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Law Exams – Best arguments or just “getting to maybe”?

Law exams that require students to make the best arguments best prepare them for practice

As a law school exercise, “getting to maybe” problems and arguments are justifiable as a professorial pedagogical choice. Indeed, in my book, How To Do Your Best On Law School Exams, I include an example, a challenging multi-issue contract problem with mostly getting to-maybe responses to a practice exam problem from a NYULS contract professor I knew who taught it forever and co-authored a leading casebook.

But it’s important to realize that getting to maybe is just one professorial exam choice — and almost never what lawyers actually do in most practice arenas. Certainly not in trials or appeals; not in negotiations; not in writing contracts, wills, or real estate agreements, not in separation or divorce agreements; not in mediation or arbitration; not in commercial, non-profit or public policy practice (including legislative work or in representing villages, towns, cities, state or federal agencies or in litigating against them); and definitively not in the pervasive and hard-fought compromising that lawyers routinely perform.

Clearly, what lawyers do is not always adversarial (e.g., writing a will), but it’s mostly advocacy of one sort or another. To quote an older law student who had extensive business consulting experience, “people do not pay you to get to maybe.” Indeed, there is a clear ethical obligation for lawyers to advocate for their clients by making all plausible factual and legal arguments.

[Sure, there is a limited exception in that specialized and initial legal memorandum for a senior lawyer about a legal area that is uncertain for her, but surely not in a legal argument advocating for a client about that area.]

Isn’t the reason for this culture of advocacy simply that lawyers in almost any context have a client and are duty bound to advocate for that client? Such advocacy isn’t about getting to maybe: that would violate the lawyer’s duty to his/her client.

[Another exception exists in a lawyer's exercise of the role of counselor in advising on personal, business or governmental decision-making. But more likely even there it's figuring out the choices and then advocating what appears to be in the best interest of the client in a particular situation rather than getting to maybe.]

Additionally, the touch of relativism inherent in getting to maybe arguments is misleading. Lawyers for each side always present their arguments as better than the arguments of their adversaries, and the law provides a decision-making procedure as judges (and sometimes juries) decide which are better in one way or another. And the judge must always decide: no getting to maybe there either. And even if a jury can’t agree on a verdict that also is not getting to maybe. Jurors are saying, in effect, that we can’t agree on a verdict by the criminal law standard of proof beyond a reasonable doubt or the civil law standard of a preponderance of the evidence.

I have a hypothesis about this academic construct. If a teacher has practiced for a substantial time, his/her exam choice of type of problem is likely to require some form of advocacy argument, expecting that students will demonstrate how one argument is better than a second or third argument. But a teacher without such experience can use getting-to-maybe problems and responses as another way to avoid what they do not know well: the world of advocacy skills. That real world requires knowledge and facility in an array of advocacy skills as well as doctrinal knowledge.

I performed many hundreds of trials and appeals and years of public-policy practice before teaching, so naturally my exam problems always resulted in advocacy arguments of one sort or another (including a good many policy arguments). And I often expected two or even three arguments in response to an issue with one argument usually preferred but the others arguable in a plausible way. But I can’t ever recall creating a problem whose preferred response was getting to maybe. It’s not about the false choice of a culture of certainty or a culture of getting to maybe. That’s a clear either-or fallacy. Rather, it is about a culture of robust advocacy, of doing one’s very best, for each client in endlessly varying circumstances.

One warning: follow each professor’s choice here as always. If he/she indicates in class or old exams, as some do, that getting to maybe is what is expected, you, of course, follow that dictate for that exam but expect that in your career you may never be asked to get to maybe in most legal tasks.

Professor John Delaney (retired)