NOTE: What follows is largely superceded by contents of Gaming Emperor Law School. Consider, e.g., Section 5: (Fundamentals en route to a solution), Chapter 4, p. 166 – The conventional wisdom (CV) of law exam writing and preparation (It isn't enough!); Chapter 8, p. 229 – Omnipresent "IRAC" (Where this [mere] formula fits into the picture).
- Why and how the (merely helpful) advice of law professors and ALL other aids falls short (including the problem posed by the myth of “the Right Stuff” as the key to success in law school)
- An example of inadequate standard advice
- Introduction to law school exams and the standard “IRAC”-based advice (that has been around and proven ineffective for decades)
- The essay hypothetical exam exercise
- Conventional (exam writing) wisdom (CW) isn't enough
- The standard advice or conventional (exam writing) wisdom (beginning with a dissection and debunking of “Eight Secrets to Top Exam Performance” [a booklet distributed by bar prep giant BAR-BRI, at its free, 45 minute exam writing presentation])
- The CW respecting preparation for exams
- The CW respecting the actual writing of exams
This [live LEEWS program] was a fantastic experience. These are precepts that my law school should have introduced the summer before my first semester. Better late than never here!
— Vishad Dewan, Univ. Santa Clara '10 (as a second semester 1L)
My first attempt at a legal memo followed many LEEWS ideas. My memo was used as an example in class. The teacher asked, “Where did you learn to write like this?”
— Alec Egizi, Loyola-Chic. '08
Everyone says near the end of the semester everything will start to "click." That isn't true. Mr. Miller made it "click." Nothing else even scratches the surface.
— Rita Weeks, Boston University '04
As you doubtless are beginning to appreciate, a bewildering array of books, workshops, etc. offer advice on how to prepare for and write law school exams. Some are commercial. Others are impromptu sessions put together by supposedly knowledgeable professors and upperclassmen. However, unless you fall among that small and unpredictable 5-7 % of law students with a knack for writing law exams, our over 30 years of experience in the field conclusively demonstrates that NONE of these many offerings will enable you to consistently write "A" exams.
Why and how the (merely helpful) advice of law professors and ALL other aids falls short (including the problem posed by the myth of “the Right Stuff” as the key to success in law school)
The reason exam writing advice offered by law schools, law professors, and all others falls so far short of the science of preparation and exam writing developed and polished these many years by LEEWS is simple. If you don't believe a science of how to write law essay exams exists, you won't think and probe and fret and experiment to discover such a science!
Law professors and our competitors haven't thought nearly as long and hard as we have about how to prepare for and handle the essay hypothetical-type law exam featured in almost all law schools and most bar exams. They lack our insights into common denominators that make preparing for and handling ANY and ALL legal problem solving exercises very predictable. They fail to successfully meld the overly theoretical nature of case method instruction with the eminently practical lawyering exercise posed by a chaotic fact scenario that ends with the instruction: "Resolve all legal issues in the foregoing fact pattern" (as a lawyer versed in my subject area would!). As a result, the advice they offer, while helpful, is mere bits and pieces. It is rudimentary. It is situation specific. It is hardly a system. It is largely ineffective. And this does not trouble law professors in the least!
A primary requirement for securing a law school professorship is doing well in law school —“A” grades, which in turn lead to the obligatory federal judicial clerkship. Most law professors got A's. If you query how, what was the secret to their success, they'll cough, harrumph, and say something like, “Well, uh, I studied hard; I went to class; ...” What they won't say, but are thinking is, “I had the Right Stuff,” an innate aptitude for learning the law and exhibiting insightful, “lawyerly” analysis. Although many law professors are now LEEWS grads, they, too, tend to subscribe to this self-flattering notion. It is hard to resist when others insist that your success is the result of some kind of genius.
The (big!) problem of the myth of "The Right Stuff"
At every law school, from law professors, from students who have done well, and from students who haven't, one encounters the belief that doing well in law school requires an innate lawyering aptitude. At the conclusion of "Law School Examinations," an exhaustive 70 page article in Vanderbilt Law Review, Vol. 42, No. 2 (March, 1989), law professor Phillip C. Kissam concluded, "... the exercise of examination productivity [meaning doing well on exams], especially in view of the speed required [meaning the artificial and often severe time limits of law exams], appears to involve a significant degree of natural talent." (At p. 459.) (Emphasis added.) In the book, Planet Law School (see link to our review at the home page) this quality is referred to as being "a natural born genius of the law."
Given the confusion generated by law exams in even the brightest and most diligent of law students, and the inability of college gpa, LSAT scores, and hours in the library to predict law exam success, how else is one to explain why only one among ten otherwise indistinguishable law students manages to write an exam meriting an "A?" Put another way, given their uniform exemplary qualifications and diligence, why are the great majority of law students, even at the Harvards and Stanfords, relatively clueless when in comes to successfully managing law exams?
The answer, of course, plain as the nose on one's face, is that law schools and law school teaching fail utterly in their central task of teaching law students how to perform "as lawyers" on time-pressured law exams. (Seriously, they do!) But no one wants to point out that Emperor Law School is naked(!!). Rather, law professors excuse the failure aptly demonstrated by the overwhelmingly mediocrity of the exams they grade, with the idea that most law students lack the necessary innate ability to do better. The great majority of law students, thoroughly confused and cowed by exams, accept their inability to write "A" exams. Despite diligence and a lifetime of excellence in taking exams, they find fault with themselves -- "I don't have the Right Stuff!" Naturally, the few who give professors what they want (a lawyer versed in the subject area coming off the exam page!) and achieve rare "A" grades, are only too happy to accept the laudatory judgment of professors and peers that, "You have what it takes!" (I.e., the Right Stuff.)
If others say you have the Right Stuff, if you imagine and accept that your success at law exam writing is the result of innate lawyering aptitude, that you are a natural-born genius of the law -- and why wouldn't you?!, then you have no great incentive to investigate or question the how and why of your success. You have no incentive to discover a science of preparation and exam writing that takes the mystery out of law exam success, and that, effectively applied, could duplicate, even exceed your success. Indeed, such a science would demonstrate that your success is the result of a mere knack, conjoined with the confusion and ineptitude of your competitors.
Thus, when law professors and students who do well are asked to offer advice on how others might do similarly well, this advice tends to be ad hoc and anecdotal, in the vein of "this is what worked for me." Beyond such bromidic common denominators as "work hard," "learn the law," "follow IRAC," "identify relevant issues," "argue both sides," "paragraph frequently," etc. (see advice below), there is nothing that can be characterized as a true system applicable to all legal problem solving. Indeed, even basic concepts such as what, exactly, is an "issue," what is meant by "learn the law" or "apply the law," how exactly one "follows IRAC," are not satisfactorily fleshed out. One successful student swears by commercial outlines. Another points to his/her elaborate course outlining technique as the secret to success. However, underlying the discussion and confounding any effort at organizing disparate helpful hints into something resembling a true and comprehensible and generally applicable system is the idea that absent an innate lawyering aptitude, efforts at achieving "A" grades must ultimately fail.
In sum, law professors and students who do well have no incentive to dig and think hard, so as to discover a science of law exam writing that demystifies the law exam writing process. Indeed, such a science would discount their success, reveal it as the result, very likely, of a mere knack, of luck. What if top grades merely reflect the circumstance of some students being less inept than others, and therefore receiving the few A's dictated by the grading curve?! (A conclusion stongly suggested by the fact that students who take LEEWS, while not necessarily the class hotshots, or those with the highest LSAT scores, nevertheless frequently Am Jur [receive the top grade in the class].)
This is the unique circumstance that gave rise to LEEWS. Mr. Miller, LEEWS founder/instructor, despite being a Rhodes scholar, despite having one of the highest LSATs in his entering Yale law class, stumbled and bumbled on exams as most law students do. However, as a practicing lawyer he revisited the problem (as a tutor charged with preparing law graduates to take the essay portion of the New York bar exam). Over a period of several years wrestling with what beyond the standard advice he could offer tutees, the combination of this effort with his ongoing actual practice of law led to breakthrough insights into the problem, and eventually the true and proven science of preparation and exam writing success that is LEEWS.
An article in a national law student magazine (National Jurist, Jan/Feb 1998) demonstrates the problem with advice offered by law professors (and others). Entitled "Getting the Edge," it offers advice to students who have not done well first semester from several law professors and law school administrators.
"Only professors can tell students precisely what mistakes they made," counsels the article. We at LEEWS agree that students should go over exams with professors. However, the suggestion that different professors want different things - thereby contradicting the possibility of a system applicable to ALL exams - is erroneous. If you think about it (as we have for over thirty years!), the purpose of law school, bottom line, is to train lawyers. Law exams, not surprisingly, are designed to measure progress in becoming an attorney. Therefore, WOULDN'T ANY PROFESSOR BE PLEASED TO SEE, COMING OFF THE EXAM PAGE, A LAWYER VERSED IN HIS SUBJECT AREA, COMPETENTLY APPLYING RELEVANT LAW TO RESOLVE "ISSUES" IN THE FACT PATTERN ("HYPOTHETICAL") THE PROFESSOR TOOK THE TIME TO CREATE?
Of course! ALL PROFESSORS WANT EXACTLY THE SAME THING! - to see issues prompted by their fact patterns ("hypos") discussed as a clever, knowledgeable lawyer would. What else could they want?
A student visiting a professor can usually gain only two pieces of useful information - 1) did I identify all relevant issues; 2) was my analysis of those issues adequate? The idiosyncrasies and preferences of the professor should have been gleaned in class - from a review of old exams and articles written by that professor, from discussions with former students. Respecting HOW to go about identifying issues, HOW to perform analysis that impresses, and HOW to present analysis concisely, the professor's advice will likely be vague, generalized, inadequate.
The foregoing article proves this point. It advises that students compare their responses to model exam responses. [Okay. There will be useful indications here.] It counsels that students should ask themselves how hard they studied and what kind of attitude they took into exams. In the latter regard, a weekly chart of study progress - what is done and when - is suggested. Again, as a general proposition, okay. This is helpful, if obvious advice. But this is hardly a science or system of exam writing.
"Sophisticated book briefing" is advised, meaning making notes in the margins of cases and highlighting facts, rules, etc. in different colors, versus writing out briefs. This supposed time-saving strategy is termed a "study system," but it is not. The problem with this particular bit of advice, which merely describes what most law students begin doing anyway several weeks into law school, is that cases must be revisited when outlining for exams, an incredibly time-wasting duplication of effort.
By contrast, the LEEWS approach instructs getting what you need from cases the first time - legal "tools," and an understanding of how to apply them to new facts. Our truncated approach to briefing contemplates more thinking, but far less writing. Indeed, our students typically report 2-4 line case briefs. (No statement of facts, procedure, issue, holding, rationale. Just "tool[s]" [rule(s) of law fleshed out with the help of a commercial outline], and a ten word or less synopsis of the case. The synopsis easily brings back the issue, holding, etc., should you be called on - because the information has been imprinted in your memory through practice in applying the "tools" [which happens to be the best thing you can do in preparing for the new facts posed on an exam.]) Certainly, you never want to revisit cases.
[We realize you may be getting a bit confused here. These are new concepts, and understanding some of this requires a foundation of knowledge and experience that you perhaps don't yet have. Certainly, understanding how our students can achieve more in 2-4 lines than other students achieve in a (typical) page of briefing is not easily comprehended. For it goes to the heart of what LEEWS accomplishes - understanding how lawyers think and analyze, and thereby understanding how to learn and extract the law from cases in preparation for exams -, which is only fully understood and appreciated toward the end of the program. But your task here is not to understand WHAT LEEWS entails, but only to begin to grasp HOW LEEWS differs in scope, depth, and thoughtfulness from the prevalent conventional exam writing/preparation advice - which accounts for its remarkable effectiveness.]
The article goes on to advocate studying in groups and making up hypothetical questions as a "wonderful way" to prepare for exams. Finally, from the dean of academic affairs at the University of Pittsburgh School of Law: "My basic advice is ... just hang in there. As you get used to [writing exams], it will be easier." Hm-m.
This final admonition is the typical professor cop-out when it comes to offering exam writing advice. As discussed above, the professor (or dean) likely had a knack, wrote "A" exams, and doesn't believe that a science of how to prepare for and write law exams exists. He/she subscribes to the innate lawyering aptitude, Right Stuff notion. Indeed, one frequently hears the view expressed -- "You either have it, or you don't."
As noted, it will be assumed by students as well as professors that the student who doesn't do well first semester lacks the requisite "lawyering aptitude." Or, if he/she has such aptitude, it will manifest itself if but a little more effort is put into studies and preparation. Respecting writing "A" exams (as opposed to "B" exams), the professor will surmise that there is little beyond standard do's and don'ts to be advised. Thus, a session with a professor will typically conclude with the discomforting admonition that, similar to the view of the foregoing U. Pitt dean, "it will all come clear," "things will fall into place." (Assuming, of course, requisite aptitude exists.).
Introduction to law school exams and the standard "IRAC"- based advice (that has been around for decades)
The above notwithstanding, it must be recognized that some law professors and others have devoted considerable thought to the subject of how to prepare for and write "A" law exams. 1
The advice provided by no less than a Harvard law professor to LEEWS founder, Wentworth Miller, over thirty-five years ago when he was a 1L, represents the sum and substance of a body of wisdom and advice we will call "Conventional Wisdom" or CW. Also provided is a synopsis of "Eight Secrets to Top Exam Performance," set forth in a booklet of the same name by well-known University of Southern California law professor, Charles Whitebread. This professor gives free 45 minute exam writing lectures at many law schools, plus copies of the booklet, as a goodwill gesture on behalf of bar exam prep giant, Bar-Bri.
However, we reiterate our considered opinion that none of this instruction, none of these insights go measurably beyond a body of wisdom and advice that has existed in law schools for decades. Moreover, this advice has never resulted in predictable success for any but a minority of law students.
Central to CW is "IRAC," an acronym for "Issue, Rule, Analysis, Conclusion." At every law school, from most professors, and central to virtually every book, guide, or program purporting to instruct how to write law exams will be the axiom, "Follow IRAC," or "IRAC the exam." This means identify or "spot" relevant Issues, state the applicable legal Rule or precept relating to an issue, Analyze or "interweave" law and facts relevant to the issue, and Conclude - hence IRAC. IRAC is therefore a formula indicating the four elements typically wanted in the analysis of an "issue." As such it is highly useful. Indeed, it comes as a revelation to wholly confused and intimidated new 1Ls. But IRAC is hardly a "system."
Indeed, from a LEEWS perspective IRAC barely scratches the surface. IRAC doesn't instruct HOW to identify issues (or what is meant by "issue"), HOW to analyze and learn the law, HOW to present analysis concisely, and so much more.
The Essay Hypothetical
The simplex admonition to "follow IRAC" reflects the circumstance that the great majority of law school exams present variations on a common format - the "essay hypothetical," a fictional fact pattern of (typically) incredible complexity, introducing legal problems needing explication and resolution. If the subject is torts, then "hypotheticals" or "hypos" on a torts exam introduce improbable scenarios of injury and mayhem. Contracts hypos introduce agreements, bargains and obligations gone sour. Criminal law hypos introduce misconduct, police searches, etc. Bankruptcy hypos describe debtors and creditors, transfers of assets, etc. And so on.
The examinee is typically instructed to take the role of lawyer, judge, law clerk, etc. Now sort out the legal ramifications emanating from the several fact patterns that constitute a typical three-to-four hour exam exercise. The legal issues or problems needing resolution are typically not given. They must be identified, or "spotted." The applicable law is usually not given. However, often instructions are given to "assume federal law controls," or "state law," or the "majority" or "minority view," etc. The examinee is to identify, analyze, and resolve relevant issues, much as an attorney sorting out a jumble of facts provided by several potential clients might do.
[If you have never looked at a law school exam, you might want to click on Sample Exams just to get a better flavor of what "hypos" are like and what you are up against.]
As noted, given the unfamiliar nature of the essay hypothetical to the novice law student, the instruction to "IRAC the exam" offers useful guidance. Add to this lodestar such standard advice as "learn the law" (by reading and briefing cases); "practice lawyerlike analysis" (again, by briefing cases and attending to class discussion); "gather the law in course outlines" (by periodically synthesizing class and briefing notes); and "practice on old exams," and you have what seems a comprehensive system of approach to preparing for and writing law exams. Flesh out the foregoing with some specifics, and you have the gist of exam writing/preparation advice offered by professors, upper-class law students, and all our competitors.
The shortcomings of CW became evident to Wentworth Miller as a law student, and particularly over a period of several years while he was practicing law and tutoring law graduates preparing for the New York Bar. Although IRAC instructed WHAT, generally, to do, as noted, it failed to instruct HOW, as a practical matter, to systematically identify issues needing resolution, HOW to perform lawyerlike analysis, and HOW to present analysis concisely, yet effectively on paper. Such fundamental questions as "What is an issue?" remained unanswered. Although IRAC and CW is a good start, all but a handful of law students need much more insight and instruction if CW precepts are to be implemented efficiently and effectively.
Not that CW doesn't seek to address practicalities. (Again, note the CW reprinted below.) However, should you attempt to apply such generalized and often obvious advice to an actual exam, unless you are one of the very few law students with a knack for writing law school exams,2 you'll find yourself floundering about in a hit-and-miss exercise that falls far short of the mark set by all professors (whether they realize it or not) - how would a competent lawyer versed in the subject matter being tested address the fact pattern?
Law professors and others simply haven't thought about the problem of preparing for and writing law exams as closely as Wentworth Miller. They lack the fresh insights of the LEEWS approach. They don't come close to the hands-on, practical, "how to" instruction LEEWS offers.
The standard advice or conventional (exam writing) wisdom (beginning with a dissection and debunking of “Eight Secrets to Top Exam Performance” [a booklet distributed by bar prep giant BAR-BRI, at its free, 45 minute exam writing presentation]
As noted above, Professor Charles Whitebread of USC, as part of his Bar-Bri sponsored, 45-minute promotional talk on exam writing (sometimes wtih free pizza!) distributes, free, a book purporting to reveal "Eight Secrets" and a “Step-By-Step Program” for “Achieving Great Grades.” Typical of an overly academic approach to the problem, nowhere in the book is any insight offered into what it is that lawyers do, as a practical matter, and how such insight can be brought to bear on law school exams - which are, when all is said and done, tests of progress in mastering the lawyering art.
Straight off, evidencing characteristic inattention to detail that LEEWS corrects, the good professor is vague in defining the very thing that law students must "spot" or identify in fact patterns - namely, “legal issues.” He says:
These are not necessarily black letter rules of law. They may well be principles of public policy or even principles from other disciplines which the professor has brought to bear in discussing the ramifications of competing legal rules. (p.6)
In other words, "legal issues" are what - legal principles? He means that identifying a legal rule or policy ground relevant to the fact pattern and the resolution of a problem will bring one to a "legal issue." But he is woefully imprecise. Contrast this with the definitions provided in the LEEWS approach. First, the only "issues" of interest in a law exam are "legal." Therefore, we dispense with the "legal." "Issues" then become "legal inquiries," the more focused, the better. Even more precisely, "issues" arise when "premises" are discovered, and the question is posed: "Will the premise succeed?" "Issues" may also be understood as occurring wherever the opposing attorneys (to a relevant conflict pairing) will fight. Where they would clash over a legal construct in a courtroom, there you will find an "issue."
"Issue" is understood in relation to the task undertaken and performed by attorneys.
Characteristic of law school and professorial advice, our itinerant scholar further promotes vagueness and imprecision by promulgating a misnomer that typically must be corrected in LEEWS attendees. He habitually refers to fact patterns as "questions," as in "the traditional 200 to 500-word, hypothetical fact pattern essay question." Indeed, in almost every law school one hears the expression, "call of the question," "question" meaning the fact pattern, and "call" referring to the question or instruction at the end of the fact pattern. But this is nonsensical and misleading. A fact pattern is not a question. It is a fact pattern. The "question" is the inquiry (or instruction) typically found at the end of the hypothetical fact pattern. For example, "What are party X's rights?"; "How should a motion to dismiss be decided."
If the terminology is so inaccurate, how focused can the nuts and bolts instruction be?
As for the "Eight Secrets," there is nothing new or secret about what the professor has to offer. It's the standard wisdom that has been around for decades - repackaged. For example:
- #1 - Allocate time overall for the exam [He calls it "External Time Allocation."], and within each hypothetical [Internal Time Allocation]. Read the question [sic] and organize your answer. And prepare to discuss each issue in an organized and concise manner. And do all these things before you write the answer.
- #'s 2, 3, & 4 - Consist of explication in greater detail of what is meant by #1. Hey! Isn't this four, not three secrets?
- #5 - "IRAC!," as in "IRAC the debatable issues" [p. 37], and "the IRAC technique," and discussion thereof.
- #6 - Standard advice on the actual writing of the answer, such as don't skip around; type, if possible; avoid lengthy introductions; write on every other page; avoid legalese; rarely cite cases; etc.
- #7 - Do some detective work on your professor to discover what he/she is likely to test on.
- #8 - Advice on open book and take home exams, advice on objective, short answer, and policy questions. Plus six sample hypotheticals with model responses.
Don't get us wrong. This is generally correct and helpful advice. It is surely better than no advice at all, and will seem useful and altogether reassuring and satisfactory to the 1L who has yet to take an exam. But it's the same old, same old. It's nothing a 2L hasn't heard. And unless that 2L has a knack for writing law essay exams (as our traveling professor, an "honors graduate of Princeton and [like Wentworth Miller] Yale Law School," doubtless had), it doesn't come close to providing what that student needs to consistently write "A" exams.
As for CW in general, the following advice set forth in a mimeograph by a Harvard law professor, and given to Wentworth Miller over 35 years ago when he was in law school, pretty well covers the ground. We'll add to it where appropriate (italicized material) to reflect additional CW developed over the past 35 years. LEEWS observations and commentary are added in brackets.
As noted, the advice provided by no less than a Harvard law professor to LEEWS founder, Wentworth Miller, over thirty-five years ago when he was a 1L, represents the sum and substance of CW respecting preparation for exams. It is reprinted below, together with addenda that current CW might add (in italics), and observations on what is missing and problematic from the LEEWS standpoint [in brackets].
- Know the subject area thoroughly. Read and brief every case. Prepare for class. Attend to class discussion. Practice writing out responses to old exams - typically on file in your law library. [Conventional briefing - facts, issue, procedure, rule, holding, rationale, etc. -, as you know, or will come to know, is tedious, time consuming, and ultimately ineffective. Thus, few students brief after first semester. (They "book brief," the shortcomings of which are discussed above.) Something more streamlined and geared to exams, not class is needed. Moreover, neither conventional briefing nor class discussion adequately instructs most law students in the nitpicking dialectic of "lawyerlike analysis." Students THINK they know the law going into exams. But until they learn how to analyze as a lawyer and practice it, they can't possibly know the law with sufficient precision.]
- Prepare an outline for each course containing the rules, principles, precepts, etc. that you may be responsible for on the exam. Work on this outline every week. Condense it to a checklist you can refer to while reviewing the facts of a hypothetical. If a closed book exam, recreate this checklist at the start of the exam. It may be useful to acquire a commercial outline that sets forth the "black letter law" more clearly than what appears in your cases. [Pretty good advice. However, until the student learns how to fashion the law into tools, and apply those tools to facts as a lawyer would, it remains unclear what should go into the course outline, how it should be organized, how to make good and efficient use of the outline during an exam, etc.]
Again, the advice provided by the Harvard law professor over thirty-five years ago, together with addenda that current CW might add (in italics), and observations on what is missing and problematic from the LEEWS standpoint [in brackets].
There is no single correct way to answer a law essay exam. If your answer demonstrates knowledge of the law and sound reasoning ability, it will favorably impress the grader.
[What does "sound reasoning ability" mean? How does one express it concisely?]
- In form a good answer will be the following:
- easy to read;
- clearly expressed;
- well organized. [But how? Show me how.]
- A poor answer, by contrast, will:
- be vague, rambling, and disorganized;
- miss major issues; [But what is an issue?]
- give erroneous law on basic points;
- resolve issues by merely stating conclusions unsupported by law.
- Be aware of the time limits as you begin your answer.
- Spend no less than 1/3 of the allotted time, and preferably 1/2 of the time reading the question and organizing and outlining your answer [LEEWS note: 1/2 will invariably be too much time reading, organizing, outlining. You must get on with what counts -- the response itself.] - i.e.:
- Read the question [sic - meaning fact pattern] twice [LEEWS note: This confuses and intimidates most students.];
- Note all the issues on scratch paper, or in the margins. Pay attention to "issue generating" words and phrases. Pay attention to adverbs, adjectives, dates. Follow your checklist.
- Note what rules are applicable to your facts, and how you will use them;
- Arrange a logical sequence for presenting your discussion. In this regard a chronological sequence may be effective, unless the rights of several parties must be given. Order your response according to transactions, often the format of torts hypotheticals. Develop a time line.
[Again, the use of "question" in the foregoing is a common misnomer of CW. By "question" is meant the fact pattern, not the question(s) or instruction(s) that follow the facts. Although reading the facts a couple times is omnipresent CW, we at LEEWS disagree. This instruction illustrates precisely the lack of meaningful insight into the essential nature of legal problem solving that typifies CW, especially how all fact patterns have common denominators that enable them to be approached and dissected in similar fashion. Plunging into an impossibly complex fact pattern with no objective other than the general guideline to "spot issues" is what sinks most law students. Confusion and anxiety immediately build. The exam attacks the student, not the other way around. A desperate effort to survive, not master the exam ensues. Should you doubt us on this, ask an upperclassman.]
Regarding the actual writing:
- Make use of all facts. Rarely do the facts contain red herrings;
- Don't assume facts (i.e., don't assume "agreement" means "contract");
- Divide the discussion into separate issues, and cover one at a time;
For each major issue: [Meaning??] -
- Begin with a statement of the conclusion; [For bar exams, yes, but not law school exams.]
- I — State the specific legal issue involved;
- R — State the legal rules applicable to the factual issues;
- A — Set forth your reasoning, demonstrating why, in the context of the given facts, a particular rule or rules should be determinant of the legal issue. If there is another view, indicate your recognition of it, and why you reject it;
- C! Resolve the issue;
- Write clearly and legibly [LEEWS note: Today, if you are not typing into a disc, you'll normally have the option to type your response. Typing is faster and solves the clarity aspect. Why would anyone choose to write an exam, unless they don't want the professor to be able to decipher what they put on paper?];
- Use short sentences for clarity;
- Paragraph frequently. This will make your answer easier to read;
- Avoid expressions like "I feel," or "I believe," which may be substitutes for reasons. Use instead a third person expression, such as "plaintiff may contend";
- Avoid dogmatic expressions such as "certainly" and "undoubtedly." The point in most cases will be arguable;
- Avoid abbreviations. At least limit them to those in common usage;
- Argue both sides of issues.
The foregoing advice is fairly specific and practical. Compared to no advice, it seems a godsend. For some few students — the 5-7 percent with a knack, who can't be predicted by LSAT score, hours in the library, etc. — it is enough. No wonder first semester law students are generally pleased with and appreciative of the exam writing instruction provided by professors, upperclassmen, and others. They can't imagine that there is much more to be said on the subject.
But think about the foregoing advice for a moment. Do you have a feel, at long last, for what an "issue" is? Other than a general idea that you should be logical and make use of all facts, do you now know how to analyze "like a lawyer"? Would addressing one or two hypos and comparing your response with a model "A" response - the standard additional fare offered in programs run by professors, upperclassmen, and our competitors - bring it all together?
For those very few with a knack for the kind of argumentation that professors will recognize as "lawyerlike," the foregoing instruction may indeed be enough. But we have found over a period of over nearly three decades, and interaction with well over 100,000 law students, that even the infrequent 3L who attends LEEWS, and who has heard all the CW, is first amazed, then angered upon being introduced to the far greater insight into the problem and practical, nuts and bolts instruction we offer. The typical reaction is: "Why don't all law schools instruct this? Why wasn't I given this in my first semester?" 3]
Where all others offer merely helpful advice,
LEEWS offers a proven effective science.
1. See, e.g., "Law School Examinations," by professor Phillip C. Kissam, Vanderbilt Law Review, Vol.42, No.2 (March, 1989). In a somewhat abstruse, 70-page exploration of the "deep mystery of bluebook (i.e., law hypothetical) exams," the professor offers standard advice and insights, and ultimately concludes, "the exercise of examination productivity [i.e., doing well on exams], especially in view of the speed required, appears to involve a significant degree of natural talent" i.e., innate ability, a knack). (At p.459.) back
2. Approximately 5-7% of law students, a disproportionate number of them with backgrounds in the so-called "hard sciences" (math, physics, engineering, etc.), exhibit an aptitude for methodical, yet efficient isolation of discreet legal inquiries (issues!) from a jumble of facts, and concise presentation of the kind of nitpicking, lawyering dialectical analysis that impresses professors and earns A's. They need little advice on how to prepare for and write law exams beyond the standard fare, and they garner the lion's share of the typically fewer than ten percent "A" grades awarded. They cannot be predicted by college GPA, LSAT score, hours in the library, or similar objective criteria. back
3. The short answer is that professors, by and large, are a self selected group. Although more and more are popping up in law schools who took LEEWS, most did not take a formal, exam writing course. They had a knack for writing "A" exams. They got mostly A's and made Law Review (top ten percent). And they clerked for a federal judge. These, by and large, are the people law schools hire as professors. (Few attorney-practitioners are engaged as other than adjunct professors, conducting clinical programs - i.e., trial advocacy and prisoners legal rights.) They tend to subscribe to the prevalent, but erroneous view that "You either have it, or you don't" when it comes to writing law essay exams - i.e., some almost mystical, innate, lawyering aptitude. It does not occur to this group that a true science of how to pull apart and address all essay hypothetical-type exams might exist, so they have not endeavored to discover such a science. Indeed, such a science would threaten the mystique they enjoy (and tend to cultivate) as that rare breed who mastered the art of writing 'A' law exams. back