Table of Contents
- Exam Format
The Plan of Attack
Law School Success
Feb 08, 2022
Law School Exam Writing Guide
by Eric Cervone
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.
The law school exam is a unique animal, most likely very different from any exam you’ve ever taken before. The theory goes that in your practice as an attorney, you’ll encounter something like this: A client will come in and tell you what happened. You’ll be expected to listen to the client’s story, spot the potential legal issues, identify the relevant law, and apply the law to your client’s case. The law school exam is supposed to simulate that experience to some degree.
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.
Let’s get started!
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.”
After the fact pattern, you’ll be presented with a question prompt. The question prompt will tell you how to frame your essay. The question prompt might simply tell you to spot and analyze the legal issues. You may be told that you are a judicial clerk and asked to objectively analyze the issues in a case. Alternately, you may be told that you’re an associate at a law firm and asked to figure out the legal arguments most favorable to your client. No matter what the question prompt, the goal is pretty much the same: to spot and analyze all of the legal issues involved. Mostly, the point is to giving you a starting point to write your essay, but pay attention! Formatting your essay correctly may be worth a few points, and every point counts.
Law school exams test four key skills:
- reading comprehension
- issue spotting
- legal analysis
- legal writing
Let’s take those one by one.
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.
It is absolutely essential that you read the fact pattern thoroughly, carefully, and completely. Some people like to begin by reading the question prompt, because it will usually give you an idea of the subject and sometimes the particular topic to which the question relates. More on that later.
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.
Pro tip: It’s a good general rule of thumb that spotting more issues equals scoring more points. However, remember that the only issues that count are those related to the exam’s subject area. Your criminal law professor will not give you any points for realizing that the victim may have a tort case against the defendant. Don’t waste precious time on spotting or analyzing issues that won’t help you score points.
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.
Next, you have to draw on the fact pattern and apply the legal principles to the case. This is where you pull in the relevant facts (remember, only talk about the facts that matter for the particular legal issue you’re analyzing). You’ll need to be able to identify the parties, their rights, any potential causes of action, the likelihood of success, and any other potential issues. This is a good place to pull in public policy factors that might influence a court’s decision. Sometimes the fact pattern may not give you enough information to answer a particular legal question; you’ll need to note the missing information and how that information could potentially affect your analysis.
Lastly, you need to draw conclusions. Don’t be shy about this either. If the answer is clear, say so. If the issue is a close call that could be decided either way, say that.
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.
Now is not the time to get creative and experiment with structure. You want to demonstrate that you understand the principles of legal writing and write your essay as clearly and concisely as possible. Using the CREAC method (which is our preferred method here at Quimbee) ensures that your professor will know exactly where to find the information he or she is looking for; your goal is to make that as easy as possible. Your professor has a lot of papers to grade; don’t expect him or her to spend a lot of time digging around for the key information.
In our experience, it seems that most often students forget to include the rule explanation and application. Don’t skimp! Each element of CREAC should get (at least) a full sentence. More on that to come.
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.
This is pure math. If each question is worth 5 points, then that is the maximum amount of points you will get on that essay, no matter how good your answer is. If you get a perfect 5 points on the first question and 0 points on the second, you’ll be much worse off than someone who wrote a 3 or 4 point essay for both questions. The same is true within a question. If a question has three issues, and you spend all your time thoroughly analyzing only one issue and don’t mention the remaining two…well, you get the idea.
So here’s what you do. Give yourself an adequate amount of time to read the question. Depending on the amount of time you have, try to plan at least 15-20 minutes just for reading. If you’re a fast reader, slow down or go back over it. Remember what we said about reading comprehension? Give yourself time to really read the question.
Next, divide your remaining time between the questions. Hopefully, your professor will tell you how many questions will be on the exam beforehand, and you can work this out ahead of time. Either way, though, you want to make sure you allocate time to answer every question. But this isn’t necessarily a 1-for-1 ratio. If your exam contains multiple questions, but the questions are not weighted equally for grading purposes, you should weight your time accordingly.
Don’t forget to save time at the end to re-read your exam, paying particular attention to grammar and spelling errors.
Let’s imagine your exam lasts 3.5 hours. The exam will consist of one essay worth 50% of your grade, and two more essays worth 25% of your grade each. You should divide your time like this:
- 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
If you have time left over, re-read the fact pattern and see if there are any issues you missed. Look back over your answers and see if there is anything that could be fleshed out or developed further. We don’t recommend leaving early. Every minute you are given to take your exam is a precious resource; don’t give it back.
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.
On the other hand, don’t be so eager to get started writing that you jump right in before you’ve read the entire fact pattern. It is entirely possible that facts at the end of the fact pattern may significantly affect your analysis of issues you spot at the beginning.
Don’t forget to read the question prompt. Know what perspective you’re writing from and who your target audience is. Where applicable, make sure your exam is formatted as if it were an actual assignment in the workplace (e.g., if you’re asked to write an objective memorandum, include the appropriate headings at the top of the page). Pay attention to any instructions you are given. In particular, if your exam is graded anonymously, make sure your exam is free of any and all identifying information.
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.
Either way, make sure your outline includes each and every issue you’ve spotted. Pay attention to order. There’s no need to discuss the issues in the exact order you spotted them in the exam question. In fact, that’s most likely not the best way to approach the exam. Talk about the most important issues first. Save the minor issues for the end of the essay. Remember to pay attention to time. Make a note of how many issues you’ve spotted, and try to roughly divide your time between them.
Now, you’re ready to write. Work through your outline systematically. For each issue, plan at least one full paragraph following the CREAC method. More complex issues may require two or even three paragraphs. Smaller issues may only require a single five-sentence paragraph (remember: one sentence for each element of CREAC).
Begin the paragraph with a clear statement of the issue or your conclusion. Your professor should be able to read that sentence and know exactly what the whole paragraph will be about.
Next, state the relevant black letter law and exceptions. Note that if the exception applies, you may be best served to discuss it in the next full CREAC paragraph. Consider beginning this sentence with the word “under” and then citing the applicable body of law. For example, you might begin your rule statement with: “Under common law contract principles…” or “Under the Fifth Amendment…” This lets your professor know right away that you know which law governs the issue. Then state the specific rule that’s applicable. Use your legal knowledge and try to come up with a law or rule that sounds reasonable. You may get close enough to the right rule to earn points. Even if you don’t, you can still earn points through your analysis and application of the rule to the facts of the case.
Then, explain the rule. This deserves at least one full sentence. Now is the time to include any relevant case law (no, you don’t need citations, but if you remember a landmark case by name or identifying information, like Erie or the Hairy Hand Case, use what you’ve got) or “magic words” courts often use when explaining the rule. State the appropriate standard of review where applicable. Students often omit rule explanation and leave points lying on the table. Don’t make that mistake.
Now you’re ready to apply the law to the facts of the case. Start with the words “In this case…” to signify that this is the application section to the person grading the exam. That may seem boring and repetitive. So what? Remember that the goal is to maximize points. Don’t waste time reciting the facts contained in the exam question. Pull out only the key facts that are relevant to the rule, and explain specifically how the rule applies. Here’s a good rule of thumb: the application section should contain the word “because.” (E.g., “The plaintiff has a valid defense of lack of mental capacity, because…”)
Don’t forget to include relevant policy considerations in your analysis. Sometimes a particular result best promotes the public policy goals underlying the law. Say so! That’s worth points.
Finally, restate your conclusion. Begin the sentence with a word like “thus” or “therefore.” It’s okay to say that a particular issue is a close call, but make sure to explain which result is most likely. That said, if the result is clear, be confident and say so.
Note: Although you most likely won’t be graded on it specifically, try your best to use proper grammar and spelling. This will help ensure your writing is clear and concise, which can only help your grade. Plus, you don’t want your professor to be distracted by egregious errors. Use transition words. Avoid exclamation points, colloquial speech, slang, and do not, under any circumstances, use textspeak or emoticons.
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.
Paragraph 1 doesn’t tell us much. It sets the stage for the question, but at this point, it’s hard to know what’s going to be relevant. We flagged Frank and the Natural Grocery Store as potential parties, and we added a question mark near the vegan and vegetarian meal options fact, in case that might be relevant later.
Paragraph 2 gives us more detail. We flagged Vegan Food Co. as a potential party. Plus, we’re now pretty sure that something is about to go wrong for Frank when he eats those burritos. We added a note in the margin to point out that Vegan Food Co. produced the food, but Natural Grocery Store assembled the burrito. That seems like it may be relevant. It also sounds like there may be a products liability issue, since we now have facts about both the manufacturer and the retailer of the product. We also put a star by the fact about the expiration date. Sounds like Frank might be getting food poisoning from a bad burrito.
Paragraph 3 switched gears. We made a note that Frank followed the package directions to reheat the food, and we underlined the warning on the package pointing out that the burrito might be dangerously hot after cooking in the microwave. This tells us that Frank heeded the instructions on the package, but it also alerts us to a potential warning issue. We don’t know if Frank actually read the warning, but we do know it was the only warning on the package. Now we’re thinking Frank might get burned when he pulls the burrito out of the microwave.
Paragraph 4 is the turning point. This is why it’s important to read the entire question before you begin writing. Frank didn’t get food poisoning from the burrito or burn himself cooking it. Rather, there was a sharp chicken bone inside the burrito that severely injured Frank when he took a bite. We’ve underlined this, and added some notes in the margin for reference. We know we have a defective product, which most likely means we’re dealing with strict liability or negligence. Plus, we know it’s a defective food product, which means we’ll either be using the foreign-natural test or the consumer expectations test.
Finally, we have the question prompt. The question prompt alone gives us a good amount of valuable information. First, we know that this is a straightforward analysis, and we don’t need any special formatting. Next, we know that we’ll be analyzing Franks claim under a strict liability theory only; no need to talk about negligence. Lastly, we know we’ll need to analyze Frank’s claim with respect to both the manufacturer, Vegan Food Co., and the retailer, Natural Grocery Store.
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.