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Common Errors While Taking Legal Exams

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Unfortunately, failing to take notes is only one type of error that commonly occurs in the process of reading the exam questions. You also should be careful to avoid the following pitfalls.

i. Misreading the Question

Whether due to stress or fatigue, students often misread one or more critical parts of the question. For example, students sometimes jumble the parties in the problem, discussing the plaintiff as though she were the defendant and vice versa, or overlook the word "not" in a statute that must be construed. By changing the question in these or other ways, you inevitably will lose points even if your professor can salvage part of the answer. Force yourself to read the question carefully before you begin analyzing it and writing your answer.

ii. Ignoring Facts

Virtually every exam question requires more analysis than the straightforward application of black letter law to a clear-cut set of facts. Questions generally include both facts that support application of a particular rule of law and facts that are inconsistent with application of that rule. Your professor puts inconsistent facts in the question for three reasons. First, your professor may be testing your knowledge of the elements of a particular legal rule by seeing whether you can spot the facts that create a question as to the rule's applicability. Second, your professor may be testing your ability to determine whether inconsistent facts create defenses and whether you can rebut those defenses. Third, your professor may be testing your ability to identify and to apply the policy considerations that a court would weigh to resolve the question created by the conflicting facts. You will need all three of these abilities when you practice law because the resolution of actual issues often requires balancing conflicting facts and policies. Therefore, if a fact in an exam problem is contrary to your position, identify that fact in your answer and give your analysis of its legal effect no matter how great an urge you feel to pretend that it does not exist.

iii. Assuming Facts

Two types of errors can occur when you assume facts that are not in the exam question. The first error can occur when the question does not include all the facts that you need to reach a conclusion. Your professor may have omitted the fact to test your diagnostic skills. As a lawyer, you must be able to determine the information you need to respond to a client's problem. Therefore, in your exam answer, you should identify the information that is missing and describe its relevance to your analysis.

By omitting a necessary fact, your professor also may be testing your ability to analyze the problem under more than one fact scenario. For example, if the answer to a contract law question depends on whether the agreement was written or verbal but the question does not include this information, you first should answer the question based on the existence of a written agreement and then based on the existence of a verbal agreement. Do not assume away half the answer by stating that you assume the agreement was in writing. Although you may get credit for having noticed that the question did not specify whether the agreement was in writing, you will miss the points allocated for your analysis of the outcome based on the absence of a written agreement.

The second type of error occurs by assuming a fact that changes the question. For example, if the question involves a killing, do not state in your answer that you assume the killing was committed in self-defense unless the question provides some basis for that conclusion. This type of assumption obviously substantially changes the complexion of the problem. As a result, your answer will bear little relationship to your professor's grading outline. Remarkably, students often make such unjustified assumptions that eliminate issues or simplify their resolution. Therefore, before writing your answer to a question, compare your assumptions to the stated facts of the problem to ensure that each assumption is warranted.

iv. Answering Questions That Have Not Been Asked

The final pitfall that can occur when reading an exam question is failing to focus on the exact question that has been asked. This problem arises when you either discuss issues beyond the scope of the question or fail to answer in the manner specified. The first problem can arise in two ways. Obviously, you should discuss only those issues that relate to the subject matter of the course. If you are taking a torts exam, for example, you should not spend time writing about an issue of procedure unless you also have studied that issue in your torts course.

The second situation in which it can arise is when the question asks you to discuss the rights of a particular party or a particular issue. For example, assume that the question describes a car accident involving three people, Adams, Baker, and Chen, and then asks: "What causes of action does Adams have against Baker?" Even if you have identified causes of action that Adams has against Chen or that are available to Baker or Chen, suppress the urge to show that knowledge. It is irrelevant to the question that has been asked.

Similarly, assume that the question asks: "Does Adams have an action for negligence against Baker?" Even if you believe that Adams has other causes of action against Baker, discuss only the negligence action. Although answering questions that have not been asked normally will not lower your grade directly, it will do so indirectly by wasting time that could have been spent on relevant issues.

You also can lose time and points by failing to answer in the manner specified in the question. Focus on whether the question asks for a neutral evaluation of the problem or for an advocate's presentation. If the question asks that you determine whether a person has acted negligently, you should evaluate the problem as a judge would. You should discuss objectively the facts and legal principles indicating that the party acted negligently and those indicating that he did not. You then should state your overall conclusion concerning the issue of negligence.

On the other hand, if the problem directs you to act as an attorney for one of the parties or to make the best possible argument for a particular position, you should discuss the problem as an advocate. You should present the facts and law in the light most favorable to your position. Even as an advocate, however, you cannot ignore facts and legal doctrines that undercut your position. Part of being an advocate is recognizing the arguments against your position and explaining why those arguments do not require a result contrary to your client's best interests. Therefore, writing as an advocate is similar to writing as a judge; you must address all the relevant facts and legal doctrines. The difference is in the focus of your answer.

By carefully reading each exam question and by avoiding the pitfalls described above, you will have passed a big hurdle in taking the exam. You will be prepared to answer the question that your professor has asked and on which she has based her grading scale. Your knowledge of the subject matter and your analytic abilities will not help you receive the grade that you should unless you take time to focus your full attention on each question as it has been written.

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