If you think it, write it …
or if it’s in your head it should be on paper (or typed on the screen).
One useful tip for law school exams and the bar exam is to show your analysis in your essays. Almost everyone has heard this advice but not everyone follows it. Students have told me when the analysis is so obvious there is no need to explain it. This is almost always a mistake.
Here is an example from a recent tutoring session with a student writing a practice crim law exam.
He wrote:
[I] The issue is whether the man can be convicted of manslaughter when he caused the passerby’s death after he slightly exceeded the speed limit.
[R] There are two types of involuntary manslaughter, involuntary manslaughter with criminal negligence and unlawful act manslaughter.
Involuntary manslaughter with criminal negligence requires gross deviation from the standard of care that a reasonable person would have exercised in the same situation.
[A] The man will probably not be convicted of involuntary manslaughter because he did not grossly deviate from the standard of care a reasonable person would exercise when he drove because he only slightly exceeded the speed limit.
[C] Because the man did not grossly deviate from a reasonable standard of care he will not be convicted of involuntary manslaughter.
This isn’t bad but what’s missing?
Note that the student wrote that there are two types of involuntary manslaughter: (i) involuntary manslaughter with criminal negligence; and (ii) unlawful act manslaughter.
But the student only analyzed whether the man might be guilty of the first type of manslaughter. The student ignored the second type of manslaughter – – unlawful act manslaughter.
There are two types of involuntary manslaughter, involuntary manslaughter with criminal negligence and unlawful act manslaughter.
The man will probably not be convicted of involuntary manslaughter because he did not grossly deviate from the standard of care a reasonable person would exercise when he drove because he only slightly exceeded the speed limit.
But what about unlawful act manslaughter?
I asked the student why he didn’t analyze the second type of manslaughter and he said it was because it was so obvious that the man could not be guilty of unlawful act manslaughter. But without the analysis on paper, it’s impossible to earn points. The student should have analyzed both types of manslaughter and explained why he believed the man would be guilty of neither.
Not only would the student earn more points, but by writing out his analysis other arguments might have occurred to him and he would have presented a more complete answer.
