Most students come to law school having never taken an issue spotting essay exam. Despite this, very little (if any) time is devoted to teaching students how develop this skill. In the most basic terms, issue spotting occurs when a student uses the facts in a fact pattern to trigger a discussion of the relevant law from the course. If a student misses an issue, that student will lose the points allocated to discussing that issue.
A typical law school exam has multiple issues—some big and some small. In my ASP course, for example, I recently ran an assault exercise. It was a single-issue exercise in the sense that the prompt asked only if an assault had occurred. A strong answer, however, required discussion of many sub-issues, such as whether there was an act, an intent to assault, and resulting apprehension of an imminent battery. Even if an issue is satisfied easily (as the act was in this particular fact pattern), it still requires a discussion using the IRAC paradigm.
More often than not, students with an issue-spotting problem simply do not know the law cold. Students sometimes think that they know the law when they are instead merely familiar with it. This occurs with students who study by reading and re-reading notes or outlines without self-testing to identify the strengths and weaknesses in their understanding. In coaching sessions, students frequently refuse to acknowledge that a lack of knowledge about the law may be the source of the problem. In response, I give them a fact pattern that goes something like this:
Susie is a senior at Maple Leaf High School. Susie attends the homecoming dance with a group of friends and has a wonderful time dancing, laughing, and talking with them. After the dance is over, Susie calls her mom and says that she is going to an after-party at her friend Jake’s house. Her mom says fine but tells Susie to be home no later than 1:00 a.m. Susie agrees and joins a large group of teens in Jake’s basement. Susie has never consumed alcohol before, but she gets pressured to join in a game of beer pong (she’s highly competitive). It turns out that all of Susie’s team members lack hand-eye coordination and couldn’t land the ball in the opponent’s cup. Consequently, Susie and the rest of her team were forced to drink several cups of beer.
Susie felt the effects of the beer almost immediately. Friends observed her stumbling to the bathroom and slurring her words. Around 12:45 a.m., Susie looked at her cell phone and realized she needed to leave. Susie dropped her keys several times as she stumbled on the way out to her car. Two of Susie’s friends followed her and insisted that she shouldn’t drive. Susie left anyway and was stopped by a police officer after her car drifted continuously from one lane to the other. Can Susie be found guilty of a crime?
Our discussion then goes something like this:
Q. What is the issue?
A. Drunk driving.
Q. How do you know?
A. I just know.
Q. What facts in the fact pattern caused you to identify drunk driving as the issue?
A. I don’t know. That she drank alcohol.
Q. Okay, what else?
A. That she never drank before.
Q. What else?
A. That she drank several beers when she was losing at beer pong, that she stumbled and was slurring her words, dropped her keys, and was drifting from one lane to the other.
Q. Anything else?
A. Well, her friends told her not to drive.
Guess what the student has done? The student used the facts in a fact pattern to trigger a discussion of the relevant law. This problem seems simple to students because they are very familiar with drunk driving laws. “It’s easy,” they tell me. “That’s true,” I say, “but only because you know the law so well.” “The same will be true on your law school exams if you know the law from your course that well.” In sum, firm knowledge of the law is crucial to issue spotting on exams.
But memorizing rule statements alone is not enough. Students must also know the relationship of concepts to one another to understand the “big picture” of the course. This is why creating an outline or mindmap with a discernible hierarchy is important. The best outlines also contain issue spotting tips. To state an obvious one, an issue-spotting tip for “act” might say “look for movement.” Then, as the outline nears completion, students should create an issue-spotting checklist (also known as a skeletal outline) that contains only key words or phrases—no definitions. If the exam is closed book, students can memorize the checklist. Otherwise, they can bring it into the exam.
The absolute sbest way to perfect the skill of issue spotting is to practice, practice, and practice some more using practice exams. If time is limited, it is unnecessary to write an entire answer. Instead, students should practice creating a plan of their answer, which identifies the issues and the facts relevant to each. Finally, students should seek feedback from their professors to be sure they are identifying all of the issues.
It is worth mentioning that issue spotting is a skill necessary in practice. For example, when a distraught client comes into a lawyer’s office and starts explaining that he has worked for the same employer for thirty years but his work has become intolerable due to co-workers taping rude notes to his locker and in the bathroom calling him an “old man” and telling him “to retire or just die,” it is up to the attorney to use those facts to identify a potential hostile work environment claim. Thus, issue spotting is essential both in law school and in practice.