You’ve survived an entire semester. You made it through the cold calls, the mountains of reading, and the endless case briefing. Your outline is perfect. You’ve studied until you know the material like the back of your hand. You eat, sleep, and breath black letter law. Only one thing remains: writing the exam.
If you’re looking for an esoteric discussion of the theoretical underpinnings of law school exams, this isn’t the guide for you. Our goal is to give you the lowdown on how to score maximum points on your exam.
In this guide, you’ll learn:
- The typical format of a law school exam;
- Exactly what law school exams are designed to test;
- How to attack a law school exam, including: how to budget your time during an exam, how to read an exam question, and the best way to construct an exam answer;
- Some helpful tips for maximizing your score.
First things first, you need to know how the exam will be structured. Most law school exams are made up exclusively of essays. But these essay questions are nothing like the essay questions you might have seen in college. You will be presented with a complex fact pattern, which is just a hypothetical scenario involving one or more parties who have legal problems. Keep in mind that the fact pattern may be just a paragraph or two or run for multiple pages. Your job will be to spot the legal issues, figure out the relevant law, and apply it to the facts of the case. That’s why law school essays are often called “issue spotters.”
Law school exams test four key skills:
- reading comprehension
- issue spotting
- legal analysis
- legal writing
Reading comprehension is the ability to read text, process information, and synthesize and draw inferences from it. This may seem pretty basic. After all, you’re a law student, not a fifth grader. But it bears repeating that law school exams are first and foremost reading comprehension tests. Misreading or skipping over text will almost certainly impair your ability to spot the issues and analyze the problems.
Issue spotting is the process of noticing the potential legal issues embedded in the fact pattern. A typical fact pattern will include many legal issues, some more obvious than others. The key to maximizing your total points is spotting as many issues as possible. The better you know the material, the more likely you’ll spot the relatively minor issues, as well as the major ones. Keep in mind that your fact pattern may also be sprinkled with facts that are completely irrelevant. You’ll need to be able to identify the facts that have legal significance.
Legal analysis is the process of (1) determining the relevant legal principles and rules that pertain to the issues, (2) applying those principles to the facts of the case, and (3) drawing conclusions about the outcome. This is a three-step process, and skipping a step will cost you valuable points. First, you need to be able to figure out what law applies. Is this a federal or a state issue? Statute or common law? Know the body of law that applies and then move on to the specific legal principles that are implicated in the factual scenario. You’ll need to have a good understanding of the black letter law and its exceptions.
You know from your legal writing class that legal writing follows a very rigid format. Most schools teach some variation of IRAC (Issue, Rule, Application, Conclusion), CRAC (Conclusion, Rule, Application, Conclusion), or CREAC (Conclusion, Rule, Explanation, Application, Conclusion). Do this.
The Plan of Attack
Now you know what the exam is going to look like and what you’ll be tested on. Let’s turn to what you really came for: how to attack the exam.
First, let’s talk about budgeting your time to maximize points. This will require you to make strategic decisions. You will only have so much time, and you need to make sure that you allot it so that you have time to answer every question on the exam. If your exam asks two questions, and you spend all your time writing a perfect answer to the first question, you will almost certainly do much worse than you would if you wrote a merely good answer to both questions.
- 20 minutes to read the question
- 1.5 hours on question 1
- 45 minutes on question 2
- 45 minutes on question 3
- 10 minutes to proofread your answers
Reading the Exam Question
We’ve talked about how important it is to carefully read the exam, but you should make the most of your reading time. Don’t wait until you’re completely finished reading to start figuring out the issues. You should be pretreating the essay as you read. Underline or make notes in the margin anytime you notice a potential issue (feel free to use highlighters if permitted, but be aware that there will be many issues and highlighting the entire fact pattern won’t help you much). This will form the basis of your outline and help you find key points in the fact pattern as you write.
Constructing an Answer
You’ve read the exam question and spotted the issues. The next step is to construct your answer. We recommend creating a rough outline before you begin. (You’re not writing a research paper. Don’t spend all your time constructing the perfect outline and risk not being able to finish actually writing your answer.) You might write this out on the exam itself or scratch paper. Alternately, you may want to go ahead and include a skeleton outline directly into your exam software.
Now that we’ve talked about how to write a law school exam, let’s give it a try with this short model example.
What issues did you spot? Let’s take paragraph by paragraph.
Analysis and Outline
It may be tempting to dive right into writing. After all, the clock is ticking! But you’ll most likely save time in the long run if you take a moment to organize your thoughts and sketch out a rough outline. Start with the cause of action, lay out the elements, list any exceptions, and insert the tests. You may want to add a note or two about key facts that should be included. Your outline might look something like this
Notice that the fact pattern included some red herrings. Even though the fact pattern included information about the product’s expiration date, Frank didn’t get food poisoning. This means that the expiration date wasn’t relevant. Similarly, the fact pattern devoted significant attention to the package instructions for heating and warnings about the danger of getting burned while cooking the food, but Frank wasn’t burned. These facts are irrelevant, so don’t waste time in your answer talking about them.
Take a moment to write out your own answer, and then compare your essay with our model answer:
Frank will succeed on his strict liability claim against Vegan Food Co. and Natural Grocery Store for the defective burrito.
Under products liability rules, a manufacturer or seller who places a defective product that is unreasonably dangerous into the stream of commerce may be held strictly liable for the harm that results. There is no longer a requirement of privity between the seller and the injured plaintiff for the plaintiff to recover. To hold the manufacturer or seller of a product strictly liable, the plaintiff must prove (1) that the defendant is a commercial supplier, (2) who manufactured or sold a defective product, (3) which actually and proximately caused the plaintiff’s injury, and (4) the plaintiff suffered damages. If the plaintiff can prove each of these elements, the manufacturer or seller may be held strictly liable for the damage that results from the defective product, meaning the plaintiff will not be required to show fault on the part of the defendant(s). In this case, each element is satisfied, and Frank’s claim will succeed.
Both Vegan Food Co. and Natural Grocery Store are commercial suppliers who may be held strictly liable under products liability law. A commercial supplier is anyone who manufacturers or regularly sells a product in the course of its business. Anyone along the distribution chain of a product may be deemed a commercial supplier, including manufacturers, wholesalers, distributors, retailers, and the like. However, casual or incidental sellers (such as an individual who sells her old car so that she can purchase a new one) are not commercial suppliers. In this case, Vegan Food Co. is a commercial manufacturer of certified vegan food products. This means that it regularly produces and sells vegan foods like those used in Frank’s burrito. Likewise, Natural Grocery Store is a retailer who sells various food products, including the burritos Frank purchased, in the regular course of its business. Because both Vegan Food Co. and Natural Grocery Store are commercial suppliers, and not just casual sellers, both defendants are eligible to be held strictly liable in products liability.
Next, the burrito was clearly defective. Under products liability law, product defects are generally categorized as manufacturing defects, design defects, or informational defects. Defective food products are typically analyzed under manufacturing defect principles. There are two general tests for determining whether a food product is defective: the foreign-natural test and the consumer expectation test. The foreign-natural test holds that if the cause of the plaintiff’s injury was a foreign product in the food, such as metal or glass, the food is defective. If, however, the cause of the plaintiff’s injury was natural to it, such as a chicken bone in a chicken breast, the food is not considered defective. The foreign-natural test has fallen out of favor, and most courts have abolished or modified it in favor of the consumer expectation test. The consumer expectation test asks whether the product was in a dangerous condition that was outside the expectations of the average foreseeable consumer.
In this case, the facts do not indicate which test this jurisdiction applies, but the burrito was defective under either test. Even though a bone is generally a natural product, bones are not natural to vegetarian and vegan items. Thus, a court would most likely conclude that the bone was a foreign object in the burrito, and therefore that the burrito was defective. Similarly, while some courts have held that a person who eats meat should always be wary of the presence of bones, an ordinary person eating food items labeled vegetarian or vegan would most likely not expect there to be a possibility that sharp bones might be concealed in the food. Therefore, under either the foreign-natural test or the consumer expectations test, the burrito was defective.
Next, Frank’s injuries were actually and proximately caused by the defective product. To prove actual causation, the plaintiff must show that the defect occurred before the product left the defendants’ control. In other words, the defect must have occurred sometime during the manufacturing and distribution process. The plaintiff in a strict liability action benefits from a res ipsa loquitur type inference. Specifically, causation may be presumed if the plaintiff can show that (1) the injury is of the kind that ordinarily would not occur but for the defect and (2) there were no factors outside the defendant’s control that could have caused the injury. In addition, principles of proximate causation will preclude liability if the plaintiff’s harm was so unforeseeable or unusual that it would be unfair to hold the defendant liable.
In this case, Frank purchased the burrito in a sealed condition from the Natural Grocery Store. No changes or alterations were made to the burrito after it left the defendants’ control. The injury that occurred—Frank being stabbed by a sharp chicken bone concealed inside the burrito—would most likely not have occurred unless the product was defective. Thus, it may be inferred that Frank’s injury was actually caused by the defective product. Further, it would not be unreasonable to hold the manufacturer and seller of the defective product liable for the harm that results. Frank was a foreseeable user of the product who used the product just as intended; he ate the burrito. It is entirely foreseeable that if the defendants placed a defective burrito containing a sharp bone into the market a purchaser might bite down on that bone and be injured. Therefore, the defective product was the actual and proximate cause of Frank’s injuries.
Frank does not have to prove whether the defect existed at the time it left Vegan Food Co.’s control. As a result of the special inference, the fact finder may conclude that the defect existed at the time the burrito left the defendants’ control, and the burden will shift to the defendants to prove exactly when the defect arose to avoid liability. Every seller in the chain of distribution may be held strictly liable to the consumer. Nevertheless, the suppliers may seek indemnification from other suppliers in the chain. In this case, if Vegan Food Co. can prove that the bone was not present in its food products when the food left its control, it can seek indemnification from Natural Grocery Store for any damages it is forced to pay. In contrast, if Natural Grocery Store can demonstrate that the defect existed before it left Vegan Food Co.’s control, it can seek indemnification from Vegan Food Co. This will not impact Frank’s recovery, however.
Lastly, Frank suffered damages as a result of the product defect. To recover in tort for products liability, the plaintiff must have suffered some injury or damage to property other than the product itself. Most states will not permit a plaintiff to recover purely economic losses that result from a defective product. To recover for economic losses and the cost of the product, the plaintiff must seek remedies in contract law. In this case, Frank was severely injured as a result of biting down on the sharp bone. Frank had to have surgery for the injuries. This means that Frank may seek to recover the damages for his injury, medical bills, and pain and suffering.
Because Frank can satisfy each of the elements for holding a commercial supplier strictly liable, his strict liability action for the defective burrito will succeed.