Michael Froomkin

Ver 1.2.2, Mar. 3, 2022

These tips are stolen from my paper writing tips and from a number of online exam-taking guides. The best ones I found were John Langbein’s excellent “Writing Law Examinations,” which I especially recommend reading, and Georgetown’s “Tips for Writing Law School Exams.” Another source I recommend, especially for first-year law students, is Michael Fischl and Jeremy Paul, Getting to Maybe: How to Excel on Law School Exams (1999).

First, read the questions carefully. A common and depressing error is when a student spots some familiar line (“due process in rule making”) and then dumps everything he or she knows about it. This almost never works. A key part of reading the questions involves paying attention to what the question actually asks. You should also note what is excluded, as some questions ask the exam-taker to discuss only certain issues or to write the exam response from a particular perspective. Discussion outside the scope of the “call of the question” is irrelevant and will likely not merit any points. And often key limiting, or game-changing, info is at the end of the facts, or in the question itself, or in a footnote. For issue spotters, some people read the question before the facts, and that often is a good strategy.

For any essay of over a page or so, it pays to outline. For issue-spotters of any complexity it is a necessity. Write each entry of your outline as if it contains the topic sentences of a paragraph or sub-section of your answer. Then you can cut and paste the whole outline into your actual essay and fill in the details. An advantage of writing your outline this way is that, in the event you run out of time, at least I will see the remaining parts of the outline–comprised of comprehensible sentences–which may get some points for grading purposes.

Speaking of running out of time, the clock needs to be managed. Structure your time to plan how much to devote to each question. Work this out at the start of the exam, and note your self-imposed deadline for finishing each question. My exams always state the point value of each question, and sometimes give suggested times based on those weights. These suggestions provide a good guideline but not a set of handcuffs. For example, on a long take-home exam you might wish to rebalance to make a little extra time for whichever question you are doing last, as you may be more tired by then.

I find that students often put the question that seems hardest last, and then seem to run out of time on it. What order to answer in is up to you, but you ought not to starve a question for time because it seems hard unless you think it impossible and plan to take a dive on it–a very very dangerous strategy.

How I score. I grade all of the question 1s together then shuffle; repeat as necessary. Studies show that graders unconsciously import their impression of one question onto the next, and grading separately and shuffling makes that impossible. This is why I ask you to start each new question on a separate page, so I’m not tainted by seeing anything about the previous question.

For issue-spotting essays I make up a score sheet in advance, then give points for each issue spotted and resolved, or partial credit to the extent the spotting or resolution is less than optimal. Students often come up with valid ideas I didn’t consider, and those get points too–and the idea is added to the scoresheet to deal equitably with anyone else who might have the same idea.

Although questions and scored sheets vary substantially, for a long, involved, question it is not unusual that getting about half the points available results in a very good grade. In other words, there’s sometimes a lot going on in a complex question and I don’t expect any but the very most exceptional students to see anywhere near all of it. I do not give or remove points for accurate but irrelevant info. I do remove points for inaccurate info, whether relevant or not; but the penalty for not discussing something is just not getting points for it.

For more policy-oriented essay questions I usually go in with two or three ideas of how one might attack the problem, but students often find other reasonable ways. Grading is a bit more holistic than for issue-spotters, as I try to take account of whether the approach makes sense, and then how well it was executed.

1. If the question asks you to argue for or against something (or to pick a side and argue for it), in almost every case the best answers will not only give the reasons for the side selected, but also state and refute the best case for the other side. Your goal (unless the question says otherwise) is to show off your mastery of the range of possible views, even in the guise of advocacy. This is also true, up to a point, if writing advice to a client: you know, or should know, what the client wants, so you have to advise on whether it is feasible and if so how to achieve it, but you also need to warn the client about possible risks–or in some cases why a common risk is absent on these facts.
2. In general, it pays to pay attention to the frame: are you writing a judicial opinion? (I rarely ask for this.) A bench memo to a judge (which requires you give all sides and a recommendation)? A memo to a senior lawyer or client (you have to advise on what to do and not do, and usually give an assessment of the likelihood of success or the risks/benefits of a course of action)? Even if writing a brief, you should make your side’s arguments but save some space to explain why the other side’s arguments are wrong. (In real life, opinions differ as to the wisdom of pre-rebuttal in briefs; but this is an exam and your real goal is not just to answer the question, but also to show off what you know that is relevant.)
3. I almost always want–and give credit for–relevant examples and citations to relevant authority. It’s commonly not possible to get full credit for a question without it. Not only do I prefer answers that refer appropriately (not gratuitously) to cases, constitutional provisions, or examples in the readings, but I tend to dislike those that fail to do so. No Blue Book citation is needed, just enough to make it unambiguous what you are talking about. In open-book exams, one way to be unambiguous is to cite the page in the book as well as the short form of the case name. In most cases, otherwise sensible answers that fail to cite to clearly relevant authority do substantially less well than those which do include proof that you did the reading and understand its relevance. In general if a question asks for “an example” then one will do fine; but if it asks for “examples” (plural) one is not enough. Try to have at least three.
4. Please keep in mind that I do not grade you on your politics or your opinions. Rather I grade you on the quality of your arguments–your ability to marshal material we covered in the class in service of your conclusion, and (unless the question specifically directs otherwise) your ability to explain, with reasons and citations, why arguments on the other side are mistaken or otherwise less compelling than the one you chose.
5. How I curve. Other than in first-year classes, where I adhere to the law school’s curve rules and might theoretically[1] have to curve someone down, I only curve up. Thus, if I have a question with 100 possible points, and the best answer has 65, then I consider every other question to have some fraction of 65, not some fraction of 100 and set grade bands on that basis and with an eye to the median if it is much lower than the high score. I do not put any limit on the number of high grades, and nothing would please me more than if everyone did really well–I’d conclude I’m a great teacher! In principle I don’t put any limit on the number of low grades either, although if a very large number of people bombed a particular question, but not others, then I’m inclined to suspect I either taught that issue badly, or wrote the question badly and might nudge up the pre-weighted scores on it a little.

Key components to good answers

1. Have a clear logical structure
   1. Having one is more important than following any particular formula; let the question (or the answer!) dictate the structure–but be sure to have one.
   2. IRAC/CREAC can be the last refuge of the organizationally destitute…but still far better than no structure at all.
2. Especially on an open-book exam, it’s nowhere near enough to just regurgitate the governing law (or, in the rare cases, “state the test”). That proves you can look things up. The key goal is to APPLY the (correct) rules to the fact of the problem. In other words, it’s not nearly enough to note the seven complex factors necessary for Alice to X, or the agency to Y. It is essential to also tell your reader how those factors apply to the facts at hand. And if you can, it is especially good if you can sort between the factors that are clear and those which are borderline and spend more energy on explaining why you come down how you did on the borderline issues.
3. On a closed-book exam I would give some credit for having memorized the standard even if you are lost on how to apply it–but even there, the big points are not in reciting some canned series of words but rather in demonstrating that you understand what the words mean by applying them to the facts and reaching conclusions about whether on these facts Alice can X or the agency may Y.
4. You need to be aware of both large-scale and small-scale organization.
   1. Large-scale organization is critical to ensure that you cover all of the issues triggered by the question. It also tells the reader (me) that you were thoughtful when writing your analysis, even in the context of an in-class exam. Great exams not only telegraph the conclusion at the start, they offer a very quick roadmap of what is to come. Unlike the rest of the answer, the roadmap likely does not need to be highly technical or persuasive. And if word limits are very tight, just telegraph the conclusion and let your subheads be your roadmap.
   2. Small-scale organization: Use the occasional sub-head to orient the reader (and the writer!). Try for smaller paragraphs. Most of the time you should make the first sentence of a paragraph summarize what follows. In a perfect world (we don’t live in a perfect world) a reader could read just the first sentence of each paragraph in the answer and grasp the full nature, but of course not the nuance nor the critical supporting authority, just by reading the first sentence of each paragraph.
5. Note that when citing authority, often just citing isn’t enough unless the case directly stands for the proposition you are asserting. (E.g. “Valid federal legislation requires bicameralism and presentment. INS v. Chadha.”) In any other situation you probably will need to explain how it supports your case.
6. Note also that not all authority is the same. In particular, I’ve noticed that some students assume that every case in the book is a Supreme Court decision. But that’s not so, not at all–so pay attention to which court decided each case (and how long ago!). For a course on a federal law subject, lower-court decisions may be influential, or may have been adopted by a later Supreme Court, or there could be such overwhelming agreement between circuits that the matter never got to the supreme court. On the other hand, some casebooks like to provide controversial, and possibly reversal-bait, lower court cases. For subjects that focus more on state law, whether common law, or harmonized law (e.g. UCC), the major cases may be from state Supreme Courts, in which event you need to understand and be prepared to explain the extent to which a given state’s rule is followed nationally, or if it’s a new issue, is likely to and/or should be followed nationally.
7. You need to understand what type of argument you are making at any given point in your answer. Generally speaking, there are three types of reasoning to which you might appeal–and it usually pays to be explicit as to on which type(s) you rely:
   1. Rule-based reasoning. Rule-based reasoning involves applying an abstract statement of the law to a concrete case. Unless the case, cases, rule, or statute from which you derive the rule are 100% on point, a few words of explanation as to how this law applies may nonetheless be in order.
   2. Analogical reasoning. Analogical reasoning involves comparing and contrasting previously decided cases or situations with a particular case.
   3. Policy- based reasoning. Policy-based reasoning requires an appeal to particular first principles of law and equity or societal values in order to advance a new rule or to support the continued use of an existing one.

All three types of reasoning can be good, and sometimes all three together can be best, but it depends on what you want your argument to do. And making a policy argument in the teeth of judicial authority requires, at the very least, that you acknowledge the contrary authority and explain why it should not control or it should be over-ruled. Ignoring contrary authority creates a very strong appearance of being unaware of it, which isn’t good.

1. Again, be sure to give reasons whenever you can, not just assertions. Usually reasons involve the use of the word “because” or the like, and you should not fear to use “because” a lot–if only because I will welcome it.
2. Last, but not least, use your common sense. If the result you have come up with is weird or feels terribly wrong, be certain that it is required by a rule you can articulate and justify with a cite to controlling authority and/or an overwhelmingly necessary policy. Otherwise there is a very good chance you may have got something wrong somewhere.

Stuff not to do

Big Stuff

• Don’t EVER make up a fact. This is awful for two reasons: First, it will really cost you in the grading. Second, it represents a GIANT missed opportunity: if you notice there is some (plausible, probable) fact not in evidence that could be critical, then you should very explicitly note that the fact is missing, explains what turns on it, and provide analysis on both sides of the ‘fork’ — one where the fact exists/is helpful, one where it doesn’t exist/is not helpful. Doing only one side of the fork is a serious problem as it suggests you did not read the question carefully, or are reasoning carelessly. On the other hand, making up (or even forking) a highly implausible fact is sort of missing the point, and won’t get you anywhere either, or at least not anywhere good.
• Especially on issue-spotters, don’t waste time and words regurgitating the full set of facts from the question. Of course, if you key in on one or more relevant facts, and explain what turns on each of them AND WHY, that’s a completely different and much better story.
• I strongly advise you to write in the active, not passive voice. The danger of the passive voice is that it will lead you to error. For example, writing “a claim could be brought” allows you not to name who could bring the claim. But sometimes who if anyone could bring the claim is the essential issue — maybe one party or all parties cannot bring the claim for some reason (maybe it is standing, maybe the only harmed party is also the defendant, or there is waiver, time-bar, or many other things). Your instinct to want to avoid naming the actor, the plaintiff, is often a quiet prompt from your subconscious that something is wrong here. So you write “a claim could be made” without saying who could make it because some part of you knows, maybe, that even though there’s a legal problem that you have identified, there is in fact no one given the facts who could actually make the claim. You can go down a lot of no-credit rabbit holes if you don’t listen to that quiet prompt. Doubt can be your friend!
• As I grade each question separately and in random order, don’t refer to (or assume I’m aware of) your answer to another question unless the exam directs otherwise. The exam might say, for example, that in answering a 3-part question it’s ok to refer to other parts. That would not, however, carry over to the next question unless the instructions say otherwise.
• If there is a multi-part question which allows cross-references, I usually don’t give any more points for making the same argument in detail again rather than just referring back. But you do need to at least refer back so I understand that you understand that the earlier argument applies here too.
• Do not use terms of art incorrectly.

Small Stuff

• Jokes are great in class. Not so much on an exam.
• Don’t use any abbreviation without defining it on first use. That includes “P” and “D”– who are they?
• Use simple short words. Avoid big ones. Don’t try to sound formal especially if it means using words you would not use in conversation unless you are extremely sure you know what they mean and how to use them.
• Beware the random apostrophe. Apostrophes do not make words plural; they make them at most possessive. I try not to hold this against you since you are not being graded on grammar, but I really don’t like it.
• Avoid rhetorical questions. Why? You job is to answer questions, not ask them. [Note that this bullet point would have worked just as well without the “Why?”]
• Quote marks should only be used if you are quoting something or someone else, or in a definition or definition-like use (e.g. the bullet points directly above and below this one). Do not use them for sarcasm or for “emphasis.”
• Don’t end with “ran out of time”–why advertise your errors?

[1] This has only ever threatened to happen once, and I got the Dean to let me bust the curve a tiny bit.