It’s every student’s worst nightmare: you sit down to write an essay answer, and you’re prompted with information that you don’t know how to handle. Your mind goes blank, your palms start to sweat, and you ask yourself—what do I do?
First, don’t panic. Essay exams are not solely about legal knowledge, and you certainly know something about the topic. With the right tools and some confidence, you can fake it till you make it (or even better, come up with some solid analysis).
Here are some tips from a seasoned exam-taker that will help you write a strong essay, even if your legal knowledge has some gaps.
1. Respond to the specific question presented in the essay prompt with a definitive answer.
There are many different types of essay questions; you might be asked to advise a client, write an opinion for a judge, or opine on the likelihood of success of a given claim. Each of these scenarios requires a different framing for your answer. For example, a Contracts or Property essay might invite you to offer practical advice, in addition to legal analysis. In such a situation, the difference between an A and an A- might be the quality of your practical advice. Indeed, this mirrors legal practice by encouraging you to think outside the box of litigation. Practicing the different types of essay questions prior to exam day can supplement the knowledge you’ve learned in class and help you write better answers. On the other hand, the failure to respond to the specific question can sometimes be catastrophic. If your professor asks, “what is the plaintiff’s best claim under the facts,” and you answer “the plaintiff will likely lose on the merits of the claim,” you’ve missed the boat, and will be penalized. Careful reading of the “call of the question” is vital to essay and short-answer success.
It’s also important to provide a definitive answer to the question presented. An answer such as “it depends on whether the plaintiff passes the equal fault bar” might seem like an attractive essay thesis, but your professor is probably first going to look for a yes or no answer to the question. Start big picture, and work your way through the legal analysis in an organized fashion. Most often, your professors will write essay questions that involve arguable issues, so don’t fret about whether you “chose the right answer.” As my Business Enterprises professor likes to point out, usually there are no answers. Consistency, organization, and depth of treatment matter far more than whether you fell on the “right” side of the case.
2. Consider organization and time management before you write the first word.
As I alluded to above, the structure of your answer matters in an essay exam. Ideally, your response should mirror the format of an abbreviated legal memo, where you state the conclusion, identify the governing rule(s), apply those rules to the facts presented, and restate your conclusion in a manner that responds to the call of the question. I’d also build on a point above by suggesting that practical advice can fall in the final conclusion paragraph, if applicable. If there are multiple issues in a single essay prompt, identify all of them as clearly and as early as possible, then deal with each in turn in your rule and application sections. Your professors will look for systematic treatment of the issues and coherent flow, in addition to whether you correctly state rules.
Time management is another feature of essay exams that may be new to law students. First, let me note that speedy typing and writing longer answers is not the only, or even necessarily the best, strategy for time management. Professors don’t want their exams to be a typing test, and in my personal experience talking to my colleagues, TAs, etc. it’s often the mid-length rather than the longest essays that score the highest. I think there are two reasons for this. For one, it’s easy for a lengthy essay from a student who isn’t maybe the most familiar with the material to turn into word vomit. I call this the shotgun strategy. Sometimes it works, but more often an essay following the shotgun strategy includes some brilliant points, some awful points, and some irrelevances. Moreover, these essays very frequently lack an overarching structure and points simply get lost because they aren’t concisely restated in the conclusion and the professor “forgets” how well they were argued.
Don’t follow the shotgun approach to essay-writing. Instead, take the first two minutes after reading the prompt to jot down the issues (examsoft and other programs make this even easier because you can simply outline in the text box, then edit it into an essay), decide on a definitive answer to the call of the question, and organize your thoughts into sections identifying and applying the important rules. Indeed, even if you run out of time following this strategy, at the very least you’ll have identified the important issues for the professor grading your exam; thus, effective organization can capture the benefits of the shotgun strategy by allowing you to hit everything early on. Check back on your organizational outline as you complete the response to ensure that you aren’t forgetting anything. If you write nothing down, it can be easy to forget an important issue even when you’ve identified it while reading the question.
3. Decide how to use cases prior to exam day.
All of the cases in your expensive textbooks have ostensibly been selected for a reason other than to consume paper; still, many law students memorize case names and points of law without ever asking themselves why or how they will use the information come exam day. Some 1L classes (torts, criminal law, contracts) don’t have landmark cases that will almost certainly need to be cited in your essays (whereas in Civil Procedure, on the other hand, you’re likely to cite International Shoe no matter who your professor is or what facts are presented). In these classes, where the cases simply illustrate issues and points of law, rather than standing for the law directly, you’ll likely only cite to cases by way of comparison. This is okay, and indeed offers you an opportunity to stand out from your peers by distinguishing cases from each other. But in that light, it becomes more important to remember facts and pick out two or three cases for each given issue that you’ll likely be presented with, rather than attempting to memorize your entire casebook. In other words, consider how each case could have been decided differently under different facts, and critically evaluate everything you’ve studied rather than blindly memorizing case names and points of law.
Conclusion: lean on your skills!
Taking your first law school essay exams can be a nerve-wracking experience, but by thinking in advance about how to use your newly-developed legal writing skills you can give yourself the tools you need to excel! Ultimately, your writing ability—which you can develop well in advance—is just as important to your success as any particular subject-matter knowledge. This is true in your classes as well as when you take the bar exam. Hopefully these tips can help you start to think systematically about how to approach essays. By simply responding definitively to the question, logically structuring your answer, and using cases effectively, you can make up for gaps in your legal knowledge by maximizing the impact of the information you do know. With that in mind, no matter the context there’s no need to panic when you sit down to take your first exams. Please comment with any other questions or additional advice, and feel free to share!
Briana Rosenbaum, The RICO Trend in Class Action Warfare, 102 Iowa L. Rev. (forthcoming 2016), available at SSRN.
A racketeer, a mobster, and a plaintiffs’ mass-action attorney walk into a bar. What might be a decent setup for a joke is actually dead serious. Like members of organized crime, plaintiffs’ mass-action attorneys are being sued under the federal Racketeer Influenced and Corrupt Organizations (RICO) statutes. Briana Rosenbaum’s The RICO Trend in Class Action Warfare carefully considers existing remedies for frivolous litigation and critiques what she sees as the inefficacy of “the RICO reprisal.”
Rosenbaum readily admits that some mass-action attorneys include frivolous claims among meritorious ones in an attempt to obtain a larger settlement, otherwise known as “specious claiming.” But Rosenbaum argues that remedies for abusive litigation already exist. There are tort remedies such as malicious prosecution and abuse of process, and procedural remedies such as Fed. R. Civ. P. 11 and 28 U.S.C. § 1927. Rosenbaum posits that this existing remedial structure for vexatious litigants, while imperfect, was at least created with important countervailing policy considerations in mind, such as access to justice and administrative efficiency.
None of these countervailing policy considerations went into crafting RICO as a remedy for abusive litigation. Rosenbaum uses CSX Transportation, Inc. v. Gilkison as a case study to show just how poorly RICO works. CSX is the only known case to go to trial and result in a verdict against the plaintiffs’ attorneys. It arises from asbestos litigation, where it is undisputed that the plaintiffs’ law firm relied on a questionable expert who used controversial diagnostic methods. There is much to say about this case, but for purposes of understanding Rosenbaum’s article, one need know only the bottom line. The asbestos litigation defendants filed a RICO claim against the plaintiffs’ attorneys and demonstrated that eleven out of the 5,300 claims filed, or 0.2%, were baseless. On that evidence, CSX won its RICO claim at a jury trial, leading the parties to settle the case for $7.3 million.
To understand how this happened requires a basic understanding of RICO. First, to win a civil RICO claim, an injured party must prove that the defendant engaged in an enterprise through a pattern of racketeering. The statute provides an exhaustive list of “racketeering activity,” but the most common “predicate offense” in these recent cases against plaintiffs’ attorneys is mail or wire fraud. This criminal act must be shown before there is any civil liability under RICO. In CSX, the court found that every time the plaintiffs’ law firm filed a paper with the court—such as a complaint—or sent correspondence to opposing counsel—such as a letter with a courtesy copy of a mediation request—it committed mail fraud. The court determined that it was not just the eleven fraudulent claims that established a pattern under RICO, but was instead the mass suit itself because the attorneys allegedly used the threat of a mass action that included concealed fraudulent claims to leverage a higher settlement.
CSX is a shocking case that is part of a larger trend of mass-action defendants pursuing plaintiffs’ attorneys through RICO. The CSX numbers and facts are staggering, but perhaps appropriate if the punishment fits the crime. Rosenbaum argues that it does not. Calling on existing critiques of RICO in other contexts, Rosenbaum points out that necessary legal practice activities, such as making phone calls and filing court documents, become potentially criminal. Moreover, successful RICO claims result in treble damages, which inflate what a party would normally recover in a garden-variety malicious prosecution claim. If we are concerned with ensuring that courts remain open to aggregate litigation claims, Rosenbaum argues, RICO is much too powerful a weapon.
Rosenbaum also presents more nuanced arguments about why RICO is a poor regulation tool against frivolous claims. For example, she argues that RICO unnecessarily usurps state-law methods of regulating litigation. After all, RICO’s pleading standards and burden of proof are lighter than a state-law malicious prosecution claim, and the damages are certainly larger. This makes bringing a RICO claim, rather than a state tort claim, something of a no-brainer for defendants seeking a remedy against vexatious aggregate-litigation plaintiffs’ attorneys, which is exactly the problem that Rosenbaum wants to highlight. Perhaps RICO makes it too easy, producing a negative impact on aggregate litigation overall.
Finally, Rosenbaum points out that RICO is at once under- and over-inclusive. It is over-inclusive because it targets the entire mass action as a violation, not just the handful of baseless claims that may be part of that litigation. It is under-inclusive because it addresses only a sliver of the structural challenges aggregate litigation presents. Again, Rosenbaum does not dispute that over-aggregation is a problem, but relying on defendants’ attorneys to regulate plaintiffs’ attorney conduct seems equally problematic.
If RICO is to remain a part of the litigation game, however, Rosenbaum argues it should be reformed. When pure litigation conduct is challenged, courts could require a showing of malicious intent. This would bring RICO in line with existing common law remedies such as malicious prosecution. It also would re-balance access-to-justice concerns. Our system cannot be completely free from frivolous litigation. Indeed, we must tolerate some frivolousness in order to make room for meritorious claims. Moreover, requiring a showing of intent in the RICO context would not leave defendants without any recourse. They could still use existing remedies for pure litigation conduct, and RICO could be reserved for truly egregious litigation schemes.
Perhaps the title of this essay—Racketeers, Mobsters, and Plaintiffs’ Mass-Action Attorneys—made sense to you as a story about three equivalent evildoers. Or perhaps, like me, this group of individuals struck you as incongruent. Regardless of which explanation most speaks to you, you will benefit from reading Rosenbaum’s take on this emerging development in the civil litigation game.
Cite as: Brooke D. Coleman, Racketeers, Mobsters, & Plaintiffs’ Mass-Action Attorneys, JOTWELL (October 12, 2016) (reviewing Briana Rosenbaum, The RICO Trend in Class Action Warfare, 102 Iowa L. Rev. (forthcoming 2016), available at SSRN), https://courtslaw.jotwell.com/racketeers-mobsters-plaintiffs-mass-action-attorneys/.