This is 8 of 10 posts on exams, also known as “The Exam Series,” created by collaborators Amanda Bynum (Professor of Practice, Law | Director, Bar & Academic Success | The University of Arizona, James E. Rogers College of Law); Shane Dizon (Associate Professor of Academic Success | Director, Academic Success Program | Brooklyn Law School); Halle B. Hara (Professor and Director of the Academic Success Program | Capital University Law School); Jacquelyn Rogers (Associate Professor of Law | Academic Success & Bar Preparation | Southwestern Law School); and Sarira A. Sadeghi (The Sam & Ash Director of Academic Achievement | Dale E. Fowler School of Law at Chapman University).
Exam Substance
If the Time Allows Me to Write More, What “More” Should I Write?
Students writing take-home exams for the first time may think the format is carte blanche to write however much they want and to simply transcribe everything already in their briefs and outlines. For those of you who have mandatory or optional pass-fail grading, let’s face it, this is admittedly a large temptation. Transcribe and you’re done, right?
But just as that was not an effective strategy for live open-books exams, it’s not a good one for a take-home exam either. And even if you are no longer shooting for a grade, it is certainly not going to get you a recommendation letter from your professor.
Let’s start with the obvious—you will still have a limited amount of time to download and to upload the exam. And just like physical exams, professors can also impose two very key limits that prevent you from writing the next great novel on contracts law:
Time on task - some professors may give you the exact amount of time you would have had in a live final exam. That being said, your professors and your law schools may be flexible with the time limit, as one of the consequences of our current situation is that not everyone has reliable Internet.
Sentence/word/character counts - we can tell you that some registrars’ and academic deans’ offices have strongly recommended content limits to professors. And while professors are free to set or not set them, think about our mindset - not only did we not sign up to do remote teaching, we did not sign up to read 100+ term papers. (There’s a reason we limit seminar paper classes and legal writing classes to small numbers of students, after all.)
Nonetheless, there are instances when we could write more on a take-home exam. This section answers what that “more” should look like, as our goal is still the same: to write the best exam possible.
Structure your answer with headings and subheadings. In the race to do an in-class exam, the clever adage to create headings and subheadings often goes by the wayside. On a take-home exam, it shouldn’t. Again, consider the mindset of your professors—they know that they may be reading longer and probably more detailed answers than if they gave these exams live, under more time pressure, and/or in closed-book format. Help them digest it in sections. Many professors’ grading rubrics are visually divided by section and space; it helps them give you points to do the same on your answer.
Don’t gloss over opportunities to include analogy, distinction, and policy. Hopefully you have a practice of acknowledging and analyzing counterarguments to get the most points possible on your exam. In the open-book format, you also have the opportunity to sprinkle in layers of analysis that perhaps you’ve ignored on prior exams, such as:
Analogy and distinction. Are the facts in your question like or unlike the cases you learned in the course? You can add this layer to your answer using the following format:
In (case), (key facts), the court held (holding) because (reasoning).
These facts are similar to this case because there …, here,…. OR
These facts are distinguishable to this case because there …, here,….
Policy. Do policy/history arguments strengthen your case? Can you use them to decide a close case or draw out larger importance?
If the Time Allows Me to Write More, What Shouldn’t I Write?
Basically, any sentence that starts with “all.” That means, do not write:
All the rules for a given issue
All the history for a given issue
All the cases for a given issue
In addition, don’t write any rule that you can’t apply to the facts in the problem. Again, some of you may think this is a time to show you really know all the rules. But this was a bad idea before take-home exams became the norm this spring, and it’s still a bad idea now that they are. Your performance is evaluated largely on issue spotting and analysis. Stating rules you can’t apply to facts makes your answer weaker.
Another thing that makes analyses weaker is something our academic support colleague, Professor David Nadvorney (CUNY), calls an introductory fact narrative. That is, your “analysis” paragraph instead just starts with several sentences repeating facts. It sounds like: “This happened. Then this happened. Then this happened. Therefore, the legal standard is met.” Professor Laurie Zimet jokingly tells her students that this sounds like, “Fact, fact, fact, fact, fact, fact …” There are really awesome people who can recall, type, and repeat facts in our profession - they are called court reporters. And while they are incredibly gifted and essential to the justice system, you are not in court reporter school.
There’s a reason many students do this - it’s essentially “warm up” before you actually apply the law to the facts. You’re repeating what you’ve just read and are starting to make sense of it. Except, because you’ve written all this warm up, you look at a paragraph that is several sentences long and think you’ve written a good analysis. And then you never get to the application part - the part that contains the key word “because” or “by” or “since”; the part that makes inferences that certain facts suggest the presence of certain legally significant situations.
Finally, don’t invent facts not stated in the problem. If anything, most professors will expect you to get more out of the facts they wrote on the exam given that it is take-home and open-book/open-resource, not less.
Is what to write something you had considered when studying for exams? Will this change the way you study? Let us know in the comments!