I was recently interviewed by U.S. News and World Report for an article regarding a recent law school trend: two year programs (you can find the article at http://www.usnews.com/education/best-graduate-schools/top-law-schools/articles/2013/04/18/determine-if-a-two-year-law-school-program-is-a-good-fit
). It's a really interesting subject and the reporter asked a number of throught-provoking questions. Candidly, before the interview I hadn't thought a great deal about the subject.
The bottom line for me is that in most cases, I don't think it's a good idea. Some law schools sell the program on the basis of the opportunity cost avoidance. However, I think that sacrificing that extra year in many cases will result in a less enriching experience. I returned to law school after an almost twenty year educational hiatus, so I will acknowledge that my experience and perspective may be different than those of a typical law student. At the same time, I enjoyed the experience and even at my ripe old age grew hugely, in terms of my analytical and logical skills. Further, there were so many subjects that interested me. I actually graduated with a significant number of hours more than I needed, just because I wanted to learn more about the subject.
There is something about the luxury of the academic environment that causes us to grow and flourish. Cutting the law school experience short means less time to soak in this environment, perhaps less opportunity to spend with colleagues, and maybe even fewer clerkship opportunities. In law school, a big part of what we learn is how to think in a very different way. It's that ability that differentiates us from MBAs and other post-graduates. It's learning by osmosis, almost a teaching oneself kind of experience. Navigating it is half of the educational experience. I simply find it hard to understand why anyone would want to reduce that experience.
I know my argument isn't exactly sound from a logical perspective. After all, students in two year programs complete essentially the same number of classroom hours. But for me, the classroom hours were the mere iceberg tip of my legal education. It was the hours I spent wrestling with cases; the debates with my colleagues and the conferences with my professors that truly conributed the most to my legal education.
For some, a two year program may be a great idea. But for me, if I had it to do all over again, I would do it exactly the way that I did it- in three years. If money is an issue for you, then consider going to a lower cost law school. I've previously blogged about this subject. You should not overpay for your legal education. In many cases, "Local U" at tuition cost of thousands of dollars less than "Ivy League U" may be a great alternative. If you have a good idea of what you want to do with your law degree and "Local U" will get you there, then you may be able to save a bundle with this decision. I see that as a preferred alternative to reducing the time spent in law school.
Whatever decision you make, I wish you much success in your legal education and career.
I bought one of those automated breadmakers recently. They're amazingly easy to use. It came with a recipe book, which included all kinds of recipes for different breads- rye, oat brand, pesto bread and a bunch of other fancy breads. The first time I used it, I was a bit hesitant. I loaded in the ingredients, exactly according to the recipe (the order of ingredients is important) set the program and pushed the start button. There is a little window that allows you to check the progress of the bread.
I watched it work and thought that there was no way I would actually end up with a loaf of bread. It mixed and kneaded, then kneaded and mixed. Then, it would just sit there for a while, as the yeast worked its magic. Eventually, I got tired of watching nothing and left the kitchen. But every once in a while I would peek in, just to see if anything dramatic had happened. The entire cycle took about two hours. Since it was late, however, I finally just went to bed.
The next morning, when I woke up, I walked into the kitchen to check on the bread machine's progress. To my amazement, a full, beautiful, browned loaf of bread was in the place, where the night before a bunch of flour and other ingredients sat in what appeared to be a useless state. While it worked, I couldn't see much happening. But lo and behold, eventually I ended up with incredibly fresh and tastybread.
Your legal education is like that. If you are familiar with the John Jay Osborne book and movie, "The Paper Chase," you probably know the line. On the first day of class, Professor Kingsfield tells the class that their brains are mush. But he also promises to turn them into lawyers. Their intellects will be honed. Their minds will become razor-sharp. It's the law school process.
At times, you might not think that much is going on. You may worry that you aren't learning anything, or worse, not getting it. But you are learning much. You are learning a new way to think. You are learning the art (and science) of argument. You are learning to identify assumptions contained within those arguments. Your skills of analysis and logic are growing in a way unlike anything you have ever done, other than perhaps when you went from a babbling infant to a thinking and speaking being. Your mind is growing at an incredible rate and your thinking skills, so necessary to effective law practice are improving dramatically.
It may not seem like it right now. But you are learning to "think like a lawyer." And you are gaining skills that you will likely use for the rest of your career, whether you always practice law, become a CEO or simply serve your fellow man.
I wish you the best in your legal education.
If you just received your first semester grades, you may feel a bit confused right now. You worked hard; harder than you ever have in your life. You knew the cases cold. You had fabulous outlines. But you didn't do as well as you had hoped.
It doesn't seem fair. 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
The good news is that most everyone else 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. It's a method to help you distill the massive amount of information that the law school fire hose blasts at you. Use this method as your plan of attack and to help you manage your learning process.
Let's revisit the law school bottom line:
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. Someone has to get the "A's"; it might as well be you.
And that's the bottom line to law school.
Best wishes in your legal studies.
Having been out of law school now for a number of years, I think I can look at the educational experience in a pretty objective way. Before law school, I had always sort of held it in awe. I never really considered myself as smart enough to get in, much less make it through law school. And even when I did well on the LSAT and was accepted into a top school, I secretly suspected that somehow, they had made a mistake. For the first few months after acceptance, I half-believed I would receive a letter stating: "Dear Mr. Sedberrry: We regret to inform you that your acceptance has been rescinded. We've decided that you were simply lucky on the LSAT and believe that there is no way you will make it through this prestigious institution. We wish you much success in your fast-food career."
Of course, it never happened. But my point is that many law students tend to be high achievers. And perhaps a bit paranoid. It simply comes with the territory. We are always looking over our shoulder and ahead to the next treacherous curve, at the same time. It's what makes us good at what we do. We worry, so that our clients don't have to. We anticipate unintended consequences. We plan for the worst.
As I think back about some of the misconceptions I had about law school, I realize now that law students who have a sober view of the process will probably do better than those who don't. This is because, the mature law student can focus on the real "money" activities- those that deliver the most bang for the buck, grade-wise. And no matter what anyone tells you, make no mistake about it, grades are critically important in law school. Grades are curved among a bunch of the best and brightest and most competitive students around. And grades determine who gets jobs.
So, here are some of these misconceptions, or "law school mythology" as I like to call them:
1. "We're All in This Together." This attitude, although true on one level, is dangerously misleading on another. Some students tend to huddle together, in study groups and social cliques, in the hopes that no one can drown, if they all simply hang on to each other. And having a social network in law school can be comforting. But, here's the problem with this myth. If you hang with the pack and do the same things as the pack, then your grade will be a result of the pack's actions. And as I said, law school grades are rendered on a curve. This means that of the 10 people in your group, one or two might get "A's", two or three will get "B's" and the rest will get "C's" or lower. In other words, although you may think of your group as compadres, some will succeed and others won't. The curve takes very close grades and forcibly distinguishes among them. Someone in your group will get an "A". And it might as well be you. The trick is to figure out methods and a process to make it happen.
2. "Professors Know Everything." Well, you might not absolutely buy into this myth, especially if you are a young, cynical rebel. But even if you are, you may mistakenly believe that your professor is a subject-matter expert. In fairness, she might be. But then again, she might not be. It's just that someone had to teach the Partnership Tax course. So, you should certainly listen to your professors. And learn from them. But make sure that you have a basic, and broader understanding of the material. You do this through outside reading- treatises, hornbooks, whatever. You need to understand the general picture of the course but also enough detail to spot issues and analyze them.
3. "Legal Recruiters Pick the Best Candidates." I've just told you that grades are curved. I've also told you that grades mean everything to prospective employers. Are you starting to get the picture? There are plenty of "A" students who can't lawyer their way out of a wet paper bag. Granted, there are also "A" students who are geniuses, destined for the Supreme Court. But, what about the students who simply had a bad break- a bad professor, a bad exam, or simply that they were a little slow out of the starter blocks that first year. These students may ultimately become brilliant lawyers. But they have a very hard time finding a job because of the foregoing. It's not fair. But it is the way it is. And your strategy from the day you start law school, if not before, is to do everything you can to avoid unfair circumstances. As they say, "you make your own luck." If you are thinking about law school, or planning to enter in the near future, now is the time to begin planning your law school strategy.
4. "Good Lawyers Are Born and Not Made." You see symptoms of this every semester, just after grades come out. Students who killed themselves on studies, end up with "B's". They see others who worked half as hard as they did, and yet pulled "A's". They get depressed and dejected. They begin to believe that they just weren't born smart enough. But as Edison said, "Genius is 1% inspiration and 99% perspiration." There are countless lawyers who graduated in the middle of their class, or worse, and have won some of the biggest cases in history. Law school is about excellent performance over a very short period of time. Law practice is about excellence over a sustained period of time. Simply, you can make up for that self-perceived lack of genius by outworking the other guy.
If you are a law student or a recent law graduate, I would love to hear about your own law school myths. I know that mine have just scratched the surface.
Finally, if you are in law school, stay the course. Try not to get discouraged. Don't give up. It will be well worth it someday. I wish you much success in your legal career.
I've always been fascinated with this paradox. How can a lawyer who is incredibly adept in a deposition be such a poor listener in other situations? To put it another way, how can someone who is so good at listening in one situation, be so bad at listening in another?
If you've never been to a deposition, the process is simple. The deponent or witness (the person being deposed) is sworn in and asked a series of questions by the lawyer. A really skilled lawyer can make the deposition seem almost conversational, while at the same time obtaining valuable information for his client's case. These lawyers know how to use silence to their best advantage. These lawyers know how to get a deponent to open up about things that they might not open up about otherwise. Even the most hostile of witnesses will provide information unintentionally when probed by the skillful lawyer. These lawyers know that careful listening is crucial to their success.
And yet, many of these same lawyers, when discussing the matter with their client, seem to develop amnesia regarding these skills. They talk over and interrupt the client. They don't listen to what the client is saying. They've already made up their minds as to litigation strategy and their investigation has yielded the facts that they need. And careful legal research has provided the crucial glue that holds it all together- the precedent. They don't really care much about what the client has to say.
Some transactional lawyers have similar tendencies. When dealing with clients, they often instruct, rather than seeking to understand. They''ve been there and done this before; dozens of times. They already know the questions and the answers.
Why do we act this way? I suspect it's because of two basic misconceptions. First of all, we believe that a client is paying us for advice. And we mistakenly believe that if we respond to a client's questions with more questions, the client will view us as ineffective or incompetent. Secondly, we are trained to develop and deploy expertise. And in most situations, we are viewed as the expert. If there is a legal problem, non-lawyers will look to the lawyer for the answer. We are perceived as the expert, therefore we must be the expert. And an expert who asks questions is perceived as being incompetent.
The fallacy in this thinking of course, is that no one has all of the answers. Further, in many cases, the answers turn upon specific facts. And the only way to uncover those facts is to ask questions and listen carefully to the answers.
Certainly, in order to practice law, a lawyer must have a certain minimum level of expertise. That's what the bar exam is for: to seperate those with such expertise from those who do not possess it. But the real legal heavy-lifting occurs with the lawyer who has the expertise and the heavy-lifting skills required to creatively and effectively approach legal problems.
This may mean stepping off your professional pedestal, rolling up your sleeves and allowing some vulnerability to shine through. Vulnerability means being willing to admit that you may not have all of the answers. More importantly it means being willing to admit that someone else may have them. And it means being willing to listen to that someone, be it a witness, a colleague or a junior associate.
Does this mean abdicating your responsibility of maintaining a professional attitude and demeanor? Of course not. It just means being willing to approach a legal problem with an open mind. It may even mean having to admit to the client that you do not have the answer, but that you will find one for them. And most importantly, it means asking lots of questions, listening to the answer and then asking more questions.
Law schools (and undergraduate institutions, for that matter) do not teach listening skills. But make no mistake about it, effective listening is a skill. How can you develop this skill? The same way that you develop your other legal skills, by practicing them.
This entire notion may seem so foreign to you that you have no idea where to begin. You are accustomed to being the person with the answers, not the questions. You've never really thought about listening and the fact that it is a skill. If this describes you, then take heart. Listening can be learned and good listening can be continuously improved upon. In fact, listening is a process, just as is legal research, cross-examination, and countless other legal skills. Here's how you can learn to be a good listener:
1. Approach any situation, but especially client interviews as an opportunity for learning. Begin with open-ended questions. Open-ended questions often are a few, key words, such as: "Oh?", "Tell me more . . ." and "Help me understand . . .". They are intended to encourage the person to open up with large amounts of information.
2. Above all, resist the temptation to interrupt. Nothing will shut a person up faster.
3. As more information becomes apparent, begin to focus your questions with closed-ended questions. This type of questioning typically requires a "yes" or "no" or one-word answer. Closed-ended questions can also be effective with people who appear to be reluctant to divulge information. When they begin to relax and open up, you can then revert to open-emded questions.
4. Restate the information provided. This is typically accomplished by statements like: "What I'm hearing you say is . . . " and " To summarize . . . "
5. Do not make the mistake of thinking that if you are listening, then you cannot control the conversation. Certainly, at trial, as the old adage goes: "Never ask a question that you don't know the answer to." This is because witness testimony isn't really for your benefit; it's for the jury's benefit. But for most other situations, when you are listening and guiding the conversation through well-placed questions, then you are absolutely controlling the dialogue. Listening is a very powerful posture.
6. If questions occur to you while you are listening to someone, rather than interrupting, write them down. Refer to them later, after the person has finished talking.
7. Do everything possible to avoid making a declarative statement. Phrase as much of what you say in the form of a question as is humanly possible.
Finally, practice, practice and practice some more, the art of listening. The great thing about developing this skill is that it can be done anywhere- at home, at the gym, on the train. You may be amazed at how much people will open up to you if given the chance, and more importantly, how much you will learn. Clients, colleagues and the mailman will reveal things to you that they might not reveal to their own spouses. A lot of it won't be of much value to you. But some of it will. And I promise that your willingness to listen will be of huge value to them.
I wish you much success in your legal career.
I have no idea. I do know, however, that a study was done a few years ago, which showed a strong correlation between LSAT performance and law school performance. This makes sense because the people who design the LSAT have a very strong voice in the law school curriculum.
At the same time, I suspect that LSAT score does indeed predict success in law practice. There are several reasons for this correlation:
1. Reading Comprehension. RC is a a third of the LSAT score. RC is important in law school because it helpf to build your foundation of legal reasoning and analysis. RC is also a critical skill in law practice. Simply, the devil is in the details. This means you have to be able to grasp what you read strategically. But you also have to be able to read carefully enough to discern pviotal facts and statements, in order to maximize your use of what you read. In law practice, we spend hours reviewing contracts, discovery materials and other documents. An entire outcome can turn upon a single fact discovered as a result of plowing through a rich field of information. And you can quickly lose, if you fail to take note of the important piece(s) of information. Reading is arguably one of the most critical skills a lawyer can have.
2. Logical Reasoning. LR is another third of the LSAT score. In order to make and analyze effective arguments, you must be able to reason logically. LR is important in law school because it enables you to follow the legal arguments made in the materials you read, and replicate those argument styles at exam-time. It's important in law practice because, well think about it. How far would an illogical lawyer get with a client, or a judge? Sounds pretty silly, doesn't it? A lawyer has to be logical in his/her approach to everything we do. It's just logical.
3. Analytical Reasoning, a/k/a "logic games". AR is the final third of your LSAT score. AR is important in law school because in many of the cases you read, which are teaching tools, there are numerous disparate fact patterns, disjointed analyses, and sometimes poorly edited cases. All of this requires the law student to grasp a group of disparate things simultaneously and somehow keep track of and make sense of them all. Law practice is like this is well. You are rarely presented with a straightforward set of facts. Instead, you are given partial facts (sometimes the client tells you only facts in their favor) and you have to dig for the rest. Further, often many laws are implicated by a single set of facts. In a commercial situation, for example, you may be required to anticipate contractual issues. But you may also need to analyze that situration for antitrust and FTC Act issues, or other issues. You have to be comfortable with multi-variable analysis, that is juggling many balls, plates and chairs, in the air at the same time.
So, what if you fared poorly on the LSAT? Does it mean that you are ill-suited for law school and the practice of law? Perhaps. But it could also mean that you will simply have to work harder at all of the above than your peers. Intelligence is a function of not only your ability to solve problems, but also how quickly you can solve them. And there are all kinds of intelligence. And given enough time, anyone can solve any problem. As the old hypothetical goes, if you placed a hundred chimpanzees at keyboards, eventually you would end up with a novel.
So, I wouldn't worry too much if you didn't ace the LSAT. Certainly, it will affect your ability to gain acceptance into law school. However, once you're in, forget about it. Use your LSAT performance as a subtle remainder that you will have to work a bit harder than the next person. But that's what law practice is like. In many cases, I'm presented with legal situations with which I have little familiarity. But I can get familiar, if I am willing to invest the time in learning the facts and the law. I consult with colleagues to check my thinking. I review all of it, again and again. And eventually, I am able to master the particular matter. That's why they call it the "practice" of law. It means "practice makes perfect." And, in my humble opinion, your clients deserve perfection.
So the LSAT may be a predictor of your success as a lawyer. But remember, it's a standardized test. And any standardized test can be mastered, if the test taker is given enough time. Raw intelligence can help you succeed in law school. But hard work, dedication and perserverance can also go a long way toward success and a fulfilling career as a lawyer.
I think one of the thing many young lawyers don't understand is the idea of "client value." It simply means that the utility of the legal services rendered should exceed the cost. Now that I think about it, many law firms may not understand the concept as well. Let's think about it mathematically:
Client Value = (Utility of Legal Services Rendered) - (Cost of Legal Work Provided)
So, as long as the cost is less than the utility, then there should be value created by the legal services rendered by the lawyer.
It sounds simple doesn't it? The truth, however, is that the calculation is infinitely more complicated than the simple equation would suggest. Here's why:
Determining the utility of legal services is a lot harder than it looks. For example, the utility of helping to keep a criminal cefendant out of jail can have an almost inestimable value to that client. On the other hand, determining the utility to a client of recovering the expected "benefit of the bargain" in a contractual dispute can often be determined to the penny.
At the same time, the lawyer must balance the amount of time required to deliver value with his ethical obligation to zealously represent his client.
Suppose, for example, that the criminal defendant has a lengthy criminal record and has served much time in prison. The utility of avoiding prison to that defendant might be low. However, just because going to prison isn't a big deal to the client, this doesn't mean that the lawyer can simply capitulate and say "Your Honor, my client doesn't really care whether or not he goes to prision. He's been there many times before. I've got a really lucrative civil matter I'd rather work on. Why don't we all agree to send my client to jail for a few years?" The lawyer has an ethical duty to mount every defense he can, in an effort to help his client avoid jail time. Anything less is potentially malpractice, a derelection of duties. Further, it's the right thing to do. It's why you became a lawyer.
Now suppose you are representing the plaintiff Acme, a small corporation, in a breach of contract claim. The defendant Beta, a widget supplier promised to deliver 100,000 widgets to your client by a certain date and failed to do so. As a result, Acme lost profits of $100,000 because he could not deliver the widgets to his customer . You've been hired to file a lawsuit against Beta. It would seem that your services should cost less than $100,000, in order to deliver value to your client. And the lower the costs are, the greater the value to your client. Now suppose that your client Acme is also named as a defendant in a lawsuit filed by his customer, Alpha who claims $100,000 in expectation damages arising from lost profits. Suddenly, the value of your services has doubled, and increased perhaps even more because of other risks- such as the court awarding damages, costs and attorneys fees against Acme. Or perhaps Acme has built a thirty-year history of service to its customer base. Acme's failure to deliver goods may result in a serious hit to its reputation and perhaps a loss of future business.
The trick in delivering client value is understanding the utility of your services to a client and always delivering substantially more that utility. This is of course, easier said than done. What if your client's case is unwinnable? Anything they spend on your services is arguable money down the drain. Settling the case as quickly and as inexpensively is your best option.
And that brings me to the point. As a lawyer, you have a duty to zealously represent your client. But zealous representation, without a basic understanding of the task at hand will lead to an unhappy client. You must investigate, listen and understand what your client needs. You need to identify the risks involved and articulate those to your client. You need to engage in dialogue with your client about the issues. But ultimately you have to use your best professional judgement in deciding the best way to approach your client's problem. If your legal expenses are greater than the value delivered, your client won't be happy.
Is it possible to always ensure that the utility of the legal services rendered exceed the cost? I don't think so, unless you have somehow figured out a way to predict the future. Unless you know the outcome of the matter with certainty, its difficult to quantify the utility of the services. But you have to give it your best shot. Do not simply try to solve the problem with hours invested. Instead, develop a strategy. Think about the possible outcomes. Think about the cost and value of those outcomes. Use the same judgment in developing your problem-solving approach, that you use in actually solving the problem. If you don't, you risk missing the "forest" for the "trees", over-engineering the solution and ultimately delivering negative value to your client.
A caveat: we lawyers like to think of our practice as a profession, as opposed to a business. And that's the right way to think about it. We must use our best judgement, creativity, analytical skills and professional skills to solve legal problems. And often, it's difficult to quantify the utility of one's services. It's sort of like a doctor charging varying rates, depending upon the severity of the illness- not a good idea. But unless we understand the business implications and the value equation in our service, we risk having unsatisfied clients. And remember, a satisfied client is likely a lifetime client. And certainly, as with the other professions, it's about more than just client value. It's about becoming a trusted advisor. It's about serving others. And it's about being able to help people when perhaps no one else can.
I wish you much success in your legal career.
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.
Whether we realize it or not, the Internet is redefining our form of government. Every civics students learns about the three-legged stool of the United States government- the Executive branch, the legislative branch and the judicial branch. Each branch has its own Constitutionally-defined powers.
The President is the Chief Executive of the United States. He runs the military and his cabinet controls most of the administrative function of government. The legislative branch creates our nation’s laws. And the Supreme Court, when called upon, tells us what those laws mean.
The beauty of this system is that each leg of the stool keeps the other in balance. We call it a “system of checks and balances”.
We’ve recently seen the power of the Internet demonstrated in other governments. The seeds of the Egyptian revolution were sown, fertilized and nurtured on social media, such as Twitter and Facebook. A government that had enjoyed power for decades was overthrown as a result of its people connecting and congregating through social media.
The United States system of government was based upon “one person/ one vote”. Each person cast a vote for its representative. If the representative did not execute the will of its constituents, eventually, they would lose their office. The people would vote and the majority prevailed. Politicians, empowered by this majority vote, would fulfill the duties of their office based upon their mandate. If a voter was unhappy with his elected representative he would write a letter, or perhaps pay a visit. The representative would spend time with his constituents, in order to ascertain the will of the people.
And then, along came William Randolph Hearst. Hearst was the founder of the publishing system that eventually mad the daily newspaper a part of American life. Politicians read the newspapers. And politicians did not want to read unfavorable stories about themselves, for obvious reasons.
Another basic civics lesson deals with the freedom of speech afforded by the First Amendment to our Constitution. The Founders, responding to tyranny of the King ensured that we have the right to say what we think. At the same time, there were limits to the freedom of speech. The Supreme Court has decided that we didn’t intend to protect obscene speech, for example. And the law of defamation acted as a deterrent to unbridled and irresponsible commentary. The result was that journalists checked their facts and did their best to report the truth. It was yet another system of checks and balances.
Over time, technology and commerce began to intervene in the process. I’m talking about polls and lobbyists. Politicians began using polls to help them understand the will of the people. Large polling organizations sprang up and became essential tools in politics. Lobbyists represented the needs of their special interest employers. The potential unbalancing effect of lobbying became such a concern that Congress enacted rules governing how lobbyists could operate.
Today, the court of public opinion can change overnight via social media and blogs. It’s called “going viral”. We see it happen every single day. Charlie Sheen gains millions of followers overnight on Twitter as a result of his website rants and raves. Roger Ebert, a cancer survivor and otherwise respected media journalist becomes universally attacked, based upon what was probably a random thought expressed on Twitter.
And our politicians use social media to what they hope will be their best advantage. It’s cheap and effective. Any marketer knows that publicity is more powerful than paid advertising. Publicity carries an inherent authenticity that can hugely influence. And that’s why it has become so universally employed by politicians. And there is an intimacy of sorts between people that social media can create, without the corresponding obligation of normal human interaction. Worse, there is a false sense of anonymity created by social media and the Internet. “Weinergate” teaches us that there is no real anonymity on the Internet, if someone wants to dig deeply enough.
I’m not saying that the Internet is a bad thing. I’m saying that it is a very powerful thing. In the old days, politicians listened to their constituents, read the newspapers and polls. And they made judgments about that information which resulted in laws and public policy. Today, the risk is that we will listen too much to social media.
“But what about the freedom of speech”, you might ask. After all, it has been a constitutionally-protected right since the beginning of our country. But in those days, “mass media” consisted of perhaps, at best, a poster. We could say what we thought, but our audience might be a few dozen people at any given time. Today, if my thought goes viral, it can potentially be heard by millions of people.
And at that point, you have to consider the source. Is the source factual or is it merely appealing to the thoughts and desires of a lot of people? We’ve all seen emails passed along by friends purported to be true, that turned out otherwise. There are stories and comments posted on social media that go viral quickly; the reported death of a celebrity, for example, that turned out to be false. Social media can become a pipeline for rumors, innuendo and simple falsehoods.
So here’s the thing. The Internet and social media are growing hugely, in terms of influence on the American people. But in many cases, the information being passed along isn’t “vetted” by anyone. Anyone can blog. Anyone can create a YouTube video. Anyone can post something on Twitter or Facebook. And if it goes viral, it takes on a life of its own. The information is, for all intents and purposes, created anonymously. In many cases, we know absolutely nothing about the publisher of the information and we don’t bother to check it out. So there is no system of checks and balances.
And here’s the point. As a country, we should be very careful about shaping our laws and public policy based upon this kind of information. If our politicians begin to listen so carefully to social media that they lose objectivity about the messages conveyed, they will lead us to the wrong place. If we shape our laws or policies based upon the rantings of a particular blogger that happened to go viral, we will stumble.
We are a nation of the people, for the people and by the people. But today, we are also a nation of Twitter followers. I propose that those of us who use social media begin to create a new system of checks and balances. I’ll call it “your conscience”. Anytime you read something on the Internet, use “your conscience”. If you read something, use your God-given analytical skills to decide for yourself whether it could be true. If you decide it isn’t, don’t pass it along. Use “your conscience” to decide whether or not you should post something on Twitter of Facebook. As conversational as it all seems, there is a big difference between a casual comment between friends, and something that is arguably published forever.
Let “your conscience” be your guide.
I wish you the best in your legal studies.