I created a video, watch a professor take an essay exam, where I take a torts bar exam question I’ve never seen before. Using bar exam conditions, I limited my time to 30 minutes and took it closed book. This process was useful for me, because it reminded me of the extreme pressure my students encounter on the bar exam and on law school exams.
Useful Exercise
There are several reasons why students will find this exercise valuable. One, it helps them understand that even an expert struggles to complete a bar exam in 30 minutes. Two, they can observe how an expert uses their time to first prepare to write and then write. I then wrote the exam using the Nested IRAC method, an organization technique to ensure you don’t miss anything. Three, they can see an expert make mistakes, and still earn a decent grade on the exam.
The second part of this exercise was to grade the exam using a grading rubric used by many state bar examiners. I first discussed the grading rubric, then reviewed the bar exam grader’s model answer, and finally reviewed my essay.
Comparing Answers
As I compared my answer to the model answer, I was surprised by a few things. For starters, I noticed that the grader was assigning points almost exclusively for duty and breach of duty. Yet the call of the question asked me to “explain” my answer. I understood this to mean a full negligence discussion. That required not only duty and breach, but also actual cause, proximate cause, and damages. To do this for each of the three plaintiffs was impossible on a 30 minute exam–a poor job in designing this exam. A more focused question by the bar exam designers would have yielded better answers. Oh well, c’est la vie.
How Many Points?
Another problem with the essay question was the point allocation of 15% for the final issue on the unforeseeable extent of injury (i.e., the eggshell plaintiff rule). The call of the question appears to give it equal weight with the first question, which was comprised of three parts. Thankfully, I was running out of time when I got to this issue. Therefore, I did not spend more time on it than was necessary. But I didn’t know that when I was taking the exam. So the lesson here is to do your best. There really isn’t a way to know exactly what the grader is looking for. Make sure to discuss all the main issues, and if you have time then discuss minor issues.
Would you like to answer an essay question before you see it! Want to have more time on exam day to think through your answer? You can have 60% of your essay exam complete before exam day with this preparation method.
Ideally, you should already have three sets of notes, as I mentioned in my episode called “Three Sets of Notes Method.” In addition, you need to create a fourth set of notes, which I call your Exam Answer outline. This is an organizational tool that will allow you to move quickly during the final. Also, you will write a much stronger essay.
The Process
Here’s how it works. For each possible issue, you will write the ideal answer into your Exam Answer outline. Obviously you won’t know the names of the parties so simply use “Defendant” and “Plaintiff” for the parties involved. And while you do not know the parties’ names, you do know the law and how rules interact with each other.
Negligence Example
Let’s go through a negligence example. Ask yourself what the ideal first sentence of a negligence answer looks like. Then write out something like: “The issue is whether D was negligent when he committed the act against P.” On exam day, you will replace “D,” “P,” and “committed the act” with the facts from the exam.
The next sentence is your ideal rule statement, which you will pull directly from your rule outline. “Negligence occurs when a defendant owes a duty of care, breaches that duty, is the actual and proximate cause, and there are damages to the plaintiff.” Then wrap up the first paragraph with a brief conclusion. Because all the elements are met, D is liable to P for negligence. By the way, if you haven’t noticed, I am using the IRAC method, which I covered in an earlier blog post.
Now, write the second ideal paragraph, which in this case involves duty of care. “The first issue is whether D owed P a duty of care. Duty of care is a legally recognized relationship between the parties, and is measured by the reasonably prudent person standard. In this case D owed P a duty of care because….” At this point you’ll have a blank, which you will fill in on exam day. Then the last sentence will read: “This element is met (or not met) because D owed (or did not owe) P a duty of care.”
Negligence Per Se
You will do this for each element, but don’t stop there. You also need to create alternative paragraphs, depending on the issues that might appear on your exam. For example, before you get to the final exam, have you thought through how to deal with negligence per se? I ask this because when you have a negligence per se question, you need to discuss the negligence per se AND the reasonably prudent person standard. And you need to do this because it is always possible that the court will deny the negligence per se instruction, leaving you with having to argue the reasonably prudent person standard. This means you need to have an ideal paragraph for this possibility.
So work through negligence per se, using this approach, and end the negligence per se paragraph with something like this: “Plaintiff should be able to establish duty through negligence per se. However, if the court finds that negligence per se cannot be used, then Plaintiff can still prevail under the reasonably prudent person standard.”
There are other areas that you also need to think about. Where does res ipsa loquitur fit into an exam? On a criminal law exam, where do you discuss premeditation? On a contracts exam, where do you discuss a UCC distinctive?
Final Advice
You can wait till exam day to think about all this, but if you plan it all out in advance, now when you have time, you will know exactly how to structure your essay answer and understand the connections between the different rules. This approach will also give you more time to focus on the analysis portion of the exam, which is where most professors award points. For some additional ideas on how to structure a pre-planned essay, see this guide on how to structure an essay.
By the way, if you have an open book exam, you will truly have a huge advantage over your colleagues that haven’t done this.
So you get back your first law school exam and you did not do as well as you were hoping. You go to the professor and ask what you could do to improve on the final exam. At some point during your meeting with the professor, he or she says that exam writing is part art and part science. Even I used to say garbage like that when I was a new professor. What the professor is really telling you is that you really can’t improve and there is really nothing that he or she can do to help you. You’re either born with this art or you are not. If it is innate, then, unless you are born with it, you are doomed!
But if this is a skill that you can learn, then you can improve your performance on a law school exam.
You Are Different
Students come to law school with different skills and abilities. Some have had lots of experience writing technical essays and others just have not. Those with strong technical writing skills do better than those without that experience. And this is not art! I have read thousands of law school exams and what I’ve seen is students at various stages in their writing career. I can count on one hand the number of times I have seen great writers during the first semester of law school. And only once have I seen a student who had writing skills that surpassed my own. Since his name was also Beau, I jokingly surmise that there must be something about the name.
So why would a professor tell you that law is part art and part science if it isn’t true? One reason is that it just sounds true, at least until you are challenged by someone else. That’s what happened to me. I gave the whole “its part science, part art” argument to a senior professor with a Ph.D. in Educational Psychology. He helped me to understand that higher level writing skills are based on an amalgamation of lower level skills. What that means, in the context of essay writing, is that there are many skills that we lump together and conclude that someone is either a strong writer or a weak writer.
Example
Law school exam essay writing is made up of different components: the ability to organize thoughts, writing in paragraph form, using correct spelling, following English grammar, organizing sentences in paragraph form, use of topic sentences, and so on. Once you realize that there is no dark art, some hidden path for the select few, you can begin figuring out how to improve.
Depending on where you start your journey, you may have more or fewer skills you need to learn to catch up with the top writers in your class. But make no mistake, someone that started essay writing in high school has an advantage, just not an insurmountable one.
Continuous Improvement
The key is continuous improvement. To this day, my writing keeps improving. Recently I was writing in a forum and someone compared my writing to Faulkner. I was certainly flattered by the comment but I recognize he would not have made that comment even ten years ago.
Becoming a better writer takes determination. You need to first diagnose where you are and then work on developing those lower level skills. Once you’ve mastered those skills, then you start working on higher skills, and higher skills. The key is to keep practicing until you improve. (Check out these apps to work on your writing skills.)
The biggest mistake I see when grading law school exams is students failing to distinguish between issues. All issues and sub-issues are lumped together, without using the IRAC method. All that accomplishes is a poorly written law school exam. Before your next exam complete some practice exams–you can get some at my exam bank .
Once you realize that you don’t have to have been born a skilled writer, and have implemented your new skills on the final exam, check out my mini series on steps to take after completing the final exam.
Advanced Law School Tip
If you are ready to take your exams to the next level, you need to write your exams using the Nested IRAC method. This approach to writing law school essay exams is what usually distinguishes the top students. Practice using the method a few times, that way it becomes second nature. Also, organize your notes by creating a pre-written essay outline, which will save you time on the exam.
Law school exam grading is one of the least transparent aspects of the law school experience. A student takes an exam and then weeks or months later gets a grade. But a grade without feedback from their professor. They will never discover why they received the grade, and almost certainly no help on improving.
Holistic Grading
The traditional law school exam grading method is holistic grading. This is where the professor reads the exam and assigns a grade based on the professor’s past grading experience. For example, the professor decides that “this exam is an A and the other one is a C.” Thankfully, very few professors grade using this method.
Analytic Grading
The most common form of law school exam grading is analytic grading. The professor creates a grading sheet, where points are assigned for discussing certain issues. For example, on a Torts exam, there may be 1 to 5 points for Breach of Duty. The professor will then decide, after reading each exam, whether the student gets 1, 2, 3, 4, or 5 points for Breach of Duty. While this approach is better than pure holistic grading, in practice, most professors are still grading holistically as there are no written criteria for each issue. A true analytic grading sheet, which some professors use, have written criteria in assigning points. For example, a 5 might be given for “rule statements that clearly identified the law and connected the correct facts to the law.”
Feedback
Many law professors don’t provide good feedback for several reasons. First, many are not rewarded by their law schools for teaching. They are not required to meet with their students or help them improve their exam skills. Most law schools reward professors that write scholarly articles that get published in top journals. And for many professors, that means spending time writing and not helping students. A friend of mine was visiting at a top 50 law school and he shared this story with me. His office was next to a faculty member who was always busy writing. This faculty member always kept his door closed and locked, so that he could spend time writing. When students knocked on his door, the students were ignored. Even though the faculty member was inside his office and the students desperately wanted help. This faculty member understood that his top 50 law school rewarded scholarship over teaching. While this story is disturbing, it is all too common at many law schools.
Professors Not Trained in Feedback Techniques
Another reason that professors don’t provide meaningful feedback is because the professor hasn’t spent the time learning how to provide good feedback. For almost every law professor, grading is the least desirable part of the job–who really wants to grade a hundred essays in three weeks. This means that many professors use checklists in assigning grades. For example, a professor grading a 4th Amendment exam might have something like this on her spreadsheet: Police are legally allowed to observe Joe on public street (2 points); Police may stop Joe and ask him a quick question (3 points); Police may pat down Joe for weapons (5 points). And with that checklist, if you are ever allowed to see it, you see that you got 2 points, 2 points, and 3 points.
But that kind of information is almost worthless because you don’t know WHY the professor assigned those points to you. Suppose that you do meet with your professor and you ask her why she gave you 3 points for an issue, you are likely going to get a response like this: “you need to have a stronger rule statement and your analysis could have been stronger.” That is a conclusion that does not really help you for the next exam, and you are likely to continue making the same errors on future exams.
Meaningful Feedback
What every law student needs is meaningful feedback and a plan to improve. From day one I have worked hard at trying to help students improve, but I did a poor job during my first few years of teaching. At first, I would meet with students for about half an hour and go through their exam with them, line by line. That sounds good, but it didn’t work. Then I had shorter meetings and provided students with resources to improve, and that didn’t work either. Over the last few years I came to realize that students don’t improve because they don’t really understand what law school essay exams are really about. Most students believe that an essay exam grade is based on their understanding of the material. That is a profound misunderstanding of the law school essay exam!
Students need more than the law. They also need to use the IRAC Method for organizing their exams. After meeting with many students, especially those that got the lowest grades, I came to realize that they knew the material. If I had given them an oral exam they would have received high grades, not low grades. This taught me that students don’t know HOW to write an answer that makes sense to professors and bar examiners. So once you get your grade, make an appointment with your professor.
Empowering Students
Ideally, feedback should be designed to help students become self-reflective learners. This will allow them to see the patterns embedded in future law school or bar exams. Let me tell you about Henry (not his real name), who was in the first group of students that I worked with using my self-reflection method. Henry got one of the lowest grades on the midterm exam. He was devastated and came to me for help as he did not understand how he could have received this low grade. Rather than telling him what he did wrong, I provided him with some tools so that he could use to self-diagnose his midterm exam. He then spent hours using those tools, and on the final exam received the second highest grade in the class. That was an epiphany for me. I now follow the old saying: give a person a fish, they eat for a day. But teach them to fish then they eat for a lifetime.
You can significantly improve your writing if you stop expecting line-by-line debriefs of your answers. Instead, become a self-reflective learner. It’s hard at first because most students have never done it. It’s also time consuming, which stops many students because they don’t see the value behind the method. But once you go down this path it will help you become a better writer and thinker. For more information on this method please check out our exam grading page.
The IRAC method is the most popular organizational method used on law school exams, with IRAC standing for Issue, Rule, Analysis (or Application), and Conclusion. Without a solid organizational system, students miss issues and fail to do the kind of deep analysis that law professors are looking for. Having graded thousands of law exams I can tell you that no student has ever gotten an “A” without good organization skills.
The Method
Issue
The issue statement provides the topic that you are going to discuss in the paragraph. For example, one paragraph might deal with the intent element in a battery action. The issue statement might read: Does Henry have the necessary intent to commit a battery? If the essay deals with contract formation, then the issue statement might state “Does John have a valid contract with Maria.” The key is to let the reader know what you are about to discuss. This means providing enough information so that the reader understand what is going to follow. Also, when writing a law school essay, you should assume the reader does not know the facts or the law. You must lead the reader along, explaining everything. If you don’t explain it, then don’t expect to receive credit.
Rule
The second sentence in the paragraph is the rule. For intent, you should have something like this: Intent is defined as the desire or knowledge to a substantial certainty that the contact would occur. You must not only provide rules for the main issues, but also definitions for any legally significant terms.
Analysis
Third comes the analysis, which is the section that connects the facts to the rule. Here, you want to demonstrate that you understand why and how the facts are connected to the rule of law. The biggest mistake in this section is when students merely copy facts from the question they were given. Without explaining why the facts are important, all you are doing is sharing a story. Narratives get few to no points when graded.
Conclusion
And finally, provide a short conclusion, which must follow from your analysis. For example, it might read like this: Henry meets the intent element for battery. By the way, if you are struggling with battery, you might want to take a course on the intentional torts.
Nested IRAC
When you follow the IRAC method, it is not enough to IRAC only main issue, like negligence, contract formation, or involuntary manslaughter. You must create a separate IRAC for each element or legal term. This is called Nested IRAC, and students who organize their answers this way end up with higher grades. In a tortious battery, you will always need at least four paragraphs. The first paragraph to introduce battery, and then paragraphs for intent, contact, and harmful or offensive.
Form and Substance
Please keep in mind that IRAC, as good as it is, will not move you into the “A” category by itself. Unfortunately, there are students that earn D’s and F’s while using the IRAC method. In other words, IRAC is not a panacea that does the heavy lifting on an exam. So yes, use IRAC as a formatting tool and then work hard on Issue spotting and Analysis. That is what will help you the “A” grades you want.
Exam Preparation
Your essay will only be as good as your exam preparation. Work on creating a strong law school outline, as that is where the R in IRAC comes from. Next, learn the rules well by using the Leitner box flash card method. Finally, you can write most of an essay before you ever see it with the model answer preparation method. All this takes lots of time, at least initially. But soon you will master the science behind exam taking, which will lead to higher grades and less preparation time.
There are several reasons why students will find this exercise valuable. One, it helps them understand that even an expert struggles to complete a bar exam in 30 minutes. Two, they can observe how an expert uses their time to first prepare to write and then write. I then wrote the exam using the Nested IRAC method, an organization technique to ensure you don’t miss anything. Three, they can see an expert make mistakes, and still earn a decent grade on the exam.
Holistic Grading
