To write a great law school exam answer, you’ve got to do one critical thing: Deal with the ambiguity.
Why is Ambiguity Important?
I know, you want there to be one “right” answer. Time to get over that. Why? Because the points are in the close questions.
If you were a professor, which student would you give more points to?
- Student One: The defendant is clearly not liable for assault, because he didn’t mean to scare the plaintiff and he never touched her.
- Student Two: It’s a close question whether the defendant is liable for assault. He testified that he didn’t intend to scare the plaintiff, but the relevant legal standard is an objective one. His subjective intent is irrelevant. Therefore, the question is whether plaintiff’s fear of a battery was objectively reasonable. In this situation, where the plaintiff was alone in a dark alley when defendant approached her yelling “I’m a fallen angel come to save you!,” plaintiff has a fairly strong argument that her fear was reasonable. Defendant will argue that he never touched her, or came close to touching her, but a reasonable person in those circumstances would have been in fear of imminent bodily harm.
I’m going to go with number two.
Where Does Ambiguity Come From?
In a nutshell, there are two primary types of ambiguity:
- Factual ambiguity: Just what it sounds like. The facts are ambiguous. In our example above, would a reasonable person in this scenario have felt threatened? If you interpret the facts one way, yes. If you look at them somewhat differently, no. In the end, it doesn’t really matter which way your answer comes out — what matters is that you recognize, and discuss, the issue. (An even better answer than the ones above would analogize to similar cases and explain WHY it was reasonable for our plaintiff to feel threatened by the defendant’s behavior that night.)
- Legal ambiguity: This one’s a little more subtle. It’s when the outcome would be different, depending on which legal rule applies. So, in Contracts, for example, you might have a situation where the case comes out one way under the common law, and the other way under the U.C.C. Here, the point isn’t to say “Oh, I’ll apply the U.C.C. so the answer is X.” It’s to think about whether you could make an argument for using the common law, and also make an argument for applying the U.C.C. That’s probably why your professor set up the question the way she did! If you simply pick one, you’re going to leave most of the available points on the table.
Resist the Urge to Be Right
The next time you approach an exam question, resist the urge to get to “The Answer.”
Instead, explore the ambiguity, showing your work along the way. You’ll probably end up with a lot better grades, even if the process is uncomfortable!
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