"Issue spotting" law school exams

On Jun 24, 8:01 am, bon...@host122.r-bonomi.com (Robert Bonomi) wrote:
> In article <4nem73tr7o5pat30qeasftob8oa526g...@4ax.com>,
>
> datali...@excite.com <datali...@excite.com> wrote:
> >Hello fellow law students,  lawyers,  judges, etc...
>
> >I'm a law student and I have not been getting good grades lately
> >since my grader says that I am failing to spot all the issues
> >on final exam law essays.

> It is not a "science", it is an _art_.  Some people have the talent for it,
> and some do =not=. 

I agree with Mr. Bonomi's thoughtful analysis, and would add this:

There are 2 somewhat different kinds of "issue spotting": (1) what students are expected to do on final exams, and (2) what lawyers are expected to do in the real world, when a client walks into the office and says "I have a problem" and presents the lawyer with a set of operative facts regarding some circumstance the client is legally concerned about.

Let's start with the latter.  As may be obvious, one of the reasons law schools like to give "issue spotting" exams is that this step of analysis is a vital skill in being a real world lawyer.  The client is not going to come into the office with a clearly defined understanding of the legal issues involved, even if he has a strong grasp of the pertinent facts (which not all do), and the things the client feels are important may be irrelevant and vice versa.  The things the client forgot to mention as insignificant details may in fact be the turning point around which the whole case revolves, and make the difference between winning and losing (in litigation), or getting a good vs. bad bargain (in transactional work).   It is the lawyer, applying the analytical skills he or she honed in law school (but which must at root come from native ability), and INFORMED BY A DEEP AND BROAD GENERAL KNOWLEDGE OF AN APPLICABLE BODY OF LAW, who can and must say to the client, fact A is significant and could lead to X result, while fact B is irrelevant and makes no legal difference to the desired outcome.

If you have followed the various threads on MLM for any length of time (or if you're a newbie here, go back and look at the archives), you will see multiple examples of both lawyers and non-lawyers applying analyitical skills coupled with general legal knowledge to identify issues arising from the factual situations that various Original Posters present for our consideration.   That's certainly one way to start, and you may want to try reading the OP scenarios first and coming up with your own issue-spotting analysis, before reading the followup posts to see what other people think.   If you find a good match, you're probably doing a pretty good job of spotting real-world issues.

Getting back to law school exams, though, which is your immediate concern, they are a bit different.  Not all the issues you might spot in a real client's factual scenario are of actual concern to the client, and some may even be things he affirmatively wants to avoid getting into, even if they may present fascinating legal issues to the analyst.  So, real-world issue spotting is focused on identifying the legal issues that make a difference to the outcome the client wants to achieve.  On a test, however, apart from testing your analytical skills (which all issue spotting tests do), often the prof is more interested in finding out whether you actually learned the material you have covered in the particular course.  This means 2 things:

First, that the kinds of issues you will be expected to spot are those which arise from the legal principles you have covered in that course, not from the entire range of possible issues.   In a contracts class, your final exam will not expect you to be able to spot criminal law issues, frex.   If you learned what you are supposed to have learned from that course, issue spotting should be fairly easy, as long as you have had that initial "light bulb" moment Mr. Bonomi refers to, which only has to happen _once_, not separately for each class.  The best way to really learn the material usually requires you to read original judicial opinions and, by means of questions the prof asks (the so called "Socratic Method") together with the questions that you and your classmates ask each other in your study groups (you DO have one, right?  IMO it's a virtual necessity in law school no matter how smart you are), you try to figure out what the court is really getting at, and glean a generally applicable rule from the facts, issues, and result in the particular case.  You then need to outline these rules, on your own (with your study group), not so much because you need to create a study guide (you can buy one of those) but because the PROCESS of outlining issues and rules and how they fit together to form a body of law, and organizing and writing it down yourself, helps you understand the whole of the material you are covering in a particular class.

BTW, when you get to the bar exam stage, you will be expected to spot issues more the way a real-life lawyer has to, where all kinds of different bodies of law may be implicated in a single fact scenario; that's when you have to start putting together all the diverse areas of law you learned in those separate classes.

The best way I can put it is, if you know the material backwards and forwards the way you're supposed to, the issues fairly well jump out at you when you read a fact pattern containing them, sort of the way the contrasting patterns jump out at you in the color-blindness tests to get your driver's license.   Either you can see the difference between red and green, or you can't, and if you can't, no amount of training will make the number or letter that is printed in green dots stand out from the background of red dots: all you will see is a bunch of undifferentiated dots.

Second, this means that on a law school test, the prof is likely to throw in every issue you should have learned about in that class, no matter how unlikely to arise in real life, including the kitchen sink, in a single fact scenario, which is why law school exam fact patterns are often somewhat hilariously convoluted and complex.   The prof may throw in, e.g. 10 contract issues or 10 tort issues in one pattern, and your grade will usually depend in large part on how many of those issues you spot, less so on how thorough your analysis is of the ones you _do_ spot.

Hope this helps; good luck.
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