The next four or so posts will be about taking law school exams. Sure, you can do the bare minimum and maybe just skate by, but if you really want to excel, remember that in the game of “hand grenades” close is very good. A close hand grenade will engage the target. For law school exams – especially essay exams – close isn’t very good. On law essays, the student does not earn a great deal of credit for a conclusion, though it is important and expected. The student earns more credit for (1) issue recognition, (2) a good, concise rule statement and (3) a complete analysis of the facts as they relate to the rule. Right now, I’m focusing on the rule statement.
Rule statements can vary somewhat, but the good ones most often offer a definition containing all of the elements of a cause of action. For instance, the rule statement for the tort of battery might be stated as “the harmful or offensive touching of the person of another without consent or privilege.” I say this a bit differently to my students by adding that it is “a volitional act committed with the requisite intent that causes a harmful or offensive touching of the person of another without consent or privilege.” I add those things because I think, if memorized and placed on paper in this detail, a student will be less likely to miss one of the critical parts required to be discussed. For now, this doesn’t make must difference. If your professor gives you a definition, use it. If not, you should be free to use the definition from a case that you have been required to read or from material in your hornbook (generally this is just a legal textbook, as opposed to a legal casebook).
The point is, on a law essay, if one recognizes that s/he is to discuss battery, but then states the rule for battery as something like, “a harmful hitting of one person by another person,” that rule statement won’t get full credit and it may also cause the student to fail to discuss important matters. For instance, the facts may state that person A, while riding as a passenger on an air plane, tapped a flight attendant, person B, on the posterior as B walked down the aisle. The student might conclude that since it was just a “tap,” it was (1) not a hit and (2) was not harmful and thus there would be no battery. Had the student written an appropriate rule statement that recognized a battery as a harmful OR offensive touching, the student may have recognized and discussed that there was a touching and such touching may not have been harmful, but was probably offensive, and therefore concluded that this activity was a battery.
In a game of hand grenades, the first definition would be close enough. On a law exam, the definition simply did not take out the target.
So, train yourself to learn, observe, state and think critically. In law school and in the practice of law, the detail is critical.
© 2009 Douglas S. Holden. All Rights Reserved.