Law School Essay Exams: What to Memorize

Law students ask, “Isn’t law school something more than memorizing? The answer is clear: Absolutely!

But do law students have to memorize? The answer is just as clear: Absolutely!

Some professors mistakenly tell students that “law school is not about memorizing.” I say “mistakenly” because the law school IS about memorization… and much more. But for now, let’s focus on grades, and for most courses, that means focusing on tests.

In order to write a high scoring essay exam answer, a student needs to employ many skills and strategies. Compelling presentation, high-level analysis, sophisticated legal reasoning… yes, these are critical capabilities when it comes to earning “A” grades.

But you can’t get an “A”… or a “B”… without being able to detect the topics that the teacher expects to see discussed. To find trouble, one must “know” the law. In a deeper sense, to “know” the law is to understand its background, variations, nuances, subtleties, etc. And yes, that feeling of knowing is very important. But in the fundamental sense, to “know” the law (in the context of answering a test) is to be able to write a rule statement without actively thinking; to “know it by heart”.

Before sitting for a Torts final exam, a student committed to earning the best grade they are capable of earning must have learned “by heart” at least each of the following:

• For each tort, a statement of each “rule”, that is, a sentence or more that includes all the elements that must be proven to determine that the tort has been committed.

• For each affirmative defense, a statement of each “rule”, that is, a sentence or more that includes all the elements that must be proven to determine that the defense is viable.

• A definition of each item, including the “tests” to determine if that item can be tested.

A schematic template for building an essay essentially falls under these three categories. Here’s a partial example:

• To prove negligence, a plaintiff must prove that the defendant owed a duty to all foreseeable plaintiffs, that the defendant breached this duty by failing to act in accordance with the standard of care, and that this breach caused the plaintiff harm.

• Must. A plaintiff must prove that the defendant owed a duty to all foreseeable plaintiffs, that the defendant breached this duty by failing to act in accordance with the standard of care, and that this breach caused the plaintiff’s injury.

• Standard of care. The standard of care is the degree of prudence and precaution required of an individual who has a duty of care.

• Breach of duty. A non-compliance issue can be viewed from (at least) two different angles…

• Balance test. Liability depends on whether the burden of proper precautions is less than the probability of harm multiplied by the severity of the resulting injury. B.

• Negligence per se. The three essential criteria include: that the plaintiff is a member of the class that the statute purports to be protected, that the type of injury that occurred is the type against which the statute was enacted, and that the violation was not excused.

But a student does not need to memorize these 214 words. This works:

• Negligence: duty, breach, standard of care, cause, harm.

• Default – equilibrium, per se. (…and so…)

Should a student “memorize by heart”? Ideally, no. Not necessary if a student has adequately prepared for each class, produced a personal course summary (outline), and answered dozens of short-answer (and longer) practice questions. The repetitive use of the fundamental rules to solve difficult problems embeds the elements in the memory of the majority. But not all. That is why memory tools are important to many law students. (More on that later.)

Another useful item to add to the bulleted list above (what to memorize) is this: a list of each topic studied. This provides an excellent checklist for the student to quickly review during the pre-writing stage of essay response writing. How much rote memorization does this imply? Not much. (For an example of a criminal law checklist, go to this link, then scroll down to Criminal Law Checklist.)

Students need to remember that the “memorization” part, the memorizing part, is only a small part of what needs to be done to score high on tests. But if a student is not able to go over the elements of each intentional error (for example) quickly, without stopping to try to remember the details, they will miss the problems. Don’t let that happen!