midterms

By Jeremiah A. Ho, University of Massachusetts School of Law

Two weeks ago, I finished my midterms in first-year Contracts. Instead of doing the usual exam debrief the next class day, I tried something new that I very admittedly borrowed from Professor Allie Robbins at CUNY Law. Rather than merely walking through the essay problem and explaining the issues and answers, my students graded sample partial exam answers based off the exact same essay problem I gave them on the midterm.

My Contracts midterm this fall covered the major formation issues (governing law, manifestation of mutual assent, and consideration). For this exercise, I wrote up two sample answers addressing only the mutual assent issues (i.e. offer and acceptance). Both sample answers hit the issues and discussed the facts and analysis similarly. On the substance alone, both answers would have likely received the same score for issue spotting. However, Sample Answer A was much better organized and discussed the issues using a very detailed IRAC structure, while Sample Answer B was less well-organized, often failed to follow the IRAC format, and in essence, was a sloppier answer.

Since they had already taken the midterm and we had already discussed the entire essay, they were already familiar with the essay problem and particularly its coverage and analysis. With the two sample answers and grading rubric in front of them, I gave them 10 minutes in class to grade both answers.

My goal was to show them that organization is really important and that an otherwise good answer can lose points can be lost if the grader cannot readily find it. My students were surprised, at first, at how hard it is to grade an answer. My sarcastic response (“Yay, happy holidays to me.”) drew some irreverent laughter. But the more important response was the shift in my students’ perspectives from thinking that the exam was where they illustrated only what they knew about the subject matter to understanding that the exam was also where they had to demonstrate their knowledge in the most effective way—in an organized manner that can better display their mastery of legal reasoning.

When I polled the students for which answer they preferred, the overwhelming choice was Sample Answer A, the more organized, structured answer. Their preferences for Sample Answer A were followed by responses such as, “Answer A is much more effective and easier to read,” and “The writer for Sample Answer B really didn’t sound like a lawyer.”

I told them that format and structure counts on my exam: “So you see how Sample Answer A is likely going to get a higher grade because what I’m also looking for is effective legal reasoning?” I revealed to them that I didn’t think Sample Answer B would fail, but if it wouldn’t have received as high of a grade than Sample Answer A. “And if you’re going to spend all that time and energy on my final talking about the same things, why would you not aim for higher?” Students also noted that following the IRAC format more closely seemed to allow Sample Answer A to craft more precise rule statements and juxtapose law and fact for a more balanced analysis. Sample Answer B, on the other hand, tended to ramble. On law school exams, format and structure does makes a difference. Hopefully, this exercise did get my students to be much more motivated on developing their IRAC and essay organization skills for their fall final, alongside their ability to understand the doctrinal material. Happy holidays to me.

At CUNY Law, Professor Robbins uses this exercise also in bar support to show bar takers why a well-structured and organized answer would make a difference to a bar grader with hundreds of essays to grade and only a few minutes to grade each answer. My variation brings this into the first-year classroom. But in both settings, the exercise hopefully tries to convey that on exams, it’s not just what you say, but also how you say it that matters.

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.