Written by Jonathan Chee, JD Graduating Class 2020, EAGLE Facilitator
Looking back at my first year at law school, I realize that it had never been properly been explained to me what examiners look for in legal exams. As an undergraduate student, I, and likely many others, had been conditioned to view exams as an exercise in demonstrating knowledge. In contrast, legal practice consists more of skills than it does knowledge. Law school, while very different to practice, still reflects this to a significant extent in its assessments. Knowledge of case law and legislation is ultimately just one of the things your legal exams are designed to test. The fact that assessments are generally open book suggests that knowledge may not even be the dominant focus.
In this piece I aim to set out some of the key skills examiners are testing and to explain how you can equip yourself to reliably demonstrate them in your exams.
Issue Spotting: Articulate the question before the answer
Identifying and articulating legal problems from a factual scenario is an important part of legal practice. When clients present problems to solicitors, they seldom distinguish what is legally relevant. Therefore, a lawyer’s first step towards coming up with a solution is to determine what the legal question is.
Law exams are designed to test and reward this skill. Examiners are very deliberate in the legal issues they place in each fact scenario and typically allocate calculated amounts of marks to each issue. When you are given a hypothetical problem, it is necessary to describe the legal issues before you can introduce and apply relevant law. As the issues you spot in exams determine which law you apply, spotting the right legal issue is, to an extent, a precondition to each mark you earn.
Issue spotting in hypotheticals may sound like a twisted game of I-Spy, but there are ways of approaching this reliably and methodically. Practicing solicitors do not leave their issue spotting to chance and instead use checklists to ensure that they have comprehensively analysed their clients’ legal problems. Anything short of this may be considered negligent! In legal exams, we do not have to apply these standards, but we can also aim to be comprehensive in our issue spotting by using list of all potential legal issues covered in each of our subjects. This will help us efficiently and reliable identify issues in a factual scenario during reading time.
When drafting such a list it may help to think about your subject materials as answers to questions you are not explicitly given. When covering by subject material, I often ask myself what questions each assigned legal reading is intended to answer. For cases, there will always be a contentious issue being disputed. Where your subject covers different causes of action, your legal issues may be framed as questions of whether each element of the action is satisfied. By determining what legal questions each part of your course is trying to answer, you can develop a reliable method of issue spotting to apply in exam questions.
Time-Efficiency: Prioritise contentious issues
If there is one consistent theme throughout the legal profession, it is that time is of the essence. Law is possibly the only profession where it is acceptable to bill a client in six-minute increments. I could bring up countless anecdotes about the legal profession’s endless pursuit of time-efficiency, but the key takeaways for us are that time-efficiency is inherently valued in the legal profession and that your examiners will likely find ways to penalise you for wasting time on irrelevant or insignificant issues.
Your legal exams are designed to reflect this by making you prioritise which issues you talk about. Examiners generally pay close attention to timing when writing exams and write questions such that students have just enough time to address the contentious issues. Time spent on irrelevant things or too much time on non-contentious issues is punished because your response to contentious issues (which marks have been deliberately allocated to) is compromised. Additionally, lecturers may deduct marks for irrelevant answers as they may consider them distracting.
To demonstrate an awareness of the importance of issues, once you have identified the legal issues, you should mark out which ones are contentious, and which are not. For facts and issues that are not contentious but must still be established (for instance, a key element of a cause of action) you can simply mention them in passing, and state why they are clearly made out. When you focus on the most contentious issues, you are likely maximising the amount of marks you earn each minute you spend writing.
Applying the law
The aim of legal analysis is to advise a client on their prospect of success. While correctly identifying and stating the relevant law is part of this, legal advice should also address how the law applies to a client’s specific situation. A solicitor could correctly tell their client the ratios of all relevant case law, but this on its own would not answer the first question in a typical client’s mind, ‘Will I win the case?’
In your law exams, you are typically asked to advice a hypothetical character on their predicament. Therefore, your exam answers in such questions would be incomplete if they did not address how the facts of the case affect your legal analysis. At a bare minimum, your legal analysis for each issue should identify which facts are relevant and specify how these facts affect the outcome for your client. When assessing your application of the law, examiners typically look for engagement with the facts.
You can set yourself up to demonstrate this clearly by marking out facts from your hypothetical problem that are relevant to each issue. When writing, I recommend being specific when referring to facts from the question, as examiners have thought about their facts in detail when writing their problems. Additionally, this part of legal analysis is also a good opportunity to further showcase your knowledge of case law. To enhance your application of the law, compare your client’s specific facts to those in relevant cases, noting areas where each case can be distinguished, and explaining whether and how this affects your client’s prospect of success. This will contribute to your success by demonstrating both detailed knowledge of cases and your skill at applying law to new factual scenarios.