The biggest mistake is that students fail to use enough facts in their responses to show that they have properly considered the issues raised by the facts and marshaled the facts to conduct sophisticated legal analysis.
There’s a common refrain among law professors: we teach for free and get paid to grade. We spend a lot of time trying to create interesting fact patterns to allow students to engage in a thoughtful analysis of legal issues. All too often, though, students fail to sufficiently consider and use the facts in their responses, which leads students to prepare one-sided analysis or to rely on conclusory statements.
To avoid falling into this common trap, know that the facts on your exam cover three general categories:
Background
What are they? These are facts that set the scene for the problem the professor is presenting.
How to incorporate them? Don't—they don't belong in your response.
Red Herring
What are they? Your professor may include some facts that are not relevant to the real issues at hand but that look tempting and lead you to discuss irrelevant issues. For example, if your professor tells you a case is in federal court based on federal question jurisdiction but gives you facts suggesting a difficult choice of law problem under the Erie doctrine, those facts are red herrings.
How to incorporate them? Don't—they don't belong in your response.
Important
What are they? The vast majority of facts are important and should affect your analysis.
How to incorporate them? Determine why your professor included those facts and show how those facts affect your analysis in your Application section. The important facts will often lead you to arguments and counterarguments opposing parties could make. (Your exam will not have a background/facts section, so save your discussion of the relevant facts for your Application section.)
If you’ve sufficiently incorporated the facts into your analysis, someone who only read your response (and not the fact pattern) would understand why you reached the conclusions you did.
As straightforward as this advice is, it’s hard to implement—that’s why students lose the most points here. Among our students, it’s usually not until they’ve had multiple exams critiqued by us that they see exactly how to utilize the facts in their analysis. So, at a minimum, practice taking exams and have someone familiar with legal analysis review your responses, particularly your use of the facts.