• Study Tips from Professor Blair

    Recent ASP Materials from Professor Blair:

    1. Exam Writing Tips Part I (below)
    2. Exam Writing Tips Part II (below)
    3. Battle of the Forms  

    Exam Writing Tips Part I

    You will have many opportunities this year and throughout your law school career to think about how to write a good exam answer. In an effort to help you prepare for my exams, I am giving you the following bits of advice. Please understand that this document is not intended to serve as a comprehensive list of what I am looking for in an exam answer. To the contrary, this document is merely intended to inspire you to think carefully about your writing.

    1. Read the facts carefully. To the extent possible, be sure you know exactly what happened. Don't add facts, delete facts, or change facts. Your client is stuck with the facts as they occurred, and so are you as the lawyer. You can characterize facts creatively, but the real world constrains your possible arguments. You can draw plausible inferences from facts, based on general knowledge of the world, but you can't simply make them up or ignore them. If you feel that an exam question doesn't give you a key fact, indicate in your answer what is missing and why that missing fact is significant to your analysis.
    2. Don't repeat the facts. One of the most frequent first-year mistakes that students make on my exams is repeating the facts. While you will have fact sections to most of your real-world memos and briefs, an exam setting does not give you the time to restate the facts. 
    3. Organize your thoughts before your write. You will spend much, if not most, of your time as a lawyer organizing the messes that other people have made. If I were forced to name one skill that was the most important for lawyers to possess, I think that the ability to organize (and reorganize) thoughts and information on a moment's notice might have a good claim. As a result, one of the skills that I look for on an exam (and thus grade you on) is your ability to draft an organized answer. I don't want to see stream-of-consciousness responses. At the very least, I want responses that have paragraphs and topic sentences. 
    4. Don't waste too much time writing a detailed outline. The flip side of my last suggestion, however, is that you need to get to writing an answer. Many first-year students wind up wasting a lot of the exam period working on outlines. Remember, I can't grade you on your outline. I'm grading you on your responses, so make sure that you devote sufficient time to writing a full response.
    5. Spell out each step in your reasoning clearly. Most legal documents are more like instruction manuals than like the essays liberal arts majors are used to writing, which may be suggestive and allusive rather than painstakingly thorough and explicit. If you do not spell out your reasoning explicitly, the opposing attorney will be there to point out the gaps and fill them with material of his or her choosing. Only by writing out the steps in your reasoning completely and precisely can you discover the holes before your opponent does and deal with them on your own terms. 
    6. Asserting that something is so is not an argument. "Saving Sean's life is a material benefit to Sandra" is an assertion, not an argument. Making an argument means giving reasons. "His life is a material benefit because Sandra's lifestyle is supported by his earnings." Note that, for purposes of a law school exam, I'm interested in seeing legally relevant reasons. The reason, in other words, must relate to doctrine or policy. For instance, saying that "Sean's life is obviously a benefit to Sandra because she really cares about him" is legally irrelevant. "Benefit" is not the same as "material benefit"--caring about someone is not the same as showing they have dollars and cents market value to you. (If you want to push the boundaries of a rule - try to stretch the rule to cover more than it previously has - this is fine, but you need to carefully articulate a chain of reasoning to justify the stretch.)
    7. Use language carefully. For instance, don't say, "Is there enough [or adequate] consideration here?" Consideration doesn't have to be "adequate." You can simply ask whether there is consideration, or whether there is valid consideration. Using the term "adequate" connotes a concern with the fairness of the exchange, and blurs the issue. Some judges are sloppy with language; that doesn't mean you should be.
    8. To the extent possible, proof your writing. Your credibility as a lawyer depends on portraying yourself as careful, thorough, and precise. Misspelled words (especially the names of parties or cases), typos, careless punctuation, and a generally slopping appearance to your writing will lead readers to regard your arguments with skepticism. You are trying to persuade someone that your analysis or advocacy is correct and persuasive-spelling errors and typos don't help. (Obviously, in an exam setting, proofing may be a luxury that you don't have. Still, try to be careful, as you write.)
    9. Identify the places where your analysis could take one of two paths and then follow them both! If, for instance, you are trying to decide if a contract has been formed and the predicate statement by the putative promissor might be a promise or might be a joke (a statement made under circumstances where you can argue that it was not serious), you are at a point where your analysis could take one of two paths. If the statement was not serious - if it was a joke - then there is no promise to enforce and thus no contract. If the statement was a promise, then you have to proceed with the next step in your analysis - is there consideration supporting the promise? In an exam setting (and most of the time in practice) you need to follow both paths.

    Exam Writing Tips Part II

    As you know, I am working on providing each of you with detailed feedback on your first quiz responses and providing the class with a detailed memorandum addressing some of the common issues that I saw in the responses. In the meantime, however, I thought that you might benefit from a brief discussion of one common first-year exam mistake: skipping rules and arguments and relying only on conclusions.

    Sample Problem

    In a prior sample exam, I asked, in part, whether a woman, Monica, made an offer to sell Property X to Todd and Nancy. Essentially, the issue boiled down to whether a letter that Monica sent to Todd and Nancy, containing some language like, "I'm pleased to offer you the opportunity to purchase Property X [legal description] for $10,000" was an offer or an advertisement. For purposes of this memorandum, it is not necessary to know any additional facts.

    Student Responses

    Here's a range of responses that students gave to the question:

    1. Monica made an offer to Todd and Nancy.
    2. Monica made an offer because all the elements for an offer are satisfied.
    3. Monica made an offer because her letter manifested a willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.
    4. Monica made an offer because her letter contained language of commitment, contained relatively complete terms, and was communicated in such a way that a reasonable person would believe that her acceptance was invited and would conclude the deal.
    5. Was There An Offer?

    An offer is the manifestation of a willingness to enter into a bargain, so made as to justify another person in understanding that her assent to that bargain is invited and will conclude it. Courts typically require that offers: (1) contain language of commitment; (2) contain the all of the material terms of the proposed deal; (3) be communicated in such a way that a reasonable person would believe that her acceptance was invited and would conclude the deal.

    Monica's Jan. 5 letter includes the following phrases: "I am pleased to offer"; "this is a firm offer"; "the first acceptance that I receive will close the deal." All of these sentences unequivocally convey commitment on the part of Monica as to her willingness to enter into a bargain if the recipient accepts. There is sufficient language of commitment.

    The Jan. 5 letter includes the subject matter, Property X (along with a legal description), the price ($10,000); the form of acceptable payment (cash or cashier's check), the time of performance (7 days after acceptance is received), and the warranty (or lack thereof--"as is"). These terms are certain and definite enough for a court to enforce, and there are no other key terms necessary to create an enforceable deal. The terms are complete enough to satisfy element 2.

    One problem with the third element is that the letter is a photocopy and is addressed to "Dear Prospective Buyer," indicating that the letter might have been sent to multiple offerees and might then resemble an advertisement, which are generally not understood to be offers. However, ads will be treated as offers if the recipient would reasonably believe that her acceptance is invited and will close the deal. For example, an advertisement that stated "first come, first served" was seen to be a sufficient invitation of acceptance. Here, the recipient of each letter is told, "The first acceptance that I receive will close the deal." Although each recipient is put on notice that there might other offerees, each can be understood as reasonably believing that Monica is inviting acceptances and that if theirs is the first acceptance she receives, that it will conclude the deal. This element is satisfied.

    Because the three elements have been met, a court is likely to conclude that Monica made an offer to Todd and Nancy.

    My Comments

    Only the last of these responses starts to get beyond being a mere conclusion. 

    Example 1 obviously does nothing to help me ascertain whether the student understands the legal requirements of an offer, and worse yet, it does nothing to help me ascertain whether the student can fashion any persuasive arguments about offers. At most, Example 1 demonstrates that the student spotted the issue, but merely spotting an issue does not get you very far on an exam.

    Example 2 does little more than Example 1. Although it uses the word "because," which is a great start, it fails to actually provide any substance to follow the "because." Like Example 1, I am left wondering if the student has any idea what the legal requirements of an offer are, and, more fundamentally, I am left wondering if the student has any capacity to frame a persuasive argument about offers.

    Example 3 is slightly better because it at least provides a skeletal rule. Example 3 thus provides some way for me to gauge the student's understanding of the legal requirements of offers. Example 3, however, fails, just as Examples 1 and 2 did, to give me any way of determining whether the student can wield the basic rule to win an argument about whether an offer has been made.

    Example 4 merely provides a more complete rule than Example 3 did. In this respect, it would have allowed me to give the student a few more points. But, like Examples 1-3, Example 4 does not provide me with any arguments or analysis.

    Example 5, while not perfect, is the only one that identifies the issue, provides me with a relatively complete statement of the legal rules governing offers, and then endeavors to analyze whether the rules have been satisfied in the context of the problem. Notice that the student writing Example 5 does a nice job of separating out the rules so that her or his analysis can be similarly organized. Notice also that in the analysis portion of the response the student uses some key facts from the question to support her or his assertions without reciting all of the facts. 

    The student could improve this answer, however, by trying, even more, to avoid conclusory statements and make arguments. Think, for instance, about the first bullet point - the student merely concludes that phrases like "I am pleased to offer" unequivocally convey commitment. The student's argument thus boils down to this: "the letter contains sufficient language of commitment because phrases like ‘I am pleased to offer' unequivocally convey commitment." Rather than taking the next step of arguing about why such phrases "unequivocally convey commitment," the student simply lets the adverb do the persuading, supposing that the reader will be convinced because of the added intensity of the student's certainty. Generally, however, adverbs and adjectives are not sufficient persuasive tools to convince judges of anything. The student could have made this answer even better by arguing that "the phrases convey commitment BECAUSE . . . ." 

    This said, Example 5 is a pretty good response, especially considering that it was written within the time and pressure constraints of a mock exam setting. 

    In short, when you are writing your law school exam responses:

    1. Identify a discrete issue for analysis. But, do not stop after you identify an issue. Identification is only the threshold step in responding to a law school exam question.
    2. Provide a full statement of the legal rules relevant to resolution of the issue that you have identified. This should be the easiest part of a law school exam because you can study and prepare for it. Know what the elements/factors/tests are for each of the topics that we have discussed and be prepared to recite completely (but succinctly) those elements/factors/tests on the exam. But remember, recitation of the rules is not the end of your response; like identification of the issues, recitation of the rules is merely a threshold (but very, very important) step in responding to a law school exam question.
    3. Analyze (make arguments about) whether the rules that you have recited are satisfied in light of the facts provided in the exam question. Remember, there are very few definitive answers in the law; there are usually just better and worse arguments. When reading through your analysis/argument, Professors may give some weight to whether you reached the "better" conclusion, but Professors are far more interested in seeing that you can fashion persuasive and cogent arguments out of the rules and the facts. Thus, reaching a conclusion prematurely (or providing nothing but a conclusion) will result in you getting a far worse grade on an exam than you might like.