Th e 5 Page Cheat Sheet for Writing La w School Exams Conway Ekpo, Esq. - Rut ger s MSP Class of 2007 - cekpo@riker.com STEP I: T H E PROFESSOR • Beco me very famili ar with your profess or's pas t exams. • D o as man y practice exams as time will pennit and ha ve your prof essor revie w them. • Integrate your exam answers an d discussions with your professor onto your outline. STEP II: HOW T O WRITE T H E EXAM ANSWER • First things fir st, when you loo k at the exam look at ho w many questions there are an d ho w muc h time you have for each and plan acco rdi ngl y. • When you write the exam, unless your profes sor has told you other wise, sti ck to IRAC: • Th e first sentence should b e a statement o f the Issue. • Th e second sentence should b e a statement o f the Rule with respect to the Issue. • Th e subsequent sentences should be devo ted t o Anal ysis 1 - setting forth the legal elements o f the rule, applying the Rule to th e facts , arguing both sides, raising relevant defenses, etc. • The final sentence should arrive at some conclusion. 1 _ ANALYSIS: • Eliminate the f ollowin g word s from your vocabulary: "Clearly" "Obvi ously " " Of Course" ''Naturally'' "Certainly" • Repla ce those words with the fo ll owing: ''Likely'' ''Reasonably'' ''May Have " "Ma y Be" "Suggests" * Example1: ''The issue i s wh eth er the d efe nda nt was negligent. (ISSUE) I n order to establish negligence, there must be a duty, a breach o f that duty, causation, and damages . (RULE) , As a matter of law, we all owe a general duty o f care to reasonably foreseea ble .. plaintiffs whenever we ac t. (RULE o n DUTY) Here, the fac ts show that [discuss facts that show , a dury]. However, the de fendant may argu e that a duty does not exist because [discuss facts that show no duty owed]. Nevertheless [discuss facts or legal doctrines that break the tie one wqy or the otheTj which strongly suggests tha t the plai ntiff was reasonably foreseeable to the defendant. (ANALYSIS) Therefore, a court will likely find that there was a duty owed to the plaintiff. (CONCLUSION) Th e next issue is whether the defend ant breached hi s duty to the plaintiff. (ISSUE) A dut y is breached when an actor fails to meet the standar d o f care und er the circumstances. (RULE o n BREACH) Here, the fact that the defendant used an ABC tool instead o f the customary XY Z tool tends to suggest that the defendant may have breached his duty .. " [repeat !RAe steps]
*Example2: "The issue is whether there was an enforceable contract (ISSUE) A valid·
contract is fonned when there is an offer to enter into an agreement manifested by one
party, an acceptance of that offer manifested by another party indicating a commitment to
be bound, and adequate consideration given by both parties. (RULE) Additionally, there
must be no defenses to fonnation that would invalidate an otherwise valid contract, such as
the statute of frauds. (RULE CLARIFICATION) Here, Bob placed an order with Sell that
listed the necessary material tenns of price, quantity, and dates for perfonnance ..."[discuss
facts on both sides regarding whether or not (i) the offer element is e s t t J b l i s h e ~ then discuss (ii) the acceptance
element, then discuss (iii) the consideration element, then discuss (iv) any difenses to the contract ormation,
then conclude if here was a valid contract or no4
STEP III: KNOW THE COMMON EXAM WRITING MISTAKES1. CURSORY ANALYSIS:
• "Here, Bob had a duty. Bob breached his"duty which caused damages to Joe,therefore Bob was negligent The end."
• 'jackie's accident happened on the landowner's property. Therefore the landowner
was clearly negligent"
• ' 'Kim made an offer to Ed, Ed accepted it, they both gave consideration for theagreement and there are no defenses to the contract, therefore the contract is valid."
2. THE ABSTRACT EXPRESSIONIST'S ANSWER:"This fact pattern raises issues of negligence liability. Tort law provides that parties can be
held liable for their negligence under certain conditions. However, defendants are not
always held liable simply because they cause injury. Sometimes they are not liable even i fthey negligently cause injury. Tort law provides a legal balance of duties and responsibilities
between citizens who act towards one another .."
HOW THE PROFESSOR SEES IT - The sky is blue, the grass is green, and "tort" starts
with the letter "T" ..no kidding! This student has wasted valuable time on an exam writing an
, entire paragraph on what tort law is instead of answering the question. Nothing said here is
wrong, but at the same time, this student isn't talking about anything that would gain any
points on the exam.
3.THE
BACKAND FORTH
ANSWER:' 'In this case, Joe will argue that Abe was negligent for failing to inspect the stands after the
repairs were completed. Abe will argue, however, that he had no duty to inspect the stands,
and that even if he had, he would not have discovered the defect that caused the collapse.
Joe will argue that Greg was negligent, because Greg replaced the wooden beams with the
metal "I" beams. Greg will argue, however, that he was not negligent because the beams
were the same as the ones that had been used before. Joe will also argue that Kim was
negligent because .." , " . "_
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The 5 Page Cheat Sheet for Writing Law School ExamsConway Ekpo, Esq. - Rutgers MSP Class of2007 - [email protected]
HOW THE PROFESSOR SEES IT - This student sees the issues, which is good, but
they don't do the analysis. They just say A will argue this, but B will argue that, and they
never ANALYZE either side. Notice they never make a CONCLUSION about either side
either. They just keep pointing out what each side would argue. This is the #1 pitfall for law
students who think that they are "arguing both sides." You are not arguing either side this
way, you are merdy pointing out the issues on both sides.
4. THE RElTERATOR's ANSWER:' 'In this case, Amy, the athletic director, noted the problem and hired Hank to inspect and
repair the problem. When Bob found weakened beams he ordered Greg to replace the
beams with metal "I" beams, but Greg used wooden beams like the old ones instead. Later,
that section of the stands collapsed, and Joe was injured in the collapse. Then Joe brought a
suit against Amy and Greg. Then Amy received a phone call from Hank to discuss the
problem. Then she hung up the phone and walked outside. Then she .."
HOW THE PROFESSOR SEES IT - Stop wasting my time telling me the fact pattern. I
wrote the fact pattern. I don't need a Xerox copy of the fact pattern in your answer because
I'm the one who created it. The only time you should be talking about the facts is when you
are doing your analysis - then you NEED to talk to about the law as it applies to the facts.
Simply reciting the facts without the law (which is effectively repeating the fact pattern all
over again) is a waste of time on the exam and will earn no points for the student.
5. THE TEASER's ANSWER:'' ]oe might try to prove that Hank was negligent using the doctrine of res ipsa loquitur. If
Joe can prove that the accident that happened to him was the type of accident that does notordinarily happen without negligence, and that, i f someone was negligent, it was probably
Hank, then he can recover on a res ipsa theory. Joe might also try to recover from Amy the
a t h l e t i ~ A i r e c t o r for failing to inspect the beams after the work was done. I f Amy owed a
duty to rnspect the stadium after completion of repairs, she could be liable for the injury.
;. . Bob may sue Hank for negligent infliction of emotional distress .."
HOW THE PROFESSOR SEES IT - Yes that's true, i f he elements are satisfied then
Joe might win on res ipsa ..so what are you waiting for? Are the elements satisfied or not?
Make your analysis already. This student has spotted the issues, and has found the rules of
law that COULD apply, but has not applied them. There's no analysis and no conclusion.
They bring up a rule and move on before exploring if it applies or not, thus teasing the
professor who's waiting to hear the good analysis.
6. THE OVERKIl.l. ANSWER:[the exam question asks whetherJoe can sue Hank for negkgence]
'Joe may decide to sue Hank for negligence in repairing the stands. However, courts do not
always hold negligent actors liable in tort. The defendant must also owe a duty of care to the
plaintiff. Hank will only be liable i f he owed a duty of care to Joe to exercise care in doing
the inspection and repairs. Generally, parties owe a duty of care to others who might
foreseeably be injured from conduct that creates a risk of injury to others. For example, in
driving a car we create the risk of an accident to those around us; thus we owe them a duty
to drive with reasonable care. A second source of duty arises from special relationships
between the victim and the defendant. In many situations actors assume a duty of care, for
example, by taking a patient or a client or by taking charge of a person in need of assistance.
In this case, Hank engaged in risk-creating conduct by undertaking to repair the stands. By
working on the stands, it created a risk of injury i f he repairs were faulty. Hank could
foresee injury to patrons at the gamei f
he negligendy supported the stands or otherwisefailed to exercise due care .."
HOW THE PROFESSOR SEES IT - Everything said here is true, however, the problem
is that this student has belabored the obvious, spent a lot ofvaluable time arguing at great
length stuffwe already know is true before they even started talking about the instant case.
Every student should know that, in this example, Hank has a duty to exercise due care in
doing repairs. I can't give a student a lot of credit for only recognizing that fact. This kind
of overkill answer usually happens to students on an exam when they finally recognize
something that they know and figure that they're going to talk about that one issue - and
only that one issue - for as long as they can talk about it, because they don't know what to
say about anything else. Don't do that. This student was on the right track by recognizingduty and then talking about the applicable standard for finding duty, but then they went
overboard with the additional examples and discussion on second sources of duty that are
irrelevatlF to this particular fact pattern.
s· 7. THE EDITOR'S ANSWER:''Jane may try to sue Hank for her injuries. If Hank's employees had replaced the beams with
smaller beams which were too weak to do the job instead of the beams mentioned here in
the facts, then they would be found negligent and could be held liable for her injuries. Greg
may also try to recover from Hank. Hank was not put on notice of any problem here, but if
Hank had been told that there was a problem, then he could have foreseen the injury toGreg caused by negligent repairs and he would be liable. Bob may sue Hank and Greg for
negligent infliction of emotional distress. Although he was not sitting in the stands with Jane
in the instant case, if he had been sitting with Jane in the stands and had actually seen her
fall, then he would be entitled to recover for such distress ..."
HOW THE PROFESSOR SEES IT - Stop editing the exam with your own fact pattern.
The 5 Page Cheat Sheet for Writing Law School ExamsConway Ekpo, Esq. - Rutgers MSP Class of2007 - [email protected]
Stick to the facts. Don't say, "well IF this would have been different" ...its not different.
Stickto the facts.
However, distinguish this bad idea of arbitrarily editing how things would have been under
DIFFERENT FACTS from a good answer that points out how a case may have been
decided differently under different doctrines, such as i f MPC applies in Crim Law, or i f U CC
applies in Contracts, or i f he Restatements approach to Torts or Property is persuasive.
Those are good "IF's". Changing the facts is a bad "IF".
Also, t¥e care to distin .sh this common exam w r i t i n ~writing practice of recognizing the nuances in e acts when key facts are deliberately left
unclear by the professor. In those instances, it is good to recognize that an ambiguous key
fact may cause the outcome to tum one way or the other when the law is applied. For
example, a fact pattern may be deliberately unclear as to whether a plaintiff wascontributorily negligent in crossing the street during a green light or if they used caution and
waited until there was a red light. When a fact pattern is ambiguous on something as critical
as whether a plaintiff contributed to their own harm, it is important to talk about both
scenarios - scenario A where the plaintiff crossed on a red light, and scenario B where
plaintiff crossed on a green light. Note that this is different from CHANGING the facts.
This is simply a recognition of a key fact that could cut either way and applying the law to
