In organizing, make a distinction between criminal law and torts examinations and all other exams. In criminal law and torts exams, hypothetical fact pattern essay questions usually present a series of transactions. In multiple transaction questions, initially organize your answer by transaction. For example, on a torts exam, you might encounter the following fact pattern:
A's car hits B's car;
B skids off into C who stabs D;
E strikes A with his fists; and
All parties are poisoned to death at the hospital.
Organize initially by transaction:
A hits B, what issues?
B skids into C, what issues?
C stabs D, what issues?
E strikes A, what issues?
The poisoning, what issues?
Once you break a multiple transaction question into its components, you can then organize each transaction in the way you organize all other examination answers--by legal issue.
Thus, for torts and criminal law examination questions, watch for multiple transaction fact patterns. Once you spot multiple transaction fact patterns, isolate each transaction. Then organize each transaction by legal issue.
In contrast to criminal law and torts exams, other examinations usually present a chronological recitation of facts that are all part of a single transaction. In answering this single transaction hypothetical, immediately organize chronologically by legal issue.
Consider the following example, which is considerably shorter and simpler than the hypothetical fact patterns you will most likely see on your examinations. Although this set of facts is easier than you should expect, the concepts of exam writing that I explain in organizing this fairly simple problem will be identical to those you use on more complex hypotheticals. Thus, I can teach the concepts from this simple problem.
My example is from contracts:
A makes an offer to B;
B counters;
A accepts;
B fails to perform;
None of this is in writing;
A gets what remedy?
Here we have a series of incidents that compose a single transaction. Your answer to this question should be organized chronologically by legal issue.
What legal issues from contracts does this question present? Here, the facts point to the issues of offer and acceptance, breach of contract, the Statute of Frauds, and remedies:
Fact Pattern
A makes an offer to B
B counters
B fails to perform
None of this is in writing
A gets what remedy?
Legal Issues
Offer and Acceptance
Breach Statute of Frauds Remedies
How do you know what legal issues a hypothetical fact pattern essay question involves? Where did the skeletal outline of our answer come from? It came from the single study aid that I urge you to make for every course--a one page checklist of the most significant issues in the course. This "major issues" checklist will contain only about eight to twelve entries, no more. You must memorize this checklist, and so you might consider some mnemonic device, such as making the first letters of the entries spell a familiar word. However you do it, you should make a single page, major issues checklist for every course and commit each checklist to memory.
In preparing for an examination, instead of studying ever smaller details, pull back from the minutiae and think about the course you have taken. What are the most important points the professor (or perhaps the author of the casebook or both) raised during this term? You can be virtually certain that these points, whether of law, public policy, or other disciplines, will be the focus of your examination.
The one page checklist of these major issues supplies the skeletal outline of your answer to a hypothetical fact pattern essay question. After you read the examination question, ask yourself, "Which of my major issues of the course arise in this set of facts?" Your organization by legal issue emerges from the one page outline of major issues in the course.
A typical one page, major issues checklist for contracts might look like this:
Contracts Major Issue Checklist
I. Offer and Acceptance--Formation of Contract
II. Rights and Obligations of Third Parties--Third Party Beneficiary Contracts
III. Assignment of Rights
IV. Terms of Contract--Actual terms--Parol Evidence Rule--Statute of Frauds
V. Performance of Contracts--Covenants, Conditions, and Duties
VI. Breach--Failure to Perform
VII. Remedies--Damages--Other Remedies
VIII. Quasi--Contract
Of these major issues, the ones that arise in our hypothetical are: offer and acceptance, breach, the Statute of Frauds, and remedies. The others aren't important to this question. Do you see how the basic outline of your response to a hypothetical fact pattern essay question is derived from the checklist of the major issues in the course? You just run through your check list and consider the facts in light of checklist topics.
Once you have the main headings for a skeletal outline, you need to add sub issues to flesh out your outline. For example, what are the sub issues of the topic offer and acceptance? What is required to form a contract? As I recall, the requisites for making a contract are:
A. Legality of Object (you cannot contract to do something illegal, such as selling cocaine)
B. Capable Parties (you cannot contract with children or persons otherwise considered disabled from contracting)
C. Consideration
D. Assent
Several points about this sub outline of issues: First, where did these subheadings under offer and acceptance come from? From the other study aid that I suggest you make. For every entry on your major issues checklist, make a sub checklist of components of the major issue. So, for me, the components of the larger issue "offer and acceptance" were legality of object, capable parties, consideration, and assent. Thus, to outline your answer, you derive the skeletal outline from the major issues chick list; the more detailed outline comes from the check list of component issues. So far, then, you have:
I. Offer and Acceptance (Major issue)
A. Legality of Object
B. Capable Parties
C. Consideration
D. Assent
Checklist of Component Issues
From the major issues checklist and the component issues checklist, you will always be able to produce a basic outline of your answer to a hypothetical fact pattern essay question. Once again, with the component issues checklist, make sure you have a workable number of entries so that you can memorize the component issues for each entry on the major issues checklist. Normally you might expect an appropriate component issues checklist to contain no more than six entries.
Here are examples of component issue checklists for Breach, the Statute of Frauds, and Remedies.
Breach Component Issues Checklist
A. Maturing of Contract Duties
B. Discharge of Matured Contract Duty
1. by Operation of Law
2. by Subsequent Agreement of the Parties
3. by Subsequent Unilateral Act of Obligee-Cancellation-Written Release
C. Impact of Breach on Aggrieved Party-"Minor" Breach vs. Material Breach
D. Duties of Aggrieved Party-Duty to Mitigate Damages
Statute of Frauds Component Issues Checklist
A. Defense to Contract-Failure to Comply with the Statute of Frauds
B. Exceptions That Take a Contract Out of the Statute of Frauds
1. Part Performance
2. Primary Promises
3. U.C.C.-No Writing for Goods Under $500;
Over $500 Requires Writing Except:
a. where manufacturer has begun production of special goods
b. where goods delivered
c. where payment received
d. "goods" vs. "services"
4. Contracts for Less Than One Year
C. What Constitutes Writing?
Remedies Component Issue Checklist
A. Damages-Monetary Damages-must be certain
B. Specific Performance
C. Promissory Estoppel
D. Measure of Damages
E. Foreseeability
F. U.C.C. Remedies
1. for Buyer
2. for Seller
Second, you must tailor the system that I am presenting to your own professor and your own course. You aren't really taking the course "Contracts"; you are taking "Contracts from Professor X."
Likewise, you aren't taking "Torts"; you are taking "Torts from Professor Y." If your law school class has multiple sections of the same course, you may have already noticed how much variation exists from professor to professor in the same subject. Often different sections use different books and begin and end on dissimilar topics even though the course has the same name. Few other education experiences contain such latitude of difference depending upon the professor's choices. For this system of exam taking to work for you, you must customize the general concepts to fit the particular course and professor you have.
To illustrate, suppose you read my component issues checklist for offer and acceptance and, seeing consideration among the sub-issues, you balk, thinking, "Wait a minute; my contracts professor taught consideration for nineteen weeks of the course. Consideration is on my major issues checklist." Fine, there is no problem. Do you see that the checklists must reflect your particular course? In a course where consideration was covered in just three class sessions, it ranks as a component of the larger issue of offer and acceptance or formation of contract, and as such it is on the component issues check list. In other courses, in which the issue consideration got considerably more class time, consideration appropriately becomes an entry on the major issues checklist. Either way, you will discuss the issue of consideration in your answer to the hypothetical fact pattern we are analyzing.
I do not teach Contracts. I teach Criminal Procedure; Gifts, Wills and Trusts; and Children in the Legal System. All I recall about the law of contracts stems from my own first year course many (many) years ago. So if something I write about the substantive law of contracts does not jibe with what you have been learning, do not go into a dither. I am not trying to teach you contracts; I am teaching you a technique for writing law school examinations.
Don't worry if some of what I say about contracts, in analyzing our paradigm question, does not agree with what you have been taught. The exam taking concepts are the focus here--not my discussion of the law of contracts.
Review
How to organize the answer to hypothetical fact pattern essay questions: In multiple transaction fact patterns, break the facts down initially by transaction. Once you have separated the hypothetical into its component transactions, organize all hypothetical fact pattern essay questions by legal issue. You concoct a skeletal outline of issues by reference to your one page, major issues checklist. You add detail to your outline by including the entries on your component checklist for each large issue in your skeletal outline.
Before we examine a substantive method for actually answering hypothetical fact pattern essay questions, a word about my advice to organize multiple transaction questions first by transaction. Many students point out that dealing with the question transaction by transaction and discussing the legal issues within each transaction as I have advised can lead to repetition, because many of the same legal issues are raised in several of the transactions. Won't this involve too much time-consuming repetition?
No, because you are free to incorporate your earlier analysis by reference if it is really identical. For example:
A hits B, what issues?
(1) Negligence---people who hit other motorists from the rear are usually liable.
B skids into C's car's rear end, what issues?
(1) Negligence--same principle as above.
Even if some repetition is involved, you are better off to repeat occasionally than to muddle the organization of your presentation. The initial division by transaction, followed by subsequent organization by legal issue, guarantees a well-organized response, which as I have said is essential to achieving a high score on your examination.
Finally, don't be so sure that similar issues from transaction to transaction really are the same. Often subtle differences in application arise in discussing the same legal issue in the factual context of two independent transactions. The organization that I suggest will help you to catch these nuances that may be necessary to see the subtle distinctions your professor has placed in the fact pattern and therefore to get a better grade.
