7.6 – Other Writing Tips


Writing Tips

(1) Structured, (2) only one issue per paragraph, (3) IRAC as far as possible, (4) state rule correctly, (5) separate hard and easy issues

Let's talk about how to actually write this exam answer. You've got your outline. I also hinted at how I thought you should do that in the previous lesson, which is to start with some kind of introduction paragraph. It's an introduction paragraph that lays out what the structure of your answer is going to be, the order in which you're going to address things, and, ideally, the actual conclusions that you reach.

You might say, "There's two issues. One of them, there's a very good case for the defendant, and the other, there's a weak case," or whatever. You basically identify the issues and you explain your legal conclusions. That's going to give the reader a lot of confidence that you really know where you're going, and you're not just typing wildly without a clue. That's the first paragraph.

Then you're going to have a series of other paragraphs that are going to make up your exam answer. Then, ideally, a conclusion at the very end that just sums everything up quickly. If you're really, really short on time, that's obviously the first thing that should go because, in a perfect world, you have hit all your points by then, but that would be a nice bonus.

Then, for each paragraph, how do you structure that? Well, it's going to really depend, but I would say, at a minimum, only one issue per full paragraph. Some issues are going to take more paragraphs than one, some issues you can deal with in just one paragraph. For each paragraph, I would say start off with a topic sentence that really makes clear to the reader what this paragraph is going to be about.

You might say, "The first issue is whether the defendant will be found guilty of Section 716 under a common law approach." That's one way to do it, that's what we call the issue IRAC approach, where you'd say that, then you would state a rule. You'd state, "Under the common law," and state a rule, then you would apply it. Maybe that application would be a sentence, maybe it would be two paragraphs, and then you would restate your conclusion in one sentence.

I think an even more effective way to write, though, is not just to tee up the issue by saying the first issue, by saying actually what your conclusion is. You might say, "First, under a common law approach, the defendant is likely or unlikely to be found guilty of Section 716," depending, as the case may be, depending on your conclusion. Then you would state your legal rule, you would distill that from the cases you've read, from material you've studied and so forth, state a clear rule, state it in its own sentence.

You're doing that because, as the professor, that's on my rubric. I want to know, do you actually know the legal rule? If you just jump into applying the law before ever stating the rule, you're not showing your work, and I don't necessarily know for certain that you actually know the legal rule. You do that and then you start applying. That application could be very simple. It could be a simple sentence where you just say one thing and it's clear, from that sentence, how the rule applies to your case, or it could be much more complicated.

If it's much more complicated, then we're going to actually have to pack it into perhaps multiple paragraphs rather than one sentence. That really brings me to what I think of as my next point, which is really important, which is that a good exam answer is going to figure out how to separate hard questions from easy ones. A well-written exam question has been designed to include both hard and easy legal questions, or at least both complicated and simple legal questions.

Maybe they're all somewhat hard, but some can be applied a little bit more quickly. Let's look back at this exam question. Here, as this is written, the first question, the first count really, Section 716 was designed to be a much harder question than the second one in the sense that the first one is really designed to tee up these issues of willful blindness, require you to dig pretty deep into the Jewell case and some of the reasoning there to try to figure out what the rule should be as it applies to this case.

Honestly, it was written to leave you with enough room that you could argue both sides of the question. I was going to be more interested in just how you approach the question rather than the particular conclusion that you reached. Now, the second question, again, there's two subparts to the second count, Section 731[b], there's two things there. One is common law and the other is the Model Penal Code.

The Model Penal Code aspect of that was supposed to be quite easy because under the Model Penal Code, there are very clear rules for statutory interpretation. If a statute does not contain a clear mental state or culpability provision, there's a default rule that you should assume, a minimum of recklessness. In this case, there's at least a pretty good argument that the defendant was not reckless with respect to the particular fact in question, with respect to the possession of methamphetamine.

There are some other more complicated arguments for holding the defendant guilty under the Model Penal Code, but they're not any ones that you would have learned in the materials you've been asked to study, and so you can just bracket that. That was designed to be easy. That would be when envisioning the Model Penal Code aspect of the 731[b] question, you could just get out in a three- or four-sentence paragraph.

The common law aspect is designed to be a little trickier because there's a question here, "Is this statute best read as a strict liability or not?" There's some room that you could argue that both ways, but it's at least a decent answer to just say, "This is probably a strict liability statute." We can talk in a little bit about how you might get even more points there.

Then the first part, the 716 part, is designed to be much trickier, and so you might go into multiple paragraphs where you're trying to figure out exactly what the right rule should be and how to apply that rule to the facts here.

Let's figure out how we might do that. Let's really dig into that first question where we are really confronted with this willful blindness question. How might you do that? I think, here, a good answer might look at the Jewell case. Actually, start talking about the facts of this case and the facts of that case. They might say, "How is this case different or similar to the facts of the case of Jewell?"

Most of the time, for most issues you confront, you don't need to do this, you don't need to start talking about the actual facts of cases that you've read, but here, where the lengthy details of the fact pattern seem pretty similar but certainly not identical to something that you read, you might want to start drawing some inferences.

Here, there are some things that this fact pattern was designed to be tricky, it was designed to remind you of Jewell, but to have some interesting differences. One of the interesting differences here is that the defendant is supposed to be aware that he may be doing something illegal, but he doesn't have any awareness that he might be doing the particular kind of illegal conduct that he actually committed, in the sense that he thought maybe he was running guns. Illegal conduct, at least potentially, but not drugs. That was something that just wasn't squarely presented by the facts of Jewell and was designed to be a little tricky and make you think.

There are some things there where you could really say, this is very similar to Jewell, there are some things there where you could say, this is very different from Jewell, and there's just enough there that you can go in an interesting direction with it, and I just wanted to see, did you recognize this was a tricky issue and really try to work it out using lawyerly type arguments, making analogies, emphasizing things that are similar, emphasizing things that are different, in order to support your argument or not?

That is the way you approach hard issues. An exam that does all those things, spots the issues, is well organized, states the rules correctly, and then engages in pretty good analysis, is going to get a lot of points. The way to get the absolute best points on an issue spotter like this, at least if I'm grading it, to add a little bit of bonus would be to be well written, and so that gets at the point I was talking about, having a conclusion, having an introduction, going from point one to point two really clearly, signposting, and some other more specific tips I might get into in a minute.

Adding policy insights to your answer earns brownie points.

Then maybe also offering some policy insights in the course of answering the issue spotter. This is maybe something you didn't anticipate. You thought this was the issue spotter question, not the policy question. Think about this. You're really being asked what the rule should be in this unique situation where someone maybe thinks they're doing something illegal, but they don't think they're doing the illegal thing that they're actually doing.

There's actually some room there where you might be able to argue, "I really think that in this situation, the willful blindness doctrine should apply, and we should say this was equivalent to knowledge because there's no real concern here that the defendant was doing something totally blameless." You're making a policy argument, because the thing is, that's how courts operate when they confront cases in the gray area.

This aspect of the question is really designed to be in the gray area. That's where they really have to rely a little bit on policy to try to figure out what the right rule should be.

Likewise, with the Section 731[b] question, with respect to the common law aspect of the analysis, you could have said, "I think there's a really good argument for reading the statute as applying strict liability, at least in a case where the defendant is acting culpably with respect to the thing that they're possessing. The defendant has some reason to believe he's possessing something illegal even if he doesn't know he's possessing drugs."

There, you're making a policy-type argument as for the particular interpretation you've chosen. If you do that, that would really take this exam from a very good exam to a great one.

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