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For those of you who like the process of creating flashcards, but can’t live without your smartphone or tablet, there are a number of new apps you can use to create flashcards and other study devices.

One such app is the Flashcard Machine (http://www.flashcardmachine.com/). But there are many others.

Whichever app you use, or if you do it the old-fashioned way with index cards and a pen (do people still use pens?!), flash cards are a great study technique that appeals to many learning styles. Kinestetic learners will enjoy the process of making the flash cards, visual learners will benefit from any drawings, charts, etc, on the cards, and read/write learners will benefit from re-writing (or re-typing) the rules onto the flashcards.  Just like outlining, flash cards are a great way to condense your materials, and to review and quiz yourself as you prepare for your finals.  Whichever method you choose to make them!

Some helpful advice from the Academic Support blog!

http://www.typepad.com/services/trackback/6a00d8341bfae553ef01901ef2dc08970b

NEVER a Dumb Question?
Part 2

As I said in Part 1—we’ve all heard and used this saying, but have also felt (especially as competitive law students) that, yes, there probably IS some question that is dumb, and it’s probably the one we’re about to ask. At Pace Law School, we’d never call a question “dumb”, but certainly there are some that are not very well thought-out and are common student pitfalls. Here is Part 2 of some examples of not-dumb but also some not-thought-out questions:

Not a dumb question:

What is a statute?

Statutes are laws that were passed by a legislative body. A legislative body is a group of people formed (usually elected) that has the power to pass (and amend and repeal) laws. In the United States, when we’re talking about a legislative body we usually mean one branch of the federal government or the state government. (Towns and Cities and other municipal governments can pass laws too, of course, but in law school usually you will read state or federal statutes and cases with state or federal statutes.)

For example, in your first year you will take two semesters of “Civil Procedure”. (A good term to look up! See Part 1.) In those classes, you will study the Federal Rules of Civil Procedure (the “FRCP”). Those rules are statutes: they were enacted by a legislative body and are written down a book you will read. So, all you really need to know at this point is that some laws are written down and enacted by government and are called “laws” and “statutes” interchangeably. Laws that have come about through the courts (see Part 1 on the common-law system) are equally “the law” but just were never written down (except by in a judge’s opinion), voted upon and enacted; the way they were “born” was through the court system.

In law school, understanding whether the case you’re reading is a judge interpreting a statute or is a judge discussing common law will help you understand the rule of the case. That is, the case ended up in your book for a reason; that reason is usually so you can learn a rule that will be generally applicable to other similar situations (otherwise known as the hypotheticals on your exams). Often the case rule will be an explanation of a part of a statute: the statute still stands as written, but the facts of the particular case required the judge to determine whether one part of the statute should or should not include the situation presented. While reading the case, you have to understand what part or parts of the statute the judge is discussing and how that discussion integrates with the rest of the statute.

To make up an example following up on our cow escape situation from Part 1:
Imagine there was a statute that stated: “Any property owner who removes a fence between his property and the property of another shall be liable for the worth of any farm animal that dies as a result of that removal.” We would then read a case that explained at least one term of that statute because the facts of the case brought one term into dispute. Here are the possible terms and many of the possible factual scenarios that could put those terms at issue in a situation where your cow escaped and died:

“property owner” – how does someone legally own land? Or, does the property owner himself have to remove the fence? What if it’s his employee? Or just someone who thinks he’s doing the owner a favor? Etc!

“removes” – remember from Part 1 we considered what if the fence just fell down due to lack of maintenance; in that situation, the judge would have to interpret the word “removes” and decide if lack of maintenance was or was not removal. Once the judge has ruled whether or how much the property owner has to do to keep up his fence (and therefore avoid paying if a neighbor’s animal dies after escaping), that would help us understand how any future similar case would come out. Therefore, from reading that case you’ve learned a rule about what we mean in that statute when we use the word “removes”. You can then use that rule in a future hypothetical that requires you to discuss the legal term “removes”.

“a fence” – all kinds of things could come up here! Is any kind of division “a fence”? Can a fence be wood or cement? A hedge?

“between his property and the property of another” – we can tell that this was meant to be between the neighbor’s property and yours, as in our example in Part 1. But what if there’s a small space between the neighbor’s property and yours that is owned by the state? Does the state’s strip of land between your two properties mean the neighbor has no obligation to your animals? What if the neighbor didn’t even know the state owned that strip of land before he removed the fence? What if the owner of the strip isn’t the state but is instead another person?

“any farm animal” – again, we might imagine that this would extend to our cow, but does this also include cats and dogs, who can be found on farm? What about a tiger that you use in a private zoo that you call a farm?

“that dies as a result” – again, all kinds of things could come up here! What if the animal broke its leg and you had to shoot it, does that mean the death was “as a result of that removal” or was it a result of your action? What if the animal didn’t die but lost all of its worth to you because it never gave milk again after its trauma? What if the cow was never found, can it be presumed dead?

In the (imaginary) case you’d read on this (imaginary) statute, one of those terms would have been integral to the issue the judge was trying to decide and the judge would therefore give guidance on how the term should be interpreted. Your job would be to understand which term the judge was writing about and how the judge decided. Why the judge ruled as he did in that particular fact pattern will give you the judge’s reasoning; that reasoning it what another party would use in another case.

To make our example more specific:
Your directly adjoining neighbor removed a previously well-maintained hedge between your two properties and your cow immediately ran off and died after falling into a ditch on your neighbor’s property. You sue under the statute. The neighbor argues that a hedge is not a fence. The judge could reason that while a hedge is in fact not a fence under any ordinary, dictionary meaning of the word, it served as a barrier between the properties that kept your cow on your side, where there was no danger of her death. He would look at what he believes the legislature meant to do with the statute, which (he will state he believes) was to allow you to know your cow wouldn’t have access to another property and any dangers on it. He might look at how “fence” is used in other, similar statutes in your state or even another state. He would look at any other cases that discussed “fence” under this statute, maybe a case where another judge decided hay bales could be a “fence” and yet another judge decided that a stream was not a “fence”. The judge would then rule that a human-made and maintained barrier is a “fence” under the statute and you’d win. In class, you’d discuss how and why the judge came to his decision about the human-made part being important.

You would also have to understand in that example that the rest of the statute was not argued about by the parties, but could have been. That is, the facts must meet the entire statute–not just the fence part—even though the entire case focuses on the word “fence”. So, you as the plaintiff would have also had to show your facts met the rest of the statute: “Any property owner who removes a fence between his property and the property of another shall be liable for the worth of any farm animal that dies as a result of that removal.” The judge would briefly discuss in his decision that you met the rest of the statute in that you proved: your neighbor was a property owner, he removed the “fence”, the “fence” was between his property and your property, a cow is a farm animal, and your cow died as a result of the removal of the “fence.” The judge may even refer to other cases where it was decided by another judge what those terms meant. Usually, the case you read will focus on one term but just keep in mind that all parts of the rule must be met to prove what the lawsuit alleges.

In this way, law is sort of like those books where you can pick the ending—the slightest change of facts, or what term is at issue, changes the entire story.

(General hint: remove “statue” as a correctly spelled word from your spell-checker because you will rarely need to use the word “statue” in law school but you will very often use the word “statute” and won’t notice if you accidently write “statue” but the professor will.)

A question that is not-thought-out:

I’ve heard we should avoid legalese in legal writing, so can I use colloquial and/or slang terms?

No, you cannot use colloquial or slang terms. Don’t write “the defendant will be on the hook for the murder” or “the plaintiff went the whole 9 yards in complying with the contract” or “this case is a slam dunk because” or other such colloquial or slang sayings. The law is precise—we mean what we say. There is no need to mix up terms like in English class where you shouldn’t say “reasonable” eight times on a page and were supposed to change it seven of the times to other words like “rational” or “sensible”. You will use the word reasonable a million times in your legal career. (To bring the cows back into it and use a forbidden colloquial saying, “you’ll use the term “reasonable” until the cows come home.” Sorry, couldn’t resist!) Reasonable has a specific legal meaning and other words that the thesaurus considers equivalent are not, as far as lawyers are concerned.

A similar problem is to use “they” to refer to companies or other entities: “I go to Pace Law School because they have a great faculty.” An entity is an “it” not a “they”. (Note—I’m not part of the faculty so am not being self-congratulating! However, I did go here, so I am being accurate! )

A time when colloquialisms and slang tend to crop up is in emails. Keep in mind that how you text or email your friends and family is NOT how you should be emailing or texting people you know professionally—whether professors, staff, supervisors, alumni, future employers (this could include upper level students), etc. In any professional communication, you should try to spell words correctly, use proper grammar and be clear and organized about what you’re trying to ask or state. Your electronic presence is as important as your in-person or on-paper one!

From the Law School Academic Support Blog:

http://lawprofessors.typepad.com/academic_support/2013/07/refining-your-memorization.html

NEVER a Dumb Question?
Part 1

We’ve all heard and used this saying, but have also felt (especially as competitive law students) that yes there probably IS some question that is dumb, and it’s probably the one we’re about to ask. At Pace Law School, we’d never call a question “dumb”, but certainly there are some that are not very well thought-out and are common student pit-falls. Here is Part 1 of some examples of not-dumb but also some not-thought-out questions:

Not a dumb question:

What is a “common-law” system and how does it differ from a “civil law” system?

Common law is law that was developed by courts and judges. Someone sued someone over something, and a judge had to make a decision years and years ago; then someone else sued someone else over something similar, and the judge in that case looked to the first case and used that case’s rule; and so on and so on. The idea is that it’s only fair to treat similar cases in the same way as they had been before and it’s good to have predictability in the law. The emphasis in common law is on precedent (a principle or rule established in a previous legal case that is used a court or other tribunal when deciding subsequent cases with similar issues or facts).

If we could trace a common-law rule of law all the way back to its origins, it would go something like this:
Say you sued your neighbor because he tore down his fence and your cow escaped and died; you hadn’t put up your own fence to keep in your cow because your neighbor’s fence had been there for all of living memory. The judge would have to decide who had to pay (and how much/what value) for the dead cow—did you have to just take the loss or should your neighbor have to pay? (And if your neighbor was liable (had to pay), how much would he have to pay? for the worth of an average cow’s output of milk or meat, or that particular cow’s output (then the cow’s health and age would matter)? would he have to pay more if that particular cow was beloved by your family?)

The judge would look at it from the point of view of what had happened before; what would the typical person think should happen under the circumstances? He (it was always a “he” back then) would state what he thought society would agree should happen if there was no prior case he knew of or that had been reported or no other legal commentary on such a matter. In a common-law system, that judge’s reasoning about why he thought you or your neighbor should have to pay for the cow became a rule of law. The rule could be something like “if a fence has existed for a long time and the owner of the fence knows that there is a neighbor’s cow kept in by that fence, then the owner will have to pay for the dead cow if he just tears down the fence without warning the neighbor who owns the cow.” Or, the rule could have been “even if a fence has existed for a long time, if you own a cow and it is not your fence, you can’t rely on the fence continuing to be there to keep your cow in—the fence’s owner can decide at any time he chooses to just tear it down and if your cow escapes and dies you get nothing.” I’m sure you can think of other possible rules that could seem reasonable. After the judge decided your case, if other cows escaped and died due to a neighbor tearing down a fence between his land and the cow owner’s, then that rule could be used by the new cases.

That seems simple enough—just find a case with the exact same fact pattern as your case and you’ll know how the judge should rule in your case. However, even with all the cases being decided over all the years we’ve been keeping records, chances are good that you won’t find one with exactly the same facts. In your new case, it will be a chicken that leaves and dies (differs from a cow because chickens can fly so maybe the fence did little to keep it in anyway) or the fence is not torn down but instead just falls into such disrepair that the cow or chicken walks out—are we going to say that the owner has to keep the fence in good repair when it’s your cow or chicken being kept inside and not his? Taking the rule from one case with one set of facts and applying that rule to another case with a different set of facts is what we do in a common-law system. (I could go on and on with examples where we’d take the original rule and apply it to other scenarios to see how the rule should be extended or modified or maybe wouldn’t work at all: the chicken doesn’t die but can no longer produce eggs; the cow had gotten out of your own fence at other times so you knew you had to do more to keep it in; it is a wild animal rather than a domesticated one; it’s not a fence but a hedge or canal; there’s no barrier between your properties and your neighbor decides to put a sculpture at the property line which then falls on you; etc.)

When a judge does this application of a prior rule to new facts, then her decision further refines or explains the rule or gives us an exception. To continue our example: if the original case’s rule was that the owner has to maintain the fence and give you notice if he’s going to tear it down then the judge in our new case (where the fence became broken) could use that in one of several different ways. She could decide that while actively tearing down the fence requires the owner to give you notice, the owner doesn’t have to give any notice that the fence is falling down because you could have noticed that for yourself and besides, at what point does the owner have to tell you—when the fence is starting to fall down, or when it almost is down? Or she could decide that the owner has to give notice to you as soon as he decides to stop maintaining the fence. Whichever way she decides, that decision would refine the rule to tell us what duties the owner actually has if he has a fence along a property line. In law school (or later as an attorney), you would have read both those cases, worked out what the rule is in its entirety (putting both cases together), and then been able to answer an essay question (or advise a client) that has a new fact pattern you believe is similar to the fence situation. (See my examples of possibly related fact patterns above.)

In a civil law system, the court is not bound by prior decisions; courts use statutes and executive orders interpreting those statutes. (What are statutes, you ask? Not a dumb question! See Part 2 of this series.) Since I’ve never worked or lived in such a system, I’m going to leave it at that!

A question that is not well-thought-out:

What is the definition of precedent/tort/larceny/covenant/third party/liable/damages/etc.?

Above I’ve used a lot of legal terms and defined them. I did this because I wanted you to be able to understand the basic concept of common law without being distracted. However, usually such terms will not be defined for you in what you read or hear in class. You will come across a lot of new words and terms in the cases you read. You should look those up. Be curious! You can’t expect to just wait and hear from the professor in the class the next day what the term means. In fact, it’s very likely that the professor will ask whoever is called on for the definition—and if it’s you, you’ll want to be prepared.

When I was about to start my first year I thought, “what is this class, ‘Torts’ that I have to take?” It being 1996, I looked up “torts” in my newly purchased hard-copy Black’s Law Dictionary. You can of course find almost any term on-line now, just watch out that the source for the information is good. As discussed in Part 3 of this series (on the Socratic method), you will need to find out information for yourself the rest of your legal career, so start now by looking up “torts” yourself!

Legal writing can seem very mysterious, but it really boils down to a basic formula:
state the legal issue/point/question you’re going to discuss;
give the Rule (or Rules, including all relevant definitions) for that issue;
Apply the facts from the hypothetical or real fact pattern to those Rules;
conclude.

This is usually called “IRAC” for Issue, Rule, Application, and Conclusion. (The “A” can also be called Analysis; I prefer Application because that more clearly describes what you do in that part—Apply the law to the facts.) It’s also called CRAC because the Issue need not be stated in the traditional format—“The issue is whether the defendant is liable when [relevant facts plus law]”—but can also be stated as the conclusion—“The defendant here is liable because s/he [relevant facts plus law].” So long as you’ve pointed out where you’re going in the discussion, the “I” is satisfied. Think of it as the turn signal of legal writing—just as in driving, you make others confused and angry when you turn without signaling. These are not emotions you want to evoke in professors (or supervisors or clients).

The Rule is usually not too troublesome for students, but they often leave out necessary definitions and/or start to mix in facts before fully stating the general Rules. The point of the statement of the Rule for the reader depends on the reader, of course: for a professor, it shows you’ve memorized the relevant Rules; for the supervisor, it reminds her of the Rules that she may not have really thought about since law school; for the client (yes, someday you’ll have clients!) it starts to give him important information on which he’ll base his decision on how to proceed. No matter which audience you’re writing for, they all need a clear statement of the law as a general Rule before they start thinking about how their facts may be put together with that Rule.
For example, a Rule statement when contract formation is at issue would be, “Contract formation requires offer, acceptance and consideration,” not, “Bob formed a contract with Sue if his statement was an offer, Sue accepted it and there was consideration for their agreement.” The Rule is for all contracting parties, not just Bob and Sue. Also, mixing law and facts usually leads to a sentence more like, “Bob formed a contract with Sue because he made an offer, Sue accepted it and there was consideration present.” A professor will write “conclusory” next to this because all I did was state that the Rules were met—I didn’t show how or why they were met in that sentence nor did I set myself up to do that discussion as I did with the “if” in the first version. If I continued on and actually applied the Rule to the facts, then my grade would still be okay because I would have done an Application, but I would not get as good a grade as the student who showed that she knew the Rule because she wrote it as a Rule, and that she understood the Rule because she went on an Applied it in the next section.
As for defining all terms, if I stop after stating the Rule—whether generally or with facts—and start using the facts with the Rules, then the reader still doesn’t know what I mean by any of those terms. (Of course your professor knows, but she needs to know that you know what you mean!) You have to first define what constitutes an offer (“an offer requires…”), an acceptance (“the offeree can show acceptance by…”) and consideration (“consideration is…”). Usually that takes at least one sentence per legal term. Only then can you Apply those Rules to the facts.

I’ve called this posting “The Case of the Missing ‘A’” because that is where most students get into trouble and you definitely cannot get an A grade without an Application. Most students fail to fully Apply every bit of the Rules they worked so hard to memorize to the facts that the professor (or the supervisor or client) worked so hard to create (or share). This is where the most points on a law school exam can be found (and is the reason the supervisor gave you the assignment or the client hired you) because it is your opinion on how this specific fact pattern works with the general Rule. We use Application in our daily lives—we just usually short-hand that discussion. You want to give a long, considered discussion on an exam or an assignment. Think of a time you made a major decision and you told a close friend about it. You may have explained your reasoning fairly quickly, and without a complete explanation of your reasoning because your close friend/family member would know your considerations and what you’d rate as a pro or a con or prioritize. That is, you had Rules (morals, standards, considerations) that helped you reach your decision and your friend would know and understand those quickly as you applied them to your situation.
For example, say you needed to buy a new car—you’d have to consider the amount of money you could spend, the number of miles you’ll regularly drive, and how environmentally conscious you are. You might say to your friend, “I’ve decided on a hybrid because I can get extra hours at my job this month.” Your friend would know you previously didn’t have much money to spend but that you really care about being environmentally conscious, you drive a lot of miles so need good gas mileage, you have a car to trade in, and “extra hours” means overtime for which you get time-and-a-half pay. So you didn’t fully explain your monetary considerations and you didn’t even mention the non-monetary considerations. Now imagine you’re having that same discussion with a stranger who has to understand exactly why you made that decision—you’d have to think a lot more and explain a lot more about why and how you came to your decision. “Although money has tight, I will be able to get more hours at my job this month for which I will receive time-and-a-half pay. That pay for the month should be enough for me to afford a down-payment of $2,000. I also have a car I can trade in which I expect to get me a $500 credit. Therefore, altogether I can make a down-payment of $2,500 which would make my monthly payments only $150. I know can afford to pay $150 per month because my current payment is $200 per month.” Look how many sentences that took, and you haven’t even explained your feelings about the environment or how the number the miles you drive impacts your choice.
The professor needs to read that reasoning because otherwise he cannot know that you have an actual working knowledge of the Rules and how they Apply to facts. The supervisor and client need to read or hear that reasoning because that is why they have hired you—to get your legal opinion on factual situations. Anyone can just memorize legal Rules; it is the person who learns to think like a lawyer who can use those Rules with facts and write that Application in a clear and reasoned way. On most law school exams, showing that you memorized Rules is likely to get you no better than a C grade; Applying them thoroughly can get you an A.

The Conclusion rarely gets people into trouble when they remember to do one. Just in one sentence answer the issue you raised in your first sentence and end. If you feel you need to further discuss the reasons behind your Conclusion, you didn’t solve the case of the missing “A”—you didn’t Apply enough and need to go back to that part and further explain your thoughts (if you’re hand-writing an exam, just start a new paragraph and write, “It should also be noted that…” and keep going).

I hope you all solve the case and get an A!

One of the highlights of the first year in law school is preparing and arguing the appellate brief.  Congratulations to the 1Ls on writing your appellate briefs—best of luck on your oral arguments!

As the 1Ls prepare to argue their case on appeal, just last week the U.S. Supreme Court heard oral arguments on the constitutionality of the 2010 Obama health care legislation.  On the second day of arguments, the central issue on whether the requirement that everyone have health insurance is unconstitutional took center stage.  For those of us who have done oral arguments, at least in our first year of law school, we know that oral argument is not easy.  Solicitor General Verrilli’s performance however received much criticism.  Verrilli, who is widely described as a skillful and accomplished lawyer, was criticized for repeatedly pausing and excusing himself throughout his argument.  Opinions however differ.  Some called the Solicitor General’s argument an “awful performance” – a “train wreck,” while others called it one of the most spectacular “flame-outs” in Supreme Court history.

Check out the website below for more information and tell us what you think.

http://www.supremecourt.gov/docket/PPAACA.aspx

…and survived!  We have welcomed a new member to our Academic Success team –  Pace Law graduate Marina Theodoris.   Marina graduated in 2011 and took the July 2011 Bar Exam.  She passed (congrats!) but had a bit of, well, let’s call it an “adventure” getting there.  But she persevered, and learned some things about herself in the process.  In her own words……

BAR EXAM SUCCESS

The weekend before the New York Bar Exam this past July, a law student’s worse nightmare happened to me.  Somehow at the time I thought it would be a good idea to start drinking Red Bull at 11:00 am to keep myself alert as I entered that final stretch before the big day.  The Red Bull did the trick but it also made me so jittery that I inadvertently knocked over the can and watched with utter horror as my drink spilled all over my laptop and seeped into the crevices of the keyboard until my screen went black.  And yes, I was supposed to take the Bar Exam on this same laptop in less than three days!  Instantaneously, realizing what this meant, my heart plummeted to my stomach and I began to hyperventilate.  I spent that whole day making phone calls, raiding computer stores, trying everything possible to resuscitate my laptop.  However, at about 9:00 pm, my laptop was officially pronounced dead. 

 I couldn’t help but mourn and feel defeated— as if all the knowledge that I spent the last two months learning and memorizing no longer mattered because with this huge setback, I was surely doomed to fail.  But as the adrenaline rush subsided and I came to grips with reality, I remembered that long and steep road I had been trekking all those weeks of bar preparation to reach the top of that mountain and I knew I couldn’t quit now so close to the top.  I realized that if I did end up failing, it would most likely not be because I handwrote the exam but because of my own self-limiting beliefs.     I had to remind myself that the knowledge I had learned was still there, the only difference was that the medium that I would use to convey it had changed.  And so, faced with having to handwrite the exam, I re-strategized my plan of action and became more determined than ever to pass, with laptop or not.  I might have lost my hiking sticks, but I still had the essential gear I needed to reach the top of that mountain. 

Almost a year after this experience, I am happy to say that I passed the bar!  I share this story with you not to by any means terrify you any more than you probably already are, but to emphasize that beyond the tall tales and recycled horror stories you have probably heard by now about the bar exam, ultimately the real obstacle to succeeding will be your own self-limiting beliefs.   To be sure, you have your work cut out for you–having to learn and memorize volumes and volumes of exam material is enough to overwhelm any newly minted law school graduate.  In fact, every part of your being—mental, physical, and spiritual—will be pushed to the limits.   After a while every day will be the same–wake up, go to lecture, write flashcards, bubble circles, memorize the elements of murder, memorize New York distinctions, bubble circles, eat, write essay, lather, rinse, close eyes, and repeat.  However, my experience has taught me that despite the challenges of this exam, it certainly does not have supernatural powers.  Those who are successful maintain a positive outlook and a great deal of resilience.  They look at the huge mountain in front of them, struggle with feelings of stupidity, and then begin to take steps hiking that mountain.  They ask for help, they acknowledge their weaknesses, they don’t blame others, or their lack of intelligence, or bad luck, but blame their lack of motivation knowing that the daunting journey up that mountain is a small price to pay for getting to see the view from the top – and the view is well-worth the hike!  

I just read a great post on the Law School Academic Support blog, about using “windfall” time – little chunks of time that you weren’t expecting to have, that pop up sporadically throughout your day and week.  So many of my students are feeling the stress of the semester at this point – on top of their classwork, I’m now also expecting them to be outlining and preparing for their exams, and the amount of work seems daunting and unmanageable.   Time management, especially making use of ALL  your time, is SO IMPORTANT.   20 minutes here, 30 minutes there  - it can all add up to a large amount of useful time, so plan it wisely!

Instead of trying to summarize what this blog post said, I’m just going to link to it right here.   It contains some great advice.   Try some of the suggestions out today!

http://lawprofessors.typepad.com/academic_support/2012/03/using-windfall-time-effectively.html

One of the biggest problems we see over and over on student exam answers relates to the facts.  Specifically, how the student uses the facts that they are given in the hypothetical.  All too often, students merely recite the facts in their answer, and then state relevant the law and the conclusion without ever giving the professor an explanation as to WHY those facts are important.  In other words, the student never makes the connection between the law and the facts that are dispositive of the issue as it relates to that law.

As a general rule of thumb, an exam answer should never contain sentences with only facts.  There should never be an “introductory” sentence(s) summarizing the facts you were given. This isn’t a memo or a brief – it’s an exam, and it’s timed, so you need to make the best use of your time by only writing things that will get you points.  Think about it from the professor’s perspective – they know the facts; they wrote them!  They can’t give you credit for just repeating the facts as they wrote them in the exam!

It’s likely that the professor has a list or grading rubric, that contains everything he or she wants you to address in your answer.  Put yourself in your professor’s shoes – would you give a student points for “restating the facts that are in the hypothetical, without making a connection to the law”?  Of course not!  The professor wants to give you points – but he can’t do that if you don’t give him anything to work with!

Not only can you not get points for this type of fact reiteration, but it will take time away from places where you can get points – it’s time consuming to restate facts, or to quote something verbatim from the fact pattern.  So don’t waste your time doing it.

Make your facts work for you – only restate relevant facts (not every fact), and only state them when you are showing exactly how they relate to the rules, and therefore demonstrating how you came to your conclusion. 

Here’s an example of what I mean…

Bad  Use of Facts:

In this case, Sam pushed Jane.  He pushed her knowing that she was not in danger of being hit by the bicycle.  Therefore, Sam committed a battery.

This is an example of something a professor might lable “too conclusory” – sure, it gives the professor the relevant facts.  But it doesn’t actually USE those facts to demonstrate anything – how do these facts relate to the rule? (and let’s assume this student already established the correct rule for battery before starting the analysis).  In other words, how is each element of the rule established by the given facts?

Good Use of Facts:

In this case, Sam committed a battery when he pushed Jane, because pushing is harmful and offensive contact.  Also, he intended to cause this harmful contact because he pushed her knowing that it was not necessary to protect her from the bicycle.   

This is an example of a good use of facts – notice how the student has used the word “because” twice in the analysis – once for each element.  Using “because” (or “since” or “as”) is a good indication that you are making that connection between the rules and the facts.  How is each element of the rule establised?  Because of the relevant facts.

Using your facts correctly is the key to a good analysis.  Continue doing practice questions with these tips in mind, so that incorporting relevant facts into your analysis becomes second nature!

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