By Tonya Kowalski from Washburn University School of Law
Examination season is now upon us. It is time for students to demonstrate their mastery over material painstakingly taught, practiced, and studied for months. To put it into educational lingo, students must “transfer learning” from one educational domain (readings, classroom discussions, and previous assignments and exams, if any) to another (the final exam). Because learning is encoded or stored according to its original domain, learners usually struggle to identify, recall, and apply previously acquired knowledge and skills in the new context.
While successful transfer of learning requires both professor and student to use a number of educational strategies, one of the first and simplest is to set transparent expectations for the assignment. When preparing for essay exams, even students who have reviewed model answers typically will struggle with how much to write, how to structure the answer, how much to cite authority, and so on. And now, with the welcome increase in professionalized legal writing programs and faculty, students also must decide whether and how to apply their deep training in both objective and persuasive structure and style. Professors can help to ease anxiety and encourage a better product by answering some of these often unspoken questions in advance.
For example, students typically are taught in their 1L legal writing courses to start their analysis of any legal issue with a rather firm conclusion, e.g. “Mr. Santos is unlikely to prevail in his claim to invalidate the noncompetition clause. His new business used a sensitive marketing plan that he could have only obtained during his previous employment.” They are also trained to engage in lengthy “rule explanation” or “rule proof” with case illustrations as examples, and often with a discussion of the public policy implications for resolving disputed rules. Some professors would rather see more open-ended issues and more definitive, black-letter rule statements in their essay answers, e.g. “The employer here may be able to show that the marketing plan was a protectable interest if it was sufficiently confidential and could not be readily ascertained by market observers.” Those professors may want students to apply the key authorities, but not necessarily to engage in lengthy discussions of the facts, holdings, and reasoning in a wide variety of decisions.
Finally, professors might like to see many short appellations of issue-rule-application in a row as students work through the problem using IRAC as the organization paradigm. Yet in legal writing, they are taught as future lawyer-practitioners to identify all of the relevant rules, subrules, and exceptions for a particular factor or element within a cause of action before performing any application whatsoever.
In order to encourage grading-friendly and thorough exam answers, professors should consider addressing these and other potential points of confusion for new “transfer learners.” A collaborative meeting with faculty who teach legal writing and academic support can bring these issues into sharp focus.