One of my pet peeves when I was in practice was working with junior lawyers or student interns who refused to take a position on anything when I asked for research. Perhaps because of the way law schools teach students, they tended to answer almost every question with “on the one hand but on the other hand.” This particularly frustrated me during my in house counsel years when I was juggling demands from internal clients in over a dozen countries and just wanted to know an answer, or at least a recommendation. Over at Legal Skills Prof Blog and PrawfsBlawg, they lay part of the blame on issue spotting exams. I use issue spotting essay exams, so perhaps I am perpetuating the problem, but I find that students have a love-hate relationship with ambiguity. They like to be ambiguous in essays but hate ambiguity in multiple choice questions.

I just finished administering multiple choice exams to my civil procedure and business associations students. Typically, I use essays for midterms and a combination of testing techniques for the final exam. I’m not a fan of multiple choice because I believe that students can get lucky. On my final exams I use some standard multiple choice but I also use a hybrid style where students have to pick the correct answer and then write one sentence about why each other choice was wrong. It’s a pain to grade, but I get an idea as to how much they really understand. But with a combined 130 exams for midterms, I decided to go with the straight multiple choice. In addition to making life easier for me with grading, it will help prepare the students for the bar exam.

I chose to ask particularly complex multiple choice questions. The civil procedure students didn’t just have to answer about personal jurisdiction. Most answers combined at least two other topics or federal rules, in some instances with at least one part that could be incorrect. The BA exam was similar. After both exams a number of students complained that the questions were too ambiguous and they would have preferred essays. Ironically, many of the students who were most concerned about the nature of the questions did very well on the exam, which leads me to believe that some of them lack the confidence in their own analytical abilities.

I think students prefer essays because of the freedom to do the “this/that” or “throw everything on the wall and see what sticks” type of “analysis.” With the multiple choice questions that I used, the students had to do a much deeper level of analysis to choose the right answer- or to determine that none of the answers fit- which they hate. Often the concepts were restated in a way that probably wasn’t in their notes or the book. Those who memorized suffered the most.

Yesterday, I reminded my students that the law is ambiguous. Lawyers must think on multiple levels very quickly to answer what may seem like a simple question. In the alternative, often students overthink issues when the answer is more obvious.

If you have any thoughts on how to get students more comfortable with deeper levels of analysis and navigating through ambiguity, please post comments below or email me at mnarine@stu.edu.