Need For This Book

• You can be smart, go to class, know the cases well, and still do poorly on law school exams.
• To excel on these exams, you must not only study hard. You must also understand, practice, and master a set of lawyerly skills to apply what you know on the exams (and later in practice).
• If at first you did not do your best, you can, nevertheless, do better. Many students who initially did not do well substantially improved their grades. They learned how to do better by painful "trial and error learning." From experience, I know you can learn these lawyering skills without suffering and disadvantage inherent in unguided trial and error learning.

The lawyerly skills you need to do well are not genetically acquired. Nor are they mysterious or exotic. These skills can be identified, understood, practiced, and perfected. Once internalized, these skills apply in each law exam you take, with some adjustments for individual courses and professors. Once internalized, these skills enable you to do your best on the exams.

Good news

You need not be a Holmes or Cardozo to master and apply these lawyerly skills.The challenge is formidable but in no sense Herculean. Remember that battalions of law students have mastered these skills in decades gone. Many of these students were not as able as you. In the past, it was an easy matter to be admitted to law school and not too difficult to be admitted to the "best schools." Today, it is far more difficult to be admitted to law school, and it is therefore an achievement to be in law school, one in which you should take a measure of pride. You are privileged to be in law school, to have this opportunity to transform yourself into a lawyer, a powerful position in our society that opens up vistas of opportunity and service.

The mastering of these skills as applied to exams calls for an application of your emerging lawyerly skills. What exactly are these skills? What exactly are the criteria by which you will be graded by your professors? How can you go about developing and perfecting your skills so that you can do your best on these exams? This book answers these questions in a systematic and integrated way. It is designed to present you with a holistic approach so that you can most effectively utilize the limited time available to equip yourself to do your best on the exams.

If you learn and apply an approach and a few methods from this book, that may mean the difference between "Cs" and "Bs" or "Bs" and "As". No one can do it all. No student can write model answers. Indeed, no professor can write model answers in the allotted exam time. You can make mistakes on exams and still do very well. Don't be discouraged.

Failure of law schools to prepare students for exams

Regrettably, while law schools can sometimes be impressive in what they do, most fail to prepare students to take law exams. Many first-year students are painfully surprised by their first law-school exams. Their format and your professors' expectations about your performance are radically different from what is expected in class and what you have faced in college and in most other exams. In addition, you do not routinely have your exams returned to you with specific comments about your exam strengths and weaknesses, so that you can identify both strengths and weaknesses and struggle to improve.

This routine failure by most law schools is an atrocious, even scandalous, pedagogy. It is axiomatic that taking exams should be a form of learning. The fact that many law professors allow students to review their exams, and that some have a model or outlined answer available, or that students can sometimes compare their answers with "A" answers, ameliorates the harm, but is no substitute for the professorial comment, review, and return that is routine in most schooling and mandated by fundamental pedagogic principle.

Mystification

The present practice reeks of mystification and obfuscation. I take pleasure in this book in helping to demystify the exam process, in dispelling the secrecy that surrounds it, and in making familiar what is unfamiliar.

Many students who have looked at their exams and compared their answers to excellent answers of others having "A" grades, or with a model answer, are puzzled. They have often told me that they made all or most of the points set forth in the "A" answer, or the model answer, but that the "A" answer "said them differently." Sometimes, these statements are correct. What these students typically do not understand, however, is that differences in grades result from the application of lawyerly skills that are a sine qua non of the excellent student, the excellent exam taker, and the excellent lawyer.

Integrated and systematic approach

In this book, I present then an integrated and systematic approach to empower you to identify, learn, practice, and master the skills-centered learning and performance that you need for law school classes, exams, and practice. In Chapter I, I specify the nature of the "beast": the different challenge posed by law-school exams, the six tasks you must perform in answering, and the six criteria by which your professor will grade you. I also specify an overall approach designed to equip you to perform these six tasks to fulfill the six criteria. In Chapter II, I detail attitudes, methods, and techniques to aid you to learn how to learn law most efficiently and effectively, both for exams and for practice.

In Chapter III, the art and craft of issue spotting are decoded. In Chapter IV, a variety of methods and techniques for outlining your courses is specified. In Chapter V, a series of formats for outlining, organizing, and writing out your answers is presented. In Chapter VI, an array of typical essay problems is set forth. In Chapter VII, model as well as excellent and poor student answers to the problems are detailed with brief explanations of both strengths and weaknesses in the left margin, illustrating skills-centered performance flowing from skills-centered learning. In Chapter VIII, I specify common pitfalls to avoid. In Chapter IX, I share with you some common questions about exams that are frequently asked of me by students and my responses. In Chapter X, a checklist is set forth for pinpointing strengths and weaknesses in your exam performance.

Law as a problem-solving procedure

The law is a problem-solving procedure. So are engineering, social work, psychology, psychiatry, teaching, etc. In each area, a skills-centered panoply of concepts, categories, distinctive vocabulary, rules, and logic are applied to deal with different types of problems. As a law student, you immerse yourself in the legal panoply, just as you would other panoplies if you instead studied medicine, psychology, engineering, etc.

Lawyers (and judges) analyze and resolve legal problems presented by clients. These are problems rooted in torts, contracts, criminal law, etc. The appellate cases you study are a gold mine of such problems and answers. In resolving such problems, lawyers and judges apply a set of skills that enable them to extricate the key legal facts, spot the issues, apply legal rules and principles to those facts to resolve the problems, utilize relevant legal policy to support their rule application, and to do all of the above in a lawyerly manner. Simply stated, lawyers and judges fit facts into legal categories provided by the rules by spotting issues and resolving them.

It is sound legal theory, sound legal practice, and sound exam practicality to adopt a skills-centered learning approach aimed at problem solving to the study of law, the taking of exams, and the practice of law. The common beginner's view of law-as a set of black-letter rules to be memorized and almost mechanically applied-is false and entirely misconceives the practice of law and the nature of law-school education and exam taking.

A traditional, though possibly waning, aspect of the mystification inherent in beginning law school is an implicit demeaning of the prior accomplishments and experience of first-year law students, as if the study of law were unique,unrelated to other human endeavors, and as if no student had engaged in analytical reasoning before law school. The opening speech of Professor Kingsfield in the film The Paper Chase is a classic example. But the truth is that all of us bring much to the study of law. We identified and resolved problems in our prior education, work experience, and everyday lives. All of this experience is relevant, since legal problem resolving procedures demand practical judgment that is a product of your experience.

What you must do, though, is to adjust your present thinking and analysis to accommodate legal vocabulary, concepts, categories, logic, knowledge, and experience. You must put on a "legal lens" for seeing these problems, formulating, analyzing, and resolving them. In putting on this legal lens, you do not throw away your other lenses for seeing. You put on and take off different lenses as you need them. To illustrate, my standing advice is to take off your legal lens at the end of the day of law school or law practice and keep it off until the next morning. A legal lens is definitely not for relating to loved ones, friends, and the pursuit of personal happiness.

In Chapter I, I specify the objectives of this book: the concrete differences between law school and other exams; the six exam tasks your professors expect you to perform; the six criteria by which your performance will be evaluated; and an outline of how you can proceed to develop the necessary skills.

Twelve Years Later

As I read this introduction again in 2000, twelve years after the last revision, it is still valid for most exams. However, the correct emphasis on "rules" needs to be augmented with an additional emphasis on "principles." In courses such as constitutional law, civil procedure, and family law, you also encounter broad, clay-like principles which contrast with the concrete rules divisible into specific elements. Examples include due process, equal protection of the laws, and interstate commerce in constitutional law; minimum contacts and fairness for jurisdiction in civil procedure; and equitable distribution of marital property and best interests of the child in family law. Principles resonate on a different frequency from rules, as will be explained and illustrated throughout the book.

In addition, other courses such as criminal law and torts, which are often taught in predominantly rule-based fashion, also are animated by principles (e.g., principles of mens rea, actus reusjustification, reasonableness). Principles resonate on a different frequency from rules, and over time offer almost endless interpretive possibilities.

Need For This Book

• You can be smart, go to class, know the cases well, and still do poorly on law school exams.
• To excel on these exams, you must not only study hard. You must also understand, practice, and master a set of lawyerly skills to apply what you know on the exams (and later in practice).
• If at first you did not do your best, you can, nevertheless, do better. Many students who initially did not do well substantially improved their grades. They learned how to do better by painful "trial and error learning." From experience, I know you can learn these lawyering skills without suffering and disadvantage inherent in unguided trial and error learning.

The lawyerly skills you need to do well are not genetically acquired. Nor are they mysterious or exotic. These skills can be identified, understood, practiced, and perfected. Once internalized, these skills apply in each law exam you take, with some adjustments for individual courses and professors. Once internalized, these skills enable you to do your best on the exams.

Good news

You need not be a Holmes or Cardozo to master and apply these lawyerly skills.The challenge is formidable but in no sense Herculean. Remember that battalions of law students have mastered these skills in decades gone. Many of these students were not as able as you. In the past, it was an easy matter to be admitted to law school and not too difficult to be admitted to the "best schools." Today, it is far more difficult to be admitted to law school, and it is therefore an achievement to be in law school, one in which you should take a measure of pride. You are privileged to be in law school, to have this opportunity to transform yourself into a lawyer, a powerful position in our society that opens up vistas of opportunity and service.

The mastering of these skills as applied to exams calls for an application of your emerging lawyerly skills. What exactly are these skills? What exactly are the criteria by which you will be graded by your professors? How can you go about developing and perfecting your skills so that you can do your best on these exams? This book answers these questions in a systematic and integrated way. It is designed to present you with a holistic approach so that you can most effectively utilize the limited time available to equip yourself to do your best on the exams.

If you learn and apply an approach and a few methods from this book, that may mean the difference between "Cs" and "Bs" or "Bs" and "As". No one can do it all. No student can write model answers. Indeed, no professor can write model answers in the allotted exam time. You can make mistakes on exams and still do very well. Don't be discouraged.

Failure of law schools to prepare students for exams

Regrettably, while law schools can sometimes be impressive in what they do, most fail to prepare students to take law exams. Many first-year students are painfully surprised by their first law-school exams. Their format and your professors' expectations about your performance are radically different from what is expected in class and what you have faced in college and in most other exams. In addition, you do not routinely have your exams returned to you with specific comments about your exam strengths and weaknesses, so that you can identify both strengths and weaknesses and struggle to improve.

This routine failure by most law schools is an atrocious, even scandalous, pedagogy. It is axiomatic that taking exams should be a form of learning. The fact that many law professors allow students to review their exams, and that some have a model or outlined answer available, or that students can sometimes compare their answers with "A" answers, ameliorates the harm, but is no substitute for the professorial comment, review, and return that is routine in most schooling and mandated by fundamental pedagogic principle.

Mystification

The present practice reeks of mystification and obfuscation. I take pleasure in this book in helping to demystify the exam process, in dispelling the secrecy that surrounds it, and in making familiar what is unfamiliar.

Many students who have looked at their exams and compared their answers to excellent answers of others having "A" grades, or with a model answer, are puzzled. They have often told me that they made all or most of the points set forth in the "A" answer, or the model answer, but that the "A" answer "said them differently." Sometimes, these statements are correct. What these students typically do not understand, however, is that differences in grades result from the application of lawyerly skills that are a sine qua non of the excellent student, the excellent exam taker, and the excellent lawyer.

Integrated and systematic approach

In this book, I present then an integrated and systematic approach to empower you to identify, learn, practice, and master the skills-centered learning and performance that you need for law school classes, exams, and practice. In Chapter I, I specify the nature of the "beast": the different challenge posed by law-school exams, the six tasks you must perform in answering, and the six criteria by which your professor will grade you. I also specify an overall approach designed to equip you to perform these six tasks to fulfill the six criteria. In Chapter II, I detail attitudes, methods, and techniques to aid you to learn how to learn law most efficiently and effectively, both for exams and for practice.

In Chapter III, the art and craft of issue spotting are decoded. In Chapter IV, a variety of methods and techniques for outlining your courses is specified. In Chapter V, a series of formats for outlining, organizing, and writing out your answers is presented. In Chapter VI, an array of typical essay problems is set forth. In Chapter VII, model as well as excellent and poor student answers to the problems are detailed with brief explanations of both strengths and weaknesses in the left margin, illustrating skills-centered performance flowing from skills-centered learning. In Chapter VIII, I specify common pitfalls to avoid. In Chapter IX, I share with you some common questions about exams that are frequently asked of me by students and my responses. In Chapter X, a checklist is set forth for pinpointing strengths and weaknesses in your exam performance.

Law as a problem-solving procedure

The law is a problem-solving procedure. So are engineering, social work, psychology, psychiatry, teaching, etc. In each area, a skills-centered panoply of concepts, categories, distinctive vocabulary, rules, and logic are applied to deal with different types of problems. As a law student, you immerse yourself in the legal panoply, just as you would other panoplies if you instead studied medicine, psychology, engineering, etc.

Lawyers (and judges) analyze and resolve legal problems presented by clients. These are problems rooted in torts, contracts, criminal law, etc. The appellate cases you study are a gold mine of such problems and answers. In resolving such problems, lawyers and judges apply a set of skills that enable them to extricate the key legal facts, spot the issues, apply legal rules and principles to those facts to resolve the problems, utilize relevant legal policy to support their rule application, and to do all of the above in a lawyerly manner. Simply stated, lawyers and judges fit facts into legal categories provided by the rules by spotting issues and resolving them.

It is sound legal theory, sound legal practice, and sound exam practicality to adopt a skills-centered learning approach aimed at problem solving to the study of law, the taking of exams, and the practice of law. The common beginner's view of law-as a set of black-letter rules to be memorized and almost mechanically applied-is false and entirely misconceives the practice of law and the nature of law-school education and exam taking.

A traditional, though possibly waning, aspect of the mystification inherent in beginning law school is an implicit demeaning of the prior accomplishments and experience of first-year law students, as if the study of law were unique,unrelated to other human endeavors, and as if no student had engaged in analytical reasoning before law school. The opening speech of Professor Kingsfield in the film The Paper Chase is a classic example. But the truth is that all of us bring much to the study of law. We identified and resolved problems in our prior education, work experience, and everyday lives. All of this experience is relevant, since legal problem resolving procedures demand practical judgment that is a product of your experience.

What you must do, though, is to adjust your present thinking and analysis to accommodate legal vocabulary, concepts, categories, logic, knowledge, and experience. You must put on a "legal lens" for seeing these problems, formulating, analyzing, and resolving them. In putting on this legal lens, you do not throw away your other lenses for seeing. You put on and take off different lenses as you need them. To illustrate, my standing advice is to take off your legal lens at the end of the day of law school or law practice and keep it off until the next morning. A legal lens is definitely not for relating to loved ones, friends, and the pursuit of personal happiness.

In Chapter I, I specify the objectives of this book: the concrete differences between law school and other exams; the six exam tasks your professors expect you to perform; the six criteria by which your performance will be evaluated; and an outline of how you can proceed to develop the necessary skills.

Twelve Years Later

As I read this introduction again in 2000, twelve years after the last revision, it is still valid for most exams. However, the correct emphasis on "rules" needs to be augmented with an additional emphasis on "principles." In courses such as constitutional law, civil procedure, and family law, you also encounter broad, clay-like principles which contrast with the concrete rules divisible into specific elements. Examples include due process, equal protection of the laws, and interstate commerce in constitutional law; minimum contacts and fairness for jurisdiction in civil procedure; and equitable distribution of marital property and best interests of the child in family law. Principles resonate on a different frequency from rules, as will be explained and illustrated throughout the book.

In addition, other courses such as criminal law and torts, which are often taught in predominantly rule-based fashion, also are animated by principles (e.g., principles of mens rea, actus reusjustification, reasonableness). Principles resonate on a different frequency from rules, and over time offer almost endless interpretive possibilities.