How do you structure your answer to contracts exams? Simple. Break it down into the three general types of contracts problems: (1) contract formation; (2) contract breach; and (3) damages.
Here is a question I get pretty frequently from my readers:
“Can I succeed in law school even if English is my second language/I am a bad writer?”
Here is a more specific example of this I got a couple of weeks ago:
Apparently, a lot of Larry Law Law readers are not from the US.
Actually I address two questions.
First, if English is your FIRST language AND you were/are a terrible writer in college, I would say two things:
- Your writing can always improve with deliberate practice, i.e., someone giving you feedback, and you working hard to respond to that feedback; BUT
- You are facing an uphill battle. If you are a terrible writer — or worse, hate writing — why you are pursuing a career in the law, which is entirely based on expressing complex ideas with writing?
Second, I have different things to say if you are worried about your writing because English is your second language (and you are otherwise pretty bright), OR if you are a native English speaker but you rate your writing ability as just so-so — not terrible, but not awesome.
Here is the key and the good news.
Legal writing is its own thing. And law school exam writing is even more narrow and specific.
Law school exam writing has its own rules.
If you understand those rules and can apply them — or understand those rules faster than other students in your class — you will do well in law school, even if you are just a so-so or not-great “general” writer.
On the flip side: even if you are a very good “general” writer, if you do not learn the rules of law school writing, you won’t do well.
* * *
Law school exam writing gives life to the late Justice Scalia’s recital of an old aphorism about legal writing (which is expressed in the form of an SAT-like analogy):
“Legal writing is to writing as military music is to music.”
What he meant was: legal writing follows its own narrow form and logic.
No piece of legal writing will approach the beauty or lyricism of The Master and Margarita, Ulysses, or The Great Gatsby. Or A Song of Ice and Fire, for that matter (since I am obviously obsessed with Game of Thrones).
In fact, it is beside the point if you do.
Literature is art. Maybe a particular book has a purpose (exploring the ultimate ambiguity or simplicity of this life, shedding light on social issues, entertaining, uncovering the absurd, etc.). Maybe it is an end in itself.
Legal writing (by lawyers) is not art. It is functional. It has one purpose and one purpose only (“We’re gonna do one thang, and one thang only — killing Nat-zeesss….“): to persuade a decision maker (judge or jury) to make a particular decision within a framework of competing arguments.
Law school exam writing is functional. It is also not art.
Law school writing has a different purpose from general writing or even professional legal writing by lawyers.
The purpose of law school exam writing is to persuade your professor that you have spotted more legal issues, more thoroughly and creatively, than 90% of the other students in your class.
You must write well within these confines to get a good grade.
This is bad news for good general writers who don’t take the time to know what the confines of good law school writing are.
This is great news for anyone who is a mediocre writer or does not speak English as her first language.
IF you master the confines, the unspoken rules of law school exam writing, you will do well in law school.
Even if you make grammar or usage mistakes in English.
What might be unacceptable for literary writing or even normal legal writing — some level of typos, grammatical mistakes, unexplained or uncommon abbreviations — can be tolerated by law professors (“Professors are used to typos and grammar mistakes.”)
Want some proof?
Enter D., a law student at Berkeley Law. She was not born or raised in the United States (I won’t say where she grew up. I can say, confidently, not Mauritius). She did go to college in the U.S.
D. started KTCOOLS the summer before she started law school. She finished almost all of the hypos for several subjects before she went to law school.
When I had issue-spotting contests ($20 Starbucks cards as rewards), she won one contest and was runner up in another. (A lot of Starbucks gift cards I gave away…).
She won even though her submissions had some syntax or grammar mistakes that a native English speaker would not make.
But it did not matter. Her answers were superior to those of other students because she was absolutely fluent in the specific language of law school issue spotting and exam writing.
And her professors evidently felt the same way I did.
I caught up with her after her first semester, and this is what she wrote:
Think about that.
D. did well in her courses — and she had the second best grade in her whole class in torts.
She did better in torts than all but one person in a room full of students born and raised in the United States.
Now, she is off to a Vault Top 10 law firm in New York for the summer. (Actually, it is a Vault Top 5 firm, but who’s counting?)
D. was prepared, and excelled despite not being a native English spaker.
* * *
So, why is law school like this?
(And is this bad news if I am an excellent writer?)
Oooh, I feel another analogy coming on!
Think of the sports ice hockey and water polo. Both sports combine a variety of skills, but each has a single foundational skill. Meaning, there is one skill you have to at least be competent at to play at all:
- You must be able to skate to play ice hockey.
- You must be able to swim to play water polo.
But these foundational skills just enable you to play at all. If you are an awesome skater or awesome swimmer, it helps, but it’s not the point of these sports (Aren’t there separate sporting events dedicated to just skating and just swimming, right?)
You only need to swim or skate well enough to score goals:
- Wayne Gretsky, the greatest hockey player ever, was not the fastest skater (orbest shot, or biggest, toughest player, for that matter). He skated well enough.
- Despite having played water polo myself, I can’t name a single famous player. There is the Hungarian Men’s National Team. No famous swimmers amongst these players. Yet these guys swam well enough to win nine (9!!!) Olympic Gold Medals.
- Meanwhile, Michael Phelps — the most decorated swimmer ever — may or may not be a great water polo player. He might beat everyone else to the ball, but what can he do with it? Will he score?
It is the same with law school and writing. Writing is a foundational skill, but not an end in itself:
- You must be able to write to do well in law school.
- But you don’t need to be the best (general) writer in your class to grab all the As.
- You just need to write well enough to show you can spot issues better than everyone else.
* * *
One other story, in the opposite direction, about an awesome law student who was a terrible writer in other contexts:
I became the Senior Notes Editor of New York University Law Review late in my 2L year.
I had to edit the student notes (academic law review article written by a current law students who are on Law Review) of both 2Ls and 3Ls.
One unnamed 3L was ranked, if memory serves, in the top 10 students in his class (not 10%, top 10, Mitch McDeere style).
He was headed to a super prestigious Second Circuit appellate clerkship. He had attended a top-3 Ivy League college.
And oh, boy could he write well for his law school exams. (His class rank and clerkship showed that he was absolutely awesome at that.)
But when I got his student note, it was . . . at best profoundly confusing.
I had to work with my best editor to untangle the confused 100-page hedgerow of a word-collage, only to ultimately publish a somewhat-less-confusing melange of purported-English-language sentences.
To this day, I STILL do not understand how he did so well in law school.
But he did. And if the note was a fair sample of his writing, that boy could not write.
But he got As.
To my eternal confusion.
* * *
TL;DR version: Not-great writers can kill it in law school.
Even non-native-English-speakers can be top law students.
IF they deliberately practice the right thing: law school exam writing and issue spotting.
To prepare for law school success, easy-to-remember advice is best.
Like Jon Snow’s sword-fighting advice to Arya when he gifts her Needle:
That is the essence of sword-fighting.
Of course, sword fighting is nuanced. But if you panic in a fight and can’t remember the nuanced stuff, what can you do? Stick ’em.
Ned Stark, no sword-slouch, agrees that “stick ’em with the pointy end” is the essence of sword fighting.
Good gravy does Arya follow Jon’s advice.
So, what is the law school equivalent of “stick ’em with the pointy end”?
If I could reduce law school success to a single word, it’s this:
I cheated. This is an acronym made up of 6 words:
Take A Practice Exam A Day.
That is it.
Say it out loud.
It sounds like “tapenade”, or maybe a portmanteau for “a tapestry that you see at the French business school INSEAD” (Tap-EAD?).
If it helps (for those of you who think visually), imagine — to lock this in your head — yourself naked, covered in olive TAPEAD, while speaking business French and casually leaning on a tapestry that you are totally ruining because of the tapenade.
I won’t draw that for you.
So, TAPEAD: Take A Practice Exam A Day.
Simple advice. Easy-to-remember advice.
Why will this lead to law school success?
If you take a practice exam every day, you are actively exercising your issue-spotting muscle, the one skill upon which your grades depend (but that law school does not teach you directly).
If you follow this simple, easy-to-remember advice, you will survive law school. (Meaning: everyone passes, but you will do well.)
Now, TAPEAD does not contain every nuance on law school success.
When to start? When is “every day”?
Well, as soon as you can. Maybe starting the summer before law school.
In any case, no later than September or early October of your first year — do it every day.
I set out “the essence of it” in the video embedded below (I don’t call it “TAPEAD”, but you get the point):
Remember: even Jon Snow (who knows nothing) says “you have to work at it every day.”
Which is why the daily practice — to take a practice exam a day — is the essence of your law school success.
It may be weird, just after Mother’s Day, to write about my Dad.
But I’m gonna write about Daddy. (After Father’s Day, I’ll write about Mom.)
I used to tell a story — even in these pages — that I thought was funny about my Dad.
He used to hand out my business card to complete strangers playing poker at a casino. (He may still, for all I know.)
I always joked about an expected a midnight call from a complete stranger, going like this:
Complete Stranger: “Hi, Larry? Complete Stranger here. Your Dad says you’re a fancy pants lawyer and gave me your card. So, I, uh, think I killed someone. Not your Dad. Now what?”
Larry: “ . . . ”
There is a bit more to this story, when I think about it.
And when I think harder about it what it meant for my Dad to hand out my business card, I feel bad making fun of my Dad. (But only a little.)
So here is my deeper set of thoughts on this.
* * *
In casino poker (compared to private games with friends), you sit with strangers (maybe some regulars) for hours and shoot the shit.
The poker table is a chance to meet people from different walks of life.
And every time you meet a stranger, you listen to their stories.
You tell your own life story.
So that’s interesting. When we meet someone new, what story do we tell about ourselves?
What details do we think significant enough to share with someone we don’t know and may never see again?
What about his life did my Dad want to tell strangers?
For him, there is a whole lot of life to talk about.
To Americans, and I suspect even Koreans, my Dad’s life story was very interesting.
Born in Korea before the end of World War II under Japanese colonial rule.
Grew up speaking Japanese. Couldn’t read Korean until he was older.
WWII ends, his family flees North Korea to get away from the Communists.
The Korean War begins; more fleeing (south, to Taegu). The black smoke of war. More chaos for years in refugee camps. Separated from his family then reunited.
Before, during and after the armistice (the war isn’t technically over, you know), hunger.
Right after the war until my Dad left in 1960 for the States, Korea was a nation of drunk farmers.
The future looked bleak to my dad when he left. (How could he have known it would become the land of K-Pop, cellphones, Korean dramas, KAIST, etc., etc.?)
He got a scholarship to study in the U.S. and . . . starved again, for a while.
He was a busboy in Sinatra’s Cal-Neva.
He talked to Frank; he shook his hand.
He once saw Marilyn Monroe staggering around, a bit drunk.
He met and married my mom (of course I called her!).
He had some kids (I’m one).
He grew several businesses, sent his kids to Ivy League schools, lost it all on the stock market (several times).
Now lives in some comfort — my mom, golf, WWE and poker being the pillars of his life — but not quite as nicely as he would have liked to live his retirement.
* * *
And those are the few details that fascinate me that I actually know about. (Aziz Ansari’s Master of None has an awesome episode on knowing your parents’ backstories.)
It’s been a roller coaster ride.
Every time I talk to him, I try to pry another fascinating story out of him.
Here’s one he told me recently that seemed cute, then more significant the more I thought of it:
After the Korean War, he worked on a U.S. Army base shining boots and cleaning tents to help his parents . . . not starve. An American soldier gave him his first chocolate chip cookie and his first orange. Later my dad stole some cookies from a soldier’s care package because he was starving. The soldier noticed the missing cookies and asked my dad, “Did you take those cookies?” He confessed. The soldier then shouted, “Well, save some for me!” and never mentioned it again. Maybe this is why my dad came to the U.S.).
* * *
The “my son is a lawyer” routine is like this — a “cute” story that is more significant the more I think of it.
What of his amazing life details does he share with the complete strangers at the poker table?
Maybe he says he’s from Korea.
He was in the bar business.
He has kids and grandkids.
And his son is a fancy-pants lawyer back in New York City. (Back when I was in New York.)
Then, on cue, he hands out my business card.
One other detail.
In many societies you are a big deal because of who your parents are. The Kardashians have their own fame (is “infame” a word?) now, but when younger, they were “the kids of a lawyer to O.J. Simpson.” (I hear the show is amazing, but I have no desire to relive that time.)
This is a bit inverted in Korea (not entirely, but a bit). Once you have kids in Korea, people stop calling you by your name (which is rare anyway), and start calling you “Larry’s Dad” or “Larry’s Mom” (if your kid is named Larry.)
So, Larry’s Dad’s is the father of a fancy pants lawyer. (And here is the business card as proof.)
That is what Larry’s Dad chooses to tell a complete stranger at poker.
Korean Dads are famous for not being able to express themselves to their children.
So, since I’m from a newer generation:
I love you, too Dad.
I’m proud of you, too, Dad.
And thank you for everything.
Stick out that chest when you hand out your card.
(But the flowers were for Mom; wait until Father’s Day for yours.)
A change of pace today.
A lot of Larry Law Law is about how — how to kill it in law school, become a great lawyer, etc.
But this post is about why, and weirdly, wherefrom.
(Yes, I just made up a word. Put that in the Dictionary of Modern Usage, Bryan Garner!)
I like to think that Larry Law Law is about more than just law school and legal careers and what not.
I like to think that this site is a bit about the American Dream as well, and how each of us can help improve — ourselves and others — in pursuit of that Dream.
(I have Canadian students as well. Insert “Canadian Dream” where you see “American Dream” and we’re not far off. Except much of your country is colder and has better gravy-smothered French fries.)
I say this because many of us — myself included — are the children of immigrants.
Many of you all (my students) are children of immigrants, or immigrants too, having gotten to know many of you.
(Of course, many of you are not children of immigrants, but your grandparents or great-grandparents or someone at some point was an immigrant, so bear with me.)
Education is a big deal if you are the child of immigrants. It’s a way out of the limited circumstances of your immediate life.
My family was never exactly poor, but frankly education was the only way I was going to get the hell out of Reno, Nevada (great question: what Koreans in their right minds settle in Reno, Nevada? No one, that’s who. My parents were obviously not in their right minds.)
I wasn’t going to be able to get out of Reno as an athlete or poker player or model (although my feet are pretty, I would say). There was just school.
Funny, isn’t it, how excelling on something mundane like an exam or standardized test can be almost magical in how it can transform your life?
I’m not saying that we live in a complete meritocracy. We don’t.
But under the right circumstances, killing it in school can make all the difference.
(If you didn’t feel this way, you wouldn’t be reading this blog.)
Mostly, it means more choices — more money, yes, but more experiences, more travel, more connections, more interesting people in your life — in short, more of a chance to make the world a little better and your parents proud.
Becoming a lawyer — already a difficult academic task in itself — in an immigrant family can mean status and pride if your parents come from a country where lawyers are respected, and practically can mean being able to navigate tricky stuff (taxes, lawsuits, immigration issues) that otherwise are frightening.
Sidenote: In my case, “status and pride” meant that my dad would handout my Big Law business cards to complete strangers in the casino poker room where he used to hang out daily.
He would — I am not making this up — actually puff his chest out, hand a card to said drunk complete stranger, and boast “My son is a lawyer!”
Thanks, Dad. I’m still waiting for a call from a drunk stranger in jail. End sidenote.
Still, when I said that killing it in school makes all the difference “under the right circumstances,” what are those “right circumstances”?
Well, basically, in my view, even if you’re smart, you don’t make it on your own.
You also need people rooting for you, helping you up the ladder, helping you to make good decisions.
I went to Harvard as an undergrad. (Hold on — I’m not saying this to impress you, I’m saying this to tell you what an asshole I was.)
I once visited a finals club — those exclusive social clubs for rich private school kids. (A finals club is briefly shown, in exaggerated fashion, in The Social Network, an execrable movie, but whatevs).
These finals club kids had connections — their daddies or daddies’ friends got them fancy internships on Wall Street. They had help — paid tutors (like me) when needed. They had files at their clubs filled with old exams and essays (I saw this with my own eyes).
And at worst, their parents would support them financially if they messed up completely.
They had every tool, every means of keeping up good grades and getting jobs.
My reaction — when I visited the club, and every time I heard of some rich kid getting some fancy internship that I applied for and didn’t get — was defensive disdain:
“That’s not me. Look at me, I worked hard, Daddy didn’t help me at all — he has no network and speaks Mr. Miyagi-like English (sorry Dad). I got into Harvard all on my own without all this added help that these rich babies seem to get.”
But take a closer look at what I was thinking.
Only looking back can I see the terrible attitude, born of a scarcity mindset and envy.
Of course I wasn’t a rich kid like they were.
But in my moments of envy, thinking those bitter thoughts, I had utterly, horribly, ungraciously, ignored and forgotten every single person who helped me along the way.
My life was filled with mentors and people willing to help. They steered me, encouraged me.
There were teachers, but there were other, older students who had been there. Many of them (not all) were also the children of immigrants, but they had been there before.
I got into Harvard because of hard work, sure.
But it wasn’t just hard work.
I was lucky, too.
I went to a public school where there were older students who got into good schools (rare though it was), and those older students befriended me.
They were role models and advisers. They made me see that it WAS possible to excel, even at a public school in Nowheresville, Nevada. They gave me tactical and strategic advice and real encouragement. And they gave me friendship without strings.
Even at Harvard, though filled with assholes (like myself), there still were many, many other friendly older students who were more than happy to give advice and and help me get better.
Even before and in law school, my life was crawling with mentors.
I did well in law school, I am positive, because a high school friend who had gone to Harvard Law forced me to have drinks with him.
He brought his BARBRI Conviser Mini Review book to the bar, shoved it in my hands, and told me to pre-study the law, to never write case briefs, to start to look at real exams when I arrived at school . . . does some of this sound familiar?
I am positive without my friend’s intervention that I would have, like, briefed cases (gasp!) or some other dumb thing in law school that would have resulted in bad grades.
And when I got to law school, there were other students, upperclassmen, always willing to help me or answer questions or make me think what I wanted to do was possible. To me this is the key.
So, sure, I didn’t have the exact kind of network or benefits or riches that those finals club guys had.
But I did have my own, different networks and riches.
Many, many people helped me.
Any success I’ve had in my life was somewhat attributable to smarts and more to hard work, but a huge amount of it was luck in having people willing to help me — the right mentors to find me, guide me, and encourage me.
It was luck. I could have received the wrong advice. While I sought out mentors, I didn’t control which mentors would help me and if they had any clue what they were talking about.
Weirdly, in this narrow sense, we may have more control over the luck of others than the luck we receive.
That is, once we actually know what we’re doing, we may be better placed to bestow luck on others, to mentor those younger than us.
So, if I could leave you with one thing in this post, it is this:
Attain some success — in law school, as a lawyer, in life — and pay it forward, as soon as you can.
Once you have some success in something and can convey know-how that is useful to someone else, become a mentor and make luck for other people.
And pick mentees who can use the help — those who don’t have a network, don’t have riches, but have the desire and ability.
I feel like this is a great way to make a difference in life.
You don’t have to do it on a big scale or create an institution.
(And if you can help in a big way, do! Save the world! We need help!)
But, if I could ask you to do one thing, it is to be a mentor to someone else.
Answer questions, meet people for coffee, and help someone who can use it.
Short TL;DR version: If your law school grades sucked, even if it makes your upper or lower GI tracts quiver a bit, you must face your law professors for feedback on your final exams.
Now, the longer version for people who as kids would have done well in the Stanford Marshmallow Test:
As I write this, it’s cold. Where I am. And in most places where you are reading this.
(Or what passes for cold if you go to law school in California or Arizona. Or Texas or Florida…).
And maybe you feel . . . terrible. And that’s compounded by the cold.
Sorry for that.
Most everyone in law school (except maybe the top 3 people in the class), at some point get some grade that they didn’t like and didn’t expect.
(And even number 2 and 3 in a law school class have an axe to grind with some professor or other for not being number 1).
This post is not about what to do differently in law school.
Later, in another post, plenty of tips.
For this moment, Kleenex and active listening, for you and for me.
First tell me what’s on your mind: larrylawlaw at gmail dot com. (I read every email.) Or tell someone what you’re thinking and feeling. Talk it out.
Along with that, here are other healthy, well-recognized ways to cope with the painful feelings you’re having:
- Go for a vigorous run (or swim or bike or whatever).
- Cry vigorously.
- Go to vigorous therapy. (Find out why you went to law school, while you’re at it.)
- Have sex. Vigorously. (With someone you vigorously like and care about and are vigorously attracted to.)
- Meditate. (Vigorously.)
Kudos to the non-existent over-achievers who did ALL FIVE at the same time, with bonus points for juggling chainsaws and baby seals!* (Vigorously.)
*(No baby seals were hurt, even in my imagination, as I drafted this. So please relax.)
(And here is an incomplete list of unhelpful ways to cope: drinking, recreational drugs, overeating, 12-hour video game sessions, 12-hours of “not being the master of your domain” sessions, liking pictures from 5 years ago on your ex’s Facebook albums, binge-watching crappy shows, getting in twitter fights with basically anyone, etc. I’m not Nancy Reagan by any means — and it depresses me that I feel the need to include this link to explain the reference — but please trust me, guys, from personal experience, those other things don’t help you cope in the long term.)
Give yourself a little time.
Treat your feelings about law school like grief. It is. You are mourning the loss of something — the hope top grades and everything that may have meant to you (your identity as a perfect student, the pride of your parents and friends, being future Supreme Court clerk, whatever that might be.)
Mourn that lost optimism. (It’s OK to say goodbye to it. It was blind optimism.)
Then (and here’s the hard part): Once you’ve digested those painful emotions, get ready for more painful emotions.
Once you can look at your grades and your past semester with less (but not zero) pain, talk to your professor.
You must face Vader.
(Please tell me I don’t have to explain that reference. Darth Vader is not Nancy Reagan.*)
*(I am extremely proud of this borderline meaningless sentence.)
What I mean is: you must face your law professors in ALL the classes you did not do well in (and, frankly, if you want to kill it in law school, I suggest visiting every prof who did not give you and A or A-). And maybe even, to top it off, go to the profs whose classes you did ace.
BE SPECIFIC IN YOUR REQUEST FOR HELP.
Ask why you got the grade you did.
Ask in great detail about what it was that your prof liked and didn’t like.
Ask ask ask.
Ask to see your own exam answer, especially if it is marked up. (Few people do this.)
Ask if you can see a model answer. (Almost no one does this.)
And if your professor doesn’t give you a model answer, ask why you cannot see a model answer.
[Watch your professor faint or have his jaw fall and shatter on the floor.]
Now, for some of you (if you are a sensitive flower like me) this will be difficult.
But to be clear, do NOT:
- Complain about your grade or about the class. I have never heard of anyone succeed doing this.
- Complain about the professor; or
- Complain, come to think of it, at all.
And do not fool yourself (and you are the easiest person to fool):
Do not passive-aggressively ask questions about your exam while arguing that you did get everything your prof asked for.
So, I knew this guy (“This Guy”) from law school. A year behind me. This Guy was unhappy with his Civ Pro grade and went back to no less than to his professor, The Arthur Miller, and did this.
This Guy asked to see his exam. The Arthur Miller spent one hour going over This Guy’s entire exam with This Guy. This Guy kept arguing each point with him until The Arthur Miller blew up.
(To be clear: The Arthur Miller is the legendary former Harvard Law Professor, now at NYU Law, who helped shape the modern Federal Rules of Civil Procedure. He is not the playwright who married Marilyn Monroe, but maybe he wishes her were.)
To be clear: This Guy gets an A++ for balls. No fear, apparently, in badgering The Arthur Miller.
But This Guy gets a C- for having a growth mindset.
It’s funny that This Guy went for such small stakes — get a single grade changed — when he could have spent time learning from a master how to ace a law school exam.
Now, let’s be clear. Even if you don’t take This Guy’s approach, and instead focus only on learning, you should ask and ask and ask what a good exam looks like.
BUT your professor may get angry with you anyway.
Grading feels subjective to them, I think, deep down in their bellies. It does not feel super comfortable to decide the future of students in this way.
I do believe — much as I often crap on law professors — that they try to be fair.
But to come in to their offices with earnest questions, well. If they get upset, know that you tried. And there is little most law professors can do to you.
(Did This Guy’s grade in Civ Pro get worse because he badgered The Arthur Miller? No. Was he going to get a recommendation or anything else from The Arthur Miller? Nope.)
In any case, the point of this exercise is to learn.
To paraphrase Ramit Sethi, the point is for you to go from anger and disbelief and move to curiosity.
But you still have objections to facing Vader:
- It’s awkward.
- I’m too shy to do this.
- Isn’t this weird?
- The Arthur Miller has razor-sharp teeth and will EAT ME because I am a ginger.
Okay, except for the last, totally healthy and rational fears. (I am not a ginger, so I’m safe!)
Let me be brutally honest: do you want to excel in law school?
(Maybe — I am not being facetious — the answer is no, you don’t. Maybe law school wasn’t your idea at some level. But that story of law school as default option and subconscious sabotage is for another day.)
Even if you want to excel, it can be terrifying to see your prof.
You don’t have to deny or repress your fear, but you do have to face it and still perform.
(In fact, some recent research suggests that fear can help you. There is an great new book on this, The Upside of Stress: Why Stress Is Good for You, and How to Get Good at It (affiliate link), which helped me recently.)
And here, all “perform” means is summoning the courage to ask your professor for feedback on your exam and seeing, with clear eyes, the quality of your exam.
Maybe this is the first time you got anything but As.
If you choose to rabbit-hole (a new verb I learned of that means “avoid your fear by living in denial” something that I have done more times than I can count myself.), then that’s OK do that.
But there is a meta-skill to be learned here.
Great lawyers perform despite feeling deeply uncomfortable (or maybe, as Kelly McGonigal would say in that book, because they were uncomfortable).
Most actual being-a-lawyer situations are anything but uncomfortable.
And you might as well get use to it as early as you can.
Think: if you can’t ask a professor about your exam, how are you going to …
- Give bad news to a client (when that case is critical)?
- Face off against opposing counsel on a deal or a tough case?
- Face angry questions from a judge — questions upon which your case depends?
- Get a delinquent client to pay a bill?
- Interview hostile witnesses when they have information that could make or break your case?
- Interview friendly witnesses who you are pretty sure are lying to you?
- Push back on a job review where a partner is lying about you?
- Push back against a senior associate who is trying to throw you under the bus?
All of this stuff happens. (I can say that because I went through most of the above as a practicing lawyer.)
Even more, situations like these not only involve the ability cope with uncomfortable emotions and anger from other people.
These situations involve another critical skills that all great lawyers have: having a realistic understanding of situations.
How can you give your client good advice if you don’t know all the facts, good and bad? How are you going to deal with opposing counsel and avoid being blindsided unless you know all the angles?
So you might as well start learning the skills of managing discomfort and getting a realistic and precise understanding of what your professors were looking for and why you missed that.
Also, let me flip this around: What is the worst that could happen to you if you ask?
Don’t get me wrong. Sometimes it hurts to ask. (“Hey, it’s me. Friday night, I was thinking we could have the Johnsons over for some light couple-swapping… Honey? Hello?”).
Nothing happened, in the end, to the guy I know who went to Arthur Miller. There is no invisible blacklist for people who were obnoxious with a law professor once or twice.
And here, your grade is already in.
It won’t get worse if, worst case, your professor gets angry at your for asking why you got the grade you did.
(It won’t get better, either. Again, please be respectful and don’t complain or argue for a better grade).
But it is your choice: Will you let your fear and desire to avoid uncomfortable feelings stop you from getting the very information you need to correct course in law school?
And, if so, are you reinforcing a habit for your future legal career, in which fear and a desire to avoid uncomfortable feelings will stop you from doing what you need to do for yourself and for your clients?
Larry’s Note: As I mentioned before, the following piece was originally scheduled to be published in Above The Law. Ultimately they published only half of it, as they had a problem with some content (which was, I admit, a bit over the top).
So what follows is a complete version of the text I had written (they only published part 1 of the 2 pieces I sent, ghosting me after that). This is not original text as I’ve scrubbed it a bit since I sent it ATL. I took out some (not all) of the profanity (who says I never admit that I’m wrong?), but I re-included links to the posts of a particular anonymous law prof whose milquetoast advice inspired my piece.
Original Title: Rainbow vomit, violent ejaculation, and . . . law professor advice
Hey, 1Ls and LLMs:
So, . . . confused much? Having fun yet?
Not to worry, law profs are here to the rescue!
These pieces – summarizing quickly – contain the normal bromides on how to succeed in law school from law profs:
Go to class! Brief cases! Make your own outlines (don’t use commercial outlines)! Make love not war! Sleep! Fart quietly and blame the least attractive person sitting closest to you! Have a life outside of class!
Sweet Christmas, as Luke Cage would say, that’s great advice . . .
Great advice . . . for me to poop on (to mix video metaphors).
To be clear: This is not just another “law-professors-are-good-professors-for-me-to-poop-on” piece.
And lawprawfblawg’s pieces are not particularly obnoxious compared to other victim-blaming classics in the law prof advice genre. (Some of lawprawfblawg’s advice is even good in my view: e.g., I totally agree 1Ls should start outlining at the start of the semester, and not towards the end.)
But I am going to poop a little bit.
In short, law professor advice on how to study in law school is useless, for two reasons:
1. The professor conflates his expertise in judging good exam answers with expertise on how to study so you can write a good exam. Of course the professor is an expert in what he likes on exams, as he grades them. But how do you know he knows how to study to write an exam he likes? Law profs are, in the sense, like food critics: Just because you’re good at judging how food tastes does not make you an expert in how to cook food that tastes good.
2. This situation is exacerbated by the central incoherence in law school teaching (usually unacknowledged by law profs in their advice):
- Almost all in-class instructional and intended outside study time in law school is spend on doctrinal analysis (reading appellate cases and arguing outcomes where facts and laws are given and known).
- Most exams assess a wider range of skills – attempting to identify which laws studied apply to completely new facts. More than application, you are graded on how well you analyze the application of law to new facts, and your judgment in coming to conclusions that are probabilistic rather than certain (“It depends on the meaning of what “is” is.”).
Let’s deplore the sin and love the sinner here: Lawprawfblawg, I love you, whoever you are.
But I adamantly and solidly poop on (most of) your study advice.
* * *
Brief interlude: Why listen to me?
My side hustle is tutoring law students. Mainly 1Ls. From the gamut of schools: top law schools (HLS, SLS, NYU, CLS, Chicago, Texas, Berkeley, etc., but no YLS, UVA or Michigan), next-20 schools, regional schools (almost all NY), TTTs, and even online schools (suck it, Concord; you too, Northern California).
Point is, I serve individual students, not whole classes. My students want to do well. If they don’t look good, I don’t look good.
In my work, I’ve seen thousands of practice exam answers, lots of outlines, and hundreds of students in person and online. I talked with many about precisely how they study and prepare for exams. (Average law prof sees 200-400 exam answers a year, no? Some, more.)
I’ve seen many of their results.
I’ve begged and cajoled students to do more practice exams.
I’ve begged and cajoled them not to brief cases and to avoid other stupidities.
So that’s my perspective. I am not a law prof, but I’ve worked with a lot of students and see things more from their perspective.
* * *
Part I: Law professor as food critic (not a trainer of chefs)
Painful analogy: You’re in a cook-off. Something like Iron Chef. Two people offer you advice:
- Gordon Ramsey, he of the three Michelin Stars and anger management issues, screams at you: “This kitchen is a fucking mess, you’re burning the skate, just burning it!!!; no, now it’s raw!!!”(throws skate at your head), etc.
- Anton Ego, fictional food critic voiced by the late Peter O’Toole, hisses advice at you on how to prepare skate, and the best skate he ever tasted, and things like that.
What do we know?
- Gordon spent his life in kitchens, cooking for tyrants, and teaching cooking. He is an expert in reproducing excellent taste consistently and teaching people the same (even if they need years of therapy after working with him).
- Anton judges meals. He is the greatest (fictional) arbiter of taste in the food universe.
And incidentally, Anton Ego is the sole judge of the cook-off.
So who do you listen to?
False dichotomy, right?
Of course, since Anton’s the judge, you cook to his tastes. You listen when Anton tells you what he likes and doesn’t.
But why would you listen to Anton over Gordon when Anton tells you what pots to buy, how to set up the kitchen, how to cut celery, how much butter to use?
Does his good taste inform those mechanical questions?
So that’s the analogy. Imperfect and pedantic!
My point: Your prof is the Anton Ego of exams. He is an expert in judging exams. Listen carefully for what he says, openly or impliedly, about his tastes.
But, weirdly, law schools don’t have Gordon Ramseys, really. There is not an expert to explicitly teach you the mechanics of answering issue spotting law school exams. (Sometimes TAs, and sometimes profs in review sessions.)
Here’s my argument, more straightforwardly (but still rambling a bit):
1. The law professor is the only person who grades your exams. (Obvious point.) He alone decides who gets the all-important A, and who does not. He is — by definition — an expert in what he likes on an exam.
2. The law professor grades your exam blind. By design, he does not know (at the time of grading) who he is grading while he is grading, so he can focus on the quality of exam answers themselves.
3. I do not think law professors know, in any systematic or near comprehensive way, what their students do to study and prepare for exams. A practical way to prove this is the following challenge:
- To law profs: if you have this data, please send it to me or (if you don’t want to share) write me to tell me you have it (larrylawlaw at gmail dot com).
- To law students: This week, go to office hours to any prof and ask “How do your students study?” Politely interrupt when he tells you what they should do, and repeat your question: “OK, I get what they should do, but what do they actually do? Especially your top students?” Write me if your prof gives you an answer.
I am not sure that most law professors have the time or means to find out how their students study, even if so inclined. Career advancement is based on “publish or perish.” Great teaching reviews don’t help. They have even less incentive to find out how students actually study and whether those study methods correlated with good exam outcomes. Doing that advances none of their career goals.
4. Combine 2 and 3, and it is clear that most law professors have no comprehensive basis for saying what study methods produce superior exam outcomes.
5. So, when law professors give advice on study methods, what is that advice grounded in? Three sources, I think:
- Anecdotal evidence: inferences they can make on the text of exam answers themselves (hint: bad ones stand out; good ones fit the prof like a glove)
- Anecdotal evidence: self-selected students show up to office hours AFTER their exams to complain about their results (I had only one good student show up after his exam to ask his professor why he did so well on the exam.).
- Anecdotal evidence: Law profs’ own study methods that let them succeed in law school.
But I think this anecdotal evidence, based on the travails of struggling students, skews law professor advice to the general population.
Example: Standard law professor advice is not to use commercial outlines; lawprawfblawg argues this (who, to be fair, he or she has more intricate advice on this point, but this is the crux): “Unless you have a commercial outline written by someone whose name your professor recognizes, then, in my opinion, you should probably avoid it like the plague.”)
Some profs I have read or spoken with give this advice because they graded terrible exam answers that clearly cribbed from Emanuel’s or Gilbert’s.
Law professors who tell students “don’t use commercial outlines” believe that those who use them do so to the exclusion of going to class, listening to the prof, or doing the reading.
But the causal questions that goes unexplored: Did commercial outlines cause student failure?
Or (leading question here), is the obvious (meaning, apparent to a law professor on reading an exam) use of commercial outlines, made apparent on an exam, a symptom of study failure?
Ooh, here comes another terrible analogy!
Suppose you are starving to death.
It’s your fault. You haven’t left the house for weeks to shop for food because of, I dunno, Worlds of Warcraft, or something even less seemly.
You are so weak that you can’t leave the house. You ransack the house and all you can find that is close to food is a bottle of Flintstones vitamins, and a big bottle of Vitamin E.
You gobble them down and pass out.
A medic later finds you vomiting rainbow-colored sand and violently and copiously ejaculating.
You jack-knife on the floor, retching from both ends, to borrow from Cervantes.
(Note: Wikipedia tells me bizarre or horrible things are more memorable. You’re welcome)
When you wake up, the medic berates you: “Dude, Flintstones and Vitamin E are not food! Bad you!”
But Dr. House arrives and berates the medic: “Of course they’re not food! He ate Flintstones and Vitamin E because there was no food, dipshit!”
To be even more pedantic:
- Flintstones and Vitamin E are supplements, which help people when used properly. Similarly, Emanuels or Gilberts are supplements which help law students when used properly.
- Flintstones and Vitamin E are not food replacements. Similarly, Emanuels or Gilberts are not replacements for going to class and preparing properly (I won’t say “preparing as your prof asks).
- People who use Flintstones or Vitamin E correctly are hard to spot because they do not walk around in broad daylight, vomiting colors and nutting violently. Similarly, law students who use Emanuels or Gilberts correctly may be hard to spot — they may write good exams tailored to the prof and know well enough not to crib from commercial outlines or apply law never studied in class. (And others — such as my law prof friend Eric Johnson — have advocated ”>the use of commercial outlines as a starting point to understand the law before turning to cases.
6. On top of all of this, law professors themselves had law professors who believed that legal analysis is a gift from God/Crom/Ctuhulhu/Chuck Norris.
The corollary of this is: legal analysis is a God-given gift cannot be taught.
This is self-validating for professors, but a destructive, self-fulfilling prophesy that excuses professors from teaching the precise skills that result in exam success. Maybe not to the small number of people who would get it in any case, but what about everyone else?
Consider this quick, assholish fake FAQ I wrote on behalf of law professors:
Q: Who has two thumbs and kicked ass when he went to law school?
A: [Thumbs pointed inward.] This guy!
Q: Who has two thumbs and is teaching at a law school because he kicked ass in law school!
A: [Thumbs pointed inward.] This guy!
Q: Who has two thumbs, is teaching at a law school, and kicked ass in law school because he worked very hard to master teachable methods that can be reproduced by diligent students and that I would now like to share with you!
A: [Droopy thumbs + cough] Wait, no, I’m a natural, dude! Like my professors before me!
If you believe in innate specialness, well, you can’t teach what you think is simply given. (See: Babe Ruth, John Holmes.)
And in a way, I think this is the legacy of Christopher Langdell, who first created the muddled, bow-tie, cold-calling, some-students-are-special-snowflakes-and-all- others-get-Bs system we have now.
I turn to that now.
Part II: Bait and switch
A lot of what I say above sounds like it is vilifying law professors. It is a little.
But deeper down, what my assholish comment mask is my own belief that law profs are generally good people coping with a messed up system.
Perhaps not coping well. But maybe there are no good ways of coping with something messed up.
Fundamentally messed up.
The underlying problem with professors giving advice is that they do not acknowledge (or, worse, may not be aware of) the central incoherence of how law school has been taught since Langdell:
Nearly 90-95% of your time in law school is spend on doctrinal analysis – reading cases and analyzing what outcomes should be given known facts and known law.
100% of your grade on final exams is based on an assessment of a wider range of skills, of which close case analysis is but one. And none of the skills other than doctrinal analysis that you need on an exam are explicitly identified or taught, really, in your core law school classes.
Professors advise you — in late November(when it’s too late, in my view) — to take practice exams. Most don’t say more than mentioning IRAC (Issue Rule Analysis Conclusion) on how to do issue spotting. Most don’t teach how to spot issues, which you need to apply IRAC in the first place.
But your grades — and your professional future — rides on you acquiring those skills somehow, despite this minimal or non-existent guidance.
Let’s dig deeper.
During and outside of class you:
- Read cases and try to understand them without guidance (you know now there is no textbook explaining the law; you figure it out on your own).
- Answer questions on the facts of the case to make sure you did the reading like good
- boys and girls: “Mr. Hart, please recite for me the facts of Hawkins v. McGeeeeeee!”
- Answer questions about procedural or other aspects of the case.
- Answer questions about whether case outcomes are correct in light of controlling or persuasive precedent.
- Sometimes argue different sides of a given case.
- Listen to windbags (sometimes professors, always gunners) bloviate.
These case analysis skills involve assessing case outcomes, with set facts, laws and arguments.
Maybe you debate the propriety of outcomes given the facts or previous cases. Maybe you’re asked to develop your own arguments based on facts and law. And sometimes you’re asked about outcomes on hypothetical facts not far removed from the case, but still fanciful (“OK, same case, but here a giant robot molests an emu attacking Mr. McGee? What result?”)
On the final exam you must:
- Identify colorable issues, i.e., laws that may colorably apply to specific facts that you have never seen before and that may be incomplete.
- Create arguments: once you identify issues, you make the best arguments you can on both sides, filling in gaps with common sense or inferences based on the facts. (This is harder than rearguing appellate issues that you might do in analyzing a case in class.)
- Apply objective case holdings to offer probabilistic conclusions on which arguments you created: You offer even tentative conclusions based on objective holdings of cases you’ve read.
- Exercise legal judgment: This is more than coming to correct legal conclusions. It is a “meta” skill that shows the professor that you can sort wheat from chaff that involves all sorts of other inquiries:
- How certain were you about a conclusion?
- Should you have been less certain given the complexity of the facts?
- Did you spend too much time on an easy issue?
- Not enough on a hard issue?
- Make a totally insane argument?
- Neglect a glaringly relevant fact? Suggesting filing useless motions in civ pro?
- Fail to raise colorable claims, but focus only on clear winners (that everyone else noticed, too)?
- On exams, facts are completely new to you. They are not completely given (you have to fill gaps). Laws are not given to you. Or that is, the laws you should apply are not clearly marked – – you might have an open book exam and get to bring your outline, but the prof does not tell you in advance which laws apply to particular facts – you decide that.
This is a big gap, between what professors spend most of their time teaching, and what you are actually graded on.
And class room discussion can be confusing — what with the hypos involving giant robot and emus, how can you discern what your prof is going to do with something that crazy?
In fact the professor does care that you know actual case outcomes and there is a more or less objective way to apply them to say if a given claim (that you constructed from scratch) would likely to succeed or fail.
Class and study time is for criticism and close reading of cases. Important skills.
Exams test your ability to create and objectively assess your creations: to spot issues, construct legal arguments, and resolve them in reasonable way (in the prof’s eyes) in an insanely short amount of time. Important skills.
SO where was the class time dedicated to teaching those important skills?
How fair is it to students — or the professors that implement this insane regime — to test skills not taught in class?
To have grades and, not to be dramatic, future careers depend on how well students can navigate the tension between what is taught and what is tested?
Two sets of thoughts to leave you with:
1. For self-interested students:
The gap between what is taught and what is tested creates an opportunity to get good grades by deciding not to follow standard law professor advice on studying. The herd will follow that advice and do nonsensical things like brief cases, avoid commercial outlines, etc. By choosing an alternate study methods aimed at exam taking rather than case analysis, you can get top grades. I’ve seen it.
Still, listen carefully to law professors when they tell you (wittingly or not) what they like on exams:
- When engaging in Socratic dialogues in class, what types of arguments do the like and dislike?
- What are their pet theories? (I once got an undeserved A in crim pro just by repeating the phrase “representation reinforcement” a million times on an exam.)
- What specific phrases do they prefer or hate? (Ex: My crim law prof wanted you to use the shorthand phrase “Leningrad Drunk” or “LD” — a reference to a crawling-on-all-fours, black-out night he had as a grad student — rather than “the intoxication defense”).
2. For law professors:
No one of alone you can fix the system, but do any of you (other than Eric Johnson) find this whole system insane? Is there no other way than The Paper Chase in the 21st century?
- Why bait and switch students? Why teach cases but test issue spotting (and not even acknowledge that these are not the same thing)?
- What is the pedagogical value of making law students — from day one — figure out the law on their own from reading the holding of appellate cases?
- Why suggest to students that briefing cases is important? What do they get out of this stupid text-dissection exercise?
- What is the long-term value of making students outline? What does that accomplish that just giving them an outline and lots of practice or real exams doesn’t do?
- Why only one final exam? Why not several through the semester? No educational theory says the best way to assess students is give one exam and disappear forever.
On the other hand, nevermind. I am arguing against self-interest here.
Without this insane set up, I would have no customers. Keep it up!
PS. No, dammit, in the end, I change my mind. Those better angels of my nature win.
Law profs: please fix this fucking system. For the sake of your students.
No, don’t ask me how. I’m not that bright.
You all (law professors) are, though. You are the best and brightest.
So please do something about this insanity.
If you really listen to law school advice from law professors, you would think their job is a giant act of tough love rather than, um, f-ing TEACHING.
Exhibit A: an excerpt from this Journal of Legal Education article:
“This article accepts the now-common assertion . . . that law professors should make explicit the analytical skills their students must learn.”
Okay, let’s unpack this:
- Is it even a point of debate that law profs should teach the skills they want students to know? Meaning, is the default belief that profs are not teaching students the skills profs want them to know?
- This idea is only “now-common”? Meaning, only recently did some law professors accept this idea.
- Also: this is merely an assertion. Meaning, actually teaching legal analysis skills is not something these law profs believe they actually do.
To be fair, the article I linked to is a step up.
Most law school advice by profs is just stupid.
It does not acknowledge the central importance of legal analysis skills.
It focuses on dumb bromides like “eat breakfast on exam day” and “masturbating the night before an exam is not bad luck.”
(Wrong: it is.)
Many profs refuse to tell you the various skills you must apply on the final exam–as if doing so is cheating somehow.
(Remember, you paid up to $250,000 to teach yourself legal skills, not to be spoon fed by a professor!)
So, anyway, like any full-of-himself writer, I complained about crappy law school advice from profs in the pages of Above the Law, as a guest blogger.
I specifically wanted to call out an anonymous author, lawprofblawg (perhaps a name selected in homage to prawfsblawg), who writes several largely insipid bits of so-called law school advice to law students, also in the pages of ATL.
Specifically, he says to avoid commercial outlines like the plague.
As I said before, I disagree. Commercial outlines can enhance your understanding of the black letter law that you must know for your exams.
Especially because law profs hide the ball on what the black letter law is. (You are supposed to glean it from the cases, dummy!)
So I submitted a post to Above the Law. The piece (which ATL edited, as I’ll explain) is titled Rainbow Vomit And Law Professor Advice Part 1 Of 2.
On the other hand, looks like that’s my last piece for ATL for now. And likely forever.
(Despite my other rousing pieces on online law schools, and how getting a sex change is easier than quitting law school.)
An ATL editor refused to publish Part 2 to an article that is entitled “Part 1.”
This is probably because they heavily edited my piece at the last second, and I heavily objected.
I should have played nice but . . . too late.
ATL omitted all references to lawprawfsblawg, whom I had specifically called out on his dumb law school advice.
The ATL editor, in his words, took out “the specific references to another columnist as not vital to your point, not to mention possibly causing us completely unnecessary headaches should the other columnist be offended.”
I confess I had not realized before that sensibilities at ATL were so delicate.
Anyway, when you read Rainbow Vomit, think of lawprawfblawg.
(Because Big Aspirin pays me the Big Bucks, and I love to cause “unnecessary headaches.”)
. . . if I could convince you to focus on just one thing early in the semester in law school (and ideally earlier).
And I am going to spend another long post and over 30 minutes of free video trying to convince you to do this one thing.
But before I tell you what that one thing is, it’s all my fault.
I scattered your focus.
I have given you advice on a bunch of different things, in three previous pieces:
- First, you’ve learned about the three pillars to law school success.
- Second, you’ve learned what not to do in law school.
- Third, you’ve learned how and why to master the law (by learning the elements to all of the major claims and defenses of a given area).
Now, don’t get me wrong.
These are all good tips.
I mean, I wrote them, so they must be awesome [read some irony into that, please].
(It would be strange if I suddenly declared, “HA! I was just kidding! This is all shitty advice!”).
Still, if I could leave you with just one tip, it would be this:
TAKE PRACTICE EXAMS!!!
That’s it. Sorry for shouting.
Oh, and one other thing:
TAKE MANY CRAPLOADS OF PRACTICE EXAMS.
Oops forgot one more thing:
TAKE MANY CRAPLOADS OF PRACTICE EXAMS . . . EARLY IN LAW SCHOOL.
This is it.
After years of tutoring laws students in person and watching them on my previous online prep course, this is the one thing all successful students (read: students who got As) have in common:
THEY TOOK BOATLOADS OF CRAPLOADS OF PRACTICE EXAMS . . . EARLY IN LAW SCHOOL.
Made you look!
But I hope this makes sense of my previous posts.
All of the were aimed at helping to position you to do practice exams.
You need to understand the general framework, learn to avoid doing the things that will prevent you from practice exams (briefing cases and other stupidities), and learn enough law so you can issue spot.
And that’s the key right?
Taking practice exams is the key to getting to practice issue-spotting.
ISSUE SPOTTING, my little chickens!
The skill of skills!
But it is more specific than that.
Issue spotting is a general legal skill — a critical legal skill that, in my mind, divides lawyers and non lawyers.
But your mission is more specific: to master the particular kind of issue spotting on a final exam, under the conditions of a final exam.
This is something you do on your law school exams, the bar exam, and then never again.
When you are a lawyer, no one is going to point a gun at your head and tell you “find all the issues you can in 3 hours within this strange set of facts that you’ve never seen with no access to legal research tools, just based on what you’ve memorized, do well or I will kill you, and …. GO!”
The funny thing is that despite the fact that issue spotting is critical to your life as a lawyer and is the very thing you are tested on under very difficult conditions (huge time constraints, no research tools), your professors . . .
. . . give you no encouragement to think about issue spotting ON AN EXAM until maybe November of your first semester, and
. . . give you very little guidance on precisely what to do on those exams or what they are looking for.
So let me help you with both. Let me help you with more than that. With 5 videos below.
1. Issue spotting: What is an issue?
Since practice exams, are about issue spotting, it helps to know what an “issue” is, how to spot an issue, and how to analyze an issue.
This first video — replete with shotguns and Smurfette — is helpful with identifying what I now call “issue hooks: facts that trigger legal analysis.
Another way to put it: An issue is not the same as a successful claim. An issue is basically “any fact or facts worthy of further legal analysis.”
2. Issue spotting: Think “can I make an argument,” not “can I win?”
Before I get to the next video . . . issue spotting involves a slight mindset change. Actually, scratch that. Law school and being a lawyer involve big mindset changes.
We commonly think of the law as being very clear. It is important to notice that you are influenced by the casual portrayals of the law on movies and TV. The law is usually clear (Don’t kill people! Don’t steal! Don’t have sex with that rabbit!), but the facts are a mystery (Who dunnit? Who killed? Who stole? Who, uh… Framed Roger Rabbit?).
In real life — and for your purposes, on law school exams — it is the opposite.
You are given facts (and you may have more to investigate) but you usually must give an initial legal assessment based on the few facts you do know.
And your answer will rarely be a yes/no answer.
In many instances, you have pretty certain legal answers.
But in many, many more, there are gray areas. They are gray because you are given incomplete facts (ones that do not cleanly or easily allow you to determine who has winning and losing claims and defenses). They are gray because you do not know what a judge will buy.
We as lawyers and law students — we don’t deal with certainties. Let me put it this way: If you could just look in a single book and know the answer to legal questions easily, we would be out of jobs.
Many questions are this easy. But people go to lawyers because they have problems that aren’t so easily answered.
We deal with legal probabilities. In the end an at least somewhat unpredictable human being (or group of human beings, if there is a jury trial) will decide your case.
So: do you raise only clear winners? What if your facts give you no clear winners? And yet as a lawyer you’re obligated to do your best.
So you raise every claim or defense that a judge might be somewhat likely to accept that will win your client the case.
And in planning the case and advising your client, you also anticipate and think of every claim or defense that the other side might well raise that could hurt your client. That way you can provide the most accurate advice you can to your client about whether she has a good claim and it is worth proceeding with a lawsuit (which is fun for no one, not even the person bringing it), or whether you tell your client it is probably better not to bring a claim.
Now, we lawyers and law students have a technical word for “a claim that is sort of a stretch but maybe a judge will buy it because it is at least not a laughable claim.”
Think COLORABLE when you are doing a practice exam or a real exam.
Now watch this damned video.
3. Issue Analysis: IRAC
Okay, so this is a little advanced, but you should have a preview.
This is my take on IRAC.
What in God’s name, you ask, is IRAC?
IRAC is the standard issue analysis framework you are given:
In my mind, this is more a description of what answers often contain rather than useful guidance on how to answer legal questions.
My video focus on using IRAC to follow different shifts in viewpoint, in mindsets as you work through a single legal issue (a single claim).
These mindset shifts really will help you flesh out excellent answers. And I have honestly not heard these anywhere else:
* * *
Now for some nitty-gritty. Now that you know a bit about issue spotting, a couple of videos on practice exams.
4. Take practice exams, early and often.
So we’re back to this point.
Law students are usually told to take practice exams in November after outlining. Most only start this in late November or early December, just before exams.
But this is a terrible idea if you want to be a top law student.
You must take practice exams early and often because we have to assume, ex ante, that you are not a special snowflake. Let’s go through a bit of reasoning:
- All of your classmates are about equally smart and equally hard working. You are no better an no worse than your classmates. You’re in the same law school, after all. (And if you think otherwise and believe you are The Special, then why are you here, hanging on my every word for advice?).
- This means that most of you will learn at roughly the same rate.
- Frankly, most people eventually do understand how to issue spot effectively. It just takes time.
So question for you: If you start taking practice exams EXACTLY WHEN EVERYONE ELSE DOES, and if everyone else is just as smart and just as fast at learning things, what makes you think you will get As?
(I mentioned the forced curve, right? Only 5-7% of the class will get flat As).
So how can you get ahead of your class?
My answer: taking practice exams, early and often:
5. Take practice exams like they are real
I had a swim coach, a reasonably wise old swim coach who always told me, “Never practice like it’s practice. Always practice like it is a real swim meet.”
It took me a lot of years to understand what he meant. I had long stopped swimming.
When we practice something, we sometimes don’t give it our full intensity.
And this is understandable because it is utterly exhausting to give it your all every day.
But you need practice doing it.
Not only do you need to have practice issue spotting, but you need to have the practice of taking an exam under exam conditions — under the time pressure and physical conditions that you would face.
Did you know, for instance, that Presidential candidates usually practice in a mockup of the real venue. They try to make everything the same, including the decor, the lights, the temperature so that everything feels as natural as possible to the candidates.
You should do the same.
Impose hard time-limits on yourself (you will think at first that you have an impossibly short period of time to do these things). Wear what you might wear.
Sit in a place that is as much like a real exam as you can (like, don’t take exams sitting in bed in your Green Lantern pajamas eating Count Chocula).
And follow this advice:
Finally: Selling you on two things.
So these were my free tips. Even more will come as long as you stay subscribed to this newsletter.
I give most of my content away for free.
Look away now if you don’t like being sold on things.
I am about to sell you on two things: one is a (free but difficult) idea; the other is a (not free but easy) product.
First, the idea: My advice is utterly useless to you unless you follow it.
A lot of the tips I give you will help you, but only if you follow them.
It’s like reading a diet book. Great to have the knowledge, but if you don’t follow it, you won’t get healthier. I really want to see you excel.
So whatever you do: if you like my tips, really work to incorporate them into your law school life.
Second, the product.
But just before the product. Yes, it is very hard to follow these ideas.
This is why I created an online program to help you focus and practice the things that will lead to law school success:
It’s called Kick the Crap Out Of Law School (or “KTCOOLS” for short).
It is the product of many years of hard work and experience, trial and error. It contains the best tips I learned took many years of being as a tutor to top law students, and my previous work in running an online law school prep course.
Let me help you become a top law student.
Let me help make law school easier for you (because I would be lying if I said “I can make it easy for you”).
Let me give you a clear plan, a clear roadmap to law school success.
But it’s more than that: I don’t just point you to the path, I walk down it with you.
KTCOOLS is not just a bunch of battle-tested specific tips (it is that as well).
KTCOOLS is also the many, many, many practice exams I give you so you can get better at issue-spotting.
KTCOOLS is also the post-exam analysis, the self-scoring sheets, the debriefs, and even (at times) video analysis I do to help you tell the difference between good answers and bad answers.
KTCOOLS is as close as you can get to having me AS YOUR PERSONAL LAW SCHOOL TUTOR.
(And you get the benefit of my exam wisdom without the awkwardness of having me stand in your living room demanding milk and cookies in a shitty Batman voice.)
Sign up below to be on the waitlist for the course. We are launching very very soon, please stand by!
To be clear, the course itself is ready. The holdup is that I did a launch to a small group of people, and that soft launch revealed technical problems with my payment processors that I am trying to clear up.
So sign up for the KTCOOLS waitlist for this course below (but only if you’re not on it already!):
I promised not to be so negative, but to tell you what you should do.
This time — the third part of a five piece series — I focus on the first pillar to success: master the law.
I have got a practical video on this below.
(Yes, I did those awesome drawings myself.)
Once you are done with the video, please read the below. (It is different that what is in the video and, if anything, will make the video make more sense.)
Mastering the Law and the Three Pillars of Law School Success
Let me get even more basic for a second.
As I mentioned before, there are 3 components of studying law you must focus on to succeed in law school: mastering the law, mastering issue-spotting, and mastering your professor.
In what follows, I talk in detail about issue spotting just so I can explain why you need to “master the law” more clearly.
Now, of the Three Pillars of Law School Success, mastering issue-spotting is the most critical by far.
It is the skill, I would argue, that makes you a lawyer.
Issue-spotting, to me, can be reduced to this: a friend tells you a crazy story about something badhappened to her and asks you “can I sue?” If you can answer that question accurately, with proper care, nuance and creativity, you are issue spotting. (Honestly, if you can do that, you are a motherf-ing lawyer in my book.)
BUT – big “but” there – before you can issue-spot, you need to know what the law is.
What do I mean by “master the law”?
To “master the law” in a given subject area (for instance, “criminal law,” “torts,” “tax”) means: to memorize (1) all the major claims and defenses of a major area of law; and (2) all the elements of each major claims and defenses in that area of law.
Now, what is a “claim or defense”? (I am being a little casual here, but you’ll forgive me later.)
It is the legal basis of lawsuit or criminal charge: “intent to kill murder” or “battery” or “negligence.”
And what is an “element” of a claim or defense?
The elements of a claim are every point you need to prove with facts to win a case.
A single element is a building block of the legal basis of a law suit or criminal charge: For instance: “intent,” “killing,” “caused apprehension of imminent harm, etc.”
(This is an oversimplification, but one you need right now).
A food analogy…
Think of claims or defenses as “legal recipes” and elements as “ingredients.”
You want to win a lawsuit (you want to eat a dish of something yummy).
You have to follow the recipe and have every ingredient to have that dish of food.
Think of something simple.
A root beer float.
The recipe for a root beer float requires: (1) 12 ounces of root beer; and (2) 1 scoop of ice cream (usually vanilla, but if you want to make a mess, please, be my guest, scoop and dump that Phish Food into your frosty mug of Mug).
Now, you can have varying amounts of root beer and ice cream. But you have to have both to say, with a straight face, that you’ve got an ice cream float.
No root beer? Not a root beer float. You’ve just got ice cream. You don’t even have a “root-beer-free root beer float.” That is nonsense.
No ice cream? You’ve just got root beer. You don’t even have a “low-cal, ice-cream-free root beer float.” That is equal nonsense.
Let’s not take that analogy too far. You get my point.
To have a prima facie case (your hot dish of yummy food), a chef (lawyer) started with a legal claim or defense (recipe), and met every element (added each and every necessary ingredient).
BUT BUT BUT: Law school is not that simple.
Because with law school exams, it’s not like you study recipes, and your test is to go to the store and buy the ingredients and make the dish.
NO. It is much harder than that.
A law school final exam is like the TV show Iron Chef.
For those of you who don’t know: On Iron Chef, you are given surprise ingredients and a limited amount of time, and have to make dishes using only the recipes (claims and defenses) you have in your head.
What is going on in the head of the Iron Chef contestant at the beginning of the hour?
She is reviewing the ingredients (what do I have?) and thinking “what can I make?”
But to do that well, she needs to have lots of recipes in her head, and she needs to be able to use them actively. She is not holding recipes in her hand to go shopping. The shopping has been done by some asshole TV produces.
She has to mentally review the recipes in her head and think: what combinations of individual ingredients allow me to create what dishes?
What am I going to make?
Seth Rogan, A Bong, and What It Means to “Master the Law”
So let’s use a non-food example.
Pretend for a moment: Seth Rogan looks me in the eye, swings at my beautiful (Bat-masked) face with his 6-foot tall glass bong, and makes contact. I am bleeding. Badly.
(But please, don’t mind me. Keep reading. I’m fine.)
Can I sue? Would I win?
How do I know the answers to those questions?
In casual conversation, we might think he owes me some kind of money. The dude hit me. The worst person in the world hit me.
How would a lawyer treat this?
A lawyer would not let me go to court and scream, “Waaaaaaaah, the star of The Interview hit me in the face with a bong and I am bleeding, GIVE ME MOOOOOONEEEEEEYYY!!!”
No. I have got to speak the language of the law. A court hears me say that and hears a toddler’s babble: “Gah goo goo blah boo boo MOOOOOONEEEEEEYYY!!!”
My lawyer has to present a dish, identifying a recipe and presenting each and every ingredient required by the recipe. to mix metaphors, my lawyer must say something to the court that is complete according to the rules of legal grammar (at least subject and verb, let us say).
Seth Rogan’ physical violence here is only the beginning: it starts us on our search for legal theories (claims) that we can win on and that a court can recognize.
So, my lawyer starts like the Iron Chef contestant, in search of a claim to
apply (issue spotting), and then we need to apply it (issue analysis).
Sounds like . . . well, what torts deal with hitting someone?
- Assault? No, under the law, assault is “almost hitting someone or pretending to hit someone.”
- Intentional Infliction of Emotional Distress? No, that’s not it either.
- Negligence? Maybe. Hitting is sometimes involved. You know, the State Farm commercials seem to involve a lot of stuff being wrecked. Maybe people. Gotta think more about that.
- Battery? Yes, that sounds more like it. Battery is “hitting someone on purpose.”
Now we know we need to do issue analysis.
Analysis means seeing if we can identify facts (or make factual inference) that match each and every element of the claim.
But we need to know what every element of battery is to do this analysis.
We need the “recipe.”
And not only that, but we need enough recipes to find the right one.
(By the way, I realize you are pretty chill and probably stoned, but if Seth Rogan’s people are reading this, SETH ROGAN NEVER HIT ME IN THE FACE WITH HIS BONG. I SHOULD BE SO HONORED. THIS IS A WORK OF FICTION – CRAPPY FICTION – WRITTEN PURELY FOR PEDAGOGICAL ENDS THAT YOUR FREAKS AND GEEKS PERSONA SHOULD SURELY APPRECIATE. OR NOT. DIDN’T WATCH THAT SEMINAL SHOW. YES, SETH, I SAID “SEMINAL.” JACKASS.)
So here is a simple definition of battery, which has five elements:
“A battery is (1) an intentional (2) offensive (3) impermissible (4) touching (5) that caused harm.”
There are other formulations of battery – just as there are sometimes different recipes for even simple dishes. When you are in school, use exactly the definition your professor gives you. But this will be pretty close to what you learn.
Each element may seem clear, but we should discuss each one further.
And after that explanation, let’s see how the facts (or inferences I can make) fit the elements of law:
- Definition: “Whatever you did, you did it on purpose, not on accident.”
- Facts: Seth Rogan eyeballed me [fact], which is strong evidence that meant to hit me [conclusion]. If it were an accident, maybe he wouldn’t have looked at me [factual inference].
- Definition: “This thing you did is generally recognized as not so nice as we normally understand it.” (Super technical, right?” Not a light pat on the back.
- Facts: This is easy, no one thinks getting hit with a ridiculously oversized “I am compensating for something” bong is nice.
- Definition: “You did not have permission.”
- Facts: In the facts as given, I did not turn to Seth Rogan and say “please hit me with your bong” or even “I don’t mind if you hit me with your bong.”
- Definition: means “made physical contact with me.”
- Facts: I am a human being, and Seth Rogan’s bong made contact with me.
(5) That Caused Harm
- Definition: this means “it hurt me in some way” (but the law of battery recognizes some dignitary harms that don’t require broken bones or blood being drawn). Spitting on someone is sufficient harm, as is an unwanted grope in an erogenous zone (no harm to the tissue, but clearly unwanted and terrible for the person).
- Facts: Yup, that hurt.
- Note: Sometimes this is an optional element for proving liability. Sometimes the extent of harm goes to how much I can collect in damages.
Now, if I am missing proof on any of these elements, I can’t even make out a case.
In a full trial, if Seth Rogan can prove that I am simply wrong about a fact I offer as to just one of these elements – JUST ONE – then I lose the claim.
If I lied, and in fact, I told Seth, “No, please, hit me really hard with that bong, Seth Rogan!”, then I lose.
Just as a root beer float is not a root beer float without root beer and ice cream.
Recap: Why You Need To Master the Law
We need to know claims and defenses (defenses – like intoxication or self-defense – have elements and must be proven just the way a claim must be proven).
So let’s back up.
You need to master the law so you can master issue spotting, the very skill your law school grades depend on.
Specifically, you need to know enough law so you can pick out facts that are “issue hooks” that would trigger a deeper look at a particular legal claim or defense.
Once you decide you need to look deeper at a set of facts to see if a claim or defense matches the facts, you need to know all of the elements of the claim or defense to do the analysis.
Then, repeat this exercise until YOU BECOME THE IRON CHEF!
Next time: Part 4 on Mastering Issue Spotting.
Also: I am having some technical difficulties. I do plan on opening up sales to my course, Kick the Crap Out of Law School in my next post.