EXAMINATION TECHNIQUE

There are typically two types of questions in law examinations: essay questions; and
problem-type questions. There are certain skills that are required to answer each.

There have been some useful things written on examination skills but there is not much
that is specifically Scottish. However, the generic skills are discussed in a variety of
places. Two particularly useful texts are:

(a) Helen Carr, Sarah Carter, and Kirsty Horsey Skills for Law Students (Oxford
University Press, 2009) chs 25 (on writing essays); 27 (on answering problem
questions); and 28 (on revision and examination technique)

(b) Emily Finch and Stefan Fafinski, Legal Skills (Oxford University Press, 2nd edn,
2009) chs 12 (on answering essay questions); 14 (on answering problem
questions); and 15 (on revision and examination technique).

Why have examinations?

Examinations are used in order that you can demonstrate that you have covered, and
understood the topics detailed in the syllabus for your subject. And while they do not
require bibliographies and full referencing of every case or comment you use in your
answers you are still expected to use legal authority (cases, legislation, or
commentaries) to support your answers.

Revision technique
To begin familiarise yourself with basic information. When are the examinations? How
many examinations do you have to do within the examination diet? How long are the
examinations? How many questions do you have to answer? What do the examination
papers look like? Are you allowed to take external material in with you to examination?
To answer these questions familiarise yourself with the relevant section of the Law
Society website and check it regularly.

Prepare to manage your time.

When you are working while studying you will be conscious that time is precious. You
will need to work out how much time you can allocate to revision and prepare a time
management schedule for the examinations. This time management schedule should
be kept under regular review.

There are various approaches to revision technique. The textbooks referred to above
give some. You should make sure that you adopt a technique that works for you. And if
something is not working for you – change it.

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Open Book Examinations

Some examinations allow you to bring in materials, such as statutes or Law Society
rules. These can be consulted during the examination. Check whether the examination
you are attending permits materials to be used.

Beware though that there are pitfalls when using materials. The general guidance
given above on answering problem and essay questions still applies. It is not an
answer to a problem question to merely repeat at length the terms of a statute or a rule.
A problem question is asking for your application of the law, or a rule, to a set of facts.
Merely reciting the exact terms of the law, or rule, does not tell an examiner whether
you can apply the law. Similarly in an essay question you are typically asked to
“consider”, or “analyse”, or “evaluate”. This involves more than merely setting out the
terms of the relevant provision, as copied from your materials. It involves your critical
response to the material not being able to show that you can copy it out. The materials
are there to ensure accuracy in your citation, and to allow you to check the exact
wording of provisions (which can help with questions of applications or analysis). When
you are permitted materials in an examination they are not there merely to be copied
out. Doing so will ensure a poor mark.

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The examination itself
Make sure that you are there on time.

Listen to the instructions which are provided at the start of the examination.

Read the instructions carefully.

Keep an eye on your timings.

While time management is important in the preparation of your revision it is absolutely

crucial within the examination itself. Poor performances can often be traced to students
failing to answer all of the questions. Or answering one question in a much shorter time
than had been devoted to the others (with a mark reflecting that). If you have a 2 hour
examination and you have to answer 3 questions of equal value make sure you spend
an equal time on each. Or if you have a 2 hour examination with one question worth
50% of the marks, and 2 questions which are each worth 25% of the final mark allocate
your time proportionately. This applies within questions too.

If you have allocated 40 minutes for one answer and it has 4 parts each of equal marks
spend 10 minutes on each part. It is counter-productive to spend a disproportionate
amount of time on one part. You will not properly answer the other parts, and there is a
strong likelihood that your long answer will contain much material that is irrelevant (and
consequently fails to answer the question).

Skim read the entire paper carefully before making your selection. Often this can
usefully help to identify those questions that you DO NOT want to answer. When you
have then identified those you might wish to answer read each of these questions
carefully at least twice before making a decision ensuring that you check what you are
asked. Sometimes students have prepared an answer on a particular topic, ignoring a
subtle twist in wording of the question that requires a particular focus, or invites the
student to give particular consideration to a specific issue.

Once you identify the questions you are going to answer quickly make a plan identifying
the main points you need to address. Your approach may differ dependent on whether
you are answering a problem or an essay question (on which see below). When writing
an answer ensure that you have an introduction, the main body of your answer, and a
conclusion. Many students find it useful to make notes on a question before answering
it. But if you do this, don't forget to cross out your notes at the end, for otherwise the
examiner has to assume that your notes form part of your answer.

Remember that the examiners are looking for quality rather than quantity. You are not
marked by the number of pages you have managed to fill up. Shorter answers can
attract a higher mark than longer ones. But a very short answer is unlikely to do well.

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Don't begin by copying out the question or narrating the facts of the problem. This is a
sheer waste of time. The examiner has the question paper beside him or her while he
or she marks. And don't start with a summary of the area of law with which the question
is concerned. In fact, don't slide into "legal lecturing" at any point. Likewise, there is
normally no point in copying out a statutory provision, unless it is very brief. In general,
a simple reference is enough. Longer quotation from a statutory provision makes sense
only if you need to discuss its precise wording.

The following two sentences contain examples of various problems that arise in the use
of English in examination answers.

“Generally in legal writing please avoid the prolix circumlocutions that plague some of
your number who begin sentences that quickly, or sometimes slowly, begin to lose
fluency and coherence as they slowly, and with great time taken, meander gently
through a course of unnecessary and curiously and inappropriately used adverbs and
adjectives (and occasionally unnecessary and peculiar parenthetical insertions),
sometimes even repeating themselves by using the same words or similar words to
words used previously in the sentence to make the same point that had been made
previously in the sentence earlier on, before suddenly and spectacularly pausing.”

“The meaning of the sentence before having been lost in the midst of a - muddle of
(badly) used punctuation - and other unwelcome digressions and diversions from your
main point.”

Please try to avoid these characteristics. Avoid repetition. Use punctuation accurately.
Use language accurately. Don’t use unnecessary adjectives or adverbs. Keep your
sentences simple. When you structure a sentence in a complicated way there is a
strong likelihood that the meaning of the sentence will become obscure. When writing
remember the guidance of Eric Blair (George Orwell) who in an essay on "Politics and
the English Language" available in his collected essays proposed five rules for clear
writing,

(i) Never use a metaphor, simile, or other figure of speech which you are used to
seeing in print.

(ii) Never use a long word where a short one will do.

(iii) If it is possible to cut a word out, always cut it out.

(iv) Never use the passive where you can use the active.

(v) Never use a foreign phrase, a scientific word, or a jargon word if you can think of
an everyday English equivalent.”

Accompanied by a sixth that should always be remembered when considering the other
five:

(vi) Break any of these rules sooner than say anything outright barbarous. "
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Problem questions
Along with essay writing the other most common form of assessment is the legal
problem. Broadly, a problem question involves a given set of facts followed by an
instruction to advise the respective parties on their rights and any remedies they may
have. Problem questions really test students’ understanding of a particular section of
work. This is because problems force you to APPLY the law that you have learnt. As
with essay writing, there are many varied approaches to legal problem solving and the
one presented here is only one method. In general examiners want to see that you are
alive to all the possibilities that a set of facts throws up thereby showing that you are
able to see all the issues that arise for consideration and are able to deal with them in a
legally accurate and structured way. This ability generally is what distinguishes a good
student from an average or poor one. Good students tend to be able to see deeply into
the set of facts and highlight all (or most) of the legal problems that might arise. Less
good students tend to jump at the main issue and leave it there. The aim of this guide
is to give you a suggested framework to help YOU develop your legal skills so that YOU
can train yourself to become a good student and ultimately a good lawyer. If this guide
seems abstract at this stage, this is only because you have not as yet had sufficient
practice at solving legal problems. As you get to know more law and practice solving
legal problems, these ideas will become more concrete.

This guide uses a relatively simple four step structure when approaching legal
problems: issue, law, application and conclusion (ILAC). What follows is an
explanation of what each of these steps entails.

1. The Issue

The first step to solving a legal problem is to work out what the issue(s) is (are) that
arise out of the set of facts. Of course the better you know your law the easier it is to
spot the issue(s). Indeed, it is here that reading case law is invaluable as it provides
you with an insight into how judges (the good ones at least) generally set out the facts
and then the legal issue(s) that arise for determination. You should not repeat the facts
at the beginning of your answer but rather start with setting out the crisp legal issues
that arise for determination. First, you should read the problem to get an overall idea of
the area(s) of law involved. You should then pay close attention to the question that is
posed at the end of the problem. In general you will be asked to advise one or more of
the respective parties that appear in the problem. If that is the case, ask yourself what
that party would really want to know. The answer to this question will reveal the legal
issue for determination. It is vitally important for your own clarity (and it impresses the
examiners immensely) if you can accurately and crisply identify the issue(s) in this way.

2. The Applicable Law

Once you have identified the issues for determination, the next step is to set out the law
applicable to these issues. You MUST cite the relevant case law or statutory provisions

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(or any of the authoritative sources) that represents the current legal position in respect
of the issues raised. As you will see in due course, this is generally the approach taken
by the courts when they give judgments. You need to cite authority for your statements
relating to the law. In general this entails citing one of the authoritative sources of law.
Where there is no authoritative source then you should cite one of the persuasive
sources such as an obiter dicta or a textbook/article.

Although there is frequently a clear and settled point of law that will decide a case, this
is not always so. Sometimes there is conflicting authority with the result that the law is
unclear. In these situations you should acknowledge this lack of clarity and argue the
point both ways when it comes to applying the law to the facts, i.e. you should apply the
different conclusions as to the law to the facts of the case in the manner suggested in 3
below. Where the law is unclear, there is frequently legal literature in which authors
have expressed their opinion as to what the law should be. Where this is the case,
these views should be noted. Also don’t be afraid to express your (substantiated)
opinion if you think that one view is preferable to another.

3. Applying the Law to the Facts

After you have identified the issues and clearly set out the applicable law, you then
need to apply the law to the facts of the problem at hand. Sometimes the facts of the
problem will closely track a particular case and this will provide you with a clear starting
point (and sometimes a suggested conclusion) when applying the law to the facts.
However, where this is not the case, you will have to argue by analogy or reason from
scratch and come to a decision as to how the current case should be decided. You
should try and find evidence in the facts given to you which support you conclusions.

In the real world cases will frequently turn on establishing facts by one of the accepted
ways. In law problems, on the other hand, you do not have the luxury of going to collect
evidence and must make do with what you have been given. Thus you might (and this
is frequently the case) be given an incomplete set of facts meaning that a fact
necessary to decide the case is not given to you in the problem. This will make it
impossible to say for certain what the outcome of a particular problem might be. In
these situations you need to mount contingency arguments and canvass all
REASONABLE possibilities. Say for example that it is unclear from the facts whether a
party knew that a car was stolen when he or she bought it. This fact might be material
in a property law question. You would accordingly have to argue the point both ways
and say (a) if the party did not know that the car was stolen (and so was in good faith)
then … but you would also have to point out that (b) if it was shown that the party
knew that the car was stolen (and so in bad faith) then….

Another manifestation of this problem arises where it is difficult to make a conclusion as

to the outcome of preliminary legal issue. The law of contract tells us that a contract
can be terminated only if a breach is material. The law also states that a breach is
material if it is serious (or goes to the root of the contract). This is frequently unclear on
the facts of the case and in this situation you would have to argue (a) that should the
court find that the breach is material then …. but (b) in the event that the court should
find that the breach is not material then … (the reason that it is significant is that
different remedies follow depending whether a breach is material). If the facts lean a
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particular way or if you think you can substantiate one or other conclusion, then you
should not shy away from saying so.

4. Conclusion

When all the dust has settled and you have identified the issue, set out the law and
applied the law to the facts, you need to conclude. In general it is useful to frame the
conclusion in relation to the issues that you have identified as well as in relation to the
question that you have been asked. For example, if you have said that the issue for
determination is whether there is a valid contract between X and Y and you have been
asked to advise X, you might conclude that there is a valid contract between X and Y
and accordingly, I advise X to sue Y on the contract.

Some hints on answering problem questions

(1) In problem questions, the examiners are looking for the ability to apply legal
knowledge, not a recitation of that knowledge. When you look at a law book or a
statute it seems that law is a set of rules, and therefore that to learn the law is to
learn those rules. In a sense of course that is true. But in reality there are far too
many rules for anyone to learn. In addition, lawyers and judges don't start with the
rules, but with problems. Law is largely about problem-solving.

(2) Sometimes a problem has a clear answer, and sometimes no clear answer, and
sometimes partly both. Identifying where the law is clear and where it is not is one
of the skills being tested.

(3) Sometimes a problem question will contain irrelevant facts. That is like real life.
One of the skills of a lawyer is to perceive which facts are legally relevant and
which are not.

(4) Conversely, a problem question may leave out some vital piece of information.
Again, this is like real life. One of the skills of the lawyer is to identify missing
information which will enable him or her to solve a problem.

(5) Credit is given for identifying relevant issues, even if the wrong answer is given.
This is probably the single most important skill in tackling a law exam. You can
know every statute ever passed by heart, and every case ever reported, and still be
a bad lawyer, because legal problem-solving must begin with the identification of
the relevant area/s of law. You may know everything there is to know about
voidable transactions in bankruptcy, but your knowledge is useless if you cannot
spot such an issue hiding in a set of facts. By contrast, you might know almost
nothing about this subject, but provided you can see in practice when the issue
arises, you are more than half-way home, for having identified the issue you can

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 then look up the law. That is why in exams we are vitally concerned to see that
you can spot and identify issues. Suppose you went to the doctor with some pain
in your stomach or head or whatever, and he recited to you the lecture notes he
took in medical school. What would you think? I doubt if any client has ever come
into a law office and asked: "What are the exceptions to the rule in Foss v
Harbottle?" or: "In what cases is it not necessary to give notice of dishonour of a bill
of exchange?"

(6) Don't waffle. Irrelevancy counts against you. A lawyer must stick to the point. To
put in background information is legitimate. Learning to draw the line between
background information and sheer waffle is one of the skills being tested.

(7) But if some aspect of the problem might be relevant but in your view is in fact
irrelevant, you should of course say why.

(8) Address the question that is posed. If you are asked whether Smith is liable to
Robertson, answer that question, whether your answer is a yes or a no or a maybe.
This may seem obvious, but examiners each year mark numerous essays which at
no point get even near actually offering an answer to the question asked. The
psychology may be a fear of giving a wrong answer. But the truth is that nothing
can be worse than no answer at all. One particular word of warning is that you
should beware of writing something like: "A may be able to sue." This really says
very little. Anybody can sue anybody else. The question is always whether such
an action is likely to succeed.

(9) Don't forget presentation, especially:-

* spelling,
* grammar,
* punctuation,
* and handwriting.

These are communication skills. A lawyer must be able to communicate in writing,

clearly, concisely, correctly and unambiguously. Most of all, don't forget that the
examiners cannot give marks for what they cannot read.

 Poor English makes a bad impression and may make it unclear what you are
saying. Thus: "The contract between A and B is subject to C's right. So he can
sue. "Who can sue?

 "Bank of Edinburgh credits a/c when they recieve the cheque so b/c a banker
has lien & so becomes holder if it's customer has got an overdraft, (s 2 of 1882
act) he may be able to sue, b/c he does have overdraft there is a lien therefore
the chq must be payed, this is, basically an unsatisfactary senario if they get
liquidated."

 Examiners read many sentences as bad as this, or almost as bad, every

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 year. Its presentation is poor. In this sentence the bank is at different
points "they", "it" and "he." There are floating pronouns, as in the
previous example. Among them is this, a word much liked by some
students. There is nothing wrong with it, if its reference is clear. All
too often its reference is unclear. The sentence is convoluted. We are
not told who must pay the cheque. We are not told who might go into
liquidation. The sentence is mispunctuated and mis spelt. If you are
not confident that you can handle long sentences, use short ones.
Use capital letters conventionally. (The example of e e cummings
may be imitated by poets, but not by lawyers.)

 Beware of abbreviations. Conventional abbreviations are acceptable.

Thus in the example "a/c" is acceptable, as is "&" for "and." But
unconventional abbreviations make a bad impression and sometimes
entirely baffle the examiner as to their meaning, especially if the
handwriting is poor.

 Beware of colloquialisms: you are supposed to be writing a legal brief.

Write complete sentences, and not mere notes.

 "The goods were delivered to the purchaser, Cant who has paid for
them, however the title is void because the seller had stolen them."

 We need a comma after Cant. Moreover, we have here two

sentences, not one, and so the comma after then should be a full
stop or semi-colon.

 Exams are tense occasions, and time is often short. The examiners don't
expect prose of the quality of Dr Johnson or Lord Macaulay. We all make
mistakes sometimes. But a certain minimum standard is expected.
(Marks may be deducted.) If your handwriting is difficult to read (ask
some friends) it may help to invest in a decent pen.

(10) In a problem question there will usually be various parties. If you mean "Jones"
don't write "Smith." This may seem obvious. It is obvious. But it is too common
an error, and a tragic one. The examiner can judge you only on what you have
written.

(11) It helps the examiner if you underline cases and statutes.

(12) Re-read your answers, to correct blunders. Many students feel an overwhelming
disinclination to do this: they can't bear to look again at what they have said. Do
it. It can save many lost marks.

(13) Give authority. You have to tread a middle path in this respect. An answer that
looks like a page from Professor Walker's Principles goes too far. Excessive
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 citation of authority is often a symptom of irrelevance, and is often an attempt to
cover up a failure to understand the issues. But equally an answer on company
law which suggests that you have not heard of the Companies Act 2006 is likely
to attract a fail mark. Cite authority where it is needed in the development of
your argument or analysis, but not otherwise. Both case law and statutes need to
be referred to where appropriate. Where your paper is an open book paper (for
example, where you are permitted to take a statute into the examination) there
will be an expectation that you will cite relevant authority – particularly when you
have the relevant primary source of law in front of you - and failure to do so will
be taken into account by the examiners in assessing your final mark.

Some hints on answering essay questions

When answering essay questions bear in mind the general advice above and note the
following specific issues.

a) Knowledge: do you know what the law is? And is your knowledge up to date? The
examiner is looking for evidence of both.

b) Relevance: you need to exercise your judgment to ensure that everything you use
is relevant to the question asked. A fundamental legal skill is the ability to discard
the irrelevant. When reading your answer bear in mind the question and apply what
Professor WA Wilson described as the “so what?” test. If you read part of the
answer and think “so what?” then it should not be there and should be discarded.
For example, if there is an essay question on the remedy of specific implement as
a means of responding to a breach of contract, a digression on the law of error will
add nothing to your answer. It will suggest to the examiner that you have not read
the question.

c) Note what the question asks. If it asks you to “consider” or “analyse” or “evaluate”
you must do that. It is not enough merely to repeat the knowledge you have
acquired. If you are asked to consider/evaluate/analyse/assess then that means
when writing your answer you need to identify problems and consider their
significance. You therefore need to think critically about the material.

d) Structure is crucial to a successful essay answer. You need to plan an essay –

identifying the point you intend to argue, then presenting arguments in favour,
address the arguments against, before concluding with a summary of the argument
you have made

e) Remember that your essay is a legal one. The arguments you make and those you
critique require to be based on authority, be that primary or secondary. Doing this
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 will mean that you will avoid assertions with questionable foundations.

f) If you end up using rhetorical questions in an essay this is not a good sign.
Rhetorical questions suggest that you cannot think of an answer, and add nothing
to your argument.

g) Make sure that your argument flows. Too often in unsuccessful answers an
examiner will see the beginning of an argument and a statement of the conclusion,
but there will be gaps between the two. An argument should develop throughout a
text.

h) Try to avoid repetition of the same point. It is infuriating to read the same point
made over and over again using slightly different words. In fact you should only
make the point once. You should not repeat it. Repeating the point merely
suggests that you do not have anything to say. And it eats into your time for the
rest of your answer. So ensure you do not make the point repeatedly within your
text.

i) An interesting line of thought will often attract several additional marks even if the
examiner disagrees with it. (Indeed, many cases have been won by unsound
arguments.) The ability to argue is of the greatest importance to the lawyer. (If you
produce a line of reasoning which indicates that you are hopelessly muddled, then
of course you will lose marks, but then if you are hopelessly muddled this fact will
almost certainly become obvious to the examiner however you approach the
question!) So.... argue!

j) Avoid non-sequiturs. Avoid self-contradictions. Maybe there is no point in

preaching about this since arguably no one capable of recognising a non-sequitur
or self-contradiction would be guilty of one. What all too often happens is that a
student says one thing in one sentence and the opposite a few lines later.
Sometimes this is because he has changed his or her mind in the course of writing.
You can lessen the danger of this by making notes for an answer first. You can
also save yourself by re-reading what you have written.

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