What Actually Happens in Law School Part IV--QUICK STUDY EXAM PREP TECHNIQUES

a. Every Legal Subject Has a Structure that is Inherent to the Material

If you read legal briefs, or case law, you'll notice a lot of attention is paid to identifying the legal framework or formula for answering the legal question at hand. That is because one can only answer a legal question if one has a structured framework with which to do so. 

One thing I wish I understood when I started as a first year law student is that each legal subject has a structure that is somewhat inherent in it. Sometimes that can be seen through looking at the structure of the applicable state or federal code. 

For instance, to maintain a tort claim, one must demonstrate (1) the defendant owed a duty to the plaintiff; (2) that duty was breeched in some way; (3) some harm of value resulted; (4) there is a causal relationship between the breech and the resulting harm. If any of these elements are not met, plaintiff is not entitled to relief. Thus, defendants will try to attack the facts on each element and the plaintiff needs to show to the court that each element is met so the court does not throw the case out. Accordingly, law professor examine their students with this in mind. 

For instance, if I am in an auto accident with another (causing injury to both cars) and I want to hold the other responsible, it is not enough for me to want the other to pay for the injury, as the other would similarly want me to pay for his or her injury. Accordingly, the question is who had a duty and violated that duty, and did that violation cause the damage that resulted. It is this very type of analysis that each professor is seeking from their students, and this very analysis that is used in the practice of law. 

By way of another example, every contract dispute leads to the following questions, also going through the elements: (1) was an offer made; (2) did the other party accept the offer; (3) was the consideration adequate, namely did each party give something up in order to effect the contract; (4) legality of contract; (5) performance; (6) breech; (7) damages.  For instance, if I have a conflict between another person in relation to an agreement that we entered into, the court will first want to determine if indeed there is a legally enforceable contract. 

For instance, lets say Bob and John enter into a contract that says that in exchange for Bob giving John $100 a month, John will no longer go into Bob's house unannounced and take his money and things or punch Bob.  This contract would not be legally enforceable because John is already legally bound to not go into Bob's house without permission and take his money and punch him.  In other words, Bob is not getting anything in return for his $100 that his is not already entitled to under the law. That is consideration. Thus, a judge would invalidate the contract and not worry about whether it was breeched or if damages are owed.  (In this example, the judge might also refer John to the criminal authorities for extortion, thereby making this an issue in both contract law and criminal law.) 

b. Law School Exams Usually Are Designed to Test a Students Understanding of the Structure of the Material, Not Just a Right Answer

 

In each course during the first year, it is typical to receive an exam with one or more factual scenarios that require you to recommend a course of action to your boss. In criminal law, for instance, one question often requires you to play the role of assistant district attorney and recommend to your boss, the district attorney, each crime you would consider charging potential defendants identified in the factual scenario -- and possibly identify too what their defenses are likely to be. In tort law, you might be visited by a potential client who went through a series of horrific injuries, and the boss in your firm needs a recommendation as to determine who to sue for which torts. 

The above paragraph represents the first activity, namely issue spotting. Issue spotting is what it sounds like: spotting the legal issues that comes up in the scenario.  

Once you issue spot, you will want to identify the elements of the analysis so you can go through the right analysis to come up with a legal conclusion. 

b. Outlining is a Great Way to Keep Track of these Structures

The biggest mistake I made during my first year of law school was to not fully understanding why you as a student are asked to walk through the elements of the respective crimes or torts. In fact, every single legal problem should be addressed by first identifying what formula should be used to evaluate the problem. By identifying and spelling out the legal formula, and then applying it systematically, we lawyers are able to convince courts that our understanding of the legal implications of the facts are correct.

Although it would be more satisfying to test students by having them write commentaries on the philosophies discussed in the course, this methodology of testing actually reflects what legal practitioners do when thinking through legal problems. Had I appreciated this during school, I would have done a lot better. 

Because each subject matter has an inherent structure, writing an outline of the material helps one's mind think through how to walk through that structure.  As lawyers, when intaking a new issue, we often use outlines of subject areas as a checklist to think through what sort of problems are at issue in the matter being presented to us.  Quite candidly, during law school, I did not fully appreciate how valuable a good outline would be to assure I understood the material. 

c. Outlining Helps Avoid Memorizing

It is true that to do well on an exam, there may be a lot to remember.  However, by outlining, one finds themselves less dependent on their memory.  That isn't to say that the memory isn't critical. However, by having a good outline on paper and ultimately in one's mind, legal problems can feel manageable because rather than just having numerous legal ideas in one's head, one can reason through the problem at hand in a systematic way. 

 

d. Every Judge and Profession Has His or Her Unique Concerns - Listen Carefully

 

During your semester, you should listen carefully to how your professor thinks through the problems because there may be keys to exam patterns. However, more generally, as there is limited time in an exam, there is always somewhat of a balance between issue spotting and factual analysis. Before walking into the exam room, you should already have an impression as to how much analysis to apply to a given problem. This you may be able to figure out by listening carefully to what the professor wants. For instance, some professors may be more interested in making sure that mention every single legal problem raised by a fact scenario and another professor may be more interested to assure that each legal problem you identify is outlined with the analytical approach. Additionally, a third professor might care more that fewer legal issues are raised and that you show that the legal issues you raise are analyzed from multiple perspectives.   

You should also expect that you will miss important facts your first read through the problem and may find your opinion on certain issues changing as you continue through the problem. Thus, you should have a process for adding to your work.  For instance, if you are walking through a problem with 5 torts, you may want to leave space when you are done with tort 1 so that as you complete tort 5, you can add to your discussion of tort 1. 

Again, each professor is likely to have preferences about how to stylistically handle this. Frankly, this is quite analogous to practicing law, as each judge has a preference as to how to handle it if one submits a brief with errors or if one, after submitting a brief, finds new facts or new law that should impact what one wrote. Some judges will want the original brief rewritten and other judges will simply ask for short addendum. Accordingly, your law professor probably has a stylistic preference concerning how to approach this problem -- which is inevitable for any thinking law student or lawyer. 

Thus, as I said, listen carefully to your professor. Every judge has their passions and prejudices, such as whether they want long briefs, short briefs, briefs with lots of quotes from the testimony, briefs with minimal quotes and generic descriptions. Similarly, law professors have prejudices too about style. When they indicate their prejudices, take it seriously as it could mean a few points here and there.

If you are able to review and study old versions of the professor's exams, I strongly urge you to examine those. Although there is never a guarantee of consistency, you may be able to see some past patterns, and even how the professor grades. For instance, do they give a point for each element of crime or a point for the whole crime in general? Thus, you'd figure out if it is better to make sure to identify echo and every crime on the page or if it is better to go thoroughly through the ones you first identify.

Unless things have changed since I went to school, there are no added points for finishing early. I know many successful lawyers who are successful in brief writing because they take all the time available to us to make sure we have addressed all the points that should be addressed. You do very well at this field by demonstrating to the judge or professor that you are the master of the facts and law. If you show you are the master, you often win. Thus, if the professor sees you've thought through the problem, you get the points. 

I Hope this has been helpful and not too redundant. No one really said these things to me before my first exam, and I wish they had.

What Actually Happens in Law School Part II

In Part I, I discussed the subjects taught in law school. Now I want to discuss how we learn those subjects. 

In so stating, I should clarify that any interest I have in critically analyzing whether law school today is properly preparing lawyers for the challenges and opportunities we confront is best placed in a separate article. I will, though, hint at the notion that there are serious discussions among certain members of the legal community about whether law school today properly prepares lawyers for the full range of activities today's society needs from them. 

Nevertheless, law school is primarily interested presently at training law students to interpret legal texts such as statutes, constitutions, and cases, most law school classes focus on just that. This usually manifests itself in reading decisions by appellate courts (US Supreme Courts and federal and state appellate courts)  and interpreting how and why the court arose at the result it did. As courts are expected to articulate their analysis, at least to a certain extent, law students are able to understand how legal analysis works by reviewing past decisions. 

To this end, law exams generally require law students to take a factual scenario, identify each legal issue raised in the factual scenario, and walk through the steps of its resolution. On occasion, exam questions require students to identify the best arguments for both sides identified in the scenario.

 For instance, in my criminal law class, I recall being asked to take a factual scenario, identify each crime would charge the alleged criminal in the scenario, and then take the role as the defense counsel. By way of another example, in a class on contract law, I was given a scenario where two people had a certain dialogue, one party to the discussion had the impression the two had entered a contract and thought the other party therefore failed to perform, whereas the other party did not think they entered into a contract. 

Law school is specifically directed towards this type of factual analysis. As a result, law professors often direct their classes with that mindset, hence a law school classroom experience known as the “Socratic method,” namely a method whereby the professor asks questions of students with the goal of getting them to explain how and why the court came up with the result it did. 

Although there is very little way for a starting student to realize this, the pattern of law professor questions is often organized in the same pattern as the pattern of how legal decisions are written. The facts are discussed first, with an eye towards explicitly spelling out those facts which are essential to making the relevant legal determinations. Second, one identifies the relevant law applicable to the factual scenario, spelling out the method courts use to resolve the legal questions at hand in the case.  Third, one analyzes how the legal principles and rules apply to the facts at hand.

 For instance, in my second example above, a court would write out the case law applicable to determining whether a contract exists when two parties differ as to whether they entered into a contract. Given that the court is probably being asked to also identify what damages are available should a breech occur, the court would likely spell out the law on that subject as well. Once identifying the law, and the facts, the court can begin the process of analyzing the facts against the law. This involves both applying the facts to the law, and determining whether one side’s argument is more consistent with the legal framework at hand.

What Actually Happens In Law School Part I

Recently counseling a number of potential law students, it became clear to me that that there are misconceptions in general society of what occurs during law school, and for what the curriculum prepares its students.

 In hopes to be helpful, I am going to start by describing the generic law school curriculum, and then respond to some of the misconceptions. Be advised, however, that this article is limited by my own exposure, both to my own law school experience and to those of friends and collogues who have shared their own experiences with me. 

I can't speak for law schools in other countries, and can't say for sure that there are not exceptions to this. That said, because of the nature of legal study, its likely that even where institutions seek to be "cutting edge," the information I provide here is likely to be consistent across years and communities, at least within the United States. 

Law school curriculum, despite its vast difficulties, may (in a sense) be seen as basic, driven by three interests: core subject matters, practical necessity for future lawyers, and bar passage. 

First, there are core subject matters on which almost all other legal matters are based. These are: contracts, torts, property, civil procedure, criminal law, constitutional law. Consequently, these courses are often taken in the first year of school. The notion is that it would be impossible to truly move forward in legal education or in life as a lawyer without having a general grasp of the major concepts addressed in these classes. 

Second, there are several courses which are so important to the legal profession that most law schools require them in one way shape or form. These include professional responsibility and legal writing. 

Third, there are several courses which are so important to bar passage that many law schools require a certain number of them. These are: evidence, business associations, family law, commercial law, criminal procedure. However, other than specific laws and codes enacted by state legislatures and Congress, most of these, and other, legal subject matters rely on principles established by the core subject areas I above mention. 

 In reviewing this list, you will notice something very fascinating. I mentioned only subject matter courses, not courses that teach lawyering skills like trial advocacy and negotiations. These along with exposure to actual practice through clinics and internships are becoming more and more a part of the law school curriculum for a number of students, especially in their last year of study. 

Unlike other professional schools that are known for their practicums, such as medical school residencies, for the legal profession, the title "lawyer" is bestowed upon one who can properly interpret (explain the meaning of) legal rules and apply them to a given set of facts (e.g. taking a problem a client provides and properly understanding what legal issues are relevant to addressing the client's concerns). 

You'll also notice that I did not discuss the political aspect of the legal system. After all, the text of the law is often a result of which political forces are successful at any given point in time. As will be explained in future articles, political views can also affect how one understands the text of specific laws--and certainly how the constitution should be interpreted. However, contrary to the wishes of many potential community activists and policy wonks, the law school curriculum is not established for the develop an appreciation of all things legal, or to educate people in the art of determining which laws are just, moral, or appropriate for a given society or time period. Although most thinking law students will develop opinions about the role of law in the economy and in society as a whole, and may find themselves becoming fascinated by the democratic theory and other social theories that underlie what legal systems are in place in our society, law school concentrates on the knowledge and skills needed for individuals to function as lawyers in this present age. 

In future articles, I hope to reflect on the strengths and weaknesses of this, and what lawyers I encounter think about this. That is beyond the scope of "what actually happens in law school." See Part II for a discussion of law school exams and thoughts about how to study the law while in law school.

Beyond Voting: Engagement

(originally posted on Sunday, November 12, 2006 ) According to Dianne Bystrom, Director of the Carrie Chapman Catt Center for Women and Politics and Iowa State University in an article dated November 5, 2006, the youth vote increased by 11 points between year 2000 and 2004. In that article, she says that 40% of young people cite the war in Iraq, terrorism, and national security, as the top issues, leading them to vote—and vote Democratic. If Sam Graham-Felsen, writer on the blog of http://www.thenation.com/, on November 10, 2006, is correct, Bystrom correctly anticipated a “youth voting wave.” In 2005, youth vote surged by 15% in Viginia and 19% in New Jersey. And in 2006, there were 2 million more young voters than in 2002. Graham-Felsen notes that youth voting was greater in areas targeted by “Get Out the Vote” efforts. However, for there to be engagement “en masse, they need a real spark.” For Graham-Felsen, somewhat surprised that several particularly influential issues like the Iraq War, exorbitant college costs, and global warning did not sufficiently get the entire youth vote to the polls, it is not certain what that spark will be. He then wonders whether a reinstatement of the draft would in fact be such a spark.To me, Graham-Felsen’s comments imply that young people will only vote en masse when there is the right “issue,” or rather, if I might use a different word: gimmick. Following Graham-Felsen’s logic to its natural conclusion, voting is nothing more than a product being sold to the young, something WE want the young people to BUY INTO because of how it will benefit us, just as other gimmicks are designed to benefit the trickster rather than the tricked. Youth voting is not an end in itself. Additionally, voting is not synonymous with engagement in the political process. A cursory review of the democratic tradition in this country will show that participation in the democratic process has always involved more than mere voting. It has meant participation in civics and activist groups, volunteerism, and other forms of communal involvement. In 1999, the National Association of Secretaries of State conducted a study where it found that Americans between ages 15 and 24 wer found to have “only a vague understanding of what it means to be a citizen in a democratic society.” Suzanne Soule, “Will they Engage? Political Knowledge, Participation and Attitudes of Generation X and Y.” Veranstaltungsdokumentation (Oktober 2001) at http:// www.bpd.de/veranstaltungen/1SUI3U,0,0,Will_They_Engage_Political_Knowledge_Participation_and_Attitudes_of_Generation_X_and_Y.htm. A 1998 National Assessment of Educational Progress found that 75% of high school seniors were not proficient in civics. Another study also found that only 26% of incoming college freshmen considered it very important or essential to keep up to date with political affairs. In 1970, the rate was over 50% and in 1990, it was 42%. Id citing “The American Freshman: Thirty Years Trends, 1997.”Statistics show that those who vote do so because they believe their vote makes a difference, or because it is an important way for one’s views to be heard. Id. If this is a correct assessment, it means that increased voting among young people is a sign that they are interested in civic involvement and social responsibility. It also means that they are engaged in the American political and social system as a whole, not merely on Election Day. In other words, increased involvement among young people voting is not due solely to "get out the vote" drives, but due to segmants of the youth population feeling the importance of voicing their opinion or influencing the election outcomes. The continued discrepency between the increased voter rolls and the ultimately goal of a whole population of engaged voters is not due merely to "the right issue" and should not be simplified in that way.Instead, we should dedicate ourselves to increasing voter turnout among the youth by concentrating on increasing opportunities for civic engagement and civic achievement. If the youth are more likely to involve themselves when they see results or a difference from their involvement, the notion of concentrating on voting rather than civic participation as a whole seems particularly defeatist, and perhaps not so fair to the youth themselves.

Real Civics Education Must be an Ongoing Project in Our Democracy

Sunday, August 06, 2006 In June 2002, the Office of Democracy and Governance of the United States Agency for International Development ("USAID") published a study of lessons it learned in conducting civics education in the Dominican Republic, Poland, and South Africa. Although these countries have been going through serious transition that the United States have not, I think we can learn a great deal about democracy in the findings of this study. For one, we learn that civics education strengthens community and political participation. The study found that “civic education does have a significant, positive impact on certain democratic behaviors and attitudes.” Research cited by Margaret Stimmann Branson, in her article “Civic Education: An Antidote for Political Apathy” finds that civics education contributes significantly to increased rates of political participating among participants of good civics educational programs. This study focused its attention primarily on what education techniques were most effective to engage a citizenry. It found that single session educational programming was ineffective compared with programming where participants engage over a period of time. Underlying this finding was the principle that a participant who is simply exposed to democratic principles in a single day is less likely to adopt or own those principles than a participant who is repeatedly exposed to them and thinks about them over the course of a period of time. The study also found that participatory education was far more effective than lectures. This underlying principle of participation is so important that it also found that educational programming that provided participants with outlets for ongoing civic engagement were more effective than those that simply inculcated its participants with an interest in civic involvement but failed to inform as to available outlets for such involvement. These results should come to no surprise to those familiar with the “Federalist Papers” and DeToquville’s “Democracy In America.” A democratic republic functions best when its citizens are well educated about the system of government under which they live, and are familiar with ways to influence it, and be involved in it. A civics education program that does not take each aspect of this serious is not worth its salt. Civics in this country must be oriented towards civic engagement.Obtaining a legal education means gaining real exposure to the fundamental subjects to go into a real civics education. Additionally, lawyers are more empowered than others to act on their education. Consequently, I believe lawyers should be more involved than others in teaching civics and providing exposure opportunities for citizens to learn about civics, the legal structure under which they live, and other things that might be considered required education for a citizen.