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Prof. Randall

 

 

TO: Exam Workshop Participants
FROM: Professor Kevin Hopkins, Widener-Harrisburg
RE: Essay Examinations
DATE: January 13, 1996

I have prepared a brief discussion regarding the essay examination question and how to "approach" it. I have also listed some criteria that may be helpful in providing you with some idea as to the factors professors consider when grading essay exams.

1. TAKING THE ESSAY EXAMINATION

The overall purpose behind the essay examination is to: (1) test your knowledge and understanding of the case materials covered during the semester (i.e. can you identify from the exam fact pattern the relevant issues/areas of law to be discussed); and (2) test your ability to apply the law to new and/or factually similar situations (i.e. can you demonstrate how the law will/should be applied to the parties in the exam fact pattern, and do you understand the policies behind the law and its application).

To do this successfully, it is critical that you know the applicable substantive law tested on the bar exam. You must also, however, be able to convey this information as quickly as possible and in some type of structured written format. I offer the following approach to reading the essay exam question and organizing your thoughts. Remember: you should spend at least 1/4 to 1/3 of the allotted time for each question outlining and organizing your thoughts.

1. Browse through the entire exam packet first to assess the applicable time allotments for the questions, and to make sure your examination packet is complete (i.e. no missing pages, etc.).

2. For each specific fact pattern/exam question, I suggest that you go immediately to the end of the fact pattern and read the specific question to be addressed. This will usually be the last sentence of the fact pattern, or the last paragraph and may contain words such as "evaluate all possible claims," "who can sue who for what," etc..

3. Once you have determined what the question is asking, quickly read the entire fact pattern first for a basic understanding of the facts, high-lighting and noting the obvious issues and facts that will be important in assessing the issues. You can do this by using hi-liters/colored pens, and making minor notations in the margins of the examination page.

4. Reread the question again, but this time, take it more slowly. During this review of the question, continue to look for and to note issues (i.e. causes of action or legal problems/situations covered during your review of the substantive law materials) but begin to really focus on those facts that will be critical for "triggering" an application of the law. For example, for the intentional tort of battery, it would be necessary to locate facts that suggest a "harmful and offensive" non-consensual contact.

5. You are ready to outline the materials using either the IRAC or CRAC paradigms. Effective organizational approaches might include organizing by parties (i.e. Barry v. Sherry; Sherry v. Barry, and Mike v. Sherry) or by causes of action (i.e. (1) assault; (2)battery; (3) false imprisonment, etc.).

For example, in an intentional torts problem, if organizing by parties, you could begin your analysis by discussing all of the potential tort actions each plaintiff might have against each defendant. On the other hand, if organizing by causes of action (i.e. false imprisonment), you would only discuss those plaintiffs having the specific cause of action (a false imprisonment claim) against a defendant.

Also, remember that your discussion of the "internal aspects" of a cause of action (i.e. elements) must be presented in a logical fashion.

For example, in assessing whether plaintiff has a valid claim for negligence against the defendant, you must consider whether there is evidence in the facts to suggest: (1) duty; (2) breach; (3) causation; and (4) damages. It is illogical to begin your answer by discussing damages before you have determined/identified an applicable duty. For intentional torts analysis, it's important to discuss whether the defendant "acts" with the requisite "intent" before examining the rest of the elements of the specific intentional tort at issue.

6. You can now supplement your basic outline with some of the applicable facts that will be "critical" in determining the outcome of the potential causes of action. For example, in a false imprisonment claim, it will be critical to demonstrate that the plaintiff was "confined within an identified bounded area," "unaware of his confinement," and there was no "reasonable means of escape." Pull out those facts that will demonstrate these elements and supplement your basic outline with them.

7. Because most bar examinations require "objectivity," it is critical that you present "both sides of the picture." This will require that you evaluate not only the elements of the prima facie cause of action, but also, any arguments that the defendant/ violator may make to suggest that the prima facie elements cannot be satisfied (i.e. counter arguments), or policy arguments. Briefly supplement your outline with facts that support counter arguments and/or policy arguments. Also, don't forget to determine whether the defendant/violator has any defenses that will relieve him/her from liability. Briefly supplement your outline with possible facts that suggest the prima facie elements cannot be met, or defendant/violator has an applicable defense.

8. You have now created a "road map" of your analysis and are ready to write.

II. GENERAL CONSIDERATIONS

Here's a list of a few factors to consider when drafting your response.

1. Have you identified the issues involved in the problem? Have you alerted the reader "up front" to the issues to be decided?

2. Have you discussed the relevant law and policies behind the law before applying the law to the facts of your problem? (IRAC/CRAC- rules before arguments). This is critical to demonstrate your knowledge of the relevant law and to lay the foundation for your evaluation of the issues.

3. Have you logically discussed the prima facie elements for the causes of action and the relevant facts that support or trigger the application of the law to the facts?

4. Have you properly raised and evaluated appropriate counter arguments and defenses when the facts of your problem permit or alert you? (Remember: you must be "objective.")

5. Have you properly "wrapped up" your argument for a specific issue before moving on to the next issue? Have you provided a conclusion for the reader?

6. Have you answered the question posed? Is your answer responsive to the question? This is critical.

7. Finally, does your answer reflect all of your knowledge of the cause of action, the applicable counter arguments and defenses? Have you told the reader all of the relevant law and facts needed to properly assess the issues Does your answer indicate you saw the "big picture"?