Exam Preparation and Exam Writing Skills

Exam Preparation

Good exam preparation begins with good study habits. This study includes reading the assigned material, such as cases, at least twice before class, and reviewing notes and/or outlines cumulatively at least three times a week. Thus, it is really important to devote three hours a week for every hours spent in class. That means if a course is a three-unit course, you should be studying that course nine hours a week.

We need to study where there are no distractions, if possible. We need to emphasize the material the professor assigns, and if commercial outlines are a help in supplementing that material, great. However, outlines, other than those you make from your class notes, can never replace what you learn in class.

You need to begin to prepare your outlines early. It is not enough to begin a few weeks before exams. By then, it is too late. You need to be thinking about exams from the beginning of the semester, and outlines help you organize the class and see how each part of the course fits with each other part.

Good exam preparation includes recognizing the importance of taking practice exams seriously. That means taking them under exam conditions—as timed exams. There is no substitute for forcing yourself to write the issues, write the rules, and write the analysis and conclusion. You may read over an exam and tell yourself you recognize the rules, but it isn’t the same. The only way to prepare yourself for each professor’s exam is to take that professor’s previous or practice exams, and learn how to navigate each kind of exam.

Part of the problem is there is less time than you expect, by the time you read the question twice through, spot issues, outline an answer, and then write it. If you learn the material cold, by studying it throughout the semester, you can plan a template of an answer for every significant issue before you ever take the exam. Then, when the facts trigger an issue, you can write what is essentially a pre-written answer, incorporating and discussing the facts.

How do you prepare? By beginning, and keeping current, an outline or Course Summary of the course and reviewing all of it several times a week. Then, by no later than two weeks before the last day of classes, you should create: (1) a current and complete outline for each class in which an exam is administered; (2) a list of the significant issues you expect to be covered on the exam; and (3) an written outline of your approach to answering or addressing each of those issues. For two or three weeks, you should then work on nailing down and completing these approaches so that, when you take your exams, you can apply these approaches to the issues, and write your exams more efficiently, more quickly, and more completely.

What are the significant issues? Those on which the professor has spent significant time (at least half a class), and those which recur on practice exams the professor has given in the past. Thus, you should begin now to take those practice exams, and come to me to review your draft answers. We can then work on both your exam structuring, and determining which are the significant issues for which you need to prepare.

Many students in the past have commented that when they reviewed their exams with their professors, if they did so, they found that they didn’t know the law or didn’t write a thorough analysis. These are two sides of the same coin. Thorough knowledge of the material is critical to writing a good exam, and only you know how much you need to study to know the material thoroughly. A thorough knowledge of the material means that you know each subject precisely. This means, for example, that if a topic in a given course applies a particular test, you should be able to state that test in the precise words used by the court or the professor. The approximate words won’t do, and won’t allow you to apply the law to the facts in a systematic way, as you are expected to do on the exams.

Assuming you know the law, and have planned ahead as to how you intend to discuss issues, how do you translate that to writing the exam? We are now going to revisit the idea of IRAC—Issue, Rule, Analysis and Conclusion—that forms the basis for most types of exam essay answers.

Essay Exam Writing

Writing a good law school exam requires four things: a solid knowledge of the applicable law; good issue spotting; an approach to each possible legal issue organized ahead of time; and good writing.

The solid knowledge of the law can only come with good preparation through thorough studying and case briefing, good class participation, both actively and in note-taking, and good outlining and reviewing of notes and outlines. There is no substitute for putting in the time and the hard work.

Issue spotting is in part something that comes with practice. If you know the law well, and studied hard, when you see certain fact patterns, they should be similar enough to those you have seen in cases to suggest issues. How do you approach an exam to spot issues? If you learn the material cold, by studying throughout the semester, you can plan a template of an answer for every significant issue before you ever take the exam. Then, look for when the facts trigger an issue. What does that mean? It means, as you read through the facts, based on your knowledge, certain facts will trigger particular issues—or, more correctly, clusters of issues. That is, certain topics go together, because there are only certain ways to write law school exams. So, for example, if you see someone getting into a structure that doesn’t belong to them, it suggests a breaking, which suggests burglary, so you should be looking for other facts which deal with the elements of burglary.

Assuming you know the law well, and as a result you are able to spot issues on an exam, when you spot the issue, make a brief reference to it on the exam itself, with a line and arrow drawn to the facts which give rise to the issue. That way, you both make sure you don’t forget to address the issue, and you make sure you don’t forget to use the facts.

Law school essay exams tend to be of two types, depending on the subject matter. Some are rule-based, because the subject matter concerns topics that either have a long history of common law and thus can be phrased in terms of black-letter law, such as Torts and Contracts, or operate by a set of statutes or rules, like Civil Procedure, Evidence, or the Uniform Commercial Code. With these exams, you have to know each part of the rule (which may have been synthesized from a series of cases), and then apply the facts to each part of the rule, even if you don’t think the facts will apply. You need to show that you thought about whether the facts apply, because the professor can’t read your mind.

Others are case-based, like Constitutional Law and Criminal Procedure. There, the rule is expressed in case precedent, and you have to know the names, facts, holding and reasoning of cases. Then, like in Legal Skills, you would first state the rule as it appears in the precedent case or cases, and then analogize the question facts to the cases to reach a conclusion.

Learning the skill of writing essay exams will have a major impact on your law school grades. Most of your law school exams will require you to apply principles of law you have studied to fact situations. This requires you to identify the legal issues raised by the facts [“issue spotting”], select and interpret the appropriate legal rules, apply the rules to the facts, and come to a correct conclusion. These steps are often referred to by the acronym “I.R.A.C.” Let us have a more detailed discussion of this approach using Criminal Law as an illustration.

1. Issue spotting. This requires identifying potential legal issues raised by the facts. To do this, you need significant familiarity with basic rules of legal liability. In criminal law, most nonlawyers can recognize general patterns such as homicide and theft. However, you will learn more refined analysis--for example, when property is taken, you will learn that it may be robbery if force or fear is used, it may be burglary if there is an entry into a structure, it may be extortion if there are threats of future harm, it may be false pretenses if there is fraud, et cetera.

2. Rule selection and interpretation. Once you identify the general issue you must select the appropriate rule. In criminal law, that rule usually will be found in a statute, except for rules relating to defenses, which are often defined by the common law. However, rules often require interpretation. You must recognize ambiguities or alternatives. Professors use cases to teach you skills of interpretation. Some of the cases illustrate good interpretation and some illustrate bad interpretation. You must learn to recognize the difference or you may find yourself repeating the bad interpretation on the exam.

3. Application of the rules to the facts. Where there is more than one interpretation of the rule, apply the different interpretations in the alternative. Where the facts are ambiguous, identify the ambiguity and apply the rule to both alternatives. Where both the rule and facts are ambiguous, this may result in several alternatives. If there are factors that make one interpretation of the rules or the facts better than another, discuss what these are. If there are several alternatives for establishing the fulfillment of a rule, then discuss the facts as applied to each alternative. For example, if “elder fiduciary abuse” is met by either the wrongful obtaining, retention, or refusal to return assets of an elder or dependent adult, then you must discuss the facts as applied to whether the assets were wrongfully obtained, wrongfully retained, or wrongfully refused to be returned, and you must discuss both whether the adult was an elder adult and whether the adult was a dependent adult. You must show that you have considered all possibilities, because a judge might not accept your evidence on one of the possibilities. In applying the rules to the facts, use connector words of explanation, such as “because” and “since.” For example: Because Michael threw the rock which hit the bicycle on which Tommy was riding, causing Tommy to fall, Michael caused contact with Tommy because the bicycle was closely connected to Tommy’s body. This ties the facts with the key words in a rule or sub-rule, and explains why you have come to a conclusion about whether that rule or sub-rule was met.

4. Conclusion. If there is more than one conclusion possible, discuss reasonable alternatives. If asked, explain which is the better alternative and why. Note that usually professors will not ask you to select among alternatives.

This is the basic structure for the analysis of a single issue. Typically, a problem will involve multiple issues, and your analysis will have to be modified, depending on the level where the additional issues arise.

For example, if the overall issue is whether a buyer of a house has a right to rescind the purchase, the rule may be stated, “Where the seller has either created or is aware of a condition which materially affects the value of the house, and the knowledge of the condition is either peculiarly that of the seller, or could not, with reasonable diligence, be discovered by a prudent buyer, the buyer may rescind the sale.” As stated, you would have to analyze: (1) whether the seller created the condition; (2) whether, alternatively (because of the use of the word, “or”), the seller is aware of the condition at the time of the sale; (3) whether the condition materially affects the value; (4) whether the condition was peculiarly within the seller’s knowledge; or (5) whether, alternatively (because of the use of the word, “or”), a prudent buyer, with reasonable diligence, could have discovered the condition. But, to analyze whether the condition materially affects the buyer, you would have to apply a further rule: a condition is material if a reasonable buyer would consider the value to be less because of the condition. So, even within an IRAC structure, you may have a further level of IRAC as to an element or sub-issue. This reinforces the importance of knowing the law, and knowing how the law is structured. Only if you knew there was a sub-rule defining what is material would you be able to IRAC that sub-rule, and give a more complete answer.

Here is an example: On the most general level, a fact situation might raise the question of which rule to use -- e.g., does a given fact situation constitute larceny or embezzlement? If you determine that it is larceny, you may still have several issues to discuss, though in this case the issues would be "subissues" of the general issue of whether the defendant committed larceny. For example, if you suspect the facts raise an issue of larceny, you would use the rule that larceny is the trespassory taking and carrying away the personal property of another with intent to steal. You would break the rule down into its elements (conduct, results, circumstances, and the required mens rea for each element, if known). This rule then raises the following issues:

1. Was there a trespassory taking of personal property?
2. Did it belong to someone else?
3. Was it carried away?
4. Was there intent to steal?

For each of these issues you will have to identify a rule unless the exam states it as a given. For example, you may be told the property belonged to someone else, so you would not have to discuss rules of property law determining ownership. But on the issue of "was there a trespassory taking", you may need to provide a rule defining what is a "trespassory taking." Furthermore, once you discuss the rule, you may discover further sub-issues. For example, a taking is trespassory when a person decides to take property without permission or consent and only has custody of the property, but not possession. This rule raises the further issue of when does a person have custody of property rather than possession.

Some issues may not be a problem in most cases. For example, if a person took property a mile, that would obviously meet the requirement of "carried away." But if a person picked up a baseball in a sporting goods store and carried it a few feet and did not leave the baseball department, you might need a legal definition to discuss this issue.

Consider this in the context of the following fact pattern/essay question (where the rules are supplied in the course of describing how you should answer the question):

Owen offered a valuable watch for sale. Dennis asked to see it, so Owen handed it to him. Dennis decided he wanted it [permanently], but he could not afford to buy it, so he ran off with it with Owen in hot pursuit. Dennis was too fast, and got away with the watch.

What is the Issue? - Was this larceny?

What is the Rule? - larceny is the (1) trespassory taking and (2) carrying away of the personal property (3) of another (4) with intent to steal.

Application - Often you can choose to apply elements of a rule in any order, but try to dispense with the easy ones first, or just go in the order of their appearance in the rule.

(2) Dennis carried away the watch, since he ran off with it; and (3) the watch belonged to another (Owen).

(4) Subissue - Did Dennis have intent to steal?

Sub-Rule: Intent to steal means intent to permanently deprive the owner of possession. Application: According to the facts, Dennis decided to keep it permanently when he carried it away. Conclusion: Dennis had intent to steal.

(1) Subissue - was the taking trespassory?

Sub-Rule: A taking is trespassory when a person has been given custody only, and not possession, and then carries it away without permission or consent. Sub-subissue A: Did Dennis have custody only? Sub-subRule: A person has custody only when the person entrusting him with the property only gave permission to examine the property in his presence. Application: Owen was merely letting Dennis examine the watch in his presence. They had not worked out a sale yet. Conclusion: Dennis only had custody at the time he formed the intent to steal and ran off with the watch. Sub-subissue B: Did Dennis carry away the watch without permission or consent? Application: Owen only allowed Dennis to have custody. Dennis then ran away with the watch. Owen obviously had not given permission as illustrated by the fact he chased after Dennis. Conclusion: Dennis carried away the watch without Owen’s permission or consent.

Conclusion on Subissue: The taking was trespassory.

Overall Conclusion - Since Dennis had only custody of the watch, when he ran off with it the taking was trespassory. He carried the watch away. The watch belonged to another, Owen. Dennis had the intent to steal. Therefore he is guilty of larceny.

I.R.A.C. illustrates the mental process you must engage in to solve legal problems. This is not necessarily the format you would use in writing an essay, but in most cases, the general structure is the one you would use. This format can be very verbose, and you may be able to find ways to express the same ideas more succinctly. One of the most important refinements of exam writing skill is learning to be succinct (not wasting time) while not being too cursory or "conclusory." The term "conclusory" is not found in many dictionaries, but is a commonly used word in law school. Unfortunately, it is a common error on law school exams. You are too "conclusory" when you come to a conclusion without adequately justifying or explaining it by using the facts you are given, such as by concluding that Dennis had custody only, without discussing the facts which support that assertion. One way to work to avoid this is the general structure: Dennis had custody only because Owen offered Dennis the watch for sale, and only handed the watch to Dennis to let him look at it. However, it is difficult to appreciate what is an adequate justification or explanation. This is a skill that must be mastered through trial and error. Students often correct one problem but end up creating the other -- i.e., they try to be less verbose, but become conclusory. For beginners, it is better to err on the side of being too verbose. You are more likely to lose points if you are too conclusory. You won't finish if you are too verbose, but at least you will get significant credit for what you did.

Here, then is a sample answer to the essay question. This is not intended as a model or perfect answer. There are many different ways you could have written and organized a good answer.

Dennis is guilty of larceny of Owen's watch.

or

Is Dennis guilty of larceny of Owen's watch?

Larceny is the trespassory taking and carrying away of the personal property of another person, with intent to steal.

A person commits a trespassory taking when he takes the property from the possession of another without permission of the person in possession. You only have custody, not possession, of property when the person in lawful possession only allows you to examine property in his or her presence. Owen only allowed Dennis to examine the watch in his immediate presence. Therefore Owen retained constructive possession and Dennis only had custody. When Dennis ran off with the watch without Owen's permission, this was therefore a trespassory taking from Owen's possession. The fact that Owen chased after Dennis shows Dennis did not have Owen's permission to take the watch away. Running away with the watch and escaping constitutes the second element of "carrying away" the personal property of another. The watch was the personal property of another because the facts state that this watch belonged to Owen, not Dennis.

Intent to permanently deprive the owner of his property constitutes intent to steal. Dennis decided he wanted to keep the watch permanently, but could not afford to buy it, so he ran off with it. This shows he intended to deprive the owner of the property permanently. Therefore Dennis had intent to steal the watch.

Since Dennis engaged in the trespassory taking and carrying away of Owen's watch, intending to steal it, Dennis is guilty of larceny.

There are additional things you should keep in mind in writing an essay answer. First, let’s talk about rules of law, since the key to a good exam answer is to get the rule right and on paper. A rule is a general principle on which decisions are to be based. Some rules are mandatory (“any person who pays an annual fee of $100 shall be entitled to a beach access permit”), some rules are prohibitory (“no person shall enter into a valid marriage within this state unless they have first obtained a valid marriage license from the clerk of the county of their residence”), and some are discretionary (“the curator of the Louvre may permit flash photographs to be taken when, in his or her judgment, no damage to art will result”).

You have already seen that having a rule is not enough. Some of the words in the rules require explanation in certain circumstances. You will need two skills in mastering the lawyerly use of rules. The first skill is language mastery: the ability to spot ambiguity, and vagueness, and to analyze abstractions. The second skill is the capacity to think structurally. A rule is an idea with a structure to it, and in this way, is like an algebraic formula. The ideas within the rule as expressed in its language may not have mathematical precision, but the skill needed is perceiving the structure of an idea, breaking it down into sub-ideas, organizing the sub-ideas usefully and accurately, and applying the organized idea to facts.

Every rule has three distinct components: (1) a set of elements, which may collectively be called a test; (2) a result that occurs when the test is satisfied by the factual presence of all the elements; and (3) a causal term that determines whether the result is mandatory, prohibitory, or discretionary. Many rules have one more component: exceptions that would defeat the result, even if all the elements are present.

Let’s look at the application of the rule in a fictional setting. Think through this passage from Alice in Wonderland:

At this moment the King, who had for some time been busily writing in his notebook, called out “Silence!” and read for his book, “Rule 42: All persons more than a mile high to leave the court.”
Everyone looked at Alice.
“I’m not a mile high” said Alice.
“You are,” said the King.
“Nearly two miles high,” added the Queen.

Okay, what was the rule? [All persons more than a mile high to leave the court] How many elements, or parts, does the rule have? [Two—being a person; and being more than a mile high] What is the result if the elements are met? [Departure from the court] Is the causal term mandatory, prohibitory, or discretionary? [Mandatory—it must occur] Are there any exceptions? [No] Is the first element of personhood met? [Yes] How? [Alice impliedly conceded it and didn’t deny it] Does Alice challenge the second element? [Yes] What would happen if the Queen couldn’t prove Alice was nearly two miles high, and she only proved Alice was 1.235 miles high? [Alice would still need to depart, because the rule requires any person more than a mile high to leave, and 1.235 miles is more than a mile] What would happen if the Queen only proved Alice was 0.985 mile high? [Alice would not need to depart, because the rule only requires any person more than a mile high to leave, and 0.985 mile is less than a mile] What we have now done is an example of IRAC. The issue is whether Alice had to depart the Court. We stated the rule, and broke it down into its parts. We addressed each part, and whether under the facts, each part was met or not, and we explained why. Notice, for example, the structure: Alice would not need to depart, because the rule only requires any person more than a mile high to leave, and 0.985 mile is less than a mile. We state the conclusion (“Alice would not need to depart”), but we then give the reason in terms of both the language of the subpart of the rule (“the rule only requires any person more than a mile high to leave”), and the factual reason (“0.985 mile is less than a mile”), both linked to the conclusion by the word “because.” Use this format in writing your exam answers, and you will avoid just writing conclusions, and you will always analyze by using the available facts.

Another way to do this is by expanding IRAC to “TICRA-FLIPC” (pronounced tick-ra-flip-sea) (with thanks to Professor Dennis Tonsing of Roger Williams University Ralph R. Papitto School of Law):

This method lends itself to syllogism. Consider first the following logical syllogism:

• All men are mortal
• Socrates was a man
• Socrates was mortal

Now consider the following legal syllogism, using the “under, here, therefore” regime, tied to TICRA-FLIPC:

• Under Federal Rule of Civil Procedure 12(a)(1)(A), if an answer to a complaint is served within 20 days, it is timely.
• Here, defendant A’s answer was served within 20 days because A mailed it out on the 19th day after she was served.
• Therefore, A’s answer was timely.

The importance, then, of understanding the structure, even if it is so complex that you need to diagram it, is that once you understand the structure, and break a rule into its parts, you can explain, in order, whether or not each part is met by applying the facts to the part.

To sum up then, good exam writing begins with good exam preparation. Review your notes and outlines. Anticipate issues and design approaches to them. Write practice exams.

If you have any questions about any aspect of the Academic Success Program, please feel free to call or stop by, or e-mail me at mmainero@law.whittier.edu. I would be delighted to assist you in any way I can.

Professor Mario Mainero
Director, Academic Success Program