Tuesday, April 29, 2014
One of the most persistent problems for new law students is understanding exactly what it is that professors are looking for in good essay answers. Students read the fact pattern and the call of the question and then dutifully regurgitate what they learned about the law, gaining few or no points for their efforts.
I like to tell them that a typical law exam question is like a performance test in a wood working class, where the student is asked to make a spindle-back chair out of wood provided by the instructor. Describing the wood (the facts) gains no points. The professor already knows that she has given the student various pieces of wood made of pine. Describing the machines (rules) and the tools (reasoning from the cases, corollary rules, exceptions, etc.) gains few or no points; the semester was spent discussing those things.
The professor is standing by with a clipboard to evaluate how well the student uses the appropriate machinery and tools on the wood provided in order to produce a chair. Until the cutting tools touch the wood in the lathe, for example, nothing is written on the clipboard. When the tool starts shaping the right piece of wood into a chair leg, the professor starts putting points down for effective use of the lathe and the associated tools as the student makes the cuts.
On a law school exam, that cutting begins when a sentence explains why a fact does or does not satisfy the rule, using the reasoning courts or lawyers would use. I give them this formula for crafting such a sentence:
Fact + law + why.
In other words, each sentence should contain specific facts from the fact pattern, plus specific law (ideally critical legal language from cases or statutes), plus how those facts arguably do or do not satisfy that language. The formula is not a gramatical structure but rather a content guide. The points lie mostly in the "why." An example might sound like this (I have italicized the critical legal language to make the illustration clear here):
"Johnson's throwing the ball hard into the stands and hitting Smith would be a battery because Johnson had to know that the ball would hit someone, despite Johnson's claim that he did not intentionally aim the throw at Smith."
I then tell the students to develop the habit of asking two questions after every period: Why is that true? and why does that matter? That habit tends to ensure that all the steps in the reasoning are explicit. The follow-up sentences to the statement above might look something like this:
"Johnson's throwing the ball into a crowded section of seats satisfies the intent element of battery because he acted knowing the ball was substantially certain to result in a harmful physical contact with a fan, regardless of whether he knew which fan would be hit. Therefore, Johnson would be liable for the injuries Smith incurred when the ball hit him in the side of his face."
While the approach may seem formulaic, it is actually the approach all lawyers use when applying law to fact. The sentences might have been preceded with a statement of the issue and a one-sentence definition of intent in a battery. The focus, however, would be on how the rule applies rather than a lengthy explanation of the rule itself.