What Are the Six Questions Behind Almost Every Cold Call?
Professors vary in tone, not in structure. Nearly every cold call sequence walks the same path, and it usually starts at the top of this list and moves down as you answer correctly.
The sequence matters because each question presumes the last. A professor who asks "what's the holding?" before you've stated the posture is usually going to circle back, so volunteer the posture early.
- Facts: "Tell me about Palsgraf." "Who sued whom, and for what?"
- Procedural posture: "How did this case get to the New York Court of Appeals?" "Who won below?"
- Holding: "What did the court decide?" "What's the rule of this case?"
- Reasoning: "Why? What did Cardozo rely on?" "What's the dissent's best point?"
- Hypothetical: "Suppose the scales had fallen on the guard instead. Same result?"
- Policy and synthesis: "Is that a sensible rule?" "How does this square with the case we read Tuesday?"
How Should You Answer the Facts and Posture Questions?
For facts, give the legally operative facts in three to five sentences, not the whole narrative. In Lucy v. Zehmer, 196 Va. 493 (1954), the operative facts are that Zehmer wrote and signed a sale agreement for the Ferguson farm in a restaurant after drinking, and Lucy took it seriously and tendered performance. Whether the bar was called Ye Olde Virginnie Restaurant is not an operative fact. A useful test: if changing the fact would change the outcome, say it; if not, cut it.
For posture, name the court below, the disposition, and the procedural device. "The trial court granted the defendant's Rule 12(b)(6) motion, the Ninth Circuit affirmed, and the Supreme Court granted certiorari" is a complete answer. Posture drives the standard of review and the assumed facts, which is why professors care: on a 12(b)(6) motion the court accepts well-pleaded facts as true, under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), while on summary judgment under Rule 56 it asks whether there is a genuine dispute of material fact.
Expect the follow-up "so what does the court have to assume?" If you can say "because this is an appeal from summary judgment for the defendant, the court views the evidence in the light most favorable to the plaintiff," you have answered two questions at once.
What Do Professors Mean When They Ask for the Holding?
They want the legal proposition necessary to the result, stated at the level of generality the court used, applied to this case's facts. "Cardozo held for the railroad" is a result, not a holding. "A defendant owes a duty only to plaintiffs within the foreseeable zone of danger, and Mrs. Palsgraf was not within it, so the railroad owed her no duty" is a holding. Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928).
The classic trap follow-up is "is that the holding or dictum?" Anything the court says that is not necessary to resolve the dispute before it is dictum, however emphatic. In International Shoe Co. v. Washington, 326 U.S. 310 (1945), the "traditional notions of fair play and substantial justice" language is the holding; observations about hypothetical single-contact defendants are not.
The other standard follow-up is "state the rule broadly, now state it narrowly." Professors do this to teach you that the same case supports different rules depending on how you characterize it — exactly what you will do on an exam and in practice when you distinguish adverse authority.
How Do Hypotheticals Work, and How Do You Handle Them?
There are three standard moves. First, change one fact: "In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), suppose the dealer had advertised in Oklahoma newspapers." Second, push to the extreme to find the rule's breaking point: "So any product that foreseeably travels anywhere subjects the seller to jurisdiction there?" Third, flip your role: "You represent the Robinsons. Distinguish World-Wide Volkswagen."
The correct structure is always the same: state the rule, apply it to the new facts, then identify what makes the answer uncertain. "Under the purposeful availment test, advertising in the forum is affirmative conduct directed at Oklahoma, so I'd say jurisdiction is proper — though the Court in Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985), also required that the contacts relate to the claim." Naming the tension is the whole point; a hypothetical with an obvious answer would not be worth class time.
Never answer a hypothetical with "I don't know" if you know the rule. Apply the rule and commit to an answer. Being wrong for an articulable reason is graded as participation; refusing to reason is not.
Which Questions Do Students Botch Most Often?
Four recur. Confusing the plaintiff below with the appellant — in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), Tompkins won below and the railroad was the petitioner. Reciting the syllabus or a commercial brief's language, which professors recognize instantly and punish with harder follow-ups. Stating the outcome as the holding. And missing the standard of review, which is the single most common gap in Civil Procedure classes.
A fifth is failing to read the dissent and concurrences. If a case is assigned with a dissent, assume you will be asked to argue it. Justice Andrews's dissent in Palsgraf, that duty runs to the world at large and the real question is proximate cause, gets asked as often as the majority.
Also read the notes and problems after the case. Many casebooks bury the doctrinal payoff there, and professors treat the notes as assigned reading even when the syllabus lists only page numbers.
Do the Questions Change by Course and by Professor?
The six-question skeleton is constant; the emphasis shifts, and how aggressively you are pushed varies enormously by professor and somewhat by school. Some professors take volunteers and never cold call. Some use a panel or on-call list posted in advance. Some run pure Socratic sequences for fifteen minutes on one student. Ask a 2L who has had your professor, or check course evaluations — the format is knowable before day one.
By subject, the predictable emphases are: Civil Procedure, posture and the applicable rule number; Contracts, whether there was offer, acceptance, and consideration, and the damages measure (expectation in Hawkins v. McGee, 84 N.H. 114 (1929); foreseeability under Hadley v. Baxendale); Torts, duty, breach, causation, and which element the case actually turns on; Constitutional Law, the standard of review and the source of federal power, as in Wickard v. Filburn, 317 U.S. 111 (1942); Criminal Law, mens rea and actus reus parsed element by element; Property, the estate created and who holds the future interest.
Clinical and upper-level seminar courses substitute a different question set — "what would you advise the client?" and "what's your next filing?" — which rewards the same habit of committing to an answer.
What Do You Say When You Genuinely Don't Know?
Say something true and specific, then offer what you do have. "I don't have the posture in front of me, but the holding is that a duty runs only to foreseeable plaintiffs" keeps the exchange alive. Professors are far more tolerant of a gap than of bluffing, and bluffing is easy to detect because the follow-up question exposes it immediately.
If you are unprepared, most professors accept a brief note before class more gracefully than a fumbled call. Do not make it a habit; some schools' participation policies treat repeated passes as an absence or a grade reduction, and that policy is set by the individual professor's syllabus.
Build a one-page prep sheet for each assigned case: facts in four lines, posture in one, holding in one, rule in one, the reasoning's key move, one policy sentence, and one question you have. That sheet answers every question in this guide and takes about ten minutes per case once you are used to it.