Thinking and Writing Like a Lawyer

March 15th, 2017 / By Deborah J. Merritt

If law school classes teach students to think like lawyers, then why are so many final exams poorly written? It’s not that students “can’t write,” it’s that we haven’t really taught them to think like lawyers.

Joan Rocklin is the latest educator to tackle this issue, in a paper just posted on SSRN. Rocklin explains why law professors should teach exam writing to their students and, equally important, how we can do that effectively.

Why Teach Exam Writing?

I used to think that law school exams produced a feeble, little-used form of legal writing. When would real lawyers write without citations? Or without thorough discussion of precedents? But with the rise of email and other concise forms of communication, exam answers seem more like real-world communications. Lawyers frequently must answer a question with a succinct explanation of why their answer is correct. Teaching students to write excellent exam answers is no longer an in-house academic game; it prepares students to offer succinct legal analyses in a wide range of contexts.

Don’t We Already Do It?

Most professors assume that their classes prepare students to write well crafted exam answers. Day after day, we pepper students with hypotheticals and require them to respond. They respond orally (or listen to others), rather than writing, but isn’t the analysis the same?

Rocklin argues compellingly that classroom answers are not the same as exam answers. First, of course, most students merely listen to a classmate’s answer. They don’t attempt the answer themselves, and they may not attend to the details of the classmate’s response.

More important, we don’t demand as much precision from students in class as we do on exam responses. In particular, we rarely require students to articulate fully how they have applied a rule of law to the facts of the hypothetical. That “application” can remain unstated because oral communication is more abbreviated than written analysis.

Here is an example, based on one of Rocklin’s hypotheticals. Suppose that a Torts professor is teaching the elements of false imprisonment. The students have just discussed a case illustrating that a physical barrier isn’t necessary to establish confinement; threats of physical harm can suffice. The professor then engages in this dialogue with a student:

Professor: Suppose the defendant pulled a knife on the plaintiff and held it a few inches from the plaintiff’s neck. Would that be confinement?

Student: Sure, that would scare me.

Professor: What if the defendant made a fist and pulled back his arm [demonstrating]?

Student: That too.

Professor: And if the defendant did nothing but snarl at the plaintiff and say “don’t move”?

Student: That’s closer to the line. How scared is the plaintiff? I’m not sure.

Professor: What do other people think?

Through this dialogue, the professor is examining the boundaries of confinement through physical threat. The students are learning to think about that concept, as well the words and actions that might qualify. Notably, however, the dialogue does not take the form of a final exam answer. On a final exam, the professor will want students to write something like this:

The first element of false imprisonment is confinement. The plaintiff in this case was not physically restrained, but physical restraint is not necessary to prove confinement; threats of physical harm may suffice. In this case, the defendant held a knife a few inches from the plaintiff’s neck. That action implicitly told the plaintiff, “move even slightly and I’ll cut you.” That threat was sufficient to establish confinement.

From the professor’s perspective, the classroom dialogue is similar to the exam answer. But that’s because we impute our own thoughts and words to the classroom dialogue. For many students, the two discussions are very different. How does one get from “sure, that would scare me,” to the exam answer?

Rocklin has a ready answer: teach students the way.

How to Teach Exam Writing

Building on the work of other educators, Rocklin outlines numerous ways to teach students exam writing. She suggests, for example, that professors illustrate the importance of facts when analyzing legal problems: students should tie facts explicitly to each part of the analysis. A good exam answer (or other legal analysis) looks like this:

The issue is X.

The rule for X is A + B + C

A is satisfied here because fact, fact, fact.

B is satisfied because fact, fact, fact.

C is not satisfied because fact, fact, fact.

Conclusion.

Professors, in other words, must teach students how to unpack the “A” part of the IRAC model.

But models aren’t enough. Rocklin also recommends giving students worked examples, showing them annotated model answers, asking students to critique sample answers, providing practice exams, and offering individualized feedback. You can find more ideas, together with detailed instructions, in the full article.

Conclusion

We often refer to the classic law school exam as an “issue spotter.” But we have always wanted students to do more than spot issues; we want them to write concise analyses of those issues. That skill has become even more important in the quick-communication world of modern law practice. Let’s take teaching this skill more seriously. It’s not enough to think like a lawyer; students must learn to communicate like lawyers as well.