Preparing Effectively for Written Examination - The "ERC" Process



Elementize, Recognize and Conceptualize

To achieve higher ranking in written exam, you must:

1) have memorized an adequate quantum of the "blackletter" law for each subject, and

2) have an understanding as to how these principles of law may arise within an alien fact pattern. It is not necessary to memorize each word on every page of your textbook or notes.

Unfortunately, one can have the capability of committing an entire telephone book to memory and still do poorly in an exam. Experience tells that most of the students know the law.

However, the ones who achieve superior ranks are those who grasp how legal problems (i.e., issues) are likely to emanate from the rules of law which they have memorized.

To study effectively a student must be able to "ERC" each legal doctrine. ERC is an acronym for Elementize, Recognize and Conceptualize. Elementizing means reducing the legal theories and doctrines down to a concise, straightforward statement of the elements which just be satisfied for them to apply.

Without a knowledge of the precise elements, it is not possible to anticipate each of the potential issues which that legal theory could yield.

If asked, "what is a firm offer?" it is not sufficient to say, "a firm offer is one that is irrevocable because it states that it will not be withdrawn." Such a layperson type of description would communicate to the evaluer that you have filed to carefully read the relevant Sections of the Contract* Act.

"Recognizing' means perceiving or anticipating which words or phrases within a legal principle are likely to be the source of issues; and how they are likely to arise within the context of a problem.

With respect to the firm offer doctrine, there are at least four potential issues. Was the party making the offer! a merchant (i.e., a person who deals in goods of the kind involved in the! transaction)? Did the offeror "sign" the writing in which the alleged firm offer is embodied? Was the alleged offer "firm" (i.e., did it, by its terms, give assurances that is would be held open)? What constitutes a reasonable period of time when the offeror has not stated a date upon which the offer will automatically cease to be outstanding?

"Conceptualizing" means imagining situations in which each of the elements of a rule of law would become the source of a factual issue.

Unless a student can illustrate to him/herself an application of each element of a rule of law, he/she does not truly understand that legal principle! The inability to conjure up hypothetical problems involving particular rules of law foretells a likelihood that issues involving that legal concept will be missed in the exam.

t is therefore crucial to (1) recognize that issues result from the interface of facts with the relative words and phrases within a rule of law, and (2) develop the ability to conceptualize situations involving each of the relative words and phrases contained in a legal principle.

An illustration of the "merchant" aspect of the firm offer doctrine might be the following. Let's assume that S ordinarily sells heavy equipment, but not generators.

However, S decides to expand its inventory and acquire a new X-12 model generator for Rs. One Lakh. S states in writing to B that he will sell the generator to the latter party for Rs. 1,30,000.00 and that the offer will be held open for one month. Two weeks later, however, S advises B in writing that the offer is being withdrawn. Two days later, B purports to accept S's offer. S might contend that no firm offer had been made because he was not a merchant with respect to X-12 model generators (i.e., he had never sold that type of item before). However, B could contend in rebuttal that S was a merchant with respect to goods of the type involved in this transaction, because a generator costing Rs. One Lakh could certainly be characterized as heavy equipment.

An example of whether the language utilized "................ give assurances that it will be held open" might be the following. S extends a written, signed, "non- revocable" offer to 'B'. 'S' might contend that the mere words "non-revocable" do not give "assurance that the offer will be held open." 'B', however, could argue in rebuttal that the words "non-revocable" do suggest that the offeror has deliberately relinquished his/her right to revoke (despite the lack of consideration).

Such mental gymnastics should be played with the elements of each legal concept.