Phrasing Law Exam Answers: Should Students Avoid Hypothetical Phrasing?

At Concurring Opinions, Dave Hoffman warns students to avoid framing their exam answers in certain ways. Specifically, he cautions students to avoid answers that begin with "[Party] A could argue that" or "A might argue that."

Hoffman writes:

Every time you see this phrase, highlight it in red ink. It’s almost certainly leading you down a dark path.


Why is this phrase pernicious? Because, very often, it signals that you are about to fail to actually evaluate the noted argument. Rather, you will simply list the possibility (in contracts, for example, “A could argue that the correspondence of May 1 was an offer”) and not tell the reader whether or not that claim is a plausible or winning one in court. Though sometimes professors truly want to see a kitchen sink answer listing every possible claim, most, instead, are testing judgment. Judgment requires one to actually evaluate legal claims, not to list them. The problem with “argue that” is that it leads you to think that you are actually saying something — implicitly, that the argument raised is plausible? — without articulating the predicate rationale and limiting conditions. I can’t tell you how many times I’ve sat with students in exam reviews, pointed out this phrase, only to have the student tell me that they knew that the argument was a good or bad one, but they failed to put that judgment on the page. ”Argue that” blinds you to your own failure to exercise your situation sense.

I think that Hoffman's criticism of these phrases is overstated. In almost every exam I have taken, issue-spotter prompts explicitly require students to identify and evaluate the arguments that parties can raise. Students that fail to evaluate questions have failed to fully appreciate the call of the question -- and this larger mistake is probably more to blame than phrasing arguments as arguments that parties "could" make.

Moreover, I don't think that phrasing arguments as something parties "could" argue inherently draws attention away from evaluating the argument. I phrase my answers this way all the time. For instance, an outline of a full answer I would give usually looks like:

• Plaintiff A could argue Claim X ("Bob could argue that Pete's conduct constituted defamation of Bob.")
• A would argue that Fact A supports Element 1 of Claim X ("Pete claimed that Bob was a drunk. This statement would tend to harm Bob in his occupation as a surgeon because patients would not want to entrust their lives to a surgeon they think is a drunk.")
• Plaintiff A's argument will succeed / fail because... ("While Pete's statement that Bob was a drunk may tend to harm Bob in his occupational capacity, Bob's defamation claim will probably fail because Pete made this statement to Bob, and no other third parties.")

Hoffman inadvertently provides his own example of successfully transitioning into evaluating an argument after presenting it as something that somebody "could" say:

Now, you could argue that this is all needlessly pedantic mutterings over style points, when the real skills that ought to separate good from bad exams concern doctrine. But, if you did make that argument, you’d be wrong. Being conclusory – that is, assuming the conclusion in question and failing to analyze why the answer follows from the facts – is the key sin on most issue-spotter exams. You can learn to be less conclusory over time by training yourself to see it in your writing. And, if you got bad news this week, spotting conclusory writing before it’s graded will go a long way toward better news in May.

As my outline and Hoffman's example show, I think that claiming a party "could" argue something can lead quite naturally into an explanation of the argument and an evaluation of the argument. As long as students remember that the exam calls on them to evaluate parties' arguments, I don't think that phrasing arguments as something parties "could" or "might" claim is particularly harmful.

In fact, using these phrases may help students organize their answers better by clarifying which parties they are talking about, and separating one legal claim from other legal claims. In issue-spotter fact patterns where multiple parties may make multiple claims against each other, indicating which party is making a claim can help the student signpost what party and issue the student is discussing, and clarify who is suing who for what -- which is always something important to keep in mind. The professor who grades the exam may end up preferring this form of answer because, if used consistently, the student's discussion of the claims and the relevant facts will be presented in an orderly manner.

Now it may be possible that phrasing arguments this way may disassociate the exam-taker from the arguments they present by attributing the argument to one of the parties. If the student is making the argument, then the student may feel more compelled to defend it or point out his or her reservations.

But I think that the risk of failing to evaluate arguments is minimally related to how students phrase their arguments -- and is more closely connected to failing to understand the call of the question. And the benefits of clarity and organization that will follow from identifying what party is making which claim will probably outweigh the slightly higher probability that students will miss evaluating some arguments.