But self-awareness is hard. I am less than cool when they trip. I find myself shouting useless things like “Don’t fall!’ when they fall or “Don’t drop shit!” when they drop shit.
What students get wrong about the standard of care
What does my shitty parenting have to do with the standard of care (or the duty of care as it is also known)?
I’ve noticed in grading practice law school exams that many students take the “don’t drop shit!” approach with negligence issues on torts exams.
That is, the way you spot a negligence issue is noticing some kind of harm (someone falls or drops shit.)
So what students do is they march through the elements of negligence.
They formulate a standard of care (the basis of the duty that the defendant owes the plaintiff) by reverse-engineering the harm.
But most students do this too simply.
They borrow from my Cool Dad Playbook and write “The standard of care is NOT doing [the injury from the fact pattern.”
Don’t [accidentally crash into my car]!
Don’t [drop shit on my head!]
Don’t [leave toxic waste in my swimming pool for my guests to choke on]!
The right way to do the standard of care
There is a different, better way to deal with the standard of care.
In short three tips will help you both find the standard of care and get it right on an exam. In short:
Find harm: identify the specific action that caused the harm.
Get 1-2 levels more abstract: Draft a standard of care by identifying what the defendant should have done in language that is 1 or 2 levels more general or abstract than the specific action that caused the harm.
Be affirmative: formulate a standard that is in the affirmative (i.e., says what the defendant should have done or how he should behave), not negative (i.e., “Don’t do what you just did!”)
Watch this video for a deeper dive on these three tips on the standard of care:
Law school success depends, in part, on you focusing on the right things in class.
But what are those things?
Watch the video below, and then read a bit more of the text.
Listening for law school success
In short, listen carefully for three things:
FIRST, look for your professor’s specific wording of the rule of general application of any case that is discussed.
You might read about the elements of battery in Emanuels. Your professor might have a different way to word it or even different elements. Use your professor’s exact wording (if she even tries to describe or define the black letter law.)
The example I use is my 1L crim law professor. The defense of being “intoxication sufficient to negate specific intent for crimes of specific intent” was, for him, “Leningrad drunk” or even “LD.” He insisted you use that specific wording on the exam.
SECOND, listen carefully for what I call “fact triggers.” That is, when a professor is grilling a student in class with hypothetical variants of the cases you were supposed to read. Watch for the professor’s reactions to student attempts to grapple with them.
Usually you will know when your professor says “Suppose . . . we change one fact in this case” or “what if we changed this one fact…”
THIRD, listen carefully to forms of general argumentation the professor likes. What does your professor respond (happily) to when she is listening to students talk about cases? (This is whether or not they are discussing hypos or fact triggers.)
Watch carefully his or her reactions to student arguments.
Does your professor like counter-intuitive arguments?
Is your professor into fairly academic or theory-based arguments?
Is your professor very practice-oriented (i.e., lived in the trenches of litigation for many years)?
To succeed, do not waste time on these things:
Use class discussion to obtain general understanding of cases (you should study the black letter law directly to do that.)
Write down very much of what other students say (unless the professor says something like “did everyone here what Ms. Smith said?”).
Write down anything that is clearly unusable – really general history, procedural posture, stupid trivia, non-famous precedent the case follows. Anything, in short, that you know you will not be able to use.
For more law school success tips, check out links to:
Last time we discussed the black letter law and why it was important.
This time, in light of the importance of the black letter law, this video discusses (1) why it is still important to read cases, (2) WHAT to look for in reading cases and (3) HOW to read faster and be more efficient:
Last time we discussed how to study the law — not by reading cases, but by studying the law more directly.
The “law” I refer to here is the black letter law — the most stripped down form of the law. I set out more in the following video:
When I mention that it is necessary to focus on or memorize the black letter law, I am talking about several things here.
The major rule, those that set out all of the elements or factors needed to make out a given claim or defense.
The network of sub-rules. These sometimes set out exceptions or ways to apply a given element or factor. They are often specific applications of certain fact scenarios, generalized to other scenarios (what I refer to as Rules of General Application. This is, of course, redundant, because a rule should be generalizable).
This may seem a simple concept but it is important enough to understand that this is the what you are after when you are studying the law and reading cases.
What is funny to me is that few enough professors will define the black letter law for you.
They just mention it in passing.
Oh, and by the way, come exam time, professors assume you know it by heart– however little it is explicitly address in class. Well enough to apply it on an exam.
This is Part 3 of 10. These are links to Part 1 and Part 2.
Last time we talked about avoiding case-related busy work.
The tip I offer below will help you immediatelyreduce your study time, while retaining just as much important information.
Watch the video and then read the rest of my explanation below.
You now know that the case method is a long, indirect path to learning the black letter law you need to do well on issue-spotting exams.
So judo-flip that shit.
Study the law directly: memorize the black letter law.
By which I mean: you can generally boil down a 2-3 page case on murder to a legal definition of murder (“the black letter law”). Here is an example:
Intent-to-kill murder: the (1) unlawful (i.e., without a legal excuse) (2) killing (3) of a human being; (4) committed with malice aforethought, which includes (a) intent to kill (b) intent to inflict severe injury or (c) reckless indifference to an unjustifiably high risk to human life.
Other cases you read do not set out a legal definition but rather apply a general principle to a specific case. You can boil down such a case like so in an outline (I don’t go over every element here):
Yes, guilty: sudden impulse to kill, w/ no pre-planning, is enough intent for intent to kill (Commonwealth v. Carrol)
Now, this is a single sentence summary of Commonwealth v. Carrol, a case about a guy who saw his wife beat their children argued with her later and, consumed with anger later, shot her; he made no plans, before grabbing his gun, to kill her. There is a lot said in the case.
But for your purposes on an issue-spotting exam, the quick one-sentence summary of Carrol (“sudden impulse to kill = intent”) is all you need – it will help you make arguments on behalf of one party, and resolve claims.
There are other cases that create more specific principles that apply the general legal definition. You just need a quick line that sets out those facts.
* * *
Now, you won’t find these legal definitions, or short case blurbs (that are specific applications of legal definitions), in your case book. F’ing Chris Langdell made sure of that.
They are set out in commercial outlines (like Emanuel’s or Gilbert’s), the modern day treatise for students. Outlines will save your life.
You can buy them new or used for $40 each. Or you buy used. Or buy a BarBRI Conviser Mini Review (available on Amazon or eBay), which is what people use on the bar exam and contain all 1L subjects.
Or you can print out free outlines you find on the web.
It doesn’t matter that much.
You can even buy old outlines (they are cheaper). Don’t spend a fortune on them. Borrow them from a friend.
Read these outlines. Memorize the “legal definitions” (the elements or factors of each claim, like murder, or defenses, like self-defense.). Memorize the case blurbs that apply the definitions.
You can do this before law school starts. You can do this during law school, studying the black letter law before reading cases. Emanuel and Gilbert outlines are keyed to the most common casebooks you read.
You don’t have to master the law completely. Read to understand so that (1) you can start atking practice exams (see Shortcut 3 below) and (2) so the key legal concepts are familiar when your professor discusses them or you come across them in your case book reading.
Don’t over do it. I said not to re-read casebooks. Similarly, you don’t need to buy Emanuels AND Gilberts. Do not buy or read more than one outline per law school subject. This will become will either be repetitious or just make you confused.
Read short outlines. I prefer Gilbert’s or Emanuel’s because they are brief. I urge you to just study the summary outline in the front of the book, that usually runs 50-70 pages. If you opt to study from a free outline, only do so if the outline is short, less than 50 pages. You may be tempted to buy a big hornbook or treatise. But these are very comprehensive and might give you so much to do, you are confused. (Such books are really meant to help practicing lawyers research.)
As the semester progresses, your professor’s views will trump the outlines.
Just useoutlines to prepare for class and to learn enough law to take practice exams.
But if your professor says something different about a law or a case than your outline, the prof’s words win.
Your job in law school is to understand your professor’s view of the law and apply that to an exam if you want a good grade.
This is Part 2 of a 10-part Series. Click here to go back to Part 1.
The first shortcut I mentioned last time was to avoid case-related busy work.
Briefing cases is the king of case-related busy work and to be AVOIDED AT All costs!
See the video on why, and then look below in the text for other time-wasters to avoid.
Generally, you want to avoid busy work.
(Sidenote: This, to me, includes avoiding any 1L extracurricular activities, like moot court. Only your grades matter to potential employers. Packing your resume 1L year won’t help you get a job.)
Also, for the reasons we explored in the last post, most case-related studying is busy work.
Now, go ahead and read assigned cases in your case book. That’s not busy work (for reasons I explain elsewhere.)
But do only the bare minimum: read the cases once, and only the night before they are covered in class. You can follow what happens in class. If called on, you might mess up. (So what? No one will remember, trust me.)
Beyond that, do not worry about casesany further.
Now, without exception, you will feel pressure to read and re-read cases.
There is pressure to master the details of cases. Most profs still cold call people in class. Everyone fears humiliation. Everyone hates looking stupid. (Some profs even threaten to dock the grades of the unprepared).
But as I already showed you, cases themselves are not the key to performing well on issue-spotting exams.
Students who don’t know this will put every effort to understand the cases they are assigned to read. And that will be most students.
But you know better.
Cases are not the law. Repeat: CASES ARE NOT THE LAW.
You will not get good grades because you can cite an obscure detail from a case from week 13.
If you spend too much time reading or analyzing cases, and you will have no time to focus on activities more likely to get you good grades.
Obsessive case reading, in my experience, ruins academic lives. I saw this with my own eyes as a tutor to law students (who came to me after doing this). Is anything worse than working really hard for nothing.
So, to be even clearer, for your own sake, avoid the following:
Briefing cases. Briefing cases is a law school tradition. A stupid one. A “case brief” is a case summary you write that identifies in painstaking detail parts of a case (the parties, their claims, the holding, procedural posture, dicta, background).
None of this helps you on an exam. You will get 0 points if you try to recite these details on cases.
This is insanely time intensive: my first two students briefed cases 40-50 hours a week. They got crap grades. I asked them stop briefing. They got better grades.
PLEASE for the love of god DO NOT BRIEF CASES.
Even if professors make case briefing mandatory the first week or so, stop it as soon as you can (i.e., after they stop checking).
Re-read cases. Read cases once before class. More won’t help you. The secrets to good grades are not in your case book.
Read cases in advance. This sounds like a time saver for eager beavers. But if you read on Sunday for a Wednesday class, you’ll likely need to re-read on Tuesday. And re-reading is a sin. Bad!
Here is an important question: Why is law school so confusing?
It seems easy in concept:
Read case book.
Go to class.
Take the exam.
But in practice it makes very little sense. It’s more like this:
You read a bunch of stuff. It is terribly written and makes no sense.
You go to class and hope that your prof will talk about this stuff that makes no sense.
Instead, your professor asks questions of students who make no sense in trying to make sense of the stuff that makes no sense.
You then take an exam that makes no sense and appears to have nothing in common with the stuff you read that makes no sense or that your professor asked questions about that made no sense.
So why is law school like this?
Understanding the mystery of law school — and why it is confusing — will help you understand how to make it un-confusing.
Law school used to be simpler.
Years ago — like over 100 years ago — there were a number of ways to become a lawyer.
You could go to law school, apprentice with a lawyer, or even study yourself (looking at you, Abe Lincoln).
Everyone studied books called treatises that collected bodies of law and clearly described the law. (Lincoln studied Blackstone’s Commentaries.)
All that changed in 1895.
A jackass named Christopher Langdell, who became dean at Harvard Law School despite being a totally unremarkable lawyer, decided law school was too easy.
Langdell thought students should learn how to think about the law, whatever that means.
So he scrapped the old method (actually teaching students the law) for a new one: make them figure it out for themselves.
More specifically, under Langdell’s new method:
Students read real court cases (from a case book, not a treatise) in which the law is applied but not explained.
Professors ask questions about the cases.
Students magically learn the “legal reasoning,” supposedly learning general principles of law by reading specific cases.
Under this method, the professor should not tell students what the law is.
Nor do professors teach students how to apply the law to new situations, even though that skill is exactly what final exams test.
If Langdell’s method sounds crazy, it is.
For more than 100 years to this day, every law school in the U.S. has taught Langdell’s way.
When students take bar review courses (like BarBRI), they are going back to the pre-Langdell way of studying law.
These prep courses do two things:
They actually teach you the law, rather than make you figure it out from cases (. In bar prep, law school professors (the same ones who spend the school year not teaching you the law) actually teach you the law (i.e., “the elements of murder are A, B & C”). Insanity! CHAOS AND INSANITY!!!!!
They also (kind of) teach you how to apply the law. Not a lot. But they try. UNLIKE in law school, bar prep courses give you some instruction on exam writing (maybe a lecture on IRAC, see my videos on here and here), and some feedback on exam writing. That’s it. (And it costs about $5,000, which your employer often pays for.)
To top it off, the bar exam is much harder than law school exams.
A law school contracts exam calls for contracts issue spotting.
On the bar exam, anything goes: contracts, torts, evidence, civ pro, your mother, anything.
So, a recap: law school exams and the bar exam both involve applying black letter law to an issue spotting fact-pattern essay exam.
But law school takes the annoying scenic route to your destination by making you figure out the law yourself by reading cases.
Bar prep courses take you straight to the same destination. No detours.
Now, isn’t that interesting?
Do you see what I see?
The Solution: 3 Shortcuts Inspired By Bar Review Courses
By comparing law school with bar prep, we can see a potential “hack” or shortcut to studying in law school.
Treat law school like the bar exam.
You can strip away the unnecessary and get a simple recipe to law school success (simple in concept, anyway):
Avoid case-related busy work.
Study the law directly. Practice issue spotting daily.
Do three things – follow just 13 words! — and you will get better grades and feel more relaxed than 90% of your classmates!
This is simple in concept but harder to execute.
You have to be willing to do things that other students aren’t doing, and that maybe your professors won’t like (if you told them).
I am stuck in a mantra-rut if you haven’t noticed. It goes like this:
Getting a good job requires getting good grades in law school.
Getting good grades in law school requires killing it on your final exams.
Killing on your law school exams requires you to master the skill of issue spotting.
But wait, Larry Law Law, what the hell is issue spotting?
What the hell is an “issue,” for that matter?
Lucky, I will show you instead of telling you. Two videos for you today.
The first video concretely describes what an “issue” may look like on a law school exam (including my own drawings of Smurfette and Papa Smurf with beer and a shotgun.)
The second video explains the subtle threshold for identifying an issue. Before law school, the law seems like a black and white thing, like a science. But in law school, you recognize shades of grey (ha ha), and that law is more of an art. (Certainly, on law school exams this is true.)
The key word — almost guaranteed to be new to you if you have not gone to law school, and absolutely guaranteed to be important — is colorable:
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 terriblewriter 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 terriblewriter — 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.
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 skateto play ice hockey.
You must be able to swimto 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 enoughto 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.