“Closed Book”

By Professor Matthew Festa

What should you do if your exam is not going to be, well, “open book”? My 1L exams are often “closed book”: students may not be allowed to bring their outlines, books, or anything else into the exam. If this is the case for you, what should you do differently throughout the semester, and in exam preparation?

My answer is: not very much. A closed book exam generally tests the same things on the same law as an open book final. You should still read all the cases, participate in class, and do an outline. Why bother with an outline if you can’t bring it in to the exam? Because, as Open Book points out, creating the outline isn’t as much of a goal as it is a process—it’s a fantastic way to learn and reinforce the substantive knowledge. Because of the time pressure of an exam, most people find that they never have much of a chance to use their outlines anyway (or if they really need to, they probably aren’t prepared).

As with “easy” exams, most everyone would prefer an open book exam, but I have found in giving closed book exams that the students sometimes learn more law. So don’t feel disadvantaged if you’re taking a closed book exam. Remember, it’s closed book for everyone else too. More importantly, while there may be some differences at the margins, I think you should approach those classes in generally the same way. Even if it’s “closed book” for you, follow the advice in Open Book, and you’ll be prepared.

“Easy” Exams v. “Hard” Exams

By Professor Matthew Festa

I hear a lot of law students talk about the relative degree of difficulty of a given professor’s exam. “You’re lucky that you have Professor X; her exam is much easier than the prof in the other section.” Or, “don’t take an elective with Professor Y; his exam is really hard.” On a certain level, this makes some sense, but it really doesn’t matter, for two reasons: (1) we’re all teaching pretty much the same law in the 1L curriculum, so you’re going to have to learn the same amount of stuff anyway; and (2) most law schools there’s this thing called a grading curve. And if you’re doing your work in class and throughout the semester, you should want the exam to be difficult.

I gave an exam once that in retrospect was too easy. Most of the students were mostly able to spot the issues and reason their way to the right answers. It was very difficult for me to grade, in terms of making the distinctions between students who had a satisfactory grasp of the subject, and those who really knew it well. So if you’re the kind of student who wants to work had and excel—and you wouldn’t be reading Open Book if you weren’t—you should be prepared either way, and maybe even hope for a “hard” exam where you can really show your stuff.

Your Upcoming Property Exam

By Professor Matthew Festa

While I have the chance to talk with you on the Open Book blog, I figure that I should take the chance to discuss the subject matter that I teach (and test) in: Property. Open Book has a lot of good ideas for understanding Property, plus exam models by several leading teachers in the field.

Property is widely regarded as one of the more inaccessible, difficult, and boring fields of the first-year curriculum. But this is all wrong. Property is fascinating and hugely relevant. I sincerely want you to be interested in Property, and that’s what motivates me in the classroom.

But remember the Prime Directive. And even more than that, Property wouldn’t be in the 1L curriculum if it wasn’t something that you generally need to know as a lawyer. You are going to be tested on property, both in the Property Course and in related subjects. There are good reasons that it’s in the 1L curriculum. Property is basic to understanding law, it’s tested on the bar, and it comes up in practice all the time.

I could go on and on about it, but that’s part of the point: I am passionate about teaching property law, so as students you need to do your best to master it, and relate it to other experiences in your legal education. This is a perspective you can apply to your other classes: it is always good to get some mastery of a well-rounded range of legal subjects; and it is important to focus on what things your teachers think are important.

If the general advice that I gave above isn’t enough for you, as you approach your property exam, here’s a more specific takeaway: as hard as you need to work to learn all of the property rules, there really is an underlying logic to property law. In one short statement, here it is:

Property is a social institution that recognizes your rights against others to possess, use, exclude, and alienate things; you can share or divide those rights with others both now and in the future; you can convey an equal or lesser portion of your rights in time, space, or use. Property law generally allows you to put your property to its highest and best use, but your rights are subject to common law limitations designed to promote efficiency and fairness, including preventing unreasonable harm to others; to certain transactional rules; and ultimately to the government’s power to regulate for the common good.

Wow, I can’t believe that I just boiled down an entire year’s worth of teaching—in one of the foundational doctrinal areas of law—to one sentence (maybe it’s cheating with the semicolons, but I don’t think I’m able to distill it any more than that). It may not be perfect, but I think it’s a pretty good distillation of the essence of property law, and if you keep this in mind it will provide a good background for thinking about property issues and questions. But don’t take my word for it: test yourself and see if you can come up with a concise statement that embodies your professor’s articulation of the theory of property.

But here’s the thing: that’s the easy part. If you get anything out of reading Open Book, you should understand that law school exams—and legal practice—test you far beyond your ability to merely know the law. You have to spot the issues, then apply the correct rule from your toolbox, then apply it to the crazy facts your client gives you. And you have to practice doing all that. Nevertheless, it can be helpful to have a good understanding of a background theory of your subject, which might help you understand and frame the issues, find the appropriate rules, and reason your way to an intelligent conclusion.

Focus on “Active Learning,” Especially as Exams Approach

By Professor Matthew Festa

Even if you know everything about the subject, and have the fanciest outline in town, that alone won’t get you prepared for a law school exam. I think that some of the most important pragmatic advice in Open Book is in Chapter 10, “Practice (Exams) Makes Perfect.” This is especially critical as you get closer and closer to exam day.

For many of us, it’s more pleasant to learn passively. We would much rather just sit down with a book than go to the trouble to take a practice exam. And especially as you get closer to the end of the semester, you might be more tempted to “cram” the substantive material, and keep putting off those practice exams until you completely finish editing your outline.

Don’t do it. Get engaged with the material: be an “active learner.” As Chapter 10 points out, the best way to get better at doing something—sports, law school, whatever—is to go and do it. As you know from reading Open Book, law exams are different from anything you’ve seen before. So as soon as you can, put your book down, stop outlining for a moment, and take a practice exam!

It certainly helps to sit down and write a full answer. But you don’t have unlimited time, so here’s a suggestion: you can also benefit a great deal from just seeing a lot of exam questions. The single most valuable thing I did as a 1L was to meet with my study group with a pile of old exams in the subject. We would take 15-30 minutes to individually read the questions, issue-spot, and outline our answers, in silence. Then we would start talking. It was very beneficial to force myself to work through the answers, but even better to hear what my friends saw in the same questions; where I had missed something, or spotted a different issue. Plus, it was a great way to make friends and commiserate.

However you choose to do it, get out there and practice!

Master Exam Basics Before You Try to Go Above & Beyond

By Professor Matthew Festa

Learning the substantive law that is assigned on your syllabus and discussed in class is hard enough. If you’re really motivated to do well in law school, you might be tempted to think that if you just read more than everyone else you will do better. Not necessarily. Focus on what the professor is teaching, and master that first. There isn’t necessarily much “extra credit” in law school; while your professor may (or may not) be personally impressed that you read a bunch of treatises or law review articles, that isn’t what you’re being tested on. And if you try too hard to show off your extra knowledge on the exam, it may work against you.

This isn’t to say that reading doing extra reading beyond the assignments can’t be helpful—it certainly can . . . to the extent that it helps you better understand the assigned material that will be tested on the exam. You might find yourself much better served by doing more practice exams rather than reading more treatises or law reviews.

This was one of the first things I realized as a new professor: it’s hard enough just to master the basics: spotting the issues, knowing the law, and applying it to the facts in order to answer the question. Focus on that first.

A Law School Exam is a Legal Writing Event

Now that it’s getting to crunch time, we’re delighted to have Open Book Team Member Professor Matthew Festa guest-blogging all week with practical and timely advice.

Hello, my name is Matt Festa, and I’m really glad to have the chance to share a few thoughts here at the Open Book blog. I’m a professor at South Texas College of Law, where I focus on Property and related courses. I have been teaching law for five years—so while I may not have been giving exams for as long as some profs, I can offer the perspective of a professor who was actually taking these exams himself not too long ago. I’ll try to post a few observations from that perspective that might be helpful to you. Open Book expresses a lot of the ideas that I have had about law school exams, and it’s a real pleasure to be part of the Open Book Team.

One of the key insights of Open Book is that law school exams are in fact very relevant to the practice of law. IRAC—being given a bunch of facts, spotting the issues, applying the rules to give correct legal advice—is what lawyers do. And this is primarily an act of communication. Nobody is going to pay you to know a lot about the law. They need you to apply it to their problem and help them. Lawyers often communicate orally, but writing is really the coin of the realm. The most silver-tongued courtroom orator will lose if the written briefs weren’t any good. When a junior associate writes a memo—or even an email—for a partner or a client, that is the communication that serves as the foundation of the legal advice. I believe that you should approach your law school exam as a legal writing event.

Does this mean that your essay must have perfect grammar and style, or that you should spend more time with Strunk and White than with the substantive law? Do I take off points for spelling and punctuation? Of course not. But I do believe that many students overlook the larger importance of writing well on exams. What do we mean by writing well? Your audience—a judge, partner, or a professor grading a stack of exams—is going to be a busy person, and she wants to see a well-organized answer that clearly sets forth the issue and applies it to the facts to get to the answer . . . in other words, IRAC. Organization and clarity are keys. Structure, an explanation of the bottom line, transitions—all that stuff you learned in your legal writing class is highly relevant to the exam.

Thinking of an exam as a legal writing event is important because writing is what we do as lawyers, but also because many students fail to appreciate this. They get into the exam, get a little panicky, and start spewing everything they know about the law, instead of answering the question. It’s frustrating to read these answers, because the legal knowledge is in there somewhere, but the product would be of almost no use to a client, partner, or judge.

All of this advice requires some judgment, of course. Don’t sacrifice valuable time trying to make it pretty. This doesn’t mean literary perfection. It’s more about organization, clarity, and structure: an approach that thinks of the exam as a legal writing event will be more likely to produce a cogent, clear, and effective answer. And remember, between two documents (or exams graded on a curve) that are largely similar in substance, the one that’s better-written is likely to win the tiebreaker.

How to Use the “Real Time” Law School Practice Exams

We recently got asked a question about how best to use the on-line “Real Time” practice exams that we now have available. This is a good question for which we have a pretty definitive answer. First we’ll explain what these exams are, then explain how to use them.

After we wrote the book, our friends at Wolter-Kluwers send the manuscript out to lots of people for input: professors, legal writing instructors, academic support personnel, and mostly . . . students. We got a lot of praise, a lot of good suggestions, and one overriding comment. Students are hungry, they all told us, for more examples and more feedback. We were not surprised, we hear this all the time from our own students. So, we thought and thought about how to provide it. In part we beefed up examples in the book, and in The Commons – to which everyone gets free access with the book – we have answers to those examples.

What we ultimately came up with is what we call the “Real Time” suite of practice exams. We went to seventeen great professors all over the country and asked them to help out. Each one of them took a real exam, and drafted a model answer. Then, they annotated the exam itself to show how and where it was that students were to spot issues or analyze problems. Then, to enhance the feedback, they took actual student exams (with permission from the students of course) and annotated those too, indicating where the students did things right, and not so right. There are several practice exams in each of the 1L subjects. We don’t think anything like this exists elsewhere.

You can see what they look like by clicking on the “Practice Exams” button on the home page or The Commons home page. You’ll find a Webcast about them, and some actual examples. There’s also a link to buy the exams.

Now, to the question: How best to use these practice exams. Notice, we call them “Real Time.” We do that for a reason. As we explain in Open Book, we think taking practice exams is one of the most important steps in preparing for actual exams. Imagine doing anything important without practicing first! Besides, doing practice exams helps you study what you need to know on the real exam.

However – to get what you need to out of them, you must do them in real time. That means taking the practice exams under as near to actual conditions as you can. Don’t just skim one. Read it, and take it. After you do that, read the model answer and see where you went right, and wrong. Then, go to the annotated exam, and see if it helps you understand how you might have done things better. Finally, take the time to look at the annotated student exams, which will give you a huge amount of insight into what are the right and wrong ways to tackle exams, where you hit bumpers and get points, and where you don’t.

We hope these practice exams are a great study aid. But we really do want to help you by giving you what seems most useful. So, we welcome any comments and thoughts you have. Just send us an email from the Contact Page.

Good luck studying!

Law School Exam Preparation Free Live Webcast

Happy Halloween to all the law students out there! We hope everyone took a much-deserved break. Once all of the costumes are put away, law students naturally tend to turn their attention to exam prep. It’s time to start outlining! That’s where Open Book can help. Now’s the time to read Chapters 10 on outlining – and to glance at chapter 12 on practice exams. (You may even want to read the whole book at this point.)

But we have more help! On Tuesday, November 8th, at 7pm Eastern, we’ll be hosting another free webcast. This time around we’ll be focusing on exam prep – especially outlining and using practice exams effectively. We can’t promise there will be candy, but we do hope we can take some of the stress out of preparing for exams – and of course there will be time for plenty of questions! You can sign up by clicking here or following the link on our homepage.

We would love to get questions you have in advance of the webcast, so we can prepare to answer them. You can submit them at authors@openbooklaw.com.

Tell your friends! And we hope you’ll join us on Tuesday!

More on Law School Practice Exams

Tuesday’s post on practice exams generated some questions over at the Volokh Conspiracy to which we think we can usefully respond.

First, we should have made clear that no student’s exam answer will be posted on the Open Book website without the informed and express consent of the student. Interestingly, when we approached our own (former) students for permission and explained what we are doing, they were quite positive. Their uniform response — which might help counter the image of law students as cutthroat or jaded — was enthusiasm at the chance to help other students learn from their experiences.

Second, as we mentioned in the initial post, we agree entirely that getting individualized feedback from one’s own professors is the first-best option. Indeed, borrowing from Star Trek, we state early in the book a law school version of “The Prime Directive” — for his or her class, what the prof says goes. We don’t mean this cynically. We mean merely to emphasize that different profs teaching the same class legitimately emphasize different aspects of the subject and reward somewhat different things in exam answers. The issue we have tried to tackle is what to do in the absence of the first-best.

We continue to believe that studying should be all about practice, practice, practice — especially practice with feedback. There are different ways to do this; we flag them in the book. If your Torts prof doesn’t have practice exams, see if you can find past exams from another Torts professor at your school. If your Contracts prof posts old exams but no model answers, go over your answer with colleagues who have taken the same practice exam.

No appellate litigator worth her salt goes into an argument without having been ‘mooted.’ That’s because experienced lawyers understand the importance of practice. This is another respect in which law school mirrors and teaches practice. 90% of the practice of law is practice — i.e., careful preparation.

Do Profs Teach What Law School Exams Test?

We’ve been blogging over at the Volokh Conspiracy about law school exams and our new book Open Book: Succeeding on Exams from the First Day of Law School.

In response to a post about how exams mirror law practice, several commentators raised a fair question: do law professors teach what gets tested for on exams?

Our answer is: sometimes yes, sometimes no, and maybe.

Perhaps the most poignant of concerns was that of Mario O who said law professors should teach issue-spotting more deliberately, writing: “It’s like showing people pictures of violins and reading books about violins — but never touching one — and then for the final the student has to perform a solo with an orchestra.”

For what it is worth, we agree –- we devote several chapters of our book to meticulously taking apart the issue-spotting process, showing how to spot issues, apply rules, argue both sides, all the skills that go into writing a good exam.

But we think there are reasons professors don’t do more. Here, we speculate, welcoming your reactions.

Our suspicion is that the folks who are now law professors tended to be students to whom the particular skill of exam-taking came naturally. If so, it would not be a huge surprise to learn that they often underestimate the challenge that exams pose for many students. This is not an excuse, just an explanation: if you find something intuitive, you may have trouble appreciating that others find it counter-intuitive.

There’s another, more substantive problem at work here. It is not at all easy to teach what makes a good or bad legal argument. Several commenters pointed out that this best is learned in practice. We think this is true, albeit overstated. In the classroom — especially a Socratic classroom — the professor is (or should be) pushing students to make arguments and giving the students a feel for what makes for a better or worse argument.

Finally, there is a point to the “inside-out” approach of the law school classroom. Legal argument requires knowledge of law, and professors tend to teach cases rather than problems because the cases pull double-duty as lessons in substance and reasoning. This response is not entirely sufficient. There can and should be cases and problems. Probably most of us could do better in ensuring a proper mix between the two.