IN SW Juris common mistakes
IN SW Juris · Understand the traps and how to avoid them.
On a Civil Procedure essay, reciting the entire Rule 12(b)(6) motion-to-dismiss checklist and Twombly/Iqbal 'plausibility' language without ever stating whether the court has subject-matter jurisdiction, personal jurisdiction, or venue over the defendant.
Candidates memorize the pleading standard as a stand-alone block and treat jurisdiction as a separate topic, so under time pressure they dump the rule they rehearsed most recently instead of running a fixed analytical sequence. The exam frequently pairs a pleading question with a jurisdiction defect precisely to test whether the candidate spots that dismissal for lack of jurisdiction is dispositive regardless of pleading sufficiency.
What to do instead
Adopt a mandatory four-step opening for every Civ Pro answer: (1) subject-matter jurisdiction (federal question or diversity plus amount in controversy, with complete-diversity and domicile analysis), (2) personal jurisdiction (contacts, relatedness, fair play, and whether a long-arm statute or Rule 4(k)(1)(A) supplies the reach), (3) venue under §1391, and (4) only then the procedural vehicle asked about. Write the four headings before you write any prose so the structure forces the analysis.
Identifying the correct constitutional standard on a Constitutional Law question but never applying it to the specific facts, ending the answer with a conclusion such as 'the statute is likely constitutional' without stating which level of scrutiny applies and why the classification triggers it.
Candidates learn tiers of scrutiny as vocabulary and can name strict, intermediate, and rational-basis review, but they have not practiced the transition from classification to tier to application. Because the exam gives a fact pattern rather than a classification label, the candidate must first characterize the classification (race, sex, fundamental right, alienage, commercial speech) before selecting the tier, and that step is skipped.
What to do instead
Use a three-sentence template for every constitutional challenge: 'The classification is X because the statute treats Y differently on the basis of Z. That classification triggers [tier] because [precedent category]. Under that tier the government must show [burden], and here [specific fact] does/does not satisfy it.' Practice classifying the trigger first, then name the tier, then apply. Never write a conclusion sentence that does not name the tier.
On a Contracts and Sales question involving goods, applying common-law contract rules (mirror image acceptance, material breach, substantial performance) instead of UCC Article 2 rules, and failing to state whether the contract is for goods or services before choosing the governing body of law.
Most candidates study common-law contracts first and more thoroughly, and the fact pattern often involves a mixed transaction. Under time pressure the default common-law framework reasserts itself, and the candidate never writes the characterization sentence that would force the switch to Article 2 (UCC 2-207 on additional terms, perfect tender, the firm offer rule, the Statute of Frauds merchant confirmation exception).
What to do instead
Make the first line of every contracts answer: 'This is a transaction in goods, so UCC Article 2 governs' or 'This is predominantly a services contract, so common law governs,' and justify with the predominant-purpose test for mixed deals. Then consciously check the Article 2 departures: 2-206 invitation to accept, 2-207 battle of the forms, 2-209 firm offers by merchants, 2-201 merchant confirmatory memo, and 2-601 perfect tender. If you cannot write the characterization sentence, you are not ready to analyze.
On a Criminal Procedure question, analyzing a search or seizure under the Fourth Amendment without ever identifying the government actor, the reasonable expectation of privacy, and the specific exception the prosecution would invoke, instead simply concluding 'the evidence is suppressed' or 'the evidence is admissible.'
Candidates conflate the exclusionary rule with the substantive Fourth Amendment inquiry and jump to the remedy. They also blur the state-action requirement, so they analyze private searches as if the Constitution applied, and they fail to name which exception (consent, search incident to arrest, automobile, plain view, exigency, inventory, special needs) the facts actually support.
What to do instead
Write a fixed sequence: (1) Was there government action? (2) Did the defendant have a subjective expectation of privacy that society recognizes as reasonable (or was there a physical intrusion onto a constitutionally protected area under the trespass theory)? (3) If yes, was there a warrant, and if not, which named exception applies and do its scope limits hold? (4) Only then address remedy, including attenuation, inevitable discovery, and independent source. Name the exception by its doctrinal label in the answer.
On an Evidence question, stating that a hearsay statement 'is admissible because it is reliable' or 'falls within an exception' without naming the specific hearsay exclusion or exception and identifying its elements against the facts.
Candidates treat hearsay as a single binary and never build the full chain: out-of-court statement, offered for its truth, then exclusion or exception. They also miss the non-hearsay uses (impeachment, effect on the listener, verbal acts, state of mind to show future conduct) and the constitutional overlay of the Confrontation Clause for testimonial statements in criminal cases.
What to do instead
Use a four-line scaffold for every hearsay issue: (1) 'The statement is [X's out-of-court assertion].' (2) 'It is offered for its truth because [reason].' (3) 'It is nonetheless admissible under [named exception, e.g., FRE 803(3) then-existing mental state] because [element match].' (4) If criminal and testimonial, run Crawford: was the declarant unavailable and did the defendant have a prior opportunity to cross-examine? Write the rule number and the element match every time.
On a Real Property question about a conveyance or mortgage, analyzing the deed and the recording act but never stating whether the jurisdiction is a notice, race-notice, or race jurisdiction, and never stating the common-law priority result before applying the statute.
Candidates memorize the three recording statutes but do not practice running the two-step analysis: first rank the competing interests under the common-law rule (first in time), then ask whether the recording act changes the result. Because the exam often does not state the jurisdiction's statute, the candidate must analyze in the alternative, and under time pressure they pick one and skip the other.
What to do instead
Write: 'Under the common law, A prevails as first in time. Under a notice statute, B prevails if B took without notice; under race-notice, B prevails only if B also recorded first; under race, B prevails if B recorded first.' Then apply the facts to each branch and identify the notice type (actual, inquiry, record). Do this even when the jurisdiction is unstated. Also always run the shelter rule and the wild deed problem.
On a Torts question, naming the correct cause of action but failing to analyze duty, breach, causation (actual and proximate), and damages as separate elements, and skipping comparative fault, assumption of risk, and the effect of joint and several liability on the damages calculation.
Candidates write a narrative of what happened rather than an element-by-element proof. Negligence feels intuitive, so they describe the accident and assert negligence, omitting the breach standard (reasonable person, professional standard, children, landowner categories) and the proximate cause foreseeability analysis. They also forget that the defendant's affirmative defenses reduce or bar recovery.
What to do instead
Use the headings Duty, Breach, Causation, Damages, Defenses, and write at least one sentence under each. Under Duty, name the specific duty source (general reasonable care, premises liability category, special relationship, statutory standard with class-of-persons and type-of-harm limits). Under Causation, separate actual cause (but-for or substantial factor) from proximate cause (foreseeability, intervening cause). Under Defenses, run comparative negligence and assumption of risk and show the arithmetic effect on recovery.
On a Business Associations question, identifying the entity type but failing to analyze the specific actor's authority (actual, apparent, inherent), the fiduciary duties owed by the particular role (partner, member, director, officer, controlling shareholder), and whether the business judgment rule or entire fairness applies.
Candidates learn entity formation and liability shields but not the agency overlay that determines whether the entity is bound. They also collapse all fiduciary duties into one undifferentiated 'duty of loyalty' and do not distinguish directors (business judgment rule) from controlling shareholders (entire fairness) from partners (duty of care and loyalty under the partnership statute).
What to do instead
For every BA question write two sentences before analysis: 'The actor is [role], and the entity is [type].' Then run the authority chain: actual authority (express or implied from the principal's manifestations), apparent authority (manifestation to the third party plus reasonable reliance), inherent authority, and ratification. Then name the duty and the standard of review by role. For LLCs, check whether the operating agreement displaces default fiduciary rules.
On a Trusts and Estates question, applying intestacy rules or a will's plain language without first checking the formalities of execution, the possibility of revocation by subsequent instrument or physical act, and the survivorship and lapse rules, so the answer never addresses whether the will is valid before distributing under it.
Candidates jump to distribution because that is the part they practiced. They skip the threshold validity questions (testamentary intent, capacity, attestation by two witnesses, self-proving affidavit), the revocation questions (later will, codicil, physical act with intent), and the abatement and ademption issues, so a will that fails formalities is still used to distribute the estate.
What to do instead
Open every Wills answer with a validity checklist: intent, capacity, formalities (signature at the end, two witnesses present at the same time, attestation clause), then revocation (subsequent will, physical act, dependent relative revocation), then construction (lapse, anti-lapse statute, class gifts, ademption, abatement). Only after validity is established should you distribute. For trusts, separately check creation (settlor capacity, intent, res, ascertainable beneficiaries, valid purpose) before analyzing trustee duties.
On a Secured Transactions question, attaching and perfecting a security interest but never analyzing priority among competing claimants (another secured party, a lien creditor, a buyer in ordinary course, or a trustee in bankruptcy) using the correct first-to-file-or-perfect rule and the special rules for purchase-money security interests.
Candidates learn attachment and perfection as separate steps and stop there. They do not practice the priority ladder, so they miss that a PMSI in goods has super-priority if perfected within the statutory window, that a buyer in ordinary course takes free of a security interest created by the seller, and that a lien creditor's status depends on when the interest was perfected.
What to do instead
Write three steps every time: (1) Attachment (value given, debtor has rights in collateral, security agreement authenticates description). (2) Perfection method (filing, possession, control, automatic, compliance with certificate-of-title rules). (3) Priority: state the general first-to-file-or-perfect rule, then check the exceptions in order: PMSI in goods, PMSI in inventory with notification, buyer in ordinary course, lien creditor, and bankruptcy trustee under §544. Show the timeline with dates for each claimant.