I suppose I just blew my own ethical standard regarding law school advice with the caption to this blog post. I have previously posted that law students should be wary with regard to law school exam "get rich quick" schemes. You know what I'm talking about. These schemes purport to give you a leg up, a shortcut to success. They also play upon law student (especially 1L) paranoia- someone, somehow has been revealed the secret to law school success. After all, you know that you are smarter than Mr. or Ms. "Book" award. The fact that they aced the final just has to be due to some inside info; they somehow broke the law school code and aren't sharing it with anyone.
On the other hand, the term "secret" means something not generally available to the public. So, my headline may not be all that ethically compromised, after all. After all, I've also posted that some law students simply "get it". They intuitively understand what is expected of them at exam time. And they spend their semester focusing on "money" activities that will ultimately yield top grades. They avoid a lot of the lemming mindset that many law students have: "I have to do _____. Everyone else is doing it." So, if you define "secret" as something that might be intuitive but not generally understood, then I'm on safe ground. As they say, "common sense ain't so common."
In any event, the following are some ways to think about preparing for and writing your law school exams:
1. Write something that you would like to read. Imagine yourself as the professor, plowing through hundreds of exams. What can you do to (a) make your exam interesting; and (b) stand out from the crowd. A caveat: don't get cute and don't try to be funny. Stick to the task at hand and write in a professional, informative way.
2. Begin outlining as early in the semester as possible. This one should probably be first. As I describe in my book, Law School Labyrinth
, the process of outlining is more important than the output. The purpose of outlining is to force you to organize your thoughts. Organizing your thoughts is a good way to master the material and enhance your ability to work with it.
3. Begin writing practice exams as early in the semester as possible. This one should probably be second. Okay, let's forget sequence. Just know that it's important. The benefit of practicing exams is twofold: first, you will get a feel for what exam questions look like and how to answer them. Second, if you refer to old, actual exams (on file in your library), you will get a good idea of testable material. There are only so many areas of a subject that can be tested. Reading practice exams will help you understand which ones are likely to be tested.
4. Write like a lawyer. Newflash: you are training to be a lawyer. Therefore, it is important that you learn to write like one. There are all kinds of materials out there that will helo you learn to do this. But the bottom line is that you need to write logically and in an organized fashion. But more importantly, you must show your work. You must identify all assumptions. You must analyze all scenarios presented by the facts and the law. This is where the classic "on the one hand/ on the other hand" analytical approach originates. You argue one side if the law (which will probably be at least a minority/ majority rule) and then you argue the other side. And you do the same thing with the factual issues (e.g. whether a car is a "dwelling place"). And this brings us full circle. In number one above, I suggest that you write what you would like to read. Imagine that you are an associate, assigned a project by a senior partner. Write her a legal memorandum. At least that's the goal of your exam answer. I understand you will be pressed for time. But avoid the tendency to metaphoically vomit all over the grader. Think first, develop an outline, and then write your exam.
Feel free to reach me through the contact form on this website, if I can help you as you approach exams.
Best wishes in your legal careerr.
I have both the privilege and stress of working as an in-house lawyer. It's a privilege because in-house jobs are highly coveted and I'm thankful to have it. At the same time, my job is a rarity- I am truly a general practitioner in an age of specialization. And that's where the stress comes from. Most lawyers today are specialists and focus on specialties- bankruptcy, family law, criminal defense, securities and the like. In my world, I render legal advice to my client (the corporation) about any of a number of legal issues on a given day. It might be advice on a proposed contract, or it might be advice regarding litigation avoidance. Or it might be advice related to dealing with a state or federal agency. Certainly, in many cases, I rely at least in part on outside counsel to assist in matters. But in many cases, I am entering unfamiliar and uncharted waters and I have to get myself up to speed quickly.
The inherent breadth of legal issues in my realm means that I have to have a broad background in a a variety of legal issues. But it also reminds me, on a daily basis, exactly what it means to "think like a lawyer". And as a law student, you should seek to always improve your understanding of what it means. In particular, "thinking like a lawyer" means:
1. The ability to spot issues. Anyone who has been through law school knows that the best way to spot legal issues is to first understand the law. In general practice, knowing all of the substantive law is simply not a luxury that many can afford- either in terms of time, or sheer intellectual capacity. However, it is possible to know enough law, and the thinking behind that law, to discern, at least directionally, where the law will land in a given situation. And if you understand this, you are much more likely to be able to spot a potential legal issue. To put it another way, although learning the rules and sub-rules is important, it is equally important to understand the rationale behind those rules. Understanding the rationale will enable you to anticipate what a rule is, in an area of the law with which you are unfamiliar. I call this understanding the "strategic" side of the law, as opposed to the "tactical" side of the law. Anyone can memorize rules. It takes a special person to be able to understand the "why" behind the rule.
2. Anticipate the various outcomes. When I was in college, I loved to play chess. The thing I loved the most about it was that in order to survive (and perhaps even win), you had to constantly anticipate what your opponent would do in his next move, and the move after that, and perhaps even the move after that. You had to keep it all straight in your mind and then make a decision as to your most beneficial move. The practice of law is like that, in a way. And "thinking like a lawyer" means that you are constantly anticipating what might happen next. And a lawyer who understands the "strategic" side of the law, can anticipate what might happen, even though they might not have precise knowledge of a particular area of the law. The ability to anticipate, and advise your client accordingly, is a crucial skill for lawyers.
3. Attention to detail. There is an old saying that the "devil is in the details". It means that although you might understand the big picture of a situation, executing effectively requires a knowledge of the details. By the way, this is the opposite of understanding the "strategic" side of the law. In many cases, the details themselves dictate the outcomes. The trick in law practice is knowing when the details are important. So, in a sense, you must be both a strategic thinker, but also have the ability to get down and dirty with the details. In other words, in some cases, there are things in law practice that are not delegable. Instead, you have to have a detailed command of the facts and the law, in order to render effective legal advice. And law practice is one of the few professions that requires strategic and tactical skills.
As you progress in your legal education, never forget why you are in law school. You are developing your skills and your craft, so that you may become the best lawyer you can be. Keeping the foregoing in the back of your mind as you study will help you to do just that.
Best wishes in your legal career.
As I've written before, the study and practice of law is akin to a trade of sorts. You learn very technical methods of analysis and reasoning through case law. You learn to read detailed statutes and regulations. And you learn procedural rules that are very specific and technical. Certainly, a key objective of your legal education is to learn to "think like a lawyer." But thinking skills without technical knowledge won't get you very far in the practice of law. This is why lawyers specialize. Our legal system has become so vast and complicated that no lawyer can master all of it.
A trap for new lawyers (and law students) is that they get so caught up in all of the legal "trees" (the rules, the elements of rules, etc.) that they quickly forget what the legal "forest" looks like. In other words, it's easy to overlook the big picture of a given legal situation. This phenonmenon also makes for perfect law school exam fodder. Let me explain.
In my first year Contracts class, we spent a great deal of time on cases which decided things like whether an offer had been accepted, whether an offer was even capable of being accepted, and whether or not there had been a "meeting of the minds" between the parties to a putative contract. At the very end of the semester, the professor briefly discussed the Uniform Commercial Code (UCC). For those of you who have studied it, the UCC is a model statute, which was intended to clarify the various states' common law regarding the law of contracts. Most, but not all states have adopted the UCC. You also probably understand that a basic provision of the UCC is that a contract for the sale of goods greater in value than $500 must be in writing to be enforceable.(Article 2).
So, we spent an entire semester on the elements of a contract- offer, acceptance, consideraton and damages. We spent about 15 minutes on the UCC. In fact, if you weren't paying attention (or were worried about whether the professor was going to call on you), you probably would have missed the UCC discussion.
It's now exam time. The first question on the test provided a convoluted, complicated fact pattern which suggest all kinds of classic contracts nuances. It was an oral agreement. The seller had an old car. The buyer was seventeen years old. When the buyer came to pick up the car, it had a huge dent in it, which was different from the photo in the ad. The buyer was intoxicated when the deal was consummated. Etc., etc. etc. The examiner offered the simple instruction, "Discuss."
You, having read this blog post, can clearly identify the trap. The trap is that none of these facts matter, if the jurisdiction in which the deal was consummated had adopted the UCC. So, the first words on your exam answer should ask whether the UCC applies. If you immediately jumped into a discussion on contract defenses (minority, incapacity), you would lose valuable points. The UCC, in this question, is the big picture, aka, the "forest". If you were so caught up in the factual "trees' that you missed the legal "forest" you probably earned a "B" on this answer.
Similarly, in law practice, it's easy to miss the forest. This is why, at least in the beginning, when faced with a legal problem, you must carefully understand the facts. You spend a great deal of time interviewing witnesses and sifting through documents. You do all of this before you jump to any conclusions about anything. You make no assumptions. You simply dig, dig and dig some more. Only then, after your exhaustive investigation, do you begin to ask yourself, "What is the issue?" You begin to research the law. And finally, you begin to analyze. Otherwise, you risk giving your client "B" quality advice.
So, my message is simple. Make sure you are always stepping back and seeing the forest. Make sure that you understand the details, but also make sure that you understand the big picture. Develp these skills and you wil be well on your way to becoming a great lawyer.
I wish you much success in your legal studies and career.
In an earlier blog post, I asked a similar question regarding the LSAT. I answered that question with "relax and forget it." My advice regarding your first law school exams is substantially different. I'll discuss it in greater detail later, but now is the time to begin your post-mortem of exams. You've basically got one more semester to establish your GPA and postion yourself for a job and Law Review. So, you need to begin to try and understand what happened with your exams and how you can improve upon them.
Chances are pretty good that you were surprised by your exams. I would suspect this surprise was manifested in at least some of the following ways:
1. The three-hour "blink of an eye": I'm betting that your feeling like this was the shortest three-hour time span of your life. You were probably shocked at how fast it went by and how much more time you would liked to have had, in order to create a winning exam answer.
2. Fact pattern chaos. You were probably surprised at how little guidance the exam writer provided. You were probably expecting something closer to undergraduate exams, which lay out what the grader expects to see in your answer. Instead, you may have gotten a jumbled fact pattern that required intense and swift sifting, simply to get a basic idea of what was going on.
3. Open book bait and switch. If the exam was "open book" you were probably fooled into thinking you would actually have any time to look things up.
4. Substantive bait and switch. You may have been tested on something that was never discussed in class. You're thinking that this was clearly unfair.
5. Organization chaos. You've always thought of yourself as analytical, logical and organized. And yet in all of the chaos of exams, you found yourself rambling where you intended to be succinct and jumping from point to point, in the vain hope that it would all somehow make sense.
Now for the advice. As soon as practicable after grades come out, schedule an appoint with your professor to discuss your exam. Ask for (and don't take an implied "no" for an answer) comprehensive feedback on you exam. Seek to understand how you did, in terms of writing style, organization, persuasiveness, analysis and demonstration of a general ability to write in a lawyerly fashion. Attempt to break down your exam into these components and evaluate where you need to improve. Be courteous but relentless until your professor has provided you with candid feedback.
Next, I'm guessing that some of the chaos you experienced may have been due to the fact that you didn't know the "black letter" law as well as you think you did. As a result, it was more difficult for you to spot legal issues than you realize. The way to prove my theory is to ask your professor specifically for issues that you missed. If you missed them, it was probably because you didn't have sufficient command of the various subsets of the law you learned, especially the nuanced areas like minority rules.
If after you have done a comprehensive and objective exam post-mortem, you find that my suspicions are correct, then take heart. All of these can be overcome. The Pyramid Outline method is a good start. Next semester, start outlining and boiling down the material as soon into the semester as possible. Then, start working with it as eary as you can by writing practice exams. The sooner you do both of these, the more quickly you will begin to master the material. It will also enable you to attack exam fact patterns as a real lawyer would- sifting through the nuances of the facts, identifying the legal issues they present, discussing both sides of the law and the issues.
The bottom line is that with the LSAT, you take it once and you're done. With law school exams, you're just getting started and will, in effect, be taking exams for the remainder of your legal career. Perfect your craft and become the best lawyer that you can be. Your future clients deserve it.
And while you're at it, pick up a copy of my book, Law School Labyrinth- A Guide to Making the Most of Your Legal Education (
If you're just starting law school, you may feel a bit confused right now. After all, no one really tells you what to do. Unlike your undergraduate studies, there isn't a lot of direction or guidance. This is true especially with regard to what you are supposed to be doing and why you are supposed to be doing it.
The good news is that most everyone in your class is probably in the same boat. The bad news, however, is that law school is graded on a curve. And someone has to get the "A"s. So, as we speak, there is a process occurring that effects everyone, but not everyone may be aware of it. That process is the light bulb going off for some students, who figure out what they need to do to get the "A"s.
If you've read my book, "Law School Labyrinth", you probably already have a pretty good idea of what you need to do. My book provides a study methodology- I call it the Pyramid Outline method.
However you begin to figure things out, I suggest that you keep the following in the back of your mind:
1. You should be learning to "think like a lawyer." This is the real reason you read cases. By studying the analytical process described in the opinions, you begin to learn how lawyers think and reason. You learn how to spot legal issues.
2. You should be learning the black letter law. Cases can teach you this, but it's a very inefficient way to learn the law. A good commercial outline will teach you the law. It's how you will learn it for your bar exam. You need to know the black letter law, because it makes issue spotting much easier. You also need to know it in order to analyze and reason like a lawyer would.
3. You should be learning how to show that you can think like a lawyer. This means practicing exam writing. I suggest you dedicate at least a portion of your study time to doing this. If you know how to think like a lawyer, and know the black letter law, but can't showcase it, you won't do well on exams.
The thing about law school is that it all comes at you in a mad rush. You spend a bunch of time memorizing case details because you think it's what the professor wants. And you think it will make things go easier in a Socratic grilling. But the truth is you should be spending more time thinking about the analytical process, learning the law and learning to write exams like a lawyer.
And that's the bottom line to law school.
Best wishes in your legal studies.
If you ever want to personally experience "reader schizophrenia", then take a cruise through the "law school preparation" book section of Amazon.com. In particular, find a law school prep book (it doesn't really matter which one) and read the reviews.
You will find that for most books (especially those books with legitimate reviews), some people absolutely worship the book; however, some folks despised it. Most books will have the complete range of ratings, from five stars all the way down to one star (I offer no commentary on books with nothing but five star ratings, other than to say that I recently read a review of the seminal book on law school, "The Bramble Bush" by Karl Lewellyn that totally trashed this indisputable masterpiece. It is therefore hard to imagine more contemporary works that universally delight all readers).
Pay special attention to reviews written by people with prefatory comments like "I'm now in my second semester of law school" or something similar. Those reviews are the ones where I believe you will likely find meaningful comments. Law student reviews are also where you are most likely to find negative criticism about a particular book.
Some of the best-selling law school books are also those with some of the most vitrolic reviews. I believe this is because many law students mistakenly believe throughout their law school careers that there is a "holy grail" book out there somewhere. If they can just find it, they will make endless A's and A+'s, effortlessly.
These misguided students engage in this fantasy thinking because after a semester or so of law school they are faced with the harsh reality of their own intellectual limitations. These students are used to landing at the top of their classes, based upon their ability to memorize and regurgitate information; the classic undergraduate study model. When they make their first "Cs" in law school, especially if they have read a book that purports to give then an "insider view" of law school, they naturally blame the book for giving them bad information.
As I explain in "Law School Labyrinth" (Kaplan Publishing, 2009), there are no holy grails in law school. In law school, you learn to "think like a lawyer" largely by engaging in self-teaching. If you follow your undergraduate study model, you will likely survive law school, but chances are, you will not graduate anywhere near where you think you should be, in terms of class rank. Instead, the purpose of the Labyrinth is to teach you how to figure things out for yourself. If you cannot step back and see the forest for the trees in law school, and understand the process, you will likely earn mediocre grades.
As I stress in "Law School Labyrinth", law school is all about the process. Law school outlines teach you how to organize and digest information; the content is certainly important, but the outlining process is infinitely more important than the output. Similarly, law school exams are about showcasing your ability to think like a lawyer, amid a sea of facts, red herrings and extraneous information. No book or commercial outline can teach you this- you must learn it on your own.
So, if you are looking for a book that will tell you which are the best commercial outlines, you will be disappointed. Every law student is different and responds differently to the various materials. There is no "holy grail" outline for a particular subject. If you think you have one and make a "C" on your exam, it's not the outline's fault. Your "C" means that either you haven't mastered the subject or you simply cannot effectively communicate in writing your ability to think like a lawyer.
Obviously I have a strong bias for "Law School Labyrinth." I wrote the book to level the playing field a bit and share insights I have gained after entering law school as a non-traditional student, passing two bar exams and working for a number of years in law firms and as in-house counsel. My aim of the book is to help you develop your own strategy of attack for law school. You need to have a strategy well before you ever set foot in law school. Because first-year grades are so important, you cannot waste a minute getting your bearings.
But do not be fooled into thinking that my book (or any book) will give you a secret shortcut to success. Learning legal analysis is a step-by-step proposition, sort of like learning to ride a bicycle. You will struggle, wobble, and probably fall of the bike a few times. But if you understand the basic goal and what it takes to get there, eventually you will succeed.
Best wishes in your legal career.
In my book, “Law School Labyrinth- A Guide to Making the Most of Your Legal Education” (Kaplan Publishing, I try to help law students navigate the maze that is law school. Certainly a big part of that maze is making grades good enough to attract the interest of legal employers. And part of that depends upon the study approach students adopt early in their legal studies.
I recommend the Pyramid Outline Method, which is a study methodology intended to help students digest and comprehend the vast amounts of reading required in law school. This methodology helps to focus student efforts where they count- at exam time.But as I state in the book, there is more to law school than mere grades. Law school is the place where you begin to think and act like a lawyer. And part of being a good lawyer is to engage in the work in a way that is constructive and positive.
So the purpose of this blog post is to give you some things to think about as you navigate law school and develop your craft.So, and without further ado, the following lessons are, on the one hand, so simple a four-year old can understand them, but on the other hand, require constant and consistent effort to actually make them a part of your life:
1. Be Honest in Everything You Do. Honesty is not only a minimum requirement for lawyers; it ain’t a bad idea for civilians either. We owe it to each other to be candid and honest. You don’t have to be rude; simply be truthful. As you will learn in your Legal Ethics class, honesty is the hallmark of lawyers. Further, in certain circumstances, dishonesty is a violation of your ethical obligations. So start today, practicing honesty with others. Think before you speak, in order to ensure that what you say is truly honest and straightforward. Avoid all of the posturing and positioning that law students, year after year, subject each other to. Stick to the facts.
2. Play Nice. Is I describe in “Law School Labyrinth,” law school is notoriously competitive, even at the schools that are supposed to be above all that. The simple fact is that there are a limited number of legal jobs out there at any given time. Some people win and some people lose. As a result, everyone (or most everyone) is competing for those precious jobs. Further, in law practice, there are by necessity winners and losers. Certainly modern jurisprudence encourages mediation, arbitration and other alternatives to the litigation process. But, generally speaking a lawyer’s duty is to zealously advocate for their clients. But the mere fact of competition does not mean that you have to be hateful about it. It does not have to be personal. Instead, a professional rises above the fray and maintains an even keel, even in the midst of the battle. Always treat your adversary with the respect that we owe to each other.
3. Avoid Shortcuts. It can be very tempting to skim the surface, in terms of your research, once you find support for your position. This is a big mistake. Keep digging and analyzing until you have clearly identified all meaningful alternatives. There is always “the rest of the story”; make sure that you identify and understand it. Again, you must be zealous in your studies because you are required to be zealous for your clients.
4. Treat Everyone With Respect. I have worked in law firms and I have worked in-house. As an in-house lawyer, I am today a client to several law firms. Suffice it to say most people are nice to clients (otherwise, they wouldn’t remain clients); however, people aren’t always nice to junior lawyers (because they don’t have to be). But you just never know who is going to end up being your client. And you never know what the future holds. So it just seems like good insurance to treat everyone you encounter with respect. Personally, I think it’s a good credo to live by. But if it’s not yours, you should seriously consider it- more bees with honey, and all of that. And, it’s the right thing to do. There are plenty of people out there with bad opinions of lawyers. Why not make it your personal mission to improve the image of the profession.
5. Let Go of It. Life is hard. Law school is hard. People can be mean. Bad things happen to good people. You make a “B”, when you deserved an “A.” But learn to let go of it. Harboring anger or a grudge is only going to hurt you. Living in fear will kill you. Learn to let it go. If you believe in God (and by the way, according to a recent poll, the vast majority of Americans do), then just give it all to Him. Don’t hang onto it. Just let it go.
6. Develop Your Character. In law school, with the relentless approach of exams and the excessive emphasis everyone places on grades, we can overlook the importance of character. But in the practice of law, much of what you do will be “when no one is looking.” If you do not take care to develop your character now, it may be difficult to deal with difficult choices in the future. Fine tune your moral compass. Endeavor to do the right thing in everything that you do. And when your character is tested, you will pass the test.I wish you much success in your legal career. If you have read “Law School Labyrinth”, you know that I absolutely love the practice of law. I believe it can be one of the most rewarding careers out there. But it’s not easy. And if you take time now to focus on your own values, when you hit the battlefield, you will be much more likely to survive, and even thrive.
I'm hoping that if you are reading this, it's not because you haven't diligently prepared for class (and attended class), invested substantial time in preparing class outlines, practiced exam writing, and engaged in the kind of serious work necessary to excel on law school exams, as I discuss in "Law School Labyrinth- A Guide to Making the Most of Your Legal Education ( Kaplan Publishing, 2009). This blog is not intended to be a "How to Ace Your Exams Without Going to Class or Reading a Case" guide, unlike some of the get-rich-quick literature out there.
Instead, I'm hoping you're reading this because you have done all of the above but like most good law students are still feeling pretty intimidated by law school exams. You have worked hard all semester but have a sneaking suspicion that you are going to need that extra "edge" in order to earn that "A" of "A+" position on the grading curve.
There are law school "success" books that advocate throwing away your casebook, avoid attending class and limiting your reading to commercial outlines. There are also books and courses that claim to contain secret formulae that will enable you to raise above the masses and earn those cherished "As". However, as students who have done well in law school know and despite the prevalence of law school study aids purporting to give you an edge, the truth is that there is no way around the hard work and preparation required, in order to master the material and demonstrate mastery, in order to optimize your chances of doing well.
Further, if you have worked hard, faithfully attended class and worked diligently, you have created for yourself an excellent platform from which to succeed on exams. My hope is that you have adopted the advice contained in my book, and especially utilized the "Pyramid Outline" method. Regardless, if you have kept up with the reading and class discussions, and captured both in your class outline, you have already done much of the heavy lifting required to increase your chances of success.
That said, now that you are in the final stretch of your semester, the follow "dos" and "don'ts" are suggestions that you may find helpful as you allocate the precious time remaining before exams:
1. Do review and distill the information contained in your class notes and outlines. A fundamental principle of active learning is engaging yourself with the material. In terms of law school exams, the best way to do this is to digest and distill the vast amount of information you read and hear during the semester into an "outline" and then distill the outline ultimately into a few pages, which serve simply as a memory prompter.
2. Don't spend a lot of your precious study time re-reading cases. Cases are intended to teach a point of law, or a trend or change in the law, or illustrate legal reasoning or a legal principle. The facts of these cases are the vehicle for such teaching, however, memorizing these facts will not help at exam-time.
3. Do practice writing exams, especially under timed conditions, and check your answers against the model answer, if available. Your law school library probably has old exams on file. There are also many other ways to find practice law school exams, including on the internet and through commercial study aids. It is critical that you practice writing exams that are organized and cohesive. All of the black letter law on the planet will not earn you an "A", if you cannot articulate a readable and cogent exam answer. Of course, you have to know the black letter law, in order to spot legal issues. But my point is that you must not overlook this critical step in your exam preparation.
4. Do not throw out your basic writing skills, in the midst of the law school exam fray. Law professors are people too. They value penmanship (it makes grading exams infinitely easier), shorter sentences and active verb uses. A sure way to irritate the grader and reduce your chances of a decent grade is to write a messy, rambling answer.
5. Do use headings and subheadings liberally. These can make your exam easier to understand and provide the grader with a roadmap to your answer.
6. Do not begin writing until you have a pretty good idea of what your answer is going to look like. The best way to do this is by creating a short outline of your answer. Once the exam begins, you will see people immediately begin writing. You will be tempted to start writing for fear of being left behind. I suggest that you avoid the temptation.
7. Do follow any instructions your professor has given you, either during the semester or in the exam itself. Another way to irritate the grader is to not follow instructions. Also, I suggest you read through the entire exam, in order to ensure that you properly allocate available time. As I discussed in my book, the worst kind of surprise at hour two and a half of a three hour exam is to find out the exam contains three questions, instead of the two because you overlooked a question. "A+" answers to the first two questions, followed by a "C" answer to the last overlooked question, will likely average out to a less than desirable grade.
8. Do adopt "on the one hand, on the other hand" as your exam mantra. Everything in law school- from facts to the law, and everything in between can be argued at least two ways. I discuss this critical component of law school exam in "Law School Labyrinth" in more detail, but suffice it to say that if you find yourself arguing only one side you will likely lose points due to conclusory thinking. And there is nothing more offensive to law professors than conclusory thinking.
I wish you success on your exams. This is the opportunity to demonstrate the product of your hard work over the semester. Law school exams are typically difficult. They have to be, otherwise the grader will have no objective way to disperse the grades along the recommended grading curve. But then again, someone has to get the "A"s and A+"s. And it might as well be you.
As incredible as it may sound, the secret I am going to reveal to you about reading cases for law school did not occur to me until well after I graduated. After you think about it for a while, it makes perfect sense, but as with most things law school, no one explains anything to you. And after you graduate, you are so busy with things like bar exams, careers and the like, you quickly forget about the law school labyrinth. It was only because I had waited so long to finally achieve my dream of law school that I continued to fixate on the process, and especially try to make sense of it in light of my prior business experience.
Business is all about managing the various business processes. A good manager identifies a process and then proceeds to identify the variables affecting the process and finally managing and optimizing those variables. If a business's critical processes are optimized, that business will have a much greater likelihood of success than a business whose processes are out of control.
W. Edwards Deming is commonly credited as the father of statistical process control in the U.S. In the 1970's and 80's U.S. car companies were faced with the Asian competitive threat and turned to Deming, who following the decimation of Japan in World War II, was charged by General Douglas MacArthur to assist in the rebuilding of that country. Before long, the Japanese had not only rebuilt their country, but had begun to overtake the U.S. as the dominant manufacturing power, especially in the automotive market.
I grew up in my business career during those times and as with most executives, became adept at process control. When I was faced with the apparently chaotic processes involved in legal education, I struggled to make sense of it both during and after I graduated. The net result of my struggle is my book entitled "Law School Labyrinth- A Guide to Making the Most of Your Legal Education" (Kaplan Publishing, 2009). The book not only describes my struggle, but more importantly describes the key "lessons learned" as I traversed the labyrinth, especially the lessons about dealing with the Socratic method, learning the legal reasoning methodology and digesting vast amounts of information in such a way as to perform optimally when it counts- at exam time.
Anyway, on with the secret. When you start law school, you will be assigned to read numerous lengthy and often arcane cases. You will not be given any quidance, questions, tips or anything else that will help you understand the point of even reading the cases. Instead, you will read cases, go to class and hope you don't embarrass yourself in a Socratic grilling.
Different students respond differently to this apparent paradox. Some students read and read and reread the cases, memorizing the most minute details. Other students mark, highlight and underline the cases, in the hopes of being able to recall the reading. Still other students do "briefs" using IRAC (Issue, Rule, Analysis, Conclusion). Regardless, most students go to class, are called on and in up being embarrassed anyway (dealing with the Socratic method is beyond the scope of this blog post- I'm afraid you'll have to read my book, or wait for a later post for that).
After I graduated and went to work for a law firm, I was often assigned legal research and memoranda writing in support of motions, such as a motion for summary judgment or a motion to dismiss. A brief is a persuasive document, intended to persuade the judge that you are entitled to the relief you seek (i.e. dismissal of the plaintiff's complaint). As I read these cases, I read them with a fury and intensity unlike anything I had ever done in law school. The reason for this is that I read these cases with purpose- the purpose was to sift through the opinion until I could find law in support of my facts; or conversely facts in support of my law.
What I mean is that a lawyer reads cases in order to find precedent that will convince the judge that the particular issue has already been decided. It's called stare decisis. And as with anything in life, when you do something with purpose, it becomes easy and almost automatic.
In law school, however, you do not read the cases with a purpose, other than to avoid embarassment if the professor happens to call on you. But the truth is, you can't win that battle. The professor knows the questions and the answers. If the professor wants to embarrass you, then will.
So here's the secret. When you read a case, try and imagine that you are a practicing lawyer. You are reading this case because you want to find out more about particular issues(s). As you read the case, ask yourself why the writer included a particular fact or a discussion of the law. I assure you that there really was a reason. Try an imagine how subsequent judges would interpret this particular opinion. Would it be upheld or overturned? If so why; if not, why not? In short, work the facts and work the law. Read with as much purpose as you can. The purposeful work will enable the material to stick with you much more so than an attempt at brute memorization. It will likely also make you a better lawyer.
Regardless, if a case doesn't make sense, after you have given it your best shot (and perhaps a quick read of a commercial outline- also discussed in my book), then don't sweat it. There are simply poorly edited cases, poorly chosen cases or cases that are so old that they are merely a rite of passage for every neophyte law student. If they don't make sense, it is most likely not because you lack intelligence. It's simply because they are old, arcane "classics" that every professor relishes as a rite of passage for law students. Everyone's read them; everyone has struggled with them. And yet, we all somehow remember them.
For those of you who have ever played golf, you realize that what at first glance appears to be a simple act, swinging a golf club at a ball, is in reality an extremely complex transaction. Hundreds of books have been written, thousands of dollars have been spent and millions of hours have been invested by golfers throughout history trying to achieve an effective golf swing.
An effective golf swing requires proper setup by the golfer and stance, a specific grip of the golf club, a predetermined backswing and timing such that it all comes together to strike and propel the ball the required distance and to the target at hand. Golfers, either consciously or unconsciously, go through a pre-swing check and analysis, almost like the sensor mechanism/ processor of an automobile's airbag system, which goes through a split-second analysis prior to actual detonation.
If the golfer actually thought about each step of this analysis and made conscious independent decisions each step of the swing, the swing would take hours, instead of seconds.
A "swing thought", is a simple thought that the golfer keeps in mind as they swing the golf club, in order to hit the ball properly. Swing thoughts are sort of a shorthand memory that golfers use to trigger the proper physical response. Swing thoughts enable golfers to "automate" a great deal of the analysis and hit the ball smoothly and effectively, and avoid the golfer having to make independent decisions each step of the way. Swing thoughts boil it all down to one simple thought that the golfer can use to hit the ball.
For example, one popular swing thought is to grip the golf club as if one were "gripping a tiny sparrow". This swing thought instructs the golfer to not overgrip the club, but hold the club just securely enough to maintain control of the club. The result is a more relaxed swing, with the other compents of the swing less likely impeded.
In law school, as you probably realize by now, the analyses are complicated and complex, ever-changing, infinitely detailed and challenging. Every single day that you go to law school (and when you take exams), you are faced with analyses of legal problems.
Generally, it all starts with the basic currency of law school- the cases; judicial opinions used to explain, describe or establish a point of law, trend in the law, or new direction of the law. Law students are assigned cases to read and go to class to face the dreaded Socratic inquest (or witness their peers being grilled). Law students spend hours upon hours attempting to make sense of cases, trying to memorize facts and generally familiarizing themselves to the point of avoiding the worst kind of embarassment in class.
But throughout their studies, many law students read cases in a rote manner, conducting analysis upon analysis. One popular shorthand used by law students since time immemorial is "IRAC"- Issue Rule Analysis Conclusion. IRAC is certainly a useful tool for dissecting the basic structure of a judicial opinion. The student identifys the issue, states the rule provided in the case, describes the analysis and then the conclusion reached by the judge. Many students read cases, use IRAC and stop there. However, IRAC is an analytical tool, but certainly not an analysis in and of itself. Students who stop at IRAC miss a key step in the analytical process and are severly disadvantaged at exam time.
Now for the law student "swing thought". This swing thought will also help you to begin to think about how to perform the key step in the legal analytical process that most students miss (at least until well into their second year).
The swing thought is simply this: before you read a case or an exam fact pattern imagine that you have graduated from law school and passed the bar. You are sitting in your office and your adminstrative assistant brings a new client in. The client has a problem.
Now read the case or exam fact pattern.
That's it. The swing thought is that you are a real lawyer, faced with a real legal problem. This will make the reading less abstract, and the fact-sifting and analysis real to you. You will read with purpose. The assignment before you will hopefully cease being an abstract notion, with dry facts and issues and become a real legal problem to be solved.
And by the way, that's what the legal pedagogy is all about- teaching you to think like a lawyer. Law school, in many ways is a trade school- you learn by doing (as opposed to most of your undergraduate studies, in which you learn by reading, memorizing and regurgitating).
You are a few short years away from becoming a real lawyer. Now is the time to start thinking like a lawyer. And the best way to do it is to begin to solve legal problems. As you read your cases, and especially as you approach exams, begin to the work the same way you will do the work in practice.
In my book, Law School Labyrinth, I describe a methodology, the Pyramid Outline Method, to help you read and analyze cases, as well as assimilate the "black letter" law, so necessary for succeeding on exams. I encourage you to read the book and develop your methodology as quickly as possible in law school. It will help you to succeed in law school, but more importantly, begin to learn to "think like a lawyer.