TABLE OF CONTENTS
1. Avoid Conclusory Answers
Law examination answers that do not supply the explanatory information detailing how each step of the argument is arrived at are said to be “conclusory.” That is, they recite conclusions without stating supportive analysis. A display of the thought process leading to every conclusion is essential in a law examination answer. When you enter the professional practice, judges, lawyers, and clients will be asking, “How did you reach that conclusion?” Throughout law school, your professors will expect you to respond to that latent question in every class session and on every examination. The ability to conclude is not what “thinking like a lawyer” is about—rather, you are developing the ability to persuade another that the conclusion you have reached is supportable by application of rules of law to a set of facts.
To score the most points on each discussable issue you discover during an essay exam, your essay ought to specify the issue, indicate which rule (or set of rules) a lawyer would employ to resolve the issue, articulate an analysis of how the facts of this hypothetical case are affected by application of the rule, and reason to a solid conclusion.
2. Avoid “Begging the Question”
When grading exam answers, professors reward logical, persuasive presentations. Arguing your point using a logical fallacy earns no points.
One pitfall to avoid is the use a circular argument. This is also known as “begging the question.” This fallacy occurs when one assumes the truth of what one seeks to prove in the very effort to prove it. In other words, an argument is fallacious when the conclusion lies buried in the premises used to reach that conclusion. Question-begging arguments often mask themselves in clever rhetoric. They can be easy to miss because they often sound good.
Example: “The Supreme Court’s power of judicial review is inherently undemocratic. When unelected judges reign supreme in the exposition of the Constitution, it cannot be said that we have a government ‘of the people, by the people, and for the people.’”
Explanation: Again, the speaker is assuming the truth of what she is trying to prove in the very effort to prove it. If you look at these two sentences closely, you will see that they are essentially paraphrases of one another. Because the second sentence is longer and more complex, it tends to trick us into thinking that it is a logically distinct idea—but it is not.
This example is from Neal Ramee’s Logic and Legal Reasoning: A Guide for Law Students. There, Mr. Ramee correctly explains, “Learning how to spot and avoid such logical fallacies can enormously strengthen your legal writing and advocacy by helping you adhere to the ‘pristine logic’ of correct syllogistic reasoning.”
Begging the question—from the Latin petitio principii—arises all too often in exam answers. If you write, “The contract is enforceable because it fulfills the validity requirements” or, “Defendant is liable for negligence because of his negligent conduct,” you’re begging the question. Each of these statements lacks the point-scoring analysis your professor is looking for. The Contracts essay answer needs to state the elements that establish validity (or enforceability) and to show how the facts in the narrative fulfill the requirements. The Torts answer ought to specify precisely what the negligent conduct is and the rationale behind the conclusion that this conduct is negligent.
Remember that stating the “right” answer (for example, that a party was negligent) is not what scores the points in an essay answer—rather, points are scored by your logical, organized interweaving of the facts with the elements of the law in a compelling analytical presentation.
3. Analysis Is Critical
Within each treatment of a major issue, there must be a thorough analysis. This is where it’s helpful to critically scrutinize your practice essay answers to find areas of improvement. Professors figure that students ought to be able to spot issues and state memorized rules…that’s something that comes with study and practice. Conclusions (resolutions of issues) flow directly from analysis. So it’s easy to see why an essay grade depends in large measure on the extent, depth, and cogent presentation of several paragraphs of analysis.
Now look at an essay you’ve written, and scrutinize these aspects carefully:
- How many words quote or paraphrase the facts presented in the question?
- How many words comprise rule statements?
- How many words set forth conclusions?
The only other words in the essay ought to be legal analysis. Some say, that’s where the points are scored. In fact, points are scored by recognizing which issues are worth discussing; by stating applicable rules, sub-rules, definitions, alternative rules, and exceptions; and by providing a conclusion that flows from the analysis. But if your essay answer does all that and contains little or no legal analysis, it will not score very high.
Notice we use the word “analysis” here instead of “application.” Some law school study aids use that term, “application,” but that can be a bit misleading for a student trying to understand precisely what to do. “Application” sounds like all one needs to do is stick two things together…mention some facts, mention some law, and whammo!…you’ve got a lawyerlike winning essay/argument. Not so.
“Analysis” includes reasoning, thinking, step-by-step argument, use of common sense. Sure, sometimes “application” works—especially on minor issues. But the point-scoring discussable issues require a more sophisticated process: legal analysis.
After my first year of law school, during a summer course, a classmate of mine ended an after-class discussion by saying, “Well, I can’t stay any longer, I need to run off to a course about how to answer law school exam questions.” was baffled. You see, before the invention of the internet by Mr. Gore, there was practically no way of finding out about such things. Elaine must have read a flyer in the break room.
Anyway…I asked her what in the world one could “learn” about such things. I had thought it was just a matter of considering what appeared in the question, reflecting upon that in light of the law we had studied, and writing a responsive essay. “No,” she said, “That’s what I had thought, until I learned about ‘IRAC.'” Huh? I asked her what that meant, and she told me. “That’s the key to higher grades,” Elaine said.
Elaine was right. In Part Three of 1000 Days to the Bar, you’ll find an explanation of how the fundamental IRAC format (Issue, Rule, Analysis, Conclusion) can be expanded, modified, and personalized by each student (page 117 and following). It’s not magic. t’s a framework you’ll find in many of the cases you encounter in your casebook. That is, the judge often sets out one issue, explains in some detail what the law is (usually a statute followed by cases interpreting the statute), applies that law to the facts of the case in a detailed analysis, then concludes. Then she moves to the next issue. Try it.
By the way, Elaine graduated with a very high GPA.
5. Color Within the Lines
When answering essay exams, work on coloring within the lines. Think of the old instructions you may have received as a youngster when using your Crayolas to “color inside the lines.” When answering law school essay exam questions, the “lines” are drawn by the facts of the question and the call of the question, which form the boundaries within which you must work.
Usually, the call of a question is very specific. Example: Bob and Dan “…are charged with first and second-degree murder in connection with the death of Mark…” and the call of the question instructs you to respond to this inquiry: “…are the facts stated above sufficient to sustain the charges…” against each.
Venturing into topical territory outside the boundaries set by the question is unnecessary, even though you may be tempted to explain how another actor in the scenario may also be charged with a crime. In the context of the exam, it is unimportant. Even though (depending on your professor) no points are deducted for discussing unnecessary topics, nevertheless precious time is used that could otherwise be used to write point-scoring analysis on a discussable topic.
6. Concise Writing
Vigorous writing is concise. Whenever you can make 25 words do the work of 50, you’re on the right track. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. Part of the “practice” of law during law school is to answer essay questions within the time limit—and this calls for concise writing.
Now is the time to begin working avidly on “concision.” That is, (as professor Kim Baker puts it) “aerobicize” your writing. Try to say precisely what needs to be said in few words—this pays off in (a) often better precision, and (b) saving loads of time which you need to appropriately address the many issues that you will discover in the exams to follow.
To improve your essay exam answering skills, work on writing with more of an eye to concision. Think about the following exercise to help: Print a copy of one of your essay answers, then go through it with a highlighter and pencil. Highlight every place (a) where words or concepts are repeated and (b) where unnecessary words appear. Then rewrite those sentences. Rewrite or strike those words, phrases, and sentences that do not directly address the issue. Remember that each word of an essay answer ought to be directed toward one target: point scoring.
The ability to write with as few words as possible is a valuable tool when answering law exam questions. It also happens to be the preferred style of legal writing.
Where to Find Practice Questions for Contracts Class, and How to Use Them to Prepare for Your Final Exam
If you search for practice essay questions on the internet, you will run into this problem: the questions include too many issues that you have not yet covered in class. This can be very confusing, especially in the first semester of the first year of law school. Therefore it is best to find questions that pinpoint the issues you have studied. Here are three sources (often found in law school libraries) that you can turn to for practicing your essay question answering.
I. Black Letter Outline on Contracts, Joseph Perillo (2010).
Here’s how to use it for practice.
Turn to the “Review Questions,” to perfect your understanding of the various issues. Here is an example of one of those Review Questions:
T or F: Mrs. Stewart conceived at the age of 37. After two previous stillbirths, she was convinced that she could not have a normal delivery. Consequently, when she and her husband consulted with D, a doctor, they demanded that a Caesarean section be performed. D agreed. D’s medical opinion was that a Caesarean would not be necessary, and so D later refused to perform a Caesarean when Mrs. Stewart had labor pains. The birth was stillborn. Mrs. Stewart does not have a cause of action for breach of contract against D.
Suggested study method: Read each hypothetical, then answer in writing – NOT just True or False, but rather, True or False with an analysis of WHY you chose that answer. State the issue; write the rule 100% accurately; explain how the rule applies to these particular facts; then state the conclusion that your analysis supports. Then check your answer against the book’s answer.
Following many objective questions, you will find short essay questions focusing on the same topics.
NOTE: The discussions of these essay questions (provided in the book) are NOT in IRAC format – they are meant to enlighten students as to the law, not to be examples of how an essay question ought to be answered in IRAC format.
II. Examples & Explanations for Contracts, Brian A. Blum, Eighth Ed. (2021).
Suggested study method: Read the hypothetical. Answer it in writing as you would answer an essay question on a final exam.
NOTE: The discussions of these essay questions are NOT in IRAC format – they are meant to enlighten students as to the law, not to be examples of how an essay question ought to be answered in IRAC format.
III. Glannon Guide to Contracts: Learning Contracts Through Multiple-Choice Questions and Analysis. Theodore Silver, 3d edition (2019).
Suggested study method: Read each hypothetical, then answer in writing – NOT just by choosing the most correct response, but rather, by adding the analysis of WHY you chose that answer.
NOTE: the discussions of these multiple-choice questions are NOT in IRAC format – they are meant to enlighten students as to the law, not to be examples of how an essay question ought to be answered in IRAC format.
You are also able to find past examinations on the internet. For example:
- Questions and sample answers by professor Marco J. Jimenez at Stetson Law School – https://www.stetson.edu/law/faculty/jimenez/contracts/contracts-i-and-ii-past-exams-and-answers.php
As for MBE-style questions, try these sources for Contracts questions:
- Ten free MBE contracts questions with explanations:https://www.quimbee.com/bar-review/mbe/practice-questions (Requires registration)
- An MBE practice test: https://barprephero.com/contracts-mbe-practice-test/
- Several MBE-style questions including other areas of the law: https://bar-md.com/mbe-sample-practice-questions-past-bar-exams/