By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Tuesday
Nov202012

Slaying the Law School Exam and Other Terrors that Go Bump in the Night

NB: A more detailed 17 minute podcast elaborating on this post may be downloaded at the end of this post.  (Intro music credit in the podcast: Twinkling to Zero V under Creative Commons non-commercial licence).

A number of faculty at uOttawa are preparing podcasts on “law school exam writing” for posting on the internet.  Mine is posted here.  This blog posting replicates some of the highlights.

I start with a caveat: while generally law professors share a common learning objective in setting examinations, styles and specific, concrete expectations of the examination process do vary.  So my first point is this: take your signal from your professor. 

This is how I signal my examination intentions:

1. I state plainly that I do not examine by ambush.  That is, my examinations lie within the range of materials digested in class.  While in principle everything in the assigned readings is fair game, I do not examine footnote 267 on page 400 of the material I did not discuss in class. (“Class” in my post-2012 teaching incarnation will include my podcasts). 

2. I actually post a past exam, complete with the answer the actual marking grid employed to evaluate that exam.  That grid reveals the following: I give marks for spotting issues, for describing applicable legal doctrine and for applying doctrine to the facts in the exam hypothetical to arrive at plausible outcomes. 

This three way task – spotting, recounting and analyzing – is standard fare for law school hypothetical-driven exams.  It is also dramatically different from what most students have encountered in past academic ventures.  Sing this mantra in the shower every morning: spot, recount, analyze.

Two observations about things that can lead students down dangerous paths:

1. “I know the material so I will do well on the exam”. 

Wrong.  For most students “knowing the materials” means that “I have memorized a whole lot” or, slightly better, “I actually understand some of the links tying that material together”.  Achieving these two forms of “knowing” is the key to an essay style exam, in which you are asked to regurgitate.  It is a false security blanket for the standard law school hypothetical. 

The law school hypothetical asks you to take what you “know” and apply it in unique and varying circumstances.  It requires you to juggle while riding a bike: demonstrate skill by taking knowledge and extrapolating its application in an original circumstance.

When I review the grading sheets of most law students, my suspicion is that the range of depth in what students “know” is relatively small.  There is variation there – some students really do understand the material.  Others copied from the canned summary and “know” only what was there, which is often incorrect.  But where there is radical variation is in the capacity of students actually to spot issues on the hypothetical exam that then allow them to demonstrate that knowledge.

If you miss issues, you walk away from hordes and hordes of marks – entire letter grades worth.

2.  “I put in the hours and so I should get the marks”. 

Wrong.  Law school is not a measure of effort.  It is a measure of performance.  When I grade, I am in the consumer protection business.  My task to certify to the world at large my assessment of whether the student has mastered a subject on which he or she may be giving legal advice to the detriment or benefit of a client.  From that perspective, I couldn’t care less how much time a student has spent.  It is all about what is on the paper in front of me.  Marks are earned, not bestowed.  Period.

In fact, I do not believe there is actually any firm correlation between time spent and performance.  Rather, it is about qualitative effort, not volume of work.  There are lots of practices that are hugely consumptive of time but do not convert well into grades.  Memorizing vast quantities of law is one of those.

This is how exam preparation hours should be spent: go to class; read the readings; prepare your own summary; and prepare a single sheet decision-tree linking together the legal tests elaborated in that summary.  Exam prep is about making something out of Lego.  It is not about acquiring the latest pre-fab toy.  The process of putting together the Lego edifice is the key ingredient.  Having the finished product is incidental.

Here is the bottom line: exam performance is about thinking analytically on exam day.  If you have not prepared properly, you will be thinking descriptively (get down lots of law!) and that will not translate easily into marks.  You are guaranteed to miss lots of issues because you have favoured excessive discussion on only a handful of issues.

And if you are still learning to think analytically during the exam, it is DOOM!

Beyond preparing properly, there are a few exam-writing strategies that can help you sidestep disaster on the day of the exam:

First, read the question.  Oh, the number of times an answer springs forth from some student’s pen that would be brilliant, if it were an answer to a question actually asked.  Answering a question not asked is an invitation for zero marks.

Second, shotguns are tools of destruction not construction.  No, I will not assign more marks because you uncritically and indiscriminately copied everything in your summary and traced the origins of modern administrative law from William the Conqueror to the present day.   See above about reading the actual question asked.  The clients and senior partners who feature as the audience seeking legal advice in my questions do not care about William the Conqueror.  You may know a little bit about the origins of modern common law public law, because understanding the past is key to understanding the present.  But see above about answering the actual question, not answering the question that most matches what you bothered learning.

I don’t like reading volume.  I like reading clear, succinct answers that: spot, (briefly!) recount and analyze.  Everything else is simply liner for the kitty litter. 

Third, your law profs are mostly Hemingway and not Tolstoy.  When we craft hypotheticals we are generally not channeling frustrated 1,000 page literary impulses.  We are generally pretty sparing with the narrative.  Yes, there will be a little colour and narrative padding (I do have some frustrated literary impulses) designed to weave the hypothetical narrative together.  But there is also what I will call “factual parsimony”:  I do not put facts into the hypothetical just for the heck of it. 

So apply a presumption of parsimony as a back-end strategy to exam writing: if you think you’re done and you look back through your answer and you see swaths of facts in the question that you have deployed nowhere in your answer, you have probably missed one or more issues.  Go back and find the issues.

Four, road signs are a good thing.  Apparently, in England in WWII, the English rearranged all the local road signs so that if the Germans invaded, they would be hopelessly lost.  A surprising number of students employ the same strategy in exam writing.  Organization does matter.  A smattering of key words scattered through an otherwise incoherent answer produces exactly the grade it deserves: a lousy one.  Very few students would ever write a term paper without using an introduction, headings and subheadings and a conclusion.  (And if you are preparing such a paper, stop and seriously reconsider.)  And yet, these tools are vanishingly rare on exams.  A heading tells a marker a whole lot about what follows, and even if what follows is half-baked the heading may be enough to make the difference in the world of part-marks. 

Sure, it may be that something is forgotten and appended to the back end of a question.  But a question riddled with arrows pointing here, there and everywhere screams “inadequate comprehension”. 

So use your left and right hand turn signals throughout your exam paper.

What is the best way of producing an organized answer?  Having an organized decision-tree that you take into the exam with you and leads you down the merry path of hitting every element of the question, to which elements you can affix a heading. 

Five, deal well with the problem of false negatives.   One of the trickiest issues in exam writing is walking away from tonnes of marks because you concluded early in your analysis that a certain test was not met that would have led you on to further discussion on that issue.  The examiner may have firmly held views on this that differ.  My own view is that it is best to hedge your bets, and complete the full analysis even if you think it unlikely that the full analysis would be reached.  “If I am wrong on this issue, then….”.  That sort of thing.  The downside of this approach is that, applied uncritically, you may walk down paths that are so clearly dead ends that the examiner did not anticipate your whacking your way through that particular underbrush.  You won’t lose marks directly for this, but what will happen is that you consume time on it. 

All this boils down to a matter of using your informed judgment.  When I design exams I do my best not to create situations where a student versed in the material would be led down fruitless dead ends.  All of this is to say that the best cure to avoiding this problem is to know the material with a sufficient profundity that you are not tempted by evident blind alleys.  My instinct is that the students most tempted by those blind alleys are those that try to consume the subject matter like a meal: gobble up all the canned summaries.  Those students don’t understand the twists and turns of the material well enough to distinguish between autobahn and cul-du-sac.  See above about the importance of preparation.

So to summarize take-home from all this:  Build your Lego edifice; sing “spot, recount and analyze” in the shower; focus on the question asked and not the question you wished for; use an analytical razor and not a shotgun; assume your professors read “For Whom the Bell Tolls” and not “War and Peace”; use your blinking turn indicators on the exam paper; and cruise the autobahn, not the one-way dead end leading to the Valley of Despair.

ADDENDUM December 5: I discovered that I still had some old "decision trees" from my LLM days on my computer. I am not in the business of doing a student's work for them. But an example is useful for those struggling to understand what I mean. So this is an example for US administrative law, which I can say with complete confidence no one at uOttawa is taking. For any US law students who stumble on this, be advised that this is well over a decade old, and who knows, may have been wrong when completed! Caveat emptor.

Forcese Exam Tips (2012) Podcast