Mid-Term Practice Exam

This is the timeline:

• Friday, October 2, 12:30 p.m.: You will find out which exam you are taking. (For details, including information on getting your AGN and the software for using your laptop if you wish to, see the Practice Mid-Term Exam in a Nutshell page.)
• Sunday, October 4: Some students in Section H will take my property mid-term.
• Wednesday, October 7: I will make the practice mid-term available to all students in my class. If you didn’t take my exam on October 4, you may want to spend an hour writing an answer to it some over the next two weeks.
• Wednesday, October 21: I will return the exams taken on Oct. 4 with written, individualized comments. At that time I will also make available to all students in Section H my general comments on the exam, which you can then compare to the answer you wrote on your own.

Below are some general thoughts that may assist you in preparing for the mid-term practice exam, whether or not you’re taking my mid-term:

• Laptops versus Handwriting
• Anonymous Grading Confidentiality -- Before and After the Exam
• What do I look for in reading an exam?
• Outlining Your Answer

Laptops versus Handwriting:

The Registrar’s Office has information on how to use your laptop, if you’d like to do that. You’ll have to load ExamSoft software onto your laptop. Since we’ve been offering the laptop option, I’ve checked the grades after turning them in and found that there is no significant difference in the median grades for laptop versus handwritten exams, so there’s no need to feel pressured one way or the other.

There are pros and cons that each individual needs to consider. Most people are much more used to writing with their laptops, and it helps to use a format you’re comfortable with. This is probably the most important factor. The quality of your handwriting is important only in cases where it is extremely bad, which is rare. (Most people overestimate how difficult their handwriting is to read.)

Laptops give you more editing flexibility. Also, if you handwrite unusually slowly it’s possible that you could be helped by using a laptop, thus enabling you to say more.

Don’t, though, be lulled by the editing flexibility of a laptop into thinking you can just start writing the moment you finish reading the question. You still need to outline. One danger of using a laptop is that it might encourage you to just launch into writing an answer, figuring you can do your organizing by cutting and pasting. But that’s not a real substitute for organization.

In the end, either approach is fine and is unlikely to matter to your grade. You should go with whatever you think you’ll feel most comfortable doing on the final, and use the experience of the practice exam to test that out.

Anonymous Grading Confidentiality:

I will not know whose exams I’m reading because they’ll be identified to me only by the AGN. If you want to review your practice exam with me individually after I give you your written comments, you’ll need to identify yourself at that point. I’ve seen many people over the years markedly improve their performance on the final, so I know from experience not to pre-judge how well you’re going to end up doing overall if you do have a poor outcome on the practice exam. So if you do poorly on the practice exam and want to go over it with me, showing it to me after you’ve gotten it back in order to ask questions about it won’t have any effect on the final exam grade (remember, the final exam is also blind graded), and it won’t have any bearing on whether you get class participation credit.

For the final, keep in mind that you are bound under the Honor Code to respect blind grading confidentiality. The fact that it’s for your protection does not mean that you can waive it. You need to make sure you don’t inadvertently compromise blind grading confidentiality for the final by:

• Asking me about exam schedule accommodations before the exam: For security reasons everyone takes the exam at the same time. But occasionally if someone has a particularly compelling excuse (e.g., they’re in an auto accident the morning of the exam) the Dean of Students Office may allow them to postpone taking it by a day or so. Any requests of this nature should go to the Dean of Students Office, not me. (Obviously, the strictures of the Honor Code apply to these situations.) For the same reason, don’t mention to me whether you plan to hand write or use your laptop. Questions about the laptop option should be directed to the Registrar’s Office.
• Communicating with me about the exam after you’ve taken it, but before I’ve submitted the final grades: Sometimes students want to give me some information about their answers before the grades are in (e.g., if they didn’t answer one of the questions and want to say why). There’s almost certainly no point in doing this. In principle my view is that I’m not grading the student or their intentions; I’m grading the exam I have in front of me. But if you feel strongly about it you should talk to the Dean of Students Office, not to me. Typically they’ll tell you, correctly, that it’s too late to do anything. In rare cases they might have you write a note to me signed only by your AGN, and then pass it on to me. My practice in those instances is to hold off reading the note until I have completed all grading, and then to take a look at it before I submit final grades to the Registrar, so I can make a judgment whether whatever is in the note should affect the grade. I have never yet come across any such post-exam note that had any effect on the grade received, though.

• I can bump your exam grade up by half a grade for the final grade, but not lower it;
• I can lower your exam grade by half a grade for the final grade, if you have more than five unexcused absences.

What do I look for in reading an exam?

There are certain things you should keep in mind, which I list below, followed by a description of what I am looking for and what can go wrong.

1. Follow the instructions. Pay attention to all the instructions. I put them on a cover sheet. Make sure you read them before you start reading the exam questions.

2. Make sure you respond to the question.
   • What I’m looking for: Does the answer address the issue or issues that the question raised? Did the writer get basic facts wrong? Ignore important facts? Are there significant legal questions raised by the facts that the answer simply doesn’t address?
   • What can go wrong:
     • Sometimes people are in such a hurry to start writing that they rush through reading the question, noticing only a few key words and then figuring they must know what’s being asked. Make sure you read the question carefully -- read it over once, and then go back over it.
     • Sometimes people think it’s important to write down everything they know about the subject. It’s not. You need to thinking about and discussing how the rules (common law or statutory) could apply to these particular facts in a way that would best serve the underlying policies -- “policies” being the reason it would make sense to have the rule in the first place.
     • Sometimes people fail to respond to everything that’s being asked. If the question asks what the arguments would be in favor of a particular individual, and also asks you how you think the court should rule, remember to address both.
     • Sometimes people assume there must be an issue -- one issue only -- in a question. This can especially happen with people who adhere too rigidly to some method like “IRAC” (“Issue, Rule, Analysis, and Conclusion”). People may feel the need to state “the issue” right at the outset. The problem is that there will almost always be a variety of issues. In general, you want to keep in mind that you should aim to write answers that are clearly written and logically organized, and which address the question or questions asked; attempting to adhere too closely to any particular method touted as good for law school exams in particular can easily undermine that aim.
     • Sometimes people simply miss issues because they didn’t notice all the facts. How much missing an issue will count against you depends on how important the issue is; obviously, the more important the issue the more detrimental it will be to omit any mention of it. Avoiding this problem is mainly a matter of reading the question carefully and thinking about it. One thing you might do, after you’ve written your outline (more on that below), is take another quick look at the question. Are there facts mentioned in the question that play no role in your analysis? Sometimes facts may be included in a fact hypothetical just for background, but typically fact hypotheticals are written to raise issues on a particular set of facts. If the answer you are planning on writing will pay no heed to a particular fact (particularly something prominent), you should just spend a moment to make sure that you really think there are no associated legal issues. It may be that there aren’t; I’m just saying it doesn’t hurt to double-check.
     • Sometimes people change the facts in the question and then analyze what the result would be under the new circumstances. Answering a question you’ve rewritten is almost always going to be a problem, especially if it detracts from a thorough analysis of the question that has in fact been asked.

3. Determine what the issues are and analyze them in an appropriate degree of thoroughness.
   • What I’m looking for: Does the writer identify the major and important minor issues? Does the writer seem to allocate his or her time properly? Is a disproportionate amount of time spent on less important issues, and not enough time on more important issues? As to any given issue, does the writer argue for his or her position, or simply assert it? How insightful is the analysis? Does the writer integrate the facts and the law in an analysis that takes policy considerations into account -- or does the writer just restate the facts from the exam, summarily state the “black letter” law, and then assert that one side or the other would prevail?
   • What can go wrong:
     • Sometimes people think they need to get to the point -- to say that “A owns Blackacre,” for example. What I’m looking for mainly, though, is your analysis -- how you get there and why. Keep in mind that I have no way of knowing whether you’ve mastered the material other than by what you write. There are three types of exam answers:
       1. answers written by people who understand the material well and explain their reasoning;
       2. answers written by people who understand the material well and leave out their reasoning;
       3. answers written by people who do not understand the material well and therefore leave out their reasoning.
       When I read an exam answer, 2 and 3 may well look identical. People in the second category therefore receive the same (lower) grade as people in the third, even though they know the material as well as people in the first, who receive higher grades.
     • Sometimes people start out an answer by recounting all the facts. That’s a waste of time. I’m not looking for a repetition of the facts. You do need to mention the relevant facts, but the way to do that is to work specific facts into your analysis where they are relevant.
     • Sometimes people think it’s important to state the rules in their entirety at the outset, in the abstract. They may then follow this by recounting the facts and then asserting a conclusion. That is not the same as analyzing the facts -- once again, discussing how the rules could apply to the particular facts in a way that would best serve the underlying policies.
     • Sometimes people are too one-sided, and sometimes people mistakenly treat everything as equally subject to a counter-argument. If you’re arguing for (say) a caveat emptor standard, you can’t just ignore the arguments for a duty to disclose. You need to take note of the arguments for a duty to disclose and then state why you find them unpersuasive. On the other hand, while (as you should have seen from class) there is often a lot of room to argue, you still need to exercise some judgment. Not every conceivable argument is worth spending time on.

4. Organize your answer and write clearly.
   • What I’m looking for: How good is the writing? Do the steps in the analysis flow logically? How good is the paragraph structure? Is the answer simply a collection of sentences with no particular organization? Is it repetitive? Are there problems with grammar, run-on sentences, and the like? I don’t specifically grade for how well written the answer is, but if the writing problems are severe enough, it may be difficult for me to follow what the writer is saying. An essay answer should be a series of paragraphs in logical order. Each paragraph should have a topic sentence. A topic sentence is what the paragraph is about. Everything that relates to that topic sentence should be in the paragraph, and anything that does not relate to that topic sentence should not be in that paragraph. The paragraphs should also flow logically, so it’s evident when you move from one paragraph to the next why what follows comes after (as opposed to having been addressed earlier or much later). The way to achieve organization is to outline your answer before you begin to write. See below for suggestions on how to outline your answer before you write it.
   • What can go wrong:
     • Sometimes people organize their answer by whatever comes to mind as they think through the question. If this is what you’re doing, you are very likely to leave something out, be repetitive, and hard to follow.
     • Sometimes people organize everything as an alternating sequence of “on the one hand,” “on the other hand,” sentence by sentence. This is very hard to follow. You need to organize your answer by topic. This includes analyzing the counter-arguments to your position, but that needs to be done in an organized way.
     • Sometimes people don’t put any paragraphs in. This is almost always a sign of lack of organization. Of course, you don’t want to randomly hit the return (on a laptop) or insert an indent (in a bluebook); your paragraphs need to be organized and flow logically. But if you’re not putting in paragraph breaks (or doing so only every couple of pages in a bluebook), something is going wrong.

5. Allocate your time properly. This is more likely to be applicable to the final exam, since typically practice mid-term exams have one question. If there is more than one question (or if one question has some subquestions), make sure you spend the right amount of time on each. What is the right amount of time? It basically turns on the weight of the question. For example, if you have a three-hour exam and three questions, and the instructions tell you that all questions will be weighted equally, then spend an hour on each. Keep track of the time so you don’t spend 2-1/2 hours on the first two questions and then have only a half hour left for the third.

Outlining Your Answer:

The purpose of doing an outline is to give yourself notes on what you’ll need to cover in your answer. Writing the outline accomplishes several things:

• It helps make sure you cover everything. Reading through a question you will doubtless see many issues. Even if you think you have all of them in your mind when you start to write your answer, as you get immersed in writing your analysis of particular issues, there’s a real danger that you’ll forget one of the other issues you still need to address. This won’t happen if you have an outline.
• It helps organize your answer. As you read over the question, you’ll think of the issues you need to analyze. There’s no guarantee that the issues you need to discuss will come to you in the most logical order in which to answer them. An outline also helps makes sure that when you’re at the point of addressing a particular issue, you discuss everything relevant then. That helps avoid situations where you have to go back later in your answer and add something. Of course, you can do this relatively easily if you use a laptop, but keep in mind that starting out and writing what comes first to mind, with the idea that you can cut and paste and move things around, still isn’t likely to be a good idea; it will take more time than it would to do an outline and then write your answer in some organized fashion.
• It helps you allocate your time properly in writing an answer. In most cases there will be some issues that are more complicated or difficult than others. The more complicated or difficult answers should be discussed at greater length than the simpler ones. If you don’t have an outline and the first issue you start to discuss is a relatively simple one, there’s a real chance that you’ll spend too much time on it solely because it was the first issue you began to address. The result is that you’ll have less time within the time allotted for the answer to address the most important issues.

How long should you spend outlining your answer before you begin to write? There is no set answer to this question. Spend too little time and the outline probably won’t help you much; spend too much time and you won’t have enough time to write your answer. How much time need depends on how complicated the question is and how quickly you can write. If the question is an hour, and it’s hard to imagine that you could spend less than five minutes reading the question and outlining your answer. Fifteen minutes might begin to leave you feeling rushed in writing your answer, though there might be circumstances where you would want to spend that time. Ten minutes probably isn’t unreasonable. But it all depends on what works for you; the advantage of a practice exam is that you get some sense of this before the final exam. That won’t happen if you don’t outline your answer, though.

How do you do an outline? There’s no one way. As one example, suppose you had the Florida Bar exam problem at Supp. 43. (You may want to re-read it before reading the rest of this section.)

You would want to start by laying out the broad issues preferably with blank spaces in between so you could also fill in some details. Note that there is more than one way to organize your answer to this question. I’m just giving one example here.

First cut at the outline:
______________________________________________________
Cottage--termite damage

House--A/C not cooling; window design; noise from A/C

______________________________________________________

This helps focus your attention on the two questions asked -- what are the Buyer’s remedies against the Builder for the termite damage to the cottage and the cost of repairing the A/C in the house?
Now you can begin to flesh it out. For example:

Second cut at the outline:
______________________________________________________
Cottage--termite damage
   Builder -- seller’s duty to disclose.
   Possible false statement/active concealment (pretty good condition/siding)

House--A/C not cooling; window design; noise from A/C
   1. Builder -- seller’s duty to disclose
   2. Builder -- warranty of quality/habitability (built house)

______________________________________________________

Then you can get more detailed:

Third cut at the outline:
______________________________________________________
Cottage--termite damage
   1. Builder -- seller’s duty to disclose:
     Builder --
       knew about damage (saw it, put siding up)
       it was material -- important to ordinary buyer/buyer foreseeably relied
       was it readily discoverable/visible only in crawl space; should buyer be charged with knowledge of that under duty to disclose?
       didn’t disclose damage (or did he? was lukewarm statement re “pretty good condition” enough to constitute disclosure? Purpose of disclosure requirement met? (nature of relationships among people; cheapest cost avoider)
   2. Possible false statement/active concealment (pretty good condition/siding)
      not really necessary, but might be active concealment of material condition, builder knew about problem and falsely made it look OK.

House--A/C not cooling; window design; noise from A/C
   1. Builder -- seller’s duty to disclose
       knew about problem? Unclear since builder didn’t live there. This is major problem for this theory; if could get around it, then other issues:
         it was material -- A/C likely important to ordinary buyer; so is quiet at night/buyer would foreseeably rely.
         was it readily discoverable? How well A/C works might or might not be noticed when seeing house; noise at night could be hard to gauge. Windows obvious; not clear if effect on breezes, relation to A/C would be obvious.
         didn’t disclose A/C and noise problem.
   2. Builder -- warranty of quality/habitability (Builder built house)
         Builder in business of building houses (could question that briefly -- what does “Builder” mean?)
         A/C that is so noisy it keeps people up, and doesn’t cool, is not workmanlike; not what buyer could reasonably expect from Builder.
         defect was latent -- not easily discoverable:
             as to A/C cooling power might be discovered in ordinary walk through by buyer;
             implications of window design, sleep interference less likely to be so. Purposes of having a warranty would be served by imposing liability
           cost spreading/insurance
           Builder has superior knowledge, greater bargaining power;
           cheapest cost avoider idea (if liability on Builder, builders in general will be more careful)
______________________________________________________

Once you finish with something like this, take a moment to think through which parts will take longer -- i.e., consider how you’re going to need to allocate your time within the answer. Your outline can also reveal instances in which the same discussion might be relevant in more than one place. That might be a hint that you need to reorganize your answer, but if not, you can just cross-reference back to the appropriate place. There is no need simply to repeat later what you said earlier.

In addition, you should see that your outline is going to have only relatively summary indications of the issues. Your answer will typically need to go into more detail.

Notice a couple of other things:

• The question says, “Purchaser comes to you to find out if she has any rights and remedies against Builder.” It doesn’t say, “Purchaser comes to you to find out if she has any rights and remedies against Builder or the real estate broker.” So even though there is a statement in the question that the Builder listed the property with a real estate broker, the question isn’t asking you to comment on any potential liability of the broker. On the other hand, if the question said, “Purchaser comes to you to find out if she has any rights and remedies” -- i.e., if it didn’t say, “against Builder” -- then you would need to address the question of the broker’s liability. (There might not be a lot to say, because there isn’t any real indication that the broker knew about the problems.) You really do need to pay close attention to what is being asked.
• There’s a similar point about whether and how much you should discuss the issue of caveat emptor versus duty to disclose. The problem on Supp. 48 is from a Florida bar exam. Florida, as you know, is duty to disclose state. Thus there really is no reason to discuss whether the standard should be caveat emptor or duty to disclose. A bar exam question is not an invitation to say what the law should be. Suppose, though, that on an exam I had a question like this, but prefaced it by saying, “Assume the following events take place in the hypothetical state of Cania, which generally follows the common law.” Now you don’t know what the standard is. You would need at the very least to point out the two different standards, and analyze what Buyer’s rights and remedies would be under each. You would also need to give some discussion as to which standard was, in general, preferable.
• Sometimes even if you think an issue wouldn’t arise, you may want to discuss it. This is always a judgment call. For example, in this problem, there isn’t much to suggest that the Builder knew about the A/C problem (because he never lived in the house). You could say, “Since the builder didn’t know about it, there is no liability under a duty to disclose,” and leave it at that. When it’s pretty clear that a particular issue is very likely to be resolved a certain way, that might be sensible; you need to get on to other issues. On the other hand, the more room for doubt there might be on an issue, the more you want to discuss what would happen if the issue were resolved the other way.