Date: August 25th, 2015 6:51 PM
Author: Submissive splenetic gay wizard point
http://www.xoxohth.com/thread.php?thread_id=726346&mc=8&forum_id=2#8976848
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http://web.archive.org/web/20060210113446/blog.qiken.org/archives/2004/07/exam_tips_1_why.html
"Exam Tips 1: Why IRAC sucks
I'm getting really tired of writing this disclaimer, but here goes. This is not advice. It's what worked for me. I define "worked for me" earlier, mostly with reference to "I did this and I liked law school". You may not be me. You may not like law school if you act like me. You may have different goals for law school than I did. This is all fine.
That is why this is not advice. Besides, if you were me, you'd insist on figuring this out for yourself anyways. Because you'd be stubborn. But if you were me, you'd also post stuff that wasn't advice on your blog, and hedge it about with all sorts of disclaimers.
Exam Tips, Part 1: Why IRAC sucks
There are a lot of sources that tell you that the way to write a law school exam is IRAC. Depending on your source, this means that you Identify the Issue, you Repeat the Rule, you Analyze the Rule (or Apply the rule, depending on who you talk to), and you Come to a Conclusion. People who defend IRAC often say things like "every good exam uses IRAC" and "read any judicial decision, and you'll see that they IRAC, too."
In my opinion, IRAC sucks. Not because those statements are false--good exams IRAC, court opinions IRAC. Of course they do; it's part of a logical argument. It's not that IRAC is wrong; it's just not useful.
Imagine that I tell you to make me a souffle. And you say, "But I do not know how to make a souffle!" I answer, "use eggs, milk, flour, butter and cheese. Then I bake it." And the truth of the matter is, you've never seen a souffle, nor tasted one, nor read about one in a book. What do you do? Well, if you're like most people, you take a quantity of flour and add some eggs and butter and a pinch of milk, bake, and then toss cheese on top. Then you come back. "Is this a souffle?" you say. "No," I respond, "that is a brick. With cheese on top." So you experiment and come up with something else. "How about this? Is this a souffle?" "No," says me, "those are biscuits. With cheesy gravy, which is kind of gross. I asked for a souffle."
IRAC sucks because it's an ingredient list, not a recipe. IRAC sucks because it makes it seem like you follow a progression -- issue then rule than analysis than conclusion -- when in actuality, the issue is bound up with the analysis is bound up with the application of the rule and it's all bound up with the conclusion. IRAC sucks because it makes it seem that I, R, A and C are co-equal in importance, when in actuality, A is the big screaming winner. And let's get to the heart of the matter: A is also the most fun to write about. I, R and C are boring.
Okey dokey. So if IRAC sucks, what do you do instead? Well, mostly, you analyze. ("Apply" sounds far too mechanical for my tastes--you have to do some mechanical application, but those are kind of boring). It's very easy to mention issues and rules and come to conclusions. Analyzing them is hard. So the trick is to mostly interweave the issue and the rule into your analysis, and to point your analysis at the conclusion at the end. What do I mean by that?
Let's take an example:
"The issue is whether Jane was negligent. Negligence is when you do not take reasonable care. Jane did not take reasonable care. Therefore Jane was negligent."
This, my friends, is a brick. It is not a souffle. Why? First of all, it takes too much time to write all that down. Second, although the issue was identified and the rule repeated, there was no real application, and so the conclusion was, well, conclusory. And how can we tell the conclusion was conclusory? Because, ta da! There are NO FACTS in the above analysis. And because the analysis lacks the word "because".
The following sentence is not a rule, or even a general rule, but a good way to start training to include facts: A good sentence identifies pertinent facts as they pertain to the law. This means: analysis wraps around issues and rules.
So let's try that again:
"Jane failed to look both ways before crossing the street, which no reasonable person would have done. So she was negligent."
This, my friends, is a pancake. It is not a souffle. But at least it is better than a brick. And why is that? Well, there's not quite enough analysis. Usually, your professor will hand you a page and a half of facts. You can bet your bottom souffle that there will be more than one fact that matters to your negligence analysis. And so the problem with this particular entry is that -- well, souffles are tricky when it comes to baking.
This next sentence is not a rule, but it's a darned good habit to be in: Your sentences should argue with each other. Your second best friends, next to "because" are "however", "despite this", "on the other hand", "nonetheless", "in the alternative", "suppose not", "although" and other fine synonyms.
Thus:
"Jane failed to look both ways before crossing the street, which generally no reasonable person would have done. However, the street was a one-way street; we think you need to look both ways to protect against bidirectional traffic. John's coming the wrong way down a one-way street may have been wholly unexpected. John might argue nonetheless that she should have heard him coming, as he was driving a large noisy tractor, and that reasonable people use senses other than sight to identify potential dangers. However, the proximity to the airport makes it likely that Jane would have ignored loud noises. Jane's probably not negligent here."
Note that the above doesn't beat you over the head with the issues, nor does it declaim the rule. Instead, the issues are identified by highlighting relevant facts, and explaining how the facts interact with the rules to lead you to a conclusion. And this is a lot closer to souffle-dom."
http://web.archive.org/web/20060211030135/blog.qiken.org/archives/2004/07/exam_tips_2_app.html
"Exam Tips 2: Approaching the Question
[Heidi's editorial comment: this one took a really long time to write. It was partially because this was a hard one to think all the way through, but mostly because I was lazy.]
Okay. I'm going to repeat this damned disclosure, even though I've said it a million times, because people keep calling this advice. It is not advice. It may sound like advice. But it is not advice. It is what I did; approaching law school this way meant that I was very happy my first year, and I enjoyed law school. You may not be like me. In fact, you probably are not like me. You probably don't think chickens are the worlds greatest bird. You probably don't get all distracted thinking about tangential things. You probably can sit down and work for five hours straight. If you are not like me, you should treat this as an interesting anecdote about what someone else did in law school. If you are like me, this is how I made law school fun.
This is not advice. Let me repeat, this is not advice. May sound like advice. Not advice. Do we have that? Not advice? Everyone on board? Okay. What is this not? Right! It's not advice. Even though it sounds like advice. It's just awkward to keep writing "So, this may not work for you, but what I did which worked sometimes...." I am too lazy to write that much. So it may sound like advice, when really, it isn't. Not advice. Well, then.
Exam Tips 2: Approaching the Question
So last time, I told you that I thought that IRAC was necessary but by no means sufficient for law school exams. This post will try to explain how to fill in the gaps in IRAC, and how to organize a law school exam.
So, you've probably heard professors say something like "don't start writing your exam right away. Take your time. Think." You'll hear figures saying that you should spend somewhere between one-third and one-half your time preparing to write. Yippee! Advice! From law professors! About how to take exams! Yay! Um, so, what are you supposed to do with that time?
The typical answer is something like, "Spot issues!" This is where your blueprint comes into play. So you have this blueprint, and you go through it -- you will go through it, point by point, line by line, potential trick by potential trick. And if you're me, which I am and you are not, what you do is you jot all these down on a separate piece of paper. (Incidentally, if you are me, your paper is color-coded to your class. You've been taking notes on colored paper all semester. One class, one color. This is most definitely not advice; it is just me being anal.) You end up with a big jumble of issues.
A side-note. When I say "issues" I do not mean causes of action. I mean "things to opine about". For instance, spotting an issue is not restricted to noticing that Jane can argue that Bill was negligent. How was Bill negligent? There may be three theories. Did he violate the statute? Was the point of the statute to protect against the kind of harm that Jane suffered? Was there an intervening cause? Can we argue that Bill was negligent because he should have taken a particular precaution? Does he have a duty to take that precaution? Why might courts balk at that duty? Was it foreseeable that not taking the precaution would cause that kind of harm? Does it depend on whether you describe the harm that occured broadly or narrowly (hint: yes)?
Those are your issues. Your blueprint gives you a series of questions that you must ask; you note on your paper which questions arise from the fact pattern you are given. You come up with lengthy and confusing jumble. [Note: IRAC, of course, does not help you come up with the things in the jumble. One way in which IRAC is not helpful.]
Ah yes. What I just said? Good thing it's not advice, because it sucks as advice. You don't actually want to go through your blueprint point by point to see if you're hitting all the relevant law. You actually only want to do that for the first few times, when you're doing practice exams (more on that next week). What you really really want to do is go through the hypothetical point by point to see if you're hitting all the relevant facts; you should know your blueprint well enough that you never have to look to see how the blueprint covers the facts. Let the facts drive your answer; the law provides the structure that you need. There are almost never irrelevant facts. Very very occasionally, there will be an irrelevant fact (there was one on my torts exam. I asked Don afterwards. He said so. I wept, just a little bit. Well, not really). This is very rare. Almost everything on the exam can be picked up, caressed, shaded, and used to make an argument. On the other hand, if you can't think of a way to use a fact, don't make up something wrong just because you think it's not relevant.
I don't know if I've emphasized that enough. Maybe I should repeat it. Your job on an exam is not to repeat all the law you know. There's a reason why your professor doesn't just tell you the black-letter law in class, and it's not because she's trying to hide it. It's because she's trying to emphasize that what matters is not your knowing the law, but your applying the law to facts. Facts are where it's at. You drape facts over the law; law provides form, but really, without facts, law is naked.
It is now your job to impose order on that jumble. [Note: IRAC, of course, won't help you here. You have lots and lots of issues. You need to decide how to order them.] Some things are obvious. First of all, it often makes sense to group related issues together. Thus, you might want to lump all the ways that Bill is negligent together. (It's easiest, if when you're writing, you kind of have little areas of the page mentally blocked off for things.) You'll put damages together. You'll put contributory negligence together. In fact, chances are pretty good that you'll want to separate things exactly like the professor did in class.
For instance, suppose -- and this is entirely hypothetical -- that you had a professor who wrote an outline on the board every day, and that outline would say something like "I. Source of Right A. "Penumbras" B. Discrete and insular? C. Textualism II. Breadth of Right" and so on. This is a hint -- a big hint -- about how you should be organizing your answer. First, you should talk about the source of the right. You should mention several theories, and how it comes out under those theories, and what you think would happen. Then, you should talk about the breadth of the right. So if you're lucky enough to have a professor who does that kind of organization, steal his organization for your exam. If nothing else, the general groups that are used on the syllabus are fine.
Okay, fine. So now you know you're talking about all the negligence claims together. How d'you organize those? This is a noncomprehensive list, but there are three ways to organize a group of arguments.
Trees
These are the easiest to talk about, because they're the most intuitive. If you had a flow-chart for the possible arguments, your answer would essentially go through the tree, in order, point by point. In my experience, this sort of thing worked best for my Contracts class. Although it may have been my particular professor, too. This lends itself well to an actual outline, with lettered and numbered points. I. Consideration A. Illusory Promise B. Legal Duty? and so forth.
Trees are very straight-forward.
Stacking
This is, by far, the most fun. Sadly, it doesn't always work as an organization device. I found it worked the best (again, for me; this may depend on your professor!) in Contracts discussions of whether there's some kind of contract and in Torts discussions of whether someone was negligent.
Here's how it works. You have several theories as to why there's a contract (or why someone's negligent). Now, if you're really going through all the facts, you also have a lot of counter-arguments. Some of those counter-arguments will only apply to some theories. In fact, thinking of the counter-arguments may make you think of better theories of negligence or contractual obligation. So you have: theory of obligation, counter-argument, theory of obligation that side-steps counter-argument, counter-argument, new theory that side-steps that counter-argument, counter-argument. So the arguments stack on top of each other, and the one you end up with -- the last one, which is either a theory of obligation or a counter-argument, is the one that you can't get around. The arguments get successively stronger and stronger as the stack gets higher and higher.
There really is very little that's more fun than a good stacking argument. Um, very little more fun in the law school exam arena. But honestly, it's a total blast.
Unraveling
Sometimes, you get a fact pattern that's really complicated. One thing feeds into another feeds into another. This happens a lot in torts when you have multiple parties. A argues that B is negligent because of 1. C also wants B to be negligent, but 1 makes C negligent as well. So C wants to argue 2. B does not want to argue 2. B wants to argue 3. The best way I can think of to set this up is to take all the arguments, see how everyone falls out on each argument, and then start with an argument. Say something like "A and B want to argue blah." Now identify a party that doesn't like blah. Explain why they don't like it, how they'd argue against it, and what they'd argue instead. Identify who agrees with them. Identify who doesn't, what they don't like about it, and what they'd argue instead. Repeat. Grab hold of an argument, see what parties connect, pull it out as far as you can, and notice that you're pulling on another argument. Pull until there are no more arguments left (or until you've pulled out all the arguments that are connected to each other in this ridiculous fashion).
Unraveling is a big mess. It can sometimes be fun. It can sometimes be a real drag.
Note that I haven't said anything about how you make these arguments. How you phrase each individual argument, how you analyze each issue--well, that's all about irAAAAAAc."
http://web.archive.org/web/20060210113501/blog.qiken.org/archives/2004/08/exam_tips_3_wha.html
"Exam Tips 3: What you should get out of practice exams
This is not advice. And the reason it's not advice will be very clear to anyone who goes to the meta-blog that Ambivalent Imbroglio has just set up, called Blawg Wisdom, which compiles discussions of how people approached law school and what they did during law school. Lots of people there give advice on anything you can imagine -- transferring, reading cases, and so forth.
If you read it, you'll find some conflicting points of view. "Hand-write your notes." "Type everything in the computer." "Don't talk unless you're called on." "Talk as much as you feel like." "Law school is just school, about law." "Law school is like nothing you've ever done before." "Outline early." "Wait until the semester is almost over to start outlining." "Don't outline at all." What this should teach you -- and this is the only piece of actual advice here -- is that many many people have successfully approached law school in a large number of ways. Trust yourself. If you've never learned well by working in groups, don't join a study group. If you learn best by discussing with other people, do that. Know what you want, and do what you have to to get it. Because ultimately, even the people who write big expensive books that charge lots of money are not really giving advice. They're just saying, "hey, this worked for me!" Hopefully you'll learn to trust yourself. And next year, maybe you'll be able to say "Hey, this worked for me!" too.
So if it's not advice, why bother doing it? Because law school is, no matter whether you find it that way or not, hyped up to be a scary arbitrary random frightening tiring experience. Potential misery loves anecdote. So read away, and realize that for some people, law school is fun. Maybe it'll be fun for you, too. Drop the fear, and remember that your professors are not trying to kill you.
This is the final entry in my not-advice series, and I must finish it today, before I leave this town. I also have to pack. So the disclaimer is light: even if this sounds like advice, it is not advice. Got it?
Exam Tips 3: What to get out of practice exams
So, if you've paid attention through this whole thing, you'll remember that I finish my outlines within hours of the class being finished. This means that I essentially have the entire exam period to focus on honing my exam-taking skills. And to goof off.
Let me emphasize the goofing off part for a little bit. The last thing you want to do, and by you, I mean me, is walk into an exam feeling burned out. You will not perform at your peak. You will miss issues. You will get bored while writing your exam, and your exam will not be particularly interesting to read. This is Not a Good Thing. So, for me, the worst time of the semester is about two weeks before classes end, when I'm pushing to understand the last few concepts and finish my outlines. After classes end, I take an afternoon off and do little to nothing, and then work for maybe three to five hours a day thereafter. More if I meet with people. This goofing off period, for me, is vital to enjoying what I do.
Now, if my outline is finished, what am I spending my time doing? The answer is: practice exams, practice exams, and more practice exams. Ideally what you want is exams written by your professor, with sample answers, also written by your professor (remember that even a student who does very very well on the exam will miss some interesting and important points). In fact, ideally you want a practice exam, a sample perfect answer, a sample "B" answer, and a sample "C" answer. The reason is that you want to do negative hypothesis testing: if you say "this exam is superlative because it does X" you want to make sure that the "C" exam is not also doing X. I have never gotten anything other than sample perfect exams from professors, though.
The first time you take an exam -- the very very first -- you need to time yourself, but don't hold yourself strictly to the time guidelines. That is: know how much time you took, and how much time you should have taken, but take all the time you need to make your answer as good as possible. Within reason, of course; you shouldn't spend days on it.
Now take your exam, and compare it with the sample answer. If you don't have a sample answer, get together with your friends and talk about the answers you got. You're looking for two things here. First, you're looking for things you didn't see. Mark down the things you didn't see with a pen on a separate piece of paper; we'll come back to that. Second, you're looking for organization. Ask yourself: How could I have organized this better? What could I do to make this appear more logically?
Okay. Now you've taken your first practice exam. What you should have at this point is a diagnostic. You know what you're missing, and you know what the problems are with your organization. You also know how long you take to write an issue. Now you need to work on all these things.
First, how do you start getting the things you were missing? You'll find that you have some systematic errors, like not noticing potential illusory promises or forgetting about contributory negligence. You'll also notice that some of your friends are particularly good at seeing ways of resolving a particular kind of conflict. What you need to do is convert these missed issues into questions where, if you asked yourself that question, you would get the answer. Thus: "Is there any way that this person could escape this contract?" might highlight a particular illusory promise issue, or "What best preserves the rights of the non-breaching party?" Take this list of questions, and after you read the fact pattern and before you start writing, ask yourself those questions. If you systematically force yourself to ask questions about things you typically miss, you will train yourself to get them.
How do you fix organization? Practice and redos. After you take that first exam, tear the organization apart. Figure out how you could have best organized it -- how you could have spent less time on this important issue and more time on this less important issue, how you should have talked about this next to this next to this -- and come up with an effective organizational scheme for that exam. Now, rewrite the exam -- yes, rewrite it! -- using that organizational scheme. You must teach yourself to write the right way, the first time. The only way I know to do that, at least for me, is to reinforce the feeling of "organizing right" in my head.
And finally, how do you fix time problems? You learn to be organically connected with the clock on your computer as you write. You must learn exactly how long it takes to write a certain issue -- to within thirty seconds -- and be able, once you have drafted out what you're going to say, to roughly allocate time and finish your answer exactly within the allotted times. After the first practice exam, stick to your time limits. If the question says "thirty minutes", take thirty minutes. Stick to your internal time limits as well. If the question says thirty minutes and it raises two major points, each of which is approximately as important as the other, spend fifteen minutes on each of those points. Period. Some slight variation is allowed, but err on the side of less time rather than more. Time is not your friend in exams.
In addition to knowing your clock, you must also learn to write quickly, without great pauses for thought. And you must do so intelligently. It's nice to write in complete sentences. The easiest way to do this, by far, is to write simple sentences with words that you normally use. The best thing I did, first year, as far as getting myself to write quick uninhibited prose was to keep a blog. And my exams pretty much were written in the same style as my blog posts -- I write quickly, I glance once-over, and that's it. It's not always perfect, but that's okay.
On the other hand, you do not want to write as if you are semi-literate, even if that would be faster for you. Your professor may say that he or she does not take off for misspelled grammatically twisted sentences. But if your professor has to read your sentence two or three times just to figure out what the heck you meant -- and if your professor than has to read the previous sentence to see where the heck you're going -- and if your professor has to read a hundred exams and twenty pages each . . . . I'm sure you see where this is going. You're not going to get credit for a concept your professor doesn't see. If it's actually head-achingly painful to read your prose, your professor just might not see everything you said. Write simply. Write quickly. And write with some semblance of grace and style.
While we're on this subject, I should mention a Very Bad Habit of mine, which is to make sly, sometimes sarcastic, asides. Never more than one or two per exam (although there are far more in my practice exams -- if I didn't make those snide comments, I'd get seriously bored doing practice exams). Really, they just slip out. But like I said, I'd get bored if I didn't do them during practices, I'd get bored, and what I practice, I end up doing in the real thing. So far as I can tell, it has never hurt me. So: don't try to be funny during an exam, or snide, or crack jokes; there's no reason to waste brain power on something that gets you no points. But do be comfortable; any delegitimizing effect that might accrue when you tongue-in-cheek point out that "rational basis" and "president" may not belong in the same sentence will be balanced by your increased comfort level. If you write comfortably, as you would on a blog, you'll be writing at the right level. Informal but passably written is far superior -- at least in terms of time management and ease of reading -- than stilted prose with big words.
Do this over and over again. You have not practiced enough if your time allocation is awry. Time must, must, must come out right (but look on the bright side: once you learn that skill, you'll have it for all your classes, for ever more. The first semester of exams will be the hardest, because you'll have to learn time allocation). You will not ever get all the issues. Sorry. You will not even get all the issues that you know that you systematically miss. So you just have to do your best and try and get more every time you practice.
Most importantly, write comfortably and have fun. If you enjoy writing your exam, it's more likely that your professor will enjoy reading it. That's a win-win situation for everyone.
And that's it!"
(http://www.autoadmit.com/thread.php?thread_id=2972162&forum_id=2#28623803)