How to Study for Exams

If you have studied your cases for the daily lecture far enough in advance, taken down what the professor has said in class, and done as much outside reading as possible in texts, outlines, and law review articles, you will probably get fairly good grades on your exams.

The most important thing in studying for exams is organization. First, plan your time so you can start studying for finals at least three weeks before the test date. This is especially important. And you should be completely finished at least two nights before an exam is given. If you wind up cramming the night before an exam, you will take the test under great stress and it will be a lot tougher to come up with good answers. You may not believe this advice works; but if you feel it is necessary to look over your notes the night before an exam, at least be sure you have finished studying, so that all you do is look over. Do not leave any learning until the last minute. Procrastination is the Lorelei of the legal profession. If you succumb to her siren song, you will be dashed against the rocks.


The first thing to do is go over the casebook table of contents, which you have already memorized. This should immediately bring all the major points back to you. Then go through each case in your casebook, studying the rule you wrote at the top before the semester started; use the mnemonic stick figure to bring back the facts of the case, and carefully read marginal notes which you may have added during class discussions, memorizing any summation lists the professor may have given out. If something is not clear, read the case itself for clarification. Supplement your studying with any other outlines or summation material you have.

Frequently, in your studies, you will find that the general rule for some proposition is divided into a majority and a minority view. Each of these divergent views may in turn depend on the resolution of the facts which the trier has reached in a given situation. You should be able to set these variations up into something resembling a genealogy table or a decision tree. The kind of material exam question designers are drawn to lends itself readily to this approach.

The question will inevitably arise: Should you study alone or with others? After many years of helping friends get through law school and pass the bar exam, I'm convinced that the first study and review should be alone. This applies to daily class work as well as exams.

Communal study is often very profitable, but it's better to study by yourself until you are sure you know the material. Only then, go through a workout with others. There may be a couple of points you have overlooked or misunderstood. But in the main, you will find yourself ahead of your colleagues. Because of your superior knowledge resulting from the way you have prepared, you will find yourself teaching and explaining to them. This will greatly reinforce your own learning. It will also send you into the exam with the confidence you need to do your best in the most relaxed manner.

After any joint discussion sessions, leave yourself enough time to do your own final review. You may discover that you have picked up some wrong approaches which need correction.

I do not want to leave you with the impression that you should be a loner. One of the most valuable aspects of law school is the constant, informal give and take among students, where hairs are split and the growing knowledge of the law being acquired is applied to all kinds of imagined situations designed to test the rules being learned.

Most students do not realize that in writing a question, the examiner often tries to guide the student into the specific area of the law on which discussion is expected. For example, there is a doctrine in contracts called the Statute of Frauds. It really has little to do with fraud. It concerns the requirement that certain types of contracts must be in writing or they will not be enforced by the courts-such as a contract for the sale of real property. Like all major doctrines, this one contains exceptions. It is the study of these doctrines or rules, and the exceptions to them, which comprise much of the study of the law. Thus, if an exam question in contracts gives a lot of facts, and incidentally says the agreement between the parties is in writing, this may be a signal the professor wants you to recognize that the Statute of Frauds issue is not applicable, and then go on to discuss the other issues raised.

At the start of any particular course, you will not have much feel for what it is all about, only a general idea of where you are headed based on your preliminary preparation. Later on, as your knowledge deepens, various parts of the course will fall into logical sequence. It will be extremely helpful when taking exams if you have developed a system to help you summarize each section. A good way to do this is to make up your own hypothetical set of facts to cover a particular subsection of the course. Let us look at the area known as quasi-contracts, sometimes part of a course called Remedies or Restitution. For the first several weeks, the incantations sound something like this: "unjust enrichment," "reasonable value of the benefit received," "contract implied in fact," "contract implied in law."

Start with Harvey Brown of Middleboro, Anystate, U.S.A. He lives in a tract house across the river in the Blissville area. Every house is exactly the same for a mile in each direction. One day, Harvey is at the Middlebore Service Club weekly luncheon, sitting next to Joe, the roofer.

"Joe, old Service Club buddy, how much will you charge me to roof that little place of mine over on Wishing Well Lane in the Blissville area?"

"For you, Harv," says Joe, after thinking a minute and making a quick calculation on the tablecloth, "fifty-four hundred dollars."

"That sounds pretty good, Joe. When can your guys get over to do the job?"

"How's next Thursday? Okay?"

"Okay."

This is an actual contract, even though not in writing. It is called a contract implied in fact. Harvey has legally contracted to pay Joe the fifty-four hundred dollars when he has finished the job. They polish off the mashed potatoes and broccoli, listen to the guest speaker, and then take off to their offices.

Next Thursday arrives. Joe's men are going over to Harvey's on the roofing truck. By mistake, they miss Harvey's house and hit one just like it on the next street. They put the ladder up against the wrong house, the Machiavellis'. Mrs. Machiavelli, hanging out the wash, watches what is going on and thinks, "If I keep quiet, we'll get a free roof job."

Although Joe's people made a mistake, it would be unconscionable to allow Mrs. Machiavelli to profit by the error which she knew of but did nothing to prevent. After all, she received the benefit of the roof job. The law will not permit her to be unjustly enriched. It will imply a contract in law to rectify the situation. That means that although the parties (Joe and Mrs. Machiavelli) did not actually have a contract, the law will treat them as if they did. "Quasi-contract" means "like a contract" and is the remedy used to put people whole again (where they would have been if nothing had happened), even if there is no actual contract, when one individual is unjustly enriched at the expense of another.

If Joe's men had put the roof on Harvey's house in accordance with the terms of the original contract, and Harvey did not pay, Joe could sue Harvey for the contract price, $5,400. But what is the measure of damages (how much can Joe get) in the quasi-contract suit if he has to take Mrs. Machiavelli to court? The law says it is the reasonable value of the benefit received. Here, the roof job may be worth more or less than $5,400. Joe may have given Harvey a special price. That amount is only some evidence of what a reasonable value might be. At a trial, Joe would testify and would also bring in expert witnesses from the roofing business to state their opinions as to reasonable value. The amount determined by the trier of fact (jury or judge, as the case might be) would be the amount of recovery (what Joe gets if he wins).

Suppose that instead of being home hanging clothes out on the line, Mrs. Machiavelli was away on vacation. Since she did not compound the error, because she did not have knowledge of it, she would not have been unjustly enriched. She would get a free roof job whether she needed one or not.

Through this hypothetical example, the quasi-contracts segment of the remedies course is now neatly packaged for subsequent use, and it is easy to resurrect the principle: Quasi-contract is the remedy for unjust enrichment, damages being awarded for the reasonable value of the benefit received.

Without realizing it, you will gradually find that you are starting to talk like a lawyer. And once you get an area of the law categorized like this one, so you can use it when an analogous situation arises, you will start thinking like a lawyer, too.

During my first year of law practice I had an interesting experience with quasi-contracts. To help with expenses, and also to get known around town as a lawyer, I had been teaching a law-for-lay-persons course at the local adult evening school. One of my students dropped in with a case. He had worked about ten years for the biggest bank in the community and was chagrined because he did not win a hoped-for promotion.

As part of his duties, he had been the bank notary public. The company had paid for his seal, application fee, and official bond premium. It required him to charge notary fees to small depositors and non-customers of the bank, but made him do the work free for the bank itself and its big customers. All fees received were placed in a special account in his name. At the end of each month, the accumulated balance was transferred to the company employees' recreational welfare fund. Huffed at being overlooked for promotion, he had quit his job and now wanted to sue the bank for the notary fees.

Notaries are appointed by the governor in most states and are considered to be independent public officials. The law in most states is that the fees an official receives in the performance of his or her duties are sacrosanct; they belong to the official, and it is improper to refuse to pay them or take them away. I had mentioned this in class in an offhand way one night, not realizing the special value it would have for this student.

On his behalf, I wrote a letter to the branch manager of the bank, saying something like, "When Joe Blow left your employ yesterday, you inadvertently forgot to pay him for the notary fees which he collected in his official capacity, and which we have computed to be $1,100. Undoubtedly, you will wish to correct this oversight promptly. You may do so by sending your check to him, care of the undersigned. If we do not hear from you within ten days, appropriate legal action will be instituted to collect this sum."

(Be extremely careful about what you say when you write a letter to someone requesting payment of a debt to a client. Never imply that criminal action will be taken if payment is not forthcoming. This is a particularly easy trap to fall into if someone has, for example, given your client a bad check. The threat to go to the D.A. and file a complaint charging the debtor with prosecution for forgery or insufficient funds constitutes extortion, a felony. Occasionally, overzealous young lawyers write dunning letters that go over this line, and once in awhile they get prosecuted by a D.A. and disciplined by their state supreme court.)

The bank manager called my office about four times the next morning while I was in court. He wanted to come over to my office right away. Although we had met previously at a few local functions, he had never been too friendly before. Now he was all frozen smiles and oil. He even called me "Mister" when he shook my hand.

Getting right down to business, he told me how I was new in town and what a great future I had ahead of me; too bad I was jeopardizing it by representing someone like his former employee. After all, trying to get the bank's money like this was tantamount to trying to steal it. The bank had paid all the expenses; what did this employee mean by making such an outlandish claim? In all the years he had been a bank manager, he had never heard of such a thing.

By this time, his harangue was getting pretty thick, so I shoved one of the California Supreme Court Reports across the desk at him and asked him if he had ever heard of the case on page 198. I then leaned over, picked up the book and read him something like this from the decision I was referring to: "The Notary Public is the long arm of the Governor in the provinces. It is an offense against the sovereign to refuse to pay or to take from that official his legally authorized fees. Under such circumstances, there is an unjust enrichment for which the Notary Public may bring an action in quasi-contract against the wrongdoer."

The bank manager quickly changed the subject back to what a great future there was for me; he told me how much business the bank could send me and said they would be doing a great service to their customers by the referrals, because evidently I was a pretty smart lawyer. Then he maneuvered into the suggestion that it would be the best thing for everyone concerned if he recommended to his committee that they settle this case for $100-not because of the bank's liability, of course, but just for the nuisance value involved in the claim.

Although I was annoyed by the implied bribe attempt, I tried not to show it, and shook his hand as we got up toward the door. Then I said, "That will be great. You make that recommendation to your committee. But tell them I never agreed to it and that it's solely your idea. And while you are telling them that, also tell them if I don't have a check for the full amount of eleven hundred dollars by noon tomorrow, I'll file suit against the bank for every document he ever notarized for them free within the period of the statute of limitations; and perhaps I'll even file a class action against the bank on behalf of all the other notaries in the other branches."

That afternoon, the senior partner of the leading law firm in town called to see what he could do the ameliorate the matter. I told him what happened and cited the case on page 198 of the Supreme Court Reports. He said that he would study it and get back to me.

At eleven-thirty the next morning a bank messenger appeared at my office with a check for $ 1,100, payable to my client, and a release form for my client to sign, agreeing that any claim he had against the bank had been settled.

Some weeks later, I learned that this particular banking chain had issued an order to all branches that same afternoon, discontinuing the use of any notaries who worked for the bank, even for the bank's own documents.