STALEMATE

A

 Law Examination Guidebook

By

Jack Kelleher

©1984

Revised 2^d Edition 2019

Table of Contents

Introduction                                                                             . . . .   3.

Preparation                                                                               . . . .   5.     

Exam Day                                                                                . . . .   7.

IRAC or Outline                                                                       . . . .   9.

Tips & Techniques                                                                        . . . .  12.

Multiple Choice Examinations                                                     . . . .   17.

Sample Essay Question and Answer                                            . . . .   19.

Appendix I                                                                               . . . .   31.

Sample Question 1.                                                         . . . .   32.                                                                   

Sample Answer to Question 1.                                        . . . .   33.

Sample Question 2.                                                          . . . .   37.                                                                  

Sample Answer to Question 2.                                        . . . .   39.

Appendix II – Examination Profile                                            . . . .   44.                                 

Appendix III – Sample Question 3                                             . . . .   45.                                                    

Afterword                                                                                . . . .   48.                       

About the Author                                                                     . . . .   49.   

                              
Introduction

Examination writing is a skill. Its mastery is well within the learning abilities of any law student.  The reason that most law students haven’t learned the skill is that examination writing is seldom taught.  Many who purport to teach examination writing don’t have the skill. Some writing teachers are well motivated, but under-equipped for the task. Others are simply out to profit by capitalizing on students’ anxieties.

Students who do well on exams are often as perplexed as their less fortunate classmates. Everyone is unsure of what went right or wrong for them. This insecurity breads anxiety as a new set of exams inexorably rises on the horizon, an enormous tsunami fated to batter the fragile raft to which each law student clings. In such a fix, it is no surprise that students who haven’t done well grasp frantically for help. Hornbooks, outlines, longer library hours, hypnosis, meditation, yoga, and faculty consultation all flourish in this unhappy season.

 Most students secretly internalize their prior poor performance, believing that somehow it reflects a deep, previously concealed flaw.  They really aren’t as smart as everyone has thought all these years. The student vows to compensate for her unworthiness by even longer hours of study, leading a purer life, and increased dedication to the law. If you have ever believed this of yourself, you are a victim of the system. Writing good examination answers is 90% technique. Most students have learned the law and could consistently achieve good marks if they would just invest a few hours in learning how to write a quality examination answer. Once the technique is mastered, you will stop being a victim and get the grades your efforts merit.  You will then have more time to enjoy the world and develop the ‘you’ who came to law school.

At the threshold, it is critical to recognize law school examinations for what they are and for what they are not. At best, an examination is a way of measuring performance in solving a given problem on a particular day. Surprisingly, we all accept the accuracy of this grab sample and from it infer some measure of our overall progress in mastering the subject matter of the course. There are some rather large leaps of faith and logic in this process, but I’ll forego further commentary.  A poorly crafted examination (and these abound) generates work but accomplishes nothing.  At best, a poor examination creates an array of grades along a bell-shaped curve, thereby meeting its primary institutional goal.  We have all taken our share of such examinations. 

Always remember, no examination, whether well or poorly constructed, even purports a measure of you.  In law school as in life, the first person to whom you must answer for your efforts is yourself.

Examinations Are A Game

The most important part of winning any game is not to lose.

Defense wins championships

First, it is important not to take exams too seriously, no matter how critical to your future they may seem.  You’ll perform better if you approach examinations as you would a game or sports contest – alert, loose, and strong. 

In an intellectual sort of way, examinations are like electronic games, an entirely imaginary construct.  Your reward for winning is to see lights flicker, some numbers roll up, and your avatar celebrate briefly on a screen.  If you lose, you get nothing, and you may decide to stop investing time.  Most keeping playing just to keep on winning.  This scenario, of course, is what keeps video game writers and law schools, in business. 

The value of being good at test taking, unlike video game playing, is that you achieve tangible rewards, i.e., job interviews, scholarships, academic grants, internships and the like.  The law school community sees your name in lights and your peers acknowledge your prowess.   Your community stature and sense of self-worth are enhanced, frequently to the great distortion of your otherwise pleasing personality.  Still, never forget that exams are a game. They are not real life.

 When I was first thinking of this game metaphor, my then nine-year-old son, Peter, interrupted my reverie to ask for money.  Peter wanted to buy a gaming magazine.  When I asked him why reading about games interested him, why not just play them, he replied that the games have patterns.  If you know the pattern in advance, you become a better player faster.  You win at the game earlier and more frequently than your experience justifies because you have learned without going through the learning process of loss.

Even when you lose, Peter continued, your better knowledge of the patterns of the games makes the loss more informative. You learn more from the experience than you would just numbly playing. Critically, you can stalemate the game for a time, defeating its true goal of disposing of you quickly. Stay in the game and learn.  In this thought lies the origin of my name for this booklet, Stalemate.

Preparation

Intellectual Preparation:  You can’t write a good examination answer if you don’t know anything.  You should have a well-disciplined approach to each subject.  Read and brief cases (Yes, I said brief cases!), attend classes both physically and intellectually.  Is important that you participate actively in your own education. Read, listen, write, and recite aloud what you’ve learned.   ‘Learning while you sleep’ is a fraud. 

Consider your mind a survival tool, the world outside law school a jungle.  In an economic sense, this is precisely the world you will face in a few short years.  Get your money’s worth from every page of your casebook, every session of class.  Insist on it.  Review, compare, and discuss class notes with your friends.  In this process look for areas of ambiguity or difference of opinion.  Look for dead sports or kinks in your understanding of the material.  Work out the kinks.  Fill in the dead zones.  If you ignore areas of weakness, they’ll haunt you.  You’ll see these as ghost issues in the exam and die of terror.  It is a conceptual error of the first magnitude to think that what you don’t understand won’t hurt you.  On the contrary, it most certainly will.

Prepare, understand, and memorize your own outline.  Present technology makes this process simple.  Nobody types notes anymore.  Working your own notes is crucial to the learning processes.  Using someone else’s outline or, worse, a commercial outline, is the intellectual equivalent of letting someone else eat your food first.  There is little nutrition and less joy in letting others learn for you.

  Create a list of key new terms and concepts; define and refine this list.  For example, what is ‘Consideration,’ ‘Proximate Cause,’ or ‘Trespass?”’ Define your terms precisely, use them correctly all semester, and don’t use them imprecisely.  Play with them in conversation with colleagues. As examinations approach, review your outline and definitions.  Process and reprocess your notes.  Then, look to secondary sources.   Measure you work against these sources and vice versa.  (It may surprise you to discover that many key definitions are poorly stated in some very widely used commercial outlines.) 

Finally, read and discuss past examinations if they are available.  Work with a friend at issue spotting.   Learn how your professor thinks; how she presents issues.  Look for recurring issues.  Attempt to predict what will be examined.  (What can be examined is a finite body of information.)

Fundamentally, learning anything requires observation, analysis, repetition, and recordation. If you don’t perform all these functions yourself, you will not learn. There is no Northwest Passage, no shortcut to the Promised Land. You must make this journey for yourself.

Physical preparation:  Eat, Sleep, and exercise.  Avoid all medications, particularly stimulants and depressants.  Burning the midnight oil is counterproductive, a strategy for failure.  A tired brain and body do not learn well and will perform poorly when tested.  You should exercise regularly all semester long.  Exercise clears your head, dispels anxiety, and helps you sleep soundly.  If you feel anxiety building, add a half-hour to your exercise routine and decrease your coffee intake.  Take an interest in your own bodily wellbeing.  Eat apples and fresh fruit.  Ride a bicycle.  Jump rope.  Take charge of your health,

Emotional Balance: Try not to change the landscape of your life during the weeks before examinations.  Don’t change apartments, jobs, roommates, or lovers.  If you sense that someone with whom you live is challenged by your new future, deal with this as a priority problem.  Many a good student has had her exams torpedoed by a none-too-subtle jealous boyfriend.  The refrain of ‘since you started law school, we never have any fun,’ crescendos during dead week.  Work this out or cut out quickly.  Don’t fight a two-front war. 

It may help to pause from time to time and recall why you want to be a lawyer.  Be honest with yourself and get your priorities in order.  If law comes first, put it there.  If it doesn’t, stop paying tuition and torturing yourself.  Take a sailboat to Bali and collect seashells on the beach.  It’s cheaper than tuition.

Think about examinations as an opportunity to demonstrate what you’ve learned.  It is a rare chance to get your professor’s undivided attention and prove your worth.  You are finally getting to play a game, the game, a whole game, with a master.  ‘Take’ your exams like the Vandals took Rome! Rock on!

Exam Day

You and your opponent are one.  This is a coexisting relationship                             between you. You coexist with your opponent and become his

 complement, absorbing his attack and using his force to overcome

 him.

Bruce Lee

By the time examination day has finally arrived, you should be one with your subject.  Think, talk, breathe, and eat it. Become it.  In my first year of law school I loved Contracts, a course I subsequently taught for fourteen years.  I so totally identified that just before exams I wanted to get my hair cut at the barber shop patronized by my Contracts professor.  I was Contracts!

Immediately before your examination, you should sit in a quiet, warm place, the sunshine if available, and shut out everyone. Savor your knowledge, your power.  Don’t let other people, fear, panic, anger, or hostility block you.  Spread white light around yourself. Eat moderately and be careful about drinking beverages containing caffeine.  If you are ill, don’t take an examination.  See a physician. 

After the examination is over, leave without discussing it.  A post-mortem on any exam will only enhance your anxieties, draw bad karma to you.  Anxiety is your enemy.  Surely there are many, many other things which might be discussed more happily. Now might be the time to spend a day surfing, writing poetry, or walking in the forest with your best pal.  Listen to the cosmos.

The Examination

First, Read and Follow All Instructions!

Teachers are often quirky about instructions.  They reflect the stored up petty annoyances of countless years of reading bluebooks.  Examinations put a wedge between the teacher and his students.  Even for the most caring teacher, examinations are a strain.  If the instructions say, ‘double space, underline key concepts in red ink, and don’t write more than one bluebook per  question,’ do it!  An examination, like a courtroom, is no place to make a personal statement.  Make a personal statement and you’ll pay for it. Dearly.

Amazingly, in my experience, most students ignore instructions in the silly belief that the purity of their analysis will shine through any petty procedural irregularity.   These same students sometimes become lawyers who ignore rules of practice and lose, lose repeatedly, on procedural grounds.  If you want to lose, tattoo a capital letter L on your forehead and save the rest of the world the struggle of identifying you as a loser from the subtler cues you send.  If you want to win, accept and play within the rules of the game.

This discussion reminds me of a law review editor’s resume I once saw in the trash bin of a colleague’s office.  The job applicant’s school was the most prestigious, his academic achievements impressive. When I asked my hiring friend why he had given this applicant such short shrift, he replied, ‘The sloppy bastard didn’t even get his original resume straight on the copying machine. He doesn’t want a job, he wants me to kiss his south end.’

Presentation, always important, is essential in exams.  If you’re given hints on how to please your examiner, or anyone else whose love you desire, take them.

Rules, Relevancy, and Literacy

What do examinations test?  They test stored information, substantive law in the form of rules, definitions.  They test your judgment in the selection and application of those rules.  Call this relevancy. And, they test your ability to communicate in writing to your reader, literacy.

A law school examination asks you to demonstrate that you have acquired a useful body of information (rules) from which you are able to draw in providing the solution to a problem presented by a factual narrative.  This is, of course, precisely what working attorneys do every working day.

Recitation of law unrelated to the exam question affirmatively shows that you can’t distinguish between useful data and irrelevancies.  You are a rule parrot.  Inability to communicate what you know, even though quite accurate and apropos, leaves you in a similar fix.  You are a law mute, a prisoner behind your own wall of illiteracy. (Note well that you don’t have to be literary or, heaven forbid, flowery, just literate. Master the simple, declarative sentence.)  No writing method can hide or compensate for ignorance of   the substantive law.  You must come to the examination with rules, substantive law, to apply.

IRAC or Outline?

There are two major approaches to examination writing, IRAC (Issue, Rule, Application & Conclusion) and outlining.  Outlining involves structuring an examination answer around a legal topic area raised by the facts of the question.  For instance, a Contracts examination outline might be structured around Offer, Acceptance, Consideration, Breach, and Remedy.  Most law school teachers publicly espouse outlining theory, and this is where I part company with them, at least advocate for a different approach for the neophyte.  Outlining seems logical, straightforward.  It is an extension of the way we’ve all been taught to study and write examinations since we took our first college prep course in secondary school.  And, if you succeed with an outlining approach, you will do very well.  Why not, then outline?

The troubles with outlining begin with its premise that the examination is well structured or structured at all.  Outlining presumes that the examiner outlined the question before writing it.  An outline style answer moves from the structure of the question into the structure of the answer.  The ideal outlined answer is a perfect replica of the answer already prepared in the mind of the examiner.  (I’m reminded of Star Trek’s Mister Spock doing the Vulcan mind probe.) 

Lamentably, some law professors (Dare I say most now that I’ve left the herd?) are fusty, musty, absent-minded and intellectually cluttered souls for whom examining has never been a conscious study or even an area of much interest.  Their true interest lies in the land tenure of Country Waterford in the first generation after the Norman Conquest of Ireland or in the metamorphosis of the Writ of Trespass during the reign of Henry IV. Frequently, such a professor’s examinations are no more than a paraphrase of the facts of a pending appellate case with which they are familiar. These examiners do not have an outline behind the question, nor for that matter, any structured idea of what a good answer should look like.  Pity the hapless student who wanders into this wilderness, like Ponce de Leon, a lost conquistador searching for the Seven Cities of Gold.  If a student successfully probes this examiner’s mind, she may need an antacid.

Another problem with outlining, almost the inverse of the first problem, arises when the professor is altogether too structured and marvelously complex.  After years of working with the subject and writing tricky, neat little examinations of Byzantine complexity, this professor’s examinations are beyond the decoding skills of any student, given the time constraints imposed by the examination itself.  The student is a secret agent who has found a ticking bomb and has exactly thirty seconds to feed the bomb the correct, unknown, six-digit number sequence to defuse it and save the day.  Outside popular cinema, the agent’s time would be better spent admiring the murmuration of starlings. 

In short, outlining is a tool of great utility, but using it is risky business.  I have used it successfully.  My failures in outlining examination answers, however, were painful.  I still recall some of them all too clearly.  They hurt my pride and left a semester’s efforts unrewarded.  My oldest friends never ask about my examination in Antitrust Law.

This boom/bust aspect of outlining as an examination strategy is its weakness.  IRAC isn’t as dramatic.  IRAC is a survival strategy, a failsafe or stalemating technique.  In competent hands, IRAC puts a floor on your grades and the sky is still the limit; stalemate and breakout. Even if you think you know it all, you must accept that a decision to write an outline answer is a crap shoot.  You may roll snake eyes when you could have left the game with money in your pockets.

                                                  IRAC Structuring

IRAC is an acronym. It stands for Issue, Rule, Application, and Conclusion.  These are the four logical elements in any single segment of the examination answer.  In the following paragraphs, I’ll discuss each element in detail.  First, though, recall what our legal system is all about, i.e., liability, individual responsibility for conduct, action.  Hence, when you start reading an examination question, put the facts in chronological order and ferret out the verbs.  Verbs denote action, human conduct.  Verbs lead the trained legal mind to issues.

ISSUE:  Issues come from verbs. ‘When Able shook his fist at Baker, did this constitute an assault?’ You should learn and practice stating the issue in terms of the facts of the question.  Echo the operative verb (shook) whenever possible.  If the issue can’t be stated this way, it probably isn’t raised by the question. 

If you try to state an issue which can’t be phrased in the language of the question, you’re jousting windmills, wasting time and affirmatively demonstrating that you can’t apply the information you’ve stored.  Stating the issue in terms of the facts, as revealed in the verbs, is the way to keep your discussion on target, i.e., relevant. 

The technique of stating issues in terms of the facts is a key element in any successful examination writing technique.  Practice it.  Of only slightly lesser importance is the stating of issues interrogatively.  A well written examination answers uses more questions marks that any other style of writing.  Each paragraph should begin with a question mark or at least a statement of the question presented. Practice this too.

RULE: This is your opportunity to trot out one of those definitions which you have memorized so diligently.  If you can, adorn your rule with an appropriate case name or Restatement section.   ‘In class, we discussed the objective theory of contract formation in connection with Lucy v. Zehmer.’ Or, ‘Controlling authority is found in UCC 2-207 which provides….’ Yes, I know few students can pop out rules and citations at the whiff of an issue, but, when you can, don’t suppress this information.  Minds do funny things under pressure. As they say in New York City, ‘if ya got it, flaunt it!’ Trot out that case name.  Lay it on with a trowel.  Then say why the authority applies, ‘Lucy should control here because both parties were of legal age and there are no facts to indicate any abuse of the bargaining process.’

APPLICATION: Apply the rule you just stated to the facts.  Interweave, compare your facts to those of the authority cited:

In Lucy, as here, the parties negotiated their agreement while drinking alcoholic beverages in a tavern.  However, our situation differs because here we are given that neither party was intoxicated.  Our facts are thus stronger that those of Lucy where the defendants alleged that all parties were ‘high as Georgia Pines,’ yet the Court found a contract was formed based upon the parties’ objective manifestations.

CONCLUSION:  This portion of an examination answer is the least important, yet it must be done.  Don’t worry much about reaching a wrong conclusion.  The point of the legal system is that reasonable minds may differ.  If something isn’t arguable, it doesn’t interest lawyers.  Just say, ‘I therefore conclude that Able is liable for an assault on Baker.’  If you doubt the conclusion, there’s no harm in hedging a little.  ‘If the foregoing analysis is correct….’ Make your conclusion quickly and get on to the next issue.

Tips & Techniques

Don’t Pre-Read:  If an examination has more that one question, calculate your time allocation for each question and go to work on the first question.  Unless otherwise instructed, give each question equal time with the other question or questions.  Ignore the other question(s) until you’ve finished the first question.  If you pre-read subsequent questions, you’ll confuse the facts, jumble the issues, and garble your answer.  This happens all the time.  Like children, each question deserves its own fair share of your undivided attention.  Suppress your curiosity, focus on the single task, do your best job, and move on.

Read the Call of the Question:  At the end of every examination question is its ‘call,’ the place where the student receives instruction about what to do with the fact situation presented.  The call often reads something like ‘Discuss the rights and liabilities of Able and Baker in a law suit against Charlene.’  The call of the question is meant to limit the scope of your answer.  A friendly call can make your life a lot simpler by narrowing the issues which you must discuss. 

Surprisingly, a significant number of students in every examination sitting will simply read through the call, i.e.  ignore it and answer the question they think should be answered.  This is sometimes referred to as a ‘puking’ answer and received with appropriate distaste.  Puking infuriates exam readers because it rambles on like a shopping cart prophet, blackguarding left and right without logical coherence or focus.  I’m occasionally inspired to scribble, ‘That is a very thoughtful and probing answer you’ve just given.  Lamentably, it does not address the question I put to you.’

Bunt and Grounders: Don’t look for and try to kill The Big Issue to the detriment of more systematic coverage of every issue presented.  The little, subtle issues often determine the grade distribution in a group of exams.  Everybody sees and writes about the bigger issues.  You should try to do a competent IRAC block on each issue.  Do this because many examiners count the issues presented and give them equal or approximately equal point value.

Some students count the number of issues they see and divide that number into the number of minutes available, allocating equal minutes to each issue.  Sometimes you’ll see that the number of issues suggests a point value. (If each of two essay questions appears to have five issues, isn’t it a safe guess that each issue is worth 10 points?) 

Personally, I’ve found this issue of counting time allocation more trouble than it’s worth.   My problem, I confess, is that if the issues don’t add up to some convenient grading value, I obsess over what I’ve missed.  As prosaic as it seems, I think you should just plod through the issues, one at a time, just like digging a hole in the ground, one shovelful at a time. 

Mechanics: Word process your examination answer if you are permitted to use such equipment.  If you must write manually, do everything in your power to make your bluebook legible.  Double space, print, change style of pen.  Presentation is terribly important, particularly to a marginal scholar.  (Remember the old hot-rodding adage, ‘If it don’t go, chrome it.’)  Number your bluebooks (i.e., ‘Book 1 of 3’), staple them sensibly (so they can be read as stapled), and carefully identify each bluebook with your identification number.  Always leave wide margins for your examiner’s notes. They may prove very helpful to you later.  Sloppy and inconsiderate presentation of your examination answers makes a negative statement about you.

Tone and Style:  Use simple and complete sentences.  Attempt to keep your tone detached, objective sounding, but don’t overdo this.  Use of the passive voice, ‘one could say that….’ disavows opinion in the writer.  You don’t want to sound like you have no opinion for which you’d argue.  What you want your reader to think is that you’re the law review ringer the dean sent to keep things honest.  Be literate, even urbane. However, never joke, complain about the exam or whimper.  Never take the opportunity to thank the professor for the best series of lectures since Kenneth Clark stopped hosting the Civilization series on PBS.  Sycophancy will get you nowhere.  If you present yourself as a boot licker, don’t be surprised if you get kicked in the teeth.

Verbs and Adverbs:  Verbs create issues, adverbs limit or exclude them.  Learn to notice adverbs.  No examiner ever says, ‘Able negligently drove down Elm Street.’ What the examiner writes is, ‘Able squealed her tires leaving the intersection, gulping down the beer in her left hand while adjusting the volume on her radio.’ Or, ‘Able drove slowly because there was an early frost in River City.’ Adverbs, like the call of the question, are always very broad hints about how to limit or expand the coverage of your examination answer.

Branching: Branching is the technique of giving two answers to a single issue. The branch may occur anywhere in the IRAC after statement of the issue. So, for example, if there are two divergent rules either of which might be applied, you must write an answer in IRAC, RAC format. If the rule is clear, but the facts are vague enough that you wish to hedge your application, write an IRAC, AC. Finally, you can always offer an alternative conclusion, IRAC, C. Branching is often the only way to write much on a short-fact exam.

Coping With Ambiguity: Ambiguity is money in the bank for lawyers and law students. If you see it, say so. It is almost always intentional and placed there to raise an issue of fact (IRAC, AC) or law (IRAC, RAC). If you see ambiguity, but can’t do anything with it, say so. This at least highlights your analytical skills.  If you simply can’t remember the rule of law or deal with the issue, say so. Don’t blow smoke. That offends the intelligence of your reader, an always dangerous thing to do.

Headlining:  Throughout this text, I’ve headlined. It breaks up space and keep a weary exam reader involved. It also reminds your reader of what you’ve covered. Sometimes a tired grader finishes reading a bluebook, looks up, rubs her eyes and forgets. When she looks back, your headlines will help remind her of just how wonderfully you’ve answered the question.

Oops: Oops is your best old friend. Use oops instead of mutilating, erasing, lining out, or otherwise defacing your answer. Oops takes almost no time and doesn’t detract from the cosmetic neatness of your presentation. Good law students present clean, professional-looking exam answers. Moreover, sometimes pressure makes you line out wisdom for the sake of nonsense. Worse, sometimes you’ll recognize this and do a complete three hundred sixty-degree turnabout. I’ve seen exams with only one page left in the book, the rest torn out or mutilated beyond repair. The clean page is sometimes a simple plea for mercy, ‘I know my law, but,,,, ’ Had this student left some words to read, something might have been salvaged, but no answer means a zero grade. Use oops and let your reader see what went on.

Abbreviation:   Abbreviation is an often-recommended examination technique.  It saves time and, where invited, is appropriate.  If the parties are Anabel, Beatrice and Charlene, by all means abbreviate them as A, B, and C.  However, except in such obvious situations, be careful.  In my experience, students confuse their own abbreviation systems and rend their answers to a kind of algebraic hash.  Proceed with caution whenever you abbreviate beyond law school standard (P=Plaintiff, D=Defendant, Ct=Court) or invited by the questions.

Addendum: Addendum is what you do with those areas of discussion which don’t fit your IRAC and which you know are somehow mystically required by the question.  The chances are you’re all wet, the issue is in your mind and not in the facts.  Nevertheless, if you must say it, do so at the end of your answer by way of addendum. Say something like, ‘Although I can’t quite justify inclusion of this issue under the facts, it seems there is a subtle issue concerning liability of owners and occupiers of insurance coverage….’ (You might want to throw in a quotation from Justice Cardozo, quoting Justice Scott, by saying the question is ‘instinct with obligation unexpressed,’ Wood v. Lucy, Lady Duff-Gordon, 222 NY 88 (1917). I love that, obligation unexpressed is my personal anthem.)

Checklisting:  The unthinkable is happening.  The examination is nearly over, and you have not finished your answer.  Write “TIME” and lay out the checklist of issues you would have discussed could you have made your writing tool function at light speed.  Some examiners give points for seeing an issue even though it is not discussed.  You glean these points at no risk by checklisting.  Do not use this device to puke up unrelated law you have memorized.  No points are earned for wasting you reader’s time.

Don’t Stonewall:  Sometimes a student starts an examination answer with a preconception.  This pitfall is inherent in an outlining approach to examination writing.  Such answers almost always open with a conclusion, ‘Able is guilty of three crimes, Contempt of Data Processing, Slander per os, and Locus in the Pocus.’  This is a commonly taught method of examination writing in undergraduate school, viz., state and defend your thesis.  This is suicidal law examination technique and needless risky.  Lawyers are expected to be iffy. If you catch yourself stating and defending mid-examination, don’t cling doggedly to your thesis (Stonewalling). Bail out with ‘oops.’  You receive no credit for novelty of thesis and tenacity of its defense in law school.  Thinking like a lawyer, whatever that phrase may mean in the greater community, does not denote creativity.

Chattering:  Never give law unrelated to the facts of the question.  This violates to rule of relevancy.  Never repeat the facts of the question without some structural purpose.  Some writers seem to run on for pages simply reiterating facts or reciting unrelated rules of law.  This is infuriating to the tired-eyed examination grader.

Multiple Choice Examinations

Multiple choice examinations hold special terror for many.  This is perhaps so because no other type of examination is so transparently out to get you. There is an inherent perversity about this technique of examining which says a great deal about those who choose to use it.  Sadly, the economic pressure of mass education, ease of computer scoring (‘scientific grading’), and teacher sloth all vector us into a future increasingly laden with the use of such examinations.  (I wonder what will happen when the binary computer is replaced by one capable of quantum analytics.) What’s to be done?

First, remember what it is that machine scored examinations are capable of testing –  highly discrete information capable of yes/no analysis. (Real law is inherently iffy, yes, no, and maybe.)  Study for the machine.  Look for situations where the law appears to present clear yes/no choices which cannot be resolved by reason.  These are sometimes called ‘rules of certainty’ in juxtaposition to ‘rules of reason.’ When you find one in your review, write a mock-up test question.

A studying trick is to remember that machine scored examinations demand a great deal of preparation.  Many teachers who use them make a point of preparing one or two questions from each lecture they give.  Be like a professional gambler watching his mark.  Listen for the exam question in each lecture.  Teachers are human.  They tip their cards.

There are some special techniques to use in reading multiple choice examinations.  Look for cheap, syntactical tricks.  ‘Which of the following is not an excuse for failure to explain silence in the face of accusation.’  (Say what?  This is the buried multiple negative trick.  It doesn’t test your knowledge of the law.  It tests your ability to unscramble bad grammar.)  Often the answer which sounds dead wrong on quick reading is the correct answer after wading through the syntax of the question.  Thus, if one answer sticks out, even if it sounds wrong, look at it very carefully. 

Notice that of the four choices usually presented, at least two are normally laughers.  At best, they are ‘law speak’ to weed out the real slackers.  It is truly difficult to conjure up more than two plausible-sounding answers to a single question. I suspect this is because of some buried code in our language or culture.  Before you do anything else, discard the palpably false answers.  Now, treat the remaining two answers as true/false questions.  If you can’t resolve the questions at this point, abandon reason and flip a coin.  Trust the cosmos. (I used this technique on the Muli-Stage Bar Examination Questions on both the California and the New York Bar Examinations. In New York, typically, a proctor objected and had to be put in his place.)  Don’t dawdle.  Move out!

Finally, you must always remember to do the easy questions first.  (My military pilot students called this taking ‘targets of opportunity.’) Don’t risk losing these points by delaying while you try to work your way through the more difficult problems presented.

 You should visualize yourself as a professional football team with possession of the ball in a tied game with one minute left to play.  Take the yardage your opponent gives you.  Work your way into scoring range in a methodical, undramatic fashion.  Tomorrow morning nobody but the bookies will remember the score, just who won the game. Here, more than any place else, you must remain self-possessed. 

Winning is staying in the game until the whistle blows; being ready to play next Sunday.

Sample Essay Question and Answer

It is not too soon to break a harsh reality to you.  If you want to do well on examinations, you must practice writing answers.  All my little thoughts and suggestions are useless in a vacuum.  You must practice, practice, practice.  In the following pages, I have reproduced a bar examination style Contracts question and an answer to it.  The instructions preceding the question are typical of some you might encounter in law school examinations.  Explanatory text is written in Italics. I recommend that you read these materials somewhat aggressively, sentence by sentence, verb by verb, training yourself for the very interactive reading one must engage in an actual examination context.

            Take your time reading this question and the sample answer provided. Think about it.

#  #  #

University of South Dogpatch

School of Law

Contracts                                                                             Prof. S. Claus

Final Examination –Fall Semester

Total Time: 1 hr

Instructions:

            This is a closed book examination (Ho, hum.  Dog bites man.) The Honor Code applies. Please write your answer on one side only of each bluebook page.  (Do it!) Single space your answer unless your handwriting is difficult to read.

            There is one question. (No time allocation problem except among the issues raised by the question.) Ample time has been given you to answer the question carefully and in a well-organized, concise fashion.  Clarity, brevity, and accuracy will be considered in evaluating your answer.  Discussion of issues not raised by the facts will be interpreted as an indication that you fail to grasp the legal significance of the facts present.  (Prof. Claus is a little touchy about relevancy.)

For purposes of answering this examination, you should assume that the time is now and the jurisdiction in Corbinia, a hypothetical common law state where the generally accepted law of the United States controls. (Don’t fool around with aberrational minority law unless the facts scream for it.  This instruction is friendly and, if complied with, helps conserve your effort.  If ignored, your grade will suffer, perhaps disproportionately.)  The Uniform Commercial Code is persuasive authority in Corbinia.  This instruction is either a special hint or boilerplate for Professor Claus.  If you’ve done your research, you’ll know which and act accordingly.  If it’s a hint, look for the issues illuminating the modernity of the Uniform Commercial Code in an area of confusion in classical common law.)

            This examination consists of this cover page and one (1) additional numbered page totaling two (2) pages.  Count your pages! (The late Dr. Frued might have something to say about Pro. Claus’ early childhood, but you’d better not offer your thoughts just now.  Accept that this teacher is highly organized and pour it back in similar fashion.)

The Question: Calvin Steals a Stole

On December 28^th, Walton and Company, a women’s clothing store located in La Jolla, Corbenia, placed the following advertisement in a La Jolla newspaper:

Walton & Company After Holiday Sale

December 29^th – One day Only

All Our Displayed Merchandise

50% off Market Price

Calvin Powerhouse, who did not read the advertisement, but was informed of the sale by a friend, went to Walton & Company on December 29^th, intending to buy a fur stole for his wife.  Calvin found a stole among the displayed merchandise marked $400 and presented John B. Walton, the store owner, with $200 cash for the purchase.  (Notice that at this point we have one completed transaction, apparently the first in our little drama.  Also note that the examiner has “written out” an issue by giving Calvin’s state of mind.  Don’t ignore such a clear signal.) 

Walton refused the $200 and told Calvin that the stole was left among the displayed merchandise by mistake, and was not intended to be included in the sale.  Calvin became quite upset, gave his name to Walton, and shouted as he left the store, ‘You will hear from my lawyer.  I am going to sue you.’ 

Walton, in fact, did not intend to include the fur stole in the sale, but had failed to remove the stole from the merchandise on display.  An hour after Calvin had left the store, Walton received a call from Calvin’s attorney who informed Walton that he would file suit against him in the morning.  (Observe that the conversation is not described.  This is another fact, like Calvin’s intentions, which is to be accepted as a given, not argued.)

            That evening, Walton recalled that a Calvin Powerhouse was a star goalie for the Ls Jolla Jewels, a professional soccer team.  Believing that Calvin was a famous goalie (n.b., Another given fact!) and not wishing to be exposed to the adverse publicity which would result from a lawsuit brought by such a celebrity, Walton telephoned Calvin and said, ‘Since you are the Calvin Powerhouse, the stole is yours for free if you promise not to sue me.’ Calvin, who, in fact, is not a star goalie, agreed that he would not sue and told Walton to have the stole ready in the morning. 

A photo of Calvin Powerhouse, the Jewels’ star goalie, appeared in the newspaper the next morning.  Walton saw the picture and refused to give the stole to Calvin, the ordinary citizen, when he appeared in the Walton’s store.  Walton told Calvin, ‘You tried to cheat me.  You are not the star soccer player. Go ahead and sue me.  You will not get a dime.’

Discuss the liability, if any, of Walton & Company to Calvin:

          (a) With respect to the advertisement; and

          (b) With respect to Walton’s telephone conversation with Calvin.

            A kind of loose end left by this question is the agency of John B. Walton for Walton & Company.  Forget it! This is a first year Contracts examination and discussion of Agency will waste your time and potentially injure your grade.  Discussion of Agency Law would be the kind of rainbow chase that typifies the neophyte exam taker. 

Another thing to notice is that the examiner has defined the basic structure of your examination around the two principal transactions presented.  This is a gift and, if rejected, will damage your final grade.

            Now, before you start reading the sample answer, stop and visualize the answer you should write.  Which transactions are legally significant?  What should your structure be?  Do not organize your thoughts around the law (offer, acceptance, and all that), rather think about transactions and the issue which they raise.  Transactions, verbs, are fingerposts directing you to Glory Land.

A.  Walton’s Advertisement:

The threshold issue to be resolved is whether Walton’s December 28^th advertisement constitutes an offer. (Issue.) An offer is any manifestation of a present willingness to enter into contractual relations with another, conferring a power of acceptance on that person(s). (Rule.)

            As early as the English case, Carlill v. Carbolic Smoke Ball the courts recognized that an advertisement could be an offer. However, the general rule is that newspaper advertisements do not constitute offers. Rather, they are considered invitations to treat, offers to chafer or negotiate. See, Craft v. Elder & Johnston.

            Some ads do constitute offers. In Lefkowitz v. Great Minneapolis Surplus Store an advertisement quite like Walton’s was held sufficient because it was so definite as to subject matter (a fur stole), quantity (one) and price ($1.00) that there was nothing left to negotiate. All the offeree had to do was be the first in the store’s door, dollar in hand, to complete a contract.

(I’m pouring in case authority because the cases are such obvious standards and because the first segment of the question is a clear paraphrase of Lefkowitz, the principal case cited. This isn’t necessary to a competent answer to the question, but where, as here, the facts are skimpy and the fairly simple, such frosting may move this answer out of the pack and into a more distinguished grade. To continue, we’ll now apply this law.)

It seems that here we have the specificity required by Lefkowitz. Walton’s advertisement is specific as to all matters except price and price can be determined easily by reference to the marking on any given item of displayed merchandise. In fact, this is just what Calvin did. He took ‘50% off’ the $400 price of the stole and tendered $200 to John Walton. (Application) I conclude that the December 29^th advertisement was an offer. (Conclusion.)

(Having completed our first IRAC block, let’s pause and observe what we didn’t do. First, we didn’t open with a very tempting bit of corn, ‘Will Calvin get a steal on a stole?’ Exams are often corny, silly, demeaning little affairs. Don’t sink to that level. Keep your tone professional.

Notice that no solution to the overall question has been offered. It’s premature.

Finally observe that nothing has been said about bait & switch advertisement, the role of the courts in consumer protection, or legislation impacting on such tactics. You must discipline yourself to address only the law learned in the course under examination. No matter how accurate, on point, and interesting your tangent may be, it is irrelevant to this examination. This is law school, Dorothy, and you’re definitely not in Kansas.)

Is Calvin an Offeree?

Did Powerhouse have and properly exercise a power of acceptance? (Issue stated interrogatively in terms of the facts.)  An offeror, here Walton, may limit the scope of his power of acceptance in any lawful manner.  This is often expressed as ‘The offeror is the master of the offer’ (Rule.)  If a newspaper advertisement is an offer, it is general in nature, made to the public at large. Walton & Company’s advertisement seems intended to reach the broadest possible audience.  Calvin Powerhouse was within the target group of Walton’s advertisement (Application), and I conclude that Calvin had a power of acceptance. (Conclusion.)

            Does the fact that Walton’s is a women’s store exclude Calvin, a man, from having a power of acceptance?   (Issue stated interrogatively in terms of the facts.) In interpreting contract formation issues, courts apply an objective standard. What would a reasonable person infer from the words, conduct, and surrounding circumstances? 

Lucy v. Zehmer, a case where the objective standard was applied to enforce a barroom offer, allegedly made in jest, is principal authority for this objective theory of contract formation. (Rule.)   By its terms, Walton’s advertisement offered merchandise to the general public and was not limited to women.  Indeed, Walton’s no doubt would be happy to encourage a gift trade among men for the benefit of their women friends.  A merchant is in business to sell merchandise to whomever wishes to buy. (Application.)  I conclude that Calvin was within the group having a power of acceptance. (Conclusion. 

Why discuss this issue at all? Perhaps paranoia drives me to extremes, but the question specified that Walton &Co.   was ‘a women’s clothing store.’  There is an economy to examination writing.  Few facts are given without a purpose and I would not feel comfortable leaving this issue untouched, particularly since it gives an opportunity to dredge up one of Contract Law’s most venerable cases.  Notice, however, that nothing but Contract Law was discussed.  No points are given in a Contract examination for reference to the United States Constitution or the Civil Rights Act of 1964.)

            Calvin did not see the advertisement.  Must Calvin have read the paper to be an offeree? (Issue.) Anyone who has knowledge of an offer which is made to or otherwise includes him as an offeree may accept the offer. (Rule.) If Calvin had not heard of Walton’s advertisement, but had stumbled in by mistake, he would not have had power of acceptance.   

Glover v. Jewish War Veterans states the general rule that knowledge is essential to the exercise of the power of acceptance.  In Glover, the plaintiff did the act necessary to collect on a private reward offer but did so in ignorance of it.  The plaintiff’s apparent motivation was to remove a corrupting influence from the life of her daughter.  The court held, echoing the subjective theory of contracts, that knowledge was essential to a ‘meeting of the minds.’ (Rule.)  Calvin had knowledge of Walton’s offer before his exercise of the power the offer conferred (Application) and is accordingly within the group empowered to accept Walton’s offer. (Conclusion.)

Does Walton’s Mistake Vitiate the Offer?

            What effect, if any, does Walton’s mistake in leaving the disputed stole on display have upon our analysis?  (Issue.  Please notice that the question itself verifies the truthfulness of Walton’s statement the stole was left on display by mistake.  This given fact limits your discussion. Frequently students will ‘fight the facts’ given.  Sometimes called salmoning in reference to the doomed salmon’s last upstream struggle to spawn, you should avoid this urge on examination day.  If you feel the urge to salmon, just recall that the salmon’s efforts result in laying eggs and dying.)  Unilateral mistakes, unknown and unknowable in the exercise of reasonable powers of perception, do not vitiate an otherwise valid offer.  In the eyes of the law, one intends to do that which a reasonable person would infer from her words and conduct.  Lucy v. Zehmer. (Rule.)  Walton intended to offer the stole because he left it on the shelves of his store during the after-holiday sale.  Nothing in our facts points to any means by which Calvin or any other reasonable person could have known that the stole was not offered for sale. (Application.) I conclude that Walton’s mistake does not vitiate his offer. (Conclusion.)

The First Transaction in Summery:

            All the elements of a contract are present here:  Offer, Acceptance, and Consideration.  As to this final element, brevity has forced me to omit discussion.  It seems clear that in context a bargained for exchange took place here as that concept is defined in the Common Law of Contracts.  Time permitting, this could be amplified by comparison of Lucy v. Zehmer with Carlil v. Carbolic Smoke Ball Co.

(This little summary is offered to demonstrate the Addendum technique mentioned above.  It may be a modest waste of time – the facts really don’t justify a discussion of the doctrine of Consideration. It’s included here in shorthand to add a belt and suspenders to calm my nerves about leaving this pivotal concept of the course  totally undiscussed.)

B. The Telephone Conversation

(In many respects, this half of the question is more complicated than the first half. The facts aren’t as straightforward, and the legal issues are a little more subtle. In such circumstances a novice can panic or resort to undisclosed assumptions to short-circuit the problem. The best solution is to stick to your chronological/transactional format and be very careful to disclose the process by which you resolve ambiguity. Be on the lookout for opportunities to branch your analysis.)

Calvin’s Attorney’s Call:

            The call from Calvin’s attorney to Walton, although apparently quite proper, raises some potential for an issue of duress or other imbalance in the bargaining process. Walton, a humble La Jolla clothing merchant, negotiated with Calvin after Calvin’s lawyer threatened to sue.   More alarmingly, the threat comes only an hour after the dispute arose and promises a filed lawsuit the following day!  (Issue.  Here again, one wonders exactly what to make of the facts given.  In the real world anyone who has an attorney on the job this fast and in such a bellicose posture is frightening.  The flowing analysis, given this fact, basically discounts real world perception and treats the whole incident to focus the next transaction.  The thought here is not to  joust with the examiner’s fictional world.)  

Under some circumstances, even the threat to do a lawful act may constitute duress if done for malicious purpose.  In class we discussed a New Jersey case in which a threat to sell a tract house in a new development to ‘undesirables’ was held sufficient to vitiate a contract of rescission subsequently made with the seller/developer.  (Rule.  The case referred to is Wolf v Marlton, a dubious little melodrama illuminating human nature at a low ebb.  The text demonstrates how to use case authority only partially recalled.  It’s better to get something down, show that in practice you’d have a lead to work with.)  

He we have no facts to indicate malice or that the threat had any effect on Walton’s exercise of free will. Walton seems more worried about Calvin’s occupation and popularity than the threat of suit.  Duress and similar bargaining defects look to whether a disparity in bargaining power resulted in the overbearing of the complaining party’s otherwise free will. (Application.(  I conclude that no such bargaining process defect is present here. (Conclusion.)

The Mistaken Identity:

Does Walton’s mistake as to Calvin’s identity effect the bargain struck in settlement of their dispute? (Issue stated in terms of the facts.) At the outset we should observe that a contract in settlement of an existing dispute, called an Accord or Executory Accord at common law,  is to be analyzed just like any other contract.  Accords occasionally raise special problems under the heading of the pre-existing duty rule, but none appears here.  (Yes, gentle reader, this is another insurance policy of the interjected addendum variety.  Too many of these paranoid digressions and you’re on the way out the door with an unfinished exam to turn in.  Time flies!)

A mistake, even though unilateral, can vitiate a bargain under some circumstances.  Where the mistake is or should be obvious to the non-mistaken party (sometimes called a ‘palpable error’),  the courts will not permit the non-mistaken party to snap up a lopsided bargain and profit by the other’s ignorant misfortune.  Some courts rationalize this intervention by discussing good faith, others rely on the subjective theory of Contracts, but none permit enforcement in such circumstances.

Courts look to the whole picture in deciding whether to grant relief from a mistake, reliance by the non-mistaken party, and promptness with which the mistake is discovered and reported are all considered in resolving such cases.  Courts fret over encouraging ignorance by vitiating bargains to protect those who, with a little effort, might have protected themselves. (Rule.)

Here, Walton’s mistake is obvious: ‘Since you are the Calvin Powerhouse’ is a dead giveaway that Calvin knew or should have known that Walton was operating under a misapprehension as to his identity.  Calvin lives in the same town with the famous athlete and must run into variations on this mistake almost daily.  Moreover, Walton has abandoned a claim to a $400 stole in reliance on the misapprehension as to Calvin’s identity.  Most important in this analysis is the fact that Calvin surely perceived Walton’s mistake immediately.  (Application.) 

Courts are totally intolerant of misconduct of this variety.  To be otherwise would promote a body of law littered with tricks and pitfalls wholly inappropriate to the needs of a commercial society. (A little public policy to butter up the reader who likes to talk The Big Picture, as almost all law professors do.  This IRA-Pp-C is often a waste of time and should only be indulged in when dictated by pre-examination reconnaissance or when time is abundant.)  I therefore conclude that Calvin has not formed a contract in this transaction. (Conclusion.)

Remedy: 

            Remedy under this second transaction will be Walton’s real problem.

(Here, at last, I have succumbed to the temptation to open with a conclusion. Toward the end of an exam, time constraints may dictate suck a conclusionary approach.  It may also be warranted because most of the real analysis has been done and you’re simply stating the obvious). 

If Walton wins here, what will Walton get? (Issue.)

The normal remedy for a contract formed in mistake is rescission and restitution, viz., put the parties back where they  were before the abortive attempt at contract formation. (Rule.)  Here, Walton would be allowed to keep his stole under the rescinded Accord, however, Calvin would be reinstated in his rights under the advertisement discussed in part “A” above.  If I am correct, Calvin would prevail in his suit, so Walton’s victory here will be short lived. (Application/ Conclusion.)

Calvin gets the stole for $200.00, but not for free.

Addendum

Not discussed above is the issue of whether a promise not to sue can constitute consideration.  (Issue stated but note that it is not stated in terms of the facts.)  This discussion was omitted primarily because I concluded that a contract was formed in the transaction generated by Walton’s advertisement.  The bargaining away of a valuable right, even though intangible, is enough to form the basis for a contract. (Rule.)

What if I am mistaken and Calvin’s claim were deemed legally groundless?  (Here we go again! Another issue stated. This belated and somewhat paranoid branch, most likely is not justified by the facts.  This is precisely why it was held for the end of my answer, time permitting.)

A promise not to sue may be consideration for a return promise even though the underlying claim is groundless or fatally defective, i.e., barred by the Statute of Limitations or based upon some misapprehension of law or fact.  All that is necessary is that the person bargaining away such a claim have a good faith belief in its merits.  We discussed Feige v Boehm in connection with this area of the law. 

In Feige, the female plaintiff bargained away her right to test the paternity of her unborn child in return for the defendant’s promise to make certain payments of money.  When it later turned out that the child could not have been the defendants, he sought unsuccessfully to upset the bargain struck.  The court held that even though the plaintiff bargained away an invalid claim, this was enough to bind the defendant.  The courts have a strong preference for settlement claims.  (Rule.) 

(Observe how windy  the foregoing discussion is.  Where are the facts from the question?  This is a natural consequence of discussing a phantom issue which is not called for by the facts.  A whole exam of this variety is utter torture to read.  Only write such when planned as a swan song sung to avenge indignities suffered too silently too long.)  

Since I’ve previously concluded that Calvin’s claim against Walton is viable, the voluntary exchange of that claim for some promise in settlement is clearly sufficient to form a contract. (Application/Conclusion.)  The problem with this contract likes elsewhere as previously indicated.

            Finally, a word of explanation concerning my non-discussion of the Uniform Commercial Code.  It seems clear that a fur stole is ‘moveable’ and hence ‘goods’ subjecting the transaction to Article 2 of the Uniform Commercial Code.  It is equally clear that Walton is a ‘merchant’ because he deals in good of the kind specified.  Calvin, a consumer, is a non-merchant.  Notwithstanding this, nothing in the facts raises an issue where the UCC is significantly different from common law.  We have no question of warranties or unconscionability providing us with the opportunity to discuss the more modern and arguable better approach taken by the UCC.    The provisions treating merchants differently from non-merchants do not come into play in our facts. (This is a final example of correct use of the Addendum.  We really can’t say why Professor Claus put his ‘UCC is persuasive’ language in the instructions.  This addendum is just more disaster [‘Why Ms. Roe, didn’t you discuss the UCC?’] insurance.)

End Answer

Appendix I

            In the following pages, I have provided two sample questions, each with a sample answer.  The first question examines in Torts, the second Contracts.  The questions are at a substantive level within the reach of any student who has completed one semester of any traditionally-organized class in each subject area.  The simplicity is intentional.  Practice examinations should help you learn something of the craft of examination writing, not probe your understanding of the substantive law.

            The procedural instructions for theses questions are somewhat different from those normally encountered in law school.  You should not simulate examination conditions in answering these questions.  Rather, you should permit yourself unlimited time and an open book.  However, apply the generally accepted common law of the United States and, in Contracts, mention the UCC if you think it persuasive of the better resolution.

            The question presented in these appendixes are arranged in order of increasing opportunity to write a sophisticated or mature IRAC.  For this reason, I recommend that you write an answer to Question 1 first.  It is structurally closest to the sample question already discussed.  After writing your own answer, compare it to the sample answer provided.  In doing this, refer to the Examination Profile reproduced in Appendix II.  This may help you spot your own areas of strength and weakness.

            Good luck!

Sample Question 1

Forrest Bopper, a teenager on self-declared holiday from school, entered, Funland, an amusement park, by climbing the fence to avoid paying the admission charge.  Once inside Funland, Bopper ran toward the roller coaster, jumped a railing, and landed in the last car of the roller coaster as it was pulling away from the loading platform. 

The car was already occupied, and Bopper landed on top of Dolly, an obese tourist from Detroit.  Bopper’s feet collided with a package being held by Jim, Dolly’s companion and another occupant of the last roller coaster car.  Jim and Dolly did not see Bopper running through the crowd and vaulting the railing because they were kissing the entire time. 

Dolly had undergone hip replacement surgery six months earlier and Bopper’s impact fractured Dolly’s hip.  Jim’s package contained a delicate scientific instrument for measuring centrifugal force which Jim had purchased and brought along in pursuit of his hobby, amateur physics.  The impact of Bopper’s feet destroyed Jim’s instrument.

            Hart, the occupant of the roller coaster car just in front of Dolly and Jim, had seen Bopper charge through the crowd and vault the railing.  Believing that Bopper was about to crash on top of him, Hart fainted.

            Wanda, an off-duty Deputy Sheriff, saw what happened and grabbed Bopper by the coat collar just as his car passed the end of the roller coaster platform.  In doing so, Wanda inadvertently tripped a safety device which stopped the entire roller coaster just at the crest of the first and highest hill.  Twenty people, including the painfully injured and screaming Dolly, were trapped for fifteen minutes while Funland employees sought to retrieve the roller coaster without sending it, and Dolly, through an entire trip around its circuit.

            When order was finally restored, Wanda took Bopper to the Sheriff’s Office.

WHAT INTENTIONAL TORTS HAVE BEN COMMITTED? DISCUSS.

Sample Answer to Question 1.

Bopper

Trespass to Land:

Does Bopper’s climbing of Funland’s fence constitute a trespass to land?  At common law any wrongful entry onto the property of another constitutes trespass. Bopper climbed Funland’s fence in order to avoid paying their admission charge.  Although this does not constitute a conversion because what Bopper took was intangible, it is still a theft of service or some similar wrong.  I conclude that Bopper has committed the intentional (and ancient) tort of trespass to land.

Assault Upon Hart:

When Bopper charged through the crowd and vaulted the railing, did he commit an assault on Hart? A common law assault requires only that the victim, here Hart, reasonably apprehend an imminent battery, viz, and any unconsented touching.  Although patrons of an amusement park may be deemed to have consented implicitly to some amount of jostling and related apprehension, Bopper’s conduct is well beyond the scope of the consent given.  Hence, if Hart’s apprehension that Bopper was about to leap on him were found to be reasonable under the circumstances, Bopper would be held to have committed an assault upon Hart.

Hart’s Emotional Distress:

            Intentional infliction of emotional distress is potentially raised by Bopper’s conduct. Has Bopper committed such a tort?  This wrong requires at a minimum that the defendant intended to cause emotional harm.  Some jurisdictions require physical touching, a battery not present here.  Others require repeated act of harassment.  Under our facts, nothing suggests that Bopper knew to any certainty that Hart was watching, let alone that Bopper wished to distress Hart.  Bopper did not touch Hart.  It can be concluded confidently that Bopper has not committed this intentional tort.

Battery Upon Dolly:

            What is the significance of Bopper’s landing on Dolly?  Was this a battery? A battery is any unpermitted, unprivileged touching of another person. Although, some courts have articulated that the touching must be ‘offensive,’ this simply recognizes that in society we consent implicitly to any number of well meant, inoffensive touching of a routine nature.  For instance, when someone helps another onto a bus or other conveyance. 

As previously discussed, a certain degree of jostling is consented to implicitly whenever one enters a place of public amusement.  However, Bopper’s touching of Dolly was well beyond the scope of her implicit consent. 

Did Bopper intend to touch Dolly? As used in the law of battery, ‘intent’ means knowledge that one’s act(s) have the likelihood of resulting unpermitted touching.  Bopper need not have intended to touch Dolly in the sense of wanting to collide with her. He only needs to have intended to commit the acts, running and jumping, which resulted in the unpermitted touching.  I conclude that Bopper has committed a battery upon Dolly.

Bopper has not, however, committed an assault on Dolly or Jim since neither of them apprehended the battery committed.  Bopper will be liable for the full extent of Dolly’s injuries even though her pre-existing medical condition may have contributed to the severity of her injuries.  In intentional torts one is deemed to take one’s victims as one finds them.  Bopper’s situation is one which is usually referred to as an ‘eggshell skull’ case. 

Trespass to Chattel:

            Is Bopper liable to Jim for trespass to Jim’s instrument?  This tort is like battery in the degree of intent required.  It is not necessary that Bopper knew of or intended to damage Jim’s instrument.  Bopper is responsible for injury caused by acts intentionally done which, in the ordinary course of things, are likely to cause injurious impact.  If Jim’s instrument were so delicate that even a little jostling could destroy it, perhaps Bopper could argue this in defense.  However, Jim’s use of the instrument on a roller coaster suggests that the instrument was reasonably sturdy. 

Bopper’s impact apparently was quite forceful.  His conduct is of a variety sufficiently likely to cause injury that courts would attribute to Bopper the requisite intent for trespass to chattel.  Bopper will be liable to Jim for trespass to Jim’s chattel, the measuring instrument.

Bopper’s Minority:

            Bopper may argue that his minority is a defense to actions based upon his misconduct.  Bopper is a teenager and, as such, is old enough to be held liable for his intentional torts.  Were Bopper younger or his torts negligent, Bopper’s age might be  a more useful defense for him.  As it stands here, Bopper’s age is no defense.

Wanda

Battery and False Imprisonment: 

            When Wanda grabbed Bopper by the collar, she arguably committed a battery upon him and, if Bopper was aware of the imminence of this battery, Wand may have committed a common law assault as well.  Similarly, Wanda’s detention raises an issue of false imprisonment, another common law intentional tort. Any unconsented restriction of the freedom of movement of another constitutes a false imprisonment.  Wanda apparently held Bopper for some period of time. 

Does Wanda possess a privilege which will immunize her from otherwise tortuous conduct?  A police officer is privileged to arrest for misdemeanors committed in her presence when acting ‘under authority of the law.’  Whether or not an off duty deputy sheriff enjoys such a privilege is arguable.  If Wanda had a public duty to arrest Bopper, her privilege is solid. 

Frankly, I can’t resolve this issue within the four walls of the law of torts, so I simply conclude that Wanda’s imprisonment of Bopper may have been privileged.  There is little doubt that Bopper was committing some misdemeanor, probably several, at the time of his apprehension by Wanda.  It should also be observed that the privilege is lost if the officer uses excessive force.  Our facts don’t suggest this to be the case.  Wanda’ timely grabbing of Bopper probably saved Dolly a great deal of discomfort and may have precluded further violence abroad the roller coaster.

False Imprisonment of Passengers:

            Wanda might be accused of the false imprisonment of the twenty trapped passengers on the stranded roller coaster.  Wanda’s action was the cause of the stranding of those passengers.  However, Wanda’s lack of intent plus Wanda’s privilege both point to no viable cause of action against her.

Trespass to Funland’s Chattel:

            Funland might claim that Wanda’s tripping of the safety device constituted a trespass to chattel.  Elements of this tort are, among others, intentional impairment of the quality, condition, or value of plaintiff’s chattel property.  Nothing here suggests any of these elements is present and I conclude that Wanda has no liability under this heading.

End of Sample Answer to Question 1

(Postscript to Sample Answer:

            Notice that nowhere in the forgoing answer was any mention made of the probable existence of insurance and Funland’s potential liability for negligent torts.  This discussion, although tempting and consistent with the actual work of torts practice, is expressly precluded by the call of the question.  Pursuit of issues beyond the call of the question would have been a waste of time and a provocation to an overworked examination reader.)

Sample Question 2.

          In early 2015 the University of South Corbinia Boosters Club (‘Boosters’), an incorporated group of university alumni, wrote a letter to Mr. Chu, a karate teacher at South Central High, the largest high school in Corbinia.  In the letter Boosters promised to pay Chu a ‘commission’ of $500 for each quality high school football player Chu might induce to enroll at USC during a period of two years commencing in September 2015.  The letter concluded, ‘We emphasize that you must agree to solicit for us only footballers who are large, fast, agile, mean, and hungry for glory.’

            Chu promptly replied by mail, ‘I accept your proposal and agree to abide by its terms.’  Before writing the letter, Boosters’ officers knew that for several years Chu had directed dozens of his school’s staring football players to out-of-state universities.  They mentioned their awareness of this fact in their letter to Chu. 

On receipt of Chu’s reply letter, Boosters pledged $300,000 toward a stadium addition at USC and induced the university to hire three additional assistant football coaches in anticipation of an upsurge in the university’s football program success.

            Chu did not recruit nor try to recruit any players for USC during 2015, 2016, and 2017. Chu did recruit a football player named Lance Fairy for Flapdoodle University in 2018.

            In a lawsuit against Chu, Boosters alleged the foregoing facts plus damages sustained.  Chu has sought the advice of Nasty, Mean, Brutish, & Short, the law firm by whom you are employed.  Chu says he believed that the letter from Booster sought only a non-binding ‘gentleman’s agreement,’ and that his reply letter only meant that Chu would give USC reasonable consideration in any recruiting effort he might make.

            Chu has provided you with the following additional facts: (a) between June 2015 and September 2017, no player who was large, fact agile, mean, and hungry for glory graduated from South Central High School where Chu is employed; (b) during that time, Lance Fairy was the only player Chu had solicited for any university; (c) Lance Fairy is the smallest person ever to have started on the South Central High School varsity football team since 1950; (d) Chu received a finder’s fee of $5,000 from a group of Flapdoodle University alumni when Lance enrolled at Flapdoodle U; and Chu received no money from Boosters. 

            PLEASE PREPARE A MEMORANDUM DISCUSSIONG CHU’S POTENTIAL LIABILITY TO BOOSTERS.   CONCLUDE YOUR MEMORANDUM BY SPECIFICALLY ANSWERING THE FOLLOWING QUESTIONS WHICH CHU HAS RAISED IN HIS INITIAL CONFERENCE WITH BARBARA BRUTISH, THE PARTNER FOR WHOM YOU WORK:

            1.  Is the court likely to agree with Chu’s interpretation of his exchange of correspondence with Boosters and, if it does not, what interpretation is most likely?

            2. Will the additional facts which Chu has provided support any good defense to Booster’s suit if the court finds that there was a binding agreement between Chu and Boosters?

            3. Do the alleged facts support any theory upon which Boosters might recover judgment against Chu for the $300,0000 Boosters pledged for the stadium addition?    

Sample Answer to Question 2.

Boosters v. Chu

The Exchange of Letters:

Does Booster’ promise to pay Chu a $500 commission for each quality football player he recruited constitute an offer?  Both the common law and UCC (persuasive even though football players, although frequently treated as such, aren’t ‘goods’) provide guidance as to what constitutes an offer as that term is used in the law of Contracts. 

In general, an offer is any manifestation of present willingness to be contractually bound. A principal case in the area is Lefkowitz v. Great Minneapolis Surplus Store, where the court held that even a newspaper advertisement could be an offer if it were specific enough to leave nothing open for further negotiation if accepted.  Boosters’ letter is specific.  It asks Chu to recruit players and offers his $500 per player recruited.  Some argument might be made that the terms ‘large, fast, agile, mean, and hungry for glory’ are too vague, but granted the subject matter, it is difficult to imagine greater specificity. I therefore conclude that Boosters’ letter is an offer.

Is Boosters bargaining for a performance (‘induce to enroll….’) or for a promise (‘you must agree to solicit….’)?  An offer bargaining for a performance as the manifestation of assent is unilateral; a contract is formed only when the requested performance is delivered.  An offer bargaining for a promise of future performance is bilateral; a contract is formed when the requested promise is given. 

Although the unilateral/bilateral distinction is ignored by the UCC, it seems important to resolution of Chu’s situation here.  If we interpret Booster’ letter as a unilateral offer, that is an offer soliciting performance as the manifestation of acceptance, Chu is a like a bounty hunter who has been offered a reward.  Until Chu performs, or at least commences performance, there is no bond of obligation between Boosters and Chu.  Chu is at liberty to do as he pleases, and Boosters may revoke its offer at will. 

However, if Booster’ letter is interpreted as seeking a return promise, mutual obligation arose as soon as Chu’s return promise, ‘I accept your proposal…’ was deposited in the mail, Adams v. Lindsell.  Courts could differ on these ambiguous facts, but that common law preference for bilateralism and the UCC’s clear preference for finding a contract when the parties behave as if they have one, both lead me to conclude that we should at least operate under the assumption that Boosters and Chu were mutually contractually bound.  (This conclusion is tactically dictated since to conclude otherwise would terminate this answer and foreclose much valuable discussion.  Remember, Grasshopper, the story of the tortoise and the hare.  Being fast isn’t being first in law exam writing)

Booster’s Pledge of $300,000:

Does Boosters’ pledge of $300,000 to USC support a bilateral contract analysis?  In Lucy v Zehmer, the plaintiff, having entered into an agreement with the Zehmers to purchase their farm, sought financing for the purchase the following day.  Although this activity could be viewed as self-serving window dressing, the court in Lucy appeared to place some value on it in deciding a close case.  Boosters’ pledge to USC can be viewed in a similar fashion.  Boosters thought they had a contract and behaved accordingly in reliance on the contract.  I conclude that Boosters’ pledge to USC lends some support to their claim that they had a contract with Chu.

May Booster’s pledge of $300,000 be treated as a basis for recovery in promissory estoppel?  Promissory estoppel is a remedy in Contracts which compensates for injury sustained when a plaintiff reasonable, foreseeable, justifiable, and detrimentally relies on the defendant’s inconsiderate, ‘gift’ promise.  According to Restatement II, Contracts, section 90(2), promises made to charitable institutions enjoy a special rule – reliance is presumed and need not be proved.  A principal case in point is Salsbury v. Bell which involved a pledge for money toward the founding of a school.  The court in Salsbury presumed reliance and enforced the promise even though the proposed school collapsed financially without ever opening its doors. 

Chu’s promise, although made to a not-for-profit entity, seems quite different.  First, Chu promised services, not money.  Chu made his promise in a business context.  Chu did not intend to make a gift of his services.  Moreover, Boosters’ pledge of $300,000 in allege reliance on Chu’s promise seems neither reasonable nor foreseeable nor justified.  A court might well conclude that granting judgment against Chu would not do justice under these facts.  Promissory Estoppel is said to be equitable in nature, leaving a great deal of discretion in the court’s hands.  This discretion seems likely to favor Chu here.

Boosters Induces USC to Hire Coaches:

Our client’s exposure to liability toward USC is not addressed by the questions which he has raised Ms. Brutish, yet I am concerned that USC may claim that they too relied on Chu’s promise to their detriment.  Such a claim might give rise to another law suit based on the theory of Promissory Estoppel.  Although it seems unlikely to receive favorable treatment in the courts, we should raise this issue with Mr. Chu and ask him for further facts. 

USC’s employment of three new football coaches at Boosters’ inducement is rather remote reliance upon which to premise a recovery by Boosters against Chu.  Since Boosters suffered no provable out of pocket injury, what remedy can they demand of Chu?  I conclude that Boosters has no significant basis for a claim against Chu based on this transaction.

(The preceding two paragraphs demonstrate how to deal with a shadow issue which, although raised by the facts, seems beyond  the call of the question.  It is a kind of insurance against a poorly drafted examination.  Basically, you must summarize and get out.)

Chu’s Inaction:

Does Chu’s failure to recruit or try to recruit players for USC expose him to any liability to Boosters?  The bilateral contract, if it exists, between Chu and Boosters is vague and open.  Nevertheless, Wood v. Lucy, Lady Duff-Gordon demonstrates that a modern court has extensive power to fill in the gaps under the general heading of good faith.  The UCC creates an irrefutable statutory presumption of good faith. 

In Wood, the contract was nowhere specific that the plaintiff had any duties toward the defendant.  Yet, Justice Cardozo implied reciprocal obligation and found a remedy in contract for the plaintiff.  Chu’s failure to try to recruit players is therefore an apparently breach of contract.  In good faith, Chu should have done something.  I conclude that if Chu had a bilateral contract with Boosters he is in breach, albeit immaterial, of that contract.  However, if Boosters’ offer is interpreted as unilateral, Chu had no duties whatsoever.  He simply ignored their bounty offer and accepted a better offer by Flapdoodle University.

Illegality:

 Is Boosters’ offer of $500 per player recruited by Chu legal in the sense that term is used in Contract Law?  Illegality is a court’s public policy objection to a given contract.  If found, illegality will bar enforcement of an agreement no matter how seriously intended by the parties.  Illegality is broader in scope than simple violation of the criminal law.  It has been found where a court simply determines that there is something distasteful or immoral about the agreement.   

For example, in Oscanyan v. Standard Arms, the New York court declined to enforce a percentage commission agreement to be paid to a Turkish government official even though such were lawful in Turkey.  Indeed, such payments were the method by which Turkish officials earned their living.  The New York court treated the payment as a bribe and declined enforcement. 

Here, the bounty offered to Chu seems very similar indeed.  It is a procurement fee akin to pandering and must violate some rule of intercollegiate athletics.  At a minimum, the fee is designed to influence Chu’s behavior toward children entrusted to his care by Central High School.  I conclude that Boosters’ suit against Chu would be dismissed for illegality.

Statute of Frauds:

           Since the anticipated contract between boosters and Chu was to run for a period of two years, is a writing required?  That Statute of Frauds requires writing for all contracts which can’t be completely performed within one year from their making.  Chu’s promise to Boosters was to run for a two year period and accordingly, a writing signed by the party to be charged (Chu) is required to prosecute the lawsuit over Chu’s objection. 

Will Chu’s letter satisfy the Statute? Several writing have been held sufficient when taken together to satisfy the statute, Crabtree v. Elizabeth Arden.  Crabtree appears to be the modern approach to the Statute in Contracts not concerning an interest in land.  Boosters letter may be read together with Chu’s letter and together they would constitute ‘a writing’ sufficient to satisfy the Statute of Frauds.

Chu’s Questions:

            1.         No.  This was not a ‘gentleman’s agreement,’  it was a contract.  Chu is    not in breach except for his failure to try to recruit players.  Moreover, the contract is probably barred by illegality.

             2.         Yes and No.  The procurement of Lance Fairy for Flapdoodle University was not a breach.  Lance’s not being ‘large’ excludes his procurement form the contract’s coverage.  The fact that Chu has received no money from Boosters is irrelevant.

            3.         No. Promissory Estoppel won’t recompense unreasonable reliance.  Moreover, any recovery is barred by illegality.

End Sample Answer to Question 2.

Appendix II

EXAMINATION PROFILE

To:       Sally Student

From:   Professor Claus

Re:       Fall Semester Examination

Date:   ______________________

                                                Poor                 Okay               Good               Excellent

Organization                         ]                         ]                       ]                    ]                  ]

Issue Identification               ]                         ]                       ]                    ]                  ]

Statement of Rules                ]                         ]                       ]                    ]                  ]

Application of Facts             ]                         ]                       ]                    ]                  ]

Persuasion                             ]                         ]                       ]                    ]                  ]

Too Conclusionary/ Must Reach Conclusions

Follow IRAC

Branch

Headline

Handwriting Problems

Other Mechanics

Blind Spots

Remarks:________________________________________________________________________________________________________________________________________

Appendix III

In the following pages you will find one last sample question.  This time, no sample answer is provided.  This question tests common law contracts and basic provisions from Article 2 of the Uniform Commercial Code. The question should present the greatest challenge to your writing skills of all the questions contained in this booklet.  The question was designed to be answered in two hours.  However, I recommend most emphatically that you write your answer without time limit and, as before, open book.  You will obtain the maximum learning benefit from the question by taking it under these more liberal conditions.

Question 3.

Compufoozle

            Chuck is president of a small company which creates and sells instructional programs designed to meet the specialized needs of its customers.  Such programs are sold as a package in the form of lectures, training manuals, and computer software.  Last January 3d at 4:00 pm., Chuck met with for final consultation with Hal, Chief of the University of South Dogpatch Special Tactical Police (“STP”).  After reviewing a mutually prepared parking and security analysis, Chuck told Hal:

            ‘Our program will solve your parking and security headaches.  With it each of your officers will be specially trained.  Your computer will we programmed to identify any vehicle immediately.  If the vehicle is unlawfully parked, the computer will automatically mail a ticket to the violator’s address and place a stop order on all financial aid, grade release, and/or academic transcript release of the violator.  We’ll sell you with complete package, including lectures, training manuals, and software, for $150,000.00 cash on delivery.’

Hal paused, appeared to consider Chuck’s proposal, and replied, ‘Fine, fine, ‘lets do it.’

                        As Chuck left Hal’s office, Chuck stopped at the desk of Linda, Hal’s administrative assistant.  Chuck knew that Linda was the real brains of Hal’s office.  Chuck left a copy of his form sales order with Linda.  The sales form bore Chuck’s initials, but not Hal’s. The sales form conspicuously disclaimed all warranties and provided for cash payment upon delivery of any component of the instructional package. 

                        The following morning, Linda, who is an evening law student, read Chuck’s sales order form and carefully lined out the warranty disclaimer and cash payment provisions contained in it.  At the top of the form, Linda lettered, ‘ACCEPTED JAN 3d’ in block capitals.   At the end of the form, on its reverse, Linda typed in, ‘Payment: $10,000.00 on order, balance at $20,000.00 per month commencing February 3d.’  Hal signed Chuck’s form as amended by Linda and mailed it with STP’s check for $10,000 payable to Chuck.

That very morning, a full day before he received the altered sales order form, Chuck delivered the job training manual and computer software called for by the sales order form.  This delivery was accomplished electronically by Internet communication between Chuck’s computer and STP’s computer.  The computer software delivered by Chuck contained an electronically-recoded twenty-five-page instructional manual.  It also contained the automatic ticketing program described by Chuck. 

Linda immediately printed a hard copy of the instructional manual and duplicated a copy of it for each STP’s officers.  When Chuck received the altered sales order form and check for $10,000.00, he refused to provide the lectures he had described in his conversations with Hall.  He has neither cashed nor returned STP’s check.

                        In the following weeks problems developed.  University community hostility to STP’s new regime was unexpectedly sharp and militant. STP’s officers affected a new uniform and attitude which student characterized as ‘Mod Nazi.’ Rumors that the computer was ticketing irrationally spread throughout the campus.  Dark predictions concerning graduation chaos have been reliably reported in the student newspaper.   

Hal resigned for health reasons.  In fact, Hal’s health is so impaired that he is unable to drive an automobile most of the time.  He had relied on taxis for transportation for over six months prior to his resignation.  Linda, STP’s new Chief, has privately confirmed that Hal was usually ‘in the ozone’ by noon.  It was Linda’s uniform practice not to permit Hall to sign anything after his lunch hour.  Finally, it is rumored that Chuck’s program was stolen form his major business competitor, Happy Hours Computers of North Dogpatch.

                        You are an associate at the powerful law firm of Measley, Mealy, Roach, Threadbare, and Grimm.  Your firm represents STP.   Assume that the rumors concerning the computer ticketing program are unfounded.  The program works precisely as described by Chuck.  However, the program’s use has become such a political headache that STP wants no part of it.

                        DISCUSS:  CHUCK v. STP.

                        ASSUMING THAT THE COMPUTER PROGRAM WAS STOLEN FROM HAPPY HOURS COMPUTERS, WOULD THIS AFFECT YOUR ANALYSIS IN CHUCK v. STP?

                        AGAIN, ASSUMING THAT THE COMPUTER PROGRAM WAS STOLEN FROM HAPPY HOURS COMPUTERS, DOES STP HAVE ANY POTENTIAL LIABILITY IN CONTRACTS TO HAPPY HOURS COMPUTERS?

End of Question

Afterword

One evening in my first year of law school my eyes seemed to grow dim. I was fighting a tired mind and body, trying to stay alert while poring over yet another Torts case. The too-white page dimmed to grey/brown. Thinking my vision was failing, I looked up, rubbed my eyes, and focused on the Empire State Building nearly forty blocks uptown. Such had become my habit. Like a prisoner, I wondered who worked in such a beautiful place and why they kept their lights burning so far into the night.

As I gazed uptown, the electric city’s crystal skyline brightened briefly then blinked totally dark. The Great Blackout of 1965 had begun. Many stage and wonderful things happened that night. Volunteers directed traffic in intersections illuminated by burning trash cans. Strangers helped each other find safety, food, and shelter. A bumper crop of babies was conceived. Nobody studied law except one mad first-year colleague who adorned a Mexican sombrero with candles and, like Van Gogh, read into the night, candle wax dripping on his notes.

Looking uptown, I saw Manhattan bathed in moonlight and cradled by stars. This was the Manhattan of old, lovely Manahatta, a speck of candlelit dust flickering in the starry cosmos.

Mother Nature had declared a moratorium in the paper chase and, for a few brief hours, stayed my frantic pursuit of the law.  In those first moments looking into the starry cosmos I understood that my drive for law school success was not terribly significant.  Law school was and is a game. Having decided to play it, play to win, but never forget that your life is real, and examinations are just a part of the law school game.

            Nothing I have learned in the many intervening years has altered this perception.

                                                                                                JK – January 2019

Jack Kelleher

Jack Kelleher is a graduate of Occidental College (B.A., Comparative Literature) and New York University School of Law (J.D. and LL.M).  He is a former Assistant United States Attorney for the Southern District of New York and a former tenured professor at The University of San Diego School of Law.  After retiring from teaching, Jack practiced law in Ithaca, New York, and finished his legal career as a Family Court Magistrate in Cortland, New York. 

Jack’s answers to the California Bar Examination were permissibly used by them as examples of successful performance on that examination. He has graded thousands of law school examinations, represented clients in hundreds of cases at all levels of practice, and presided over several thousand trials in Family Court. He is retired from the law and now spends his time writing and operating a free bike clinic in Clonakilty, Ireland.

            He lives alone, still rides a bicycle, and has a beloved family scattered around the United States and Ireland. He still wonders at the stars every clear night.