Law School Academic Support Blog

Essay Exam Answering Tip #103011 - Focus on Key Facts

“Legal problem solving — identifying and diagnosing problems and generating strategies and tactics to achieve client objectives — is a legally trained person’s most basic function. Most legal problem solving activity involves some legal analysis — combining law and facts to generate, justify, and assess a legal problem’s merits.” (Legal Services Practice Manual: Skills (2010) Link)

All lawsuits arise as a result of disputes involving facts. Our legal system revolves around resolving disputes through the application of rules of law to the facts of a case. Yes, trials and appeals are about “law,” but remember that the trial court judge, or the jury, is referred to as the “trier-of-fact.”  Determinations of facts are so important that the Bill of Rights guarantees that facts once decided by a jury are pretty much the last word.  The seventh amendment provides that, “...no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."  This clause forbids any court from reexamining or overturning any factual determinations made by a jury, unless the factual determinations are clearly erroneous.

The two major components of the dispute resolution process are the applicable law and the facts of the dispute.  In the professional practice of law, you will be sifting through the case file to identify which of the hundreds or thousands of facts produced by discovery (for example, witness statements, deposition transcripts, answers to interrogatories, photographs, and correspondence) are “key” facts.  Key facts are those facts  that are critical to the outcome of the case. A key fact is so essential that if it were changed, the outcome of the case might well be different.

In law school, you are practicing this skill of focusing on facts – in order for you to learn to assess legal problems, you must be able to find the important facts ... the key facts, the facts upon which the outcome of the issue in question depends. When writing an answer to a law school essay exam question, you must ferret out these salient facts from all the facts presented in the narrative. Think of them as keys that unlock point-scoring issue discussions.

But how?  Here are the basic steps to determining which facts are key facts.

• Identify each claim possibly raised by the exam question.
• State the rules that will be used to resolve each issue of each claim. These rules include the elements which need to be addressed in the discussion of each issue.
• Pinpoint which facts in the question possibly relate to the elements of those issues.

This last step involves determining which facts may be legally significant. Legally significant facts might be, for example, that a tenant with an eviction notice has never been supplied with hot water; or that the shooter was an off-duty policeman; or that a party to a contract may have been a minor; or that the geographical distance between the provoking incident and the killing may have been long enough to provide adequate time for a reasonable person to “cool off” the heat of his passion.

After outlining your answer, read through the exam question one more time carefully and quickly (you should be quite familiar with the question by this time, so the reading can go much faster than it did the first time through). Make sure you have assigned all the facts presented in the hypothetical question (the exam) to some issue. If not, ask yourself if these facts suggest another issue, can be used to further explain an issue you already noted, or are merely "red herrings" (facts in the question which might lead you to an errant discussion). Then use this fact-rich outline as a roadmap for answering the question. Note that your outline need not include explanations of why facts are important – the detailed analysis comes in your answer. The outline is only your writing guide.

As for the outline, you may want to follow a traditional outline pattern (bullet points, hierarchies, mind-mapping, etc.) … or, to accent the fact-finding, you may want to think about a two-column approach. You can outline your answer using two separate columns. Specifically, you can list the issues in one column, and then note the facts that need to be discussed in relation to those rules in the column next to it. This method will allow you to match the issues or sub-issues of law with the facts of the question. Skimming through the question quickly (again) before actually writing the essay, you can quickly note if you have skipped over a fact.

Long before encountering exams, work on recognizing key facts.  Focus on key facts when you brief cases for class. Some students find that including basic fact patterns in their self-made course outlines – as illustrations of the rules that appear in the outlines – helps them think of the rules in situational terms.

Many years ago, when I was a little boy, fictional Los Angeles police Sergeant Joe Friday, hero of the “Dragnet” television series, used to say to witnesses he interviewed, "All we want are the facts." Well, there’s more to it than that when you’re trying to score high on a law school essay exam … but Sgt. Friday was zeroing in on one of the two essential components – you should too!

{This “tip” is one of a continuing series.  Law school academic professionals are authorized to use this material in their work however they choose – and law students who read these tips are encouraged to integrate them into their practice sessions. To see where this tip fits in the grand schema: Click here.} (djt)

New Exam Skills Book

I just received a review copy of Barry Friedman and John CP Goldberg's Open Book, Succeeding on Exams from the First Day of Law School. While I have not had the chance to read the book closely, my first impression is that this is a book we will be seeing a lot in ASP. It is relatively short (180 pages) and uses cartoons and humor throughout. The structure of the book is clear; I can flip to the table of contents to find chapters on specific topics (IRACing, outlining, etc) without having to search. It starts with an introduction on how to use the book, which is especially useful, since most students do not know how to use exam skills books.

There are many good ASP books out there, but I think this one will get added to the pile I use and recommend to students. (RCF)

"Retrieval Practice"-Creating Tests that Reaffirm Knowledge

What do you want your tests to accomplish? Are they meant to measure learning that has already occured? Are your tests meant to provide an end of term grade? Are your tests meant to assess how much material students covered in the semester? If you use tests in any of these ways, I challenge you to see tests in a new light: as a teaching tool. Before I begin, I want to hat tip several people who already use this technique in their teaching: Ingrid Michelson Hillinger of BC, Rory Baduhur, Jeremiah Ho, and Michael Hunter Schwartz of Washburn, and Paula Manning of Western State. I am certain there are more people who use this technique; these are the people I know off the top of my head on a Monday morning.

"Retrieval practice" uses tests as a method of assessment and reinforcement, seeing the test itself as a learning experience that helps consolidate knowledge. For students, retrieval practice means something they need more of but dread: tests. But testing should be frequent and involve self-quizzing, as well as tests that build upon previous skills so students are reviewing as well as consolidating new information. Each of the law professors above have presented at conferences on different methods of frequently assessing student learning in ways that build skills; there is no one correct way to use retrieval practice. Prof. Hillinger uses group work that challenges students and builds skills throughout the semester. Prof. Badahur and Ho use frequent mini-tests, which students can peer-correct or self-correct, to test skills as they are being learned. Prof.'s Manning and Schwartz use so many different testing methods throughout the semester to keep students active and engaged.

Based on what I have learned over the past year, I have dramatically changed the structure of the Remedies course I teach each fall. Instead of giving fours tests throughout the semester, I give four exams (each with increasing value towards their final grade) and a mini-assessment at the end of every class. I start each class with a lesson on a skill, such as outlining for learning. This is the most typical "ASP" part of the course. I move into a doctrinal lesson in Remedies. Unlike traditional doctrinal teaching, I use visuals, give note-taking guides, and explain my pedagogy as I am teaching. Students know why I am using any particular teaching method, how it is used in their other courses, and how this teaching method relates to a practice skill. I make my thinking explicit. In other words, I don't hide the ball. I give them the ball, and then explain why I use the ball, the other ways of using the ball, explain it's character and design, and how the ball can be used outside the classroom. The last part of my class is a mini-assessment that tests their understanding of the lesson and asks them to apply the skills they have been learning in class. This past week, when we reviewed the science and skills of reading and briefing cases, I asked them to brief next week's case in class, with me, trying the techniques they just learned. I gave them a 1/2 hour; far more time than they would take if they were rushing through the brief at home. I assured them their was no "wrong" answer, that this was a chance to experiment with technique and format and get feedback on their efforts. The benefit to me from this lesson is that I get to see if they understand before I move on to a new skill. Because skills build on each other, I can assess early in the semester if we need to spend more time on a skill, before we all become frustrated with a lack of understanding later in the semester.

While it is at best a brief introduction to retrieval practice, there is an article in the NYT's on it in practice. The article mentions Mind, Brain, and Education. There is a Mind, Brian, and Education journal from Harvard's Graduate School of Education; it is excellent and well worth the very modest subscription pric (I have been subscribing since 2007). I have also been to a Harvard conference on mind-brain connections in students with learning differences, and I regularly use what I learned at the conference. (RCF)

Essay Exam Answering Tip #91311 – Spot the Issues

To score high on law school essay exams, you need to spot as many issues as possible.  They lurk in the narrative.  If you can't spot the issues on an exam you won't score the points.

Issue-spotting is the most fundamental activity in the process of writing an answer to a law school essay exam question. Those students who spend their exam time spotting issues then follow up by organizing their answers, formulating their legal analysis of the issue they have discovered, and then writing the answer in a way that demonstrates their lawyer-like thinking will get the best grades.

Consider making a mental checklist of the issues that continually arise in (for example) Contracts essay exams, then scrutinizing each question/answer by running through your checklist. Some students actually memorize a checklist of possible issues and scribble that down (quite abbreviated) after the test period begins … others use a “mental” checklist. This works for many students … think about it!

If you use the “checklist” approach, remember that it’s just for comparison against your answer outline. Don’t expect to write about everything on the checklist! Selecting and divining the right issues, and only the right issues, for discussion on an exam has its analog in narrowing and selecting the right issues to research and prepare for when you will be advising clients, or when you prepare for oral arguments in court.  Clients have neither the time nor the money to pay for unnecessary research.  Judges are even more demanding than clients! (In other words … try to find all the issues, but only the issues!)

To improve in the area of spotting issues, search through the question for facts that either side might use to fashion an argument that might help that side – then, if the argument is untenable, explain why. Here's a hint: as a general rule-of-thumb, most facts you find in the narrative can be used to support or attack a position.

On the other hand, if the argument would be merely specious (superficially attractive but actually of no real interest or value) it ought not to be raised. This is a decision a lawyer has to make in real life, asking herself, “Do I raise this as an issue, or is it too far-fetched?”  Likewise, it is a decision a law student needs to make in composing an answer to an essay question. But the law student has an advantage: most professors adhere to the policy that no points are taken off for including as an issue something that is not an issue. (Keep in mind, however, that you need to be prudent in this regard, because spending time writing about “non-issues” uses up time which would be better spent earning points by discussing actual issues.  Also, be sure to find out from your professor if this is the grading policy.)

Separating the actual issues from non-issues is a skill that you will pick up as you proceed through law school. If it seems difficult, don’t worry – you are on the road to learning this skill now, and as you answer more essays you will become better and better at it!

{This “tip” is one of a continuing series.  Law school academic professionals are authorized to use this material in their work however they choose – and law students who read these tips are encouraged to integrate them into their practice sessions. To see where this tip fits in the grand schema: Click here.} (djt)

Essay Exam Answering Tip #9911 – Write with Concision

Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. This requires not that the writer make all his sentences short, or that he avoid all detail and treat his subject only in outline, but that every word tell.  William Strunk and E. B. White

Mr. Strunk and Mr. White got it!  Often, less is more, and simple is best.  I like the phrase, "...every word tell."  When you write your exam answer, every word ought to be a point-scoring word.

Example: When you're answering a Contracts essay exam question, there's no need to define Contract. That's right.  Just as there is no need to define “Tort” or “Crime” in Tort or Criminal Law essay answers, there is no need to define “Contract.” Simply begin with the first issue.  That's because your "audience" as you write an exam is not a "know-nothing," but rather, a (fictional) peer who is familiar with the facts of your case (the question you're answering) and the basics of the law ... but she needs a refresher on the particulars.

So writing that "...a contract is an agreement between parties that ..." (etc.) scores no points; whereas, it is important to state the applicable portions of the statute of frauds before using that as a defense.

Likewise, there's no reason to discuss matters that are not germane to the call of the question.  One mistake is to write about what the defendant should have done instead of what he did do, then explain how things would have turned out differently for the parties if that were to have occurred.  In other words, changing the facts of the hypothetical and writing about the issues that arise under the altered facts.  That's a no-no.  As in "no points."  It wastes your time.

Concision reigns.

{This “tip” is one of a continuing series.  Law school academic professionals are authorized to use this material in their work however they choose – and law students who read these tips are encouraged to integrate them into their practice sessions. To see where this tip fits in the grand schema: Click here.} (djt)

Essay Exam Answering Tip #82511 – Writing for your audience.

If you were to write a book for youngsters about how to play baseball, or an adult-oriented romance novel, your “audience” would be easy to identify.  In the first example, you’d be writing for an age group between 7 and 11; the readers would all be interested in baseball; and they’d be, let’s say, beginner-to-intermediate level of capability and sophistication in the sport.  In the second example, you could Google the demographics for who buys romance novels, and get a pretty good idea of who might purchase your book.  Audience identification is critical whenever you write—and that’s the case when you write answers to law school essay exam questions as well.

When you write the answer to a law school essay exam question, your audience is fictional.  Think of your audience (reader) as an informed attorney or a colleague (law student) who is quite familiar with the nature and purpose of law in general; who has read the fact pattern; and who has a passing familiarity with the law of the subject (torts or contracts, for example), but needs to be reminded of the precise rules of law. Then proceed as if you are explaining the situation to that person.

For example, that person would not need to read that often hunting knives have sharp edges, that if a person is the manager of a grocery store, one can assume that she is the person who ought to be in charge of the store, or that there is a difference between tortious battery and criminal battery in that the latter is punishable by imprisonment. 

Also, because the fictional reader has read the fact pattern, there’s no need to repeat sections or sentences of the question.  In other words, if the question includes, “When Mr. Slocum walked into the airport he noticed the aroma of something burning—and this immediately caused him concern” … then there is no need to include in your essay, “When Mr. Slocum walked into the airport he noticed the aroma of something burning—and this immediately caused him concern.”  (Rather, you could refer to Slocum’s location, refer to the aroma, or refer to Slocum’s concern, if they are key facts in your argument—no need to repeat what the reader has just read in the question.)

Although each step of your legal analysis ought to be in the essay, it is important not to waste your limited time by explaining what your audience can be expected to know.

Now let’s look at the “real” audience: your professor. Always write with your professor in mind. In general, hallmarks of an “A” grade answer include: identification of all issues, significant attention to “grey areas,” incorporation of higher-level argument techniques (example: using the “slippery slope” argument), integration of the legal principles and facts of the hypothetical with common sense notions, and policy support for a position taken.

However, professors differ in what they consider “A” grade material. Therefore, it is very important to obtain not only the old exam questions your professor has filed, but also—if available—her examples of quality answers. You should study these answers carefully, for there you will find which qualities your professor rewards with high grades.

You ought to also discuss with your professors what they look for in exam answers during office visits.  You will also get quite a bit of this information during class—be sure to put that in your notes! Do this with each of your professors to learn what he or she expects on a real exam. Whatever you discover, that’s what to practice!  Then incorporate your professors’ suggestions into your practice exam answers. 

Audience matters in everything you write … and the audience you write for when you compose answers to law school essay exam questions is likely to be a determinative factor in the grade you receive!

{This “tip” is one of a continuing series.  Law school academic professionals are authorized to use this material in their work however they choose – and law students who read these tips are encouraged to integrate them into their practice sessions. To see where this tip fits in the grand schema: Click here.} (djt)

Essay Exam Answering Tip #82211 – What “conclusory” means.

Professors and academic support professionals warn against writing answers – or addressing issues – in a way that is “conclusory.” Let’s take a look at what “conclusory” means.

Law examination answers that do not supply the explanatory information detailing how each step of the argument is arrived at are “conclusory.” That is, they recite conclusions without stating supportive analysis. A display of the thought process leading to every conclusion is essential in a law examination answer.

When you enter the professional practice, judges, lawyers, and clients will be asking, “How did you reach that conclusion?” Throughout law school, your professors will expect you to respond to that latent question in every class session and on every examination. The ability to conclude is not what “thinking like a lawyer” is about—rather, you are developing the ability to persuade another that the conclusion you have reached is supportable by application of rules of law to a set of facts.

To score the most points on each issue, the essay ought to specify the issue, indicate which rule (or set of rules) a lawyer would employ to resolve the issue, articulate an analysis of how the facts of this hypothetical case are affected by application of the rule, and reason to a solid conclusion.

Lawyerly analysis, in its most fundamental sense, boils down to an interweaving of the facts presented in the hypothetical, with the law you have identified. So to score more exam points, avoid conclusory statements—instead work on your analytical skills. {Where this tip fits in the grand schema: Click here.} (djt)

Essay Exam Answering Tip #82011 – What an “issue” is.

Let’s take a look at what an “issue” is, within the context of answering law school essay exams. An issue is usually a question the court will be called upon to answer. Sometimes “major” issues, like whether a defendant is liable for negligence, are referred to as “ultimate questions” in the case – whereas the elemental questions are the determinative issues … the questions which, when answered, will determine the answer to the ultimate question.

For example, a major issue, or ultimate question in a Torts exam may be whether the defendant’s actions or omissions constitute the tort of negligence. The elemental issues which the trier of fact will be called upon to determine include whether the plaintiff can prove each of the elements of negligence: duty owed to the plaintiff, breach of that duty, causation, and damage. 

Many issues include sub-issues.  For example, when one finds a negligence issue, often it will require a thorough analysis of breach of duty, including a discussion based on the balancing of the gravity of harm against the burden on the defendant to have acted differently, and also including attention to the utility of the defendant’s allegedly negligent conduct.

To help identify issues and sub-issues, carefully read the facts to determine which elements of each rule ought to be discussed. As to issues, remember that it’s important to not only name them, but to explain how they arise in the circumstances set forth in the essay question.

After each issue is named, state the applicable rule that will be used to resolve the issue; then engage in discussion and analysis to reach a conclusion before moving to the next issue or sub-issue.

{Where this tip fits in the grand schema: Click here.} (djt)

Essay Exam Answering Tip #81411 - What professors look for when they grade essay exam answers.

In order to hit the target, you must have a clear view of the bulls-eye.  When you’re writing a law school essay-exam answer, you need to know exactly what your professor is hoping to find when he or she reads that answer.  It's true that some professors are looking for items, information, or methods of analysis that other professors don’t give a hoot about – there are differences in grading.  You ought to be able to pick up on these differences during class, during conferences with your professors, and by reviewing prior exam questions and (perhaps) prior graded answers.

Writing law school exam answers is different than almost any other writing you’ve done.  One of the most important differences is that – due in part to time constraints – you ought to focus on limiting each essay to point-scoring text. While wit, historical perspective, moral theorizing, and other aspects of what we consider to be “good writing” are definitely important to include in many genres – often even in legal writing – these generally lie somewhere between unimportant and deleterious when considering how to score the most points in essay exam answers.

Even though professors have their own preferences, when grading exams nearly all law professors award points for these characteristics:

• Lawyerly skill in extricating the salient facts from inert, non-determinative facts presented in the narrative.
• Capability to identify and specify the legal issues these key facts raise.
• Ability to recall and accurately set out the applicable law or principle which leads to the resolution of the conflict.
• Logical, organized interweaving of the facts with the elements of the law in a compelling analytical presentation.
• Recognition of the driving policies and purposes of the law in question, and the ability to express how these policies and purposes support the resolution proposed by the answer. (Often you will find that there’s not much need for policy discussion.)
• Proficiency in clear, concise, organized legal writing.

These criteria coincide with the several points stressed by Professor John Delaney, in his classic How to do Your Best on Law School Exams, and they continue to be the most important targets for high-scoring exam answers. 

{Where this tip fits in the grand schema: Click here.} (djt)

Recap of the NECASP Conference at UNH

Congratulations to Sunny Mulligan and Alice Briggs for hosting the Second Annual New England Consortium of Academic Support Professionals (NECASP) at University of New Hampshire! 

The December 6th conference drew participants from 12 states and the District of Columbia.  You know just from that widespread geography that the day provided much needed information on multiple-choice and essay test construction and exam-taking techniques.

After opening remarks by Dean John Hutson welcoming us, the focus turned in the morning to multiple-choice questions.  The morning panel included Susan Case (National Conference of Bar Examiners), Janet Fisher (Suffolk Law School), and Richard Litvin (formerly Quinnipiac and now working privately with bar takers).

Susan Case provided very useful information on methods for assessment (types, skills assessed, and limitations of each format), construction of multiple-choice questions (components, issues of content, editing the scenario, lead-in, and options), and general guidelines for writing questions.   

Janet Fisher provided some interesting insights on how undergraduate assumptions about multiple-choice translate poorly to law school: familiarity with the material is enough and figuring it out during the exam will work.  Both assumptions miss the need to master the rules of law.  Janet suggested that an "item writing" party might encourage professors to garner feedback from colleagues and develop a pool of questions for professors in a subject area to use.

Richard Litvin focused on the bar exam multiple-choice questions, using questions from earlier exams that now vary from the current MBE format.  Although the older questions are not well-written in comparison to the newer MBE format, Richard finds them to be good tools to teach the law to bar takers. 

After lunch, the panel members turned to essay question writing and teaching students to answer them.  The afternoon panel again included Susan Case and Richard Litvin.  They were joined by Alfred Zappala (teaching bar preparation for Northeastern and Suffolk).

Alfred Zappala focused on the method he teaches to Massachusetts bar takers (Read 4 minutes, Organize 8 minutes, Write 24 minutes; four-page essay answers) which he suggested could be modified for other states' essay exam time limits.  He stressed the need for students to write out a large number of essays to learn the techniques that are necessary for success.  He commented that students should think of it like baking a cake: the bar course can give them the recipe, but they have to bake the cake. 

Susan Case then talked about the skills tested by essay questions, drafting and editing of content, and grading issues.  Again her material was very instructive for professors who wish to improve their test construction. 

Richard Litvin focused on bar exam essay questions with an emphasis that students have to achieve mastery of at least 75% of the material and familiarity with another 20% to succeed.  He stressed that attention has to be given by faculty to what the breakdown of questions and topics is on the bar so that they know what areas are currently being tested.  He recommended that students strive for long-term memory and use a Topic-Rule-Application-Conclusion format (rather than some other formats that are out there).

In the end, one mantra was repeated both by panelists and participants when it comes to the bar exam essays: Know Your Own State's Bar/Bar Examiners.  The differences from just the variety of states represented at the conference clearly showed that one state's exam might vary substantially from another state's exam.

Another mantra was repeated as to faculty test construction: Know Your Own Faculty.  Each law school faculty will vary in its willingness to seek and take advice on test construction, grading, and other issues. 

The day was worthwhile whether participants specifically wanted to know about law school testing or bar exam testing.  (Amy Jarmon)

   

Take home exams, open book exams, and other variations

Most of us remember the days when law school exams came in one shape and size: 100% of the grade; closed book, one day/time in one classroom, handwritten in blue books, and all essay. 

Today, however, the shapes and sizes vary greatly. 

• More exams are variations on open book: code/rule book only; own outline only; one sheet of paper; everything but a live human being. 
• More exams are take home or variably scheduled: take home with several days to complete; take home with a set number of hours to complete; option to take the exam for a set number of hours on one of several days; self-scheduled exams; time and location accommodations for disabled students.  
• Formats run the gamut: multiple choice; essay; short answer; true-false; court or practice documents; some mixture of these.  
• More professors now have a percentage of the grade for participation, presentations, papers, exercises, or other assignments. 
• And the blue book has been supplanted in part or entirely by the use of computers.

Are the changes in the law school exam positive or negative?  It depends.

Open book:  Proponents comment that open book exams are more realistic to what practice will be like.  Attorneys will have their sources or notes in front of them as they write legal memoranda, consider strategies for client cases, and address juries or judges.  Many argue that it is sensible for there to be code or rule books available rather than students having to memorize lengthy sections.  Some also point to the fact that a lawyer being able to find the law is far more important than a spouting rule robot. 

On the negative side, however, some express concern that open book exams encourage students to gloss the law and not really know it at any depth.  If only working memory is used instead of long-term memory, they will have no recollection of the basic law later when they get to bar review and practice.  Others are concerned that open book exams do not really assess learning unless the professor has carefully designed application questions rather than pure information questions. 

Open book exams cause some traps for students, especially unsuspecting 1L's.  Students recount stories of not studying as thoroughly because they could "look it up during the exam" and then finding there was not enough time to do so.  They also talk about time management problems because they felt compelled to look up everything to be certain even though they knew the answers.  Other students remark on their wasting inordinate amounts of time before the exam tabbing books for what turned out to be non-essentials.  

Variable schedules:  Proponents argue that more flexible scheduling can allow the professor to test students in differing formats than the one place/time exam with a strict time limit.  For example, the professor might ask for a memo, brief, court document, or client letter as the answer format.  In addition, proponents argue that answers are better analyzed, more organized, and better written when multiple-day take-home scheduling is used.  

Certainly allowing disabled students to take exams with extra time as an accommodation is an important improvement in exam procedures - as is letting them have quiet rooms, readers, or scribes.  Logistics need to be carefully worked out, of course. 

Letting students choose which of several designated days to take an exam at the law school with a set time limit on the day also seems sensible.  By picking up the exam and returning it to a proctor under time-stamped or clocked conditions allows for fairness with flexibility.  This improvement takes some of the difficulty out of exam schedules for the upper-division student who would have more exams in a series of days than a classmate.  It lets a student decide when she feels ready to take the exam. 

The time-limited take-home exam (for example, complete within 4 hours after the exam is opened) is manageable.  The greatest risk here is that the student will be tempted to break the honor code and actually spend longer than allowed. 

Personally, I worry about take-home exams that run over multiple days.  First, they often do not consider the accommodations for disabled students; a take home exam that is given for 4 days means that the student with double time has to plan 8 days to work on it.  Second, professors often give take-home exams that stretch far beyond the designated exam day for the course, thus encroaching on the intended study days in the schedule for the next exam (especially where 1L students are concerned).  Third, students are faced with the reality that many other students will use the maximum possible hours to take the exam and they fear they must do the same to compete.  Fourth, professors who tell students that they only need 4 hours to take the exam over the 4 days are usually woefully incorrect about how long the exam will take the average student.  If the professor truly thinks it is a 4-hour exam then she should limit the time for taking it or give it at the regularly scheduled time.

Self-scheduled exams have an appeal for students so that they be autonomous in deciding what day and time to take each exam for each course.  I have experience with this system at a small liberal arts college.  However, it can be a logistical nightmare as the student body and course enrollments increase.  And it depends on a strong honor code system to work.

Format changes:  No doubt some flexibility away from all fact-pattern essay exams is a plus because different course material may lend itself to different question formats.  When I give exams, I mix formats for different kinds of assessment. 

In jurisdictions where the MPRE will be required, professional responsibility multiple-choice questions may make perfect sense.  Some faculty will argue that multiple-choice should be used for MBE subjects as well.  But what about the state bar essay questions?  What about the performance exams given in various states?  Do they require us to rethink our testing formats as well?  Where is the balance between "testing to the bar exam" and assessment for law students?

I think we need to be careful to make the decisions on sound assessment reasons rather than devotion to the bar, hunches, or our convenience for grading.  Here are some thoughts:

• Writing good multiple-choice questions is not easy.  Training may be necessary for us to avoid poorly crafted questions.  After all, most faculty do not begin their careers with test construction expertise. 
• The styles of multiple-choice questions used by faculty are all over the map.  They often look nothing like MBE or MPRE questions.  If the justification is to prepare students for these bar exams, then the questions need to mirror the bar formats.  Otherwise, the questions should be tailored to the course material and assessment issues.   
• Professors who have honed their multiple-choice questions over several years tend to guard their question pools (once found to be valid and reliable) so they do not need to write new questions.  However, because each professor tends to write her own style of questions, students are blindsided if the professor does not release at least some practice questions for students beforehand.
• Without someone in academic affairs monitoring the formats used by faculty, it is all too possible that a section of the 1L class may end up with no essay exams at all.  And, I have talked to 2L and 3L students who have found the same because of the mix of courses in a semester.  That unforeseen result suggests that we believe that there was no merit in the fact-pattern essay.  Do we really want our students to have limited essay experience?
• Word limits and page limits can arguably assist students in more concise exam answers.  However, we need to be careful that these limits represent what a student can write concisely as opposed to what a professor who has expertise can write concisely.  And we want to make sure that these limits are appropriate to the assessment goals for our questions and not just convenient for grading.

I am lucky because my elective courses have relatively low enrollment caps.  I still give comprehensive essay and short-answer exams that require my students to write a great deal.  Because I do two reads of each exam (one for initial scoring and one for consistency with scoring on all papers), I create some burdens for myself.  I understand the temptation that would exist to change the format if I had large classes of students.  However, I hope if that day comes that I will weigh new assessment formats carefully and not lean toward my own needs for simplicity or convenience. 

Multiple grades for a course:  Many students tell me that they appreciate classes that do not have 100% of their grade dependent on the final exam.  However, they often tell me that it frustrates them when professors give them details for those extra projects or presentations near the end of the semester (usually referring to the last 2-3 weeks).  In some cases, professors cannot give out information earlier because the project cannot be completed before certain material is covered in class or themes emerge.  In other cases, however, it would certainly help well-organized students to be able to plan their work over multiple weeks when they have several courses with projects.

Participation grades trouble some students because they are not "talkers."  In my seminars, I designate part of the grade for participation (usually no more than 20%) because I want a seminar to have discussion and not turn into a lecture course.  In addition to the usual class discussion, I provide students with opportunities to discuss websites for current items in the news so they can plan their comments ahead of time.  Another option could be electronic discussion boards.  Throughout the semester, I caution students to remember their participation points and not to "forfeit" them.

Computers and blue books:  A few years ago, students would sometimes express concerns to me that their typing skills were not fast and accurate enough to use the computer for an exam.  I do not hear that concern very often any more.  Now I find that students admit that they do not have the cursive penmanship background to handwrite an exam.  As professors, we tend to take that skill for granted.  There have always been law students with legibility problems, but today it is far more a problem of actually not having used the longhand method since they were children.  Some tell me they were never taught cursive in their entire lives and can only print!  (There has been an interesting discussion on the legal writing listserv recently about this very issue.)

Typed exams certainly are faster to read.  Having had several bosses with terrible handwriting over the years, I am never phased by student blue books because I can decipher almost anything.  As a result, I do not think that my own students missed getting points because of handwriting.  However, I can see that it could be an issue.  And, if they are printing rather than using longhand on an exam, it is likely to be slower than typing.

There seem to always be a few students whose computers crash and who end up having to complete the exam by hand.  The stress and anxiety are usually huge.  And for most of them, they have no idea what they were typing before the mishap!  Those who use scrap paper to organize answers before typing are less fazed by these problems because they can quickly get re-oriented.        

The variations used today really do result in the "it depends" response.  Assessment comes with a myriad of decisions to make.  The quest for balance needs to be carefully thought through by each professor for each course.  (Amy Jarmon)     

   

Plug for faculty to use ASP for support during exam drafting

I would like to thank Ruthann Robson, Co-Editor of the Constitutional Law Prof Blog, for alerting us to her April 22, 2010 post on that blog.  Ruthann is Professor of Law and University Distinguished Professor at CUNY: Ruthann Robson Profile.   

Her post lists numerous hints for professors as they draft their exams.  Number 12 in the list mentions that faculty may wish to ask ASP staff for support when working on end-of-the-semester exams.  The post also gives a nice compliment to David Nadvorney and his ASP colleagues at CUNY.  The full post can be read here: Constitutional Law Exam Drafting.  (Amy Jarmon)    

I Feel Your Pain-Well, Now I Do....

My son's goldfish, Max, died yesterday.  Ben never seemed all that interested in him after the first few days and we were happy that we got our 13 cents worth of finny fun from him in that time alone.  Max was with us for about 6 weeks, but yesterday he was floating sideways in his little tank and was disposed of with all the pomp and flushing such an event requires.  But we didn't tell Ben last night and we didn't really think he would notice.  We were wrong.  This morning he came running into our room, "where's Max?"  Well, um, we stuttered, Max was sick and he couldn't swim anymore, but we can go to the pet store and get a new Max over the weekend.  Well, that was the wrong answer.  "I want the real Max back.  I don't want another Max; if I get another fish, he will have to have a new name because he will not be the real Max."  Then the tears--big, tragic, three-year-old tears--he was really and truly heartbroken.  We were surprised and a little ashamed that we assumed, wrongly, it wouldn't have much of an impact on him.

The first years here got (most of) their grades on Friday.  And I have seen my share of big, tragic, 22-25 year-old tears.  I was a little baffled when I realized that some of these students were crying about B's.  We have a B- grading curve here, so B's are actually considered above the pack-certainly not the kind of grades that will get you into academic hot water later on. 

I was as tempted to be dismissive of the students' angst over these grades as I was over the death of the 13 cent fish, but I realized that I had to take a step back and really listen to these students before I decided that they were being overly histrionic.  Some of these students have always been A students in prior educational settings; some have scholarships that are contingent on a certain GPA.  Either way, they have always defined themselves as smart, "good student" types.  To these students, a B can really shake the foundation of their self-definition--their very being.

We in Academic Support know that somewhere in the first year of law school, a student can get separated from the person they were--and the goals that they had--before they came to law school.  Grades that are unexpectedly bad (even if not objectively bad) can sometimes be the nail in the coffin of a student's prior persona.  This is scary stuff, especially when students are looking at two and half more years of school.

I find that reminding students to keep the grades in perspective helps.  Students need to know that while the grades are important (I can't tell them that the grades are not important, would you trust me if I did?); they are only important in their context and no other.  Your law school grades are not indicative of your worth as: a person, a son, a daughter, a husband, a wife, a parent or even a fish owner.  You will most likely go on, not only to finish law school successfully, but to be a good lawyer.  Your grades are only indicative of how well you were able to communicate your skills in a particular area of law, to one professor, in a two to three hour period, on one day.

This is not to say that I don't offer advice and guidance on how to do it better next time-mere comfort without future planning is an incomplete response to these issues.  I do a post-mortem with students on the exams that includes asking:  how did you study?  with whom? how did you feel the morning (or evening) of the exam?  how did you spend your time during the exam?  did you run out of time? and most importantly, have you spoken with your professor?  I offer appointments throughout the semester at regular intervals and exercises that can be done now to help get ready for spring exams.  And above all, I offer tissues and chocolate. 

In the end, my response needs to be the same for any student who is disappointed or even shocked by their midterm grades.  Even if those grades will not effect their academic standing down the road, a student's human standing is just as important. 

As for Max, may he float in peace. (ezs)

Writing Multiple-Choice Questions

Did you miss the e-mail on the ASP Listserv sent by Barbara McFarland regarding the NCBE handout on drafting rules for multiple-choice questions from Dr. Susan Case, Director of Testing for NCBE? 

Several common techniques used by law professors in composing multiple-choice questions are specifically mentioned in the drafting rules.  Dr. Case is currently working on an article for the Journal of Legal Education on this same topic.  I know that all of us will be interested in reading the article when it is published. 

You can read the PDF file for the Dr. Case's handout here: Download multiple_choice_drafting_guidelines_by_s_2. Case of NCBE.pdf .  (Amy Jarmon) 

What's luck go to do, got to do with it?

With apologies to Tina Turner and anyone who does not appreciate the beauty of ‘80’s music. But really, what does luck have to do with exam taking? When I send my students off to take their exams, I feel like they want me to say good luck (or break a leg for the undergrad theater majors). But I don’t want to. Why?  Because after all the time and effort they have put into studying, I am not sure luck has much to do with it and I don’t want students to feel that their performance on the exams is out of their control.

I have a student who has been coming to see me everyday since classes have ended; she says that I am her study group. She has worked exceptionally hard at answering old exam questions under test conditions and we go over them everyday. We have discussed reading questions carefully, outlining before answering, issue spotting, completeness of answers and organization. We have not discussed rabbit’s feet, numerology, astrology or the idea of setting up an alter to the gods of Constitutional Law (whoever they may or may not be) in the exam room (not to mention that proctors tend to frown upon lit candles during a paper exam). Today is her Con. Law exam and as she left my office to do that last minute read through of her outline, she said, “wish me luck.” And I said no; she looked crestfallen, but then I explained my dilemma.

What is the right thing to say to my students before sending them to the lions, I mean into exams? “Go get ‘em tiger,” seems glib and condescending. “Show ‘em what you got,” is also glib with hints of stripper inappropriateness; and “Hrrr,” the pirate warrior cry seems just odd.

This is not to say that there cannot be any luck involved. I have been lucky every now and then on exams: like the time I had a friend contemplating a surrogate parenting arrangement in Massachusetts just prior to the bar. I did a bunch of research for her and lo and behold it was a question on the bar a few weeks later. It happens, but you cannot rely on that luck when you can’t possibly know it will happen until you are actually taking the exam. You need to be prepared for the questions you don’t happen to know the answers to already and that involves knowing the law and answering the questions so that the professor agrees that you do.

So, what I said to my student today was, “go show the professor what you know and organize it so he/she knows that you know it well.” And then I added, “I would say good luck, but you don’t need it because you have worked hard to know the material and you know how to take this exam.” While this is bit longer winded than a simple, “good luck,” I think it was a better way to prepare this student for the exam-by putting the power to ace it in her hands and not someone else’s. (ezs)

Remembering ...

I remember Januaries.

They begin with the AALS Conference where most of us show up to share ideas, eat too many cookies, scurry through the Thompson-West exhibit getting our cards initialed so we get the free gift and qualify for the big drawing, and ask, “Where is [fill in blank] ... did she retire already?”  Then those of us who can show up at the pre-dawn (well, it always seems like that anyway) Academic Support Section overpriced breakfast meeting near the end of the week to ask each other, “Who’s hosting the summer meeting(s) this year?”

The following Monday we all return to our offices to welcome the students back for the spring semester.  (Students in the northeast, as I vaguely recall, often return to snow.)  All of them are asking the same question: “When do we get our grades?”  The wunnelles are asking, “If my grades are horrible, can I get a refund on my spring semester books and get my tuition back?” Some have made New Year’s resolutions to study more efficiently, or visit the pub less, etc., etc. 

The long wait for grades ensues.  As they trickle in, so do the students – to make appointments with either the Dean of Students or the Academic Support Director (or both).  Some drop by to offer gratitude, but most arrive with an array of emotions ranging from disappointment to shock – a few with anger.  (I remember one student who arrived with her mother.  They both explained that the student had graduated at the top of her college class, had an IQ in the genius range, and – most importantly – had several lawyers in her family (not Mom).  The visit was to inform me that there’s something seriously wrong with a school that can’t figure out that she should be at the top of her class – her highest grade was a C.  She withdrew.) 

But this time of the year is when Academic Support professionals can do some of their most effective work – many students are now willing to admit that what you told them at Orientation really did apply to them.

If you’re relatively new to Academic Support and fortunate enough to be able to attend the AALS Conference, that’s a question to be asking your colleagues –“How can I be most effective in January for the students who have disappointing grades?”  Search out the “veterans” and find out their (open) secrets.  As weird as January is around a law school, it can be a very productive time for the Academic Support staff!

Me? No AALS this year. I wish I could! But the distance between New York and Montevideo is about 5,500 miles, the air fare is prohibitive, and I just compared the weather report for January in New York to January on Pocitos Beach in Montevideo.  (Remember, it’s summer in South America in December.)

Also, the academic support I’m providing to students of Concord Law School via cyberspace is of a different variety – for me it’s limited to extensive (written) exam-answering improvement advice, including (unlike yesteryear in law schools with buildings) explanations of the underlying law when appropriate.  I spend fifteen to twenty hours each week at this pursuit, reviewing essay answers that range from beginning students’ awkward attempts, to crystal clear, concise, excellent, lawyerlike answers.  My comments are composed of footnotes to most every issue discussed by the student, followed by “overall” suggestions on how to improve.  All of my work is reviewed by the professor teaching the class (and modified if necessary) before being sent to the students.

Of course this is time consuming.  After reviewing many hundreds of exam questions (Torts, Contracts, Criminal Law, Property, Evidence), I still spend at least thirty minutes (usually longer) on each one.  That’s what makes this type of feedback both (a) very valuable for the students, but (b) virtually impossible for a one-person academic support office at the typical law school-within-walls to handle.  But I’ve got to say – this is something I’ve always believed students need: practice, practice, practice … with substantial feedback consisting primarily of encouraging positive improvement advice.

So even though I don’t get to see the smiling faces of the successful students, I suppose that’s balanced somewhat by the time not spent with … well, you know. 

I have to admit that “going to work” (in my living room) in attire ranging from pajamas to blue jeans is a plus, too.

Enjoy AALS – I will truly miss a week with you.  (djt)

Sharing time & spotllight time again!

First things second.

Spotlight time.  Presenting ... ALEX RUSKELL.  Alex took over leadership of the Academic Success effort at Roger Williams University School of law this academic year.  From all reports, he's doing a super job!

Before this year, Alex served as the Director of the Academic Support Program at Southern New England School of Law, and before that, Associate Director of the Legal Writing Center at the University of Iowa College of Law. In his earlier life, he litigated in Boston, focusing on securities and corporate non-competition agreements. He has also served as General Counsel for a mid-size publishing company, Associate for a large oil and gas firm, and as an Assistant in the Texas Attorney General’s Office of Environmental Crimes.

His academic background is varied — and thus well-suited to academic support!  He holds an M.F.A. in Fiction from the University of Iowa Writers’ Workshop, an A.L.M. in English from Harvard University, a J.D. from the University of Texas at Austin, and a B.A. in English from Washington and Lee University.

Before practicing law, he taught in a Russian orphanage and counted otters for the Idaho Department of Fish and Game. Both of these resulted in several articles, printed in The Tampa Tribune and many other publications.

Alex frequently presents at writing conferences and symposiums across the country, most recently at the 2006 AWP Conference in Austin, Texas, where he sat on a panel questioning the continuing vitality of the American novel.

Now, how does this tie in with "sharing"?  Alex gave me permission to post his latest exam-answering advice to the RWU SOL students.  It's terrific.  Here goes . . .

The Brain Dump — a bad strategy for answering an exam question where the student writes down everything he or she knows about a particular subject instead of actually answering the question asked.

EXAMPLE:  My History of Music Exam asked, "On a scale of 1 to 10, how funky is Prince?  Please explain your answer."  In response, I wrote down everything I knew about music, starting with atonality and Gregorian chants, and then all the way up to whether Axl Rose will ever release Chinese Democracy. It took me three hours to write, and I never got to the other questions.  The correct answer was 11, because "His name is Prince, and he is funky.  When it comes to funk, he is a junkie."  I got a zero for my answer.  Then I cried a lot.

Reasons for the Brain Dump:

1.  Fear and panic

2.  Not understanding the question

3.  Being angry the exam didn't ask you something you spent 4 hours figuring out (e.g., "I will talk about unjust enrichment!")

Why the Brain Dump is a Bad Idea:

1.  Professors like grading exams about as much as you like taking them.

2.  You're under time pressure.

3.  It shows you don't understand the question.

4.  Hand cramps.

5.  Exams, on some level, try to replicate what you will be doing as an attorney.  Basically, if a client came in and asked you how to defend against a battery charge, would you tell him or her absolutely everything you know about intentional torts?  Do you think you're client would enjoy this?  Would you? (...from Alex Ruskell via djt)

Left Brain / Right Brain

{Click on image to view.)

All of us who are blessed with sight have some degree of visualization capability.  Often, accessing that right-brain function can bring clarity to a text-based problem that borders on incomprehensible during the stress of an examination.

Do you tell your students to draw diagrams during the pre-writing stage of exam-answering?  Consider showing them how.  Of course, the illustration above (based on a standard Blueacre & Whiteacre real property problem) has more actual words in it than the diagram the student would make in the rush of an exam session – these words are for illustrative purposes here.  If you demonstrate how to convert a Property exam problem into a sensible (literally) representation, be sure to stress that abbreviation is essential! (djt)

Recycling

In all the time I've written for this blog, I don't think I've mentioned that my husband is an environmental lawyer.  His main area of work is clean air and climate change.  He works for an environmental non-profit (and for those of you doing the math, that does make us the lowest paid attorney couple in all of Massachusetts) where he spends a lot of time discussing global warming (and no, my nickname is not Tipper). 

Anyway, as a result of being married to "Captain Environment" (which is what I call him when my pleas for a minivan are rejected), we are big recyclers.  We are the people who drain the juice boxes and put them in our recycling bin.  I've tried looking for the recycling symbol on the little straws too, but so far no luck.  Anyway, to do my part in reducing global warming, I am recycling an older blog entry (or as the Car Talk guys put it, "an encore presentation") on exam writing.  Why?  Not because my brain is empty (although my "fill brain" light did go on recently), but rather because I find that I am printing this entry out for students at least twice a day.

So here it is, just in time for spring exams:

Exam Writing is Different:

Exam writing is different from first year legal writing because, while the usual 1L legal writing class teaches writing as a craft, exam writing is a skill. What does this mean?  Legal writing for class is something that students have more time to work on; in addition, almost the entire exercise is about students' organizing their thoughts and choosing their words carefully. Exam writing, on the other hand, is a formulaic way for students to show their professors that they not only understand the material but can also use it.

If legal writing is a painting, exam writing is a photograph.  Exam writing must be done quickly and accurately; and while it must also be done with some creativity and is worth the same 1000 words as a painting, it has to be more stark and realistic. Some of the best 1L legal writers will not do well on their exams because they cannot leave an answer in its raw form. Rather, they need to hone their thoughts and organization until the answer is perfect; and frankly, they do not have the time to do it, so their grades do not reflect their knowledge of the subject or their writing ability.

So how do we prepare students to let the raw answer be and move on to the next question? I do the math with students, trying to make the point that one fabulous answer on a four part exam is still unsatisfactory, while four reasonably complete and cogent (but imperfect) answers will suffice. I teach them the exam mantra:  "the issue is...the rule is....here we have....therefore..., next."    I think I hear students muttering this during exam week, or I'd like to think that's what they are saying as they pass me in the hall....

I also advise taking old exams under exam conditions (timed without notes and books) so students can figure out their ideal ratio of time to organize vs. time to write (usually about 20%/80%). I talk about organizing answers by party (good for torts, not civil procedure) or by transaction (excellent for contracts, but not for torts), etc. I give the old tennis analogy (you still need to follow through after you’ve hit the ball) as a way of reminding students to include counterarguments and defenses. I, personally, had to write the word DEFENSES at the top of every exam in law school lest I forget to include them.

After working in academic support for a while, I have concluded that a student’s performance in the first year legal writing class may not be an indicator of how well that student will perform on exams. Oddly, only about half of the students I see find this comforting. (ezs)

Multiple Choice and Grocery Shopping

At this time of year I am inundated with students who are stressed about upcoming exams and in particular the multiple choice format that many of these exams will take. I give them all my standard advice: practice, practice, practice. Why? Well, certainly not because when they don’t get this as the punch line to the joke, “how do you get to Carnegie Hall?” it makes me feel really ancient, but rather because it (hopefully) works.

Practicing multiple choice questions from a variety of sources gives students more fluency in the language of the topic they are being tested on. I analogize (and I analogize a lot, it is a lot like, whoops…) it to moving to a new city and doing the crossword puzzle in the local newspaper. When I lived in New York and did the puzzle (on Mondays and Tuesdays only), and the clue was, “off-white,” the answer was usually “ecru.” Here in Boston, (where I can sometimes last until Thursday) the answer is, “beige.” How did I realize this? The same way you get the Wang Center.

Also, sometimes (and I know this would a very rare circumstance) doctrinal professors actually get their multiple choice questions from other sources. This means that the language used in the questions may differ somewhat from the language used in class. This really can throw students off (especially ESL students), because they are not accustomed to seeing the issue raised in this slightly different terminology. Practicing questions that come from many different sources: study aids, on-line lessons or bar review books, can help a student see the “disguised” issues more frequently.

Another strategy I offer students for dealing with multiple choice questions is to read the question with the answers covered. Then, they should come up with an answer in their heads, match it to one of the options and move on (yes, you do need to uncover the answers at some point). I think this is sound advice based on my experience as the sole food shopper in my household. (I think maybe my experience in Academic Support has played a small role, but I am not sure.) Here’s why: when I go shopping without a list, I find that I end up with many items I don’t need, fail to get some items I do need and invariably spend more time and money than I intended.

Multiple choice answers use the same marketing approach as the supermarket: make it look good, and they will buy. Almost every answer on your exam will look plausible if not downright compelling (like that $1.00 giant tub of Fluff sitting in my cabinet). That is the nature of the beast. If you go shopping for an answer, chances are you will be pulled in by the display. If you have a list (or the answer in your head) prior to your shopping trip, you are more likely to make the right choices.

And finally, like grocery shopping, you should never go to your exams hungry. (ezs)