ORDER OF PROCEEDING Logistics & Exam Structure Exam Technique –Generally –QI: Lawyering –QII: Short Problems –QIII: Opinion/Dissent –QIV: Issue-Spotter Questions from You –Exam Technique & Logistics –Substantive

Logistics & Exam Structure

General Logistics I’ll post these slides on Course Page tonight & provide link to video ASAP Office Hours Tomorrow 10-2; 3-7 I will respond to Qs (within reason) sent before 7pm tomorrow After 7 tomorrow, I’m off duty

Exam Coverage Test can’t cover every issue in the course Something from every chapter (Except 4!) Info Memos for each chapter list coverage Most major issues on test should be familiar from review problems, DQs, and hypotheticals discussed in class. Qs will be set in present or near future.

Structure of Exam Choose three of four equally weighted Qs Four hours –One hour to read Qs, take notes, outline (no computers or bluebooks) –Three hours to write answers (One hour per Q) Instructions page of exam available on Course Page to read in advance Closed book w Detachable Syllabus. Copy of Syllabus on Course Page for You to Practice.

Last Minute Prep Old Exam Questions Do Some Under Exam Conditions (Esp. Q1 + Q3) Review in Groups Read My Comments for Some of Each Type Of Q Use model answers –to see organization/style I like –to see some possible ways to analyze –neither complete nor perfect

Last Minute Prep My Exam Technique Workshop (especially if you haven’t already…) Watch Video (on Academic Achievement Website) and/or Look Through Workshop Slides on Course Page

Using Your Reading Period 1st 15 Minutes Read test (Hyperventilate) Choose which Qs to write & in what order –Probably shouldn’t decide in advance which Qs to do –Be thoughtful about order given your own strengths Will you be more focused at beginning or end? Which format do you expect to be most difficult? Could be creative: e.g., short-long-short-long-short (A.D.D.) If you always end up short of time –Q3 probably easiest to get OK score with limited time –Q2 probably hardest

Using Your Reading Period 1st 15 Minutes: Read Test; Choose Qs & Order Next 45 Minutes (I’d Recommend…) –Use about 15 minutes to prep each Q you are doing –Read it again carefully –Make rough outline by Listing major points you’d like to discuss Choose order in which you’ll discuss them This list/outline can be first thing you type in –Do last in reading period Q you want to write first

Aftermath By tradition, I’ll be on the bricks at the end of the scheduled exam time I’ll post grading progress on Course Page Once grades posted, I’ll make available your exam, scores, comments/models I’ll set times (in both summer & fall) to meet to review with you if you choose

Qs on Structure or Logistics?

Exam Technique: Generally

1.Know Your Job(s) 2.Read Carefully 3.Write Concisely & Clearly

Exam Technique: (1) Know Your Job(s) (a) Testing Ability to Use Tools, Not Knowledge of Them Don’t Simply Recite Legal Tests; Work With Them (as Soon as You Mention Them) Helpful (but not Crucial) to Refer to Relevant Authority (see old best answers) Make your reasoning explicit: Wizard of Oz (Because, Because, Because)

Exam Technique: (1) Know Your Job(s) (b) Lawyers Do Many Different Tasks Exam Questions are Neither Legal Memos Nor Appellate Briefs On this Exam, Each Q Asks You to Do a Different Task; –E.g., Use of STATUTES and of POLICY Differ –I’ll Go Through One at a Time –Make Sure You Understand Each One

Exam Technique: (1) Know Your Job(s) (c) Reality Show “Challenges” Asked to Do the Best You Can Given Time Limits –Not Looking for Complete or Polished Answers –Stick Tightly to Time Allotted to Maximize Score on All Three Challenges Nature of “Challenges” –Work with What You’ve Got (Where’s the Turnip?) –Problem Supposed to be a Challenge; Don’t Try to Make it Easier Than it Is

Exam Technique: (2) Read Carefully Never Waste of Time to Read Through Slowly More Than Once Make Sure You Understand Any Specific Instructions & Limits on Q Effectively Penalized Twice for Misreading Facts –A Little Mark-Down for Each Mistake –Big Waste of Time to Base Arguments on Mistakes –When in Doubt, Double Check

Exam Technique: (3) Write Concisely & Clearly (a) Draft, Not Final Product No need for formal introductions & conclusions Use abbreviations (names; recurring phrases) Can use telegraph English Use headings, not topic sentences Can use bulleted lists (e.g., of evidence supporting one side of an argument)

Exam Technique: (3) Write Concisely & Clearly (b) Be Concise Regarding the recurring problem of wordiness, almost all of the thirty or so otherwise diligent and competent students who took the time to submit a practice exam answer pursuant to the rules posted on the course page for doing so thoroughly demonstrated the fact that that they had a tendency to that problem as well as showing redundancy and continued difficulties writing in a concise, brief and to the point way.

Exam Technique: (3) Write Concisely & Clearly (c) Organize & Simplify  Clarity I recommend starting answer by typing in outline of major topics then filling in Use headings and subheadings to make structure visible, then stick to your topics Where Possible, Try to … –Use plain English (except for necessary legal terms) –Use active voice –Use short simple sentences

Hold Qs on Exam Technique Generally Until End

Exam Technique: Question I Lawyering

Question I Client Comes Into Your Office Gives You Relatively Limited Facts –Insufficient info to argue or advise yet –Irresponsible to reach conclusions Will Raise Issues From More Than One Part of Course

Discuss the factual and legal research you would need to do in order to advise Allie regarding her concerns described below: [Concerns labeled (a) (b) (c)]

Question I: Task To Do List (in order to advise client) Investigation NOT arguments or advice (Q v. R) Note what client has asked you –Stick to legal topics raised by requests –NOT looking to you for business advice Three “Concerns” All Substantial –Not Necessarily Same Amount to Say –Not Three Separate Scores (cf. QII)

Question I: Organization/Format Can organize by major topics then rules or elements under each Use headings and subheadings to show organization Can use paragraphs or outline form or bullets (pros & cons to each) –“I would then… I would next …” –“Check color of sky” (Why???)

Question I: Organization/Format All Law then All Fact Often Unsuccessful Not Separate Tasks But Inter-Related –Legal Rules Determine Necessary Fact Investigation –Analogy: Recipes & Shopping Where multiple possible rules, can use them to organize discussion of facts: –If state uses rule X, check [relevant facts]. –If state uses rule Y, check [relevant facts]. –If overlap, cross-reference

Question I: Legal Research Check cases & statutes for relevant rules in your jurisdiction Useful to reference some possibilities we looked at. E.g., –“Some states do X, some Y” –Check for cases/statutes defining [key term] –Check if state follows Perry v. Resnick No statutes included & no need to know specific statutory language Policy only relevant in very general way (e.g., AP is Disfavored)

Question I: Factual Research Looking for specifics, not simply reformulating legal tests as Qs Indicate how you would locate facts (interviews, records, ask client, etc.) If not pretty obvious, briefly indicate why facts matter

Question I: Factual Research Increasing Degree of Difficulty: – More detail in identifying possible relevant facts –More detail in explaining how you might get information

Question I: Practical Research If arguably relevant, can ask re client priorities or interest in settlement Can investigate whether compromise solutions are possible Can investigate whether other parties might want to settle

Question I: Preparation Be aware of issues with multiple rules Think about evidence necessary to prove claims Look at old comments/models & write- ups of lawyering review problems Do at least one under exam conditions

Questions on Question I?

Exam Technique: Question II Short Problems

Question II: Four Problems; Choose any Three Three are topics you’ve seen in short problems One topic raised in other review problems, but new for short problems Problem D includes specific statute for you to work with: Discuss whether, in the following scenario, under [the statute] (provided below), …

Question II: Four Problems; Choose any Three Can do in any order, but mark clearly Start each on new page if handwriting (can also do w exam program) 20 Minutes Each & Weighted Equally, So Stick to Time!!!

Question II: Read Carefully: Respond to Problem Given to You Usually limited in scope. E.g., –Apply particular case (e.g., Shack, JMB, Poletown) –Discuss one element of Adverse Possession –Sometimes really asking “What should legal rule be for this issue?” (Mini-Q3) (e.g., Rev. Probs. 1G or 5E or 6B)

Question II: Read Carefully: Respond to Problem Given to You Assume All Facts There for a Reason –Potential Legal Argument; Cheap Laugh; Names of Students or Profs –Think About Why They’re There & Try to Make Use of As Many As Possible Look for Missing Facts that Could Resolve –So long as consistent with what’s there –So long as don’t drastically change problem: “If lawyer was testator’s long lost brother…”

Question II: What I’m Looking F or Problems Have No Clear Right Answer If you read a problem and are absolutely sure which side wins, don’t choose that one. Find Best Arguments for Each Side Not Helpful to Start w Unsupported Conclusion Usually Not Helpful to Segregate Pro & Con Arguments –Eliminates possibility of dialogue –Leaves no room for intermediate positions

Question II: What I’m Looking F or Need to Have Working Knowledge of Relevant Doctrine Exact Wording Often Not Needed, But Try to Have Sense of Key Terms and Ideas Limited Credit for General Discussions of Facts Untied to Legal Standards Address Doctrine Before Raising Policy & Purpose Arguments –Wills : Are Formalities Met Before Langbein Purposes –AP: Use Definition/Rule Before Purpose of Element

Question II: What I’m Looking F or Increasing Degree of Difficulty: Attack Hard Qs/Identify Stronger Positions Like Concept of “Limit” in Calculus Keep pushing toward resolution; don’t have to reach one.

Question II: What I’m Looking F or Increasing Degree of Difficulty: Attack Hard Qs/Identify Stronger Positions Use policy arguments to resolve ambiguity or to suggest one position is stronger Compare the problem to a case or cases we studied Explain why that one side’s position is likely to have more emotional appeal; or Show how the result might turn on the resolution of an ambiguity in the facts.

Questions on Question II?

Exam Technique: Question III Opinion/Dissent

Question III: Understanding Primary Task is Crucial Each Opinion Must Choose a Rule & Defend its Choice

Question III: Understanding Primary Task is Crucial Choose a Rule Each Opinion Must Choose a Rule Clearly Indicate & Articulate the Legal Standard That Opinion Chooses Each Can Be a Rule Used in Authorities We Studied or New or Hybrid Rule You Create Strategy Tip: Make Your Two Rules Different Enough That There’s a Real Fight

Question III: Understanding Primary Task is Crucial Defend its Choice Each Opinion Must Defend its Choice Bulk of Points from Strength of Arguments about What the Rule Should Be Can Discuss Both Strengths of Chosen Rule and Weaknesses of Alternatives Significant Opportunity to Show You Understand Policies Relevant To Topic

Question III: Understanding Primary Task is Crucial Not Asking for Extended Application of Law to Facts Facts of Problem Very Thin –Trial Ct Dismissed w/o Trial –Appeals Ct Remanded for Fact-Finding Deal w Facts Quickly in Each Opinion –If Rule Resolves Case Easily, Declare Winner –If Not, Remand with Instructions

The [XXX] Supreme Court granted [review]. Compose drafts of the analysis sections of both: (a) a majority opinion for the Court, determining the legal standards that should apply and defending your choice; and (b) a shorter opinion arguing that the Court should apply different legal standards than those adopted by the majority and defending this position. (If the result in this case under this test is the same as under the majority’s test, call this a concurrence; otherwise, call it a dissent.)

Question III Writing as the [XXX] Supreme Court Treat as Having Clear & Complete Authority Cases from Other Jurisdictions Not Binding US SCt Can Revisit/Change Own Prior Cases Thus, must defend positions taken even if consistent with other authorities we studied Court is clearly last word on Public Use Clause For Non-Constitutional Issues, can argue Court should leave particular issue to legislature, but Court never has to do so.

Question III Writing as the [XXX] Supreme Court Remember Court is Setting Rules for Future Cases (Not Just Deciding This Case) Consider range of possible situations that might arise under rule. Consider incentives for relevant parties Consider effects on future cases & legal system

Question III Compose drafts … As with issue-spotter, can include headings, bullet points, abbr., etc. Present concise versions of arguments, not rhetoric (don’t get carried away with role) Don’t need polished or fancy language, transitions, etc.

Question III … of the analysis sections … No need for –Introduction –Statement of facts –Procedural history –Separate history of the legal issue –Conclusion Helpful to Indicate “Affirmed” or “Would Reverse” (etc.) at Start of Each Opinion

Question III … of a majority opinion … and of a shorter opinion… Do 2 separate opinions (or big penalty) Forces you to articulate best arguments for two different positions May be helpful to write simultaneously Increasing Degree of Difficulty: Each opinion should try to deal w other side’s best arguments

Question III If the result in this case under this test is the same as under the majority’s test, call this a concurrence; otherwise, call it a dissent. I want your opinions fighting about the rule, not necessarily about who wins

Question III: Miscellany Useful to address arguments made by lower courts in problem –Guiding you to some available arguments –At least have side that rejects say why Can put arguments you are unsure of in mouths of parties Don’t avoid addressing my Q by making cute legal or procedural arguments No significant statutory component

Question III: Preparation Be familiar with policies supporting particular rules or relevant to particular areas of law Look at old comments/models. Do at least one under exam conditions And finally ….

Question III If you choose to name your judges (you don’t have to) … Majority (Jeter, C.J.)… Simpson, J., Dissenting: …

Question III … don’t use your name as the name of one of the judges!! Simpson, J., Dissenting: Doh!

Questions on Question III

Exam Technique: Question IV Issue-Spotter

Question IV Issue-Spotter: What I’m Looking For 1.Identify the Most Important Issues 2.Ability to Work with Statutes 3.Quality of Analysis on Key Issues 4.Clear Presentation 5.Quantity of Correct Relevant Points Made

Question IV: Identify the Most Important Issues Not enough time to discuss everything Need to choose among topics Focus on most contested issues –Serious arguments on both sides –Look for topics with a lot of facts –If lawyers wouldn’t fight about it, address it quickly or not at all. For big multi-step topics, assume some subtopics are more important than others

Question IV: Ability to Work with Statutes “[Question IV takes place] in the little-known American state of Camboscala. Selected Camboscala statutes are provided at the end of this question.” For easier use, can detach statute pages I’ve given you easy citation form. E.g.,: –Camboscala Tax Code (cite as T…) –“Alligators don’t pay taxes. T564.”

Question IV: Ability to Work with Statutes All Camboscala statutes provided are basically copies of statutes in materials. When applied to facts of problem: –Some will yield clear results –Some will generate discussions because of ambiguities in the statute or in the facts –Some will not fully resolve problem E.g., External Reference to Housing Code in FL E.g., Wills Statutes Might Not Reference Capacity –Up to you to know the difference

Question IV: Quality of Analysis on Key Issues For Issue-Spotter, Analysis on Key Issues Should Follow Same Guidelines as Question II Problems

Question IV: Clear Presentation Discuss one issue at a time Use headings & subheadings to indicate transitions Make logic of arguments apparent Deal with overlap through cross- reference, not repetition

Question IV: Quantity of Correct Relevant Points Made Used primarily as tie-breaker if answers otherwise similar A little bit of credit for quick citations to relevant authority, but thorough analysis of contested issues yields the most points To save time and increase quantity, use abbreviations, headings, bullets If running out of time, some credit for points made in outline form at end

Questions on Question IV

Penultimate Slide Other Qs on Exam Technique or Logistics?

Very Last Slide! Substantive Qs?