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Law School Essay Exams

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Law School Essay Exams by Professor John Delaney

The radically different challenge posed by law school exams is directly addressed and detailed by Professor John Delaney's "How To Do Your Best on Law School Exams." Professor Delaney taught many subjects over thirty years at two law schools, first for many years at the New York University Law School and then at the CUNY Law School.

Law school essay exams differ in essential ways from the conventional college essay exams. Many first-year law students fail to appreciate these differences and therefore do not prepare appropriately for their exams. Since they misconceive the nature of the law exam challenge, they are often dismayed by their performance and resulting grades. This occurs even though they mostly have studied really hard and know a lot about the doctrinal content of their courses.

These differences between college and law school essays are illustrated by the following example. In the first year of law school, students almost always study the substantive criminal law, its constitutional framework, its fundamental purposes and principles and some of the important crimes (and defenses) including an array of murders and manslaughters. The murders typically include intentional murder, felony murder, and extreme recklessness murder (also known as depraved-heart murder). The manslaughters typically include heat-of-passion voluntary manslaughter (and a variation called extreme-emotional-disturbance manslaughter), criminal negligence manslaughter, and reckless manslaughter. Related defenses include self-defense and defense-of-another.

An archetypal college-type exam question, perhaps in one or two sentences, about these topics might call upon students to "compare and contrast" these murders, manslaughters and the related defenses. In an "A" answer, a student would embody knowledge of the separate elements of these homicides and defenses and stress the similarities and especially the pointed differences. To excel in answering this "compare and contrast" question requires knowledge, understanding, skill in recalling and focusing on the similarities and differences, and skill in writing out a cogent response within the allotted exam time. The writing style, though largely expository, is at least somewhat analytical in performing the requested comparing and contrasting.

In sharp contrast, the archetypal law-school exam essay problem about murder, manslaughter and some related defenses sets forth a usually dense fact pattern in a packed page or two (or even more), detailing a narrative of mayhem by different parties (e.g., A, B, C, D and E) with a classic question at the end: "What are the rights and liabilities of the parties?" In criminal law, this question means: Which crimes and defenses are spelled out by these facts. The identical question can apply in other subjects: In a tort exam, for example, the identical question means: Which torts - intentional, negligent, defamation and defenses - are spelled out by the facts?2

The student is expected to detail the issues (questions about liability and defenses) raised by the fact pattern for each party and then to resolve each issue with a concise lawyerly argument by applying the relevant rules (particular crimes and defenses). Each argument can range anywhere from four or five sentences to seven or eight or sometimes more, and there can be anywhere from about four to seven or eight or exceptionally even more issues and resulting arguments. Intense time pressure adds to the difficulty; the time allotted for each problem ranges ordinarily from forty-five to sixty minutes depending on the number of issues the professor expects to be raised and resolved and her preferences in allotting time.3

The professorial grading criteria for such law student arguments contrast markedly with the requirements for the archetypal college essay. They include:

In applying these grading criteria, the professorial emphasis is on the quality of the argument as measured by these criteria, not on the naked conclusion itself as to liability or a defense. A "wrong" conclusion with a lawyerly argument will receive a good grade; a "right" conclusion with a poor argument will not.

The justification for these "issue-spotting" exams is that they roughly simulate in an academic context what many lawyers in practice actually do. A person walks into a lawyer's office and presents a detailed narrative of harm or complaint of some sort. Lawyers listen carefully, ask questions of the client and others, verify claims, check any written documents or other evidence, study relevant statutes and cases, and then formulate possible issues and remedies arising out of the client's legal rights and liabilities in civil or criminal law. On law school exams, since the facts are given in the problem, there is no fact-finding or verification; and the student must then identify the issues raised by these given facts and apply legal rules to resolve these issues in a legal argument. While the differences between what many lawyers do and the law school exams are plain, the practice in issue spotting and fashioning of lawyerly arguments to resolve the issues aids students to acquire issue-spotting and argument-making skills that are central to legal practice.

The first critique of these law exams is that they do not test core skills necessary for legal practice. These include fact investigation, motion, trial and appellate practice, client counseling, negotiating and mediating, working collaboratively with other lawyers, and reflecting and critically appraising underlying values and personal choices in representing clients.5 ("The MacCrate Report")

The second and contradictory critique is that these craft-driven, two-note exams, i.e., issue-spotting and making arguments, at the graduate level of education are reductive and indefensible. Such exams ignore the crucible of history, culture, politics and economics from which law emerges and changes. The latter critique clearly implies a macro critique of the craft-driven orientation of most law school pedagogy that leads to the current form of the exams.6

Many beginning students do not realize that their college exam skills and the LSAT skills that earned them entry into law school are not the skills they need to excel on the law school exams. Nor do they realize that the "A" grades go to the students who can efficiently and systematically spot the principal issues and then resolve each one with a concise lawyerly argument. Instead, many, even most, students systematically prepare for a college-type exam, but law schools do not give such exams. These students mistakenly tend to make knowledge and understanding the main objective of their exam preparation, but preparation for law exams that best empowers students consists of constant practice of issue spotting and the fashioning of lawyerly arguments with knowledge as a fuel rather than the end all.
The best way to prepare for such exams, therefore, is by practice with whatever old exams of each professor are on file in the law school library. It is also helpful to prepare by learning and practicing each rule in each subject with fact examples of its scope of application and non-application (hypotheticals). Preparation for these exams is confounded, however, by the fact that the law-school classroom preoccupation with the decoding of appellate cases does not directly prepare students for the law exams.

In these "legal autopsies" of appellate cases, students analyze mostly old appellate cases to see how the Court has marshaled the key facts from the trial record and articulated the relevant procedure: meaning what happened at trial and any prior appellate court. In addition, these autopsies unfold how the Court has detailed its pivotal issue(s) and specified its holding that resolved this issue; and how the Court has articulated the reasons from the relevant repertoire of legal reasoning to explain and justify its holding. Based on experience, students surely might expect the exams to directly emerge from, and test them, on their ability to perform these legal autopsies, or some closely related challenge. But they commonly do not.7

Instead, students confront the previously described dense fact pattern, not an appellate court opinion, and they must spot each issue raised by the fact pattern and resolve it. A further difficulty is that the elaborated, often discursive, reasoning characteristic of many appellate opinions models the exact opposite of the direct and concise writing needed to cope with the time-pressured law exams and their numerous issues.

Law students are often bewildered and disappointed by the realization, after their initial first-year exams, of this contradiction. But to be forewarned is to be forearmed.