Passing Observations

Some thoughts on writing exams, from a guy who just graded 240 of them

As I’ve mentioned in previous posts, I recently graded (or, as we say in New Zealand, marked) more than 240 exam papers (or scripts). So I thought I’d volunteer some observations, in case any students who might be reading this are looking for tips. Of course, much of what follows will feel intuitive to many, and perhaps to most. The art of answering exam questions is not especially difficult to master. But there are, I can now tell, more than a few people who really could use some advice before they sit another final. (Whether they read my blog is a different question, admittedly.)

By way of introduction, let me say something of which students don’t think (I know: it’s not very long ago that I was a student myself!). A student writes only four or five exams, at most, at the end of a semester, but an instructor has many dozen, and possibly (as in my case) several hundred of them to read. This means that I only have a few minutes to devote to each script. (Ever complained about the marking taking too long? I know I have. But if it had to be done faster, that would mean even less time to look at your answers!) If I don’t know what you are saying ― whether that’s because your answers are poorly structured or even because your handwriting is atrocious ― I’m not going to spend a lot of time figuring it out. If you want me to understand you, it’s your job to make sure I do.

And beyond that, it’s in your self-interest to make sure that I… how to put this nicely… don’t get too worked up while reading your answer. Sorry as I am to say this, when reading the answer to the same question two hundred times over, it is unfortunately easy to find small things aggravating. I know one should not get aggravated, and I try not to. But still, don’t give me reasons to become annoyed. Try to spell correctly ― especially when you are writing my name on the exam booklet. (Seriously. I’ve seen my name spelled a couple dozen different ways, though the best one was the student who wrote my last name as Sinatra.) Try to punctuate sensibly ― instead of just randomly strewing periods all over your answers, or at the end of each line. Try to use proper syntax. In particular, ensure that your sentences have subjects and conjugated verbs, and that they are not just subordinate clauses floating around without anything to attach them to. (Of all the annoying things I’ve seen, this one is perhaps the most bizarre.) If your writing tone is formal, don’t be pretentious; if it is conversational, don’t be familiar. Oh, and please, don’t make unfunny jokes. Keep in mind that if you feel the need explain your joke, it’s probably not funny. And when in doubt about whether a joke you want to make is funny, abstain.

This all goes to the form of your answers. Let’s now turn to the content. The single most important thing is also the simplest one: answer the question you are asked! I will at least try to overlook those annoying periods all over the place, ignore ignorance of apostrophes, and put those free-floating subordinate clauses down to the stress of the exam room; but I can’t pretend that you are answering the question when you are not. In particular, if the question is a descriptive one, asking you what the law on a certain point is, don’t answer it as if it were a normative one, asking you what the law ought to be. And if the question asks you for a prediction about the consequences of a development in the law, don’t answer by explaining why this development ought not to, or will not, happen. That’s just not what I want to see, and as a result, your grade for that question will not be one that you want to see.

Another general point is that you won’t get very far by simply spewing the notes you took in class, and a fortiori the notes that I provided, right back at me. For the most part, doing this just shows that you have no idea what you are talking about and are throwing the proverbial kitchen sink at me. The same goes, of course, for keywords from my Powerpoint slides inserted into answers regardless of relevance. A related point is that if the exam is wholly or partly open book, you shouldn’t just print out your entire notes for the semester. Prepare an aide-mémoire that synthesizes what you’ve learned ― it will help you study, and finding things during the exam will be much easier than rummaging through a semester’s worth of notes. The one I used for the first year contracts exam, for a full-year class, was all of seven pages long, in size 12 font. It’s perfectly doable if you put in the effort. And of course, “putting in the effort” means actually understanding the material, enabling you to show the instructor that you have understood ― which is precisely what he or she wants to see.

Some more specific issues now. Perhaps the most important one is that you need to distinguish what is and what ought to be. This is one of the most important things in legal education, and it’s a safe bet that most instructors try to get you to do this, and want to see you do it on an exam. So don’t assume that things are necessarily right the way they are, and don’t assume that things were necessarily wrong in the past, when they were not as today. Don’t assume that judges always act as they are supposed to ― they are only human beings, prone to error and susceptible to the corrupting effects of power, especially to the desire to increase the power of courts at the expense of other institutions. But don’t assume that Parliaments and governments are always looking out for the public good, either. Don’t assume that they are all always wrong, or corrupt, or evil, of course. Judge each case on its own merits, and don’t forget that there is a decent chance that, if you are being asked a question, the answer to it is not altogether clear-cut or obvious. Pay attention to the context of your answer, perhaps especially on problem questions: if you are asked to write a memo for a client, it is probably not helpful to launch into philosophical disquisitions, or discussions of Roman law. Whatever the question, however, avoid making pompous general statements, which are invariably untrue and almost as invariably irrelevant (these include, for example, declarations that something has been done “throughout history” or needs to be done “in every country”). Last but not least, know your stuff! Don’t confuse Governor-General and Attorney-General. Don’t represent a concurring or a dissenting judgment as that of the court (even if I focused on that particular judgment in class). And don’t bring up a case to illustrate the application of a common law rule developed or a statute enacted years after that case was decided (in other words, know when the cases we studied were decided).

Contrary to what some students think, it’s actually a lot more fun for an instructor to give good grades than bad ones. It’s certainly more fun for me. But that doesn’t mean I’ll do it without good reason. I’m happy to interpret borderline cases favourably to you ― but not to pretend that your work is better than it really is. Do it well, and we’ll both be happy. Good luck!

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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