Contract Law Attack Outline by eec60630


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									Examination Techniques

          Where the Rubber Hits
          the Road
Introductory comments

   This power point presentation is on my TWEN site
   The “Wisdom of Insecurity” – Alan Watts
   My first law school exam was the worst experience
    I had in law school
   Remember the ultimate objectives of law school
    study: Mastery (internalization); “Automaticity”
    (effortless retrieval); Articulation (clear, logical,
    structured expression while under time constraints)
Introductory comments

   Many students won’t write out answers (I don’t know
    why) – YOU MUST
   If you have any questions – INTERUPT ME! If you
    don’t want to speak in a public setting then please
    come see me
   Hypothetical questions distributed at end of
    presentation – part 2 next week
   Need your feedback on ASP – tell me what would
Immediate Caveat

   If anything I say conflicts with something one
    of your professors has said, follow the
    professor’s advice
   At the end of the day it will be his or her
    exam and he or she will be evaluating your
Distinguish Between Analysis &

   There may be a lot of variety in how a
    particular exam question is analyzed
   But however the question is analyzed an
    answer must be communicated in a way that
    your audience (in this case your professor)
    will understand
   Therefore, analysis and communication are
    two different processes

   Stating the question
   Identifying the legal premise or rule
   Applying the legal premise to this problem
   Framing the Conclusion
1. Stating the Question

   This shows the reader where you are going
   Example: “The Question Presented is whether the
    injuries suffered by A were caused by B”
   The wording does not have to be the same all the
    time: “Issue,” “Topic,” etc., may work equally well
    depending on the structure of the question and the
   Try to avoid answering unnecessary questions
    or exploring irrelevant issues by reading the
    overall “call” of the exam question
2. Identifying the Legal Premise or

   Restatements, statutes, common law, rules from cases
   AUTHORITY is necessary to make the conclusion persuasive –
    authoritative writing requires authority
   Real authority resides in the text of the law
   This is the step most often missed by beginning law students
    because it seems too obvious (seems like busy work)
   If more than one legal rule could apply YOU MUST MAKE A
    CHOICE AND EXPLAIN YOUR CHOICE – for example, the
    facts may seem unclear as to whether an obvious assault
    resulted in a battery – you must choose assault or battery and
    explain which facts led to the choice
3. Applying the legal premise to this

   Feature RELEVANT facts provided in the question
   Determine if there are different judicial
    interpretations of the applicable rule, select one,
   Explain how the relevant facts relate to the law
    element by element
   Don’t waste time if simple facts provide a clear
    solution - just apply them straightforwardly
   Murkier situations require working through a chain of
    reasoning, e.g., you may have to explain why you
    think certain facts are implied
Applying the legal premise to this
problem (continued)

   Discuss alternative applications and arguments
   Facts and law are interwoven with policy to reach a
    conclusion and you must make a “bridge” between
   The process must be METICULOUSLY logical
4. Framing your conclusion

   “Accordingly,” “consequently,” “therefore”…
   Don’t make the professor guess what conclusion
    you’ve reached
   Take a stand (But be fair)
   If there are different possible outcomes this is where
    the policy rationales come into play: Do you
    conclude as you do because it is the fairest
    outcome? The most in line with a particular legal
    tradition? The most practical? The most
    economically efficient?
   All four portions of the answer must be present but the order
    may differ
   “IRAC” is not a “magic” formula - The first section might be
    called “topic” or “issue” rather than “question presented”
   Signals can help the professor identify different sections of the
    answer – for example, the “legal premise” section might start
    with the word “under,” the application section might begin with
    the word “here,” the conclusion might begin with the word
   The structure may be dictated by the question: you may be
    instructed to draft an opinion, write a memo to a partner, etc. –
    follow instructions. (Short answer questions may not require a
    “Question Presented” section because it is already “built in”
Example – Question Presented

   The question presented is whether
    Smith has a cause of action in connection
    with an injury he suffered while working at his
    machine at ABC factory
Example – Legal Premise

   Under Maine’s workers’ compensation statute
    (rule) an injury is deemed to be compensable if it
    arose out of (element 1) and in the course of
    (element 2) employment and if work contributed to
    the resulting disability in a significant manner
    (element 3). A worker suffering such a compensable
    injury is not allowed a recovery in tort and workers’
    compensation is the worker’s exclusive remedy (sub-
Example – Applying the legal premise

   Here, the facts indicate that Smith was seriously
    injured at work while operating his machine
    (element 1). Smith was at his station working in the
    manner and at the time he was directed to do so
    (element 2), apparently ruling out a defense of frolic
    or horseplay. The facts do not show that Smith had
    a preexisting injury or suffered any subsequent injury
    outside of work (element 3), so causation is not at
    issue. Finally, there is no indication that Smith’s
    machine malfunctioned, ruling out the possibility of a
    third party action against the machine manufacturer
Example - Conclusion

   Therefore it seems that Smith has a cause of
    action under the workers’ compensation statute
    because his back injury arose out of and in the
    course of his employment (rule). It also appears that
    all of Smith’s disability derives from his work injury
    and that his work clearly contributes to that disability
    in a significant manner (rule). Further, because any
    other action would likely be barred by the exclusive
    remedy rule, rejection of Smith’s claim could prove
    ruinous to him and to his family, which would
    contravene the policy of the state that injured
    workers be compensated (policy).
Important Writing Points

   THINK MORE, WRITE LESS: 1/3 of your time should be
    devoted to outlining and organization
   Add section headings (with white space in between)
   Short, crisp sentences – the longer the sentence the more likely
    you will become confused and lose your professor
   Refer to facts, don’t repeat them
   Only discuss what you are asked to discuss
   Don’t invent facts – if you are making an assumption, say so
    and explain why!
Important Writing Points (continued)

   One way to begin an outline of an exam answer is to “laundry
   Make note of every fact that seems to be important in the fact
   After you are done go back to the beginning of the list and start
    structuring those facts
   If a fact is provided that someone is angry, why is that
    important? (Goes to state of mind - intentionality)
   If a fact is provided that someone lost a sum of money, why is
    that important? (Goes to damages)
    examinations are carefully put together and the facts are there
    for a reason
Important Writing Points (continued)

   One of the best reasons for outlining and making
    decisions about what is relevant BEFORE WRITING
    is that it helps you to avoid two classic ways of
    wasting time: 1) Exploring irrelevant issues; 2)
    Restating facts and procedures – there is no point to
    doing this (you are not writing a judicial opinion) -
    since you would not include this in an outline and
    you are writing the answer from the outline you will
    hopefully avoid unnecessary repetition
   By conserving time you can devote as much
    attention as possible to the logic of your ANALYSIS
    – which is where most points are earned
Important Writing Points (continued)

   Avoid conclusory terms – “obviously,”
    “clearly” – there is not likely to be much that
    is “obvious” on the exam
   Use legal vocabulary properly – don’t
    substitute “your words” for legal definitions
    unless you are pretty darned sure you are
    saying the same thing
   It is ok (and desirable) to simplify your
    language but don’t simplify legal language
A Word on “Policy”

   Policy may come into play at a number of different
    points in the exam (whenever there is an ambiguous
    question about how facts may be inferred, which rule
    should be applied, which interpretations of a rule
    should be utilized, or which conclusion should be
   Policy discussions on exams, however, are not
    opportunities for expounding jurisprudential treatises
   Keep such discussions brief and RELEVANT
Open Book versus Closed Book

   Be clear about the honor code: know what materials
    you are permitted to use on the exam
   Memorization of an “attack” outline for closed book
    exams is desirable – writing down SOME of the
    outline at the start of the exam is ok but writing all of
    it may be too time consuming – you can do the same
    thing when outlining your answers
   Prepare an attack outline even in open book exams
    – there is often not enough time to re-read your
    outline during the exam
   Indexing of authorized materials for ease of access
Your Body Will Also Be Taking the

   Eat enough
   Drink enough
   Sleep enough
   Exercise
In a Nutshell
(from “Law School Without Fear,”
Helene Shapo and Marshall Shapo
(New York: Foundation Press 2002)

   Clear Organization
   Identification of the Issue
   Analyzing the Issue, using the important facts
   Applying relevant legal rules and cases to specific
   Applying broad policy ideas to concrete situations
   Identifying the arguments for and against a particular
    result and arguing persuasively to a conclusion
   Clear writing
   Concision
What to Do if You Are Behind in a

   Reading massive amounts the week before the
    exam won’t help
   Focus on key areas of the course
   Memorize major concepts and know them cold
   It is even more important to do practice answers to
    make sure that you understand and can apply core
   But it may be overwhelming to look at old exams so
    consider single issue questions from a commercial
    product like “Examples and Explanations”

   Not everything presented in class can or should be
   Focus on memorizing only “big picture” framework
    (often provided by professors in the first few classes)
    and every major rule
   For example, “The Law of Torts is about allocation of
    loss…” One of Professor Burman’s big picture ideas
   “A contract requires offer, acceptance, consideration
    and no defenses to formation…” (Major rule)
   Where memorization is required flashcards and
    mnemonics (don’t get too “cluttered” with these)
Taking the Exam

   2) In a closed book exam, write/type
    memorized portions of the attack outline you
    may forget wherever you are authorized to
    do so (not whole attack outline)
   3) Make prompt decisions about time
    allocation – if your professor has made time
    allocation recommendations, follow them!
Taking the Exam (continued)

   4) Read and try to answer the first question first;
    don’t move to the next question without answering
    the first question unless the first question is very
   If you jump around between questions, you may
    begin to confuse the facts of different questions
   But if a question seems very difficult it may be a
    good idea to move on so you can gain confidence by
    completing questions that feel more manageable
Taking the Exam (continued)

   5) Focus on the call of the question before
    reading any of the fact pattern
   6) After reading the call, read the question
    through and begin to mark (underline, circle,
    highlight) key facts or issues
   7) Read the question again to make sure
    you haven’t missed anything
Taking the Exam (continued)

   Depending on the structure of the question
    there are different ways to organize –
   The Call may suggest the organization
    (“discuss liability of A, B and C”)
   If the call is open-ended, you can organize
    by chronological order of important events
Taking the Exam (continued)

   If the question involves potential law suits (and the call does not
    focus you on specific law suits) you might organize your exam
    outline by parties: A v. B, B v. A, C v. B, etc.
   You might organize your exam outline by transaction: e.g., in a
    property exam you might chronologically track conveyances
    from one party to the next
   If chronology won’t work in your outline, you might organize by
    “dependency”: for example, whether a contract exists before
    discussing whether it is enforceable; whether “A” is legally
    capable of committing a crime (infancy, insanity) before
    discussing particular crimes “A” may have committed.
Taking the Exam (continued)

   9) Avoid repeating rules as you move
    through the sections of your exam
   If you defined “battery” in the suit A v. B,
    don’t define it again in B v. C. If your original
    definition occurred much earlier in your
    answer you can reference it – when
    analyzing Z v. Y, you can say, “Again, the
    rule is as I stated in A v. B…”
Helpful Websites

 - sample exam
    questions and answers
 - same but some
    problems with broken links
 - very good article on
    approaching law school exams

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