An Essential Truth about Law School Exams Exams test performance, not knowledge. It’s not about what you know, it’s about how well you write the exam. To do well, it’s not enough to know the rules. You have to understand them and apply them in exam conditions. – Don’t just study the rules you cover in class. Practice, practice, practice. – If you perform badly, that doesn’t necessarily mean you didn’t know the law, it means you performed badly on that exam. Go over it and try to figure out what went wrong, then practice that skill before the next round of exams.
General Strategies Read the (overall) directions! They may tell you: – How long to spend on each question – What law applies – Not to cover particular issues – Whether to double-space, single-side, etc.
General Strategies Read the (question) directions! Tailor your answer to the questions actually asked. – Don’t discuss issues that are not raised by the facts. – Look out for issues foreclosed by the question. – Think about what the question is actually asking you to do. Most fact pattern questions ask you to: advise a party, advocate for a party, or make an objective judgment. If the question asks you to advise someone, you must actually give some advice. This means coming to some kind of conclusion. If it asks you to assess someone’s liability then it’s more likely to be ok to be equivocal.
General Strategies Outline thoroughly before you start writing. – If you are running out of time, you can always write down your outline. – If you are writing on a computer, input your headings and then fill in the text between them. Show your organization. – A well-organized answer is easy to mark, and therefore is likely to get a higher mark. It makes the professor think, “This student knows what they’re doing.” Eloquence doesn’t matter much. Exam writing is mechanical and formulaic. – Well-written answers make a good impression, but clarity and accuracy are MUCH more important than style. – Repetitive writing is fine. Your mantra should be: “The issue is.... The rule is.... Here, we have.... Therefore,.... Next,....”
General Strategies You have to “hit the bumpers”. Get to the point! Don’t psych yourself out. – There will be some easy issues. There will be some hard issues. – So if one part of the question looks too easy, you probably aren’t missing anything. On the other hand, if the entire question seems obvious…. – Nail the easy issues for cheap points and do the best you can on the hard issues.
General Strategies How much is enough? There’s no definite answer to this but it is a myth that more is always better. – Short answers (under 800 words/hour) tend not to have enough meat on them. They probably miss issues entirely or give complex issues short shrift. – Medium answers (between 800 and 1100 words/hour) have a strong correlation between length and score. – Long answers (over 1100 words/hour) tend to be all over the map—some are just very thorough and some are rambling messes. At the long end, the correlation between length and score is weak. So if your answer is short, the odds are you missed an issue or need to add detail to the issues you’ve mentioned. If your answer is medium, spend any extra time left at the end of the exam adding details. If your answer is long, check to make sure it isn’t padded out with useless filler.
Time Management Take a few minutes just to read all of the questions and think. Spend at least 10% and up to 30% of the time allotted for a question on planning. – This will vary from person-to-person. Do practice questions in exam conditions to work out your own ideal ratio. – On computer exams, you can usually afford to spend a little more time on planning.
Time Management Balance time among the questions. – Follow the suggested allocation. – It’s always better to get something down on all questions than to ace one but short-change others. – Similarly, it’s always better to cover all issues in a single question than to miss or short-change some of them. What about “little” issues? – Balancing breadth and depth in exam conditions is one of the major challenges of law school exams. – Do this classic law school trick: “The fact pattern raises issue X but, given time constraints, I am unable to discuss it.” – Not ideal, but better than nothing!
Fact Pattern Questions: Getting Started Read the whole fact pattern, annotating as you go. – Don’t hesitate to write on the exam paper. List the issues on a separate sheet of paper. – Separate each distinct issue. – For each issue, separate out the sub-issue elements. – Don’t leave out clear-cut issues, but deal with them efficiently when you write up. Outline your answer before you start writing.
Tips for Spotting Issues Look for all points of disagreement between parties. – Don’t skip straight to what you think is the main issue. Put yourself in the position of each of the parties and then of the judge. – For the parties, think about what they would want to get out of the lawsuit. – For the judge, think about what you would want to know to decide the case. Look for trigger words in the fact pattern. – What is your prof obsessed with? – Go to class, ask questions, do practice exams.
Fact Pattern Questions: Structure You can use a very formulaic structure. Remember IRAC (and equivalents). – Not necessarily the best way to answer a given question, but it won’t do you wrong. – Even if you don’t use IRAC structure, you still need all four components. Headings are your friends.
Fact Pattern Questions: Structure For a given issue, the “I” and the “C” can both be very short, usually just 1-2 sentences. For the “R”: – Explain (briefly) why each rule is relevant. – State the source of the rule. Do you need to cite cases by name? Usually no, but it helps! You do have to cite cases when you are comparing the facts to analogize/distinguish. If a statutory provision is applicable, you do need to cite it by name and number and should quote it verbatim. – If there is controversy or a split over the rule, this may merit significant discussion.
Don’t focus too much on the “R”! This is the dreaded “brain dump”. The mistake many of my fellow law students made was to focus only on the legal rules in preparing for exams. They thought that if they knew all the legal rules backward and forward, they were guaranteed a good grade. Unfortunately, it wasn’t true. Even if your memory of the rules was foolproof, it meant nothing unless you were good enough at issue- spotting to know which rules to use on the exam. You could have a photographic memory of the rules, in other words, yet still do poorly. Students too often slip into their comfort zone in the “R” section. – Beware the law school “bait and switch” – On most undergraduate exams, this works. In stressful situations, it’s easy to revert to what you know best.
“A” is for Application “A” answers are distinguished from “B” answers primarily by the quality of their application of the relevant legal rules to the specific facts in the question. Be thorough. Apply all relevant rules to all relevant facts. Go through every element of the applicable rules. Explain why the rules you cite lead to the outcomes you predict. – Repeat facts, but don’t just regurgitate them; incorporate them into your analysis at the relevant steps. – State the specific facts that are tied to the legal rules you cite. – You need argumentation, not just conclusions. Show every logical step, even the obvious ones. – Acknowledge counter-arguments. On close calls, argue both sides. – Note areas of factual uncertainty. State any assumptions and explain the different possible outcomes.
Dealing With Uncertainty What if you aren’t sure what the answer is? – Don’t panic—getting the “C” right doesn’t always matter. – You need to show that you understand the possible outcomes on individual issues and the implications of those outcomes. – Professors will say something like: “It’s ok that there’s not an answer; you just have to explain yourself and touch on all the issues.” – Not really helpful, but it does tell you two things…
The Answer is to Refer to All Possible Answers “Issue A has three possible outcomes. First, the rule from Case M can apply which would mean X. Second, the rule from Case N can apply would mean mean Y. Finally, the rule from Case O would apply which would mean Z.” Of course, you still have to do your “A”—show how the different rules work with the facts in the fact pattern to reach the different outcomes.
Putting this into practice Read the sample problem on your handout What issues can you spot? – Consideration for the contract amendment Which rule applies? – Valuable consideration needed (traditional rule) – Conferral of a practical benefit suffices (Roffey Bros) – No consideration needed for amendments (GFAA) – Promissory estoppel – Economic duress
Putting this into practice For the amendment to the contract to be enforceable, there must be consideration for Olinda’s promise to pay the additional $200,000. This is a close call because it’s not clear that Charlie did anything in return for this promise. But on balance, I think a court will find that there was consideration.
Putting this into practice The issue here is the enforceability of contractual amendments. Amendments must be supported by consideration. Consideration constitutes something of value, either a benefit or a detriment, that is bargained for as a result of an agreement between two parties. To be valid, consideration may not be past, nor may it be illusory. If no consideration is proven, then the promise may still be enforced if it was given under seal or a promissory estoppel may be proved. Consideration is not normally found if one party promises only to complete a duty that it already owed under the contract. However, recent jurisprudence has held that a practical benefit conferred may suffice to support a finding of consideration for a contractual variation, or that consideration is entirely unnecessary for variations.
Putting this into practice There may not be consideration for Olinda’s promise to pay the extra $200,000. Charlie might disagree, since he would argue that there was consideration. Given the ratio in Williams v Roffey Bros, it is possible that a court might rule in his favour. But a court might also conclude that there was no consideration.
Putting this into practice Courts have debated whether consideration is required for an amendment to a contract. (Gilbert Steel v University Construction, Stilk v Myrick, Pao On v Lau Yiu Long, Williams v Roffey Bros, GFAA v Nav Canada). However, it is clear that consideration for a variation can be found in the conferral of a practical benefit (Williams v Roffey Bros). Therefore, there was consideration for Olinda’s promise to pay an extra $200,000.
Putting this into practice I would find that both variations contracts are enforceable. The first variation is secured by consideration in the form of a practical benefit, and the second is enforceable by virtue of the Judicature Act. Therefore, I would hold that Olinda need not pay Charlie the outstanding $300,000.
Putting this into practice The enforceability of the two contractual variations is in doubt. To prove that they are enforceable, Charlie must demonstrate that they are supported by consideration. Since a practical benefit was conferred, Charlie’s agreement to complete the renovations by the original deadline can still count as valid consideration for Olinda’s promise to pay an extra $200,000.
Putting this into practice There is no promise given in consideration for the first amendment to the contract, so it isn’t enforceable. This case is distinguishable from Roffey Bros because here, the parties did not both make a mistake about how much work it would take to complete the contract. Since there is no consideration for the first amendment to the contract, Charlie cannot recover the additional $300,000.
Putting this into practice The question is whether the contractual variation is enforceable. The requirements for a contractual variation are similar to those for formation of a contract: there must be offer and acceptance, definiteness, and consideration. I will consider each in turn. In May, Charlie offered to amend the contract by hiring additional workers for an additional $200,000. Olinda accepted this offer when she agreed to pay the new price. Therefore, there was offer and acceptance. Furthermore, the exchange of promises was clear and sufficiently definite, so that a court could determine if the obligation was not honoured (i.e., $200,000 on the one side, and finishing the construction by August on the other side). Consideration can be found in an exchange of promises….
Putting this into practice Charlie might be able to win if I could prove that he conferred a practical benefit on Olinda. There is a good case for this because Charlie arguably conferred a practical benefit because he promised to complete the house in spite of the bad weather. This rule comes from Williams v Roffey Bros and holds that a practical benefit can count as consideration for a promise to amend a contract. On the other hand, Charlie could also argue that the decision in GFAA v Nav Canada holds that consideration is not needed at all for contractual variations.
Putting this into practice Charlie’s ability to recover the $300k will turn on the enforceability of Olinda’s promise to pay the additional $200k and then the enforceability of Charlie’s promise to accept $700k in lieu of $1M. Under the traditional rule (eg, Gilbert Steel), amendments must be supported by consideration. Charlie did not offer anything new in return for Olinda’s promise. However, two modern doctrines may help Charlie. First, under Roffey Bros, a practical benefit conferred can count as consideration for a contractual amendment. Here, Olinda received the benefit of guaranteed completion of the building on time. Our situation is distinguishable from Roffey Bros in that, there, the parties made a mistake in setting the original price too low; however, Canadian courts have found a practical benefit even when there was no initial mistake. Second, under GFAA, which is only binding in New Brunswick but may be persuasive, no consideration is needed for an amendment. If a court accepts either doctrine (which is likely, at least for Roffey Bros), Olinda’s promise to pay $200k more is enforceable. Unfortunately, this will not help Charlie. Under the Judicature Act, express agreements to accept a lesser sum in satisfaction of a greater debt are enforceable regardless of a lack of consideration. Charlie expressly accepted Olinda’s offer to pay $700k to satisfy her debt of $1M, so his promise to accept the lesser sum is enforceable. I would advise Charlie that he will not be able to recover any more from Olinda, so he should not waste his money suing her.
There are two main types: – Questions that ask you to evaluate or compare legal rules: All other common-law jurisdictions have eliminated blanket prohibitions on the right of third party beneficiaries to enforce contracts. Should Canada follow suit? – Philosophical questions: In the Year Books, Chief Justice Brian is quoted as saying: “It is common knowledge that the thought of man shall not be tried, for the Devil himself knoweth not the thought of man.” Discuss with respect to contract law.
Essay/Policy Questions There is no “right” answer. – Essay questions usually focus on controversial (or at least unsettled) or broad philosophical issues. But you do need to make an argument. – It’s almost always better to come to some kind of conclusion. – Acknowledge counterarguments and treat them fairly. Refer to assigned readings as much as you can. Consider doctrinal coherence, principle, and practice. – How your position fits in with other, uncontroversial legal doctrines. – Argue from first principles. – Anticipate the consequences of different legal positions you might advocate (i.e., consider policy arguments).
Stock Essay Structure You still need a clear structure. – Aim for the “tell them what you’re going to tell them, then tell them, then tell them what you told them” approach. First Paragraph: Describe the issue and give a thesis statement. Middle Paragraphs: Here are the main points that support my thesis. – Try for at least three separate points. A Paragraph Near the End: Here is a criticism of my thesis AND here is my rebuttal to that criticism. Final Paragraph: In sum, my thesis is right. Here is some additional food for thought.
Before the Exam The two iron laws of first year exams: 1.Everyone is in the same boat. 2.It gets better.
Before the Exam Make a schedule for studying for all of your classes. Make sure to schedule some relaxation time. Write a good outline—even if the exam is closed-book. – Organize it around issues or common sets of facts. – The cases are important but they’re secondary. – Make checklists or flowcharts. Get help. Get plenty of exercise and sleep. Cramming is never worthwhile for law school exams. Avoid other law students if they stress you out. Lay off alcohol and other drugs until after your last exam. They might help you wind down quickly but also inhibit restful sleep and hurt your next day’s studying.
During the Exam The morning of each exam, make sure to eat a proper meal. Bring some water and QUIET snacks. Once the exam starts, ignore everyone else. Get into a zone where it’s just you and the exam. If you read a fact pattern and you just can’t get anything out of it, reread it from the beginning looking for trigger words. Consider taking a bathroom break between questions.