Factual analysis is an important lawyering skill. You’ve been learning and practicing this skill in your LRW class and during discussions of cases and hypos in your doctrinal classes. As you prepare for finals, you may be primarily concerned with understanding and memorizing legal rules. But final exams will require you to demonstrate factual analysis as well. Applying the law to the facts is the most important aspect of most exam answers.
The fact pattern on a typical law school exam may include facts of three types: background facts, legally relevant facts, and irrelevant facts. These same categories occur in LRW assignments and in Real Life, where lawyers sort through facts gathered during discovery. While these factual categories occur in many contexts, the balance on exams tends to be a bit different than elsewhere. Due to space limitations and the purpose of an exam – to assess your mastery of the material – nearly all the facts tend to be relevant
Here are some tips for approaching the facts on a law school exam.
Start with the call of the question.
Your first step on any law school exam is to read the call of the question. Do this before you read the facts. This will give you some context for the facts and will make your reading more efficient and focused because you’ll know what you’re looking for. If the call of the question is specific, such as “Can D be liable for battery against P?” you will think of the rule for battery first, then read the facts with that rule in mind. If the call of the question is broad, such as “Discuss all claims that P could make against D,” you will depend on the facts to lead you to the applicable rules. Here’s a closer look at each approach.
- Specified legal rule. If the call of the question signals a specific rule, jot down its elements and then read the facts carefully, searching for facts that pertain to each element. In the example of battery, you would immediately think of an intentional act that causes harmful or offensive contact with another person, then read the facts and look for those that demonstrate the presence – or absence – of these elements.
- Unspecified legal rule. If the call of the question is broad, you will have to read the facts and recognize which facts trigger a particular issue and rule. Look for facts similar to those of cases you read or hypos discussed in class. For example, if D throws a rock at A but strikes P, you should think of battery and transferred intent. Jot down the elements of battery and the rule for transferred intent, then match the facts to those elements to determine whether there’s a valid claim.
Try to use all the facts.
After you match up the facts with the elements of the claim, go back through the hypo and see if there are any facts you did not use. Some of these may be background facts that simply contribute to a coherent story. For example, if D struck P with a rock during a backyard party at P’s home, the fact that they were at a party may be just a background fact that explains why D and P were in the same place at the same time. But the backyard party may cause you to consider certain issues relating to the status of P as landowner and D as invitee or trespasser.
Look for numbers.
Some types of facts are almost always legally significant. Chief among these are facts involving numbers, such as dates, ages, and dollar values. Dates trigger a multitude of issues, including statutes of limitations and filing deadlines in civil procedure, adverse possession in property, and the mailbox rule in contracts. If anyone in the hypo is a minor, that’s likely to be a legally relevant fact, going to such issues as ability to make a binding contract and certain sexual offenses. Dollar values are relevant to diversity jurisdiction in civil procedure, damages in contracts and torts, and numerous other issues.
Look for quotes.
If someone speaks in a fact pattern, pay close attention to what is said. The speech may be relevant to such issues as contract formation, mens rea, provocation, or tortious intent.
What about red herrings?
There is no guarantee that your professor won’t include a red herring: a fact that looks relevant but really isn’t. This is unlikely, however, because of space constraints and the purpose of the exam. Most exams are drafted in a very lean fashion. Professors know you’re working under time constraints. The professor’s goal is to assess whether you’ve learned the material, not to trick you into wasting time on tangents.
With these tips in mind, you should be able to approach the facts on your exams effectively.
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