Test Builder
by
Steven Friedland

Perhaps the high and low points of a semester for a law teacher coincide. It is the last day of classes, when the culmination of all the professor has tried to accomplish often produces a burst of goodwill and nostalgia on the part of both teacher and students. But the goodwill too often subsides as students anxiously look ahead to the exam, and the teacher realizes that an exam must be produced and, even worse, graded. For teachers, the river of satisfaction has hit the dam of understanding: "We teach for free and grade for pay."

In most American law schools, the evaluation of students occurs in the form of a single, end-of-the-semester, multiple-hour, essay exam. The current essay orthodoxy can be augmented, however, by alternative evaluations. In fact, legal academe discovered other evaluation forms long ago. The alternatives range from the time-consuming--midterm exams and papers--to the ephemeral--quizzes and short writing exercises.

One staple in the alternative evaluation constellation is the selected-response question, better known as "multiple-choice." These questions present particular problems: They offer credit only for a "best" answer, and they encourage guessing.

On the other hand, such questions offer great versatility, both on a final examination and as part of the in-class learning process. As a testing tool, these questions provide uniform grading and the opportunity for expansive coverage. As a learning tool, multiple-choice questions can be used as a feedback mechanism to facilitate students' self-assessment and promote active interest in the subject matter.

Building Selected-Response Questions

A blueprint of selected-response questions appears as follows:

Facts -- the body of the question;

Call -- the stem of the question;

Answer choices -- the selected responses.

Two recurring raw materials stand at the core of most selected-response questions: (1) the element of a legal rule or principle and (2) a related fact or facts. The element of mens rea required for depraved heart murder, for example, may combine with the fact that a driver who accidentally killed a pedestrian was drunk at the time. The relationship between legal elements and facts is dissected every day in class in the form of hypothetical questions and appellate case reports. In the context of legal problem solving, the element-fact relationship is central to the outcome.

Step 1: Combine Element and Fact

The first step in the process of constructing selected-response questions is to combine a legal element and a fact. The combination of law and fact is not only important for the body of the question (the fact pattern) but also imperative for the selected responses (answer choices).

Illustrations include:

Step 2: Build a story around the element-fact pairing.

The story provides the context for the basic element-fact combination. A question without a fleshed-out story is less realistic and far less interesting. Story lines from books, movies, television shows, or everyday incidents are popular. The story commences in the body of the question and may continue in the answer choices. Continuations are reflected by facts in the answer choices added through such statements as "If X occurred, then..." or "T will win if...."

Thus, if a law-fact combination is "impeachment--cross-examination of the witness about a perjury charge," a story may be created about a trial involving two youths from New York charged with murder in Alabama. A witness for the defense testifies that he saw the youths near the murder scene while making his morning grits. Can the witness be asked on cross-examination whether he had been charged with perjury before? In the answer choices, the story can be embellished with different facts, such as the perjury charge was three years old, the witness had been tried and acquitted on the perjury charges, and so on.

Step 3: Select an Objective for the Question

The objective of a question is crucial to how it is analyzed. The differing objectives give multiple-choice questions versatility. Objectives include:

(1) the best solution to the problem;
(2) the best/worst argument by a party to the dispute;
(3) the legal and/or policy rationale for the best answer.

When the objective of the question is communicated to the test-taker, it becomes the call (or stem) of the question. A call of the question should be a complete or nearly complete sentence that has the test-taker resolve an issue (who is most likely to prevail?), evaluate an argument (what is the most effective argument for X?), or explain an underlying rationale (what policy supports the court's conclusion?). Underline or italicize the call to make it stand out.

Step 4: Create Answer Choices

The construction of short-answer or essay questions effectively ends after Step 3. Selected-response questions require an additional step--the creation of answer choices. Usually four choices will do; additional choices do not significantly reduce the odds of guessing and make questions more difficult to construct.

Answer choices usually contain an element-fact pairing, although sometimes the answer contains only facts or law. The contents of the answer choices depend on the call of the question. Thus, a call asking for the most likely type of crime that has been committed in the fact pattern may yield answers with only a choice of crimes. A call asking for the best argument by a party will likely focus on the law combined with facts. A call asking for which situation is most likely negligence may have only facts in the answer choices.

Incorrect answer choices can be created by describing (1) correct but irrelevant rules of law, (2) correct but incomplete rules of law, and (3) incorrect rules of law. An answer choice can be overruled precedent, the minority view of a rule, or an inapplicable rule.

When creating answer choices, create one answer choice that is definitely preferable to the others, not one that is marginally better. The distractors--incorrect choices--should be of a similar length and construction to the best answer choice and plausible to the weaker test-takers. Avoid "none of the above" answer choices.

An Example

In property law, a form of multiple ownership is the joint tenancy, which is distinguished by how it is created and its right of survivorship. One issue that arises in joint tenancy doctrine is how a secret sale affects a joint tenancy. Essentially, such a sale destroys the joint tenancy as to the transferring party. Further, a judicial partition may sever the joint tenancy, but the mere initiation of partition proceedings does not.

Step 1: The Element-Fact Pair: Terminating a joint tenancy--a secret sale of a joint tenant's share.

Step 2: The Story Line: Siblings Alice, Bonnie, and Charles (A, B, and C) were deeded the Palace estate by their parents "as joint tenants with the right of survivorship." Months later, after watching "Melrose Place," the siblings began to argue and Alice initiated partition proceedings. At about the same time, Bonnie secretly conveyed her share of the property to Dana (D). Charles did nothing. When Charles learned about the partition proceedings, which were still pending, he drove in a furious state to see Alice. On the way, Charles died in an auto accident.

Step 3: The Objective: Which of the following is the most likely outcome?

Step 4: The Answer Choices:
A. Dana and Alice now own the property as tenants in common because the secret conveyance severed the joint tenancy only as to Bonnie. (Best Answer)
B. Bonnie owns all of the property because the secret conveyance was invalid and Alice lost her share of the property by initiating partition proceedings. (Incorrect conclusion and incorrect statement of law)
C. Bonnie still owns part of the property because a tenancy by the entirety cannot be destroyed by a secret conveyance. (Incorrect conclusion and irrelevant statement of law)
D. Dana and Alice own the property as tenants in common because the four unities are required at common law to create the joint tenancy. (Correct conclusion but irrelevant statement of law)