Better Case Briefing
Here are some tips for avoiding common mistakes in briefing your cases:
- Think about the pattern of your professor’s typical class. What questions does your professor usually ask about the cases? In reading and briefing the cases, use these questions as a guide.
- At the end of reading, spend time analyzing the case as a whole before you write your brief. Why did you ultimately need to read the case? What did it teach you about the major topic you are discussing in class?
- Most professors use hypotheticals with changed facts to get students to think about applying the law in situations that are different from the case. If your professor does so, then spend some time thinking about how variations of the facts would change the outcome. Include your thoughts at the end of your brief.
- Include in your brief the essentials, not everything in the case.
- Synthesize cases on the same sub-topic after you read them. Why did you have to read each case? How are the cases in the series similar or different? How does each case fit into the sub-topic and larger topic? Include the synthesis insights in your brief.
- Use bullet points, numbered lists, abbreviations, and symbols to save time in writing your briefs. Use phrases instead of sentences when possible. Avoid including long quotes from the case in your briefs.
- Try to put the brief into your own words. Do not look at the language of the opinion to write your brief if at all possible. If you cannot put the gist of the case into your own words, then you did not understand the case.
- Remember that briefs are usually for your eyes only. Therefore, brief in a method that is most useful to you. You may need to vary your briefing for different professors’ classes.
- Recognize that your professor may have a different slant on a case than the casebook editor, a study aid, or editorial notes from a case reporter. If you have a pattern of missing your professor’s perspective, ask your professor for some guidance.
- Use canned briefs only to check your own briefs. You need to learn the legal analysis skills yourself rather than depend on a canned brief. Canned briefs can be wrong, may not cover all of the points in the case, or may miss your professor’s view of the case.
Anxiety over being called on in class
I vividly remember the first time I was called on in law school. It was Contracts class. I do not remember anything about it other than which class it was, and the fact that my anxiety was so sky-rocket high, that it seemed like I was called on for the entire class. The reality? He probably asked me two questions at the most.
But the anxiety of being called on in class and the stress over “sounding stupid” in class can take on a life of its own and literally take over your purpose in preparing for class. Now that almost all of you have been called on in at least one of your classes, remember this: you survived. Let go of the anxiety about being called on in class. Replace as your purpose for preparing for class learning the meaning of the subject matter.
Here are some tips to help you become more confident in class:
- After reading and briefing (or taking notes if material other than cases is assigned), take a few minutes to synthesize your reading. Then out loud explain the reading to an empty chair, your pet, or an understanding friend. Think of the professor’s usual questions and answer them out loud. You can practice your answers and gain confidence by this recitation step.
- When the professor asks a question in class, answer silently in your head. Then compare your answer to what another student says. Listen to the professor’s feedback. You will probably find that you would have answered the question well. Again, your self-confidence should get a boost from this exercise.
- Gain additional practice voicing your opinions, questions, and answers by talking in your study group more than usual, talking with a classmate about the material, participating in student organization meetings, or asking the professor questions in office hours. The more you talk, the less apprehensive you will be.
Taking Stock and Outlining
By now, many of you attended the session on outlining. But just as reminder, here are some tips for taking stock and outlining.
At this point, you may find yourself hurtling through the semester without any conscious thought about what you should be doing next in your studies. Many of you may be merely reading for class and doing no additional thinking about the law. Most of you probably have not looked at your class notes since taking them. Some of you may have started to outline your classes; others may not have begun.
It is critical that you take stock now. Here are some tips for students who have not yet focused beyond survival:
The point of outlining is not to have an outline. It is to learn the vast amount of material. You will not have time on your exams to read through your outline. If you find yourself reading through an outline during an exam, you likely are missing out on opportunities to analyze the exam problem.
If the entire outline for a course seems too difficult of a task, then focus on the first sub-topic. Move on to the next sub-topic and so forth. The trick is to BEGIN.
If your professor does not provide a syllabus that is structured by topics and sub-topics, the general table of contents of the casebook can provide the structure. Do not structure the outline by case briefs.
If at all possible, condense material BEFORE it goes into your outline. Wholesale inclusion of every brief and every word in class results in overwhelming detail and obscuring the bigger picture of the course.
If an outline is constructed properly, it will include all of the essential information from your briefs, casebook, and class notes. In short, you should not have to go back to those materials again. The outline is truly the master document for exam study.
The outline should be formatted to give you a 360-degree view of the course: what is the big picture of the course; what are the main concepts and interrelationships among concepts as well as any relevant policy; what are the steps/rules/tests/questions to ask for analysis; and what are the details/fact examples/case names to flesh out the outline.
The outline is building a toolkit to solve new legal scenarios that will show up on the exam. Include the essential tools (each course may have different types of tools): rules, exceptions to rules, variations on rules, definitions, steps of analysis, questions to ask, bright line tests, policy arguments, etc.
After you have intensely reviewed a major topic in the outline and you have done practice questions, condense that portion of the outline by at least half. Start a second document that is the condensed outline so that the longer version is never lost.
Approximately one - two weeks before the exam, condense the entire outline to 5-10 pages of essentials for the material so far. The essentials will bring back the more detailed information if the material has been studied properly. Use the condensed outline to recall the information.
Condense the shorter outline again to the front and back of a sheet of paper. This condensed version can be memorized as a checklist for a closed-book exam. When the proctor in the exam tells you to begin, quickly write your checklist on scrap paper and use it as a guide throughout the exam.
The outline should flip your thinking from individual cases and minutia to synthesis of the material and the solving of new legal scenarios with the law that is learned through the cases. Except for major cases, cases should become illustrations rather than the focus of the outline.
Where appropriate, condense material by using graphics. For visual learners, a picture is truly worth a thousand words.
Avoid the shortcut of using another student’s outline or a commercial outline instead of making your own. You gain deeper understanding and greater retention by processing the material yourself. Other outlines are useful to suggest a format or to check completeness after you have finished your outline - but match your outline to your professor’s course.
Have a goal of outlining new material every week once your outlines are current. You will not have to re-learn material to outline if you do it regularly and you can begin your exam review earlier.
The smartest thing I did while preparing for my 1L first-semester exams was ______
Courtesy of the Wall Street Journal:
After posting the thoughts on what makes a good exam from law professors around the country, the Wall Street Journal thought it prudent to post a sampling of students around the country answering the question: The smartest thing I did while preparing for my 1L first-semester exams was ______.
Of course, some of these responses might strike you as obvious, others as insightful, others a combination of both. The Wall Street Journal allowed folks to give names or submit anonymously if they so chose.
In no particular order, here are a cross-section of responses:
Rogan Nunn, 3L at UVA and an editor on the Virginia Law Review: By far the most useful thing I did when preparing for 1L exams was to round up a few people from the class and take old exams. Don’t just go through them, take them — pretend it’s the real thing, time limits and all. Then discuss answers. You’d be amazed how much you miss the first time. It can be time-consuming, but all the outlining in the world won’t save you if you can’t spot the issues on the fly.
Anonymous 3L at Vanderbilt and a member of the Vanderbilt Law Review: For me, the smartest thing I did while studying for exams 1L year was to go through each entire course in successively shorter periods of time… . By successively shortening the amount of time spent thinking through the entire course, the goal was to be able to go quickly through and understand all the material in a couple of minutes — to see both the forest and the trees quickly for the entire course.
Max Shifrin, 3L at Brooklyn and a member of Brooklyn Law Review: The most crucial thing to do as a 1L, in my opinion, is start outlining early in the semester and finish [your outlines] early enough to take as many practice exams as possible in real time… . [P]rofessors test the exact same things year in and year out. If you do enough exams, you’ll begin to see a pattern, which will give you a huge advantage on exam day.
Anonymous 2L at Columbia, member of the Columbia Law Review: The first time I saw what my Civil Procedure professor expected us to be able to do in three hours I almost had a nervous breakdown. But by taking practice exams and going over answers in a study group, I was able to get a better sense of the material that is frequently tested … . By test day I wasn’t intimidated anymore and could take comfort knowing there weren’t going to be any surprises.
Anonymous 3L at Vanderbilt, member of the Vanderbilt Law Review: I made sure to get 7-8 hours of sleep every night. The finals period is already an extremely stressful time, and it is most stressful as a 1L. There is no reason to add to this stress by staying up every night until 3 a.m. working; not only does it add to your stress level, it is not as if the extra hours “studying” are actually beneficial, given that your mind can only take so much studying per day before shutting down.
Megan Murray, 2L at Iowa, member of the Iowa Law Review: [I wrote] out all the “rules” by hand. The act of writing slows your brain down enough to absorb the legal rules, and it gives you time to consider their implication. This is an especially helpful technique when legal rules come in the form of multi-part, or divergent tests. When you read these rules in your notes or type them out on your computer, the words come so quickly across the page that you don’t have time to really absorb and understand them. Writing them out gives your mind a chance to catch up with your keystrokes.
Anonymous 3L at Berkeley, editor on the California Law Review: Perhaps the most important (and most difficult) advice is that you need to move on when the exam is over, either to prepping for your next exam, having a beer, or just generally getting on with your life. You might feel tempted to talk to your classmates about the exam, perhaps because you have nothing else to talk about (as your life of late was probably consumed with studying). Avoid this at all costs; at best you get affirmation in your answers (which could still be wrong), but at worst your start worrying that you missed something, which at this point is totally out of your control… . From my own experience and my friends, taking a law school exam can be defeating and leave students with the feeling that their days of studying were not properly translated to the answer they cranked out in three hours. Try your best not to dwell on those feelings.
Are You Afraid of Test Anxiety?
Because anxiety limits working memory, learning how to manage nerves during an exam is key to performing well. Here are some tips courtesy of the New York Times Education Life Supplement , from University of Chicago psychology professor Sian Beilock.
Faced with a high-stakes situation, almost everyone has some physical symptoms of stress: sweaty palms, a racing heartbeat. But people interpret these cues differently, with important consequences for their performance. Some interpret these cues by thinking they are really nervous and that they will fail. Others will interpret the cues by telling themselves that they are really psyched up for the test.
If you fall into the former group, consciously adopt positive self-talk. Remind yourself that damp palms and a pounding heart accompany all kinds of enjoyable experiences: riding a roller coaster, winning a sports match, talking to someone you have a crush on.
A second approach may be easier for you. It involves a simple exercise just before a test. For 10 minutes, write about your feelings regarding the exam to clear your mind of test-related concerns, freeing working memory that can be applied to the exam. In a study published last year in the journal Science, Dr. Beilock and her co-author, Gerardo Ramirez, said the technique worked both in the lab and in classrooms. Used by a group of ninth graders facing a biology final, the expressive writing task effectively eliminated the relationship between test anxiety and poor test performance: even highly anxious students performed just as well as non-anxious classmates. Although the study involved ninth graders, the theory remains the same for any test-taker.
Exams begin very soon. The stress level is increasing by the minute. Many of you are handling the stress well, but some of you have become so stressed that you are not able to get a perspective on how to help yourself.
Students sometimes think their stress comes only from studying itself, but stress can also come from friends, family, and personal responsibilities. By dealing with both the law and non-law stress, you can cope more effectively.
The following list of stress busters should help those of you who are looking for quick and easy solutions for decreasing your stress:
- Tackle your most onerous task for the day as early as possible in your schedule. That way, it won’t “hang over” you all day long and add to your stress.
- Tackle your hardest study tasks when you are most alert. Your brain will absorb material more easily for greater understanding and retention. Consequently, you will feel better about your study session and lower your stress.
- Decide whether you study better for exams by focusing on one subject or several subjects per day. Some students need the variety to stay focused. By working with your own style, you will be less stressed than trying to study the way your friends study.
- Read through your outlines cover to cover each week in addition to any specific topics you are studying. By keeping all of the material fresh, you will feel less anxious about forgetting things.
- Take short breaks (5-10 minutes) every 90 minutes and longer breaks every 4 hours (45 minutes). Your brain will keep filing information while you relax. You will stay more focused by allowing some down time to de-stress.
- Explain to your family and non-law friends why you need to focus on preparing for exams. Schedule some fun activities for after exams so they know you will make it up to them after this last push. If you do not feel guilty about family and friends, you will be less stressed.
- Exercise for 30 minutes at least 2-3 times per week. You may not have time for your usual long workout at the gym. However, taking time to go for a walk or jog will help defuse stress.
- Eat three balanced meals a day. Resorting to junk food deprives your brain of much needed fuel and contributes to stress. Cook large quantities over the weekend or in a crock pot so that you have meals for the week.
- Avoid caffeine overloads, including energy drinks. High doses of caffeine can have serious health side effects: increased blood pressure, panic attacks, increased anxiety, insomnia, and more. Drink ice water instead.
- Avoid sugar highs and crashes from too many candy bars and sodas. Too much sugar will add to irritability, which will cause you to feel stressed.
- Get a minimum of 7 hours of sleep per night. Shirking on sleep means your brain cells do not work as well, your productivity goes down, and your ability to cope with stress decreases.
- Stock up on all of your exam essentials now: pens, pencils, ink cartridges, healthy snacks, healthy beverages, foods with long shelf life. Fewer errands to run as exams approach will lower your stress.
- Complete a “whirling dervish” clean of your apartment now. Then just pick up and spot clean for the remaining weeks. Finding time for major chores every week can be very stressful.
What Makes a Good Law School Exam Answer? Law Profs Weigh In
Courtesy of the Wall Street Journal Law Blog:
We checked in with a handful of professors around the country and asked them to complete the following sentence: “A good law exam answer is _______.”
Of course, none of these responses will, alone, unlock the key to success. And an A exam to one might be a B plus to someone else. But taken collectively, they just might shed some light on what the Great Professoriate is looking for. So here goes.
Heather Gerken, Yale: A good law exam answer is … evaluative. Too often, students walk through each answer as if all arguments are created equal. They don’t tell me which arguments are strong and which are weak, which facts matter and which don’t, which cases provide strong support for their claims and which ones are distinguishable. And they throw everything into the answer rather than think hard about what belongs and what doesn’t. Good lawyers don’t just know the substantive law; they also have good legal judgment. The mistake students make is not to exercise their own legal judgment in answering a question.
Richard Friedman, Michigan: A good law exam answer … answers the question. Banal as that sounds, many students take the question as an excuse to write a canned answer on some area in which they’ve learned the black-letter law. I tell my students, “Imagine you’re riding down an elevator with a boss who knows the law and who has told you the facts but wants your help in advising the client. Don’t repeat the facts to him. Don’t tell him the law. Apply the law to the facts.”
Eric Chiappinelli, Creighton: A good law exam answer … is one that does more than tells me what the law is (more or less well) and applies the law to the facts (more or less well) and then stops. The other 90 anonymous answers will do that. You should do two additional things: Tell me up front what the question really turns on – a choice between two applicable rules? Deciding what a particular word or phrase should mean? Then, at the end, give me your opinion of whether the result is good or fair or just. Cutting to the heart of a question immediately and expressing a value judgment about the result are what separate the A’s from the C’s.
Paul Secunda: Marquette: A good law exam answer … gets to maybe. By that I mean that too many law students have an undergraduate mentality and seek to figure out the one “right” answer for the question. The point of the law school exam is not necessarily to test for right and wrong answers, but to see whether the student is utilizing critical reasoning skills to understand all the possible issues that the question presents. The more you arrive at a “maybe” in your law exam, the more likely you are seeing all the sides of the question in your answer and will then receive the most exam points.”
Adam Winkler, UCLA: A good law exam answer … is rigorous and deep. By rigorous, I mean it references every applicable standard, test, and burden; analyzes every appropriate “branch” in the decision tree; and follows a sound logical structure. By deep, I mean it argues — not just concludes — how the legal rules apply to the facts; analogizes and distinguishes the most relevant cases; and addresses the best counterarguments. There is no “right” answer. It’s all about the argument.
Last-Minute Exam Tips
Read the instructions!
This may seem obvious to you, but I cannot stress it enough. You may get flustered at the start of an exam and failing to read the instructions can be a consequence. But your professor may ask you to answer only one of the three questions in the exam, and if you don’t read the instructions, you’ll answer all three! When the exam starts, take a deep breath, slow yourself down, and read the instructions.
The first part of any law school exam is a math test.
Many of you may think – oh no! I came to law school to avoid doing math! But what I mean is that you must look at the amount of time allotted for the question, then consider the number of problems you must resolve in that time, and finally do the math to determine how much time you have per question and per issue. Do not forget to do the math for multiple choice exams as well. Remember, unless the instructions indicate otherwise, each multiple choice question is worth exactly the same amount as the next multiple choice question. So, spending more time than you have on any one question does not make any sense.
You will be nervous when the examination proctor says “begin,” but don’t just start to write.
Instead, in a closed-book examination, consider writing out your skeletal outline as soon as the exam begins. A skeletal outline is merely an organized list of principles and issues, created by you, which relates to a given area of the law. Think about the outline you have been creating all semester, but now reduce it down to a page or two – this is your skeletal outline. Writing out this list will give a few moments to compose your thoughts before digging into the exam.
Before answering an essay question, first outline and organize your response.
While different students outline differently, students who perform well on law school exams take the time to read through the entire essay question, create a list of the various issues contained therein, and then take a few more minutes to separate out the major issues from the minor ones. This approach will give you a better sense of how much time you have to complete your entire answer.
You cannot perform legal analysis without discussing the facts.
There are few absolutes in law school but including the facts in your answer to essay questions is one of them. Remember, most law school essay questions are written in the form of a lengthy fact pattern or story. The facts within these stories create the issues that you must discuss. Almost every fact in these stories must be reproduced and discussed in your examination answer. While it is true that your professors will know the facts in the problem, they do not know whether you understand which facts are relevant to resolving each issue. Including the facts in your answer does not guarantee success on your law school exams, but excluding the facts guarantees that you will perform below your capabilities.
To ensure that the facts are making their way into your essay answers, place a line through each fact as you use it.
Do not cross the fact out so that it becomes illegible, however, because a single fact may be relevant to more than one issue. After you finish your essay answer, look back at the fact pattern. If there are facts left over, one of three things has occurred:
- The facts are truly irrelevant and do not need to be discussed (unlikely!)
- The facts are relevant to an issue or issues that you have already discussed; or
- The facts are relevant to an issue that you have not addressed at all.
As for supposedly irrelevant facts, professors rarely place information into their fact patterns that does not need to be discussed. Most “irrelevant” facts are there so that you can explain why they are irrelevant.
Listing facts is not the same thing as discussing them.
True legal analysis occurs when you explain to a reader why a fact (or facts) leads to a legal conclusion. Consider the following examples.
Example 1 - John told the plaintiff “I will hit you if you come around here again.” Therefore, the battery was not imminent.
Example 2 – John told the plaintiff “I will hit you if you come around here again.” Generally, words alone cannot satisfy the imminence element of an assault. More specifically, these words merely inform the listener that he might be “hit” at some point in the future. The words “at some point in the future” placed a condition on the plaintiff being struck, which means that the plaintiff might never be struck by John. The fact that John might never strike the plaintiff means that the battery cannot be imminent.
If you were not sure, example 2 is the better answer! I have created a somewhat obvious example to illustrate my point. The pattern in the second example – note a fact (or facts) and then explain why you have brought it to the reader’s attention – consistently appears in well done legal analysis.
Your analysis is the most important thing that goes into a law school exam, so make sure it is in there!
Much of what you will write when answering a law school exam has originated in places other than in your mind. The issues you will be dissecting were created by your professors and are contained within the examination fact patterns. The same is true of the facts you will be discussing in your answer; they were created by your professor. The law you will be relying on to resolve these issues originated in the cases and statutes you read during the course of the semester. The only part of an essay answer unique to you is your commentary on WHY certain facts lead you to believe that a legal issue should be resolved in a particular way. This commentary is legal analysis.
Analyze each element of the relevant causes of action in your examination answer.
- For example, an Assault is often defined as the intentional placement of another in apprehension of an imminent battery. If the fact pattern on your Torts exam raises the possibility of “A” assaulting “B,” then you MUST address all the elements of an assault. Was the defendant’s conduct intentional, was the plaintiff placed in apprehension, and was that apprehension of an imminent battery? While you must address all of these elements, the depth of your analysis regarding each element will depend on the complexity of the problem.
- For example, it might be quite obvious that the defendant was acting intentionally, but the real question is whether the plaintiff’s apprehension was of an imminent battery. In this instance, your analysis of imminence will likely be longer than your analysis of intent. Forcing yourself to analyze every element will accomplish two things: (1) it will let the professor know that you understand that every element of a cause of action must be proven; and (2) it will force you to consider whether each element has been satisfied, thus avoiding the mistake of failing to discuss a complex problem that, at least on the surface, seemed quite obvious.
- Another way to conceptualize this advice is to consider the I-R-A-C formula many students use when answering examination questions. In reality, you are writing a mini I-R-A-C for each element of every cause of action being discussed as opposed to a large I-R-A-C of, for example, the tort of assault.
Objectivity and indecisiveness are not the same thing.
When students attempt to perform objective legal analysis, they often fall into the trap of being indecisive as opposed to objective. When performing objective legal analysis, you must still come to a conclusion. It’s just that your conclusion is the product of carefully considering all reasonable alternatives. Telling the reader that a problem could be resolved in two ways, but that the final answer will “depend on what the court thinks” is tantamount to telling the reader “this is hard, so you figure it out!”
Be sure to address all reasonable alternative points of view.
Many students use the I-R-A-C formula when writing the answers to their law school exams. This formula, which is quite similar to the C-R-E-A-C paradigm you learned in Legal Practice Skills, stands for: state the issue, provide the law, analyze the applicability of the facts to this law, and come to a conclusion. Because addressing counter arguments is such an important part of legal analysis, the formula might be more accurately written as I-R-A1 (state the argument)-A2 (state any reasonable counterargument)-Conclude, or resolve which argument is better and WHY it is better. In other words, I-R-A1-A2-C. So what is a reasonable a counterargument? A counterargument is reasonable if it is based on the facts in the problem or reasonable inferences from those facts. If you find yourself creating facts, then the counterargument you are creating is unlikely to be a reasonable one.