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Do's and Don'ts for Better Exam-Writing for Law Students

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A. Suggestions Regarding Content:

(1) Be sure you answer the question you were asked. That statement seems too obvious to make, but many of the examination answers contain well-considered answers to a question the professor did not ask. Perhaps the student was careless in his reading of the question; perhaps he was nervous, but the professor is sure to assign another reason: the student could not answer the question asked. The solution: be sure, just before you begin to write, to take one more look at the question.


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(2) Begin your answer where the question leaves you. Your answer should not start somewhere else and meander back to the subject under scrutiny later (in medias res, as the Greek epics did). Your professor expects a precise answer to appear up front, and will be unwilling to search for an answer hidden deep in the material. No mid-stream answers; begin at the beginning.

(3) Ordinarily, begin your answer with a general statement responding directly to the question asked, indicate how you will break down your answer, and then do so. Keep in mind always the relationship of the points you are making to the question that was asked, and show that relationship in your writing, omitting digression and irrelevancies.

(4) Base your discussion on legal grounds. As a legal professional, the basis for your arguments is the law. The layman is entitled to approach a fact situation intuitively, emotionally, morally, ethically.

You must deal with what recourse a party has under the law, what the law can do, not what it ought to do. (However, if you are asked what the law should do, give your most cogent advice.)

(5) Complete your analysis. Do not state the law and fail to relate it to the instant facts. Do not state the law and the facts and fail to analyze and conclude after applying the appropriate law to your facts. Do not state a conclusion without showing how you reached it. (This last flaw in reasoning is called "conclusory" or "conclusionary" reasoning and is almost always severely penalized.) The IRAC formula is useful in checking to be sure your analysis is complete.

(6) Adopt the requested role. If your professor asks you to take the role of an associate advising a law partner about a client’s chance of success in a law suit, be objective, not partisan, in your analysis. Avoid polemic and rhetorical flourishes. Even if you have been asked to assume the role of the attorney for a client, don't imitate Perry Mason addressing a jury. Don't jump in on one side of the dispute and argue it heatedly. If your client's case has some weaknesses, acknowledge them and then try to show that they are offset by strengths elsewhere. Your professor is hoping for light, not heat, on the subject,

Above all, do not make your case by omitting, twisting, exaggerating, or otherwise manipulating the facts to your advantage. Don't forget that your professor wrote those facts and will not take kindly to your changing them. You may, however, presume facts that are missing, but necessary to your analysis. Just clearly label these as presumptions.

(7) Don't be misled by the "obvious" question. Your professor is too clever to write simplistic legal problems on your final examination. (If the questions are easy, how can she discriminate among the answers?) The more obvious a question appears to you, the more you should suspect that you may be missing something. If you cannot find anything complex about the question, write the obvious answer, but leave room in case the light should dawn as you are answering a subsequent question.

(8) Just answer the question. Don't teach law or editorialize. Avoid comments like the following:
 
  • The case of Palsgraf v. Long Island Railroad Co. is the landmark American case on the question of duty in torts. (Teaching the law)
  • It is an unfortunate fact that the McCall rule, when applied to this case, bodes ill for the defendant. (Editorializing)

9) Usually, be a "putter-inner." This rule is not invariable. Some professors prefer succinctness and selectivity. But one professor tells me that the difference between the "B" and the "D" students in his classes is that the former are "putter-inners" and the latter are "leaver-outers." He means that not only must the analysis be complete, but that all possible Issues must be explored, even those that may be unlikely or farfetched. If your professor fits this description, include all possible issues and arguments.

B. Suggestions Regarding Style

(1) Keep your own personality out of your writing. Write with ideas instead. Therefore avoid the first person approach, as in "I think," "I believe," "I would suggest." Worst of all is "I feel," an expression anathema to many law professors, who expect a cerebral rather than a visceral response to their examination questions. Almost as annoying is the folksy "we" approach, as in "we must consider carefully," or "we will next discuss."

Instead of the first person use third person, as in "the defendant is probably liable" (not "I think the defendant is liable"). The effect of your writing will be less biased, the writing more succinct with the t0hird person approach.

(2) Don't strike a pose. To achieve style, affect none. Call attention to what you are saying, not how you are saying it. Write like a person, not a personage. Explain even complicated ideas clearly, succinctly, and with appropriate legal language. The affectation of elegance and the appearance of profundity will not enhance good ideas nor mask their absence.

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(3) Say it precisely and say it once. Writing is unlike speeches, in which you are advised to say what you are going to say, say it, then say what you have said. In written material, the reader can look back if he wants reiteration. If you are using language like "In other words," or "Again," or "That is," you are probably being repetitive.

(4) Don't try for either superiority or humility. Certain language creates the appearance of pompousness and arrogance; for example, "without question," or "it is evident that," or "obviously." (If you were a professor, would you like your test question to be described as "obvious"?) Avoid, also, self-deprecating comments like "I may not have discussed this fully," or "More could probably be said," or even "(sp.?)" after words you think may be misspelled. A good maxim is: Don't assert your superiority; your professor may not agree. Don't advertise your shortcomings; your professor may not notice them.

(5) Properly emphasize. Don't deal with all issues as if they were equal.

Knowing which to highlight and which to subordinate and how much space to give each may make a difference in your grade.

(6) Make persons (plaintiffs, courts, companies) the subjects of your analysis.
Compare the following statements:
 
  • In the present case, a plea bargain was negotiated with a sentence of two years. However, after demanding and receiving a jury trial, the sentence received was ten years.
  • Although the defendant could have negotiated a sentence of two years if he had agreed to plea-bargaining, he insisted on a jury trial and received a sentence of ten years.
In the second statement, the writer has said who, what, and whom. One way to do this is to use active verbs, which help you put persons into the subject slots.

(7) Don't begin by saying what is not possible. Don't raise arguments only to deny their validity. Avoid starts like the following:
 
  • The plaintiff might claim emotional distress, but that action would fail.
  • Given the present circumstances, both Mink and O'Brien are weak precedential authority. Using Mink and O'Brien will only point to other theories that might apply.

(8) Generally, do not restate the facts of the hypothetical problem you are supposed to address. The professor knows what she asked; don't paraphrase it and give it back to her. She will not take kindly to the waste of her time and your space.

(9) Generally, do not state the law in the abstract before applying it to the question. Go to the heart of the matter at once. The skill your professor is trying to measure is whether you can apply the law to the given facts, analyze thoroughly, and conclude. One professor recently complained that many students learn the law in their first year of law school, but do not learn how to apply it until much later-and sometimes not at all. Don't let this criticism apply to you.

(10) Avoid hyperbole. It weakens your argument. For example, one student wrote, "That was a bald, unmitigated lie." That kind of bombast does your argument no good. The student might better have written, "That was not a lie." Hyperbole is intended to make your writing more forceful, but it has the opposite effect. It dulls your reader's sensibilities and discredits your assertions. And it is unprofessional.

(11) Avoid slanted language. Like hyperbole, slanted language tends to weaken your credibility. The words to avoid are those that are sometimes called "purr" and "growl" words, and they tend to diminish the effect of your good reasoning. As in an inter-office memorandum, the language should have the appearance of objectivity. Avoid sentences like the following:

• The uproarious screams of the unruly gang terrified the poor plaintiff, who was gravely injured as she escaped.

(12) Don't make jokes.
It's strange but true that some students write comments they think are funny in their examinations. Perhaps they do so out of nervousness or tension. Whatever the reason, be aware that what may seem funny to you in your stressful situation will probably seem distinctly unfunny to the professor as he grades your paper in his study, intent only on assessing your understanding of the subject matter.

(13) Use past tenses for discussing decided case, present tense for stating rules derived from them:
The Surocco court held for the defendant, who had ordered the plaintiffs house blown up to stop a fire. The court said that a house on fire is a nuisance, which is lawful to abate.

(14) Spell correctly. Avoid the "I've told you and told you" criticism. Some professors place considerable weight on correct spelling and may penalize students who spell words incorrectly.
There was one professor who marked every misspelling of judgment on a student's paper with red ink. Unfortunately for the student, he had used that word more than ten times on his test papers, and by the tenth time the professor had marked it, she bore down so heavily with her ballpoint pen that it looked as if she had broken the point. That is why this kind of criticism has been dubbed as the "I've told you and told you" criticism. To the professor it seemed as if she had told the student over and over about that one misspelled word. Though the student had made only one spelling error, to the professor it seemed like ten.

C. Suggestions Regarding Organization

(1) Use a separate paragraph for each issue. The first sentence of each paragraph is usually the topic sentence. Deal with subordinate issues immediately following the main issues from which they arise.

(2) Place arguments in their most effective order, with those most likely to succeed up front. Or dispense with less cogent arguments first, but briefly, and so label them.

(3) Write in paragraphs of about four to six sentences. Fewer sentences indicate incomplete development of ideas. More sentences than six probably indicate the inclusion of unrelated ideas-or redundancy. Proper paragraphing makes your writing appear well organized.

(4) Separate and clearly label pro and contra arguments, e.g., liabilities and defenses to liabilities.

(5) If space is no problem, leave some room after each answer for possible later inspiration. In allocating time, leave a few minutes at the end for editing.

(6) Finally, bear in mind the theory of the Greek Anaxagoras, teacher of Socrates, about the origin of the universe: "All things were in chaos when mind arose and created order." Socrates, hearing this, reasoned that man, thinking for himself, could bring similar order to human affairs. Your job is to bring order to the mass of unorganized data presented in your essay examinations-and awaiting you in your legal practice.

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