Douglas Whaley

Law School Exam Strategy: 30 Tips for Before, During, and After the Exam

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GETTING STARTED

  1. Everyone gives you different advice. Take what sounds right to you and ignore the rest.
  2. The best way to do well on exams is all too obvious: study! Even if you’ve slacked off until now on this requirement, it’s still not too late to put in the time. Okay, studying is hard work, but whoever said you only get to do easy things in life? This is your chosen profession—right?—so it deserves the massive effort necessary to acquire the knowledge to do your job right.
  3. Clear up things you still don’t understand that are necessary for the exam. What are the foggy parts of your notes? What are the difficult issues for you in this course? If you can’t figure them out yourself, get help. Ask your fellow students, consult other texts or student outlines, contact the professor. But don’t leave major gaps in your knowledge unfilled.
  4. Try to organize the details into a bigger picture. But don’t overdo it. Trivia can drive you crazy and get you sidetracked. READ THE PROFESSOR. What was important to him/her in the lectures? Things that the professor emphasized are likely to be on the exam. Things that were not emphasized are unlikely to be major features of the exam.
  5. Word List: For closed-book essay exams, I recommend you memorize a short (no more than 20 words) list of topics that are likely to be on the exam. For example, in a Contracts course the word list might contain words such as: liquidated damages, mitigation, forseeability, quasi-contract, etc. Below I will tell you how to use this list during the exam.
  6. Mental Attitude: This is going to sound strange, but you should enjoy taking exams. Why?  Well, think about it. For the most part your role in the law school learning process is passive: you just sit there and absorb things as if you were a sponge. But when it comes to the exam you are the active participant, taking stage center, and it’s time to show off what you know and how well you can present it. As a lawyer you will often be in the position of taking charge, so here’s your chance to do it while in law school. The opposite attitude (“I hate exams and I’m scared I’ll do badly”) won’t help you a bit in approaching the exam with the confidence you should be exhibiting. See if you can cultivate “I’m good, so get out of my way.”
  7. The night before the exam: GET A GOOD NIGHT’S SLEEP! One of the major things you’ll be tested on is how well your brain works. If you spent the night cramming for the exam with coffee, drugs, or who know what, your brain will be fried and your exam performance dismal. A rested brain is more important than last minute knowledge gained.
  8. If Big Things Go Wrong: What if the unexpected happens—you get sick, a family member dies, you get a distress call from your best friend to fly across country and rescue him/her—should you postpone the exam? Obviously things can occur that would keep any rational person from taking the exam on time, and I’m not saying otherwise. But here should be your rule: if it is at all possible to take the exam, do so. I’ve too often seen students with the opposite attitude (“I hope something comes up so I can duck the exam!”). A postponed exam has a way of never getting done. I’ve seen legal careers wrecked because the postponement of the exam was the end of everything.
  9. If Little Things Go Wrong: You need to consider ahead of time the small matters that can turn the exam experience into a nightmare, and develop fail-safe backups. I’m referring to such things as getting the date or time of the exam wrong, the alarm clock that doesn’t go off, the car that won’t start, the pen or computer that won’t work, etc. Make sure you understand well ahead of time all the rules of the exam, particularly what you’re allowed to bring with you into the exam and what not, and how to turn in the exam. Learn the honor code and pay attention to its rules.

THE EXAM ITSELF

  1. Fill out the exam as instructed. When the starting signal is given, first set up your time schedule. DON’T MAKE MISTAKES ABOUT THIS. When I’m grading exams I’m unforgiving if students make mistakes about time. What does it say about how they’ll later practice law where doing things on time is very important?
  2. Write down your word list separately and save it.
  3. Plan to answer all the questions asked unless you are told parts of the exam are optional. On objective questions guess unless told that there are penalties for so doing. (If enough people miss the same objective question the grader will frequently throw it out—so get in there and do your share by missing it too). On essay questions, if you don’t know, fake it. What? Yes, fake it (this is particularly important on bar exams). Pretend you’re the monarch of your own jurisdiction and boldly invent the rules. Our law is not so perverse that it deviates much from common assumptions, and your guess will often get you some points, whereas a blank sheet of paper will get you nothing. Some of you reading this are very, very good at this faking skill, having honed it through years of educational endeavors, and it’s time to strut your stuff.
  4. Inserts and abbreviations are fine if clear. Don’t confuse the grader. If you can’t remember the name of the case you want to cite, describe it (“the hairy hand” case, for example).
  5. On essay questions, read each question carefully, trying to get a sense of its bigger meaning. Issues will jump out at you. This will give you a sense of relief, but it’s no time to relax. Now re-read the question carefully, underlining important points, making marginal notes about the issues or thoughts you want to include. Now go back and look at the question. Are there major parts of the essay question about which you are saying nothing? That’s suspicious. Has the professor thrown in surplusage? That would be rare. Most likely there’s some hidden issue in the unexplored part.
  6. Outline each essay question before writing out the answer to any of them. Why? Because your brain will be the freshest at the start of the exam, so use it to plan the whole exam during that period. If you spend all your freshness on the first essay question, and then have to do original thinking on the later questions when your brain is tired, those questions won’t be as impressive nor earn as good a grade. Outlining the whole exam also gives you a sense of its scope and how much time you’ve got for each question. You don’t want to devote most of your time to the first of two essay questions when they count equally in the grading.
  7. Check your outline against the word list. For each word on the list ask yourself, “is this issue hidden in the question?” For example, if one of the words on your word list is “promissory estoppel” ponder whether there are promissory estoppel issues that you haven’t thought about presented in the given fact pattern. If you do this carefully with each of the words on your list, I guarantee you that ideas will pop into your head that will earn you extra points you would otherwise have forfeited.
  8. It’s time to start writing. On essay questions, should you take it issue by issue or first present one side’s case and then the other side’s case? The exam may tell you which to do, but if not, please yourself. Just make it clear to the grader what you are doing, and then do it methodically as announced.
  9. Answer the exact question asked. If the question says “Give the arguments of the parties” don’t begin your answer with “The court rules that . . .”  Your instructor wants to hear what the parties will argue. Remember that you’re being trained to be an advocate, not a judge, so let’s hear what you’ll say as a lawyer.
  10. Don’t assume away the hard parts and make the exam too easy. This isn’t a contest of wits; it’s a performance, and you’ll get few points for evading the hard issues.
  11. Don’t repeat the facts except as necessary to your analysis. Unnecessarily repeating the facts is a waste of precious time. Good attorneys, however, do use the facts to make their points (“The plaintiff chose to send an email because it was faster than the postal service”).
  12. What issue should you start with? Here’s valuable advice: start with the most important issue, the most vital one, the one at the heart of it all. One of the things we’re testing you on is whether you can spot the most important issue. If your answer starts with something petty that no lawyer is going to spend much time on, this tells the grader you don’t know what’s important and what’s note—a bad message to convey. The exam has so much time pressure that if you spend your valuable minutes on minutia, you’ll convince the grader you don’t understand how to home in on the heart of a controversy. Who wants a lawyer who makes that mistake?
  13. On an exam I want to see the following three things repeated over and over: spotting the major issue, an explanation of the relevant black letter rules of law, and then an argument about how these rules apply to these facts. Some instructors don’t require you to repeat the black letter rules of law, but I want to see them. I think that lawyers spend a lot of time explaining what these rules are (to clients, to the other side, to the judge, to the jury), and so I’ll judge you on how clearly you can delineate them.
  14. Avoid unexplained value judgments: “The plaintiff’s conduct was reasonable.” Too easy to say and it conveys nothing. Back it up with facts and explanations showing why it was reasonable.
  15. Give parallel arguments. Having presented the plaintiff’s brilliant argument, the student frequently has so impressed him/herself that he/she then forgets to say what the other side will argue in response. When you go over the exam with the professor afterwards, the professor will point to this problem and say, “How often do you think when one lawyer makes an argument that the other lawyer just sits there, admires it, and gives up?”  We are training you to be an advocate.  Be careful that you don’t convince yourself and leave the other side mum.


EXTRA POINTS

  1. An exam is a performance: and all good performances have some things in common, particularly they have a big start and a big finish. It’s not enough to get the right answer—after all this isn’t a math exam with just one answer. You’re being compared with others, so your exam must stand out. Therefore add special things: brains, clever analysis, how this problem would come on in the “real world,” policy, etc. Most exams are as interesting to read as the printed verse on Christmas cards; make yours more interesting than the other exams and you’ll get a better grade. Start well, and for heaven’s sake have a great sentence at the end, typically a policy statement (see below). When I’m grading an exam that just stops mid-thought (sometimes with the word “TIME” written last), I ask myself what kind of lawyer is that person going to be, and the answer is that he/she can’t plan well or get all the important thoughts into the allotted time (skills any good attorney possesses while bad ones commit malpractice).
  2. To get extra points, put yourself in the place of the person grading the exam. What will please him/her? What does the instructor want from students?  How about humor? Citing cases?  Favorite theories or causes? Does your instructor have pet peeves? [Mine: “breach” is spelled with an "a"; don't use exclamation points!]  Be as literate as possible (and it’s here that you English majors will have a leg up on the others).
  3. The big finish. Try a policy statement that explains why the result you’ve come up with will make things better for the future. Phrase it well. Remember that as soon as you quit writing this last sentence the instructor immediately assigns a grade, so this is the moment when impressing the grader is most important.


AFTER THE EXAM

  1. If you have other exams yet to take, stop any thoughts or discussions about this exam immediately and concentrate on the upcoming ones. Panic later, when all exams are over.
  2. Very important rule: don’t do postmortems on the exams by discussing them with the other students. Violating this rule is a sure way to panic yourself. Taken collectively you all know more than any one of you knows individually, so if you want to scare yourself, postmortems are a sure way to do it. If someone starts to talk about the exam to you (“Did you see the promissory estoppel issue in question two?”), walk away quickly. You don’t need to hear things you may have missed. Go out and have a drink with non-law students.
  3. Good luck on your exams. Once you’re done with the law school and bar exam ones, you’ll likely never have to take another exam in your life, so work towards that happy moment which, trust me, will come.

About the Author

Douglas Whaley is a Professor of Law Emeritus at The Ohio State University. He is the author of seven casebooks, all published by Aspen, three Gilbert's Summaries of the Law, numerous law review articles, and one novel. He has received nine awards from three law schools for outstanding teaching. The columns he writes for this website are mostly adapted from his popular blog: http://douglaswhaley.blogspot.com.
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