b'\x0cLaw School Materials\nfor Success\n\nBarbara Glesner Fines\nAssociate Dean & Rubey M. Hulen Professor of Law\nUniversity of Missouri Kansas City\n\nCALI eLangdell\xc2\xae Press\n2013\n\n\x0cAbout the Author\nBarbara Glesner Fines is the Ruby M. Hulen Professor of Law and\nAssociate Dean for Faculty at the University of Missouri - Kansas\nCity, where she has taught since 1986. Professor Glesner received her\nlaw degree from the University of Wisconsin at Madison and her\nmasters of law degree from Yale Law School. She teaches\nProfessional Responsibility, Family Violence, Divorce Process, and a\nSeminar in Ethical Issues in the Representation of Families and\nChildren.\nHer recent publications include Ethical Issues in Family Representation\n(Carolina Academic Press 2010); Professional Responsibility: Collaborative\nApproach (Context and Skills Series) (Carolina Academic Press 2012);\nFifty Years of Family Law Practice - The Evolving Role of The\nFamily Law Attorney, 24 J. AMER. ACAD. MATRIM. L. 601 (2011);\nLessons Learned About Classroom Teaching from Authoring\nComputer-assisted Instruction Lessons, 38 WM. MITCHELL L.\nREV. 1094 (2012).\nProfessor Glesner has held leadership positions in many\norganizations devoted to legal education, including the AALS Section\non Teaching Methods (Chair 2012-13); the AALS section on\nProfessional Responsibility (Secretary 2012-13); the Center for\nComputer Assisted Legal Instruction (Board of Directors, 1998\xe2\x80\x90\n2005; President 2002\xe2\x80\x902005; Editorial Board 1998- current); and the\nInstitute for Law School Teaching and Learning (Advisory Board\n2003-date, Acting President 2006\xe2\x80\x902008).\n\nii\n\n\x0cNotices\nThis is the first version of the first edition of this chapter, updated\nJune 11, 2012. Visit http://elangdell.cali.org/ for the latest version\nand for revision history.\n\nThis work by Barbara Glesner Fines is licensed and published by\nCALI eLangdell Press under a Creative Commons AttributionNonCommercial-ShareAlike 3.0 Unported License. CALI and CALI\neLangdell Press reserve under copyright all rights not expressly\ngranted by this Creative Commons license. CALI and CALI\neLangdell Press do not assert copyright in US Government works or\nother public domain material included herein. Permissions beyond\nthe scope of this license may be available through feedback@cali.org.\nIn brief, the terms of that license are that you may copy, distribute,\nand display this work, or make derivative works, so long as\n\xef\x82\xb7\n\nyou give CALI eLangdell Press and the author credit;\n\n\xef\x82\xb7\n\nyou do not use this work for commercial purposes; and\n\n\xef\x82\xb7\n\nyou distribute any works derived from this one under the\nsame licensing terms as this.\n\nSuggested attribution format for original work:\nBarbara Glesner Fines, Law School Materials for Success, Published\nby CALI eLangdell Press. Available under a Creative Commons BYNC-SA 3.0 License.\nCALI\xc2\xae and eLangdell\xc2\xae are United States federally registered\ntrademarks owned by the Center for Computer-Assisted Legal\nInstruction. The cover art design is a copyrighted work of CALI, all\nrights reserved. The CALI graphical logo is a trademark and may not\nbe used without permission.\nShould you create derivative works based on the text of this book or\nother Creative Commons materials therein, you may not use this\n\niii\n\n\x0cbook\xe2\x80\x99s cover art and the aforementioned logos, or any derivative\nthereof, to imply endorsement or otherwise without written\npermission from CALI.\nCover Art Credit: Cover image Willamette College of Law Grad by\nCubanRefugee/Yovany Alas, on Flickr Attribution 2.0 Generic (CC\nBY 2.0)\nThis material does not contain nor is intended to be legal advice.\nUsers seeking legal advice should consult with a licensed attorney in\ntheir jurisdiction. The editors have endeavored to provide complete\nand accurate information in this book. However, CALI does not\nwarrant that the information provided is complete and accurate.\nCALI disclaims all liability to any person for any loss caused by errors\nor omissions in this collection of information.\n\niv\n\n\x0cAbout CALI eLangdell\xc2\xae\nPress\nThe Center for Computer-Assisted Legal Instruction (CALI\xc2\xae) is: a\nnonprofit organization with over 200 member US law schools, an\ninnovative force pushing legal education toward change for the\nbetter. There are benefits to CALI membership for your school, firm,\nor organization. ELangdell\xc2\xae is our electronic press with a mission to\npublish more open books for legal education.\nHow do we define "open?"\n\xef\x82\xb7\n\nCompatibility with devices like smartphones, tablets, and ereaders; as well as print.\n\n\xef\x82\xb7\n\nThe right for educators to remix the materials through more\nlenient copyright policies.\n\n\xef\x82\xb7\n\nThe ability for educators and students to adopt the materials\nfor free.\n\nFind available and upcoming eLangdell titles at elangdell.cali.org.\nShow support for CALI by following us on Facebook and Twitter,\nand by telling your friends and colleagues where you received your\nfree book.\n\nv\n\n\x0cTable of Contents\nAbout the Author .................................................................... ii\nNotices ................................................................................... iii\nAbout CALI eLangdell Press ...................................................v\nPreface ................................................................................. viii\nChapter One: Assessing your Resources ................................. 1\nResource Priorities ........................................................................................ 1\nThe Survival Resources ................................................................................ 2\nThe Most Limited Resource ........................................................................ 4\nA Calendar...................................................................................................... 7\nThe Non-cognitive Resources: Self-knowledge and Self-esteem .......... 9\n\nChapter Two: Preparing for Class ......................................... 15\nCritical, Active Reading Skills ................................................................... 15\nCritical Writing Skills: An Introduction to Briefing .............................. 19\nA Sample Briefing Format ......................................................................... 20\nThe Importance of Vocabulary ................................................................ 23\nGuided Reading of a Case ......................................................................... 25\nCase #2 ......................................................................................................... 32\nReading the Law from a Series of Cases ................................................. 37\n\nChapter Three: Getting the Most from Class ........................ 40\nWhat to Expect in Class (and Why) ......................................................... 40\nMaking and Using Class Notes ................................................................. 43\nNote Taking Skills, Problems and Solutions .......................................... 43\nTips for Active Listening ........................................................................... 45\nThe Relationship Between Classes and Exams ...................................... 46\nThinking like a Lawyer -- Applying the Law to Facts ........................... 47\n\nvi\n\n\x0cIdentifying Issues ........................................................................................ 47\n\nChapter Four: After Class Review ......................................... 53\nWhy review? ................................................................................................. 53\nGroup Study ................................................................................................ 54\nProcedure ..................................................................................................... 55\nSupplementary Resources .......................................................................... 55\n\nChapter Five: Outlining and Exam Preparation ................... 58\nKnowing your goals.................................................................................... 58\nKnowing your subject ................................................................................ 59\nKnowing your audience ............................................................................. 61\n\nChapter Six: Taking an Exam ............................................... 62\nRemember your goals ................................................................................. 62\nExam-taking techniques ............................................................................. 63\nSome General Tips ..................................................................................... 66\n\nChapter Seven: The Next Semester ....................................... 68\nReviewing your past semester\xe2\x80\x99s learning ................................................. 68\nReviewing your past semester\xe2\x80\x99s grades .................................................... 69\nMeeting with your professor ..................................................................... 71\nMeet with your colleagues ......................................................................... 72\nPlan your new semester ............................................................................. 72\nIf you feel like you\xe2\x80\x99ve failed....................................................................... 72\n\nvii\n\n\x0cPreface\nDear Law Student,\nThe first year of law school is, for many people, one of the most\nsignificant transitions of their adult life. Law school demands a lot as\nit helps you make the transition from your prior identity as student\n(or as some other occupational role) to your new identity as an\nattorney. To meet the demands of law school, it is often helpful to\nhave the big picture before you begin \xe2\x80\x93 a sense of what it is you are\ntrying to do as you prepare for classes, participate in those classes,\nreview and prepare for exams, take exams, and then begin the cycle\nonce again.\nLaw School Materials for Success is designed to give you the\nessentials of that process. It is purposefully brief \xe2\x80\x93 most law students\ndo not have the time for an extensive examination of the study of law\nschool. Rather, they need a source for some basic, critical advice and\nsome pointers on where to go for more if necessary. That is what this\nbook and the accompanying podcasts are designed to provide.\nEach chapter of the book focuses on a different aspect of law school\nlearning. I have observed that many students who have not\nperformed as well as they would like in law school are missing some\nkey academic rung on the ladder of academic skills. For example, they\nare preparing for and participating in class very well, but they haven\xe2\x80\x99t\nlearned how to effectively translate that learning into the review\nnecessary to perform well on exams. Or they do quite well in all the\nstages of law school learning up to the crucial exams \xe2\x80\x93 where they are\nmissing some fundamental skill or understanding of what is being\nasked of them. By working through each of these chapters and\ncomparing your approach to law school learning to the suggestions\npresented here, you can master law school learning and achieve\nsuccess.\nI hope that you find these materials helpful as an overview of law\nschool method before you begin your first year, or as a refresher\nresource you can consult quickly and easily as you proceed through\n\nviii\n\n\x0claw school. I am always interested in your ideas and feedback. My\nemail is glesnerb@umkc.edu.\nPeace,\nBarb Glesner Fines\n\nA Note from CALI:\nProfessor Glesner Fines has created several podcasts to accompany\nthe material in this book. The Lawdibles, Your Audio Law Professor,\nare available from lawdibles.classcaster.net\nTitles related to material in this book include:\n\xef\x82\xb7\n\nFactors that Influence Law School Success\n\n\xef\x82\xb7\n\nExam Writing and Briefing Cases\n\n\xef\x82\xb7\n\nOutlining for Law School Exams\n\n\xef\x82\xb7\n\nImproving Exam Taking Skills by Reviewing Last Semester\xe2\x80\x99s\nExams\n\n\xef\x82\xb7\n\nThe Relationship Between Law School and Jobs\n\nix\n\n\x0cChapter One: Assessing\nyour Resources\nTo succeed in law school, you must use all of your resources:\nphysical, psychological, emotional, social, financial, and educational.\nPlanning for law school requires a careful assessment of your\navailable resources and plans to use those resources most efficiently.\nThis chapter is designed to assist you in that planning. This chapter\ncovers four basic topics: Resource Priorities, Survival Resources,\nTime Management, and The Non-cognitive Resources: Selfknowledge and Self-esteem.\nResource Priorities\nSome resources are more critical than others to success in law school.\nOne way of assessing the importance of a resource is by reference to\npsychological theory. Listed below are five categories of need\nidentified by Abraham Maslow.1 Often, students who are dismissed\nfor academic deficiency reveal that they were unable to study well\nbecause they lacked sufficient resources for the necessities of life.\nConsider this need hierarchy and look for potential problems you\nmay face in law school\nMaslow\'s Need Hierarchy\nI. Physiological Needs - Food, Water, Sex, Sleep, Rest, and\nExercise\nII. Safety Needs - Shelter, Protection from immediate or future\nphysical harm, and Protection from immediate or future\nthreat to physical, psychological or economic well-being\nIII. Social needs - Love and affection, Friendship, Association\nwith others, Affiliation\nIV. Self-esteem needs - Self-confidence, Independence,\nAchievement, Competence, Knowledge, Status, Personal\nrecognition, Respect, Influence with others\n\n1\n\n\x0cV. Self-actualization needs - Realization of one\'s own\npotential, Self-development activities, Creative behavior,\nProblem-centered orientation toward life, Identification with\nthe problems of humanity, Acceptance of self and others\nThe Survival Resources\nAs the need hierarchy demonstrates, if one is to attend to the higherlevel need to realize one\'s own potential, the basic resources of\nsurvival must not be threatened. Think about your timing as you\nbegin law school. I believe that a major reason many students do not\nsucceed in law school is that they started at the wrong time: Don\'t\nstart law school on the same day you are also beginning major\nmedical treatment, a divorce, or have just had a new baby. Don\'t start\nlaw school without a decent plan for financial support. Do not unless you are in a part-time program - try to "work your way\nthrough law school." There is little room for a second chance in law\nschool. Even if you do manage to get through in these extraordinary\ncircumstances, your education will not be the fulfilling, exciting, and\ntruly successful experience it could be if you would just wait one\nmore year and sort out your problems first.\nFinancial pressures, in particular, can play a critical role in law school\nsuccess. As you are painfully aware, law school is extraordinarily\nexpensive and many students arrive at law school with large debt\nburdens from prior education. These financial pressures can interfere\nwith the ability to succeed in law school - diverting needed time and\nenergies. Some students do not plan sufficiently to avoid financial\nemergencies. Every student needs to prepare a budget for their law\nschool year. (If you have never prepared a budget, you may benefit\nfrom the resources available at a non-profit credit counseling service.)\nIf your budget reflects financial threats, identify sources of additional\nassistance. One source of assistance some students look to is parttime employment. However, unless you are in a part-time law\nprogram, you should not be working during your first semester of\nlaw school. Not only is this a violation of law school rules and\nAmerican Bar Association accreditation standards, it is a short-\n\n2\n\n\x0csighted solution. Why threaten your long-term learning and earning\nby working during the first semester of law school?\nEven if they do not interfere with your ability to succeed in law\nschool, financial issues can pose a threat to your bar admission as\nwell. If you have current debt problems, beware of simply ignoring\nobligations while in law school. As part of the bar admission process,\nyou will need to disclose your debts and the bar examiners will\ninvestigate your credit record. Large, unmanaged debt is a red flag on\nbar applications. Address your debt problems before you come to law\nschool and do not ignore debt issues while in law school.\nFor assistance, you may wish to work with your local consumer credit\ncounseling service. The CCCS is a non-profit agency that counsels\npeople on debt managements, budgeting, and other principles of\npersonal finance. You can find your local member agency at the\nwebsite of the National Foundation for Credit Counseling, where you\ncan also find useful financial education resources.\nHealth and personal resources are the second set of resources you\nneed to address before coming to law school. Few of us are in the\nkind of physical shape that we would like to be -- imagine the results\nof a diet consisting heavily of coffees, donuts and Wednesday pizza,\nand a workout program that consists entirely of carrying 100 pounds\nof law books from locker to library. (It\'s not pretty.) The stress of law\nschool causes many students to neglect their health. However, saving\ntime by neglecting meals, rest, and exercise will not pay off in the\nlong run. Follow the advice your mother gave you (or should have\ngiven you). Pack a nutritious lunch -- don\'t make breakfast three cups\nof coffee and two chocolate doo-wahs out of the vending machines - eat your veggies. Get enough sleep -- especially during the times you\nthink you can least afford it. Get some exercise -- the Law Book\nBench Press is not enough. Take twenty minutes a day to go for a\nwalk at least.\nSome students try to cope with the stress of law school through\nchemistry: caffeine (or stronger) to keep them up; alcohol and other\nsubstances to help them down. Not only is this strategy guaranteed to\ninterfere with your studies, but it is a sure-fire way to guarantee that\n\n3\n\n\x0cthe Board of Bar Examiners will refuse your application for\nadmission to the bar. Substance abuse and criminal records are major\nred flags on any application -- and yes, that little DUI ticket counts,\neven if you went through a diversion program and were told that\nyour record was "clean." You need more than a "clean" record to be\na lawyer -- you need a "clean" brain.\nIf you think you may have a problem with substance abuse already,\ndon\'t begin law school until you are in recovery. If you are in\nrecovery, set up a strong network of support to keep you there.\nEvery state has a lawyer\xe2\x80\x99s assistance program (LAP), which provides\nconfidential, professional assistance to law students and members of\nthe bar. Find the LAP program in your state at the website of the\nABA Commission on Lawyer Assistance Programs. ABA also runs a\nlistserv for law students in recovery that you can locate there, along\nwith useful resources on stress, depression, substance abuse, and\nother mental health issues.\nEqually important to your success in law school is your social support\nsystem. Who is your "family"? What demands do they make upon\nyour resources? How do they feel about you going to law school? Are\nthere resources, supports, or limitations you need to address with\nthem? You will have less time and energy for your family and friends\n-- but be sure not to neglect these important people in your life. They\nare your buffer against stress -- your link to the rest of your life and\nself. And for heaven\'s sake, when you are spending time with them,\ndon\'t "lawyer" them. Watching a football game with your friends is\nnot a good time to review your knowledge of the tort doctrine of\nassumption of risk. Don\'t use a discussion with your spouse as an\nopportunity to practice rephrasing the issue. Instead, keep track of\nyourself and nurture the relationships that will nurture you.\n\nThe Most Limited Resource\nTime is a most precious resource in the law. Lawyers charge for their\ntime, often billing clients in six-minute increments at rates averaging\nover $100 an hour. In law school, as in the profession, you will need\nto make every minute count. There is always more to do -- more\n\n4\n\n\x0cthan can possibly be done -- in learning to practice law. Thus,\neffective time and study goal management is essential.\nTo complicate matters further, time management is a very\nindividualized process. Some people work best in the morning,\nothers in the evening. Some people can concentrate best on tasks by\nshifting back and forth between tasks for variety; others require\nsustained blocks of time to concentrate on one subject. Some of us\nrequire more sleep than others; some have family or community\nresponsibilities. The bottom line is that you have to manage your\ntime according to your needs in a way that will allow you to\naccomplish your goals.\nYou must be realistic about the intensive time demands of law\nschool. You must recognize that you simply will not have time for\nmany of the activities or responsibilities that you were able to carry\nbefore law school. If you fail to recognize the time demands of law\nschool, you will set unrealistic goals and have unrealistic expectations\nabout what you can accomplish. You will end up being unhappy,\nharried, sick, and you will not be able to reach your goals. Probably\none of the most common reasons for student dismissal from law\nschool is time: students who continued to work or continued to\nengage in extensive outside activities during law school -- especially in\nthe first year. That is not to say that you will have no time for family,\ncommunity, or other important outside commitments. Indeed, these\noutside commitments are important in reducing the overall stress\ncaused by the time demands of law school. But outside time\ndemands are a double-edged sword. It is not uncommon to feel as\nthough you are walking, talking, and thinking nothing but law during\nthe first year. If you are highly motivated to achieve academic\nsuccess, you will neglect "off time." The inevitable result for all but a\nfew students is burn out -- often just at the crucial exam time.\nHowever, if you view law school as "off time" -- scheduling law\nschool around your outside activities rather than vice versa -- you are\nunlikely to be using your most productive time for study and\nlearning.\n\n5\n\n\x0cObviously, then, the key is balance and planning. If you have never\nspent any time thinking about how to manage your time, you should\ndo so now. There are hosts of self-help tools for time management,\nbut the essential principles are relatively simple. First, plan your time.\nThat means more than just making a to-do list or a schedule but\nhaving a clear sense of priorities, a realistic sense of how much you\ncan accomplish, and the knowledge of what works for and against\nyour time management. If you have been plagued by procrastination\nin the past, now is the time to address the circumstances that feed\nthat tendency: whether perfectionism, fear, or simply the thrill of\npulling off a last-minute save.\nTime management is an integral part of effective law practice. Most\nlawyers keep records of their time. Even for attorneys who do not\ncharge on an hourly basis, there are important reasons to keep track\nof the time spent in representing clients. The practice of keeping time\nrecords is an important management tool for monitoring efficiencies,\ncomparing productivity, and justifying fees determined on other\nbases. Good timekeeping is a skill that must be mastered with\npractice and can be an effective exercise in learning how to manage\nyour time in law school. The essentials of good timekeeping are:\nTimekeeping\xe2\x80\x94waiting until the end of the day and trying to\nreconstruct the time spent on a particular matter will inevitably result\nin inaccurate\xe2\x80\x94and thus unethical\xe2\x80\x94billing. You can keep time using\na simple paper-and-pencil method, an electronic notepad on your\ncomputer, phone, or other electronic device, or timekeeping\nsoftware. Regardless of the method, the key task is the same\xe2\x80\x94note\ndown the beginning and ending time for each task you perform.\n\xe2\x80\x9cBillable time\xe2\x80\x9d \xe2\x80\x94not every minute of every day of legal practice is\nspent in work for a particular client; yet, it is important to know how\nthose additional hours are actually spent\xe2\x80\x94whether it is attending a\nCLE or other professional development activity, client development\nand networking, or simply managing the practice. These hours are\npart of your overhead, which go into the determination of your\nhourly rate. You may not charge a particular client for these general\noverhead tasks, but you should nonetheless record your time on\n\n6\n\n\x0cthese tasks. Getting into the habit of recording all your time allows\nyou to see why an eight-hour day gave you only five billable hours.\nItemized task records\xe2\x80\x94Even if you spend an entire day working on\none case, you may have completed several different tasks\xe2\x80\x94\ninvestigating, consulting, researching, and writing for example. A\nrecord that reads \xe2\x80\x9c7.2 hours\xe2\x80\x94interviewed client, researched legal\nissue, phoned records department, drafted motion\xe2\x80\x9d is simply no\nlonger acceptable to most courts and clients. Rather, you should\ndescribe each separate task and the time spent on that task.\nBilling increments\xe2\x80\x94while you could simply charge on a per-minutes\nbasis, most attorneys keep their time in larger increments, with onetenth of an hour being the most common. In this approach, if you\nspend three minutes on a phone call for a client, you would round\nthat time up to six minutes. Attorneys who use increments of larger\nthan one-tenth of an hour may be significantly overcharging their\nclients.\nTo have a taste of how you will likely be required to manage your\ntime in practice, and to gain insights into your own time management\npractices, try keeping your time spent on law school for one week.\nConsider each class, office or activity, a separate \xe2\x80\x9cclient\xe2\x80\x9d and record\nyour time for one week. At the end of the week, stop and reflect on\nthe experience. Did you find it difficult to keep track of your time?\nDid the process of keeping time affect the way you worked? How?\nWere you tempted to \xe2\x80\x9ccheat\xe2\x80\x9d and inflate or estimate your time?\nIn addition to time keeping, essential tools for time management in\npractice that you will need to use in law school are a calendar with\ndue dates and a weekly schedule.\nObviously, then, the key is balance and planning. If you have never\nspent any time thinking about how to manage your time, you may\nfind the following article useful in thinking about time management\nand planning.\n\nA Calendar\nFill in the calendar for the semester now. When do your classes begin\nand end? When are exams? When are significant assignments due\n\n7\n\n\x0c(mid-term exams, if any; legal writing papers, etc.) To get you started,\ncheck the law school\'s master calendar and fill in the dates there.\nConsider that the last three weeks of the semester are generally\nextremely time pressured, as you struggle to maintain your class\npreparation and also prepare for exams. Plan now for the most\nintensive time demands during that period. If you have children or\nother family responsibilities, plan for additional child-care or other\nalternative arrangements now. Next, fill in significant dates of other\nresponsibilities. Is your cousin\'s wedding during the last week of\nclasses? Do you have medical appointments during the middle of the\nsemester? Is your child\'s school play during exams? Decide now how\nto balance or rearrange these responsibilities.\nA Weekly Schedule\nNow that you have an overview of the entire semester, look at the\nlaw school schedule. When are your classes and workshops? Block\nout these inflexible times. Next consider your study times. Study time\nshould be allocated for three separate tasks: preparing for class,\nreviewing class, and preparing for exams. You should set aside time\neach week for each of these tasks for each of your classes. As a\ngeneral rule, you should plan on studying at a minimum three hours\nfor every class hour. THIS IS NOT AN EXAGGERATION. What\nabout outside responsibilities? Block out time for church,\ncommunity, or family commitments. What about yourself? Block out\ntime to sleep, to relax, and to play.\nConsider that you will have fifteen hours of class time each week.\nAdd your four to one study time ratio. That\'s sixty hours a week.\nHow will you allocate that time? Consider that there are 24 hours in a\nday; that most people need about 8 hours to sleep and another two\nhours for eating, bathing, and other basic human functions. That\nleaves 14 hours a day (98 hours a week) to allocate between law\nschool and life. What choices will you make? Can you work ten hours\na day, six days a week so that you can have a free day? Or would your\nstyle be better served with seven days a week of eight hours? Or how\nabout fourteen hours a day Monday thru Thursday, and five hours on\nFriday? These are not easy choices and perhaps you may be saying to\nyourself that these are choices you can avoid. But you are risking a\n\n8\n\n\x0cgreat deal if you proceed with any other than these assumptions\nabout the time required during the first year.\nWhile you are at it, think about where you will study as well. The\nlibrary at school? The public library near your home? Your home?\nWhere will you honestly be the most efficient and the least subject to\ndistractions? Where will you have the resources at hand to study well?\n\nThe Non-cognitive Resources: Self-knowledge and\nSelf-esteem\nOne fundamental resource for success is what might be termed\n"spirit." This resource is more than self-knowledge and selfconfidence; it also involves high motivation and the ability to act as\npart of a community. Overall, one\'s attitude toward law school can be\nas important in success as one\'s aptitude. What are the necessary\nattitudes you need to instill in yourself and look for in your study\npartners?\nThe successful law student is highly motivated to learn. The first\naspect of this "spirit of success" is self-knowledge and the ability to\nmaintain your motivation. To be effective in learning, you must be\nmotivated to learn and must have effective study habits. This is\nespecially so when, as in law school, the demands are so rigorous and\nthe feedback or reward so delayed. Sometimes students excel in law\nschool simply because of extraordinarily high motivation; others fail\nbecause their motivation was lacking or insufficient to carry them\nthrough the process.\nThere will be points in law school when you will lose your\nmotivation: either because you are bored, or tired or simply do not\nsee any reward for your efforts. You will need to have ready some\ntechniques to keep your motivation strong. What has worked for you\nin the past can work for you here. How have you maintained your\nmotivation in other long-term, high-demand tasks? You might\nchallenge yourself: for example, volunteer to participate in class\ndiscussions so that you will have an incentive to prepare more fully,\nor set goals for outlining subject matters by certain dates. Break your\nwork down into small parts and give yourself rewards for completing\n\n9\n\n\x0ceach part. Make a visible reminder of your progress -- keep all your\nbriefs and class notes in one notebook and watch it grow, or make\nlists of assignments and cross them off as you complete them.\nRemind yourself of the importance of sustained effort to long-term\nlearning. Remind yourself of the importance of long-term learning to\nyour goals of completing law school and pursuing whatever career in\nlaw or elsewhere you have set as a goal. Turn to your support system\nfor support and encouragement.\nThe successful law student is connected and cooperative. Ironically,\none of the least effective methods of motivation may be one that\nseems most predominant in the law school environment: that is,\nmotivating yourself by measuring yourself against your peers.\nIronically, those students who are most motivated by the desire to\n"come out on top" or "earn all A\'s" -- that is, students with a\ncompetitive orientation toward study -- are less likely to "win" than\nare those students whose motivation comes from the pursuit of more\nintrinsic rewards, like the enjoyment of learning, accomplishment, or\nimprovement. This is true, in part, because motivating yourself by\nfocusing on grades tends to lead you to focus on strategies for shortterm learning, and on finding short cuts to success. Research\nindicates that this approach to study is unlikely to be effective in\ncreating long-term learning.\nBecause law school success depends in large part on long-term\nlearning of skills that require daily practice and deep mastery, there\nare no "short cuts" to success. Moreover, very competitive students\nalso tend to isolate themselves in their learning. Research into law\nschool success demonstrates that a feeling of social isolation is a\nfundamental variable in predicting success in law school. Even if you\ngenerally prefer to work alone, you should at least try to work with\nstudy partners for purposes of review and exam preparation. One of\nthe skills that law schools develop is the skill of generating alternative\ninterpretations or solutions. For this skill, two (or more) heads are\ndefinitely better than one. Study partners can be important sources\nfor insight into the process of law school learning and support for\nflagging confidence. When choosing study partners and working with\n\n10\n\n\x0cthem, look for positive, directed people with a sense of humor and\nbeware the student who takes him or herself too seriously.\nThe successful law student is confident and positive Just as isolation\nis a variable in law school success, so is self-confidence. As Maslow\'s\nneed hierarchy demonstrates, one cannot realize one\'s potential until\none has fulfilled the need for confidence. Self-confidence is a\ncomplex amalgam of prior experience, personality, and setting. You\nmay come into law school with prior experiences of success and a\npersonality geared toward confidence. Unfortunately, the law school\nsetting can shake the confidence of all but the most secure.\nThroughout a semester, you will receive very little specific, evaluative\nfeedback. Most faculty in the first year give mid-term exams, but few\n(outside of perhaps your legal writing instructors) provide the type of\nweekly, graded homework that you might have received in\nundergraduate education. The classroom process, designed to\nchallenge and expand your learning, will not necessarily provide\npositive feedback or bolster your confidence.\nSome students are especially adept at trying to undermine the\nconfidence of their peers. The first grades you receive in law school\nare very likely to be the lowest grades you have ever received in your\nlife. And those grades count for so much -- becoming a source of\nconsiderable stress as you engage in a more competitive, explicit\nranking process than many of you have faced since junior high. Law\nstudents are all highly talented and intelligent people, used to\nachievement. But all law students cannot graduate with a 4.00 grade\npoint average. (You can all graduate, but 90% of you will not\ngraduate in the top 10% of the class). How can one maintain\nconfidence in the face of such a situation? Focus on the positive.\nRemind yourself of the successes you have had. Re-frame your\ndisappointments in positive directions. If you get a poor grade on\nyour first legal writing assignment, for example, you might frame this\nas "Better now than later - at least I have a chance to find out how to\nimprove." Be careful about re-framing in ways that undermine your\noverall motivation (e.g., "The Professor must not like me -- there\'s\nnothing I can do to improve). Many people find affirmations or\ngiving themselves pep talks to be effective in boosting confidence.\n\n11\n\n\x0cTry using some of these techniques when you feel your confidence\nflagging.\nThe successful law student is an active, independent learner.\nSuccessful law students are enthusiastic about their learning rather\nthan viewing learning as an imposition. These students take personal\nresponsibility for their learning and do not expect to be "taught."\nThey are active in their reading and listening. To be an active learner,\nyou must create your own organization of the materials -- not rely on\nthe casebook, outlines, or syllabus to organize the materials for you.\nLaw school casebooks are rarely written in the style of most\nundergraduate textbooks -- building from simple to complex,\ncontaining all the materials needed to master the course, or explaining\nconcepts or organizing materials. The same can be said for many law\nschool classes. Students can become frustrated with questions that\nhave no answers, or no rhyme or reason for being posed. Or students\ncan take charge of their own learning and save the time wasted in\nblaming the book, professor or law school.\nThe successful law student has a tolerance for ambiguity. Most\nundergraduate learning is based on a dualistic mode of thinking.\nThere are "right" and "wrong" answers and the student\xe2\x80\x99s task is to\nmemorize as much materials as possible in order to be able to\nrecognize or provide the "right" answer. Having found and provided\nthat answer, no further explanation of the process is required. Law\nschools are based on a multiplistic and relativistic mode of thinking.\nQuestions, interpretations, explanations and arguments are far more\nimportant to most exam performance than providing the correct\nconclusion. (For more insight into this aspect of law study, see the\nsection on "the right answer" in the next chapter.) If you expect that\nyou will be learning "THE LAW" during law school -- as a set of\nformula into which you can plug some client facts and get an answer\n-- you will not succeed. You need to recognize that attorneys are not\nsought for their knowledge of the law nearly so much as their ability\nto research, analyze, and use the law.\nThe successful law student knows how he or she learns best. Just as\neveryone has different study habits and attitudes, everyone uses\ndifferent approaches to study. There are several ways that you can\n\n12\n\n\x0ccategorize your learning style. They key here is to use these tools, not\nto label yourself or others, or to predict success or failure. These\nassessments are simply ways of understanding your own preferences\nand strengths, so you can devise the most effective methods of study.\nFor example, one useful way to assess learning style is to consider\nyour preferred mode of perception: how do you take in information\nabout the world? The way people perceive reality can be broken into\ntwo categories -- sensing and intuition. Persons who prefer to take in\ninformation about their world through sensing use sight, smell,\nsound, touch and taste. They prefer concrete information and notice\nwhat is. In comparison, persons who prefer intuition gather\ninformation more often in terms of feelings, thoughts and emotions.\nThey prefer abstractions and notice what might be. The following\nchart provides some key vocabularies preferred by each of these\ntypes. Try to identify which approach to perception you prefer.\n(Remember, there is no "better" preference).\n\nSensing (75% of Population)\nexperience\npast\nrealistic\nperspiration\nactual\nfact\nutility\npracticality\nsensible\n\nIntuition (25% of Population)\nhunches\nfuture\nspeculative\ninspiration\npossible\nfiction\nfantasy\ningenuity\nimaginative\n\nHow do these preferences impact your learning? Each preference\nbrings strengths and weakness. For example, often persons with a\nsensing preference are able to learn step by step, without the "big\npicture"; whereas a person who prefers intuition learns better with a\nglobal scheme in mind. Since law school rarely provides a "big\npicture" up front, intuitive learners may have to work at finding that\nmodel or develop greater patience. On the other hand, intuitive\nlearners are often much more tolerant of ambiguity and complicated\nsituations, qualities that abound in law, whereas sensing types will\n\n13\n\n\x0cneed to become more patient with complicated details or problems\nfor which no standard solution exists.\nSensing types are better at learning applications -- they would learn\nrules of law best by developing factual settings for those rules, for\nexample. Intuitive types are strong in developing theory -- they would\nlearn rules of law best by relating them to a conceptual model.\nSensing types often work more steadily, with a realistic idea of how\nlong things take. Intuitive types work in bursts of energy powered by\nenthusiasm, with slack periods in between. Neither approach is\nnecessarily superior. Intuitive types do need to be aware of the\ndangers of their preferences to procrastinate and flitter from project\nto project. Likewise, however, sensing types need to be able to extend\nthemselves for flexibility in their schedules as the situation calls for.\nFor more information, try the taking the Solomon & Felder Index of\nLearning Styles, or, for a resource specifically geared to law school\nlearning, read Don Peters & Martha Peters, JURIS TYPES: LEARNING\nLAW THROUGH SELF-UNDERSTANDING (2007). The point here is to\nbe aware of what works best for you and to build on your strengths\nand minimize your weaknesses.\n\n14\n\n\x0cChapter Two: Preparing for\nClass\nClass preparation requires more than simply reading the material.\nYou will need to re-read and work with the materials -- writing notes,\nre-writing notes, practicing applications and preparing outlines. In\nthis chapter, we will review the critical thinking, reading and writing\nskills you will use as you prepare for class.\n\nCritical, Active Reading Skills\nLaw school requires that you read large quantities of dense material.\nYou must have efficient reading habits to simply complete your\nassignments. You must have critical, active reading habits to be\neffective in learning from what you read. The following is a suggested\nmethod for reading your assignments. It is an elaboration of the\nclassic SQ3R method developed by Professor Frank Robinson at The\nOhio State University in the 1940s.2 That method suggested that you\napproach each assignment by\n\xef\x82\xb7\n\nSurveying\n\n\xef\x82\xb7\n\nQuestioning\n\n\xef\x82\xb7\n\nReading\n\n\xef\x82\xb7\n\nReciting\n\n\xef\x82\xb7\n\nReviewing\n\nThis text suggests three more \xe2\x80\x9cR\xe2\x80\x9ds - Reflecting, Writing, and\nResearch. The SQ3R method is sufficient if what you are trying to\nlearn is rote knowledge. But in law school, you are learning to\ndevelop the skills of written and oral analysis. This requires a critical\nengagement with the ideas you encounter when you read, not merely\nmemorization of those rules. Reflection is central to this critical\nengagement \xe2\x80\x93 stopping and thinking about what you are learning, its\npossible applications, and the limits of your learning.\n\n15\n\n\x0cWriting makes your critical reflection very precise. Moreover, writing\nis a key legal skill. The best way to improve your writing is to write a\nlot. Thus, your note-taking and case-briefing are not only important\nto your learning legal doctrine, but are important to mastering the\nskills of written legal analysis. In addition, written summaries of your\nlearning enables your review. The review you must conduct in\nlearning law is an iterative review: that is, you review today\xe2\x80\x99s\nassignment today; then you review this same material again at the end\nof the chapter or unit, when you have learned more context that\ndeepens your understanding; then you review again at the end of the\ncourse, when you must integrate all of your understanding of course\ndoctrine in a manner that you can apply to new problems. If you\nhave written notes to review, you will be able to improve this review\neach iteration.\nFinally, there is a role for research in your law study. At a minimum,\nyou will need to research vocabulary by regularly using a legal\ndictionary to decipher the language of the law. At times, you may\nwish to research concepts or cases to clarify or extend your\nunderstanding. You will soon learn that there is rarely time for\nelaborate research of each class assignment; however, you must not\noverlook the essential research called for to engage your\nunderstanding.\nWith this modified SQ6R method in mind, consider the following\nguidelines for reading for class.\n1. Know your assignment and actually read it.\nBefore you can read efficiently or effectively, you have to know what\nto read. Check the syllabus and listen in class for instructor guidance\non your reading assignment. If neither the syllabus nor the instructor\nprovides guidance, adopt a rule of thumb that reflects the pace at\nwhich you actually cover materials in the class - 20 pages a class, for\nexample - and read at least that much, regardless of whether you are\nexpressly assigned materials or not.\nDo read what is assigned. Even if the instructor doesn\'t cover the\nmaterial in class. Even if you won\'t get to the material in class for a\nweek. Be sure to read everything that you are assigned. If you are\n\n16\n\n\x0cgiven an assignment to read pages 20-34 of your textbook, read those\npages of the textbook. Some students read a lot of material, but never\nreally read their assignments. They skim pages 20-34, or they read the\ncases contained on pages 20-25 and 29-33 but skip the notes,\ncomments, problems, footnotes, or article excerpts in between. Other\nstudents actually move their eyes over all the pages, but mostly for\nthe purposes of following their highlighter as they color their books.\nThen there are the students who read other materials instead of the\nassignment: canned briefs (the Cliff notes of law school) or outlines,\nor hornbooks. Sometimes extra reading is a good idea (remember the\n\xe2\x80\x9cResearch\xe2\x80\x9d R); but first, read your assignment.\n2. Prepare to read.\nPut yourself in the right place and time for reading. You know what\nworks for you. If reading in your easy chair is really a signal for a nap,\nfind less soporific surroundings. If reading in the library is really an\nopportunity for socializing, find some isolation. Set aside a place and\ntime that works for you and stick to it.\nPut yourself in the right frame of mind as well. Know that cases, in\nparticular, are not easy readers. There is much you will need to learn\nin order to understand what you are reading and there is even more\nyou will need to infer or interpret. Judges are not necessarily selected\nfor the bench because they are clear writers. Even clear writers\nsometimes may prefer to create some ambiguity in their opinion. So\nbe prepared.\n3. Prepare to learn as you read.\nMost law students know that they need to have an outline for their\nexams. Successful law students know that they need to start their\nassignments with an outline for their reading. The best sources for\nsuch an outline are the table of contents for the textbook or the\ncourse syllabus. Before you read any particular assignment or case,\nlook over your reading outline, paying particular attention to the\noverall topics and "themes." Identify where, in this organization, the\nmaterials to be studied fit. Skim through the entire reading\nassignment (This is the first of several reads). How many pages? How\nmany cases?\n\n17\n\n\x0cBegin to wonder about what you will be reading. Ask yourself some\nmotivational questions about the material. For example, why might I\nwant to know this material? Have I ever had experiences with this\nsubject area? Ask some questions to help identify what you are\nlooking for. For example, read some of the questions in the notes\nfollowing cases or ask yourself what rules or concepts might you be\nexploring and guess what they might mean.\n4. Read thoroughly.\nRead the entire assignment, trying to get a sense of what\'s going on.\nThis will take a long time at the beginning because you will likely\nhave to stop often to look up unfamiliar words or to re-read\nconfusing passages. Do be sure to use references as you read. Look\nup unfamiliar terms in the dictionary (standard and legal). Get\nbackground on concepts from secondary sources. Re-read each\nportion of the assignment (each case, for example) looking for key\nideas and reasoning.\n5. Reflect as you Read.\nEngage your critical mind as you read. Be sure that you are not just\npassively taking in the information, but are searching, questioning,\ncomparing and otherwise thinking as you read. Some students do this\nby reading out loud if their mind wanders. Many students find it\nuseful to highlight, underline and annotate the text as they read.\nArgue with the text as you read. Compare what you are reading to\nwhat you already know. Whatever technique you use -- keep thinking.\nand Re-read.\nOnce is rarely enough. On each subsequent read, have a different\npurpose and read for that purpose. You might want to re-read to\nunderstand simply what happened in the case, for example. Or you\nmight want to re-read in order to compare how what you have read\ntoday fits with what you read yesterday.\n6. Write.\nBriefing the cases assigned is only one aspect of writing as you read.\nTake notes on other aspects of your reading. Keep a vocabulary list\nand write out definitions for yourself. If you read statutes or rules,\n\n18\n\n\x0cdiagram them or write them in your own words. If there are articles\nor commentary accompanying a case, be sure you summarize the\nmain points in your notes. If you have questions about your readings,\nwrite them down and look for answers.\n7. Review.\nThroughout the semester, you will need to review everything you\nhave read. Review your readings after you have completed your\nnotes, by comparing them with others or inventing and discussing\nproblems raised by the readings. Review with a purpose of\ndiscovering what you know and -- perhaps even more important -what you don\'t know. Generate more questions and then try to\nanswer them.\nAs part of your review, go back to materials that you have read for\nprior classes and review those materials in comparison to the\nmaterials that you have most recently read. Look for connections and\nthemes. Write these ideas down. Review all your notes immediately\nbefore class, skimming through the textbook to be sure that you are\nfamiliar with where to find important points.\n\nCritical Writing Skills: An Introduction to Briefing\nOne of the most important aspects of writing as you read is\n"briefing" the cases in your text. It is the process of preparing the\nbrief that provides the primary benefit, not the brief itself. The\nprocess of briefing helps you concentrate on key ideas, compare one\ncase with another, organize your analysis, and review your materials.\nRemember that your purpose in reading cases is NOT TO LEARN\nABOUT THE CASE -- the case is simply one fact situation to which\none court has responded. MUCH OF WHAT YOU NEED TO\nGET OUT OF A CASE IS NOT TO BE FOUND IN THE\nEXPRESS WORDS OF THE CASE.\nYou study cases because they provide:\nRULES & DOCTRINES -- You must learn to identify the legal\nconcepts and rules that are applied in cases. Learning the rules is the\neasy part. Interpreting the rules is the difficulty. Remember that\nRULES ARE TOOLS to solve problems --they are not formulae to\n\n19\n\n\x0cprovide answers. So identify and memorize the language of the rules,\nyes, but also work on identifying all the different uses that could be\nmade of the rule.\nARGUMENTS -- Cases provide examples of techniques of\nargumentation that can be applied to all kinds of situations. They also\nprovide fact situations to which you can apply your own\nargumentation skills, creating arguments that are different from or\nmore carefully crafted than those provided by the court.\nPOLICIES -- Cases implicate public policy considerations that the\njudges may or may not expressly discuss but which you need to\nexplore.\nSTRATEGIES AND OUTCOMES -- Cases provide examples of\nchoices and outcomes that affect clients. You need to think about\nwhether the choices made were wise and about what options were\navailable. These are matters rarely discussed explicitly in the case.\nEspecially during the first month of classes, you will need to read the\ncases several times before you can produce a final brief. The "policy\nanalysis" and "personal analysis" sections may be rather thin as you\nconcentrate on describing opinion itself. After several weeks, you will\nbe able to brief the cases with less effort and fewer readings. Now,\nthe time saved should be spent thinking about analysis. The focus of\nyour study will shift from the top sections of the briefing format to\nthe bottom.\n\nA Sample Briefing Format\nCitation: Name of the case, date decided, court\nStatement of the Case: "Who is suing whom for what remedy on\nwhat basis?" (from viewpoint of trial court)\nStatement of Facts: Chronological summary of all relevant facts\n(sometimes drawing a diagram helps)\nProcedure Below: What happened in the lower court? Who won?\nResult on Appeal: Was the trial court reversed or affirmed?\n\n20\n\n\x0cWhat is the issue? There are usually two kinds of issues: "what is\nthe law? (e.g., which rule should the court apply? or which\ninterpretation of the rule should the court adopt?)" or "how does the\nlaw apply to these facts? (e.g., should these facts be characterized in\nsuch a way as to fit within the rule or outside the rule?)". A third\nissue: "what are the facts" is equally important in practice, but we will\nnot usually be addressing those issues in this course. Note that one\ncase may contain several issues.\nArguments and Analysis of Appellant: Why is the trial court\nwrong and what legal theory or interpretation should have been\napplied?\nArguments and Analysis of Appellee: What is the trial court\'s legal\ntheory or application and why is that correct?\nWhat is the Holding? One way to think of a holding is: "Under this\ndoctrine of law, if these facts occur, then this condition of the law\nhas been fulfilled."\nPolicy Analysis: What public policies or goals are furthered by the\ncourt\'s choice? What would be the effect if the court has chosen an\nalternative rule or application of the rule? How does this opinion fit\nin with others you have read on the same topic? How does the law\napplied in this case fit into the overall scheme?\nPersonal Analysis: Do you agree with the holding? How far do you\nthink the next court would be willing to extend the holding? Do you\nagree with the results? Is it fair? Do you agree with the analysis? Is it\nlogical and consistent? What\'s likely to happen now to the people and\nthe property involved? What would you have done differently if you\nhad represented one of the parties or had been the judge? Why is this\ncase in the book? Why did the professor assign it? How might it be\ntested?\nHoldings and "What\'s the Answer"\nStudents often have the most difficulty in arriving at a \'holding\' in\ntheir brief. This is often the point at which students approach their\nprofessors and ask "Did I get the holding right?" or "What\'s the\nanswer?" The "answer" to all legal questions is the same: IT\n\n21\n\n\x0cDEPENDS. What the holding of a case is depends on how you\ninterpret the result of the case in light of the facts and the court\'s\nreasoning. Students must understand that a holding is not the same as\na \'rule\', which is the law the court applies to the facts in the case to\nreach the holding. It is also different than the court\'s \'rationale\' for\nwhy it chose to apply the rule in the way it did. Over time, a series of\n\'holdings\' in related cases, crystallize into \'rules\'. Even when the court\nsays "We hold..." the statement they make may not be what develops\ninto the "holding" of the case as other courts apply that case.\nSo, there is no "right or wrong" holding -- only interpretations of\ncases that are more strongly supported and better reasoned that\nothers -- and when is a particular interpretation "better reasoned"? IT\nDEPENDS on the use you wish to make of the holding. If you are\ndefending someone for whom the interpretation of a holding will be\nfavorable precedent and you can make a good argument that that\ninterpretation is correct, then that is the better holding. If you are\ntrying to predict how a future court will apply a case, the\ninterpretation that results in a holding that best predicts the future is\nthe "better" holding -- at least until the future changes.\nHere is one way of looking at a holding that can help to reflect the\ncomplexity of this concept.\nSuppose a court has a case in which A discovers\nthat B has a son who requires a special\noperation. Out of the goodness of A\'s heart, A\npays for the operation. B discovers A\'s\ngenerosity and then promises to pay for A\'s\neducation. B later reneges on the promise, just\nas A is about to finish the degree program and\nbegin a teaching job. The court finds that B has\nno legal obligation to pay for A\'s education (the\nresult). The holding might be phrased as\nfollows:\n\nFunctional Result:\nThe Court will not grant restitution to a Plaintiff who performs a\nDefendant\'s obligation...\nFacts Tending to Lead to Result\n\n22\n\n\x0cAT LEAST IF:\n1) Defendant has not requested Plaintiff to perform the\nobligation\n2) Plaintiff and Defendant have not entered into a contract\nunder which Defendant agreed to reimburse Plaintiff\n3) There existed an alternative remedy through which someone\ncould have required Defendant to perform its obligation itself\nFacts Tending to Lead to Opposite Result\nEVEN THOUGH:\n1) Defendant did have the obligation\n2) Performance of the obligation was of great public importance\n3) Plaintiff performed Defendant\'s obligation\n4) Plaintiff\'s performance of the obligation conferred a benefit\non Defendant.\n5) Plaintiff had an obligation (e.g. teaching contract) which\ncould not be performed unless Defendant\'s obligation was\nperformed\nFacts Tending to Mitigate the Effect of the "Even Though" Facts\nAT LEAST SO LONG AS:\n1) Plaintiff was not an intended beneficiary of the statute or\ncontract (or other source) creating Defendant\'s obligation\n2) Plaintiff has some other remedy for any damage Plaintiff\nsuffered by reason of his inability to perform his obligation\n(e.g. teaching contract)\n\nThe Importance of Vocabulary\nIt is tempting for students to gloss over words that they don\'t\nunderstand. Many professional schools\xe2\x80\x99 students have developed\ntheir vocabulary to the point that, when faced with unfamiliar words,\nthey simply guess their meanings from context and let it go at that.\nThey have gotten out of the dictionary habit. In law school, while\n\n23\n\n\x0cguessing meaning from context is not a bad first step, the dictionary\nhabit is critical. Every word that you pass over (whether legal or not)\ncreates a hole in your understanding that has a cumulative effect on\nyour ability to master the material.\nThe study of law revolves around the learning of a whole new\nlanguage. Some legal words are foreign looking and sounding (for\nexample, "res judicata" "mens rea"); others look like words that you\nthink you know (judgment, reasonableness, intent) but have peculiar\nand complex legal meaning. Often, the meaning of these terms is the\nkey issue in interpreting cases and statutes. Having the vocabulary of\nthe law at hand is essential to being able to research the law. The fact\nthat separate (very voluminous) dictionaries exist for legal terms\nshould indicate to you the importance of acquiring and mastering a\nlegal vocabulary.\nThus, part of your daily class preparation should include looking up\nand striving to understand the definitions for every unfamiliar word.\nAt first, this will mean that you will be stopping to look up words\nnearly every other sentence. Take heart. As the semester progresses\nand your legal vocabulary expands, however, you will be find fewer\nand fewer unfamiliar words. You can use a classic legal dictionary\nsuch as Black\xe2\x80\x99s or Ballentine\xe2\x80\x99s, which courts cite as authoritative\nsources of legal definitions; however, if you find online legal\ndictionaries more convenient, these are fine for class preparation. Just\nbe sure that your online sources are from a reliable source \xe2\x80\x93 learning\nyour vocabulary from the notes of another 1L student posted to the\nweb is not necessarily the best route to accurate understanding.\nThe task of becoming skillful in case analysis is indeed difficult and\ntime consuming. It may take hours to comprehend a single opinion.\nIf you apply yourself diligently, however, and if you have a realistic\noutlook of what must be done, you will find that the time needed to\nhandle opinions will tend to decrease. What will increase from this\napproach will be your satisfaction in being able to use case law\neffectively in the resolution of legal problems and effectively research\nlaw in order to learn more.\n\n24\n\n\x0cGuided Reading of a Case\nLet\xe2\x80\x99s try applying the SQ6R principles with a simple case involving a\nlost animal. On the left side of the page is an opinion in an actual\ncase. On the right side of the page is a guide to what you should be\ngetting out of the case as you read it. Remember, it may take more\nthan one reading.\n\n25\n\n\x0cWhat you read\xe2\x80\xa6\n\nWhat you may\nthink\xe2\x80\xa6\n\nWhat you should\ndo\xe2\x80\xa6\n\n(Front of the Book)\nProperty: Cases & Materials\n\nI am studying Property\n\nRESEARCH the term:\n\xe2\x80\x9cn. anything that is owned by\na person or entity.\xe2\x80\x9d\n\n(Table of Contents)\nI. Basic Concepts of Ownership\nA. Acquisition\n1. Discovery, Capture\n\nThe point of my study is\nto learn about how a\nperson acquires ownership\nrights to property.\n\nREFLECT \xe2\x80\x9cwhat do I\nknow about how I\nacquire ownership?\xe2\x80\x9d\n\xe2\x80\x9cWhat is the significance\nof discovering property?\nCapturing property?\nWhen in my practice\nmight I encounter these\nideas?\xe2\x80\x9d\n\nEdward CONTI, Plaintiff,\nv.\nASPCA and Diana Henley, Defendants\n\nWho is suing whom?\nThis looks like a civil\nlawsuit because it is\nbetween private\nindividuals rather than the\nstate prosecuting a\ncriminal case\n\nREAD: learn who the\npersons are involved in\nthe dispute.\nWRITE: \xe2\x80\x9cwho is suing\nwhom\xe2\x80\x9d in terms of their\nstatus in the lawsuit\n(here, e.g., \xe2\x80\x9cA person\nwho found a parrot is\nsuing the organization\nthat claims that they\nwere the true owners of\nthe parrot\xe2\x80\x9d)\n\nCivil Court, City of New York,\nQueens County, Part 10.\n\nThis is a trial-level court,\nnot the typical appellate\nopinion. I wonder why a\ntrial court opinion is\nincluded in the textbook?\n\nREAD the opinion\nrecognizing that the trial\ncourt has to find both\nfacts and law.\n\nJan. 30, 1974.\nMARTIN RODELL, Judge.\n\nIs there anything\nparticularly significant\nabout this year? Have I\nheard of this judge before?\n\nREAD and keep your\neyes and ears open for\nany information that\nmakes it particularly\nimportant when and by\nwhom the opinion was\nwritten.\n\n26\n\n\x0cChester is a parrot. He is fourteen\ninches tall, with a green coat, yellow\nhead and an orange streak on his\nwings. Red splashes cover his left\nshoulder. Chester is a show parrot,\nused by the defendant ASPCA in\nvarious educational exhibitions\npresented to groups of children.\nOn July 5th, 1973, the plaintiff, who\nresides in Belle Harbor, Queens\nCounty, had the occasion to see a\ngreen-hued parrot with a yellow\nhead and red splashes seated in his\nbackyard. His offer of food was\neagerly accepted by the bird. This\nwas repeated on three occasions\neach day for a period of two weeks.\nThis display of human kindness was\nrewarded by the parrot\'s finally\nentering the plaintiff\'s home, where\nhe was placed in a cage.\n\nThese are facts.\nFor class, I need to be able\nto explain what happened.\nFor the final exam, I may\nhave to be able to compare\nthese facts and the outcome\nto a different set of facts.\n\nThe next day, the plaintiff phoned\nthe defendant, ASPCA, and\nrequested advice as to the care of a\nparrot he had found. Thereupon the\ndefendant sent two representatives\nto the plaintiff\'s home. Upon\nexamination, they claimed that it was\nthe missing parrot, Chester, and\nremoved it from the plaintiff\'s\nhome.\nUpon refusal of the defendant,\nASPCA, to return the bird, the\nplaintiff now brings this action in\nreplevin.\n\nI need to pay attention to\nwhich of these facts were\nespecially important to the\noutcome of the case.\nConti sues in \xe2\x80\x9creplevin\xe2\x80\x9d \xe2\x80\x93\nI wonder what that\nmeans? I wonder what he\nwants?\n\n27\n\nREAD: Get the story\nclear in your mind\nWRITE or diagram that\nstory. For example,\nASPCA has a parrot that\nis trains.\nParrot flies away and\nASPCA tries to recover\nall day.\nConti finds the bird,\nlures it into a cage after a\nlot of effort and wants to\nkeep it. He contacts the\nASPCA for advice about\nkeeping it.\nThe ASPCA claims that\nthe parrot is theirs and\ntakes it.\nConti files this suit to get\nback the parrot.\nRECITE the story to\nsomeone else.\nRESEARCH \xe2\x80\x93 look up\nReplevin in the\ndictionary: \xe2\x80\x9cAn action in\nwhich the owner or one who\nhas a general or special\nproperty in a thing taken or\ndetained by another seeks to\nrecover possession in specie,\nand sometimes the recovery of\ndamages as an incident of the\ncause.\xe2\x80\x9d\nLook up words in the\ndefinition: \xe2\x80\x9cin specie\xe2\x80\x9d =\nthe thing itself\nREFLECT \xe2\x80\x93 What\ndifference does it make\nthat Conti wants the\nparrot returned rather\nthan money damages?\nWRITE the definition in\nyour own words.\n\n\x0cThe issues presented to the Court\nare twofold: One, is the parrot in\nquestion truly Chester, the missing\nbird? Two, if it is in fact Chester,\nwho is entitled to its ownership?\n\nThe plaintiff presented witnesses\nwho testified that a parrot similar to\nthe one in question was seen in the\nneighborhood prior to July 5, 1973.\nHe further contended that a parrot\ncould not fly the distance between\nKings Point and Belle Harbor in so\nshort a period of time, and therefore\nthe bird in question was not in fact\nChester.\nThe representatives of the\ndefendant, ASPCA, were categorical\nin their testimony that the parrot\nwas indeed Chester, that he was\nunique because of his size, color and\nhabits. They claimed that Chester\nsaid \'hello\' and could dangle by his\nlegs. During the entire trial the\nCourt had the parrot under close\nscrutiny, but at no time did it exhibit\nany of these characteristics. The\nCourt called upon the parrot to\nindicate by name or other\nmannerism an affinity to either of\nthe claimed owners. Alas, the parrot\nstood mute.\nUpon all the credible evidence the\nCourt does find as a fact that the\nparrot in question is indeed Chester\nand is the same parrot which\nescaped from the possession of the\nASPCA on June 28, 1973.\n\nGreat! The court identifies\nthe issues for me!\n{BEWARE! What the\ncourt says the issue is\nand how your\nprofessor wants you\nto recite the issue or\nwhat your analysis\nmay require as the\nissue to be framed can\nbe quite different. So\ndon\xe2\x80\x99t stop thinking\nfor yourself!}\nThis is the court\xe2\x80\x99s analysis\nof the fact issue.\nDo I agree?\nHow might I have\nrepresented Conti\ndifferently?\n\n28\n\nWRITE a list of the\nissues:\nIs this Chester? (fact\nissue)\nWho owns Chester?\n(mixed issue of fact and\nlaw)\nRe-READ the facts\nREFLECT - try to\ndecide for yourself what\nthe resolution of these\nissues should be.\nREAD and note what\nthe court decided.\nFactual issues are rarely\nimportant in most 1L\nclasses. Rather, because\ncases are on appeal, the\nfactual issues have been\nresolved. If the court\nrecites the factual\ndispute, the important\nthing to note is what the\ncourt is required to\nbelieve and not argue\nwith that conclusion.\n\n\x0cThe Court must now deal with the\nplaintiff\'s position, that the\nownership of the defendant was a\nqualified one and upon the parrot\'s\nescape, ownership passed to the first\nindividual who captured it and\nplaced it under his control.\n\nWhat does it mean that\nthe ownership was\n\xe2\x80\x9cqualified\xe2\x80\x9d?\n\n29\n\nRESEARCH - Look up\n\xe2\x80\x9cQualified\xe2\x80\x9d \xe2\x80\x93 find a\ndefinition that has to do\nwith Qualification (as in\nfitness). (You will likely\ndecide that can\xe2\x80\x99t be the\nmeaning the court has in\nmind here). Look at all\nthe definitions of terms\nwith \xe2\x80\x9cqualified\xe2\x80\x9d for one\nthat seems relevant.\nRESEARCH the\ndefinition of \xe2\x80\x9cqualified\nowner\xe2\x80\x9d = \xe2\x80\x9dThe owner of a\nqualified interest in a thing.\xe2\x80\x9d\nRead the definition of\n\xe2\x80\x9cQualified interest\xe2\x80\x9d =\n\xe2\x80\x9cAn interest in property\nunder which control falls\nshort of the absolute, the\nproperty not being objectively\nand lawfully appropriated to\none\'s use in exclusion of all\nother persons.\xe2\x80\x9d\nREFLECT \xe2\x80\x93 Does this\ndefinition help you\nunderstand the concept?\nIf you still feel like you\ndon\xe2\x80\x99t understand, mark\nyour notes for later\nREVIEW to see if you\nunderstand it better later.\n\n\x0cThe law is well settled that the true\nowner of lost property is entitled to\nthe return thereof as against any\nperson finding same. (In re Wright\'s\nEstate, 15 Misc.2d 225, 177 N.Y.S.2d\n410 (1958) (36A C.J.S. Finding Lost\nGoods s 3). This general rule is not\napplicable when the property lost is\nan animal. In such cases, the Court\nmust inquire as to whether the\nanimal was domesticated or ferae\nnaturae (wild).\nWhere an animal is wild, its owner\ncan only acquire a qualified right of\nproperty, which is wholly lost when\nit escapes from its captor with no\nintention of returning.\n\nOk, now we\xe2\x80\x99re getting to\nsome LAW \xe2\x80\x93 and it\xe2\x80\x99s\nwritten in a really oldfashioned style. And\nanimals have their own\nrule and it\xe2\x80\x99s in Latin\nmuch less! This must be\nhow lawyers are supposed\nto write.\n{BEWARE! This is\nthe kind of thinking\nthat gets you into\ntrouble \xe2\x80\x93 many\nopinions are written\nvery badly and\nopinions that were\nwritten decades ago,\neven by as famous a\nlegal writer as Judge\nRodell, reflect a style\nof their time, not\ncurrent best legal\nusage. The broader\npoint here \xe2\x80\x93 be\nCRITICAL in your\nreading!}\n\n30\n\nREAD the statement of\nthe rules that the court\nmay apply in this case.\nREFLECT on where the\nrule comes from (e.g.,\nhere, a prior case and a\nC.J.S. article \xe2\x80\x93 you will\nlearn that C.J.S. is the\nabbreviation for a legal\nencyclopedia. If you are\nreading a case and see an\nunfamiliar source, stop\nand ask what that source\nmight be and why the\ncourt uses it).\nRESEARCH Latin\nterms (even when the\ntext defines them as it\ndoes here), not only so\nyou can better\nunderstand the term, but\nso you are comfortable\nbeing able to pronounce\nthe term.\nRECITE - Explain the\nrule(s) in your own\nwords.\nREFLECT - What parts\nof the rule are clear?\nWhat parts seem subject\nto some differing\ninterpretations?\n\n\x0cThus, in Mullett v. Bradley, 24 Misc.\n695, 53 N.Y.S. 781 (1898), an\nuntrained and undomesticated sea\nlion escaped after being shipped\nfrom the West to the East Coast.\nThe sea lion escaped and was again\ncaptured in a fish pond off the New\nJersey Coast. The original owner\nsued the finder for its return. The\ncourt held that the sea lion was a\nwild animal (ferae naturae), and\nwhen it returned to its wild state, the\noriginal owner\'s property rights were\nextinguished. In Amory v. Flyn, 10\nJohns. (N.Y.) 102 (1813), plaintiff\nsought to recover geese of the wild\nvariety which had strayed from the\nowner. In granting judgment to the\nplaintiff, the court pointed out that\nthe geese had been tamed by the\nplaintiff and therefore were unable\nto regain their natural liberty. This\nimportant distinction was also\ndemonstrated in Manning v.\nMitcherson, 69 Ga. 447, 450--451, 52\nA.L.R. 1063 (1882), where the\nplaintiff sought the return of a pet\ncanary. In holding for the plaintiff,\nthe court stated, \'To say that if one\nhas a canary bird, mocking bird,\nparrot, or any other bird so kept,\nand it should accidentally escape\nfrom its cage to the street, or to a\nneighboring house, that the first\nperson who caught it would be its\nowner is wholly at variance with all\nour views of right and justice.\'\n\nThe court is explaining\nthe rule with examples.\n\n31\n\nREAD and REFLECT Identify the elements or\nfactors to consider in\nlearning the rules.\nFirst, read what the court\nsays is important:\nHere for example, the\ncourt says that being\n\xe2\x80\x9cunable to regain their\nnatural liberty\xe2\x80\x9d is an\n\xe2\x80\x9cimportant distinction\xe2\x80\x9d\nbetween tame and wild\nanimals. (Think: the sea\nlion returned to its\nnatural state but the\ngeese and the canary\ndidn\xe2\x80\x99t).\nSecond, try to identify\nother differences and\nsimilarities from the\nlanguage of the case that\nexplains the difference in\ncategory:\nHere, for example, the\ncourt calls the sea lion\n\xe2\x80\x9cuntrained and\nundomesticated\xe2\x80\x9d but\npoints out that the geese\nwere \xe2\x80\x9ctamed\xe2\x80\x9d and the\ncanary was a \xe2\x80\x9cpet\xe2\x80\x9d\nWRITE \xe2\x80\x93 list the key\nfactors or elements you\nhave identified\nREFLECT - Think of\nthese differences and try\nto explain the differences\nin your own words \xe2\x80\x93\nwhat makes an animal\n\xe2\x80\x9ctame\xe2\x80\x9d? \xe2\x80\x9cdomesticated\xe2\x80\x9d?\na \xe2\x80\x9cpet\xe2\x80\x9d? What is an\nanimal\xe2\x80\x99s \xe2\x80\x9cnatural\nliberty\xe2\x80\x9d?\n\n\x0cThe Court finds that Chester was a\ndomesticated animal, subject to\ntraining and discipline. Thus the rule\nof ferae naturae does not prevail and\nthe defendant, as true owner, is\nentitled to regain possession.\n\nThis is the court\xe2\x80\x99s\ndecision \xe2\x80\x93but it\ndoesn\xe2\x80\x99t really explain\nits decision much.\nThis isn\xe2\x80\x99t the court\xe2\x80\x99s\nholding because it\nisn\xe2\x80\x99t stated as a rule\nfor future cases, using\nthe facts and law of\nthis case.\n\nThe Court wishes to commend the\nplaintiff for his acts of kindness and\ncompassion to the parrot during the\nperiod that it was lost and was\ngratified to receive the defendant\'s\nassurance that the first parrot\navailable would be offered to the\nplaintiff for adoption.\n\nIsn\xe2\x80\x99t that nice? I\nwonder if it is legally\nsignificant.\n\nJudgment for defendant dismissing\nthe complaint without costs.\n\nSo this means ASPCA\nwins.\n\nREAD the court\xe2\x80\x99s\nreasoning.\nREFLECT - If the\ncourt\xe2\x80\x99s reasoning is\nconclusory (as this is) or\nconfused or simply\nunsatisfactory, try to\nexplain how the court\ncould have reasoned its\nway to this conclusion.\nWRITE out or RECITE\nto someone else that\nreasoning.\nREFLECT on some of\nthe ways in which the dispute may have been\nresolved without trial?\nWhy do you suppose\nthis case didn\xe2\x80\x99t settle?\nConsider the practical\naspects of the type of\ndispute you are reading\nabout.\nREFLECT \xe2\x80\x93 does the\noutcome surprise you?\n\nCase #2\nHere is a more typical law school case. Footnotes point out how you\nshould be reading this case.\n\nThomas and wife v. Winchester3\nCourt of Appeals of New York 4\nDecided July 1852 5\n6 NY 397\nRUGGLES, Ch. J.6 delivered the opinion of the court.\nThis is an action brought to recover damages from the\ndefendant for negligently7 putting up, labeling and selling as and\nfor the extract of dandelion, which is a simple and harmless\nmedicine, a jar of the extract of belladonna8, which is a deadly\npoison; by means of which the plaintiff Mary Ann Thomas, to\nwhom, being sick, a dose of dandelion was prescribed by a\n\n32\n\n\x0cphysician, and a portion of the contents of the jar, was\nadministered as and for the extract of dandelion, was greatly\ninjured.\nThe facts proved were briefly these: Mrs. Thomas being in ill\nhealth, her physician prescribed for her a dose of dandelion. Her\nhusband purchased what was believed to be the medicine\nprescribed, at the store of Dr. Foord, a physician and druggist in\nCazenovia, Madison county, where the plaintiffs reside.\nA small quantity of the medicine thus purchased was\nadministered to Mrs. Thomas, on whom it produced very\nalarming effects; such as coldness of the surface and extremities,\nfeebleness of circulation, spasms of the muscles, giddiness of\nthe head, dilation of the pupils of the eyes, and derangement of\nmind. She recovered however, after some time, from its effects,\nalthough for a short time her life was thought to be in great\ndanger. The medicine administered was belladonna, and not\ndandelion. The jar from which it was taken was labeled "1/2 lb.\ndandelion, prepared by A. Gilbert, No. 108, John-street, N. Y.\nJar 8 oz." It was sold for and believed by Dr. Foord to be the\nextract of dandelion as labeled. Dr. Foord purchased the article\nas the extract of dandelion from Jas. S. Aspinwall, a druggist at\nNew-York. Aspinwall bought it of the defendant as extract of\ndandelion, believing it to be such. The defendant was engaged at\nNo. 108 John-street, New-York, in the manufacture and sale of\ncertain vegetable extracts for medicinal purposes, and in the\npurchase and sale of others. The extracts manufactured by him\nwere put up in jars for sale, and those which he purchased were\nput up by him in like manner. The jars containing extracts\nmanufactured by himself and those containing extracts\npurchased by him from others, were labeled alike. Both were\nlabeled like the jar in question, as "prepared by A. Gilbert."\nGilbert was a person employed by the defendant at a salary, as\nan assistant in his business. The jars were labeled in Gilbert\'s\nname because he had been previously engaged in the same\nbusiness on his own account at No. 108 John-street, and\nprobably because Gilbert\'s labels rendered the articles more\nsalable. The extract contained in the jar sold to Aspinwall, and\nby him to Foord, was not manufactured by the defendant, but\n\n33\n\n\x0cwas purchased by him from another manufacturer or dealer.\nThe extract of dandelion and the extract of belladonna resemble\neach other in color, consistence, smell and taste; but may on\ncareful examination be distinguished the one from the other by\nthose who are well acquainted with these articles. Gilbert\'s labels\nwere paid for by Winchester and used in his business with his\nknowledge and assent. 9\nThe defendants\' counsel moved for a nonsuit10 on the following\ngrounds:\nThat the action could not be sustained, as the defendant was the\nremote vendor of the article in question: and there was no\nconnection, transaction or privity11 between him and the\nplaintiffs, or either of them.\n* * * *12\nThe judge overruled the motion for a nonsuit, and the\ndefendant\'s counsel excepted.\nThe case depends on the first point taken by the defendant on\nhis motion for a nonsuit; and the question is, whether the\ndefendant, being a remote vendor of the medicine, and there\nbeing no privity or connection between him and the plaintiffs,\nthe action can be maintained.13\nIf, in labeling a poisonous drug with the name of a harmless\nmedicine, for public market, no duty was violated by the\ndefendant, excepting that which he owed to Aspinwall, his\nimmediate vendee, in virtue of his contract of sale, this action\ncannot be maintained.14 If A build a wagon and sell it to B, who\nsells it to C, and C hires it to D, who in consequence of the\ngross negligence of A in building the wagon is overturned and\ninjured, D cannot recover damages against A, the builder. A\'s\nobligation to build the wagon faithfully, arises solely out of his\ncontract with B. The public have nothing to do with it.\nMisfortune to third persons, not parties to the contract, would\nnot be a natural and necessary consequence of the builder\'s\nnegligence; and such negligence is not an act imminently\ndangerous to human life.\n\n34\n\n\x0cSo, for the same reason, if a horse be defectively shod by a\nsmith, and a person hiring the horse from the owner is thrown\nand injured in consequence of the smith\'s negligence in shoeing;\nthe smith is not liable for the injury. The smith\'s duty in such\ncase grows exclusively out of his contract with the owner of the\nhorse; it was a duty which the smith owed to him alone, and to\nno one else. And although the injury to the rider may have\nhappened in consequence of the negligence of the smith, the\nlatter was not bound, either by his contract or by any\nconsiderations of public policy or safety, to respond for his\nbreach of duty to any one except the person he contracted with.\nThis was the ground on which the case of Winterbottom v. Wright,\n(10 Mees. & Welsb. 109,) was decided. A contracted with the\npostmaster general to provide a coach to convey the mail bags\nalong a certain line of road, and B. and others, also contracted to\nhorse the coach along the same line. B and his co-contractors\nhired C, who was the plaintiff, to drive the coach. The coach, in\nconsequence of some latent defect, broke down; the plaintiff\nwas thrown from his seat and lamed. It was held that C could\nnot maintain an action against A for the injury thus sustained.\nThe reason of the decision is best stated by Baron Rolfe. A\'s\nduty to keep the coach in good condition, was a duty to the\npostmaster general, with whom he made his contract, and not a\nduty to the driver employed by the owners of the horses. 15\nBut the case in hand stands on a different ground. The\ndefendant was a dealer in poisonous drugs. Gilbert was his agent\nin preparing them for market. The death or great bodily harm of\nsome person was the natural and almost inevitable consequence\nof the sale of belladonna by means of the false label. 16\nGilbert, the defendant\'s agent17, would have been punishable for\nmanslaughter18 if Mrs. Thomas had died in consequence of\ntaking the falsely labeled medicine. Every man who, by his\nculpable negligence, causes the death of another, although\nwithout intent to kill, is guilty of manslaughter. (2 R. S. 662, \xc2\xa7\n19.) A chemist who negligently sells laudanum in a phial labeled\nas paregoric, and thereby causes the death of a person to whom\nit is administered, is guilty of manslaughter. (Tessymond\'s case,\n\n35\n\n\x0c1 Lewin\'s Crown Cases, 169.) "So highly does the law value\nhuman life, that it admits of no justification wherever life has\nbeen lost and the carelessness or negligence of one person has\ncontributed to the death of another. (Regina v. Swindall, 2 Car. &\nKir. 232-3.) And this rule applies not only where the death of\none is occasioned by the negligent act of another, but where it is\ncaused by the negligent omission of a duty of that other. (2 Car.\n& Kir. 368, 371.) Although the defendant Winchester may not\nbe answerable criminally for the negligence of his agent, there\ncan be no doubt of his liability in a civil action, in which the act\nof the agent is to be regarded as the act of the principal.\nIn respect to the wrongful and criminal character of the\nnegligence complained of, this case differs widely from those\nput by the defendant\'s counsel. No such imminent danger\nexisted in those cases. In the present case the sale of the\npoisonous article was made to a dealer in drugs, and not to a\nconsumer. The injury therefore was not likely to fall on him, or\non his vendee who was also a dealer; but much more likely to be\nvisited on a remote purchaser, as actually happened.19 The\ndefendant\'s negligence put human life in imminent danger. Can\nit be said that there was no duty on the part of the defendant, to\navoid the creation of that danger by the exercise of greater\ncaution?20 or that the exercise of that caution was a duty only to\nhis immediate vendee, whose life was not endangered? The\ndefendant\'s duty arose out of the nature of his business and the\ndanger to others incident to its mismanagement. Nothing but\nmischief like that which actually happened could have been\nexpected from sending the poison falsely labeled into the\nmarket; and the defendant is justly responsible for the probable\nconsequences of the act. The duty of exercising caution in this\nrespect did not arise out of the defendant\'s contract of sale to\nAspinwall. The wrong done by the defendant was in putting the\npoison, mislabeled, into the hands of Aspinwall as an article of\nmerchandise to be sold and afterwards used as the extract of\ndandelion, by some person then unknown. The owner of a\nhorse and cart who leaves them unattended in the street is liable\nfor any damage which may result from his negligence. (Lynch v.\nNurdin, 1 Ad. & Ellis, N. S. 29; Illidge v. Goodwin, 5 Car. & Payne,\n\n36\n\n\x0c190.) The owner of a loaded gun who puts it into the hands of a\nchild by whose indiscretion it is discharged, is liable for the\ndamage occasioned by the discharge. (5 Maule & Sel. 198.)21 The\ndefendant\'s contract of sale to Aspinwall does not excuse the\nwrong done to the plaintiffs. It was a part of the means by\nwhich the wrong was effected. The plaintiffs\' injury and their\nremedy would have stood on the same principle, if the\ndefendant had given the belladonna to Dr. Foord without price,\nor if he had put it in his shop without his knowledge, under\ncircumstances which would probably have led to its sale on the\nfaith of the label.\nIn Longmeid v. Holliday, (6 Law and Eq. Rep. 562,) the distinction\nis recognized between an act of negligence imminently\ndangerous to the lives of others, and one that is not so. In the\nformer case, the party guilty of the negligence is liable to the\nparty injured, whether there be a contract between them or not;\n22in the latter, the negligent party is liable only to the party with\nwhom he contracted, and on the ground that negligence is a\nbreach of the contract.\nJudgment affirmed.\n\nReading the Law from a Series of Cases\nNot only do you need to be able to "brief" each case, you must be\nable to read the cases together. Sometimes casebooks provide two\ncases with very similar facts but opposite outcomes. Your task in\npreparing for class is to explain ("distinguish" or "reconcile") why\neach case came out the way it did. Sometimes, the two cases simply\nrepresent majority and minority approaches to the same rule. Other\ntimes, one case represents the general rule and subsequent cases\nrepresent extensions, modifications, exceptions, or reversals. You\nneed to be able to read these cases together to identify what the law\nhas become.\nFor example, assume that you have read two cases on products\nliability, similar to Thomas v. Winchester, in your torts class: Adams v.\nBurns involving a gun and Appleton v. Butler involving a kerosene lamp.\nThe plaintiff won in one case and lost in the other. You have now\n\n37\n\n\x0cbeen presented with a hypothetical and asked to predict or argue for\na result. One way to learn to identify rules and analogize cases is to\ncreate a chart of the relevant cases and generalize the facts broadly or\nnarrowly to fit your case. Complete the chart below to practice this\nskill.\nAssume that you have a client, Alberts, who is suing Berg for injuries\nthat resulted when he ate some rat poison labeled aspirin. There are\ntwo cases in your jurisdiction that you think might apply as\nprecedent. As you read those cases, you will be:\n\xef\x82\xb7\n\nchoosing facts that are important to the outcome\n\n\xef\x82\xb7\n\ncharacterizing those facts in a generic way that allows ...\n\n\xef\x82\xb7\n\ncomparing the facts of those cases to the facts of your case to\neither\no making analogies from the case (argue that your facts\nare the same) to your facts if the outcome is the same\nas the outcome you desire OR\no distinguishing the case (your facts are different) from\nyour facts if the outcome is not favorable\n\n\xef\x82\xb7\n\nexplaining WHY the similarities or differences you have\nidentified are important (this requires some rule and theory\nbuilding).\n\n38\n\n\x0cFact\nCharacterization\n\nFact\nCharacterization\nFact\nCharacterization\nFact\nCharacterization\nFact\nCharacterization\nResults\n\nClient\nSituation\nAlberts\nSeller\n\nBottle of\npills\nLabeled by\nAlberts\nAlberts not\naware of\npoison\nBerg took\npill, became\nill\n???\n\nCase #1\nAdams\nSellerManufacture\nr\nGun\n\nCase #2\nAppleton SellerManufacturer\n\nA told B gun\nwas safe\nA knew of\ndefect\n\nA said nothing\nabout safety\nA didn\'t know\nof defect\n\nBurns fired\ngun, hurt\n\nButler lit lantern,\nhurt\n\nAdams liable\n\nAppleton not\nliable\n\nKerosene Lamp\n\nHow do you decide what facts are important to compare or what\nexplanations can be used to justify your comparisons? The opinions\nthemselves may provide some clues, but you need to learn to read\nbeyond what the court says and look to what it does. By examining\nfacts, and asking "So what" repeatedly about each difference and\nsimilarity in facts, you will soon discover several possible reasons\nbeyond the court\'s reasons. This is the route to true understanding.\n\n39\n\n\x0cChapter Three: Getting the\nMost from Class\nWhile class time actually is a very small percentage of the time you\nspend on learning in law school, it is critical time nonetheless.\nResearch establishes that class attendance is one of the most\ninfluential performance factors in predicting law school performance.\n(Kimball, Farmer & Monson, Ability, Effort, and Performance Among\nFirst-Year Law Students at Brigham Young University, 1981 AM. B.\nFOUND. RES. J. 671, 689-92). For class time to extend your learning,\nhowever, you must be deliberate about making the most of that time.\nMost law school classes are very different from traditional\nundergraduate classes. They are not passive exercises, and are not\nintended to tie the material into a neat package. Instead, many law\nschool classes (and certainly those in the first year) are designed to\nbuild on the basic understandings obtained from your careful\npreparation, answer some of your questions, and raise many new\nquestions. The materials in this chapter are designed to help you get\nthe most from those classes.\n\nWhat to Expect in Class (and Why)\nInstruction in first-year law school classes around the country is\nremarkably similar, regardless of the subject, professor, students,\nlocation or school "rank." (Steven I. Friedland, How We Teach: A\nSurvey of Teaching Techniques in American Law Schools, 20 SEATTLE U. L.\nREV. 1, 28 (1996)). In most law school classes, your professor will ask\nquestions and students will answer. This has been characterized the\n"Socratic" method. Some professors are masters of the method. For\nothers, you may need to work harder to understand their questioning\nmethod.\nProfessors differ in the methods used to select students for\nparticipation in this exchange. Some professors call on students\nrandomly, others will ask for volunteers. In some classes, only two or\nthree students will be "on the hot seat" during class; in others, a\n\n40\n\n\x0clarger number of students will be asked to speak. The most important\nthing for you to remember is, even if you are "off the hook" for\nanswering a question, stay as attentive and focused as if the questions\nwere being directed to you.\nStudents often dread the moment at which they are asked to speak in\nclass. For some, any public speaking is difficult, not to mention the\nstress of debate with the professor in the classroom. Other students\nseem to thrive on the opportunity to contribute to class discussion or\nchallenge ideas presented. Why do we have this interaction in the\nclassroom in the first place? What is the point of all this grilling by\nthe professors? Professors have many goals in their questioning\nmethods. Questions might be used simply as a method of keeping\nstudents honest in their class preparation. They may serve the\npurpose of assessing student understanding of basic rules and\ndoctrines before moving to more advanced analysis of those rules.\nPrimarily though, questions in the law school classroom go beyond\nrecitation of rules, doctrines and theory, but also to develop skills of\ncritical, independent reading and thinking, and confident articulation\nof ideas, arguments and analysis. The "Socratic" method can help you\ndevelop these skills if you prepare and participate. You can better\nprepare yourself for the moment when you are called upon (or\nvolunteer) to speak by recognizing the kinds of questions your\nprofessor typically asks.\nOften professors merely ask students to "state the case": which\nbasically consists of reciting the key elements of your case brief. Fine\ntuning your brief to meet the format expected by each professor can\nmake responding to these questions quite straightforward. Other\nforms of questions are a bit more daunting. For example, the\nprofessor may ask you to speculate about the facts ("Why do you\nthink the plaintiff rejected the goods rather than accept and sue for\nthe difference in value?" "Why didn\'t the attorney raise that issue?").\nYou may be asked to respond to or analyze the arguments and\nreasoning in a case or to provide your own arguments and analysis.\n("What do you think of the X rule?" "Why was the court so\nconcerned about Y?" "How could plaintiff have strengthened that\nargument?" "What is the response to that position?"). A classic of law\n\n41\n\n\x0cschool Socratic dialogue requires you to reconcile a series of cases.\nYou may be asked to do that directly. ("How would you distinguish\nthis case from the Roe decision?" )\nOr, the professor may invent a hypothetical in which the facts fall\nsquarely between two cases that you have read and your task is to\nanalyze the boundaries of each case by predicting or arguing for the\noutcome in the hypothetical. Sometimes these hypotheticals are\ndesigned to point out the individual injustice that can result from\nstrict, formal rules. Sometimes they are designed to point out the lack\nof predictability in very open-textured rules. Sometimes they are\nsimply designed to test your ability to apply the rules in a\nstraightforward fashion.\nWhatever the variation on these questioning themes, don\'t be afraid\nto pause and think before you respond. When you are thinking, be\nsure you are thinking about the question, rather than trying to figure\nout what the professor would view as the correct answer. Many\nstudents preface their response with "I\'m not sure if this is what you\nare looking for, but..." If you truly do not understand the question,\nyou can ask for clarification. Rather than simply say "I don\'t\nunderstand" indicate how it is you understand the question ("Did you\nwant the rationale Justice X goes through, or my own rationale"?)\nDon\'t waste your time trying to figure out what the professor thinks\nis the answer though. In the vast majority of cases, the professor\nwants a well-reasoned, well-supported answer -- ANY well-reasoned,\nwell-supported answer.\nThe key to participating successfully in class is thinking as much as\npossible about the assigned material before entering the classroom\nand taking notes that allow you to efficiently and effectively recall and\nextend your thinking when called upon. Whether you choose to\nvolunteer to answer questions or not, always choose to ask questions.\nIf you are confused about a subject, you are likely not alone. You will\nquickly get a clear sense if you are the only one asking for\nclarification.\nFor most students, participating in class is beneficial because it forces\nthem to pay closer attention, listen more attentively, and receive\n\n42\n\n\x0csome feedback on their thinking. A few students, however, use the\nopportunity to speak or ask questions in ways that interfere with\nlearning. You know that you are talking too much if your\ncontributions generally begin with "I knew this person who... "\n"What would happen if..." Leave the story telling and hypothetical\nconstruction to the professor in class, and share your stories with\nyour classmates or the professor outside of class.\n\nMaking and Using Class Notes\nFor most students, it takes a long time to learn how to take good\nnotes. Do not simply write down what the professor says. The\nquestion and answer dialogue between the professor and class is\ndesigned to open the way to deeper understanding (and further\nquestions). Listen carefully to the discussion; the comments of your\nfellow students will often be important and worth writing down.\nMany law students find it difficult to take concise, organized relevant\nnotes during class. Note taking is an important skill because it helps\nyou get the most out of class and gives you a critical resource in\npreparing for exams. Use a note book with relatively fixed pages -one for each class -- with space to include handouts. Wide margined\n(legal ruled) paper is especially helpful for using a key and summary\nmethod based on the Cornell Note Taking Method (Record, Reduce,\nRecite, Reflect, Review).\n\nNote Taking Skills, Problems and Solutions\nWhat do you need in order to take good notes in class?\n1. You must listen. Problems that can block listening are:\na. Can\'t hear the teacher. Solution: move your seat or ask the\nprofessor to speak up.\nb. Can\'t understand the teacher\'s speech. Solution: tape the class\nand listen more slowly; share notes with others; ask the\nprofessor to enunciate.\nc. Become bored; daydream; fall asleep. Solution: maintain body\nposture of attentiveness -- sit up, look at the teacher, give\nnon-verbal feedback to the teacher. Get enough sleep at\n\n43\n\n\x0cnight. Write down five questions to which you want the\nanswers and listen for the answers. Be sure to listen to your\nclassmates and note their analysis, arguments and questions as\nwell as the teachers.\n2. You must think about what you hear. Problems involved that\nblock thinking are:\na. You are expecting "answers." Solution: listen critically -consider questions posed as equally important as answers\ngiven.\nb. What the teacher says is confusing. Solution: change your\nclass preparation, do more background reading, be sure you\nunderstand the vocabulary being used, ask for further\nclarification after class.\n3. You must be able to write. Problems here are:\na. Can\'t read your notes. Solution: slow down, use a lap top\ncomputer.\nb. Can\'t write fast enough. Solution: ask teacher to repeat or\nslow down; use abbreviations; do more note preparation\nbefore class; consider that you may be trying to write too\nmuch.\n4. You must be organized. Problems here are:\na. Teacher is disorganized. Solutions: organize the materials\nbefore coming to class and fit the professor\'s analysis into\nyour own organization; ask questions for connections that\nseem vague.\nb. Papers get disorganized. Solutions: use tabs, cross references,\nand relatively fixed page notebooks for notes. Be sure to\nnumber pages of notes or indicate dates on each page so if\npages fall out, you can put them back in order.\nc. Can\'t see the organization. Solution: more class preparation -especially use of table of contents of text; professor\'s syllabus;\nor course outlines to provide a structure.\n\n44\n\n\x0cTips for Active Listening\n1. Be prepared! Prepare good case briefs and notes for class with\nroom for making comments and notes during class. Review your\ntext readings and your notes just before going to class.\n2. Concentrate on the ideas, not the delivery. Don\'t allow yourself\nto be distracted by mannerisms or delivery of the professor or of\nother students. Concentrate on the WHAT, not the HOW. Close\nyour eyes now and then if you must (but don\'t fall asleep), or\nmove your seat.\n3. Listen with an open mind. Don\'t come to class with firm\nexpectations of what the materials mean or how they will be\napproached.\n4. Keep physically alert. Sit up straight. Look at the teacher. Sit in a\nspot in the classroom that keeps you alert and in the instructor\'s\nview.\n5. Keep mentally alert. Talk. Listen critically. Keep trying to guess\nhow the material might be tested (or used in law practice).\n6. Use a listen-think-write process. Don\'t be a scrivener, trying to\nwrite down everything that is said. Train yourself to listen\nattentively to what is said, evaluate its relevance and importance,\nand the select what is important and write it in your own words.\n7. Note the questions. Be especially careful to write down questions,\nhypotheticals, and theories noted by the professor and by other\nstudents. These are the seeds from which understanding (and\nexam questions) grow in your after class review.\n8. Note your next steps: Write down any assignments noted.\nCompare to your syllabus and ask about discrepancies. Keep a list\nof questions you have so that, immediately after class, you can ask\nthe instructor, do your research, or compare with your study\npartners.\n9. If the instructor writes it, you should too. Even in today\'s\ntechnology-rich environment, most professors do not use many\naudio-visual devices in their teaching. Those that do, most\n\n45\n\n\x0ccommonly use the chalk board. Never fail to copy anything the\nprofessor writes on the board, even drawings or symbols can give\nimportant insights into a formulation of a rule or method of\nanalysis. For faculty who use overhead projectors or\ncomputerized presentations, the same rule applies, unless you\nfind yourself mindlessly transcribing from wall to notes without\nthinking. Many professors now post or photocopy their\ncomputer presentation slides so that students can listen, think,\nand discuss during class without fear of losing important points.\n10. Review your notes within twenty-four hours of class. Highlight\nkey terms with colored pens or by summarizing key terms in the\nmargins. This helps you retain what you are learning (we forget\nabout 60% of what we learn within the first 24 hours if we do not\nreview it).\n\nThe Relationship Between Classes and Exams\nStudents are understandably upset that the questions that they have\nbeen asked in class all semester will not appear on the final exam in\nmost classes. As one commentator observed: "Most importantly, as\nmany authors report, it has become apparent on several levels that\nprofessors do not test what they teach, as often during the first year\ncurriculum they "teach by the case method and actually test by the\nproblem method." Typically, first-year law students are greeted in the\nfirst weeks of school with massive reading assignments of appellate\ncourt opinions (the standard Case Method) followed by class periods\nwhich engage in some form of Socratic dialogue regarding those\ncases. At the end of the semester, although taught by the Case\nMethod system, typically they are presented with the standard threehour exam with loaded fact patterns providing complicated legal\nproblems for which they have received little or no explicit training."\nDoes this mean that attending class is worthless? On the contrary,\nclass attendance and participation can be excellent preparation for the\nfinal exam. What this observation does mean, however, is that you\nneed to understand what it is that you are trying to get out of class.\nYou are trying to understand the rules of law in the cases -- not the\ncases themselves-- and learn how you might use these rules. (Think\n\n46\n\n\x0c"tools of law" not "rules of law" and you will be further ahead).\nOrganize your class notes and your thinking around these rules,\ndoctrines, elements, issues and arguments rather than around the\ncases. Look for connections among the cases to discover further\ndoctrines, policies, exceptions and the like. Think of each case as a\nsample exam question. The facts of the case are like the hypotheticals\nyou will receive on a final exam question. The rules developed in the\ncase are the rules you will be applying on a final exam. Critically\nobserve the court\'s "answer" to the "question." Beware: some\nopinions would not earn high grades as exam answers.\nWhile you can do all of this analysis in class without ever speaking a\nword, I do encourage you - and urge you to encourage each other - to\nactively participate. Participating in class forces you to listen more\nclosely, improving your comprehension. It is also crucial job training.\nAs a lawyer, you must frequently speak before other people and you\nwill always need to be able to listen to others. Now is the time to\ndevelop and refine these skills. If you make mistakes now, only your\nego suffers; errors later may cost you clients, cases, or your job.\n\nThinking like a Lawyer -- Applying the Law to Facts\nMuch of what you are asked to do in class is present an analysis of\nthe law -- its application to new factual hypotheticals. Practice this\nskill, particularly in writing, as often as possible. It is critical to your\nsuccess.\n\nIdentifying Issues\nSTEP ONE: Read the facts. This is the DESCRIPTIVE phase of\nyour analysis. Be sure you know your client\'s case (the facts of the\nproblem). Read closely and carefully. Draw inferences from the facts\n(most matters of motivation, causation, or alternative choices are\ninferential). Think about alternative inferences that can be drawn. Be\naware that vague, conflicting and incomplete facts are normal in the\nreal world. Identify your client\'s goals. Be sure you have asked the six\nbasic questions about the facts presented: What? Where? When?\nHow? Why? Who?\n\n47\n\n\x0cSTEP TWO: Next comes the critical questions for identifying issues:\nSo what? Survey your checklist of rules that might possibly apply to\nresolving your client\'s problem consistent with his or her goals.\nBrainstorm as to all possibly applicable rules... Don\'t eliminate\npotential rules too quickly.\nSTEP THREE: Analyze how the applicable rules apply to your\nclient\'s facts. Identify those rules or aspects of rules that provide a\nclear outcome or solution and note these briefly but do not spend\ntime engaging in extensive analysis of "givens." Identify those rule or\naspects that are, after analysis, irrelevant because they will not affect\nthe outcome significantly.\nSTEP FOUR: Identify those rules or aspects of rules that create\nissues when applied to your client\'s facts. AN ISSUE IS\nSOMETHING TO ARGUE ABOUT. Recall from case briefing that\nthere are three kinds of issues: "what are the facts", "what is the law?"\nand "how does the law apply to these facts?\xe2\x80\x9d To find these issues,\nlook for gaps or conflicts in the law.\nA. Sometimes more than one rule might apply. For example, in\ndetermining the specificity with which to require pleading a\nstatutory action for securities fraud, does one apply rule 9 of the\nFederal Rules of Civil Procedure ("fraud must be pled with\nparticularity") or only the general standards of rule 8 ("pleadings\nshall contain a short and plain statement of the case")?\nB. Sometimes there may not be a rule. For example, there is no\nguidance in the Federal Rules of Civil Procedure regarding\nwhether a complaint must be typewritten. (There may be local\nrules on this, however.)\nC. Sometimes the rule provides only general guidance. Many rules in\nthe law are stated in general terms such as "reasonable" or\n"timely" -- interpretation of these terms is left to individual cases.\nD. Sometimes there are conflicting judicial interpretations of the\nsame rule.\nSTEP FIVE: Separate issues and sub-issues and organize them in a\nlogical progression. For example, you may determine that there are\n\n48\n\n\x0ctwo main issues. The first question is which rule applies. Having\nresolved that issue, however, you still may have an issue about how\none or the other of those rules applies to the facts.\nSTEP SIX: Create arguments about what the rule means and how it\nshould be applied to these facts.\nA. Purposive Interpretation vs. Formalist Interpretation\n1. Formalist: Define the term at issue without reference to\ncontext or purpose. Some sources for definition of a\nword include: grammatical arguments about the meaning\nin context; dictionaries ("plain meaning"); legal\ndictionaries; the statutes or rules; the legislative history of\ndrafter\'s advisory notes; the use of the word in other rules\nor other areas of law. When the source of law is common\nlaw, a formalist interpretation of a case looks at the legally\nsignificant facts of the precedential cases and compares\nthe client\xe2\x80\x99s facts to identify differences or similarities.\n2. Purposive: Conceive the purposes behind a rule and\ndefine your term in light of those purpose(s) (There are\nordinarily several, often conflicting, purposes that one can\nconceive for any given rule). Some sources for deriving\npurposes include: the rule or statute; the legislative history\n(advisory committee notes); judicial statements of the\npurpose; or your own imagination.\nB. B. Broad Rule vs. Narrow Rule\n1. Narrow rule: If a rule, read the language of the rule to\napply to as narrow a fact situation as possible (using one\nof the interpretation techniques in A), then argue that\nyour facts fall outside that narrow interpretation. If a\njudicial precedent interprets the rule, read the\ninterpretation of the rule as necessarily and narrowly\nconnected to the facts of that precedent.\n2. Broad rule: If a rule, read the language of the rule to apply\nto as broad a fact situation as possible (using one of the\ninterpretation techniques in A), then argue that your facts\n\n49\n\n\x0cfall squarely within that broad interpretation. If a judicial\nprecedent interprets the rule, generalize each of the facts\nin the case as broadly or generally as possible.\nSTEP SEVEN: Create arguments about how the rule should be\napplied in this case.\nA. Five Types of "Policy" Argument\n1. Arguments about judicial administration: Categorize the\ninterpretation that you are advancing as one that is firm\nand predictable or flexible and open-ended. Then create\narguments as to why the firm or the flexible rule is\nneeded for the purposes of future application of the rule\n(often stated in terms of predictability or fairness)\n2. Arguments about institutional competence: Argue that\nthe application or interpretation of the rule at issue is or is\nnot best decided by a particular institution (e.g., courts,\nthe legislature, the executive, etc.). A good example of\nthis argument is Chief Justice Rehnquist\'s opinion in the\nLeatherman case. Courts are not competent institutions to\ncreate new categories of specificity requirements. That\ntask is best left to the Congress because they have the\ngreater (ability, legal or political authority, resources, etc.)\nto address this task. An equally powerful argument could\nhave been made that courts are especially well suited to\nthe task of interpreting the applicability of Rule 9. For\nexample, courts see the cases that are most often brought\nfor improper purposes, in vague general language, that\nhave especially detrimental impacts merely by the filing of\nthe complaint. Congress has allocated rule making\nauthority to the courts (the Rules Enabling Act) thus\nrecognizing this superior competence and authority.\n3. Moral arguments: These are the arguments we often make\nin everyday argument or in political discussions. Morality\ncan encompass a broad variety of value-based judgments,\nwhose sources can vary from religion, culture, history, etc.\nOne example: Form v. Substance Making moral decisions\n\n50\n\n\x0con the "formal" classification of the dispute (two\n"disputing parties") vs. Making moral decisions on the\n"substantive" relative social power of the "people"\ninvolved (a pro se, civil rights plaintiff and the\ngovernment). For example, in Conley v. Gibson, the United\nStates Supreme Court said that the pro se prisoner\nbringing the civil rights claim should not have his\ncomplaint dismissed unless it could not state a legally\nenforceable claim, regardless of the clarity or simplicity of\nthe complaint.\nMorality as Form: Why should a pro se litigant be given a\nspecial rule regarding the interpretation of his or her\ncomplaint under rule 12(b)(6)? Pro se litigants can choose\nto have attorneys assist them (pro bono or contingent fee\nattorneys are available for those who cannot afford\nrepresentation). If they choose to clog up the legal system\nby forgoing this representation, they should not be given\nany greater advantages than others.\nMorality as Substance: Why should a pro se litigant suing\nthe government (who may view attorneys as part of the\n"system" and thus not trust them, even if they could\nafford them) be held to the same standards of pleading as\nthose who have the benefit of expensive, well trained\nlawyers. Especially in actions against the government,\nindividuals should have the right to address their\ngrievances individually and not be foreclosed by strict\nprocedural rules.\n4. Deterrence or social utility arguments: These arguments\nare based on the effect of the rule on behavior.\n5. Economic arguments: Phrase the argument for\napplication of the rule in terms of a cost - benefit analysis\n(factoring in whatever you wish to characterize as a "cost"\nor a "benefit") and argue that the rule to be applied\nshould be one that in its application over the course of\ntime should mirror the same decisions that individuals or\n\n51\n\n\x0cinstitutions would make were they to engage in this\nanalysis. If you find this listing of forms of argumentation\nuseful to your understanding of law, you may want to\nread Richard Michael Fischl & Jeremy Paul, GETTING TO\nMAYBE: HOW TO EXCEL ON LAW SCHOOL EXAMS\n(Carolina Academic Press, 1999).\n\n52\n\n\x0cChapter Four: After Class\nReview\nAfter class review is perhaps the most important, and often\noverlooked, aspect of study. If you take time to synthesize each day\'s\nmaterial with the rest of the course, you will have a much easier time\nstudying for finals. Immediately after class, most faculty members\nremain in the classroom to continue discussions begun during the\nclass hour, to hear where students are confused so they can clarify the\nnext day, and to answer questions on side issues. It is an extra\nopportunity for you to get to know the professor informally, and\noften sparks interesting debates. Join in (especially those of you who\nare initially reluctant to talk in class). In the hours and days after class\nyou should try to synthesize the material, and put it all into\nperspective with what was previously studied. Go over your class\nnotes, try to fill in gaps or clarify issues by talking with classmates and\ncontinuing debates or discussions.\n\nWhy review?\nInformation learned can be recalled most effectively 10 minutes after\nthat learning has stopped. After this, information is lost rapidly, so\nthat after a few months only a tiny percentage can be recalled. By\nspending a few minutes reviewing material after the learning session,\nyou can quickly refresh your memory, and significantly reduce the\ntime needed to relearn the knowledge when you need it, ensure that\nyou have a reasonable basis of knowledge all the time, and allow you\nto improve the quality of future learning, by building on a wellremembered foundation. This allows you to make connections that\nyou would not otherwise make.\nThe aim of frequently reviewing information is to end up storing it in\nmemory for the long term.\n\xef\x82\xb7\n\nReview immediately after class: This can take the form of rereading or re-writing your notes\n\n53\n\n\x0c\xef\x82\xb7\n\nReview after one day - take a few minutes to jot down\neverything remembered and compare this with your notes.\n\n\xef\x82\xb7\n\nReview each week to synthesize the materials\n\n\xef\x82\xb7\n\nReview at the end of each section to outline the materials\n\nBy reviewing frequently, information should be fresh in your mind,\nshould be clearly structured, and easily accessible when you need it.\n\nGroup Study\nStudy groups are invaluable learning experiences and support\nsystems. The structured study group program in particular can help\nyou learn efficient and effective techniques for mastering law school\nstudy. There are many useful activities a study group can pursue -- for\nexample, sharing case briefs, reviewing class notes, or preparing\ngroup outlines -- however, group problem solving is perhaps the\nmost useful activity.\nGroup problem solving is an activity that provides a practical element\nto the study of law. Oftentimes, lawyers use other lawyers as aides in\nsolving many legal problems. In fact, it is rare that any one lawyer has\nthe ability or resources to address all the legal issues in any given case.\nTherefore, the strategy of group problem solving attempts to emulate\nthe legal environment by allowing students to bounce issues, ideas\nand solutions with other students in an organized fashion.\nThe main objective in group problem solving is communication\nbetween the students. It is essential that all students, as would all\nlawyers, communicate their ideas to each other, no matter how trivial.\nEven the "silliest" of ideas can sometimes contribute to, at a\nminimum, the outer limits of a problem. Another goal is to use all of\nthe information uncovered to arrive at a group answer. The group\nanswer should consist of a synthesis of "possible answers" derived\nfrom the session and reflect a solution that most plausibly meets the\nobjective. Included in the group answer should also be reasons why\nother arguments were not chosen. This is an important step, since it\nis by revealing what is not the "right answer" that we can more\nreadily see what is the right answer.\n\n54\n\n\x0cProcedure\n1. Someone introduces a specific problem or issue. It may come\nfrom class discussion, the students\' textbook, or a self-made\nhypothetical. Problems that deal with multiple issues are ideal\nsince your group can then work together to synthesize the\nmany concepts that you have learned.\n2. Appoint a scrivener to write down all of the ideas and\nsolutions, and a leader to help keep everyone participating\nand focused.\n3. Start the group problem solving session by identifying\npossible issues relating to the particular problem that you are\ntrying to solve. Before any solutions are discussed, make sure\neveryone has the problem and sees the issues.\n4. After you have identified the issues (or problems) begin\nformulating possible answers/arguments/analysis and\nallowing the scrivener to record them in an organized manner\non a sheet of paper.\n5. Use the resources available to you -- your text and class notes,\nsupplementary material, your professor -- to develop your\nanalysis as completely as possible and to resolve\ndisagreements.\n6. Organize and summarize what you have learned. Predict how\nand when it might be tested.\n\nSupplementary Resources\nYour after-class efforts to clarify questions and increase the level of\nunderstanding may often lead to outside reading. Most students find,\nat some point during law school, that some supplemental resources\nare helpful in studying for a particular course. Your text books often\ncite relevant supplemental materials following the cases. Some of\nthese citations are to law review articles or additional cases on the\ncourse topics. Others are drawn from the treatises (hornbooks)\ndescribed below. Additionally, your intellectual curiosity may lead you\n\n55\n\n\x0cto consult the Index to Legal Periodicals for additional articles on the\nclass subject matter.\nHornbooks (single or multiple-volume treatises on areas of law) are\nthe best overall resources for reference and study for your law school\nclasses. Ask your professor for suggestions as to which treatises are\nthe most useful for the subject matter that you are studying.\nBesides these scholarly resources, you will quickly discover an\nabundance of commercial study aids (in hard copy or on the web)\nintended to make digestion of "the law" as fast, painless, and easy as\npossible. Though these resources may be useful in "checking up" on\nunderstanding gained through your original analysis, or for pre-exam\nreview, or merely for a "security blanket", reliance on these materials\nis dangerous.\nFirst, the materials necessarily provide only a superficial view of legal\nconcepts. Many of the "course outline" resources, such as Legalines\nor Casenotes legal Briefs, are written by publishing company\nemployees: neither practicing attorneys nor scholars.\nSecond, it is far too easy to fall into relying on these materials to do\nyour analysis for you -- superficial, often misleading, analysis at that -when the entire purpose of your studies is to develop these analytical\nskills for yourself. In the short term, empirical studies have\ndemonstrated that reliance on these commercial study aids is\nassociated with decreased performance on law school examinations,\nwhile use of scholarly treatises as study references is associated with\nincreased performance. So if you hear upper-level students gloating\nthat they relied on a study aid to pass a course, that may be true;\nchances are, however, they would have done even better by doing the\ncoursework (and of course you simply won\'t hear any gloating by\nthose who relied on study aids and didn\'t pass).\nFinally, in the long term, relying on "canned analysis" is a bad habit\nto develop for your future practice. As an attorney, you will be\ngenerating your own, creative analysis based on the original sources\nas well as evaluating the analysis provided by your opponents, or by\njournal articles on the subject matter of your cases. You will need to\nhave firmly established by that time the habits of thorough analysis,\n\n56\n\n\x0cand, equally importantly, confidence in your analysis. You won\'t have\ntime to develop those habits then: your clients and society will pay\nfor your incompetence or vacillation -- and eventually you will lose\nclients, lawsuits, or your license to practice law.\nThat is not to say that commercial study guides do not have a role in\nsuccessful study. Reliable, commercial study guides can be used as a\nsource for comparative organization, as a "check" on your own study,\neven as a background resource to help you understand areas that you\nare struggling with (as long as you have really struggled first). The key\nhere is to select reliable study guides. Check the author. If the study\nguide was written by your casebook author or a law professor, you\ncan have greater confidence than if written by a publishing company\nemployee or law student contractor. Be especially wary of the\noutlines available on the internet. Would you take advice from a\ncomplete stranger on the street about how to succeed in law school?\nWhy would the fact that the advice comes in electronic form lead you\nto give it greater credence?\n\n57\n\n\x0cChapter Five: Outlining\nand Exam Preparation\nWhether writing an examination answer, counseling a client, or\npresenting an argument to a judge or jury, an attorney\'s first goal is to\ncommunicate effectively. The key to effective communication is\npreparation. What should you prepare? Regardless of the setting,\neffective communication requires that you know your goals, know\nyour subject, and know your audience.\n\nKnowing your goals\nYour goal on most law school exams is to demonstrate your ability to\nuse the law in analyzing hypothetical problems. The New York Bar\nExam directions for essay answers are instructive in understanding\nwhat a good answer should include:\nAn answer should demonstrate your ability to analyze the facts\npresented by the question, to select the material from the immaterial\nfacts, and to discern the points upon which the case turns. It should\nshow your knowledge and understanding of the pertinent principles\nand theories of law, their relationship to each other, and their\nqualifications and limitations. It should evidence your ability to apply\nthe law to the facts given and to reason logically in a lawyer-like\nmanner to a sound conclusion from the premises adopted. Try to\ndemonstrate your proficiency in using and applying legal principles\nrather than mere memory of them.\nAn answer containing only a statement of your conclusions will\nreceive little credit. State fully the reasons that support them. All\npoints should be thoroughly discussed. Although your answer should\nbe complete, you should not volunteer information or discuss legal\ndoctrines that are not necessary or pertinent to the solution of the\nproblem.\n\n58\n\n\x0cYou can see, then, that your goal on a law school exam is to\ndemonstrate a variety of skills, only one of which is knowledge of the\nlegal rules.\n\nKnowing your subject\nGiven that demonstrating your skill is as important as demonstrating\nknowledge, part of your subject includes those legal skills. How do\nyou learn those skills? By daily class preparation and class attendance,\nin which you regard each case not as a subject to be "learned", but as\nan exercise in problem solving with at least one suggested solution\nincluded.\nBut class is not the only place in which to hone your analytical skills.\nPractice analyzing hypotheticals with your study partners: invent\nhypotheticals and then test them out on one another. More\nimportantly, practice writing out your analysis. Where can you find\nhypotheticals on which to practice?\nUse the old exams on file in the library, look through your casebook\nfor hypotheticals in the notes following cases, some commercial\nstudy guides provide hypotheticals with suggested answers, the\nrestatements have illustrations following most principles that you can\nanalyze for yourself, there are exams available on line, or you can ask\nyour professor for guidance.\nA second important aspect to knowing your subject is, of course,\nknowing the law. You must know the black-letter law that is covered\nin your courses. This means knowing the rules, the elements of these\nrules, the variations in the rules, and the policies underlying those\nrules. Part of your task throughout the semester is to study and learn\nthis "law". You should know the rules thoroughly by semester\'s end.\nMaking and reviewing flash cards is a tried-and-true method of\nmemorized learning that may be useful in your studying.\nBesides studying the course materials and your notes from class, you\ncan get further help in learning the rules through (in order of\nreliability....) hornbooks, the restatements of the law, commercial\nstudy guides, outlines from other students and many other sources.\nIncreasingly, you can access an entire library of student outlines on\n\n59\n\n\x0cline (though you have little perspective on their reliability). Your\nprofessor would be happy to suggest additional reading for course\nsubjects.\nIf your school is a member of CALI, you can use computer assisted\nlegal instruction programs to help you learn the law. These lessons\nare written by law professors, reviewed by an editorial board of\nexperts, and keyed to the subject matter of your courses. Because\nthey are interactive, they can provide important feedback and extend\nyour learning. Additionally, you must synthesize these legal rules &\npolicies into a comprehensive whole. During class we break down the\ncases, discuss possible interpretations and policies explaining the\nresults, and project the scope of those interpretations and policies.\nWe spend very little time on review. Yet review and synthesis is\nessential if your understanding is to move beyond the level of your\nday-to-day reading of discrete cases.\nThe best way to bring the class into a whole is to outline. And the\nmost important thing to remember about outlines is that preparing an\noutline is just as important as having an outline. How do you go about\noutlining? It depends on how you learn best. Some people need to\nforce their thoughts into a rigid organization (IA1a outlines); others\nneed a visual outline (charts); still others need to write and re-write\n(essay outlines). It doesn\'t matter whether you type a grammatically\ncorrect, perfectly structured traditional outline or whether you make a\nmassive multi-colored poster on your study wall. What matters is that\nyou force the materials into some structure, so that you understand\nthe elements of the law, the policies and theories necessary to identify\nfacts relevant to those elements, and the relationship between areas\nof the law. Your focus should be on these elements, policies and\nrelationships, rather than on the cases you have studied as examples.\nThe third aspect to knowing your subject is structuring your\nknowledge into a useable form. Now you may think that the outline\nserves that purpose. However, outlining is for the purpose of\nachieving a complete understanding. A review outline is rarely useful\nin preparing to use that knowledge. Rather, you need to take the\nadditional step of condensing your outline into a list of the issues that\nyou will be looking for in a hypothetical.\n\n60\n\n\x0cOnce you have thoroughly and comprehensively reviewed your\nsubject through some process of outlining, go back and make a\n"checklist": an outline of the outline. Try to limit this checklist to one\npage, containing only the major categories of the course (e.g., in\nproperty: ways of acquiring property, estates, etc.; in torts: battery,\nassault, negligence, etc.) and the elements of each of those categories.\nThis "checklist" is a failsafe mechanism of sorts. It insures that you\nhaven\'t overlooked crucial areas of the law that might present issues\nin a fact situation. If the exam is open-book, you want this checklist\non the top of your outline or inside cover of your book. If the exam\nis closed book, you want to memorize the checklist, perhaps through\nsome mnemonic devices. Be sure to "test drive" your checklist:\nproject the type of exam and the subject matter that you expect for\neach class (you may be able to rely on past exams for the course) and\npractice using your checklist in writing a time-pressured answer to\nthat exam. Review the results with your colleagues and with the\nprofessor. Revise your outline and checklist appropriately.\n\nKnowing your audience\nEach professor may stress one aspect of the law or one approach to\nlegal analysis more than others. You should know that professors\ndiffer in their use of the classroom: some professors emphasize your\nability to analyze a case to determine how and why a new legal rule\nwas developed; others (using the same materials) will focus on the\napplication of that rule to fact situations. Very often, the professor\'s\napproach to class will give you some clue to his or her likely approach\nto the exam as well. However, you should not rely on the professor\'s\nclass approach to project how they are likely to test. You need to also\npractice taking exams used by that professor in the past. Another\naspect to knowing the professor\'s preferences is reading the\ninstructions on the exam. At least two or three people every year\nreceive substantially lower grades than they might have, simply\nbecause they did not read and pay attention to instructions. Finally,\nask the professor and your fellow upper-class students what skills,\nsubjects or approaches to emphasize in a particular course\'s exam.\n\n61\n\n\x0cChapter Six: Taking an\nExam\nThe day has arrived. Your final exam sits on the desk in front of you.\nWhat do you do with it?\n\nRemember your goals\nThe primary tasks in writing an exam answer are:\nAnalysis. Analysis includes spotting issues and creating arguments,\nalternatives and applications of the law to those issues. For many\nexaminations, issue spotting constitutes the most important aspect of\nthe test. You must be able to efficiently and accurately identify as\nmany issues as time permits. Just as in identifying issues in preparing\na case brief, spotting issues on an exam requires understanding what\nan issue is and knowing the course materials well enough to\nrecognize the issues in a fact pattern. Some students readily identify\nissues of law, requiring a choice between different rules or different\ninterpretations of a rule, but miss the issues requiring application of\nthe rule to the facts.\nSome students do poorly on examinations because they are too\n"bottom line" oriented. They will ignore possible issues because they\nsimply identify what they see as the "most important" issue. Or they\nwill see areas of conflict (issues) but perceive that one or the other\nside has a much stronger position and so will simply conclude that\nthe issue is not worth extended discussion. Be sure to ask yourself,\n"but if that\'s doesn\'t resolve the issue, the next argument/issue is..."\nKnowledge and Understanding. You must be able to demonstrate that you\nknow not just the rule, but why it applies to the specific facts before\nyou. This means that you must be able to work with the relationship\nbetween legal rules. For example, many hypotheticals ask about\nwrongs that can be characterized a number of different ways -murder & manslaughter, for example. With these questions you\nshould be able to demonstrate your understanding that the facts\n\n62\n\n\x0cpresent a number of possible "causes of action", using an\norganizational technique that demonstrates your understanding of the\nrelationship between these wrongs (e.g., "at least -- at most" or "first\nclaim -- fallback). Where several causes of action have an element in\ncommon, (intent, for example) deal with that element only once and\nsimply refer back to that initial analysis for each subsequent claim\n(Note: use this internal reference only within a single\nquestion/hypothetical -- do not refer back to prior questions because\nmany professors grade each question separately).\nApplying the law to the facts. Students need to apply the rule(s) to as\nmany of the facts as are legally relevant (which, on most exams, is just\nabout all of them). Some common errors in fact application include:\nfailure to use the facts (mere statements of the law are not enough);\nrestatement of the facts (repeating the facts without drawing\ninferences from them in legal terms is not using the facts); mere\njuxtaposition of the facts without explaining analysis. Probably the\nmost common error is making statements of conclusions only. Point\nout even painfully obvious steps in your analysis. It is equally\nimportant to make legal principles clear. Be sure to define all legal\nterms and list all elements of a claim. Do not assume that your reader\nwill know either what A or B is or how you got from A to B. Be\nexplicit, complete and clear.\n\nExam-taking techniques\nCome prepared. Being prepared means, first, academic preparation. You\nneed well-organized materials that reflect mastery of the subject, clear\nexpectations of what is expected of you and a checklist of\nissues/subjects to look for on the exam. Beyond this obvious\npreparation, however, you need to be physically prepared. Be well\nrested. Cramming the night before the exam can never give you the\nedge that a clear, well-rested mind can. Have supplies in hand:\nenough pens, pencils, clock or watch, food, exam number, etc. Be\nsure to bring your textbooks, class notes and outline if the exam is\nopen book. (Although you should never expect you will have time to\nuse them). Finally, prepare yourself psychologically. Focus on the\nnow. Try to focus on this exam only without thinking about how you\n\n63\n\n\x0chave performed in any other test-taking situation. Focus on you. Do\nnot worry about how friends and other students are doing. Wear\nblinders and earplugs if need be. Be confident. Assume that you will\ndo well and do not worry about the negative consequences of failure.\nWhen you begin the exam, read the instructions on the exam\ncarefully. Note how many questions there are and how much time\nyou should allot to each one. STICK TO THAT SCHEDULE! Keep\nin mind that in a 20 point question, the first 5 points are a lot easier\nto get than the last 5. An extra 5 minutes spent on a question may not\npay off, while unanswered questions will most certainly receive zero\npoints.\nNext, read the question. On your first read: read the question quickly,\nto identify: Who are the parties? What kind of question is this?\n(Analyze, argue, identify -- open ended or guided). Read the call of\nthe question carefully. Read the exam a second time to extract the\npertinent facts (some professors include only relevant facts, others\ninclude many irrelevancies to test your discernment) as you read each\nfact, ask yourself: "does this fact raise a legal issue?" Some facts will\nbe relevant to several legal issues.\nIdentify the relevant law. Jot down the claims and defenses that will be\nmade for each party. If the exam is open-book, simply rip out the\nrelevant pages from your outline and note "A v. B" or "first sale" on\nthe top to indicate which general facts apply. Refresh your memory\nof the elements of each cause of action (mentally or on your outline).\nRead through the exam question one more time carefully. By color,\nnumber or brief note, indicate the legal relevance of each fact to the\noutline of issues you have constructed. Be sure to keep one eye on\nthe clock. Relax and breathe deeply, because this step is the most\nimportant and you need a clear mind. You are not writing an answer\nhere, only identifying the material that will go into your answer.\nOrganize and write your answer. Decide upon the logical relationships\nbetween the controversies and block out the controversies to deal\nwith one at a time (you can organize according to parties -- A v. B, B\nv. C, C v. A -- or according to transactions -- first offer, written\nresponse, second offer. Use an organization scheme that identifies\n\n64\n\n\x0cthe issue or controversy or position that you will focus on and then\nidentifies that portion of the law relevant to that issue. Next analyze,\nargue, and generate alternatives for that rule\'s application to the facts\ncreating the issue. Finally, draw a conclusion. This is sometimes\ncalled the IRAC (issue-rule-application-conclusion) formula, but it is\nreally simply good organization and logical development of an\nargument. The key here is the "A" part -- providing lots of logical\nanalysis and reasoning and "but if" "even so" "on the other hand"\narguments. As one law school teacher has noted; "Analysis is key give an A; get an A." Each paragraph of your answer should serve a\npurpose. Most answers should look like this:\nA would argue that B\'s actions constituted (claim). (claim) is\n(defined). In order to prove (claim), A must show that (elements).\nThe first issue, then, is whether (element 1) exists. (Element 1)\nrequires proof that (explanation of element 1). A would argue that\n(fact 1) is (element 1) because (explanation of reasoning). Another\nfact indicating that (element 1) is (fact 2) because (explanation of\nreasoning). B would counter that (facts 1 and 2) are irrelevant\nbecause (alternative analysis of element 1\'s requirements). Also B\nwould argue that even if (element 1 is as A says), (facts 1 and 2) do\nnot prove that element because (explanation of alternative inferences\nfrom facts). Finally, B would argue that applying (element 1) as\nsuggested by A would undermine the purpose of (claim or element).\nThat purpose is (policy or goal of law). By accepting A\'s analysis\n(explanation of reasoning of why policy wouldn\'t be served). Because\n(what you consider to be the most important factor in the analysis of\nthis issue), (party) will likely prevail of this issue.\nThe second element that must be proved is\xe2\x80\xa6 etc.\nAs you complete each section of the answer, quickly review the\nquestion to see if you left out any important facts, and review your\noutline to see if you covered all the legal elements. Does your answer\nmake sense? Does it answer the question asked? Finally, proofread.\nAlways leave at least two minutes. Proofread the last part of your\nanswer first.\n\n65\n\n\x0cWhat do you do if you get stuck? First, RELAX! Do not let difficult\nquestions or time pressure shake your confidence -- tell yourself "If\nthis question is difficult for me, it is going to be difficult for everyone\nelse." Take a deep breath, sigh, think a happy thought and smile, roll\nyour shoulders and relax your jaw, say a little prayer, and dig back\ninto your analysis. If you\'re not sure what\'s going on in the problem,\ntry...\n\xef\x82\xb7\n\nReading again, more carefully.\n\n\xef\x82\xb7\n\nUsing a different part of the brain. Drawing a picture or\ndiagram is often a good way to get going.\n\n\xef\x82\xb7\n\nUsing some common sense. Try anything that makes sense to\nyou. On occasion, professors may ask a question to test your\ngeneral problem solving/ common sense solutions. Any\nanalysis is generally better than a blank sheet of paper\n\n\xef\x82\xb7\n\nRests (briefly--1-2 minutes) after you\xe2\x80\x99ve been trying a while.\nGet up and stretch. Then try again.\n\nSome General Tips\n1. Use labels to organize your discussion. This can also help you\ndouble-check to make sure you\'ve covered everything. For\nthe same reason, you may want to underline key elements.\n2. Unless you are told otherwise, write on only one side of the\npaper, reserving the left-hand side for issues or arguments\nthat you think of later.\n3. Watch your language use. Although no professor expects\nperfect writing on an exam, you should be careful to avoid\nslang terms and colloquialisms as well as unnecessary lawyer\njargon. In particular, avoid too many abstractions - use\nconcrete, specific language.\n\n66\n\n\x0c4. Avoid the interrogative trap - rhetorical questions that tend to\nbe conclusory are dangerous on an exam. They often pose\nquestions which introduce extraneous issues and invite\nunwanted responses from the reader. They never substitute\nfor analysis -- which is how they are often used.\n5. Avoid excessive abbreviation - define all abbreviations use,\ndon\'t overuse.\n6. Think before you write. Don\'t continue to write when you\'re\nbefuddled. Stop, breathe, think, write.\n7. Don\'t be funny. Don\'t try. Ever. Others will give you\ncontrary advice. They are better wits and prefer more risk\nthan I do.\n8. Be legible. If your handwriting is poor, at least write large and\nin ink. Better yet, print or type.\n9. Allocate your time.\n\n67\n\n\x0cChapter Seven: The Next\nSemester\nIt\xe2\x80\x99s a brand new semester. Your grades are in. You are devastated,\nexhilarated, relieved, puzzled, or angry\xe2\x80\xa6 or maybe all of these\nfeelings and more. How do you continue to improve your\nperformance in law school each semester? Few students take\nadvantage of the awesome power of reflection on the past as a\nlearning tool.\nOf course, immediately after a semester\xe2\x80\x99s exams, you are best to\nsimply try to forget the entire experience. The costs in anxiety,\ncompetition, and lost confidence from post-exam comparisons with\nothers are rarely worth the gains. However, after the exams are\ngraded, be sure to continue to learn from the process. Students often\nneglect to use this outstanding tool for improving their exam\nperformance -- a review of their prior semester\xe2\x80\x99s work and exam\nperformance.\n\nReviewing your past semester\xe2\x80\x99s learning\nLook back over your past semester\xe2\x80\x99s work and inventory your\nlearning. Don\xe2\x80\x99t automatically assume that your grades tell you what\nyou\xe2\x80\x99ve learned (they are a clue, but there\xe2\x80\x99s many a person who has\ngotten a bad grade on an exam in a subject they learned well and\nothers who have gotten good grades on subjects they have retained\nonly long enough to get the grade). Since one of your purposes in law\nschool is to acquire the skills and knowledge necessary for a\nsuccessful lifetime of lawyering, stop and reflect on what you have\nlearned. Consider your past semester\xe2\x80\x99s study approaches in light of\nthat reflection. Some questions to consider:\n\xef\x82\xb7\n\nWhich subject matter do you feel you have retained the best?\nWhat factors contributed to that retention? Did you study\nharder, longer? Were you more interested in the subject\nmatter? Were the learning materials you used different or\nbetter for that subject? How can you take those learning\n\n68\n\n\x0cadvantages for that subject and apply them to this semester\xe2\x80\x99s\nstudy?\n\xef\x82\xb7\n\nHow did you capitalize on your learning style strengths when\nstudying for a subject? Do you want to reconsider some\napproaches (e.g., listening to taped lectures was a waste,\ntyping all my notes really nailed the subject for me)?\n\n\xef\x82\xb7\n\nHow about your study schedule? If you \xe2\x80\x9cburned out\xe2\x80\x9d at some\npoint during last semester, when and why? Can you plan your\nsemester to avoid (or at least accommodate) that need to\ncatch your breath?\n\n\xef\x82\xb7\n\nHow did you outline? Be sure to save your outlines so that\nyou can compare them to your final exams and see what you\nhad and what you didn\xe2\x80\x99t.\n\n\xef\x82\xb7\n\nOverall, how much time did you spend preparing for classes,\nin post exam review, in preparing for the final exam? Do you\nthink it would be productive to reallocate some of that time\nthis semester?\n\n\xef\x82\xb7\n\nDid you at any time study with anyone else? Will you\nreconsider that arrangement this semester or do you want to\nreplicate it?\n\n\xef\x82\xb7\n\nLook forward to this semester\xe2\x80\x99s courses. How do they look as\nthough they will be the same as last semester\xe2\x80\x99s classes (e.g.,\ncode courses require the same kind of close reading and\n\xe2\x80\x9cbook juggling\xe2\x80\x9d regardless of the subject matter; courses with\nlots of history or theory as emphasis require another kind of\nattention)? Compare classes and make decisions about\napproaches to studying each of this semester\xe2\x80\x99s classes.\n\nReviewing your past semester\xe2\x80\x99s grades\nNow, consider your exam performance. Get a copy of your final\nexam, if permitted, and read over the questions and your answer\ncarefully. If the professor has a grading rubric or answer key for the\nexam, you should ask if you can review that as well. To the extent\nyou can, answer these questions about your exam answer:\n\n69\n\n\x0c\xef\x82\xb7\n\nWhat was your goal for the exam? Were you satisfied with\nyour results?\n\n\xef\x82\xb7\n\nDid you spot all the issues? What types did you miss? (For\nexample, are there issues that you saw, but considered\nunnecessary or superfluous because other issues \xe2\x80\x9canswered\nthe question\xe2\x80\x9d?) For issues that you simply didn\xe2\x80\x99t see, why do\nyou think you didn\xe2\x80\x99t see them (didn\xe2\x80\x99t read facts carefully\nenough? didn\xe2\x80\x99t understand the issue? didn\xe2\x80\x99t remember the\nissue?)\n\n\xef\x82\xb7\n\nDid you waste time? Look for places where you wrote a lot,\nbut earned no points because you were restating facts;\ncopying excessive quotes; reciting history, background or\ngeneral policies of the law -- apart from using this to analyze\nan issue.\n\n\xef\x82\xb7\n\nDid you answer the question asked?\n\n\xef\x82\xb7\n\nDid you accurately state the law?\n\n\xef\x82\xb7\n\nDid you read the facts accurately?\n\n\xef\x82\xb7\n\nDid you make unwarranted assumptions?\n\n\xef\x82\xb7\n\nDid you organize your answer well?\n\n\xef\x82\xb7\n\nDid you analyze the application of the rule to the facts\nthoroughly?\n\n\xef\x82\xb7\n\nDid you analyze both sides of the issue?\n\n\xef\x82\xb7\n\nDid you complete the exam? Did you manage your time?\n\n\xef\x82\xb7\n\nWhere did you miss most of your points? If you missed issues\nor stated the law inaccurately, was this because the material\nwas inaccurate or omitted from your notes or because you\nhad not sufficiently reviewed? (compare your exam with your\noutline and study materials) If you missed analysis, was this\nbecause you ran out of time, didn\'t see the need for the\nanalysis, or didn\'t understand the material well enough to\nprovide the analysis?\n\n70\n\n\x0c\xef\x82\xb7\n\nWhat is your goal for the next exam?\n\nMeeting with your professor\nMake an appointment with all of your professors to talk about your\nexam performance (regardless of your grades). Prepare yourself for\nthis meeting to get the most out of it. First, prepare your attitude.\nThis is your opportunity to get some very specific feedback on your\nexam performance. You should approach this meeting with an\nattitude of detached curiosity. Think of yourself as an anthropologist,\ntrying to understand some curious native ritual. This is NOT an\nopportunity to try to get your grade changed (it won\xe2\x80\x99t happen and if\nit does it won\xe2\x80\x99t be because you tried to make it happen). Nor is this a\ntime to apologize for or defend your performance \xe2\x80\x93 the professor is\nnot judging you as a person based on your exam. Professors know all\ntoo well that an exam is one brief period of time. They know people\nhave good days and bad. They will not suddenly consider you brilliant\nor brainless depending on the grade that you got on the exam.\nSecond, decide what you need to learn. What kinds of questions\nmight you ask that will help you improve your exam performance in\nthe future? If the professor does not have a grading rubric nor has\nany written clues as to where you did well and where you did poorly,\nyou will need to start by simply going through the exam and having\nthe professor highlight the exam\xe2\x80\x99s hits and misses. If you have a\npretty good idea from having reviewed the exam and any grading\nfeedback the professor provided, you may still have questions about\nwhat more you could have done. If your preliminary review doesn\xe2\x80\x99t\ntell you what issues or analysis you missed, ask about the kinds of\narguments that you could have made but didn\xe2\x80\x99t. Ask the professor to\npoint out any areas where you wasted your time on the exam. If you\nare concerned that your writing or organization of an answer could\nbe improved, try doing that. Re-write one question and ask the\nprofessor whether you have improved it. Be sure to let the professor\nknow that you are not doing this to try to secure a grade change!\n\n71\n\n\x0cMeet with your colleagues\nPerhaps one of the most powerful ways to learn from your past exam\nperformance is to compare your exam answers with others. If you\nwere disappointed in your exam performance, ask a colleague who\ndid well whether you can compare your answer with theirs (assuming\nthe professor allows this use of past exams). If you did well, be open\nto sharing your answer with your peers.\n\nPlan your new semester\nDon\xe2\x80\x99t assume that the learning tasks that you were presented with in\nthe prior semester will be the same each semester. Each professor is\ndifferent and each semester of law school presents new challenges.\nWith each semester your professors are likely to expect your skills of\njudgment and precision to increase. A first semester exam might\nscore very well by generating numerous arguments on either side of\nan issue - no matter how unlikely or impractical those arguments\nmight be in practice. The same answer to the same question in an\nadvanced course in your third year will be unlikely to be as successful.\nYour workloads will often increase each semester as well. Professors\nwill assume more prior knowledge that you may or may not actually\nhave. They will assume greater skill in reading and analyzing the law.\nThey will have new skills and knowledge that may require new\napproaches to study. Even if the classes do not change one iota from\nthe first semester, your own schedules will fill more \xe2\x80\x93 with the social\nlife of the law school, with job searches or work, with bar\npreparation, with extracurricular learning activities, etc. Take these\nnew and additional demands into account as you consider your study\nmethods.\n\nIf you feel like you\xe2\x80\x99ve failed\nThe experience of failure (real or perceived) is one that requires some\nseparate attention. You may be feeling ashamed and hurt that your\ngrades were not what you wanted. If your grades have placed you in\nacademic jeopardy, you are likely feeling fearful or hopeless. Needless\nto say, these emotions will provide sufficient distraction to your\nlearning that you must find a way to move past the last semester and\n\n72\n\n\x0cturn the experience in your favor. Here are a few thoughts to help\nyou with that process.\nFirst, remember that all is not lost. Some students take longer to\n\xe2\x80\x9ccatch on\xe2\x80\x9d than others. It is not uncommon for a student\xe2\x80\x99s first\nsemester to be their worst semester in law school. Have confidence\nthat you can improve. Think of it this way. The law school has little\nincentive to retain students who will not be able to graduate and pass\nthe bar examination. A faculty has a choice about the grade point at\nwhich it dismisses students and the number of semesters they will\nallow students to remedy deficient grades. If we did not believe that a\nstudent could raise their grades after falling below the required grade\npoint, we would not give you that extra time. We would simply\ndismiss you and admit a transfer student to take your place. Our\nexperience tells us that students can and do recover from a bad\nsemester\xe2\x80\x99s grades. Some of us had a bad semester\xe2\x80\x99s grades.\nSecond, you don\xe2\x80\x99t have to change much to get ahead. Don\xe2\x80\x99t presume\nthat your grades have accurately predicted your ability. Maybe you\njust had crummy luck this time. Maybe you had crummy teachers.\nVery likely, you just missed one piece of the puzzle that may be\nobvious to you when you take the time to look through your exams\nand work with your professors to find the problem. Often the\ndifference between a C- and a B is really quite small. Sometimes all\nyou have to do is learn to argue the other side of every issue and\nBINGO! You\xe2\x80\x99re in the game! For first semester students, a number\nsimply didn\xe2\x80\x99t \xe2\x80\x9cget it\xe2\x80\x9d until they experienced exams. You might be\none of those. Now that you know what you are preparing for because\nyou\xe2\x80\x99ve experienced it, you are in a position to better assess what\nworks and what doesn\xe2\x80\x99t in your study habits. It\xe2\x80\x99s not uncommon, for\nexample, for students to spend all semester thinking about the \xe2\x80\x9cbig\npicture\xe2\x80\x9d of doctrines \xe2\x80\x93 what is intent? Why does the law favor\npredictability in this area? Etc. \xe2\x80\x93 and fail to memorize and master the\ndetails of the black-letter law. Sometimes students are so focused on\nthe details (the individual cases they\xe2\x80\x99ve read) that they don\xe2\x80\x99t pull back\nand learn the generalized doctrine. Well, you need the big picture and\nyou need the cases, but you need the law too. On the other hand,\nsometimes students become so intent on memorizing the black-letter\n\n73\n\n\x0claw that they don\xe2\x80\x99t look for the grey areas and learn to make\narguments in the grey areas. Exams in which all you do is recite the\nlaw are not passing exams (or just barely pass). So it may be some\nreally basic part of the law school exam picture that you\xe2\x80\x99ve simply\nmissed to this point. Look for it. It\xe2\x80\x99s there. Once you find it, you\xe2\x80\x99re\nback in the game. Perhaps you had something happen in one or more\nexams that could explain your performance. Exam anxiety hit? Go to\nthe counseling center and get tested and learn how to deal with this\ncommon but significant cause of poor grades.\nSometimes you\xe2\x80\x99ve simply had a bad semester for non-academic\nreasons and you haven\xe2\x80\x99t really taken stock of the other pressures that\nare getting in your way. Maybe you are quite ambivalent about law\nschool \xe2\x80\x93 it\xe2\x80\x99s what your family wants for you, but you really aren\xe2\x80\x99t sure\nit\xe2\x80\x99s what you want. (That doesn\xe2\x80\x99t mean you need to know what you\nwant to do with the degree, but you do have to want to degree itself!)\nAddress your issues outside of law school and you\xe2\x80\x99re back in the\ngame!\nThird, get some help. I don\xe2\x80\x99t know any student who has ever\nsuccessfully completed law school alone. Get some effective study\nhelp through the academic support program and by finding effective\nstudy partners. If you suspect the study partners or social circle that\nyou\xe2\x80\x99ve been relying on up until now is part of the problem, move on.\nOf equal importance is getting some help with your confidence and\nmotivation. That might require a couple of visits to the counseling\ncenter. No shame here \xe2\x80\x93 half of the clientele of any University\xe2\x80\x99s\ncounseling center is likely to be law students (the other half is med\nstudents). Enlist all the cheerleaders in your life. Revisit your prior\nsuccesses. They weren\xe2\x80\x99t flukes. This experience of academic failure\nwas the fluke. Get some help to get past it, and you will once again\nexperience success.\n\n74\n\n\x0cAbraham Harold Maslow (1908-1970) was an American humanistic\npsychologist who developed a theory of motivation. The need hierarchy is\na central premise of that theory. His writings include: TOWARD A\nPSYCHOLOGY OF BEING (1962) and FARTHER REACHES OF\nHUMAN NATURE (1971). They are arranged in terms of the priority of\nour needs (i.e., you can\'t effectively fulfill your need for knowledge if you\nare hungry).\n1\n\nSee, Frank Robinson, EFFECTIVE STUDY (4th ed. 1970). New York:\nHarper & Row.\n2\n\nThis case could appear in a basic torts casebook, a products liability text,\nor even in a contracts or civil procedure text. How you would read the\ncase would depend on the course and topic for which you are studying the\ncase. We will presume here that you are studying this case in a basic torts\nclass, as part of your study of negligence.\n3\n\nThis case is from the New York Court of Appeals. In almost every other\nstate, a \xe2\x80\x9ccourt of appeals\xe2\x80\x9d is an intermediate court of appeal, with the\nhighest court being the supreme court. In New York, the Court of\nAppeals is the highest court in the state. These are the little tidbits about\nlegal systems you pick up along the way in law school.\n4\n\nNotice that this is a very old case. There are several reasons you may be\nreading a case from two centuries ago. One is that the case may represent\na historically significant perspective: either as a representative of how the\nlaw used to be or as a representative of how the current law came to be. A\nsecond reason for very old cases to appear in your casebook is that old\ncases may still be very good law, especially in an area of law that may not\nhave changed much over time (for example, notice the year of the cases\ncited in Conti v. ASPCA).\n5\n\n6\n\nBe curious. Did you know that Ch. J. stands for Chief Justice?\n\nEven words that you think you know the meaning of may have very\ndistinct legal meanings. Look them up.\n7\n\nSometimes you might want to look up information about the facts in a\ncase. If you don\xe2\x80\x99t know what belladonna is or how it might have been\nused, this might be useful to your understanding of the case.\n8\n\nThis is a very complicated transaction. You will be able to understand it\nmuch better if you find a way to translate it into a series of clear steps that\nyou can restate without reference to the case.\n9\n\n75\n\n\x0cProcedural facts are often hard to master at first. You must be able to\nnot only define nonsuit, but understand how these procedural facts affect\nthe way this case was decided.\n10\n\nThis is a key term. Be sure you have looked it up and worked to\nunderstand it.\n11\n\nOften your casebook cases will be heavily edited versions of the actual\ncase. If the case doesn\xe2\x80\x99t make any sense to you, sometimes reading the\noriginal full-length version can help. Beware, however, often what is cut\nfrom the case can be distracting issues your professor does not want you\nto consider for the purposes of the course in which you reading this case.\n12\n\nIs this a disagreement about what the law provides or how it should\napply to this case? This is always an essential question in any case.\n13\n\nThis is slow-going. You will need to translate this into modern English\nbefore you can begin to understand it. This is an instance where working\nwith another person can help. Avoid the temptation to simply give up and\nread a third-party description of the case (such as a commercial study\nguide or online case briefing service). Part of the skill you are learning is\nthe ability to translate this kind of arcane language.\n14\n\nStop here and try to state the law as it existed before this case. When, if\never, would a remote seller be liable to a consumer for a defective\nproduct? Why was this the rule? Notice that you may have to come up\nwith those reasons yourself rather than find them in the opinion.\n15\n\nWhat is the "difference" that makes the difference here? Review the\nprior examples. Do they seem so clearly different to you?\n16\n\n17\n\nAnother vocabulary word!\n\nNotice that would be under the criminal law. If you are studying torts, it\nis not important that you know what the law of manslaughter is. What is\nimportant is that you understand how the court draws by analogy to the\ncriminal law in its reasoning.\n18\n\nIsn\xe2\x80\x99t that true in many cases? Rarely does a manufacturer sell directly to\na consumer. How important is this factor to the court\xe2\x80\x99s outcome?\n19\n\nHere is a good example of reasoning that you don\xe2\x80\x99t want to mimic in\nyour own legal writing. Rhetorical questions are rarely excellent methods\nfor convincing a skeptical audience.\n20\n\n76\n\n\x0cHere is a perfect example to practice your ability to draw express\nanalogies. How is a gun and a horse like a bottle of drugs.\n21\n\nAs you are trying to draw the holding out of this case remember the\ncategories of IF X THEN Y, IF \xe2\x80\xa6, EVEN THOUGH\xe2\x80\xa6 AT LEAST SO\nLONG AS\xe2\x80\xa6. Which of these categories does this paragraph seem to be\nfilling in?\n22\n\n77\n\n\x0c'