By Jeremiah A. Ho, University of Massachusetts School of Law
Each fall in my Contracts course, when all of my other colleagues are giving midterms and thus committing themselves to early assessment of student performance, I deviate slightly from the norm. It’s not that I don’t do assessments or believe in early assessments—I actually start on that on the very first day and build many moments during the semester for such purposes. And it’s not that I don’t believe in midterms either—in fact, the exercise I will show you here does involve a midterm—but I use my midterm in Contracts very differently. I use it as a lesson on lawyerly resiliency and resourcefulness.
The midterm I always give in the fall is non-graded, but content-wise it tests all the doctrine that we’ve studied up and until the day of the exam. The test is supposed to take up 45 minutes of a single one-hour-and-fifteen-minute class period. The issues up for grabs include all of mutual assent (offer and acceptance), consideration, promissory estoppel, and contract modification—in both common-law and UCC Article 2 variants (and yes, that means Battle of the Forms, for those commercial law nerds out there). The midterm has both a standard racehorse essay and a set of factual multiple-choice questions. It is a closed-book, closed-notes, and closed-everything exam. It’s difficult; it’s awful; it’s indicative of my final exams, which means even I wouldn’t want to take it myself unless my life depended on it.
I administer the exam as usual. Even though it’s non-graded, my students usually take it seriously enough and have studied for it. And truthfully, I appreciate that. In the minutes before the test starts, I will hear some of them reciting rules and asking each other doctrinal questions. A day or two before, I might have seen a copy of my practice midterm packet strewn somewhere in the law library. On test day, they take their seats, put away their outlines and notes, and crack open their laptops.
What they don’t realize is that I have purposely drafted an exam that is so difficult and intense that it is—in all honesty—nearly impossible to finish within the time allotted. I have done my due diligence to set them up for failure.
But the difficulty of the exam content is only half of this exercise. Somewhere during those 45 minutes, as my students are typing away their answers, I surprise them by stopping the exam with a simulated disaster—usually a fake laptop crash or a power outage. I tell the students who have been typing fastidiously away that their laptops have crashed, while I immediately start passing out a pile of fresh bluebooks that have been hiding under the lecture hall podium. “Take a few. You’ll need to finish the exam by handwriting the rest of your answers.” At this point, the students who had opted to handwrite the midterm are trying hard not to smirk.
When I started law teaching, I did this exercise repeatedly with the goal of developing student examsmanship on law finals and bar exams. The inspiration for the simulated laptop crash came from personal experience because it happened to me during my first day of the California bar exam. Luckily, we had practiced for it. So although it wasn’t ideal, I knew what to do to persevere through that dilemma and pass a high stakes exam. When I began teaching academic support, I started simulating laptop crashes (and a parade of other horribles) that could potentially happen to derail an exam session. Even now, going into my sixth year of teaching first-year Contracts, I find this exercise to really have an impact in helping students develop exam-taking strategies and realizing that technology does not displace good old-fashioned legal reasoning. But in recent years, this midterm exercise has taken on more resonance as I use it as a springboard for talking about resourcefulness in the legal profession.
After the midterm exercise is truly done, I usually don’t debrief the context of the exam. I leave that to another day. The tension in the classroom is too thick. The collective anxiety on the faces of those who have just experienced a small disaster during a fake session of high-stakes testing needs to be dissipated. “Just think if this happened on an exam that counted—like a final or a bar exam,” I say. “Aren’t you glad this counted for nothing?” The first line doesn’t usually fetch a laugh, but the second one always does.
What I do in the remaining class period is discuss what it was like for them to take the exam and to debrief strategies on what to do when bad things happen in high-stakes exam scenarios. I tell them my joke that the first year of law school seems like the facts from the Palsgraf case—where seemingly things that can only in one’s imagination go wrong often do. Of course, I’ll get responses that are seeking my answer to the type of questions like, “If my laptop breaks during an exam, do I need to start over?” or “Who will fix my laptop after the exam?” But after I address those questions, I bring the lesson to a larger, more resonant take-away: that in law practice, where things can be more hectic than a round of first-year midterms, where feelings and passions can run high, and the stakes are larger than failing a bar exam, one must develop an emotional intelligence toward resiliency and resourcefulness. Sometimes professional expectations continue despite mishaps and setbacks. You might think you’re ready to take down an exam, but it could be the exam that will try to take you down. So what will you do about it? What will you do when it’s not an exam taking you down, but some emergency, some major shift in a case, or some set-back in negotiations that will try to impede your ability to represent your client? Where is your true grit?
Occasionally, I’ll get an e-mail from a former student recounting laptop malfunction during a final or bar exam. It’s always a thank-you e-mail. But it’s not the thank-you part of that message that I am looking for. Instead, it’s the part describing that, despite whatever that happened, the perseverance and a cooler head prevailed, and all was fine because of it.