit,
and the second is enforceable by virtue of the
Judicature Act. Therefore, I would hold that
Olinda need not pay Charlie the outstanding
Putting this into practice
The enforceability of the two contractual
variations is in doubt. To prove that they are
enforceable, Charlie must demonstrate that they
are supported by consideration. Since a practical
benefit was conferred, Charlie’s agreement to
complete the renovations by the original deadline
can still count as valid consideration for Olinda’s
promise to pay an extra $200,000.
Putting this into practice
There is no promise given in consideration for the
first amendment to the contract, so it isn’t
enforceable. This case is distinguishable from
Roffey Bros because here, the parties did not both
make a mistake about how much work it would
take to complete the contract. Since there is no
consideration for the first amendment to the
contract, Charlie cannot recover the additional
Putting this into practice
The question is whether the contractual variation is
enforceable. The requirements for a contractual variation are
similar to those for formation of a contract: there must be
offer and acceptance, definiteness, and consideration. I will
consider each in turn. In May, Charlie offered to amend the
contract by hiring additional workers for an additional
$200,000. Olinda accepted this offer when she agreed to pay
the new price. Therefore, there was offer and acceptance.
Furthermore, the exchange of promises was clear and
sufficiently definite, so that a court could determine if the
obligation was not honoured (i.e., $200,000 on the one side,
and finishing the construction by August on the other side).
Consideration can be found in an exchange of promises….
Putting this into practice
Charlie might be able to win if I could prove that he
conferred a practical benefit on Olinda. There is a
good case for this because Charlie arguably conferred
a practical benefit because he promised to complete
the house in spite of the bad weather. This rule comes
from Williams v Roffey Bros and holds that a practical
benefit can count as consideration for a promise to
amend a contract. On the other hand, Charlie could
also argue that the decision in GFAA v Nav Canada
holds that consideration is not needed at all for
contractual variations.
Putting this into practice
Charlie’s ability to recover the $300k will turn on the enforceability of Olinda’s promise to pay the
additional $200k and then the enforceability of Charlie’s promise to accept $700k in lieu of $1M.
Under the traditional rule (eg, Gilbert Steel), amendments must be supported by consideration. Charlie
did not offer anything new in return for Olinda’s promise. However, two modern doctrines may help
Charlie. First, under Roffey Bros, a practical benefit conferred can count as consideration for a
contractual amendment. Here, Olinda received the benefit of guaranteed completion of the building
on time. Our situation is distinguishable from Roffey Bros in that, there, the parties made a mistake in
setting the original price too low; however, Canadian courts have found a practical benefit even when
there was no initial mistake. Second, under GFAA, which is only binding in New Brunswick but may
be persuasive, no consideration is needed for an amendment. If a court accepts either doctrine (which
is likely, at least for Roffey Bros), Olinda’s promise to pay $200k more is enforceable.
Unfortunately, this will not help Charlie. Under the Judicature Act, express agreements to accept a
lesser sum in satisfaction of a greater debt are enforceable regardless of a lack of consideration.
Charlie expressly accepted Olinda’s offer to pay $700k to satisfy her debt of $1M, so his promise to
accept the lesser sum is enforceable. I would advise Charlie that he will not be able to recover any
more from Olinda, so he should not waste his money suing her.
Essay / Policy
Essay/Policy Questions
• There are two main types:
– Questions that ask you to evaluate or compare legal
All other common-law jurisdictions have eliminated
blanket prohibitions on the right of third party
beneficiaries to enforce contracts. Should Canada follow
– Philosophical questions:
In the Year Books, Chief Justice Brian is quoted as saying:
“It is common knowledge that the thought of man shall
not be tried, for the Devil himself knoweth not the
thought of man.” Discuss with respect to contract law.
Essay/Policy Questions
• There is no “right” answer.
– Essay questions usually focus on controversial (or at least
unsettled) or broad philosophical issues.
• But you do need to make an argument.
– It’s almost always better to come to some kind of conclusion.
– Acknowledge counterarguments and treat them fairly.
• Refer to assigned readings as much as you can.
• Consider doctrinal coherence, principle, and practice.
– How your position fits in with other, uncontroversial legal
– Argue from first principles.
– Anticipate the consequences of different legal positions you
might advocate (i.e., consider policy arguments).
Stock Essay Structure
• You still need a clear structure.
– Aim for the “tell them what you’re going to tell them, then
tell them, then tell them what you told them” approach.
• First Paragraph: Describe the issue and give a thesis
• Middle Paragraphs: Here are the main points that
support my thesis.
– Try for at least three separate points.
• A Paragraph Near the End: Here is a criticism of my
thesis AND here is my rebuttal to that criticism.
• Final Paragraph: In sum, my thesis is right. Here is some
additional food for thought.
with Stress
and Anxiety
Before the Exam
The two iron laws of first year exams:
1. Everyone is in the same boat.
2. It gets better.
Before the Exam
• Make a schedule for studying for all of your classes.
• Make sure to schedule some relaxation time.
• Write a good outline—even if the exam is closed-book.
– Organize it around issues or common sets of facts.
– The cases are important but they’re secondary.
– Make checklists or flowcharts.
• Get help.
• Get plenty of exercise and sleep. Cramming is never worthwhile for
law school exams.
• Avoid other law students if they stress you out.
• Lay off alcohol and other drugs until after your last exam. They
might help you wind down quickly but also inhibit restful sleep and
hurt your next day’s studying.
During the Exam
• The morning of each exam, make sure to eat a
proper meal.
• Bring some water and QUIET snacks.
• Once the exam starts, ignore everyone else. Get
into a zone where it’s just you and the exam.
• If you read a fact pattern and you just can’t get
anything out of it, reread it from the beginning
looking for trigger words.
• Consider taking a bathroom break between
Go Forth and
Brain Dump
No More!

similar documents