[Edited & updated — first version didn't make enough distinctions between open-book and take-home exams] In the comments to an earlier item, a UM law student asks, reasonably enough,
If L.S. isn't just about the rules (which I agree it shouldn't be), then why are there closed book exams at our school? When is a lawyer ever in a situation where they must have a law memorized for that one moment in time (except for oral arguments; but even then they have a legal pad in front of them with cases)? We are taught how to read a case and do research in LRW. More advanced research was taught to me in editing and bluebooking PPL law review assignments. My torts teacher kept things very theoretical in class and on the exam…basically if you had common sense and a very basic knowledge of torts you did well, so long as your writing ability was above the class curve. I am enjoying L.S. for the most part; but I'm not lying to myself and saying success here equals success in the real world. School and jobs (maybe being a law professor is out of this realm) teach incommensurable subjects.
I thought the issue deserved its own item: As one of the few faculty members at UM who insists (over mild Decanal objections to the take-home aspect) on giving open book take home exams for some of my classes (but not all), this is a question near and dear to my heart. After all, I've argued that “life is a take home exam” — and I even believe it.
Nevertheless there are some good reasons for closed book in-class exams, and I give those too in some courses. These reasons are strongest in the first year, but to varying degrees they also apply in upper level courses.
Why have closed book in-class exams? Here are a few of the reasons; I'm sure there are others.
- Some courses — civil procedure and evidence come to mind — have material that you really do need to know by heart in order to understand the cases you read in law school and afterwards, and in order not to make a fool of yourself in many real-life situations many (but never all) of our graduates likely will encounter. (Many faculty would extend this argument to all first year courses. Having taught Con Law 1, I'd certainly think it fits comfortably it in that group.)
- There are equity issues. Your grade, many faculty believe, shouldn't depend on happening to have the right book to hand but rather what's in your head. This is especially important first year, when grades can determine law review membership [I don't approve of that, but that's the system here and we can't ignore it.] Given that we have multiple first-year sections, and different people do better in different type of exam situations, equity also counsels (at least mildly) for all the same type of exam in a given required subject.
- One function of the exam is to reward you for doing the reading; while I think my open-book exams work that way too, it's probably easier to craft a closed book exam that has that function. It's certainly also the case that a certain fraction of the student body will miscalculate and decide they can read less if the exam is open book (“I can always look it up”) — some parentalist faculty may wish to save these people from themselves.
- The Deans report that cheating issues are more common and often more serious in take home exams (and triply so if they are not fully open book). Closed book in-class exams reduce temptation and are easiest to monitor. For this reason, I personally don't approve of open-book take-home exams that you take whenever you like: my open-book, severely word length limited, Administrative Law take-home exam lasts eight hours but everyone must take it at the same time.
I didn't do open book in Trademark (I thought people who were going to be IP lawyers should know the basics by heart). Back when I taught Con Law 1 and Civ Pro 1 I didn't either. I gave open book take-home exams in Jurisprudence and still do for Internet Law and Administrative Law. I don't give a take-home exam in International law although it's a very close case, being a combination of material I think you need to memorize and stuff that quite frankly you don't. But instead I use a different innovation which I'm considering adopting for other courses too. I'm thinking open-book in-class again this year.
Update: Prof. Tung Yin is thinking out loud about taking the open-book plunge. I should note that I set stringent length limits for open book take-home exams, make them “open world” (defined as “you may consult anything except other people”), and I require typing. Students may turn in a handwritten copy by the exam deadline, but if they do they must turn in a typed version (which I have work-study students compare with the handwritten version) “as soon as reasonably practicable”. In practice, about 2% of students use this option — the overwhelming majority type. [In contrast, open-book in-class exams are still mostly handwritten.]
I only give open book examinations. (1) If there is no restriction on materials that may be consulted, the cheating problem reduces substantially. Limited open book exams pose real administrative problems. (2) Obviously, in an exam with a real time constraint, it’s unlikely that a student will have time to learn much that’s new by reading material for the first time (although I tried occasionally as a student). But a student can reduce anxiety — maybe — by being able to check materials. (3) Open book examinations — especially exams in courses in which particular materials are designated as likely to be addressed by exam questions — allow for more pointed or detailed or difficult questions, and also put students in a position to prepare in more depth. (4) This does not mean that the students will necessarily be able to anticipate questions as such. (5) There is this issue — closed book exams with real time constraints induce enough anxiety to reveal something like deep structure: what it is that students really know, notwithstanding all the stress. Open book exams — especially with some pre-exam highlighting of materials, reading period assignments, or the like — generate answers that (maybe) reveal more of what student thinking looks like nearer to its best. The questions is which do we want to judge most?
Prof G., I agree with your analysis of open-book exams except for the fact that in at least one particular exam (con law 2) you gave a handout consisting of specific cases and areas of anlysis. Post-handout, one could focus their studies exclusively on those cases and areas with disregard for other parts of the syllabus. One could then familiarize themselves to the point where they could have memorized canned responses or even written them out to any of those topics on the handout. Whereas the hand-out method coupled with the open-book format may have reduced some students’ anxiety, the test then becomes more of a determination of writing abilities rather than mastery of the law. Perhaps this is the desired effect.
Prof F., Is the take-home exam conducted in the library? Are students given exclusive access to computers and printers? If not, is it a disadvantage for students who have further commutes from one another? Maybe since your exam has word limits then the 8 hours is an excessive limit for the sole purpose of eliminating the above-mentioned disadvantage. I personally cannot imagine being able to concentrate on an exam for 8 hours without extreme mental fatigue. In any event, this format certainly seems more conducive to expressing legal prowess than a closed-book exam.
As far as civ pro or evidence being closed-book, I don’t see the purpose. Whether I memorize the rule for summary judgment or hearsay, will that show I understand those laws. An open-book exam, with fact-patterns containing genuine issues and red herrings, that mandates one apply those concepts seems more align with the function of a lawyer. As you alluded to in an earlier post, law school is not a 3 year bar exam review course.
What difference does it make what format an exam is in? We are graded relative to one another. Cream always rises to the top, and sludge settles at the bottom. Very few top ranked students were born knowing how to take law school exams–they practiced the format and mastered it. They know how to play the game. Change the format to whatever format Average Joe student thinks he’ll be best at, and within one semester he’ll find those same SOBs outscoring him again. Of course, he’ll blame the format again and campaign for another….
At most, a student might “feel” that she was fully able to display her own mastery of the subject in some other format, i.e. that some formats don’t let her “strut her stuff” as others. She might drive home from the exam with a greater sense of accomplishment, unburdened with frustrations at not being able to express herself due to time limits or the belief that she sucks at multiple choice. But the fact is that those same advantages will be extended to her classmates, and her tears will be just as wet when EASY lets her know she got outscored.
The more valid point is that law school exams do not test the entire spectrum of lawyering skills. Oddly, and perhaps disturbingly, Lit Skills at UM isn’t even graded.
At the top lawschools, nobody cares about grades because the school has such a great reputation for producing top grads that a diploma is all the authentication employers need. I fear that if faculty and students from those schools see this discussion, we’ll all look like a bunch of starving dogs fighting over table scraps.
Keep it oldschool. Exams should be tough, intimidating, gruelling, and stressful. Would you trust doctors if they had take-home exams?
“Show me one scar character’d on thy skin:
Men’s flesh preserved so whole do seldom win.”
2 Henry VI, III, i
Nothing wrong with making a 1L cry now and then.
I agree we are starving dogs up all hours of the night parsing dicta and pilfering law review articles looking for the holy grail that synthesizes class X into its subatomic base, and to pocket it in our memory (or notes) and use it a weapon to smash through and along the x-axis of theexam curve of mediocrity. Faculty and students at those schools know we want their tablescraps, but some of their scraps are not consistent with our US NEWS ranked diet. Hey, but who needs their scraps when it’s 230AM and you have a pizza in the fridge and an exam in a few hours. I hope it’s open bottle, er, open book.
One innovation that many of my computer science courses sometimes used a was a closed book exam with a twist: you were allowed to bring in one sheet of 8 1/2 x 11 paper of handwritten notes. The argument was that the exam wasn’t testing memorization, but it was a good idea to “test” how well people did in selecting out what was important to put on their crib sheet. Amusingly, when I was a teaching assistant for such a course, I learned that a lot of the best students spent tons of effort putting together their crib sheet (practicing small handwriting and all of that)… and then never referred to it over the course of the exam. I wonder if anyone does a law school analogy (would that be allowing students to bring in their course outline?) and, if so, how it works.
I used to teach in the computer systems department at a local 2 year college. My tests and quizzes were open book, open note when they [tests] were required (I find giving ‘tests’ on computer programming rather inane). However, since these *were* open, I required exactitude in all answers. My first couple of semesters of teaching, the students were “woo-woo, open book test!.” That didn’t last long (smile). But, in my course, tests were only 20% of the grade; development as a computer programmer and designer was the other 80. Especially in applied sciences, the theory only takes you so far: I was more interested in turning out competent programmers and systems administrators. I am happy to say that a number of my students now make more money than I do (where did I go wrong?). Guess I’m getting a bit old (smile).
I also taught an online (webbased) ethics in technology course (my undergrad degree is philosophy, minor computer science – there’s a combination!). That course had no tests at all; required readings and thought out essays on subject broached about in the texts. I used a conventional computer ethics text for about two-thirds of the course. The other two texts I used were Michael Crichton’s “Terminal Man” and William Gibson’s “Neuromancer”, exploring the consequences of technological interaction. My two favorite complaints about these texts in the course were “That was hard; I HAD to THINK!”, and “That book is hard to read; it jumps around so much.”
Seems that students don’t like challenges, even when they have the book at their fingertips!
In favor of closed book exams for soem courses. For this practicing lawyer, the toughest parts of the job are closed book: oral argument in Court; cross-examination, usually at depositions, where the lawyer has to phrase the followup question based on the witness’s previosu answer wihtout consulting the “library” of evidence; and conversations with clients where unexpected qeustions are asked and “I’ll get back to you on that” isn’t what the client wants to hear.
In law school I have then been forced to use that response on subjects where I will never ever have to respond like that in the real world. I will never be in a position where I will have a limited hodge-podge of cases thrown together in a ‘closed’ style and, on a moments notice, a client will walk into my office and say ‘I need an answer to this crazy question in the next 35 minutes, GO!’ (Note: If that ever did happen, at least I’d get paid for it rather than having to pay for that experience…) Now, I understand the validity when it comes to rules based exams where you have to know things that are hard and fast (until the rules get revised every so many years), however the purpose for other subjects eludes me. I’m glad that Profs. F and G present their finals in the way that they do.
Arthur raises an interesting point about what is hardest to do in practice. The only problem there, though, is that to truly test the skills arthur is saying are the toughest you would need an interactive exam (e.g., an oral exam in front of the professor). I can’t figure out any way to adequately test a student’s ability to react to a response with a followup question.
Bricks, you make some interesting points, however I dispute some of them. You state that taking the exams in law school is an exercise in learning simply how to write the answers (and I’m guessing not much more). I agree with this statement. Where I disagree is in your statement that no matter what the same people will always rise to the top. I would gladly take on virtually any student at our school in a medical exam style. I think that my GPA has suffered in law school simply by virtue of the fact that many of my peers have had years of experience with writing the style of exam that is used in law school, whereas I have not. I have had to completely overhaul both my writing style and my exam taking style. This is not being a wuss or whatever and not being able to take the pressure — chemistry exams are some of the hardest that are around. Rather, it is simply a function of not knowing and basically having to learn to crawl all over again while some of my counterparts had been running marathons for years. Therefore, I do not agree with your contention that if you changed the exam format the same people would wind up in the same places relative to each other. And you’re right, I wouldn’t trust a doctor who had take home exams. However, this is like comparing apples to oranges: on medical exams there is a answer that is very right, and all other answers are very wrong. Furthermore, med students have 2 years in-house experience before they get their MDs and then the residency on top of that. Also, while we may be fighting for table scraps right now (which I think is more of a function of the small legal community in Miami and not many people in our school wishing to relocate than it is a function of the school itself) in the end the lawyers who have it will rise to the top. No matter how wonderful someone’s Harvard Law diploma is, if they’re a poor lawyer nobody will hire them (other than maybe as a token position).
As for our 1L system, I think it’s pretty much invalid. I know what everyone says about trying to keep things fair. However, every section has different professors, who give different exams and grade in different ways. For example, none of the professors for my section made it up to the mean curve. This means that simply by virtue of the professors I had I was already at somewhat of a disadvantage (GPA wise) to my peers. This hardly seems like a fair system to me. Unfortunately I cannot see another viable way of doing things.
I think you are confusing the issues of exam format and subject matter (although in a sense the two must always be intertwined).
Undoubtedly law school exams were a new format for you, but that is more a function of the nature of the subjects, not an arbitrary decision by law school professors to use a testing format distinct from hard science professors.
To illustrate, consider multiple choice as applied in each realm. A science test using multiple choice presents the student with one choice that is absolutely correct, and several others that are absolutely wrong. Law school multiple choice exams often offer students one “best” answer, one or more “correct but not best” answers, and several wrong answers. Law school multiple choice exams usually allow students space to explain or justify their answer, and professors will often give credit for well argued answers. In short, law school subjects don’t lend themselves well to multiple choice/true false exams, wheras science exams do.
I have no doubt that many students have a learning curve relative to writing argumentative essays for the first time. But its not rocket science, and there are many treatises on the subject. Basically, its the same arguing we all do in our daily lives, just put down on paper. The hard part is convincing students that it really is very simple, that there aren’t any tricks to master. Often I forget on an exam what the exact rule is, but I remember what issues would be relevant to its resolution. I simply argue those issues, and the prof either assumes I know the rule or doesn’t care, she wasn’t looking for anything but the rule’s issues.
In the end it all balances out as students get to pick their own schedules and can research the exam style of the professor and the argumentative/theoretical versus statutory/rule based nature of each subject. I rock on theory based exams. But joinder is just too much for my peanut sized brain to manage. My LSAT reflected that mental weakness as well. It makes no difference what format the exam is in, I can’t juggle all the rules at once like some people can.
Nonetheless, its true that great injustice is done to 1Ls at UM because of the way law review membership is determined. Most students not on law review aren’t fully aware of how unjust the system is, i.e. the perks that come with law review membership. To get to brass tacks, based on anecdotal evidence law review adds $40-$50K to starting salaries for those who go the big law route. Of course, in the long run it may be a losing proposition, but that is a philosophical matter for each student to decide for himself. In my opinion, reform of the law review at UM is one of the best things that could be done for all students, members and non-members alike.
$40K more for being on law review? I might believe half that but even then I wonder. Plus, you have to ask yourself are you comparing apples to apples — e.g. students with the same final class rank and equally challenging schedules joining firms with similar types of practices (if not size and reputation).
As for multiple choice — I don’t like them. Although I have been know to give “True/False/Sometimes” questions (is it always true, always false, or sometimes one or the other) with short explanations.
I based the $40-$50K number on the average starting salaries I know to be offered to LR members (on average $120K), compared to students who just missed the cutoff for making law review ($75-80K). Some of the non-LR students are members of other law reviews (international or business) and/or moot court board. I do not stand behind the statistical validity of my claim.
Of course there are other variables involved. But I think that law firms (and judges considering clerks) give law review membership a lot of weight. Its tacky for a student or their employer to give out their class rank in an introduction or resume. It almost sounds petty. But to say, “she made law review” or to leave out rank and gpa and simply put “law review” on a resume is as socially acceptable as it is elegant. It is also a badge of exclusivity, which has both conscious and subconscious effects on people in the legal community.
Who am I to say that LR members aren’t worth more? Maybe they are. But I seriously doubt it, based on the intimate knowledge I have of my classmates who are or are not on law review.
So returning to the original discussion, I think that if the consequences of a 1L getting off to a “slow start” weren’t so harsh, nobody would care or complain about exam formats.
The biggest problem I have personally, is when I only get 1 day off between exams. When that happens I don’t do as well as I’d like simply because of physical exhaustion, and the fact that my mind hasn’t cleared out all the useless information from the last exam. I find that after a couple of hours my clarity and focus is gone, and I’m battling myself rather than the exam. Some law schools, where cheating is not a huge concern (because grades aren’t so precious) allow students to schedule their own exams and are on their honor not to divulge content to students who take the exam later. For me personally, a system like that where I could actively control the effect of fatigue and the order of the exams would be the best. And frankly, I wouldn’t care if a few people cheat here and there by tipping eachother off to what’s on the exam. I don’t think a siginificant number of students would do that, at least not enough to make me worry that grading or rankings would be unfair. I also doubt that getting tipped off would could make more than 1 letter grade difference.
I guess at some point the administration and/or the students need to decide if UM Law is going to be a school where grades matter or not. There is also the thinking that perhaps its not UM’s decision to make, but rather the market will decide. Its probably a little of both, and clearly UM Law is a place where grades matter, in the sense that poor grades will (conditionally) close many doors. The same is not true for other law degrees, where grades are inflated or altogether irrelevant for all but the most prestigious firm and clerkships.
I think a strong case can be made that if UM keeps kicking ass on the bar passage rate, that perhaps profs ought to start inflating grades and make gpa and rank less of an issue at UM.
Practicing lawyer, who also hires for a 60-lawyer firm, speaking up again. There’s nothing tacky about putting your class rank on your resume or in your introductory letter. After the name of the law school, it’s the first thing I look for. Class rank matters more than law review, and if it’s not there (but is available from the school), I assume it’s not very good.
I doubt your suspiscions would be raised if the resume listed law review despite not listing the rank. Social pronouncement of rankings as opposed to law review membership is of course a matter of personal style. But unless a rank is in the top ten, the impressive force of the number decays over time. In any case, use of the ranking connotates competiveness, and perhaps pettiness. Law review membership is a title that like ages like a fine wine. Maybe the person was #1, maybe #31. By simply stating law review membership rather than rank, a person expresses both pride and humility at the same time. Its sort of the difference between a person who brags about how much money they make versus a person who never discusses it but wears a Rolex and drives a mercedes. One your respect, the other, well….
I assume you do not know the ranking cut-off for law review membership. Suppose I show you 2 resumes. You see one resume that lists law review membership only, another that lists rank as #38. If you had to bet the future or the firm on this person, which do you choose? If I told you that law review is cut off at #48 would that change your answer, knowing that maybe the first resume is #48? Silly excercise, but my point is that those two little words carry a power that a number over 10 never can. Logical, no. But life is not logical, and neither are lawyers unless they are applying the law correctly.
My belief is that law firms and judges need to justify or “sell” their hires to clients or other parties. Clients get a warm fuzzy feeling when they hear “law review” or read it in an attorney profile. Also true for numbers like 1, 2 or 3. But a client might have doubts about the young man about to handle his affairs if the best that can be said is that he was ranked #47 in his class of 350.
As further proof that this perception is a reality, most incoming 1L’s don’t really know what law review is or does, all they know is they want to be on it. All that goes to say is that the public in general has some notion that law review is a good thing for a lawyer to have earned, meaning he’s special somehow. Knowing this, firms like to see it because their clients do. Maybe judges like the idea that lr members were exposed to writing, but I suspect that the prestige of their clerks play a role in their decision making as well.
I’m not saying firms are stupid, because the lr members have had an experience that other students haven’t, and maybe this is worth a premium. The problem is how UM law determines who gets to have that experience and who doesn’t. Get B’s and a C your first 1L semester, followed by straight A’s your second semester (the implication being that you’ve figured out how to take law school exams) and you still won’t make law review. Is that fair? I don’t know.
One problem with the professor’s reasoning seems to be that 1L exams are all over the board. For the same classes, but in different sections, some are open book and some are closed; lengths also vary considerably. There is a huge difference between a five-hour exam and a three-hour test.
So, while I don’t have a real problem with closed-book exams as a general rule – but I will never understand why all exams can’t be on laptop since 100 percent of real-world writing is on the computer, not by hand under time pressure – the level playing field argument does not work for me.
Bricks: I agree with you about the comment on form versus substance on the exam in that you assert they are tied together. I agree. So when you say I’m confusing them, I’m not really doing that, I understand they’re linked and the advocacy on my part is for changes in both (as one relies on the other). I understand the purpose of a closed book examination on something where the rules are very basic, hard and fast rules that you have to have memorized (FRCP, FRE, etc). I do not understand the purpose of these closed book examinations on theoretical issues or marginal cases, I do not think they test in real life skills. Again, there is never a situation where someone walks into your office and says ‘Figure out the answer to my problem’ and you say ‘I am the great Zamboni (yea, I miss hockey), watch as I answer your problem in 35 minutes without consulting my notes!’ I feel that a very large portion of being a lawyer is being organized and prepared for the unexpected. Along with this should come testing on just that ability: make the exams open book and allow students to prepare for them however they want. This is what would happen in the real world and it is what I am here to learn how to do. I think the ability to organize yourself and organize all the pieces of the law into a coherent road map is just as important as your ability to regurgitate facts and tests. Also I agree that the way the UM Law Review takes people is pretty poor. People like me, who come from backgrounds that differ from the law, are at an automatic disadvantage in taking our exams — we have to fight against the learning curve that some people have been running up for quite some time. Not only did I have to learn a new way of taking exams, I had to learn a new style of writing and a new style of organizing responses (IRAC). I think UM Law Review should be 100% write on after the end of your 1L year.
I need to apply to your firm. I had an experience with a firm that I applied to this year where I had the opportunity to speak with the President of the firm (who happened to be a family friend). I didn’t get a job with them and it was hinted at me that my lack of law review experience may have factored into their decision. (Note that I do put my class rank on my resume and it’s a pretty decent rank.) I explained to the President of the firm my reasons for not being on law review, namely that I have a research position with the UM School of Medicine that allows me to publish works on my own. I explained that not only have I had experience Blue Booking and editing footnotes (via my work for Prof. Froomkin) but I also had to edit my own footnotes, after I wrote them that is. I had to do the research, combine all of the evidence and, since it was a policy paper, put together a valid argument to justify my position after running through the prior history on the subject. I am the lead author of the paper and am currently waiting to hear from the (non-UM) journal it has been submitted to for publication. While my counterparts on LR are just finishing up their editing of footnotes and trying to decide what they want to write on for their articles, I have submitted a manuscript that is backed by some of the biggest names in the field for publication (i.e., it’s not just me saying ‘ohhh, I’m going to write a paper’…I have some serious firepower behind me and it is submitted with the University’s name on it only after being approved by the department I fall under). However, my resume doesn’t say ‘Law Review’ so all of this gets thrown out. I’m not submitting this as some kind of sob story; I knowingly made a choice and I have to stick with it. I’m also not doubting what you say about looking at class rank. However, I have to agree with Bricks on this one. I know there are classmates of mine ranked behind me who are on the various reviews here at UM. However, even though I am ranked ahead of some of these people, and I have accomplished more in terms of research/writing/editing, they have jobs and I have trouble even getting an interview.
It is for this reason that I think UM needs to seriously think about how they administer and grade exams. There are serious inequities in how we are graded in our first year. I will not write them out here because I think I’ve aired enough dirty laundry for one night. I think that we need to seriously reconsider how we examine and evaluate students not only to make the system more equitable but so that we, the students, are being exposed more to what the real world practice will be like. This goes well beyond the open book/closed book debate, it requires examining how we administer the system from top to bottom.
I can’t help but recall the day I was the only lawyer in the London office, all ten others being out of town, or on airplanes, and me the third-year associate with about six months experience in the firm plugging away on some research project.
The Large Client calls up from Switzerland with an urgent query that requires an immediate answer, and so of course the secretaries pass him on to me. He asks a complex international law question that requires a detailed knowledge of Swiss law I do not possess (but other absent lawyers in the office do). “If this were New York,” I say, and spin out an analysis (no time to consult notes!). “I don’t know if Switzerland does it the same way, although commercial rules tend to have similar outcomes via very different processes. I’ll have the expert call you in the morning.” That sufficed.
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Its also not just about having an answer to a problem, but about articulating difficult legal concepts in short measure and identifying the particular ones at play, usually with far less than 35 minutes backup. Can’t recall the last closing argument I gave or saw that didn’t fit pretty much the same mold. And they’re just not as smooth with a legal pad in your hand. Ask any juror.
The limited material take home is indeed nearly impossible to police. One alternitive that I have liked in my law school experience is the in-class open book – but students can only use materials that they have generated themselves (outlines and such). It is especially helpful because it encourages everyone to make an outline, and make it a good one. Half the time I don’t even need to refer to it because the process of creating it has grilled the info into my brain.
Interesting comment about law review students making more money than non-law review people. I have no idea if that is true, however, I do know in my class at the big H, several law review people FAILED the California Bar Exam on the first try. I was not one of them because, naturally, I was not on the law review. I never applied because I decided that law school was busy enough and wanted to have some time for partying, sports, and dating.
As for closed vs. open book exams, I have no idea what doing well in either type of exam is supposed to say about the person’s future as a lawyer. The best lawyers are the ones who can absorb a lot of information in a very short period of time, interpret them in a way that makes sense for THEIR clients (we are talking “practical” here) and make the clients *happy*. They do not teach you those skills in law school.
You are right. A client wants an answer, whereas a professor wants you to discuss the theories, principles and rules you would apply.
In other words, the client will fire you for what a professor will give you an A+ for. The professor is asking you to be the lawyer for both sides, always. Even when they say “you are the judge” or “you are the atty for defendant”, ignore it. You are always the lawyer for both sides, although your style might change depending on the instructions. Law school exam answers don’t give answers, they ask questions. Another way of putting it is that you should write like the professer lectures, as confusing and inconclusively as possible.
One of the biggest traps that I find myself having to avoid is applying too much common sense to the hypo and neglect arguing both sides. A’s come from arguing the weaker side, trying to utilize every fact to turn a sow’s ear into a silk purse. Not meaning to pick on you, but think about the civ pro hypo you commented on in your blog. Did you spend your time crushing what appeared to you to be an unfair settlement, or did you focus on trying to come up with every conceivable spin on the facts the proponent might try to get the settlement through? Your Posner jab at the proponent of the settlement indicates you ultimately reached a conclusion. That’s not always a bad thing, but is often a bad sign. When I find myself inclined to do that during an exam, I force myself to take a step back and refocus my arguments for the other side. You don’t want egg on your face if it turns out the hypo was based on a real world case and a well reasoned opinion came to the opposite conclusion that you did based on the facts. But in the real world, clients don’t want wishy-washy.
So comparisons to real world situations aren’t what law school exams are about.
But your complaints raise a good question. Namely, why aren’t we graded by means that test the same issue spotting skills but in a format that is better able to guage our advocacy skills? IMHO, the BEST proof of my kung fu was my 1L LRW appelate brief. Nothing else has really allowed me to showcase both legal reasoning skills and advocacy skills. Maybe our exams should be more like that: here’s a record, you’re the plaintiff, you have 1 week to turn in an appellate brief. Or maybe we’re given the record at the beginning of the semester, working on it as soon as we feel comfortable enough with the material to do so. One flaw with my idea: more work for professors to grade. Or maybe not?
No, no. Your client absolutely is paying you to think of all the sneaky, underhanded, clever things that the other side will come up with, so that you can combat them. This is not wishy-washy; this is knowing your enemy. Because the last thing your clients want is to file a simple complaint for breach of contract, only to find yourself in the Supreme Court arguing an antitrust claim at treble damages. Which you lose. The last thing you want to do is fumble the settlement because you think your patent infringement case is a slam-dunk, and then lose your patent — to all comers — for obviousness. Sometimes, as a lawyer, your job will be to say “Look, you’ve got a good claim here for this, but they’re going to get you on that. Let’s see if we can avoid scorched earth tactics here.”
“Sometimes, as a lawyer, your job will be to say ‘Look, you’ve got a good claim here for this, but they’re going to get you on that. Let’s see if we can avoid scorched earth tactics here.'”
Alas, clients, in my experience, seldom want to hear that. They want you to tell them that you can accomplish what they want done. They don’t want to hear Cassandra-like warnings of potential dfficulties . . .