In my last post, I introduced the idea that essay exams are about the journey, not just the destination. In doing so, I explained that most of the points in an essay exam are earned by explaining how you got to the answer, not by giving the answer itself—in other words, by “showing your work.” Today, I want to continue that theme by talking about counterarguments.
One of the key ways to maximize the number of points you earn for discussion of a complex legal issue is by exploring counterarguments. A counterargument is simply an alternative argument that you have chosen not to make because you have concluded that your path to your answer is the correct one. In practice, a lawyer deals with counterarguments on a regular basis. He or she must anticipate the opposing party’s possible arguments and address in his or her own pleadings and briefs why those arguments are invalid. By exploring counterarguments in your essay, you demonstrate to your professor that you understand the complexity of the legal issues and are thinking like a lawyer.
Not every issue requires a counterargument. Sometimes the analysis is pretty cut-and-dried, the answer predictable. But more often than not, your professor has chosen to set up legal issues with enough complexity that a counterargument is warranted. Look for legal issues in which multiple public policies are at work—those public policies may create different paths for your analysis. Sometimes there may be competing approaches to a legal issue, such as majority vs. minority approaches, or common law vs. statutory approaches. Or maybe courts apply a balancing test to resolve this legal issue, and you need to compare the essay fact pattern to the facts in a range of cases you read for the course. If you’ve done a good job of outlining course materials, as I talked about here and here, you can predict exactly when a counterargument may be warranted.
Finally, once you’ve analyzed the counterargument, make sure you don’t forget to explain to the reader why your approach is superior to the counterargument—this is the final step to setting up your conclusion of that issue.
Counterarguments are a great way to maximize your success in an essay exam—take time to explore them and don’t just rush to your destination!
Law School Success 