In
the first installment of this post, I suggested that for some law students,
life experience and a strongly held point of view can get in the way of law
school success. “Older” students, having lived and worked and experienced a
little more than most of their peers can tend to let their own point of view and
perceptions about the world interfere with legal reasoning. Rather than seeing
the legally significant issues in a fact pattern, they focus on the
implausibility of the facts and how unlikely or unfair a scenario seems in the
context of their own experience or personal values.
With
these students, my strategy is to have them start by adding a phrase to the
beginning of the first sentence of every essay question, “On an island that
you’ve never been to and where no visitors ever go…(essay question begins). I
want them to remember that a fact pattern is a closed universe and that adding
facts or injecting personal insights into it will only derail their best
efforts.
Then I give my students
five steps for looking at a fact pattern and drawing out the legally important
issues:
- Call of the Question – Start at the end
of the exam and read the call of the question so you understand what you are
being asked to do. - Acts – Rather than trying to spot and
analyze whole issues, start instead by reading the fact pattern
sentence-by-sentence and highlighting any act or failure to act by a party –
anything someone in your fact pattern says, does, or chooses not to do. - Resist Judgment – You do not have enough
information yet to know whether any of these acts give rise to a legally
significant issue. Resist making any judgment about whether the act is
relevant, worthwhile, good, bad or otherwise because all you know right now, is
that somebody said or did something. - Elements – Assuming you studied and know
all the elements of every issue you might be tested on, go to each act and
consider if it could be one element of an issue. Remember, don’t skip or
overlook an act just because it seems like a little thing. The seriousness or
severity of the action doesn’t matter. Whether you think the action would lead
to a legal action in real life doesn’t matter. What matters is whether that act
in the fact pattern, taken at face value could satisfy one element of something
you are being tested on. On the other hand, you don’t want to force an issue
that simply isn’t relevant. Some facts ARE there to tempt you into a
time-wasting, grade-crushing wild goose chase. In order to stay on target, ask:
a) Is the issue you’re thinking about within
the testable universe? (i.e. DO NOT analyze a Criminal Law issue in a Torts
exam.)
b) Is
this issue relevant to the call of the question? (i.e. DO NOT discuss the
rights of B vs. C when the question is asking only about the rights of A vs. B.)
c) Are there other facts that satisfy each
of the other necessary elements to make out this issue? DO NOT speculate about
other elements based on your common sense or some past experience.
Success vs. Relevance –
This is the fifth and final step I ask my students to think about because I
want the word “success” to trigger a few different cautionary flags.
The success of the issue:
Just because a complaining party has a weak case (weak elements) and is likely
to lose doesn’t mean the issue isn’t worth raising. If you can make a good
faith, “straight-faced” argument that each of your elements is supported by some
fact or facts, it is probably a relevant issue, win or lose. In fact if you can
make a good faith argument that MOST of your elements are supported by facts,
you should raise the issue. Weak facts or a missing element bear on the success
of an issue, but are never a reason to not raise it. Being able to explain to
your professor why an issue fails is just as important as being able to show
why an issue succeeds.
The successes a student brings into
the exam: You are
walking into the exam with a point of view based in your life experience. Your successes and accomplishments have
equipped you to identify and solve many challenging problems, to relate to
people and empathize with their circumstances. HOWEVER – here in this exam, you
must leave those successes and accomplishments behind. Relating to the people
in your fact pattern and empathizing with their circumstances will distract you
from seeing what is relevant and keep you from engaging in effective legal
analysis.
Seth-Thomas Aitken,
UMass School of Law – Dartmouth
