Bridging the Gap

Between College and Law School

 Bridging the Gap
Between College and Law School
Strategies for Success

THIRD EDITION

Ruta K. Stropus & Charlotte D. Taylor

Copyright © 2001, 2009, 2014
Ruta K. Stropus & Charlotte D. Taylor
All Rights Reserved

Library of Congress Cataloging-in-Publication Data

Stropus, Ruta K.
Bridging the gap between college and law school : strategies for success /
Ruta K. Stropus & Charlotte D. Taylor. -- Third Edition.
pages cm
Includes bibliographical references and index.
ISBN 978-1-61163-224-8 (alk. paper)
1. Law--Study and teaching--United States. 2. Law students--United
States--Handbooks, manuals, etc. I. Taylor, Charlotte D. II. Title.

KF283.S77 2014
340.071′173--dc23

2013044620

Carolina Academic Press

700 Kent Street
Durham, North Carolina 27701
Telephone (919) 489-7486
Fax (919) 493-5668
www.cap-press.com

Printed in the United States of America

 This book is dedicated to our fathers.
You loved us and taught us and brought us together to teach others.
Contents

Acknowledgments
About the Authors
Preface
Introduction
Chapter 1 · The Law School Experience
The History
The Customs
Packing for Your Trip
What to Bring
Preparing for Rough Terrain
Getting Around
Avoiding Tourist Traps
Traveler's Advisory
Endnotes
Chapter 2 · What Is Your Learning Style? Travel Style?
What Are the Different Learning Styles?
Visual
Auditory
Kinesthetic
What Is Your Learning Style?
Exam Evaluation—Personal
Endnotes
Chapter 3 · Learning to Read and Brief Law School Cases
Reading in College
Reading in Law School
Things You Need to Know before Reading Your First Case
The Dual Court System
Divisions of Courts within Each Court System
 The Trial Court
The Appellate Court
What Can the Appellate Court Do with the Trial Court
Decision?
Learning the Language
Reading Tips and Techniques
Step 1—Anchor yourself.
Step 2—Read the case—focus on your anchor.
Step 3—Brief the case.
Briefing Tips and Techniques—FIRAC
Sample Case and Case Brief
Sample Case Brief
Exercise
Exercise 3-1 Reading and Briefing Cases
Answer to Exercise 3-1 Sample Case Brief
Endnotes
Chapter 4 · Effective Notetaking in Law School
Difference Between Notes in College and Notes in Law School
Dos and Don'ts for Taking Notes
Edit Your Brief
Write Down All Hypotheticals
Note How the “Other Stuff” Relates to FIRAC
Sample Class Discussion
Torts Class Discussion
Sample Notes
Sample Case Brief
Chapter 5 · Putting It Together, Part One: Synthesis
Synthesis in College
Synthesis in Law School
Why Hide the Directions?
What Is Synthesis?
Tips on Synthesis
Step 1—Gather all of the cases you have read on a particular
issue.
Step 2— Divide the cases into elements—does each case
 seem to represent a different element of the rule?
Step 3— If, and only if, two or more cases illustrate the
same element, you should divide the cases by result.
Synthesis Exercises
Exercise 5-1 Synthesis: Statutory Interpretation
Answer to Exercise 5-1 Synthesis: Statutory Construction
Exercise 5-2 Synthesis: Criminal Law
Answer to Exercise 5-2 Synthesis: Criminal Law
Exercise 5-3 Synthesis: Contracts
Answer to Exercise 5-3 Synthesis: Contracts
Endnotes
Chapter 6 · Putting It Together, Part Two: The Role of the Law School
Outline
What Is an Outline?
What Are the Different Kinds of Outlines?
What Kind of Outline Should I Use—Commercial or Homemade?
What Should a Good Outline Include?
How to Make Your Own Outline
Step 1—Get the big picture.
Step 2—Insert the rules.
Step 3—Insert cases and hypotheticals.
Step 4—Insert the reasons/rationale for the rules (policy).
Additional Tips on Outlining: Open Book v. Closed Book Exams
Additional Tips on Outlining: Outlining Software
Outlining Exercises
Exercise 6-1 Outlining: Contracts
Answer to Exercise 6-1 Step 1
Answer to Exercise 6-1 Step 2
Exercise 6-2 Outlining: Criminal Law
Answer to Exercise 6-2 Step 1
Answer to Exercise 6-2 Step 2
Endnotes
Chapter 7 · Putting It Together, Part Three: Flowcharting
What Is a Flowchart?
Do I Have to Create Both a Flowchart and an Outline?
How Do I Know If a Flowchart Will Help Me?
What Are the Different Types of Flowcharts?
What Should a Good Flowchart Include?
How to Make Your Own Flowchart
Step 1— Brainstorm: create a list of all the key words,
phrases, and rules that come to mind.
Step 2—Organize: separate these terms into different
sections/categories.
Step 3— Go with the flow: decipher the relationship
between the rules and turn these into issues and questions.
Other Alternatives
Final Thoughts
Sample Flowcharts
Constitutional Law—Equal Protection
Step 1—Brainstorm.
Step 2—Organize.
Step 3—Go with the flow.
Civil Procedure—Pleadings
Step 1—Brainstorm.
Step 2—Organize.
Step 3—Go with the flow.
Criminal Law
Step 1—Brainstorm
Step 2—Organize
Step 3—Go with the flow
Chapter 8 · Law School Examinations
What Should I Expect on My Law School Exams?
Why Am I Being Tested This Way?
How Does the Exam Relate to Class Discussion?
Different Types of Law School Exams
Issue-Spotting
Analysis
Policy-Oriented
Chapter 9 · Tips on Exam Preparation
Process of Problem Solving
IRAC for Examinations
I—Identify the Issues
R—Articulate the Rules
A—Apply the Rules to the Facts
C—Conclusion
Tips for Different Exam Formats
Essay Exams
Closed Book
Open Book
Take Home
Multiple Choice
What to Do During an Essay Examination
Step 1—Prioritize.
Step 2—Brain dump.
Step 3—Issue spot.
Step 4—Organize.
Step 5—Write using IRAC.
Exam Exercises
Exercise 9-1 Exam Question: Torts—Intentional Torts
Answer to Exercise 9-1
Exercise 9-2 Advanced Exam Question: Contracts
Answer to Exercise 9-2
Exercise 9-3 Exam Question: Civil Procedure—Personal
Jurisdiction
Answer to Exercise 9-3
Exercise 9-4 Exam Question: Criminal Law—Actus Reus
Answer to Exercise 9-4
Exercise 9-5 Exam Question: Criminal Law—Burglary
Answer to Exercise 9-5
Exercise 9-6 Exam Question: Torts—Policy Question
Answer to Exercise 9-6
Exercise 9-7 Exam Question: Constitutional Law—Due Process
Answer to Exercise 9-7
Endnotes
Chapter 10 · Time Management
What Works for You?
How Do You Study?
When Do You Study Best?
Where Do You Study Best?
Organizing Your Study Schedule
Semester Schedule
Weekly Schedule
Using Technology to Help with Scheduling
Scheduling Tips for Part-Time Students
Setting Realistic Goals
Endnote
Chapter 11 · Additional Strategies for Success
What to Do When Life Gets in the Way of Law School
Where to Go for Help
Academic Support/Academic Assistance/Academic
Achievement Office
Admissions Office
Career Center
Counseling Center
Dean of Academic Services
Dean of Students/Student Services
Disability Services
Financial Aid Office
Registrar
Student Affairs
Website
What's the Problem?
Before Law School
During Law School
The First Few Weeks
Preparing for Class
Mid-Semester
Before Final Exams
During Final Exams
After Final Exams
 Endnotes
Chapter 12 · Bridging the Gap as a 2L or 3L: What Else Can I Expect
in Law School?
Life after First Year—What Should I Expect Next?
Academic Opportunities
Law Reviews and Journals
Moot Court
Clinics
Externship/Field Placement
Guided Research/Independent Study
Non-Academic Opportunities
Student Organizations
Local and National Bar Associations
Chapter 13 · The Importance of Gaining Legal Experience
Externships, Clerkships and Other Legal Work Externships—Why, When
and Where
Judicial Clerkships
Research Assistant
Internships/Summer Clerkships at Private/Public Entities
Writing a Good Cover Letter
Writing a Good Résumé
Tales from the Front or One Recruiter's True Confessions
Other Tips
The Interview
Endnotes
Last Words of Advice
Dictionary of Common Legal Terms
Index
Acknowledgments

This book would not be possible without the help, love, and dedication of
many wonderful people, including Cathaleen A. Roach, who served as a
role model and a mentor to both of us.
We would also like to thank the following people who made this book
possible:
Our colleagues:

Stephanie Juliano
Andrea Kaufman
Kenneth A. Rosenblum
Susan Thrower

Thanks for your many suggestions and comments and for reading our draft
and returning it on such short notice.
Dan Ursini

For inspiring us to keep our dream of publishing this book alive.

Our research assistants:

You have helped us in more ways than we can recall and kept us working,
even when we did not want to.

Francis Cermak, DePaul University College of Law Class of 2000

James Derry, DePaul University College of Law Class of 2001
Tracy Hamm, DePaul University College of Law Class of 2000
Mike Isroff, DePaul University College of Law Class of 2001
Moira Murphy, DePaul University College of Law Class of 2008
Robert Sabetto, DePaul University College of Law Class of 2002
Shannon Verner, DePaul University College of Law Class of 1999

We would also like to express our thanks to the former Dean of DePaul
University College of Law, Teree E. Foster, for her support of the Academic
Support Program and of our research for this book.
About the Authors

Ruta Stropus is the Director of Attorney Recruitment and Professional

Development at the Illinois Attorney General's Office and a former
Assistant Dean and Professor. She previously served as director of the
Academic Support Programs at both DePaul University College of Law and
at Northern Illinois University College of Law. She received both her
undergraduate degree (summa cum laude, 1986) and her law degree (1989)
from Loyola University of Chicago. After graduating law school, she
practiced in litigation with McDermott, Will and Emery, and Sachnoff &
Weaver, Ltd, two prestigious law firms in Chicago. She has previously
published a law review article addressing concerns about the current trends
in legal education titled Mend It, Bend It, and Extend It: The Fate of
Traditional Law School Methodology in the 21st Century. 27 Loy. L.J. 449
(1996).

Charlotte Taylor is the Assistant Dean for Student Services at the Touro
College Jacob D. Fuchsberg Law Center. She previously served as the
Assistant Director of the Academic Support Program and then as the
Assistant Dean for Multicultural Affairs and Student Support Services at
DePaul University College of Law. She received her undergraduate degree
(1992) from Bradley University in Peoria, Illinois, and her law degree
(1996) from DePaul University College of Law. After graduating law
school, she practiced insurance defense with the law firm of Greene & Letts
in Chicago.
Preface

Travel Advisory
Quite a bit has changed since we embarked on the journey of writing this
travel guide, of sorts, for law school. Most significantly, the legal market
has turned upside down, leaving many new graduates without promising
economic prospects. Indeed, going to law school is no longer a guarantee of
financial security; rather, saddled with six figures of debt, many students
question whether they should have taken the journey at all.
Therefore, we add this preface to the third edition. Like all travelers, you
need to ask some pretty basic questions before setting off on a journey.

Do I really want to go here?

Do I think this will be a trip of a lifetime? How will it change my life?
What are my expectations?
It is a very expensive journey. How will I pay for it? What will a large
educational debt mean to my other goals, such as homeownership and
family?
Even if I expect to do very well in law school and land a high-paying
job, what if those expectations aren't met? What if that doesn't happen?
Have I spoken to others who have taken this journey lately? What
were their impressions? Would they do it again?

One of my former students recently remarked: “I went to law school

thinking I would be Abraham Lincoln; instead, I'm doing document
review.” Despite media depictions, the practice of law is not glamorous.
The work is often tedious, the hours long and the costs to service law
school loans immense. The very practice of law is changing, as clients are
moving away from billable hour arrangements and demanding that
attorneys provide a more competitive price for their services. In some
environments, the supply of attorneys exceeds demand, thus substantially
driving up competition.
So, let us caution you before you begin. Seek advice. Listen to contrary
opinions. Crunch the numbers. Question your motives. Set realistic
expectations. Above all, make sure you know the answer to this question:
“Why are you going to law school?”
Introduction

Have you ever embarked upon a long journey? You probably began
thinking about your journey by looking through some travel books. There
are generally two types. The first is the general guide—how to travel on a
penny a day, how to backpack through Europe, or great dining in the
Middle East. The second is country-specific—Kenya, China or Japan.
Obviously, there are benefits and drawbacks to each type of guide. The ones
that are broader in scope give you a nice overview, perhaps some history
and tips, but do not provide enough specific information. The specific
guides, on the other hand, although ripe with details, do not provide vital
context—where does this country fit in with others in the region? What are
some general customs and tips that apply when travelling? Wouldn't it be
nice to have a guide that could combine both the general and the specific?
The travel analogy extends to law school in this and many other ways.
For example, just like there are many self-guided travel books, there are
many “self-help” books written for law students and would-be law students.
Generally they too fall into two categories: those that offer general advice
and those that are tailored to specific topics of study (i.e., a contracts study
aid, a torts study aid, etc.) Until now, no book has integrated the two and
offered even more. This book offers you an explanation of legal pedagogy,
a helpful approach to the law school experience, a process of study, class
participation, exam taking techniques and much more. Most importantly,
because we teach these skills using these materials, we know that they
actually work! We have tried out these tips and techniques on hundreds of
law students, and revised and modified them based on student feedback;
therefore, unlike any other “self-help” texts, this one is based on the
experiences of actual students like you.
 How Does Bridging The Gap Integrate the
General and the Specific?
Bridging the Gap integrates the strengths of both the general and the
specific advice texts and offers you more. We cover all of the following
areas:
We explain the “why” of law—we provide you with the context you
need to understand why law school is taught in a certain manner, why
you read cases as primary texts, and why law school professors test in
the way they do. This context will provide you with the necessary
insight you need to better understand the law school experience.
We explain the “how” of the law—not only will we provide context,
but we will also provide process. We will take you through a step-by-
step process that will help you adapt to the law school setting, and we
do so in a way that draws upon and connects to your past learning
experiences. Rather than tell you that what you have learned and how
you learned it in the past is irrelevant, we will help you build upon and
draw on your strengths.
We explain the “what” of the law—in addition to context and
process, we offer specific hypotheticals that will help you practice this
process. We will take you through actual law school hypotheticals in
the first year subjects so that you have many opportunities to practice
the process. This is an interactive text. Instead of merely reading, you
will participate in the learning process. By interacting with the text,
you will take the context and process and make it your own.
Because Bridging the Gap combines the best of both worlds (general
advice and specific subject study aids) and provides you with the
information you need, you can expect better results than if you were using
specific study aids or general advice books individually. Specific study aids
are not effective. Although they do provide you with a summary of basic
law principles, they do not provide context or process. They do not teach
you how to write a good examination answer. General study aids, on the
other hand, may provide some context, but they do not emphasize the
process and do not give you an opportunity to practice that process. We
strongly believe that, in comparison to these two types of texts, ours will
yield more favorable results, especially in light of our experience of
teaching hundreds of law students how to succeed both in the classroom
and on the exam.
 What Can I Gain from Using This Book?
Unfortunately, no classes address law school environment or
expectations. In fact, very few, if any, of your professors will address what
the law school examination will look like and how you should approach it;
therefore, you could write an answer to a law school question and think you
did well, when, in actuality, you offered a poor response. Unless you know
why it is that law school does what it does, what you should focus on, and
how to write a good law school examination, your responses will not be
adequate. Instead, they will look something like the following:
Whether Bob can sue Sam for negligence depends on whether the
court follows the Smith, Jones or Rodriguez cases on subject. In Smith,
the court found defendant liable because she owed a duty to plaintiff.
However, in Jones, the court did not find the defendant liable because
although Jones owed the plaintiff a duty, he did not breach that duty.
Finally, in Rodriguez, the court agreed with the Smith case and found
the defendant liable when it said that Rodriguez owed plaintiff a duty
of care. Here, the court is likely to agree with the Smith and Rodriguez
courts and find that Sam owed Bob a duty and is therefore negligent.
Looking at this response, you might think that it's just what the professor
is looking for—it answers the question and quotes several key cases.
Without a guide or mentor to take you through and explain: (1) what the
professor is looking for, (2) why this response is not the best for purposes of
the examination, and (3) how to write a “good” response, you might never
get the grade you expect. Without help, you might never know how to write
an answer, which, like the one that follows, will earn top marks:
Whether Bob can sue Sam depends on whether (1) Sam owed Bob a
duty; (2) Sam breached that duty; (3) Sam's breach of duty caused
Bob's injury; and (4) Bob's damages resulted from the injury. First as
to duty, Sam would argue that Bob owed him a duty because of their
relationship as guardian and ward. In Jones, the court held that an
adult that is entrusted with the care of a minor owes that minor a duty
of reasonable care. As in Jones, where a minor was left to the care of
an adult, Bob, a minor, was entrusted to Sam's care for the day. Sam
accepted that duty by telling Bob's mother, “Don't worry, I'll keep an
eye on him.” The second issue of breach is more complicated....
 We want to bridge the gap between your expectations and law school
reality; between your previous learning and the law school experience;
between understanding the process and applying it to actual problems;
between the answer featured previously and the one you will write after
reading this book. To make the most of this book, however, you must
interact with it. Do all the problems and compare your answers to those
provided. We hope to demystify the law school experience, explain many
useful techniques for not only surviving but also thriving in law school and
provide exercises so that you can practice the techniques. We hope to
accomplish these goals by using the travel metaphor as our guide. Because
law school is, in so many ways, like traveling to a strange and foreign land,
we believe this metaphor is especially apt. You are embarking on the most
strange and consuming—but fascinating and rewarding—trip of your life,
and we hope to give you some tips and insights along the way.
 Chapter 1

The Law School Experience

Law school is a strange and foreign place, much like a strange and
foreign country. The language and the customs are unfamiliar, yet one
expects a successful trip. We hope you will use this chapter much as you
use a travel guide or brochure to prepare for your journey. Before heading
out, make sure you investigate your destination.1
 The History
Law schools use what is commonly known as the Socratic method for
teaching, especially in first year courses. Some argue that this method is
harsh and ineffective. Others maintain it fosters some basic lawyering
skills.
To fully appreciate law school culture, all “travelers” should know
something about law school history. Its development is quite interesting.
Originally, lawyers didn't even go to school; law students trained to become
lawyers by “reading the law.”2 Those wanting to learn the law apprenticed
themselves to a practicing lawyer, who introduced and taught the law to
them.3 Students certainly learned practical skills through the apprenticeship
method, which provided “hands on” experience from the beginning.
Unfortunately, they often lacked knowledge about the law itself.4 The hole
in this method was obvious: imagine, for example, knowing how to fill out
forms for a sales contract but not knowing a thing about what makes a
contract valid and enforceable.
Given its weaknesses, out went the apprenticeship method. In its place
came the lecture method of teaching.5 The lecture method should be
familiar, as it still dominates most undergraduate institutions.6 Students
gathered in a classroom, listened to a professor lecture about “the law” and
memorized the rules.7 Using the lecture method, material is often presented
from the general to the specific. For example, in a business class, the
professor may begin his or her lecture by saying: “Today class, we will talk
about contracts. Specifically, we will discuss binding contracts and non-
binding contracts. But first, what is a contract?” In this situation, students
learn some basic, general information about contracts and then move on to
specific information about binding and non-binding contracts. On the exam,
the student will be asked to repeat this information (both the general and the
specific) to the professor. The lecture method gave students the opportunity
to learn substance; for example, they knew something about contract law.
The disadvantage was that students didn't learn to practice law. The hole in
this method is even more obvious: imagine knowing all the legal rules
regarding contracts, but not having any idea about how to draft a contract.
Enter our appropriately named trailblazer, Christopher Columbus
Langdell. Perhaps affected by the “scientific” age in which he lived,
Langdell believed that law could be taught the same way as science,
through the scientific method.8 In other words, Langdell reasoned that if
students read actual cases instead of text books and then discussed those
cases in a question-answer exchange with an instructor, they would not only
learn the law but would also learn problem solving skills.9 Using the same
example, in a law school Contracts class, the professor might start a class
by discussing a case in which the court did not find a legal contract to be
enforceable because the parties were minors. The discussion may then
move on to another case in which the court did not find a legal contract
enforceable because the subject matter involved an illegal act, a contract to
sell drugs. In discussing both cases, the professor will ask students to point
out the specifics of each case: the parties, the facts, how the case came to
court, and the end result. In this situation, it is the student's task to put the
cases into perspective with the rest of the class materials. The student must
take the specific information he or she has gotten from class (the facts of
each case) and deduce the general idea that the professor is trying to teach.
Langdell believed the purpose of law school was to train legal
“scientists”: to help them discover, by reading cases, a pattern of reasoning
and then adopt and apply that pattern or reasoning to solve similar
problems.10 Thus, this method would teach students both law and process.
Langdell, who served as Dean of Harvard Law School,11 implemented his
method with great success. His method caught on elsewhere, and the rest,
as they say, is history. The “Langdellian” method has since taken firm root
in law schools from coast to coast and has been the method of teaching
American law for over a hundred years.12
This history is important because it provides a cultural context. As a
traveler, one certainly feels more comfortable in a country once he or she
knows not only the customs but also the historical reasons why the locals
are acting the way they are. The same applies to the law school experience.
Students who realize the method behind the law school madness tend to
adapt more readily to this new environment. Remember that the
Langdellian method is meant to help develop analytical skills. As one
commentator put it, “The method not only causes the student to think; it
makes him think twice.”13
 The Customs
Law school is a formal and hierarchical environment. Do not expect the
warmth of a small town.
Many law students are shocked at the formal and hierarchical
environment in law school. Some have come from campuses where
students and professors are on a first-name basis. As one student put it, “I
come from a place where I used to discuss a topic with Mary (her Prof.)
over beer after class.” With few exceptions, those days are gone. Law
school professors usually address their students by last name, and they
expect to be called Professor so-and-so at all times. In class, the professor
will call on you to answer her questions without giving you much time to
reflect upon your response. Law school professors and administrators are
not mean; instead, they are following a tradition that mandates distance
between teacher and student.14
Whether the law school classroom experience differs radically from your
past experience depends on the size of your college. For example, first year
law students normally attend classes in groups of about 100. Those coming
from a small liberal arts college where a “large” class consists of twenty
students may find a law school class quite shocking. On the other hand,
those coming from a state university, where “large” sometimes means up to
400 students, may find the size of a law school class shocking for quite
different reasons. Obviously, individual attention is hard to get in a class of
100; unless you are “on” (meaning that you and the professor are involved
in case discussion), you may find yourself buried in the crowd. Try not to
space out. Stay engaged.
Prepare yourself for the trauma of being called on in class. Unlike
undergraduate classrooms, where student participation is usually voluntary,
in law school you most likely will not know when you will be asked to
speak. Some students suffer extreme anxiety and depression because of the
often harsh in-class questioning.15 Try not to perceive the persistent
questioning as a personal attack; it's not. Keep in mind that even the most
tenacious professor is not trying to humiliate you; rather, her goal is to
refine your analysis of the issue at hand. If you find the questioning too
much, volunteer for questions that you feel confident answering or try to
envision questions that the professor might ask while reading a particular
case before class. Remember that this method is supposed to engage,
challenge, foster independent thought, and develop analytical skills.
Many have criticized this formal, hierarchical law school environment.16
Criticism is certainly justifiable: who wants to travel to a place where
people have a reputation for being taciturn and aloof? Although some law
students thrive despite this less-than-warm environment, many students find
the environment stifling. Indeed, some recent scholars have noted that the
argumentative, confrontational, controlling, impersonal, logical, and
abstract17 culture of law school interferes with student learning. Others
have called the method used to teach law students “infantilizing,
demeaning, dehumanizing, sadistic, a tactic for promoting hostility and
competition among students, self-serving, and destructive of positive
ideological values.”18
Perhaps the method currently in use is flawed; perhaps someday it will be
different. For now, however, law schools show no sign of changing, so no
alternative exists other than coping with the culture as is. To take our travel
analogy a step further, why avoid a trip to a fantastic country simply
because the people who live there have a reputation for being rude,
especially to those who don't speak the local language? Instead, be prepared
in law school to encounter some less-than-friendly locals.
Do not take on attitudes that protect your ego at a cost of long-term
success. For example, try not to “tune out” and settle for just getting
through the experience.19 Never become antagonistic toward the professor
or other classmates; this is not a time to protect your ego by “mobiliz[ing]
defensive aggression.”20 Neither of these extreme coping mechanisms will
benefit the short-term goal of student learning or the long-term goal of
effective lawyering.21 Instead, develop positive coping mechanisms. For
example, after a particularly stressful day of non-stop questioning by a
professor, get a group together and treat the “victim” to lunch to celebrate
surviving the “legal hazing.” This type of gesture not only helps soothe the
ego, but builds a sense of community as well. Remember, the process is a
new way of learning, so by definition it will be difficult to adapt.
Memorizing material and regurgitating it at a later date might be easier on
the spirit, but it does not foster the type of problem solving skills that all
great lawyers possess and use on a daily basis. No one is interested in hiring
an attorney who knows all the rules by heart; instead, one wants an attorney
who knows how to use those rules to win the case. Establish a group of
fellow travelers to get you through the initial adjustment.
When you hit some rough spots, find people in the community who are
dedicated to making your journey easier. Seek out the Academic Support
office or the Dean of Students; either can offer assistance. Remember, your
tuition dollars are funding this trip; if you find something or someone
interfering with your journey, let them or someone else know. Many student
organizations also offer invaluable guidance for the traveler who is
temporarily disoriented or disenchanted and needs to get back on track.
Your school wants to ensure that your journey is worthwhile, so take
advantage of all it offers. Remain upbeat during the journey. Indeed, the
ability to stay positive during law school will help you get through the
rough spots and may be the difference between simply surviving and
actually thriving in law school.22
 Packing for Your Trip
Before getting into the specific skills and strategies necessary to succeed
in law school, it is important to take an inventory of the skills you already
have and understand why those skills brought you success in college or in
your career. Think of this assessment as deciding what to pack for an
upcoming trip. Before buying new clothes for a trip to the Bahamas, you
first look in your closet to see if any of the clothes you have will suffice. If
you have only sweaters and jeans, chances are you'll be uncomfortable in
the Bahamas. Maybe you have tee shirts and shorts, but they aren't
appropriate for the beach. Maybe you'll be dining formally, and tee shirts
and shorts won't do. If you find that you need new clothes, you must figure
out what to buy and how your new purchases will work with what is
already in your closet.
We suggest first examining the skills you used in college or in your
career before we discuss acquiring new skills for your journey through law
school. Consider how you prepared for class and for exams in college. Did
you read and highlight passages from the textbook? Did you take notes on
the text and class discussions? Did you memorize highlighted material from
a textbook or memorize your (or someone else's) class notes? At work, did
you learn how to do your job “by doing,” gaining insight with each project
or task you completed? Alternatively, did you learn by reading a manual of
“how to” information, to which you could refer whenever you needed? Did
you use someone else's work as a model, tweaking it and making
adjustments until it suited you and you knew what you were doing?
If you used any of these methods, your study skills were probably very
useful to you in college and in your career, and you no doubt achieved a
measure of success. You will need to use the same skills in law school, but
you will need to build on them and acquire new skills because law school
material is taught and tested differently. In college, a lot of material is
taught using the lecture method, requiring you to memorize information
gleaned from a textbook or in the professor's lecture. In law school, material
is taught using the Langdellian or Socratic method (as previously discussed)
and is tested using the problem-solving method. Because of this difference
in teaching and testing, students entering law school need to acquire quite a
few new skills for studying and preparing for exams if they are to succeed.
 On a typical law school exam, the student will be given a fact situation
and will be asked whether or not her client will win in court. See the sample
question below.

Sample Law School Exam Question

Thirteen-year-old Bobby, the school bully, beat up on Steven and

Jamal, also thirteen, every day. Unable to take it anymore, Steven and
Jamal went to the school cafeteria to talk to Steven's older brother,
Kevin, about how to stop Bobby. Steven reminded Kevin that he still
owed them a favor for helping him with his science project a month
ago. Kevin, eighteen, agreed to “take care” of Bobby for Steven and
Jamal, but only if they gave Kevin their allowance for the next six
months. Both Steven and Jamal agreed. Just to be sure, Jamal snatched
a napkin to record the agreement and all three signed it at the bottom.
The next day at school, Steven and Jamal were called into the
principal's office and informed that Bobby was in the hospital with a
broken nose and a broken arm. Afraid of the consequences, Steven and
Jamal refused to pay Kevin his “fee.” Kevin cannot afford a lawyer on
his allowance. He has come to you and wants to know if he can get his
“fee” from Steven and Jamal.

Obviously, this is unlike any case the student has read; reading and
memorizing the facts of cases from the book will not get her anywhere. The
student cannot repeat the facts of any of the cases she read about contracts
to adequately answer the question. Here, the student must engage in
problem solving. The student must determine the specific problem (often
called the “issue”), identify the rule of law that applies, and apply that law
to the new facts to determine who will win the lawsuit. The student must
“own” the information and be able to employ it to reach a solution.
Because of the drastic differences in how material is taught and tested on
exams, you will need to acquire new skills to complete your journey
through law school.
 What to Bring
A mind trained in analytical thinking and an ability and desire to write
are staples for the journey through law school.
You may or may not have had a pre-law advisor who guided you to some
of the courses that might help you prepare for law school. Regardless of
your major, if you are still in college and have the opportunity to select
electives, make sure that you take logic (usually offered by the philosophy
department) and writing courses. If you have been out of school for a while,
enroll in a refresher course, such as a graduate or continuing education
course or two. The number of students who somehow fail to realize that the
practice of law involves a great deal of writing is astounding. If you hate
the thought of spending the bulk of your time composing anything from a
partnership agreement to a court memo, law school probably is not for you.
Although popular culture portrays lawyers as spending their days in
courtrooms in front of juries and nights in fancy restaurants impressing
clients, most of the work of lawyers, especially new ones and certainly law
students, is far less glamorous. Law school demands many hours outside
the classroom just reading cases (expect three hours out of class for each
hour in class, or about fifteen hours per class each week), and countless
more completing legal writing assignments (give yourself at least ten to
fifteen hours for a five-page paper); in practice, these numbers go even
higher. Nothing will help you succeed more than the ability to read and
retain large amounts of information and write about it effectively. Start
developing these skills now.
Consider taking courses that require reading difficult texts and
synthesizing large amounts of complex material into a workable format;
upper level literature and philosophy courses are excellent choices for
acquiring these skills. One of the problems students face at the outset of law
school is reading the required text. The bulk of what you have read up to
now likely has been what we call “descriptive texts.” In college, you
probably read textbooks on various subjects. In your life or career, you
probably read manuals and guides on how to accomplish particular tasks,
operate equipment, assemble toys, and perform various other functions.
Otherwise, you undoubtedly read novels, articles, and other informational
pieces, for different reasons. What these texts all have in common is that
they each explain a topic or skill; in short, they are all descriptive. In terms
of quantity, you were probably expected to read several pages a night from
your college textbook. At work, you were probably expected to get through
reading material at your own pace to fully understand it. In law school, both
the quality and quantity of reading is radically different. In terms of quality,
you are not reading descriptive texts or books; instead, you are reading
original cases, often very old ones written in outdated, difficult-to-
understand language. You cannot zip through and skim the pages to get a
feel for the topic. You need to spend time, and lots of it, just to understand
the case. And, just when the quality changes, so does the quantity. Instead
of reading several pages a night, you are very likely to be assigned a
hundred pages a night. Many students simply are not ready to read so many
pages of this dense text. There are online options that can help develop
these skills. Such sites include www.4lawschool.com or others. They
cannot substitute the actual experience of reading and processing the cases,
but can help you learn to analyze the main points of the case. In many
cases, the decision is lost in seemingly complicated legal jargon, and these
sites can help you break down the information.
Prepare by reading. Anything. Now. Train yourself to read a large
amount of pages per night. Become a reader; to truly maximize this
experience, become a reader of difficult material. Don't read cases in your
spare time. Instead, if you are still in college as an undergraduate or a
graduate program student, enroll in courses that require you to read difficult
material while forcing you to analyze, rather than just describe. For
example, a senior seminar that requires students to describe readings in a
paper is not as beneficial as a seminar that requires students to read several
works and then synthesize and analyze them. If you are out of college,
practice on your own. Find a few works on an abstract topic that interests
you, such as philosophy or religion. Read and analyze the material,
focusing on the key elements of each idea. How can each concept be
summarized? What elements do the concepts share? How do they differ?
Although it may not sound like a fun way to spend your time, it will get you
into the practice of analyzing and synthesizing ideas. For those students
who have been in the workplace before law school, you have the advantage
in that you engage in problem solving of some sort in the workplace.
However, law school problem solving, unlike workplace problem solving,
is based on theory. Given this context, students who have been out of
school for some time might want to take a continuing education course that
focuses on applying theoretical concepts. However, avoid speedreading
courses; law school demands that you read slower, more deliberately and
reflectively, not faster.
Reading, unfortunately, is not enough. To truly succeed in law school,
you must also be a writer. Many observers have lamented the decline in
writing in colleges and universities,23 and critics have pointed out that
fewer graduates each year are capable of writing at an adequate level. Far
too many students react to writing courses with fear and revulsion. For law
students particularly, such a response is unfortunate simply because the
legal profession offers no way around writing. Even the student receptive to
writing papers, however, must understand that writing in law school, or
“legal writing,” is very different from writing a paper for college or even
for a graduate program. Legal writing is technical writing.
Like your reading experience, the writing you've done in the past was
probably descriptive rather than analytical. Research papers, essays, even
letters you wrote probably described rather than analyzed and synthesized.
Even when you were asked to analyze someone else's work, you most likely
described it. In law school, you will be asked to analyze a problem through
writing. You will be expected to take apart the problem, look at each part of
the problem individually, and come up with a solution. Some find this
process stifling because of the emphasis on structure. Even if you do love to
write, be open to the experience of learning a certain style of technical
writing very different from what you may be used to.
Some students encounter a different problem: they have little writing
experience or none at all. Here is another way undergraduate experience
differs from law school. Unlike college, there is no way to avoid writing in
law school, or in law practice for that matter. Lawyers communicate; it's
their vocation. Communication takes one of two forms, written or oral.
Contrary to the popular media's portrayal, most lawyerly communication is
written. In fact, the most common question law firms ask potential
associates is, “Can you write?” That's it. Not, “Can you argue in front of a
judge?” or “How comfortable are you speaking in front of a group?”
Instead, the focus is on written communication skills.
One of the most important courses in law school is legal writing, because
it introduces students to analysis and synthesis; in short, it forces students to
“think like a lawyer” while allowing them to see the thought process on
paper. Give the course the attention it deserves. While you probably won't
knock out a paper in one all-night coffee-and-Snickers binge, you will,
through struggle and rewrites, begin to understand how lawyers
communicate with each other, their clients, and the courts. There is no way
out of this one. If you still have the chance before law school, conquer your
fear of writing by taking a course or two that demands solving problems on
paper. Although it might be harrowing now, it will ease some of the pain
and anxiety of writing later on.
If you have been out of practice with reading and writing, or if your
undergraduate program did not emphasize these areas, enroll in a course or
two at a local university or community college. Seek courses that require
reading, digesting, and applying information to solve problems. Certainly,
difficult courses cause short-term pain, but they will provide critical long-
term experience. Perfect your writing ability by practicing it. If you have
not had an opportunity to learn grammar and composition skills, do so now;
grammar and punctuation are not taught in law school, but they are
essential to a lawyer's craft. Remember, words and language are the
lawyer's fundamental tools. Lawyers are professional mouthpieces; the
ability to manipulate and use language is often the distinguishing feature
between an excellent attorney and a poor one.24
This is not to say that if you are a math major, a chemist, or a scientist
who is starting law school in a month, you are already behind. Indeed,
many “hard science” majors have wonderful analytic and problem solving
abilities. While some English majors struggle with the abstract reasoning
aspect of law, the science majors struggle with the verbal representation of
the analysis, not the analysis itself. Whatever your past experience, know
that you will bring both strengths and weaknesses to your legal studies. If
you are prepared to build on your strengths and overcome your weaknesses,
you will succeed in this new realm.
 Preparing for Rough Terrain
Competition, held as one of the hallmarks of a good legal education, is
perhaps overemphasized in law school. As you will soon discover, special
privileges await those who make it to the “top ten percent” of the class after
the first year. Additionally, special privileges await those who reach the top
ten percent and make law review, write an article, serve on an editorial
board, or participate in moot court. Unfortunately, those looking for a high-
paying, big-firm “Grisham” job must be practical super-heroes for a shot at
the “big-time.” Can it be done? Sure. Do you need to be the smartest in the
class? No way. Can anyone make it? No. By definition, only ten percent of
the class ends up in the top ten percent. Some students will expend every
ounce of energy they have to get to the top; many of them will never get
there because they don't take the best approach.
Healthy competition is good; it keeps students on their toes and drives
them to improve and succeed. But what pervades some law schools is more
than a little healthy competition. Some students attempt to attain their goals
with a cutthroat, “dog-eat-dog” approach. They hide books the class needs
for assignments. They spread rumors about potential areas the professor
will test. They proclaim that all responses given in class that day were
completely irrelevant. These folks hinder constructive, cooperative learning
by fostering paranoia and fear. Refuse to buy into their insecurities.
To maintain your center, remember that a successful lawyer is one who
engages in collaborative problem solving, rather than competitive
undermining of colleagues. You cannot do well in this environment if you
rely only on your own memorization skills and prior academic successes. In
law school, cramming and a mild interest in the subject will not win the A it
once did. Indeed, it might not even earn a C. Understandably, many
students find the dearth of shortcuts in law school a very difficult
adjustment. In fact, some students admit that they “didn't work all that hard
in college” and still managed to pull top grades. Even if you were able to
cram in college, law school requires constant commitment and daily effort.
Most importantly, keep a healthy perspective. Law is not and need not be
mystifying. With the skills we will outline in the following chapters you can
learn, work hard, play and even sleep, all while conquering law school.
 Getting Around
Law school is very much like exploring a foreign country without a map.
Expect to get lost. Expect to be frustrated and confused. Expect, at times, to
be frightened. Remember, however, that most “travelers” make it out alive
and feel good about having found their own way.
The Langdellian method was not as foreign to law students when it first
took hold. Indeed, most law students at the time had been exposed to this
type of questioning in college. Moreover, “[s]tudents in Langdell's
classroom had an undergraduate liberal education in rhetoric, logic,
philosophy, science, and mathematics that served as a foundation for the
case method.”25 They were accustomed to professors' unending questions
and students' responses in an attempt to “discover” the truth. Indeed,
Landgell's method was similar to the one used by Socrates, who questioned
his students, on the theory that they would both discover “truth” together.26
(Think of it as the Detective Columbo way of learning: listen, take notes,
look perplexed, ask questions. Find the murderer). However, students
preferred the lecture method because it made life easier: answering
questions and applying facts to solve problems demands much more than
taking notes and memorizing information. In fact, “[i]nitial reaction to the
introduction of the [Langdellian] method was negative, extreme, and
immediate.”27
Given the rough road ahead, how do you navigate? How do you find
your way through all the cases? First of all, remember why you are reading
cases. You are learning not only the law but also legal analysis. You are
being taught to “think like a lawyer.”28 Remember solving for x? Faced
with an algebra or chemistry equation, your mission was to solve the
problem by finding the missing piece. And so you did: x = 5 or 2 or 0;
never did x = 5 or 2 or both. Never did the equation change to suit the
circumstance. One answer always existed; you just had to find it. Unlike
other disciplines, law rarely provides “one answer.” Rather, in law, the best
we can do is provide “an argument.” More often than not, each argument
has a solid counter-argument. In addition, in law, the “equation” may
change; that is, the approach or even the rule of law can change or evolve to
suit different circumstances. The equation is not fixed.
 This can be one of the most maddening aspects of law school.
Unfortunately, “when a student is set to expect a ‘right’ answer, it does not
occur to him that there may be several ‘right’ answers, and that, given this
state-of-affairs, it isn't the answer which is so important anyway but rather
the questions to which the answers are related.”29 Put another way, don't
expect to learn any “right” or “wrong” answers in law school. Although
there may be stronger or weaker arguments, there is very rarely a “right” or
“wrong” answer.
This drives students, especially first year students, bonkers. How can
supposed “solutions” be so ambiguous? Why does every question provoke
another question in return? Why would a professor “hide the ball”? Often,
the more a student is comfortable with ambiguity, the less stress she will
experience in law school.30 Learn to love the grey. Rather than emphasizing
right and wrong, professors assess the strength of students' arguments.
Another math analogy illustrates this principle: rather than solve for x,
show your “proof.” What steps took you to your conclusion? Treat law
more like geometry than algebra: the ultimate conclusion can vary as long
as the proof logically leads to it.
Too many students think law school is about learning the rules; if that
were true, students would memorize statute books and legal treatises, which
they don't. Instead, you are learning how to solve legal problems. Recall the
adage: give a man a fish, he eats for a day; teach a man to fish, he eats for a
lifetime. The same principle applies: you are learning how to fish. Be
patient. Expect to get lost. Expect to be frustrated. Expect to learn in a new
way. Expect to examine material critically, explore logical implications, and
discover faulty reasoning. If you can adapt to the legal environment and
construct individualized ways in which to process a tremendous amount of
information31 (and we hope to show you some of those ways in this text),
then you will enjoy this journey.
 Avoiding Tourist Traps
Most law schools only test students at the end of the semester or at the
end of the year. Don't misconstrue having only one final exam as an excuse
for not studying throughout the semester.
Most college courses offer students ample opportunity for performance
evaluation and feedback: quizzes, midterms, papers, presentations, and
finals. At any given point in a course, a student can gauge her performance
and progress. Such feedback is not only a sound educational practice, but a
sound psychological one as well; the ego can adjust to small
disappointments (blowing a quiz) and temper it with improvement (acing a
test). Unfortunately, most law school courses do not evaluate students
frequently, nor do most law professors provide the level of feedback
students may be accustomed to. Indeed, most law classes evaluate students
only once a semester, and only at the very end of the course. While this
might seem like nirvana to some, it is extremely unfair because it does not
prepare students adequately for the exam.
Imagine learning to play tennis by reading about tennis, watching tennis
matches, and discussing tennis mechanics, but never actually playing a set
until the final day of class.32 Think of how nerve-wracking it would be to
have an entire grade riding on one match for which you've never actually
practiced. Yet most law schools operate this way: an entire semester of case
discussion with no opportunity to test problem solving skills until the very
end. Do not misconstrue having only one final exam as an excuse for not
studying the entire semester. Unless you practice the skills, you will not do
well on the exam. Learning to “think like a lawyer” takes time; you only
begin to learn how to identify issues, articulate rules, apply them to facts,
and draw conclusions when you see these steps in action over and over
again in a variety of contexts. This doesn't mean you shouldn't practice with
small hypotheticals, but be aware that final examinations will require
sorting through complex fact patterns, spotting numerous issues,
articulating different rules, and devising several arguments. You should test
yourself using small hypotheticals throughout the semester with or without
a study group. Later, you should try to tackle some comprehensive exams
and get feedback on your answer from the professor or an Academic
Support Professional.
 Traveler's Advisory
Work hard, but work smart. The Langdellian method is far from perfect,
but it can be conquered.
Remember that Langdell devised his new approach to teaching law in
response to the shortcomings of both the apprenticeship and lecture
methods of training legal professionals. Unlike your predecessors, you may
never have been exposed to this type of teaching before. Certainly, if you
were a science major, you have used the scientific method to prove a
hypothesis. If you were a math major, you have resolved problems before
by solving for “x.” If you were a liberal arts major, you have certainly read
and discussed original, difficult texts to reach a conclusion; however, you
probably have not engaged in the type of classroom discussion in which one
professor drills one student in front of a hundred or so of her peers, on the
cases assigned, and on many variations of the cases. You may not have
experienced the dreaded questioning, “Well, Ms. Smith, what if the light
had not been red but yellow? What if the defendant didn't see the light
because the sun was in her eyes? Would that affect the outcome of the case?
How? Why?”
Now that you're prepared for the journey and are aware of some of the
details, let's explore some of the skills you need to succeed. The following
chapters introduce, describe, and illustrate each of the skills that will allow
you to maximize your talents and hopefully minimize your stress.

Endnotes
1. Much of the information contained in this chapter is derived from an
article on law school methodology. Ruta K. Stropus, Mend It, Bend It and
Extend It: The Fate of Traditional Law School Methodology In the 21st
Century, 27 Loy. U. Chi. L.J. 449 (1996).
2. Arthur Austin, Is the Casebook Method Obsolete? 6 Wm. & Mary L.
Rev. 157, 158 (1965).
3. See Kurt M. Saunders & Linda Levine, Learning to Think Like a
Lawyer, 29 U.S.F.L. Rev. 121, 127 (1994).
4. See Austin, supra note 2, at 160 (noting that “the apprenticeship
method failed because it was tightly geared to the pragmatic mechanics of
the law”).
 5. Reconstruction, urbanization, the dawn of the Industrial Revolution,
and a new emphasis on science and technology together ushered in an era
of professional public service after the Civil War, and colleges developed
programs to meet the demand in various disciplines. Law was no exception.
Although a few law schools had been established (one as early as 1779), it
wasn't until approximately 1870 when the concept of a legal education truly
materialized. Paul Carrington, Hail! Langdell, 20 L. & Soc. Inquiry 691,
695–704 (1995). See also Albert J. Harno, Legal Education in the United
States, 52 (1953) (noting that by 1870, “changes in legal education were in
order” to resolve new complexities in law requiring knowledge and skill
beyond black-letter learning).
6. See Saunders & Levine, supra note 3 at 127–28.
7. See Austin, supra note 2 at 160.
8. See Carrington, supra note 5 at 708.
9. See Harno, supra note 5 at 54.
10. See Austin, supra note 2 at 162.
11. Langdell served as Dean from 1870 to 1895. See Carrington, supra
note 5 at 691 n.1.
12. Despite a history of opposition that still pervades today, Langdell's
“technique endures as the mainstay of legal education.” Alan A. Stone,
Legal Education on the Couch, 85 Harv. L. Rev. 392, 406 (1971).
Interestingly, after centuries of employing this methodology, Harvard is
now considering taking a different track. Jonathan D. Galter, Harvard Law
Decides to Steep Students in the 21st-Century Issues, N.Y. Times, October
7, 2006, at A10.
13. Steven A. Childress, The Baby and the Bathwater: Salvaging A
Positive Socratic Method, 7 Okla. City U. L. Rev. 333, 349 (1982).
14. Not all commentators agree that meanness is all that bad. Indeed, one
commentator has noted that “[t]eachers unwilling to cause such pain ... are
not as helpful as they might be to students preparing themselves to deal
with human conflict.” Carrington, supra note 5 at 748.
15. Phyllis W. Beck & David Burns, Anxiety and Depression in Law
Students: Cognitive Intervention, 30 J. Legal Educ. 270, 286 (1979).
16. For a sampling of articles criticizing the methodology, See Duncan
Kennedy, How the Law School Fails: A Polemic, 1 Yale Rev. L. & Soc.
Action 71 (1970); Karl N. Llewellyn, The Current Crisis in Legal
Education, 1 J. Legal Educ. 211 (1948); Andrew S. Watson, The Quest for
Professional Competence: Psychological Aspects of Legal Education, 37 U.
Cin. L. Rev. 93 (1968).
17. See Lani Guinier et al., Becoming Gentlemen: Women's Experiences
At One Ivy League Law School, 143 U. Pa. L. Rev. 1, 93 at 62 (1994).
18. Stone, supra note 12 at 407.
19. Michael E. Carney, The Narcissistic Concerns in the Educational
Experience of Law Students, 18 J. Psychiatry & L. 9, 20–21 (1990).
20. Id.
21. B.A. Glesner, Fear and Loathing in the Law Schools, 23 Conn. L.
Rev. 627, 635–40 (1991).
22. See Michael J. Patton, The Student, The Situation, and Performance
During the First Year of Law School, 21 J. Legal Educ. 10, 31 (1968).
Patton notes that students who are unable to delay gratification and need to
see immediate and tangible results tend to be more negative about the law
school experience than those who are able to delay gratification and have a
positive outlook on the educational experience.
23. Ernest L. Boyer, College, The Undergraduate Experience in America,
73–79 (1987).
24. See Stropus, supra note 1 at 471 (noting that modern law firms
expect new associates to digest court decisions, apply sound analysis, and
“communicate ... both orally and in writing in a comprehensive and
intelligent fashion.”).
25. Saunders & Levine, supra note 3 at 183.
26. See John O. Cole, The Socratic Method in Legal Education: Moral
Discourse and Accommodation, 35 Mercer L. Rev. 867, 869 (1984).
Actually, the Langdellian method is more similar to the Protagorean method
than the Socratic way of teaching. Whereas Socrates' goal was for the
student to gain self-knowledge, Langdell, like Socrates' rival Protagoras,
sought to teach students “how to develop equally plausible arguments both
for and against a given proposition.” Richard Neumann, Jr., Perspectives on
Legal Education: A Preliminary Inquiry Into the Art of Critique, 40
Hastings L.J. 725, 729 (1989).
27. Paul F. Teich, Research on American Law Teaching: Is There a Case
Against the Case System?, 36 J. Legal. Educ. 167, 169 (1986).
28. Debate abounds as to what it means to “think like a lawyer.” For
purposes of our discussion, it is the ability to “think precisely, to analyze
coldly.” Karl N. Llewellyn, The Bramble Bush 116 (1930). For a deeper
explanation about how students are taught to think like lawyers, see
Saunders & Levine, supra note 3.
 29. Michael J. Patton, The Student, the Situation, and Performance
During the First Year of Law School, 21 J. Legal. Educ. 10, 69 (1968).
30. B.A. Glesner, Fear and Loathing in the Law Schools, 23 Conn. L.
Rev. at 634.
31. See Patton, supra note 18 at 21–27.
32. Cathaleen A. Roach, A River Runs Through it: Tapping into the
Informational Stream to Move Students from Isolation to Autonomy, 36
Ariz. L. Rev. 667, 673 (1994).
 Chapter 2

What Is Your Learning Style? Travel

Style?

Similar to how you prefer to travel, you should make sure you know your
preferred learning style so you can determine which study tips and
techniques presented here will work best for you.
I have several friends who all travel to work differently. One friend loves
excitement and adrenaline, so he prefers to bike along the lakefront (in
Chicago) to travel to work. Another friend enjoys taking the commuter train
so she can read the paper, check emails, and relax while not worrying about
driving. Unlike both of them, I prefer to drive (usually fast, I have a reverse
commute with little traffic), so I can listen to the radio and sing along.
Long distance travel is also different for different people. Some people
prefer to drive so they can stop along the way to eat or stay overnight. By
driving, these people control how quickly or how leisurely they will reach
their destination. Others like to fly to get there quickly, whereas some prefer
to travel on the train so they can sit and enjoy the ride.
The same way you plan your travel, you should plan your studying and
determine what is going to work best for you. I want you to think back to
college or even high school. What was your best class? When did you get
that A or A+? What did you do to get that grade? Did you write a paper?
Take a test? Did you study alone or with a group? Did you re-read the book
and your notes? Or, did you make flashcards or a chart or graph the
concepts? Knowing your preferred learning style will help you adapt and
use the best study techniques to learn more efficiently and more effectively.
This will not only allow you to work hard, but also work smart.
 What Are the Different Learning Styles?
Many experts, including those who have studied education at the
elementary, high school, college and graduate levels will tell you that there
are many different learning styles. They will also say that most people
exhibit a combination of multiple learning styles. This book defines and
explains the three major learning styles, but there are many different
learning styles that can be explored through additional research!
 Visual

Visual learners are those who need to “see the picture” to understand it.1
They like professors who use PowerPoint presentations with pictures and
graphs and charts. I am sure you have heard the phrase, “A picture is worth
a thousand words.”2 This phrase is true for visual learners. A picture, chart,
or graph of the concepts and how the concepts fit together will help the
visual learner absorb the material so he or she can retain it. We recommend
that visual learners make flowcharts (see the chapter on Putting It Together,
Part Three: Flowcharting), and also consider making their own PowerPoint
Presentations to explain the material to their study group, or for recall and
memorization. Visual learners can make a picture to represent each element
of battery or burglary and use that to help them memorize the elements of
the crime for the exam.
 Auditory

Auditory learners need to “hear” the information to absorb it.3 Giving

auditory learners tons of information to read in a book is not helpful. They
do well with a professor who lectures or who gives regular review sessions.
If the professor lectures and tells stories, this helps the auditory learner
remember the material. This student might be quiet in a study group, but
would do well. For auditory learners, we recommend getting books on tape
(CDs or MP3s), and/or making their own audio recorded lectures to listen
to during their commute, or to reinforce the material. When thinking about
the information, if the auditory learner can “hear a story” to attach to each
case or concept, “the story” or “the association between the story and the
concept” will help him or her learn the information.
 Kinesthetic

In the words of NIKE©, kinesthetic learners need to “JUST DO IT.”4

These people are your friends or family members (for me, my brother) who
put together the bookcase without the instructions (and use all the parts and
it won't fall down). Kinesthetic learners enjoy physical activity when
learning. These students are those who like to organize and lead the study
group. They like to make flash cards and re-organize the course materials.
Many kinesthetic learners will take a bit from the other styles by making a
flowchart or recording their own lectures, and once it is done, they have
learned and absorbed the information. These are the students who will make
an outline and keep redoing it, and by the time they are done, they no
longer need the outline because they understand the information to the point
that it is memorized.
 What Is Your Learning Style?
By now, some of you reading this chapter will already know your
learning style. You were able to identify with the definitions and
descriptions and know how you should be studying and what techniques
will work best for you. For those of you that are still unsure (and are
probably a combination of a couple of learning styles), you should consider
a learning style assessment. There are several online assessments. Some are
available at no charge. One that we recommend is the VARK Questionnaire
available online at www.vark-learn.com. VARK provides a guide to four
learning styles: Visual, Aural (Auditory), Read-Write, and Kinesthetic.
They have a wonderful free online questionnaire that takes less than eight
minutes to complete. Once complete, VARK provides you with results that
list your scores in each area (visual, aural, read/write and kinesthetic). You
can see which area has the highest score. In addition, the results include
your learning preference, and you can click on additional links on their
website for study strategies that apply to your learning preferences. There is
an optional personalized learning profile report that you can purchase as
well.
Before we knew about the VARK Questionnaire, we gave our law
students the following Personal Exam Evaluation.
 Exam Evaluation—Personal
The purpose of this questionnaire is to help YOU determine how and
why you did not do as well as you should have on your exams. Therefore, it
will be to your benefit to answer the questions as honestly and accurately as
possible. Please complete this questionnaire and give it to me at least 24
hours before our individual conference.

Name______________________________________
Section_______________

Please list the following:

1. How would you evaluate how prepared you were for exams? Please
explain. 10—very prepared, 1—not prepared at all.

2. Please circle the following law school/exam taking preparation

methods that you used and tell me how much study time was spent on each
one.
Method How many hours per day? Hours per week?

Reading (re-reading cases)

Reviewing with a study group

Listening to lectures on tape

Flowcharting

Outlining

Making flash cards

Memorizing Rules

Practice Exams on your own

Practice exams with your study group

Other (please specify:______________)

3. In which of your substantive courses did you perform the best? Why
do you think you performed better in this subject than others?

4. In which subject did you perform the worst? Why do you think that
was so?

5. Did you study ...

Alone in a quiet environment?
 Alone in a noisy environment? (Like a coffee shop)
With others by explaining things with your study group?
With others by listening to your study group?
By making flash cards or flowcharts?
By reading from outlines or study aids?
By listening to lectures on tape?
By looking at flowcharts or diagrams?
By getting the big picture first?
6. Which method worked best for you? Why?

7. Knowing what you now know about law school exams, if you could
re-do last semester, what would you do differently?

What would you do the same?

8. Thinking back on the entire exam period, was there anything that
happened the day of the exam, the day before the exam or during the exam
that impacted your performance?

With slight modification, this evaluation can be completed by any high

school, college, or law student to help determine how to learn best and how
to study. This evaluation is NOT meant to give a specific learning style, but
rather to encourage students to engage in self-reflection and self-efficacy.
We would require our students to complete the evaluation and then discuss
their answers to help them determine what study strategies worked best for
them.
Only you can really determine what works best for you and what you
need to do to learn and process the information so that you can retain it for
later. The same way you don't need someone to tell you how travel to work
or to your vacation destination, we hope you will use the information
presented in this chapter to decide how you will learn and study best.

Endnotes
1. M. H. Sam Jacobson, A Primer on Learning Styles: Reaching Every
Student, 25 Seattle U. L. Rev. 139, 150 (2001).
2. A picture is worth a thousand words has been attributed to Frederick
R. Barnard, who published an ad in Printer's Ink in December 1921 with the
phrase: “One Look is Worth a Thousand Words.” Barnard later published
another ad in March 1927 with the phrase “One Picture is Worth Ten
Thousand Words” and it was labeled as a Chinese proverb that would later
be attributed to Confucius.
3. Supra note 1 at 151.
4. JUST DO IT is a trademark of the shoe company, NIKE, and one of
their most famous ad campaign slogans, which was coined in 1988. Jeremy
W. Peters, The Birth of ‘Just Do It’ and Other Magic Words, N.Y. Times,
August 20, 2009 at B3 (New York Edition).
 Chapter 3

Learning to Read and Brief Law School

Cases

After reading the introduction and the first chapter, you are now ready to
begin. In law school, along with “learning to think like a lawyer,” you are
also expected to “learn the law” and learn how to apply it to a factual
situation. In order to learn the law, you must first extract the law or rules
from cases. You accomplish this by reading and briefing each case. You are
probably thinking, “I already know how to read, so what's the point of this
chapter?” The point is that the material you will read in law school, mainly
court opinions edited and collected in casebooks, is very different from the
material you read in college; therefore, in order to read, absorb, and
understand cases, you must adopt a different approach. First, let us explore
how and why law school reading material is different.
 Reading in College
In college, most of your reading assignments, excluding literature,
consisted of descriptive text. This type of text is used in college to suit the
purpose of college learning, which is to provide greater understanding of a
subject. In order to explain the subject, the author typically defines a
concept or topic. Then general information is provided about that topic,
before moving on to more specific information. For example, in business
contracts, first the author might state what a contract is. Next, she presents
general information about contracts. This could include such information
such as the history of the first contract and the evolution of contracts; that
is, she presents background information to explain the concept and use of a
contract to expound on the definition. Last, she presents specific
information about contracts, such as how and why they are formed and the
different types of contracts (e.g., employment contracts, contracts for the
sale of goods, etc.).
College texts that are descriptive are usually easy to understand because
they are straightforward; the author defines a concept and then moves from
general information to more specific information. While there are
exceptions, reading for class tends to be uncomplicated. On the other hand,
the books you will use in law school, primarily collections of edited
appellate court decisions called “casebooks,” are rarely descriptive,
straightforward, or uncomplicated.
 Reading in Law School
In law school, most of your reading assignments will come from a
casebook. Although most casebooks consist of written decisions, or
“opinions,” from appellate courts,1 they also contain brief introductory
materials and notes related to the cases. Casebooks are used in law school
to teach students to think like lawyers and to teach the law. Unlike college,
in which texts aim to provide a greater understanding of one subject, in law
school, casebooks are assigned to teach the law (i.e., rules) and, at the same
time, the process of problem solving (i.e., the application of the rules) to a
new factual situation.
In order to achieve this dual purpose, when reading each case, you must
(1) extract the law or rule from the case and (2) apply the rule to different
factual situations. These two tasks can be rather difficult, depending on how
the opinion is written. More often than not, judges do not write cases
saying, “The law in this case is...” or “The real problem here is ... and in
order to solve it we must decide....” If they did, reading and understanding
cases would be easy because the format would be consistent and the logical
steps leading to the conclusion would be clear. Unfortunately, it isn't that
simple. In law school, you must engage in problem solving from the
beginning (in reading even your very first case) to determine what is
important about each case. Before we discuss specific tips and techniques
for reading cases, we will define and describe the concept of case rules.
All law is made up of rules, and all rules can be broken down into
smaller pieces or parts, called elements or factors.2 Most cases explain,
define, describe, broaden, or narrow rules. What are rules? What are
elements or factors? Very simply, a rule is a statement of the law that
proscribes what a person can do. For example, you may read a case in
which the court was asked to decide if a dog owner violated the city's leash
law when she had her dog on a leash but routinely dropped it and allowed
the dog to chase a ball on a vacant lot. Ownership of the lot is in dispute. In
deciding this particular problem, the court quotes the city's leash law, which
states, “All dogs must be on a leash when in public.” This is the rule.
Before you can analyze whether this particular owner violated the leash
law, you must isolate each element of the rule and consider it separately.
The elements are the specific conditions of a situation to which the rule
applies, like a checklist of requirements. Here, the three elements are dog,
leash, and “in public.” If we have (1) a dog, and the dog is (2) in a public
area (whatever that means), then we must make sure that the dog is in fact
(3) on a leash to comply with the law. Students are quick to jump to the
conclusion: “Of course the owner violated the law,” before they assess each
and every element of the rule. Before you answer any question “yes” or
“no,” always ask yourself, “Does this problem fit the rule?” “Has each and
every element of the rule been satisfied?” In our dog example, although we
do indeed have a dog, it is unclear whether the dog was in a public area (the
ownership of the lot is in dispute) or whether the dog was leashed (what
does the statute mean by “on a leash”—that the dog have a leash or that the
leash be held by a human being?) The conclusion that “of course the owner
violated the law” is hasty because it is unclear whether each and every
element of the rule was satisfied.
 Things You Need to Know before Reading Your
First Case
Obviously, travel is a bit easier if you know what to expect. Likewise,
reading a case is easier if you know what to expect. Usually, in the rush “to
just get to it,” law school professors do not explain how to read a case; they
just expect students to know how it's done. Reading a case, however, is not
like reading a textbook, a periodical or any other text. You need to have the
necessary background before you can truly “read” a case. Here's what you
need to know. Please note that although we have given you “the basics”—
the information has much more depth and breadth than we've provided here.

The Dual Court System

The United States has a dual court system. The metaphor we will use to
explain this duality is that of a small business with two departments,
accounting and marketing. Think of the United States as a business with
two departments, state and federal. When you read a case, first determine
which “department” it comes from, state or federal. Just like accounting
takes care of accounting matters and marketing takes care of marketing
matters, federal courts take care of federal matters (federal questions, like
violation of the Federal American With Disabilities Act), and state courts
take care of state matters (state questions, like violation of the Illinois
Disabilities Act). Usually, it is easy to tell whether a matter belongs in
federal or state court simply by determining whose law is in question. Is the
plaintiff claiming defendant violated a state or federal law?
Sometimes, however, the lines between federal and state, like the lines
between accounting and marketing, blur. Suppose that in addition to
accounting matters, the accounting department also resolves disputes
between different people in the marketing department. In other words, if Pei
Pei and Charlene disagreed (who both work in marketing, but have separate
specialties) about a marketing matter, the accounting department might
settle the dispute. This is not to say that their boss in marketing couldn't
solve the problem, but only that in such a case, an option exists to go to the
accounting department to obtain a resolution. The same is true in federal
court. If there is a dispute between citizens of two different states (e.g.,
someone in Wisconsin is suing someone in Illinois about violation of an
Illinois law), a federal court can hear the case. This situation is referred to
as diversity jurisdiction. To recap:

TIP: Decide what “department” the case is in.

Is this a state court case (there is a state law involved—what is it?)

Is this a federal court case (because either there is a federal law involved
OR this is a dispute between two citizens of different states about a state
matter)

Divisions of Courts within Each Court System

The Trial Court
Obviously, no small business has two departments without a hierarchy in
each department. In other words, not everyone is equal in the accounting
department. There are junior accountants, senior accountants, and
supervisors. The same can be said of the marketing department. Likewise,
within each court system, state and federal, there is a hierarchy. Usually
cases begin in the trial courts, where a judge and/or jury hears testimony
and argument. At trial court, if there is a judge and jury, the judge is in
charge of the law, and the jury is in charge of the facts. Returning to our
analogy, in the accounting department, most work begins with the junior
accountants. They “crunch” the numbers following a procedure set down by
those above them. If a question about the numbers themselves arises, the
junior accountant is the one to ask because she was the one who crunched
the numbers. Likewise, at trial, the jury hears testimony of witnesses and
determines who is credible and who is not. In other words, the jury “finds”
facts. It, like the accountant crunching numbers, works with the facts. When
you read a case, therefore, and there seems to have been a dispute of fact
(e.g., did he or didn't he run the red light), it is the jury that decides the
answer.
If the jury finds facts, what does the judge do? Like a senior accountant
who determines what accounting methods the firm uses, the judge
determines what law applies to a particular matter. Let's say the accountant
tells his junior associates to use a certain accounting method. The junior
associates crunch the numbers, using the system set up by the accountant.
Here is another example: Running the red light. The jury decides whether
or not the defendant ran the red light. However, the judge has to tell the jury
what law to use in resolving the dispute. She has to evaluate what the rules
are and what legal standards govern the matter. She instructs the jury on the
law (hence the term “jury instructions”). In this case, she might instruct the
jury: “Ladies and gentlemen, the law of this state is that everyone has a
duty to obey traffic signals. If someone disobeys a traffic signal and, as a
result, causes harm to another, then that person shall be liable in
negligence.” The jury then takes the law and applies it to the facts in order
to decide the case.
In cases where there is no jury at the trial court level (plaintiff can decide
to waive the jury), a judge determines both the law and the facts of the case.

TIP: Distinguish between facts and law.

Having decided what “department” the case is in, make sure you
know:
The facts of the case (usually the jury decides the facts at the
trial court level), and
The law according to the trial judge governing the dispute.

The Appellate Court

What if a party doesn't like a decision made by the trial court? What can
she do? She can appeal to a higher court. But what does she appeal,
exactly? It is important to know that an entire case cannot be appealed to
the appellate court. In other words, a party can't simply state on appeal:
“The trial court made a bad decision and it should be reversed.” What if
you disagree that your client ran the red light? What if you think that the
jury decided the facts incorrectly? Let's return to our accounting
department. Who actually crunched the numbers? Who researched them,
checked them, and double-checked them? The junior accountant, of course.
If someone discovers that there is a mistake in the books, the mistake can
be one of two possibilities:
a) Factual—the accountant used the wrong numbers in the formula; or
b) Policy—the accountant used the wrong accounting method when
crunching the numbers.
The same possibility can be said of trial court decisions. If there is a
mistake it's either:
a) Factual—the jury incorrectly found the facts (the client did not run a
red light); or
b) Legal—the trial court incorrectly instructed the jury as to the law.
When bringing a case up on appeal, attorneys look for a legal mistake
rather than a factual one. In other words, if a lawyer believes that the trial
court incorrectly instructed the jury as to the law, it is likely that the
decision will be appealed. However, if the lawyer believes that the jury
incorrectly found the facts (the light was not red, it was green), she will not
jump at the chance to appeal. Why? Because in order to overturn findings
of fact, the lawyer must prove with clear and convincing evidence that the
facts were wrong. This is a very high standard and is rarely established.
Therefore, when reading an appellate case, look for the legal issue on
appeal. What, according to the lawyer, was the trial court's legal mistake?

TIP: Dissect the opinion.

Isolate the legal issue on appeal (What mistake of law did the trial court
supposedly make?)
Focus on the arguments made by each side. What is the correct statement of
law according to the plaintiff? Why is this correct? What is the correct
statement of law according to the defendant? Why is this correct?
Evaluate the court's opinion. What is the correct statement of law according
to the appellate court? Why did it reject one side's arguments and accept the
other's?

What Can the Appellate Court Do with the Trial Court

Decision?
If an employee makes a mistake, his boss has several options. She can
overturn the employee's decision outright, or she can yell at the employee
and tell him to re-do the particular task. In other words, our accountant boss
can:
1) decide that her accountants were using the wrong method and
overturn the method outright; or
 2) decide that her accountants were using the wrong method and tell
the employee's to re-crunch the numbers using the new method.
Appellate courts have similar options. They can reverse the trial court's
decision altogether. They could also reverse and remand the case back to
the trial court for what amounts to a “do-over.” Appellate courts are more
likely to reverse if there is a pure question of law to consider, such as
whether violating a traffic signal is automatic proof of negligence.
Appellate courts are more likely to remand if there is a factual component
to the decision, such as when, given the correct statement of the law, the
trial court needs to go back and consider more facts. Like the accounting
department, appellate courts deal with errors in two ways:
1) overturn the lower court decision (i.e., decide that the trial court
misconstrued the law); or
2) reverse the prior decision (i.e., decide that the trial court
misconstrued the law) and remand the case for further proceedings
(i.e., trial court has to reassess the facts in light of this new standard).

TIP: Isolate the conclusion.

Decide what the appellate court did (reverse, remand, affirm) and
why. What was right (or wrong) about the trial court's decision?

Most of the cases you will be reading will be Appellate Court cases.
Others will be Supreme Court cases. Therefore, you will not be exploring
the facts as much as you will be taking on the law. In other words, at these
higher rungs of the court ladder, questions revolve around what the law is
concerning an issue rather than the facts in that particular case. This limited
reading leaves many students cold because of the lack of the human
component in the reading. Because the appellate and supreme courts focus
on law instead of facts, you will not explore what each witness had to say in
the case, what the effect of the matter was on the plaintiff and defendant, or
what the trial court's ruling meant to either side. Instead, you are left with
the rather esoteric, and non-dramatic discussion of “the law.” Focus on the
law and try to understand how and why the court ultimately decided the
way it did. Once you have this information you can intelligently discuss
different fact scenarios (hypotheticals) and the application of the law to
each. In these discussions you can delve into the facts and whether or not
the result is good or bad given the circumstances (the human component).
 Learning the Language
One of the reasons law students have such a hard time reading and
understanding cases is that they don't know the language. Have you ever
been to a foreign country and tried to order a meal from a menu in a
language that you did not understand? Something as simple as ordering a
burger and fries becomes a puzzle. The same phenomenon occurs when
new students enter law school and are assigned their first case. Professors
assume that students both know what a case is and understand the language
the court uses (plaintiff, defendant, replevin, reversed and remanded, etc.).
Although students may be familiar with some of the terminology, usually if
they do not know the legal meaning of even one word, they blindly end up
far from where they were headed. (Like hopping a train to Portland, Maine,
instead of Portland, Oregon, or getting a rare steak when you ordered a
well-done burger.) You can prevent this from happening to you by
following one simple tip: get a good law dictionary and look up every
single word or phrase you do not understand. Black's Law Dictionary is a
sound investment. This is simple and mundane, but it works. Oftentimes, in
a haste to “be done with it,” students cut corners. This may mean skipping
words they do not understand in the hope that their meaning will magically
appear later in the reading, perhaps through context clues. This is not a
reliable method in reading cases because it hardly ever happens. To make
sure that you know enough language to order from the menu (so to speak),
a short dictionary of common legal terms used so often in cases that you
should know them is included in the back of this book.
 Reading Tips and Techniques
Most law students will admit (or claim) that the bulk of their time is
spent reading cases. In fact, one law student admitted that she spent so
much time reading and re-reading cases that she had no time for anything
else. The good news is that reading cases will help you prepare for class
and, ultimately, learn to think like a lawyer. The bad news, though, is that if
all you do is read cases, you probably will not do your best on exams. The
key is to develop a sensible balance between case reading and the other
things you have to do, like synthesizing your notes, outlining, and
reviewing. In order to allow sufficient time for all the other things, you have
to be able to read cases efficiently. In order to help students use their time
more efficiently, we developed the following techniques for reading cases.

Step 1—Anchor yourself.

Never read a case without knowing the context. Before you read a case,
you need to know what the case is all about. Think of this step as reading a
travel guide before you book your trip. Before you read any case, you must
do two things: (1) figure out the main issue, which is your anchor; and (2)
read an additional source that will give you some general knowledge about
that issue.
First, consult the casebook table of contents or the course syllabus to
figure out what topic or issue the case will address and where this case fits
into the big picture. The table of contents may lead you to a main issue and
an element or sub-issue. See the sample syllabus.

Sample Syllabus

Torts
Fall 2000 Syllabus
Professor Taylor
Office hours
...
Rules and Regulations
 ...
Assignments
Intentional Torts
Battery
Intent
Vosburg v. Putney p. 2
Garratt v. Brown p. 7
...
Harmful or Offensive contact
...
Negligence
...
Strict Liability
...

Here, if you are assigned to read the Vosburg and Garratt cases, you
know that you are reading about intentional torts, specifically battery. You
also should note that these cases are about the intent element of battery;
therefore, intent is your anchor.
Once you have an idea of which issue to look for in the case (intent) and
where this topic fits into all of the topics, you will study this term and
consult an outside source that will give you some general knowledge about
both battery and intent. Here, law school hornbooks, such as Prosser on
Torts,3 or commercial outlines, such as Emanuel Law School Outlines,4 can
be helpful. These books are very much like the books you read in college in
that they are descriptive texts. They define and describe a concept and
include the rules that you must extract from your cases.
Commercial outlines, running between $30 and $40 each, are less
expensive than hornbooks, and tend to be very general and include few
cases. Whatever they are, they are good for giving you an idea of the “big
picture” and helping you see the forest, not just the trees. The better
outlines (Emanuels and the Example and Explanation series by Aspen) are
also good for providing sample exams with answers so that you can test
yourself. Hornbooks and treatises, generally starting at $75 each, are more
expensive but tend to be more detailed and include extensive footnotes to
cases and law review articles that will further explain a topic. Before you
spend any money purchasing either, see if your law school has an Academic
Support or Academic Assistance office to recommend any study aids to
assist you. Also, check with your professor to see which hornbook he or she
recommends. By reading a hornbook or commercial outline before reading
the case, you gain a general understanding of the topic that the case will
address and arm yourself with an anchor that will make case reading easier
to understand and quicker to get through.

Step 2—Read the case—focus on your anchor.

Once you have your anchor (the topic that the case is about) and you
know a bit about the anchor, you can begin reading the case. As you read,
focus on the following: (1) the facts, (2) your anchor, and (3) the rule. First
you should focus on the facts and try to determine “what happened.” You
need a factual basis for actions that took place to figure out whether the
court found those actions legal or illegal. Second, you should focus on your
anchor.

TIP: After you have some knowledge of the facts, ask yourself some
questions as you read the case.

What does this case tell me about this issue (anchor)?

Is the court explaining the issue?
Is it dividing the issue into elements or explaining one of the
elements?
Finally, try to figure out the rule that the court has articulated.
In trying to determine the rule, again focus on the anchor. Try to
determine whether the court is creating a new rule, rejecting an
old rule, or explaining or redefining an existing rule. After
reading the case a couple of times and trying to understand what
the case is all about, you are ready to brief the case.

Step 3—Brief the case.

What Is a Case Brief?
 A case brief is more than a summary of the case. It is a reduction of the
case to its essential components that you will need later for class discussion,
to create an outline, and to be able to apply the rule to a new set of facts
(hypothetical or examination).

Why Should I Brief My Cases?

Case briefs serve three important purposes: they help prepare you for
class, they provide an opportunity to practice legal writing, and, along with
your class notes, they make a solid foundation for your outline, which you
will need to prepare for your final exam.

Class Preparation
By not only reading the case but also briefing it, you will gain a greater
understanding of the case and be ready to discuss it in class. Because most
law school professors use a modified version of the Socratic method,5 class
preparation is key. Professors expect you to have cases briefed, understand
the facts, and are willing and able to explain and expand upon the decision
of the court.

Legal Writing
Briefing gets you into the practice of writing in the format expected on
exams. When you brief, you learn how to isolate an issue, articulate the
legal rules involved, express the court's reasoning in solving the problem
the way it did, and pinpoint the conclusion, all in a condensed fashion. All
of these skills are crucial for performing well on the exam. You will be
expected to isolate the issue, articulate the legal rules, express the
reasoning, and come to a conclusion. The more cases you brief and the
more often you brief, the more likely it is that you will do well on the exam.

Foundation for Outlining

By briefing each case and subsequently “correcting” your brief during
and even after class,6 you will have most of the information you need to
create an outline. Your outline will help you answer the questions on the
final exam more effectively.
 Briefing Tips and Techniques—FIRAC
How do you brief? Everyone has his own style. You will find that in
many law schools, legal writing professors declare that there are 5, 7, or
even 9 parts to a brief, but there is no one “right” way to brief. That being
said, you will notice that if you compare briefing styles, they all have
common components: facts, issue, rule application and conclusion, FIRAC.
1) Write down the name of the case—Use only the last names of the
parties (e.g., Miller v. Jones). Do not write down the citation.
2) Summarize the relevant facts of the case—Focus on the “just the facts
ma'am” aspect of the case, rather than the procedural details.7 Although the
procedural details might be important to some professors for class
discussion, on the exam, you will not be tested on your knowledge of where
a case has been or how it got there (unless the course is Civil Procedure).
Instead, zero in on what are called the substantive relevant facts. In other
words, give the story behind the case. Place yourself in the shoes of the
attorney in this case, who is charged with the task of explaining the facts to
the jury. How would you summarize what happened? Use the journalistic
formula: who did what to whom, where, when, and how?

Substantive Relevant Facts:

Ms. Samson (who), owner of a dog, Spot, (who) had him on a leash
as she walked to a vacant lot (where) on a Saturday morning. (when)
The lot had been owned by the City, but private interests recently have
disputed the City's ownership. As Ms. Samson approached the lot, she
took Spot off his leash and let him play ball. (how did this happen)
Spot saw another dog on a leash approaching the lot with its owner,
Mr. White. (whom) Spot attacked the other dog (did what) and
scratched Mr. White (to whom). Ms. Samson is charged with violating
the City's leash law.

Notice that the facts in a brief do not contain every single detail (i.e., the
day of the week, the name of the park or street, the breed of the dogs).
Instead, the fact section focuses on the essence of the case. Remember, we
 are concerned only with who did what to whom, where, when, and how.
3) Isolate the issue—In one question, state the problem that the court has
been asked to solve. The issue usually involves a question of law and/or
fact. Students tend to make the issue either too specific or too general. In
the dog problem, for example, here are some possibilities:
Issue possibility Problem
Whether Ms. Samson violated the Too specific —the parties' names do not
City's leash law ordinance, 123 ILCS matter, nor does the citation of the statute.
435, when Spot attacked another Further, the issue as stated here does not
dog. summarize the essence of the dispute.
Whether a person violates a law Way too general —“person” does not
when a dog attacks another dog. describe the owner's relationship to the
dog; “law” does not focus on the leash
law; “another dog” disregards that another
dog's owner was also involved.
Whether a dog owner violates a Just right —describes, rather than
leash law, which mandates that all names, the parties: “dog owner” is more
dogs be on leashes in public places, specific than “person” but not as specific
when the owner has the dog on a as “Ms. Samson;” the statute is described
leash but drops the leash and allows rather than identified by number; and the
her dog to run around in a vacant lot, essence of the problem is isolated—a dog
whose ownership between City and is on a leash but the leash is dropped, and
private interests is in dispute. the nature of the lot is disputed.
How do you get the issue “just right?” Use the following formula:

WHETHER + SVO + WHEN + FACTS

S V O = Subject Verb Object (verb must be legally significant)

Let's go through the formula:8

S = SUBJECT. Describe the subject of the sentence. Remember to keep
it descriptive. Rather than name names (Ms. Samson) or generalize (person,
plaintiff), you want to describe the parties in a way that indicates their
relationship. In this case, “dog owner” is a good description.
V = VERB. The subject must have done something that caused legal
consequence. The verb should indicate both the action and the legal
consequence. Again, you want to strike a balance between being overly
specific (e.g., violated the City's leash law ordinance, 123 ILCS 435) and
being overly general (e.g., violated a law). Description is key. In this case,
we can describe the subject's action and legal consequence with “violated
the City's leash law.” This phrase describes the essence of the dispute (the
City's leash law). In all cases, you need to balance the over-generalized
(e.g., “violated the law”) against the overly specific (e.g., “breached Illinois
law 124 ILCS 333”), and find something just right (“made an offer for
purposes of a contract,” or “owed a duty in negligence”).
O = OBJECT. If in the “s” of the issue statement, you described the
actor, here you will describe the recipient of that action. In other words, you
described the actor as a “dog owner.” Who was on the receiving end of her
action? Not “the defendant” (too general) or “Mr. White” (too specific), but
rather “another dog owner.”
WHEN + FACTS. After isolating the actors and the action, you need to
describe the factual setting. Again, you must strike a balance between the
overly specific (e.g., when they met at 156 East Jackson Street, a vacant lot
whose ownership is in dispute) and the overly general (when one dog ran
after another dog). Ask yourself, “What facts in this case make this a
difficult problem to solve?” In this case, it is both the leash situation
(technically leashed but running around) and the nature of the lot
(ownership in dispute). Both of these FACTS will make our analysis of the
elements “leashed” and “public property” difficult; therefore, we must list
both in our issue. Remember, you need to include FACTS, not legal
conclusions at this point.
Example:
Do say: ... when the owner has the dog on a leash but drops the leash
and allows her dog to run around in a vacant lot, whose ownership
between City and private interests is in dispute. [The phrase is factual
(dog is on a leash but leash is dropped, lot ownership is in dispute)
without being overly specific.]
Don't say: ... when the dog is not leashed and the property is public.
[This phrase describes legal conclusions. The term “leashed” in this
context is a legal conclusion, which is in dispute—we do not know if
the dog is “leashed” according to the statute until we know what the
City law means by “leashed.” Likewise, whether the property is public
is a legal conclusion that is in dispute; what does “public” mean—
 owned by the City? Can a property whose ownership is in dispute be
called “public?”]
4) Articulate the rules—State the rule(s) of law that the court used to solve
the issue. Rules can come from either statutes or cases. Remember, a rule is
a statement of the law that proscribes what a person can or cannot do under
certain circumstances. Even though the court may discuss many rules in
making its decision, focus on the rules that relate to the issue. For example,
in the negligence problem, focus on the rules that relate to reasonable duty
of care. Paraphrase the rules. It is not always necessary to write down the
case they came from; what matters is that you pinpoint the rule (e.g., When
one breaches the duty of reasonable care to another, one is negligent. The
duty of reasonable care is determined by considering whether a reasonable
person, if put in the defendant's situation, would have acted in a similar
manner).
Any given case may have many rules. Focus on only those rules that
relate to your issue. In other words, if the issue is what constitutes “intent”
for purposes of battery, then the only rules to note are those dealing with the
“intent” element of battery. In our dog example, the rules that you must
brief are those that relate to the City leash law—what the law says and how
prior decisions have interpreted the terms “leashed” and “public.” Has any
previous case dealt with these interpretations? Remember, we are trying to
see how the court solved Ms. Samson's problem. Before deciding her case,
the court turns to prior decisions for guidance, much like any human being
making a decision about her life seeks others for advice. Perhaps previous
definitions and interpretations will help this court decide this case.
5) Begin the application—Also known as the reasoning, rationale, or
analysis, the application is often described as the “why” of the case. In this
section, you must determine why the court decided the way it did. The
application section may have as many as three parts.
Main—The main argument. Why did the court say a certain party should
win the dispute? Here you should strive to combine the rules and the facts.
In other words, the main argument should not simply repeat either the facts
or the law. Instead, you should show how the court combined the rules and
the facts of this particular situation.
Example:
Don't say: The court cited previous cases in which a dog was leashed,
meaning the owner maintained a hold on the other end, and public,
 meaning city-owned. [There are no facts, only regurgitation of the
rules without any indication of HOW these rules helped the court solve
this problem.]
Don't say: Here the dog was on a leash, which the owner had dropped,
and the lot was vacant. [There are no rules, only regurgitation of the
facts without any indication of how the facts and the law worked
together to solve this problem does not help solve our problem.]
Do say: As to the word “leashed,” the court cited a previous decision
that construed that word to mean “connected to owner.” In this case,
because the leash was not in Ms. Samson's hand, Spot was not
“leashed” pursuant to the statute. As to the term “public,” the court
found previous decisions holding that “public” means “owned by a
public entity,” such as a city. In this case, because the ownership of the
lot is in dispute, the court could not say it was public, in the sense that
the lot is vacant (and, therefore, not held out to the public) and there is
no indication as to the ownership of the property from just looking at
it. [Notice how the rules blend with the law to form the application. In
this section, you need to show how the court used the rules to solve a
new and different problem.]

TIP: To ensure that you are completing the application section fully, count
the number of times you use the word “because” in your answer. “Because”
should be the bridge between the rule (“leashed” means “connected to
owner”) and the facts (Ms. Samson was not holding Spot's leash). Also,
highlight all the facts in yellow and all the rules in pink. Stand back and
look at the application. Is it all pink? If so, you have too many rules. Is it all
yellow? If so, you have too many facts. Is it pink on top and yellow on the
bottom? If so, you have isolated but not integrated rules and facts.

Example:
Application—too many facts
Here the dog was on a leash that the owner had dropped and the
lot was vacant.
Application—all rules, no facts
 The court cited previous cases where a dog was “leashed”
meaning the owner was on the other end, and “public” meaning
city-owned.

Application—rules and facts isolated

The court cited previous cases where a dog was “leashed”

meaning the owner was on the other end, and “public” meaning
city-owned. Here, the dog was on a leash that the owner had
dropped and the lot was vacant.

Application—good mix of rules and facts

As to the term “leashed,” the court cited a previous decision that
construed that phrase to mean “connected to owner.” In this case,
because the leash was not in Ms. Samson's hand, Spot was not
“leashed” pursuant to the statute. As to the term “public,” the court
found previous decisions holding that public means “owned by a
public entity,” such as a city. In this case, because the ownership of
the lot is in dispute, the court could not say it was public, in the sense
that the lot is vacant (and therefore not held out to the public) and
there is no indication as to the character of the property from just
looking at it.
Opposing—The argument made by the other party or by the dissenting
judge. Focus on the arguments made for the other side in terms of the law
and the facts combined, just as you did in the main argument. For example,
“Ms. Samson did not violate the leash law because Spot was leashed in the
sense that he had on a dog collar and a leash; Ms. Samson merely let go
temporarily. Thus, this was not a situation in which the dog was running
around completely loose. She could have picked up the leash and restrained
Spot at any time.”
Rebuttal—The reasons why the opposing arguments fail. Focus on the
weakness of the opposing arguments and explain why the correct
conclusion goes back to the main argument. For example, “Ms. Samson's
argument that her dog was ‘leashed’ fails. Contrary to her assertion, Spot
was not ‘leashed’ in the sense that she could pick up the leash and restrain
him at any time, because the very fact that she was unable to do so when
Mr. White came along belies this contention of control.”
6) Don't forget the conclusion—A direct and complete answer to the
issue, sometimes called “the holding,” this is what the court ultimately
decided. For example, “Although Ms. Samson did not have her dog leashed
pursuant to the City's leash law, the dog was not on ‘public’ land (because
of the ownership dispute) and, therefore, she was not in violation of the
statute.”

TIP: A good brief should give you a sense of déjà vu all over again. Make
sure:

All the facts in the fact section reappear in the application

section and vice versa. If there are facts in the fact section that
you didn't use in the application, they are either (1) irrelevant, or
(2) you forgot to use them in the application. If you have facts in
the application section that do not appear in the fact section, you
forgot to brief them in the fact section.
The issue should combine part of the rule briefed in the rule
section (in the V of SVO) and the pertinent facts briefed in the
fact section (when ...).
The rule should be foreshadowed in the issue and incorporated
into the application.
The application (as illustrated in the yellow and pink exercise)
should combine both the facts (briefed in the fact section) and the
rules (briefed in the rule section).
The conclusion, like the issue, should also be a combination of
fact and rule.

These techniques for reading and briefing cases should help you to
prepare more effectively for class and succeed in extracting the rule from
the cases. Below we have provided a case and a sample brief using the
FIRAC method, along with an exercise to help you practice the skill of
reading and briefing cases.
 Sample Case and Case Brief

Vosburg v. Putney9
80 Wis. 523, 50 N.W. 403 (1891)
Lyon, J.
[The plaintiff, 14 years old at the time in question, brought an action for
battery against the defendant, 12 years old. The complaint charged that the
defendant kicked the plaintiff in the shin in a schoolroom in Waukesha,
Wisconsin, after the teacher had called the class to order. The kick
aggravated a prior injury that the plaintiff had suffered and caused his leg to
become lame. The jury found, in a special verdict, that plaintiff had, during
the month of January 1889, received an injury just above the knee, which
became inflamed and produced pus and that such injury had, on February
20, 1889, nearly healed at the point of the injury. The jury further found that
the plaintiff had not, prior to February 20, been lame as a result of such
injury, nor had his tibia in his right leg become inflamed or diseased to
some extent before he received the blow or kick from the defendant.
Instead, it was the defendant's kick that was the exciting cause of the injury
to the plaintiff's leg. And, although the defendant, in touching the plaintiff
with his foot, did not intend to do plaintiff any harm, the jury awarded
plaintiff twenty-five hundred dollars. The trial court entered judgment for
the plaintiff on the special verdict and the defendant appealed.]
The jury having found that the defendant, in touching the plaintiff with
his foot, did not intend to do him any harm, counsel for defendant maintains
that the plaintiff has no cause of action, and that the defendant's motion for
judgment on the special verdict should have been granted. In support of his
proposition, counsel quotes from 2 Greenl. Ev. 83, the rule that “the
intention to do harm is of the essence of an assault.” Such is the rule, no
doubt, in actions or prosecutions for mere assaults. But this is an action to
recover damages for an alleged assault and battery. In such cases, the rule is
correctly stated, in many of the authorities cited by counsel that plaintiff
must show either that the intention was unlawful or that the defendant
intended the act itself, even if he did not intend the subsequent harm. If the
intended act is unlawful, the intention to commit it must necessarily be
unlawful. Hence, as applied to this case, kicking the plaintiff by the
defendant was an unlawful act, and the defendant desired to kick plaintiff.
Had the parties been upon the playgrounds of the school, engaged in the
usual boyish sports, the defendant being free from malice, wantonness, or
negligence, and intending no harm to plaintiff in what he did, we should
hesitate to hold the act of the defendant unlawful or that he could be held
liable in this action. Some consideration is due to the implied license of the
playgrounds. But it appears that the injury was inflicted in the school, after
it had been called to order by the teacher and after the regular exercises of
the school had commenced. Under these circumstances, no implied license
to do the act complained of existed, and such act was a violation of the
order and decorum of the school and necessarily unlawful. In addition,
although the defendant might not have intended the plaintiff to become
lame, there is no question that he intended to kick him. One who intends the
act is also responsible for the subsequent harm. Hence, we are of the
opinion that, under the evidence and verdict, the action may be sustained.

Sample Case Brief

NAME: Vosburg v. Putney
FACTS: Two boys were in a classroom during school hours; the class had
just been called to order by the teacher. The defendant kicked the plaintiff
in the shin. Afterward, the shin area became infected, and the plaintiff
eventually lost use of his limb.
ISSUE: Whether a boy satisfied the intent element of battery when he
kicked another boy in the knee (while in class) and, as a result, the knee
later became infected and diseased and the boy became lame.
RULE: In an action to recover damages for an alleged assault and battery,
the plaintiff must show either that the defendant intended to do the act and
the act was unlawful or that the defendant intended the ultimate result. If
the intended act is unlawful, then the intention to commit it must
necessarily be unlawful.
APPLICATION: Here, the boy did not intend the end result (injuring his
friend's leg so severely), but he did intend to kick him in the shin during a
time (class in session) and a place where (the classroom) this action (the
kicking) was unlawful. Because he intended the act (kicking) and the kick
was unlawful, he satisfied the intent element of battery.
CONCLUSION: Yes. Because the defendant's intended act of kicking the
plaintiff was unlawful, his intention to kick plaintiff was also unlawful.
Defendant is responsible for any harm resulting from his unlawful act.
 Exercise
Exercise 3-1
Reading and Briefing Cases
Please read the following case and prepare a case brief. Please refer back to
the sample class syllabus provided in this chapter prior to reading this case.

Garratt v. Dailey
279 P.2d 1091 (Wis. 1955)
The liability of an infant for an alleged battery is presented to this court
for the first time. Brian Dailey (age five years, nine months) was visiting
with Naomi Garratt, an adult and a sister of the plaintiff, Ruth Garratt,
likewise an adult, in the backyard of the plaintiff's home on July 16, 1951.
It is plaintiff's contention that she came out into the backyard to talk with
Naomi and that, as she started to sit down in a wood and canvas lawn chair,
Brian deliberately pulled it out from under her.... The trial court, unwilling
to accept this testimony, adopted instead Brian Dailey's version of what
happened, and made the following findings:
“III. ... [W]hile Naomi Garratt and Brian Dailey were in the back yard,
the plaintiff, Ruth Garratt, came out of her house into the back yard. Some
time subsequent thereto, defendant, Brian Dailey, picked up a lightly built
wood and canvas lawn chair which was then and there located in the back
yard of the above-described premises, moved it sideways a few feet and
seated himself therein, at which time, he discovered the plaintiff, Ruth
Garratt, about to sit down at the place where the lawn chair had formerly
been, at which time, he hurriedly got up from the chair and attempted to
move it toward Ruth Garratt to aid her in sitting down in the chair; that due
to the defendant's small size and lack of dexterity, he was unable to get the
lawn chair under the plaintiff in time to prevent her from falling to the
ground. Plaintiff fell to the ground and sustained a fracture of her hip, and
other injuries and damages as hereinafter set forth.
It is urged that Brian's action in moving the chair constituted a battery. A
definition (not all-inclusive but sufficient for our purpose) of a battery is the
intentional infliction of a harmful bodily contact upon another. The rule that
determines liability for battery is given in 1 Restatement, Torts, 29, §13, as:
“An act which, directly or indirectly, is the legal cause of a harmful contact
with another's person makes the actor liable to the other, if (a) the act is
done with the intention of bringing about a harmful or offensive contact or
an apprehension thereof to the other or a third person, and (b) the contact is
not consented to by the other or the other's consent thereto is procured by
fraud or duress, and (c) the contact is not otherwise privileged.”
We have in this case no question of consent or privilege. We, therefore,
proceed to an immediate consideration of intent and its place in the law of
battery. In the comment on clause (a), the Restatement says: “Character of
actor's intention. In order that an act may be done with the intention of
bringing about a harmful or offensive contact or an apprehension thereof to
a particular person, either the other or a third person, the act must be done
for the purpose of causing the contact or apprehension or with knowledge
on the part of the actor that such contact or apprehension is substantially
certain to be produced.” See also Prosser on Torts 41, §8. We have here the
conceded volitional act of Brian, i.e., the moving of a chair. Had the
plaintiff proved to the satisfaction of the trial court that Brian moved the
chair while she was in the act of sitting down, Brian's action would patently
have been for the purpose or with the intent of causing the plaintiff's bodily
contact with the ground, and she would be entitled to a judgment against
him for the resulting damages. Vosburg v. Putney (1891), 80 Wis. 523, 50
N. W. 403; Briese v. Maechtle, supra. After the trial court determined that
the plaintiff had not established her theory of a battery (i.e., that Brian had
pulled the chair out from under the plaintiff while she was in the act of
sitting down), it then became concerned whether a battery was established
under the facts as it found them to be. A battery would be established if, in
addition to plaintiff's fall, it was proved that, when Brian moved the chair,
he knew with substantial certainty that the plaintiff would attempt to sit
down where the chair had been.... The mere absence of any intent to injure
the plaintiff or to play a prank on her or to embarrass her, or to commit an
assault and battery on her would not absolve him from liability if, in fact, he
had such knowledge. Mercer v. Corbin (1889), 117 Ind. 450, 20 N. E. 132,
3 L. R. A. 221. Without such knowledge, there would be nothing wrongful
about Brian's act in moving the chair, and, there being no wrongful act,
there would be no liability.
While a finding that Brian had no such knowledge can be inferred from
the findings made, we believe that before the plaintiff's action in such a case
should be dismissed, there should be no question that the trial court had
passed upon that issue; hence, the case should be remanded for clarification
of the findings to specifically cover the question of Brian's knowledge
because intent could be inferred therefrom. If the court finds that he had
such knowledge, the necessary intent will be established, and the plaintiff
will be entitled to recover, even though there was no purpose to injure or
embarrass the plaintiff. Vosburg v. Putney, supra. If Brian did not have such
knowledge, there was no wrongful act by him, and the basic premise of
liability on the theory of a battery was not established.

Answer to Exercise 3-1

Sample Case Brief
NAME: Garratt v. Dailey
FACTS: Five-year old boy (Dailey) moved a chair from under an adult as
she started to sit down. Adult claimed that the boy deliberately pulled chair
out from under her. Trial court accepted boy's version of facts. According to
Dailey, he originally moved the chair and sat in it himself, but when he
noticed that plaintiff was about to sit down where the chair had been, he
tried to put the chair under the adult. Unfortunately, he wasn't able to place
the chair in the right place in time.
ISSUE: Did Dailey have the requisite intent for battery when he allegedly
removed a chair from the place where an adult was about to sit down, and
the adult fell and suffered injuries?
RULES: Battery is the intentional infliction of harmful contact upon the
body of another. In order to satisfy the intent requirement, plaintiff must
prove that the act was done with the intention of bringing about a harmful
or offensive contact or an apprehension of a harmful or offensive contact
(absent consent or privilege). In other words, the act must have been done
for the purpose of causing the contact, or done with the actor's knowledge
that such contact or apprehension was substantially certain to occur.
APPLICATION: In this case, the trial court determined that the plaintiff
failed to prove that Dailey pulled the chair out while she was in the act of
sitting down. Thus, it cannot be said that the act was done for the purpose
of causing the contact; however, it is unclear whether Dailey knew that such
contact was substantially certain to occur. Plaintiff would establish a
battery if, in addition to her fall, she proved that Dailey knew with
substantial certainty when he moved the chair that she would attempt to
sit down where the chair had been. The mere absence of an intent to injure
the plaintiff, to play a prank on her, to embarrass her, or to commit an
assault and battery on her would not absolve Dailey from liability if, in fact,
he had such knowledge.
CONCLUSION: Unclear whether Dailey possessed the intent to commit a
battery when he removed a chair from the place where an adult was about
to sit down, and the adult sat down, fell, and suffered injuries. Case
remanded to determine whether Dailey, when he moved the chair, knew
with substantial certainty that plaintiff would sit down where the chair
had been.

Endnotes
1. Cases are first heard in a trial court, and if one of the parties disputes
the result, the case then goes to an appellate court for review. For more
information on the court system and the life of a case see Dale A. Nancy,
Law and Justice, 214, 227 (2nd ed. 1998).
2. Ira Shafiroff, Essay Writing Super Seminar, Sum and Substance (2nd
ed. 1998).
3. W. Page Keeton, Prosser and Keeton on the Law of Torts (5th ed.
1984).
4. Steven Emanuel, Contracts Law Outline (1995).
5. For a more detailed analysis of the Socratic and Langdellian Method,
see Chapter 1.
6. See Chapter 3 on Notetaking for more information on how to use your
case briefs during class.
7. The procedural facts tell how this case got to this particular court. Did
the case go to trial and get dismissed? Was the case decided at trial and did
the losing party appeal to this court?
8. The SVO formula is taken from Richard Wydick, Plain English for
Lawyers (4th ed. 1998).
9. This case has been modified from its original form.
 Chapter 4

Effective Notetaking in Law School

As explained earlier, once you have gained context (i.e., you know where
you've been and where you're going), you are ready to develop the first
critical law school skill—the ability to extract rules from a series of cases.
Unfortunately, there is no “book of laws” in American jurisprudence. No
one book collects and organizes all the laws of the land in one convenient
source. Instead, our system of law revolves around cases. Each court
develops, interprets and sometimes changes the law in any given area.
Thus, it is critical to develop the ability to extract the rules from a variety of
sources. In a way, you are putting together your own book of laws for any
given course; you are extracting the general rules and exceptions for
yourself.
Some students feel that, in the end, they end up teaching themselves the
course. In a way, this is true. It is not necessarily true that law professors
don't teach you anything at all. They just teach in a manner that is very
different from what you may have experienced in the past. Before we
explore what notes you should take in law school, let's explore the
difference between notes in college and notes in law school.
 Difference Between Notes in College and Notes
in Law School
You may remember getting writer's cramp in college from attempting to
write down every single word that came out of the professor's mouth. After
that, you soon realized that a tape recorder would work much better and that
you could listen to the professor's lecture over and over again until the
information sank in. In a pure lecture class, writing down all or most of
what is said is important. Because the professor tells you exactly what you
need to know, you can memorize and repeat this information on the exam
and do well in the class. The same is not true for law school. You may need
to memorize the rules for an exam; however, you certainly will not need to
memorize every single fact of every case, or everything that was said
during every class session. As we mentioned earlier in Chapter 1, law
school is very different from college. You need to understand the problem
solving process that takes place in each case you read, so that you can apply
that method to a new fact pattern on the exam. In that respect, you are not
expected to memorize all the professor's words; rather, you must focus on
the law and the application of the law in class. Your notes should reflect this
goal.
 Dos and Don'ts for Taking Notes
We offer the following information with this caveat: this is not the only
method for taking notes. You may talk to other law students who take more
or fewer notes, and take them in different ways, and still do very well in law
school. Our purpose here is to provide you with a template or a starting
point to help you focus on the important information during class
discussion. We do not want you to become frustrated or overwhelmed at the
amount of information you will learn in law school. Accordingly, we offer
the following suggestions when taking notes.
First, don't write down everything the professor and other students say.
Remember: this is not college. You are not required to regurgitate, word for
word, the professor's brilliant speeches. You are required to use the
information to solve new problems.
Second, don't space out and not take a single note. One year, we had a
student who did not do very well his first semester. We observed him in
class, where he spent most of his time reading his cases. He didn't take a
single note during the entire fifty minutes! Class time should be used for
listening to the dialogue and understanding the cases. Although you do not
want a verbatim transcript, you also do not want a blank sheet of paper at
the end of class. Remember: you need to use your notes to guide you in
examination preparation because they will help you identify which issues
are important to your professor.
Third, try to separate the relevant information from the irrelevant. What
is relevant? Think back to FIRAC—fact, issue, rule, application, and
conclusion. You should continually focus on FIRAC as your problem
solving technique for each case you read. We suggest you take notes in
three general categories: (1) editing your case briefs, (2) writing down
hypotheticals and examples (i.e., application of rule), and (3) writing down
other relevant “stuff” (social policy, dissent, theories, etc.).

Edit Your Brief

During class, most professors will start with questions on cases assigned
for that class. She will ask for the facts of the case, the holding, and the
reasoning. During this process, the professor is trying to teach you the legal
problem solving method. She is trying to help you understand the facts of
the case, the issue, the rule, the application of that rule, and the conclusion
—FIRAC. During class time, you should correct your case brief.
Remember: your brief is your attempt to understand how the court solved
the issue in that case. Your first order of business should be to check your
brief for mistakes. Make sure that you are dissecting each case properly;
therefore, you need to check for each part of FIRAC.

TIP: Use this checklist for your brief:

Did you include the relevant facts?

Did you have too many facts or not enough?
Did you get the correct issue?
Does your issue statement combine the legal issue with the
relevant facts?
Did you correctly articulate the rule?
Was your statement of the rule worded exactly as the professor
wants?
Did you correctly identify the court's rationale (and understand
the application)?

Write Down All Hypotheticals

After discussing a case, your professor may change the facts or present a
hypothetical situation. If so, write this information down. Hypotheticals
(“hypos”) are additional examples similar to the facts of the case, usually
offered to illustrate some portion of the rule. Hypos demonstrate how to
solve similar problems using FIRAC. When the facts change, or when you
are given a new set of facts, you need to go through FIRAC to solve the
new problem. The issue and the rule may be the same as the one discussed
in the case at hand, but the application or reasons why the outcome is the
way it is will be different. Hypos and the reasoning or rationale are
examples of the application part of FIRAC, and you should write these
down to study later for the exam. Again, law school exams do not test your
memory of a case inside and out. Instead, they test your ability to take a
rule you've learned and apply it to different facts. So when your professor
poses hypotheticals, she's doing just that—she's taking the rule you learned
in a case and is asking you to apply it to a different set of facts. You should
treat hypotheticals like mini-exam questions and write down all
hypotheticals.

Note How the “Other Stuff” Relates to FIRAC

You may be thinking, okay, everything so far makes sense, but what do I
do with all the “other stuff” that comes up in class? What do I do with the
new legal concepts or Latin phrases that my professor keeps mentioning?
What about all these other issues like social policy or newspaper articles
that the professor discusses? Should I take notes on that information?
Absolutely. If your professor mentions something in class that seems off
track, you need to ask: “How will this help me on the exam? Will this
information contribute to my approach to solving new problems?”
Your professor may discuss topics that seem unrelated to the case. These
include topics like social policy, economic concerns (i.e., who pays for
what), and jurisdiction (i.e., whether the courts or the legislature should
decide this issue). During this discussion, your professor is attempting to
point out the broader ramifications of the court's decision. Here the
emphasis is not so much on the rules or elements, but rather social policy.
In these instances, you need to focus on how this relates to FIRAC—how
can this information help solve a new legal problem in the future (i.e. on the
exam)? Does it concern the application of the rule? Should other reasons,
besides the facts, make the court decide differently? Think about this
information, jot it down, and try to make some connection to FIRAC and
the problem solving method.
Legal phrases, what we call “magic words,” must be learned and can be
helpful later. Some legal concepts, which take many words to explain, can
be summed up in a single word or phrase, for example, “proximate cause”
or “constructive eviction.” When you hear these words or phrases used in
class, write them down. These are “magic words.” They can be legal terms
of art (res ipsa loquitor) or terms a professor uses to refer to a concept
(victimless crimes). You will get points on the exam if you know what these
terms mean and use them correctly.
Finally, some professors begin or end class with a summary of what
happened last time. Make sure to write this down. This review will be an
invaluable guide to how the professor wants you to analyze a problem and
show how it all fits together. Legal analysis is very orderly; you must
analyze elements not only separately but also in a certain order. Make sure
you know both the elements and the order of analysis.

TIP: While taking notes in class, make sure you:

Edit your brief.

Write down hypotheticals.
Include the magic words.
Include the professor's summary.

Now that you have an idea of what to focus on during class discussion,
we want to give you a taste of what a law school classroom is like. The
following is a transcript of an actual law school class discussion and sample
notes taken from that discussion.
 Sample Class Discussion
Torts Class Discussion
PROF: Good morning, class. Last week we began our unit on intentional
torts and discussed the tort of assault. Today, we're going to talk
about its partner in crime: battery. Sarah, who has the burden of
proof in a battery case?
SARAH: The plaintiff.
PROF: And what kind of case must the plaintiff make out?
SARAH: A prima facie case.
PROF: And what does that mean?
SARAH: That the facts of the plaintiff's case are good on their face, absent
any defenses.
PROF: Good. On its face, the proof offered by the plaintiff is at least good
enough that a judge will not dismiss the claim but allow it to go to
trial, so a jury may decide. The defendant may offer any number of
defenses, but this won't be necessary if the plaintiff cannot make
out a prima facie case. Now, Sarah, tell me what the definition
of a battery is.
SARAH: Um ... when someone acts intending to cause a harmful or
offensive contact against another person that results in that person
being harmed.
PROF: Do you have to actually touch the person?
SARAH: Yes?
PROF: Jose, do you have to actually touch the person?
JOSE: No, you don't actually have to touch the person for the contact to
be offensive.
PROF: What do you have to do?
JOSE: The contact is offensive if it offends a person's reasonable sense of
personal dignity.
PROF: So if you're wearing a baseball cap, and I come charging at you and
knock your hat off of your head, have I just committed a battery?
JOSE: Yes, because the hat was an extension of my person, and you
offended my sense of dignity.
PROF: Good. Now, let's take a look at today's reading, in which the person
didn't even touch an extension of the person's self. Keisha, what
were the facts in Vosburg v. Putney ?
KEISHA: The defendant kicked the plaintiff in the leg while they were at
school.
PROF: Where were they?
KEISHA: They were in class.
PROF: Were they standing up and fighting?
KEISHA: No, they were sitting in their desks on opposite sides of an aisle,
and the defendant kicked the plaintiff from his desk.
PROF: So what happened after the kick?
KEISHA: The plaintiff didn't really feel pain at first, but later on, it became
inflamed and really began to hurt him.
PROF: Okay good. Now, what court heard this case?
KEISHA: The Wisconsin Supreme Court.
PROF: Good. How did the court know what the facts of the case were?
KEISHA: The court got the facts from the trial record.
PROF: Okay, now what if the court thought that the facts—as the trial
court found them to be—were more than likely not what really
happened? What's the standard of review then?
KEISHA: The court must accept the facts found at trial unless they are
“clearly erroneous.”
PROF: Okay good. Now, why did the plaintiff win in this case?
KEISHA: The defendant intended to kick the plaintiff; it wasn't an accident.
That kick caused the harm the plaintiff suffered.
PROF: We'll talk more about this later when we talk about defenses to
intentional torts, but why don't you take a stab at it now? Could the
defendant raise any defense to his actions?
KEISHA: No, I don't think so. He wasn't defending himself in a fight, so he
didn't really have any justification, other than a personal grudge, I
guess.
PROF: Good, Keisha. Now, argue the other side. What did the defendant
say?
KEISHA: That the kick wasn't that hard, and the plaintiff didn't even feel it.
The plaintiff's injuries were not a result of the kick but merely a
 coincidence.
PROF: Good job. Now, Tim, this was called a “special verdict” because
the jury answered specific questions, instead of rendering a verdict
in favor of or against liability. What did the jury find with regard to
whether the defendant intentionally attempted to hurt the
plaintiff?
TIM: The jury found that “the defendant, in touching the plaintiff with
his foot,” did not intend to do him any harm.
PROF: What was the issue for the Wisconsin Supreme Court?
TIM: The issue was whether the trial court judge should have held in
favor of the defendant, because the jury found that he did not
intend to inflict the harm the plaintiff suffered.
PROF: And how did the court decide?
TIM: The court held that the trial judge was correct in finding in favor of
the plaintiff.
PROF: What legal reasoning did the court use to reach that holding?
TIM: The court held that it was not necessary for the defendant to
“intend” to cause the harm. It was sufficient that the defendant
intended to perform the unlawful act of kicking the plaintiff.
PROF: Good. And how did the court determine whether the kick was an
unlawful act?
TIM: Um ... the court looked at where the kick took place. They
said....
PROF: Correction, Tim. You said “they.” Even though the court is made
up of several judges here, you still refer to the court as a singular
entity. So you would say, “it held,” not “they held.”
TIM: Oh, okay. It held that since the kick took place during school hours,
in a classroom, after the teacher had called class to order, the kick
was unlawful.
PROF: What if the plaintiff had been kicked while playing outside during
recess?
TIM: The court said there may have been some type of “implied
license.”
PROF: That's correct, but why would there have been such a license?
TIM: Because if the boys had been involved in some sort of game or
sport on the playground, the plaintiff would be said to have
 “assumed the risk.”
PROF: That's right. In a situation such as playing a rough game of, say
soccer, there is no express license to hurt other players; however,
by voluntarily participating in a game in which injury is likely to
result, we imply consent to be injured. But as we'll see later, even
that defense has its limitations.
MATT: Wait, I'm a little confused. Doesn't the fact that these are kids have
anything to do with it?
PROF: Well, how old were the plaintiff and defendant?
MATT: The plaintiff was 14 and the defendant was 12.
PROF: How does that affect the case?
MATT: Um ... the defendant was young, so he might not have known what
he was doing?
PROF: Well, I think he knew what he was doing. He kicked him in the
leg!
MATT: What I meant was that he probably didn't expect to have hurt him
so badly just by kicking him in the leg. I mean that he was 2 years
younger than the plaintiff and probably smaller, too.
PROF: Does that matter? Twelve years old isn't that young.
MATT: Well, he didn't intend to hurt him.
PROF: But that's not the issue. The issue is the act itself. Again, What's the
rule for battery?
MATT: Someone who intends to cause a harmful act, and that act results in
a harm.
PROF: So if he intended to kick him, and that kick resulted in a harm, is
he liable for battery?
MATT: I guess so, yes. But how was he supposed to know that the
fourteen-year-old had a problem with his leg?
PROF: He probably didn't, but that doesn't matter either. Remember that
you take the plaintiff as he is. Here's a hypo: you're waiting to use a
public telephone and you're really in a hurry because this girl
you've been wanting to date has just texted you and your battery is
low. There's someone else already using the phone. After waiting
five minutes, you get impatient and yank him away from the
phone. He stumbles backward, trips, and hits his head on the
ground. Lo and behold, he has a unique condition called “egg-shell
 skull syndrome,” and he fractures his skull and starts bleeding
profusely. Did you know that he had an eggshell skull?
MATT: No, but I suspect it doesn't matter that I didn't intend for him to hit
his head and start bleeding.
PROF: Exactly. You intended to pull him away from the phone. As a result
of that action, he suffered an injury, and you're liable. Now, let's
take that scenario one step further. What if you never touched the
person, but as a result of your actions, that person suffered an
injury? Jen, let's say that you see Matt walking down the hall. You
drop a banana peel on the ground around a corner, right where you
know Matt will walk. He slips and breaks his wrist as he falls. Are
you liable for battery?
JEN: Um ... based on the rule we just learned, I think I am because I
knew that he would slip on it. But like the other case, I didn't
intend to hurt him, and it's not like I physically pushed him down
or anything.
PROF: Well, let's see if that holds true as we continue our look at battery
with Garratt v. Dailey .
 Sample Notes
CAVEATS: Below are sample notes that you might have taken if you
attended the class discussion above. Observe how the notes focus on
making changes/additions to the case brief, as well as on definitions, hypos
and other points that the professor deems important.
Battery
Plaintiff must make out a “prima facie case”—proof offered by the plaintiff
is good enough that a judge will not dismiss the claim but will allow it to go
to trial so that a jury will decide.
Definition of battery
When someone acts intending to cause harmful or offensive contact against
another person that results in that person being harmed. You don't have to
actually touch the person for the contact to be offensive—the contact is
offensive if it offends a person's reasonable sense of personal dignity.
Hypo #1: Wearing a baseball cap and someone charges at you, hitting you
in the head is battery because the hat is an extension of the person, and you
have offended her sense of dignity.
Special verdict: when a jury answers one or more specific questions, instead
of rendering a verdict regarding liability.
Unlawful act: the court considers special circumstances of the situation.
Specifically, this court considered when the alleged activity took place (in
the classroom during organized class time).
Implied license: Consent or permission to do an act, implied from the
circumstances, other than expressly given, i.e. consent to touching in a
soccer game.
Age: In this case, the court was unconcerned whether the children were of a
certain age. Instead, it considered whether the child had the ability, not to
understand his action would harm another, but the intent to commit an
illegal act.
Hypo #2: You are waiting to use the public telephone and you are in a
hurry. Someone is already using the phone. After waiting five minutes, you
get impatient and yank the phone away from him. He stumbles backwards,
trips, and hits his head. Turns out he has a condition known as egg-shell
skull syndrome and starts bleeding profusely. This is considered battery
because you intended to pull the phone away from him; therefore, you are
still liable.
Hypo #3: If you never touched the person, but, as a result of your actions,
the person suffered an injury (drop a banana on ground, knowing that
someone will likely walk over it and slip and fall), you are liable because
you knew that the your action (dropping a banana on ground) would cause
harm.
 Sample Case Brief
NAME: Vosburg v. Putney Corrections/additions to brief made during
FACTS: Two boys were in a class
classroom during school hours; Relevant facts: In the classroom—
the class had just been called called to order—that made kick
to order by the teacher. The illegal.
defendant reached across the Issue: intent is key
aisle with his foot and kicked
his toe against the plaintiff's Rule: Battery is committed when one
shin. Afterward, the shin area person acts intending to cause harmful
became infected, and the or offensive contact against another
plaintiff eventually became person that results in that person being
lame. harmed. It is also sufficient that a
person intends to perform an unlawful
ISSUE: Whether a boy act (this is what happened here).
satisfied the intent element of
battery when he kicked another Application/reasoning: The defendant
boy in the knee (while in class) intended to touch the plaintiff in an
and, as a result, the knee later offensive manner, even though he did
became infected and diseased. not intend to cause him harm. The act
of performing the unlawful kick is
RULE: In an action to recover sufficient to satisfy the intent element
damages for an alleged assault for battery. The kick occurred in the
and battery, the plaintiff must classroom, after the teacher had called
show either that the defendant the class to order. The act was
intended to do the act and the unlawful because it occurred in a
act was unlawful or that the place and at a time that kicking is not
defendant intended the allowed or lawful.
ultimate result. If the intended
act is unlawful, then the Conclusion: The defendant committed
a battery when he intended to perform
intention to commit it must
necessarily be unlawful. an illegal act by kicking the plaintiff
during school while class was in
APPLICATION: Here, the session.
boy did not intend the end
result (injuring his friend's leg
so severely), but he did intend
to kick him in the shin during a
time (class in session) and a
place (the classroom) where
this action (the kicking) was
unlawful. Because he intended
the act (kicking) and the kick
was unlawful, he satisfied the
intent element of battery.
CONCLUSION: Yes.
Because the defendant's
intentional act of kicking the
plaintiff was unlawful, his
intention to kick plaintiff was
also unlawful. Defendant was
at fault for any harm resulting
from his unlawful act.
More additions to brief:
Procedural history: The trial court found for the plaintiff, even though the
defendant did not intend to inflict the harm the plaintiff suffered. The
Supreme Court of Wisconsin found that the trial judge was correct in
finding in favor of the plaintiff.

TIP: Take five minutes after each class to summarize the day's discussion.
Limit yourself to one sentence. For this day's discussion, your one sentence
summary should be about intent. How do you know if someone has
satisfied the intent element for battery? By taking the time after class, you:

Revisit the class information while it's fresh in your mind,

thereby increasing recall and comprehension.
You are able to assess whether you understood the day's lesson
clearly. If you cannot complete the one sentence summary, ask
yourself why you're stuck. Write down one or two questions you
have about the topic so that you can clarify with colleagues and
your professor immediately.
By doing this daily work, you will eliminate the need at finals
time to go back over three months' worth of notes, trying, for the
first time to make sense of the material.
 It is imperative that you review your notes the same day as class,
while the material is fresh in your mind. This will help you focus
when you organize your notes, and help you prepare for outlining later.
Chapter 5
Putting It Together, Part One: Synthesis

How do you put together a picnic table or a tent for camping? Do you
read the directions first or ask someone for help? Do you spread out all the
pieces on the floor and dare to put them together one by one?
Law school is for brave souls who love the challenge of solving a puzzle
or assembling many components into one complete piece. In class, students
spend hours, and in some instances days, analyzing a particular case. In the
end, students are tested on how well they put together the entire puzzle on
their own. Thus, rather than being tested on any particular part of the table
or tent, students are tested on their assembly skills—their ability to put parts
together. Whether the complete product is a table, tent or an answer to a
problem of law, the same assembly skills are crucial.
This sounds good; after all, lawyers should be able to solve real life
problems of real life clients; however, some law students lose sight of this
goal and focus completely on the individual pieces of the puzzle. By the
time the final exam comes, they may know every detail about every case
they've studied in a particular course, but they have not spent even one
minute putting together all the cases into one comprehensive picture. The
process of taking all the individual pieces (e.g., rules from cases) and
connecting them is called synthesis. It is the most vital skill to master to do
well on exams and become a successful lawyer.
The tent you are using on your world travels needs to be assembled. How
do you learn or teach yourself how to assemble it? Much like your travels,
your law school journey requires you learn the skills of assembly.
 Synthesis in College
In understanding the concept of synthesis in law school, it is important to
identify the skills that made you successful in connecting information in
your undergraduate experience. Synthesis in college usually began with the
deductive method. Professors presented the big picture and then introduced
more specific examples. For example, in a political science class, the
professor may have presented the concept of democracy. The professor
probably broke down the broad concept of democracy into smaller areas of
study. He probably then discussed each small area and, in the end, put
together the small and large concepts into one cohesive whole. Students
then reread class notes and reading assignments and memorized key
elements and concepts presented. With this method, the material was
already synthesized. The professor presented both the general and the
specific information students needed to know for the exam.
In other words, the professor gave you the directions for putting together
a tent. The professor not only gave you the directions, but, often, she went
over the directions with you in class. Perhaps you even had a chance to try
out your understanding of the directions on quizzes and tests or in group
projects. And if you followed the directions, you probably did very well on
your exams, on which you were asked to repeat the directions and put
together the same tent.
 Synthesis in Law School
Unlike your undergraduate coursework, law school concepts are taught in
a different manner. Instead of presenting a set of directions that are
discussed and examined, law professors follow a different process:
1) Students study, in depth, various types of tents, discussing their
color, shape, size, and function;
2) Students do not discuss common elements all tents share, nor do
students have an opportunity to practice putting a tent together;
3) Students are not given directions on how to put a tent together;
4) Students are given several pieces of something. They are not told
whether this something is a tent, sleeping bag, a lamp, or something
completely different. They are then told to put the pieces together,
which they must do in a very limited amount of time. They may not
seek assistance from anyone during the assembly process.
To translate to law school terms, first, in a law school class, the professor
presents examples of a particular concept, like battery. The reading includes
cases that involve any intentional, offensive touching of one person to
another. In class, specific parts of the case are examined for elements that
make up this tort, but a “big picture” is not presented or even discussed in
class. The law student is later supposed to “find” or “create” that big picture
(that is, all of the rules and elements in a particular subject area) for him or
herself using what he or she knows from individual cases. Often, students
spend the first several weeks or months waiting for the professor to say,
“Okay, today we are going to discuss battery and its elements. Many acts
constitute a battery, including....” Instead, they read dozens of cases dealing
with individual details, and, on the final exam, must apply the knowledge
they have “synthesized” to a new and complex situation. In other words,
you are asked to put together something for which you have never been
given directions, and you don't even know what exactly it is.
 Why Hide the Directions?
Many of you are probably asking, “Why would someone do this?” The
answer lies within the practice of law itself. Practicing law involves many
new and complex situations. Attorneys read many cases that involve similar
issues and assemble all of those rules in a way that helps solve the problem
at hand. The bad news is that in law school (and in law practice), you must
make up your own directions, because no one will hand them over. The
good news is that this process of putting together the directions can be
learned. The rest of this chapter teaches you to put the pieces together so
you don't have to be afraid of the phrase “some assembly required.” Law
school is teaching you new ways of thinking that you will employ for the
rest of your professional career.
 What Is Synthesis?
Synthesis is the act of putting together or connecting parts or elements to
create a whole. In synthesizing cases, one combines all the rules learned
from the cases to devise one rule or set of rules that encompasses a body of
law. Think of this as similar to putting together a puzzle. In law school,
each case teaches a rule or two. Each rule will serve as a piece of the
puzzle. The professor leaves it to the student to “put together the puzzle” or
figure out how all the rules fit together to create a body of law. This is the
process of synthesis.
There is no one way to synthesize cases. Some cases may be easier to
synthesize because each may represent a different part of the puzzle or a
different element of the rule. Other cases may be more difficult to
synthesize because in each, the court may seem to apply the same element
in a different and confusing way. Other cases may be very difficult to
synthesize because the court does not explicitly state the rule but seems to
apply the same rule to a very different fact pattern; in this situation, it is
ultimately the student's task to figure out the rule that the court has applied.
 Tips on Synthesis
How do you compile your own set of directions for something to which
you don't even have answers? Before beginning the daunting task of
synthesizing rules, you inevitably must take apart each case. Thus, prior to
writing an instruction manual on “how to solve tort problems,” you need to
deconstruct all the tort cases covered in class. Here's how to do it:

Step 1—Gather all of the cases you have read on a particular

issue.
First, gather all the cases you have read on a particular issue or element.
We will use Torts as an example. In Torts, gather all of the cases you
covered on battery in intentional torts, or all of the cases you covered on
negligence. If you need help figuring out which cases relate to a particular
issue (for example, which cases are battery cases and which are negligence
cases), consult the table of contents in your casebook and your class
syllabus. In most casebooks, the editors have grouped the cases together.
For example, you might find that table of contents includes the following
section:

1. Intentional Torts
1. Battery
1. The concept of intent
1. Vosburg
2. Garratt

Based on this excerpt, you know you have to synthesize Vosburg and
Garratt together because they both deal with the same concept—intent.

Step 2—Divide the cases into elements—does each case seem to

represent a different element of the rule?
The next step in synthesizing is to divide the cases into categories. To
determine what the categories are, look at the definition of the issue you are
tackling, and sort the cases by element. For example, in Torts, you will
cover several cases on battery. Divide them into three categories based on
the elements of battery: 1—intent; 2—harmful or offensive contact; and 3
—with the person of another. This is a crucial step.
Let's return to our tent illustration. Directions for assembling a tent would
lead you through a series of steps (e.g., first, put stakes in the ground, then
assemble the frame, etc.). Law focuses on steps, or components, much like
directions for assembling a tent. You must not, therefore, put things into a
broad category—battery, any more than you would try to put the tent
together, all parts at the same time. Instead, focus on the step, or element.
Ask yourself: “Within battery, is this case about intent, harmful or offensive
contact, or person?” In reality, any case can and often does touch on all of
the elements of a particular issue, but cases in casebooks are heavily edited.
Most cases are edited so that they illustrate only one particular element.
Therefore, you should focus only on the particular element that the case is
meant to teach you. DO NOT TRY TO SYNTHESIZE CASES
DEALING WITH DIFFERENT ELEMENTS! If one case illustrates an
offer, and another acceptance, the two cases obviously are not illustrating
one concept.
You can synthesize cases that only deal with the same topic and element.
If two cases deal with different elements of the same topic, stop there! To
further our tent illustration, what we are doing at this point is isolating
components of our tent—we are separating the pieces of the frame from the
cover. If we return to our puzzle illustration, we are separating the blue
pieces that will make up the sky from the green ones that will form the
grass.

Step 3—If, and only if, two or more cases illustrate the same
element, you should divide the cases by result.
You may read more than one case dealing with a single element. In Torts,
for example, you may read more than one case dealing with the element of
intent in the tort of battery. When this happens, sort the cases further by
result. If you had three cases on intent in battery, you could separate those
cases in which the court found intent (the “yes” cases) from those in which
the court did not find intent (the “no” cases).
Now study the similarities between the cases within each element. What
is the same among the “yes” cases? What is the same among the “no”
cases?
Study the differences between the cases in the “yes” category and the
cases in the “no” category. What separates them? Why did the court not
find the element in the “no” cases, while it did find it in the “yes” cases?

TIP: RECAP Remember the three steps of synthesis:

1) Gather all of the cases you have read on a particular issue.

2) Divide the cases into elements: does each case seem to
represent a different element of the rule?
3) If, and only if, two or more cases illustrate the same element,
you should divide the cases by result.

Formulate the rule for all the cases. After figuring out the similarities
and the differences, you should see some sort of pattern among all the
cases. The pattern you see will be the rule.
We hope that this general introduction has given you a sense of what law
professors mean by “synthesis.” The examples that follow will strengthen
your understanding of what synthesis means and how it works. Go over
each of the examples, and then try the exercises. This practice will guide
you in conquering the “some assembly required” blues.

Example 1—Simple Synthesis—Torts

Each case represents a different element of the rule:
Vosburg v. Putney1—The court held that defendant committed a
battery when defendant kicked a classmate during school and the
classmate sustained serious injuries. The court found that the intent
element of battery was satisfied because defendant intended to do the
act (of kicking) and the act was unlawful (kicking in the classroom is
prohibited, regardless of whether plaintiff intended to actually cause
harm or not).
Fisher v. Carrousel Motor Hotel2—The court held that defendant hotel
employee committed a battery when defendant willfully snatched a
plate out of plaintiff conference attendee's hands and shouted that “a
Negro cannot be served in the club.” The court found that although
plaintiff was not actually touched (and thus not physically harmed), he
was highly embarrassed and humiliated. This act constituted an
offensive contact, sufficient for the harmful or offensive element of
 battery, because there was an offense to plaintiff's dignity with the
snatching of the plate, regardless of the fact that there was no actual
physical harm.
Rule/element: battery/intent and harmful or offensive contact
Result: both intent and harmful or offensive contact are essential in
order to prove battery.
Because each case illustrates a separate element of battery, the two cannot
be synthesized. Instead, all we can say so far in our instruction manual for
battery is: in order to be held liable for battery, the defendant must have
had an intent to cause a harmful or offensive contact with the person of
another, and a harmful or offensive contact must have occurred. So far,
that's all we know.

Example 2—Difficult Synthesis—Torts

Each case represents the same element, but in a different way.
Vosburg v. Putney3—The court held that the defendant committed a
battery when defendant kicked a classmate during school and the
classmate sustained serious injuries. The court found that the intent
element of battery was satisfied because defendant intended to do the
act (of kicking) and the act was unlawful (kicking in the classroom is
prohibited, regardless of whether plaintiff actually intended to cause
harm or not).
Garratt v. Dailey4—The court held that the defendant committed a
battery when he removed a chair from where plaintiff was attempting to sit
down. The court found that the intent element of battery was satisfied
because defendant knew with substantial certainty that a harmful or
offensive contact would occur when defendant did the act (e.g., removed
the chair).
Rule/element—battery/intent
YES NO
Vosburg—intent to do act, and act
must be unlawful
Garratt—substantial certainty
of result of actions = intent
Similarities about cases—both focus on the intent element of battery;
however, each defines intent differently.
Result: There are two different ways to prove intent; although both are not
necessary, you must have one or the other.
Rule: In order to prove intent for battery, one must prove either(1)
defendant intended to do the act and the act was unlawful, or (2) defendant
did the act and knew with substantial certainty that a harmful or offensive
contact would result.
Notice how our directions for making a battery have grown from the first
example to the second. In example one, we were able to synthesize the big
picture: to have battery, you need both intent and harmful and offensive
contact. Now, we are zooming in on one particular element: intent. We are
adding depth and meaning to that element. Instead of simply saying, “in
putting together a tent, you will need to assemble both the frame and the
cover,” we are now adding; “in assembling the frame, you can use either a
mallet or a hammer.” In other words, we are zeroing in on a particular
aspect of the project.

Example 3—Very Difficult Synthesis—Property5

Each case seems to represent the same rule and the same element, but the
court has not explicitly stated the rule.
May v. Rice—The court held that Tenant A could assert constructive
eviction as a defense to an action for rent due by his landlord. The
tenant was displaced when the pizza parlor located below his
apartment burst into flames and all of his clothing and other
furnishings were ruined by smoke damage.
Strong v. Strange—The court held that Tenant B could successfully
defend an action by his landlord for rent due, when he was
constructively evicted in the dead of winter when the apartment's
boiler blew up and the apartment's temperature plunged with the sub-
zero weather outside.
Cramdon v. Carney—The court held that Tenant C could not
successfully assert a constructive eviction defense against an action for
unpaid rent when she moved out because her neighbors were rowdy,
threw wild parties, and generally made far too much noise.
Rule/element—constructive eviction ... (notice that there are no
separate elements for us to consider; hence we divide the cases by
result)
YES NO
May —apartment burst into flames; Cramdon —rowdy, loud
everything in apartment ruined by smoke neighbors, too much noise
Strange —boiler blew up, temperature in
apartment plunged, sub-zero outside
Similarities/Differences: “Yes” cases—both smoke damage and low
temperatures create a health hazard or a safety issue (impossible to live in
either environment). Rowdy neighbors do not create health or safety hazard
(one can live with noise, even though it is bothersome).
Result: Safety and/or health hazard is key for constructive eviction.
Rule: In order to assert constructive eviction as a defense for an action for
unpaid rent, the tenant must be able to prove that a safety issue or health
hazard prevented him or her from living in the apartment. A mere nuisance,
such as noise, that does not endanger health or safety, is insufficient.
Notice how far we've come from Example One to Example Three. Here,
we really have to think in putting together an instruction manual for
constructive eviction. The court does not set forth elements for us to
consider. When there are no elements, we have to go right to the
comparison step. Again, however frightening it may be to do so, because
there is no way to check your answer, it is crucial to engage in this type of
thinking. How can you know that your conclusion (that the crucial factor is
health and safety) is correct? This is a difficult question to answer. Indeed,
some law students and lawyers may come to a different conclusion as to
what the key point is distinguishing the “yes” cases from the “no” cases;
however, keep one important point in mind: AS LONG AS THE
CONCLUSION CAN BE SUPPORTED BY THE CASES, IT IS A
LEGITIMATE POINT. If one or more of the cases do not fit your model,
then you must adjust it. If, all cases can be put into the model, your model
is sound, even if someone else has a different one to explain the difference
in result.
 Synthesis Exercises
Exercise 5-1
Synthesis: Statutory Interpretation
Ekl v. Knecht6—A plumber arrived at the Ekl home to repair a leaky
pipe. After finishing the work, the plumber presented Mrs. Ekl with a
bill for an exorbitant amount. When Mrs. Ekl protested, the plumber
refused to leave her home and threatened to undo the work if she did
not pay. Mrs. Ekl sued the plumber, claiming that he violated the
state's Deceptive Trade and Business Practices Act. The court agreed.
In order to violate the statute, a defendant must have committed either
an unfair or deceptive act. Here, the plumber's actions were clearly
unfair because it is both immoral and illegal to threaten someone's
person or property in order to secure payment for services.
Crowder v. Oberling7—The defendant, a used car salesperson, violated
the Deceptive Trade and Business Practices Act when he represented a
car to a customer as a “good used car.” The customer later discovered
that the car had been involved in numerous accidents and was a
salvaged vehicle. The court found that the defendant engaged in
deceptive conduct under the Act because he misrepresented that the
car was “good” when he knew it had an extensive history of safety
problems. This knowledge stemmed from his extensive experience in
the car business and his knowledge that the cars he was purchasing at
auction were at a far lower price than others that were considered
“good cars.”

Answer to Exercise 5-1

Synthesis: Statutory Construction
Rule/element: Deceptive Trade and Business Practices Act/unfair or
deceptive acts.
Result: One must prove that another's conduct was either deceptive or
unfair in order to establish liability under the Act.
NOTE: Because each case illustrates a separate aspect of the Act, the cases
cannot be synthesized together. Instead, all we can say so far is that you
need either an unfair or deceptive act to establish liability. If we could
elaborate, it would only be to say that unfair acts seem to be those that
involve threats to a person or property, and deceptive ones involve a
misrepresentation of fact, which the defendant knows to be false.

Exercise 5-2
Synthesis: Criminal Law
Case #1—In order for school officials to search a student's personal
belongings, the search must comport with the Fourth Amendment. In
other words, the authority must have probable cause to search. In cases
involving minors in schools, the probable cause standard is met when
school officials can prove that they had a reasonable suspicion that the
student was involved in illegal activity. Here, the student in question
had a reputation for drug use, had been previously caught with drugs,
and had bragged to others in the hall that she “did a line” during lunch
breaks. The school officials had a reasonable suspicion to search the
student, given her familiarity with drugs.
Case #2—A student claimed that the principal's search of his backpack
violated his Fourth Amendment rights. The student had not been
involved with drugs, nor had he been seen using or selling drugs on a
previous occasion. The student did associate with known drug users
and was standing on a street corner, just outside school grounds, that
was known for drug activity, when the principal, on his way to work,
asked to see his backpack. The principal searched the backpack and
discovered a small amount of marijuana. The principal claimed that he
had probable cause to search. The principal argued that the student's
association with known drug users and his presence in an area known
for drug activity formed the basis of the principal's “reasonable
suspicion.” His argument was meritorious. Although his suspicion was
not based on the individual's past, given the other circumstantial
evidence, it was “reasonable.”

Answer to Exercise 5-2

Synthesis: Criminal Law
Rule/element: Fourth Amendment—probable cause—reasonable suspicion
(notice that it is important to break this down in this order because the court
 does so). The only question that remains is what constitutes “reasonable”
suspicion?
YES NO
Case #1
Suspicion is reasonable based on the
individual's past. Factors such as the
individual's familiarity with drugs,
past drug use, and prior charges can
all establish reasonable suspicion.
Case #2
Suspicion is reasonable even though
individual himself might not be familiar
with drugs or have prior charges but does
associate with known drug users and is
found on property known for its drug trade.
Similarities in the cases: Both cases focus on what “reasonable” suspicion
means for purposes of searching a student's property, yet they each define
reasonable suspicion differently. The first case uses a more stringent
standard (i.e., there must be knowledge of the individual's drug familiarity
before searching), while the second case seems to relax the standard
somewhat to include outside factors (i.e., an individual's friends and his
location at the time of search).
Rule: The reasonable suspicion standard may be met one of two ways.
Result: To prove that the search of a student's property was based on a
reasonable suspicion, school officials need to show either: (1) knowledge of
the individual student's familiarity with drugs, or (2) knowledge that the
individual's friends are familiar with drugs or that the location at the time of
search is known for drug activity.

Exercise 5-3
Synthesis: Contracts
America v. Henson—Mr. Henson claims a portion of his employment
contract should not be enforced because it is unconscionable. His
employer argues that: (1) Henson had a clear choice as to whether to
accept employment under the terms and conditions offered; and (2)
Henson read the contract and signed it without any questions
 whatsoever. The court concluded that understanding the terms of the
contract or the choices presented is not the test for unconscionability.
The test is overreaching by a contracting party in an unfairly superior
bargaining position. We think the test here has been met in view of the
fact that Henson had not only begun his employment but had relocated
before receiving and reviewing the written contract.
Heller v. Convalescent Home8—Courts will readily find contracts
unconscionable between consumers and skilled corporate sellers;
however, courts are reluctant to rewrite terms of a negotiated contract
between businesspeople. Still, the over-arching inquiry is whether a
party was in an unfair bargaining position with the other. In this case,
the contract providing for a lease of computers to a convalescent home
was not unconscionable when: (1) although certain provisions of the
lease favored one party, all provisions were agreed to by parties of
equal bargaining strength; and (2) the lease price was not excessive for
the product.
Bunge Co. v. Williams9—The fact that the disclaimer of warranties was
not specifically pointed out to the consumer by the seller did not
render the contract unenforceable against the buyer, at least when the
front of the contract stated, in bold letters: “ALL WARRANTIES,
EXPRESS AND IMPLIED, ARE DISCLAIMED.”
DON'T WORRY: This problem involves a very difficult synthesis. If
you did not get this far in your synthesis right away, don't worry. You may
be able to “solve” it in time. Return to this task later in the semester.
Synthesis is a crucial skill that ought not be ignored; however, it is a skill
that develops over time. Be patient.

Answer to Exercise 5-3

Synthesis: Contracts
Rule/element: Unconscionable contracts. Because neither court expressly
stated any elements, we must engage in a complex synthesis. Putting the
cases on the yes/no grid, we can come up with:
YES NO
Henson : Test for unconscionability is Heller : Court looked at (1)
overreaching by a contracting party in an bargaining strength of parties and
unfairly superior bargaining position. (2) price (not excessive) to
 determine whether contract was
unconscionable when parties were
both business people.
When one party has not had the opportunity Bunge: C ourt found contract
to read and review a contract before acting enforceable (not unconscionable)
on it, it is very likely that the contract is between a consumer and a
unconscionable, especially when the businessperson when a disclaimer
contract is between a consumer and a was on front of contract and in big
businessperson. bold letters.
Similarities/Differences: Henson says that the test for unconscionablity is
unfair bargaining position between the parties. In Henson, the test was met
because plaintiff (a consumer) did not have a chance to read and review the
contract before acting upon it. Note that this case involved a consumer and
businessperson. In another case involving a consumer, the court found that
the business did not engage in unconscionable behavior by failing to point
out a disclaimer to the consumer. The court found it important that the
consumer had the contract before making a decision and the disclaimer was
on the front page of the document, set off in bold print. Finally, although the
Heller case involved two business people, the court nonetheless subscribed
to the main rule: the test for unconscionability is an unfair bargaining
position. The Heller court broke down the concept of an unfair bargaining
position into more specific criteria: (1) bargaining strength of the parties
and (2) excessive price.
Result: To prove a contract unconscionable, one must show that the parties
are in an unfair bargaining position.
Rule: When a court evaluates unconscionability, the key factor is the degree
of overreaching by a contracting party in an unfairly superior bargaining
position. This test is most likely not satisfied if the parties have equal
bargaining power, such as two businesses. To more specifically assess
whether one party is in an unfairly superior bargaining position, courts
consider both the terms of the contract and the excessiveness of the price. A
court also may find a contract unconscionable if a disclaimer of liability is
hidden in the contract, rather than clearly displayed on the front of the
contract in big bold letters.

Endnotes
1. This information is based on Vosburg v. Putney, 56 N.W. 480 (Wis.
1893).
2. This information is based on Fisher v. Carrousel Motor Hotel, Inc.,
424 S.W.2d 627(Tex. 1967).
3. This information is based on Vosburg v. Putney, 56 N.W. 480 (Wis.
1893).
4. This information is based on Garratt v. Dailey, 49 Wash. 2d 499
(1956).
5. © 1993 Cathaleen A. Roach, used with permission.
6. This information is based on Ekl v. Knecht, 585 N.E.2d 156 (Ill. App.
Ct. 1991).
7. This information is based on Crowder v. Bob Oberling Enter., 499
N.E.2d 115 (Ill. App. Ct. 1986).
8. This information is based on Heller v. Convalescent Home, 365 N.E.2d
1285 (Ill. App. Ct. 1977).
9. This information is based on Bunge Co. v. Williams, 359 N.E.2d 844
(Ill. App. Ct. 1977).
Chapter 6
Putting It Together, Part Two: The Role
of the Law School Outline

Have you ever bought a travel guide for a vacation and found that it
would serve you better with additional or even different information? Or,
after searching through several different guides, have you ever found that
combining parts from one with those of another created the perfect
companion to your trip? Have you ever seen a travel guide without a map?
Finding the right travel guide is like finding the right outline for a law
school class. The best travel guides provide background information on the
area, list the best sites to see and when to see them, warn of potential
pratfalls, and suggest the best ways out of troublesome situations. Likewise,
an outline serves the same purpose for law school finals. A well-prepared
outline can provide directions for answering complicated law school exam
questions, including guidance on likely questions, specific issues to look
for, and the best approaches and solutions.
You may have heard that outlines are the key to success in law school.
Law students and professors agree: prepare a good outline and you'll get a
good grade. First year students often think that picking up a commercial
outline at the bookstore or copying one from a second or third year student
will prepare them for exams; however, merely acquiring a “good” outline
will not suffice. Instead, you need to understand, organize, and synthesize
the material you cover over a semester so that you can apply it to different
fact situations. To do this, you must take an active approach to “learning the
law.” The best way to accomplish this goal is to make your own outline.
Indeed, the process of preparing an outline or a flowchart1 itself helps
students “learn the law,” resulting in better exam performance.2 With that
idea in mind, this chapter explains what a law school outline is, describes
different kinds of outlines, and provides techniques for making useful,
concise outlines.
 What Is an Outline?
An outline is a compilation of definitions, rules, case blurbs, and other
important information that functions as a student's private tour guide for the
class. A good outline achieves three ends. First, it helps you learn the law
and how the law is applied. A good outline uses examples from both actual
cases and hypothetical fact patterns to illustrate points of law. Second, it
provides ammunition for answering specific exam questions. Third, it helps
you memorize rules, which is particularly crucial for closed book exams.
 What Are the Different Kinds of Outlines?
Outlines are of two types: commercial (i.e., store-bought) and homemade
(i.e., student-prepared). Commercial outlines are researched by publishers
and sold in law school bookstores all over the country. They are written in
an encyclopedia-like format and include mainly general and some specific
information. Commercial outlines generally define the rules of law and
often include cases or hypothetical fact patterns as examples. Some
commercial outlines also include essay and multiple choice questions with
answers. Commercial outlines have some advantages: they can be helpful
by illustrating legal concepts and providing memory devices, they are easy
to obtain, and they require no preparation.
Homemade outlines, on the other hand, are made by students from their
own materials. Obviously, a student's own outline will be personalized,
written in his own terminology and tailored to a specific class taught by a
specific professor. Homemade outlines require additional work beyond
class preparation. Like commercial outlines, student-prepared outlines
include definitions and rules of law, along with cases and hypotheticals.
They also contain specific information from class notes on the professor's
ideas about the law and individual cases. Student-prepared outlines are
similar to commercial outlines in some respects, but a homemade outline
tends to prepare students for an exam better than a commercial outline can.
Why? A fundamental truth of law school is that exams are “professor-
specific.” That is, a professor is more likely to award a higher grade to an
answer that addresses an issue in the same way as he or she did in class.
The best way to “see” an issue the professor's way is to prepare your own
outline from your own notes on what your professor covered. Remember no
matter how good a travel guide is, nothing can capture your experiences
more accurately than your own travel journal.
Going over class notes and synthesizing daily can lead to a well-made
personalized outline. This may sound stressful and time-consuming,
especially when there is reading to do for the next day. However, going
over your notes and organizing your thoughts will help you remember and
continue to be organized in the future. In creating your own outline, you
prompt yourself to remember the class and specific theories that the
professor was stressing, and the hypothetical proposed. If you work this
way during the semester, you can save valuable time at the end of the year.
Having an outline that you created will also be incredibly helpful if your
professor allows you to bring in notes to the final, as it is a much better
reference tool if created to your own style of learning and thinking. Using a
commercial outline might seem like an excellent idea, but often they
include information your class was not required to learn, and you can
become confused on non-relevant issues. That is not to say that commercial
outlines are not useful; combining ideas and information from one with
your own personalized version can be incredibly helpful for your
comprehension and reference later.
 What Kind of Outline Should I Use—
Commercial or Homemade?
Remember the travel guide that included everything except a map? A
commercial outline is like such a travel guide: it gives useful general
information about an area but does not tell you exactly how to get to a
specific place. Given such a shortcoming, a homemade outline serves you
well because it includes professor- and class-specific information. Despite
this, some students may think, “Why should I reinvent the wheel? If
someone has already prepared an outline, why do I have to do it again?” Do
not fall into this trap. The number one benefit of creating your own outline
is that the process of reviewing your briefs and class notes to prepare the
outline will force you to “learn the law.” Some claim that once you've done
an outline, you can throw it away. Extreme perhaps, but the basic premise is
true. The real value of an outline is in making it, not having it. The work
you do in preparing your own outline facilitates learning not just the law,
but how to apply it. The exercise of creating an outline prepares you for
finals better than merely studying someone else's, because the information
becomes “owned,” rather than “borrowed.”
Another reason for preparing your own outline, as opposed to purchasing
one or borrowing one, is that your own outline will be class- and professor-
specific. That is, it will correspond directly to all the cases you read and
discussed in class. It will include specific information from your class notes
and from your professor. This will be much more helpful than a commercial
outline, which might include more information than you covered in class
(and actually may confuse you) or might not include the most recent or
even the same cases you read for class. Your professor could want specific
cases that your class studied in depth, and the hypothetical that you
specifically learned. A commercial outline will not provide it, nor will
outlines passed on through classes. Perhaps you say, “If that's the case, then
I can just borrow or copy an outline from a second or third year student
who already took this class with the same professor.” An outline from
another student may be more helpful than a commercial outline, but you
must consider a few important factors when borrowing outlines from other
students. You need to know how well that student did in the class. You
certainly don't want an outline from a C student. Whether or not that student
had the same professor, you need to know whether the professor is using
the same book and whether the law has changed. Taking all these factors
into account, you still may find an outline that seems suitable for your class;
however, this will never take the place of creating your own. By not going
through the process of organizing the material, you are not learning how the
rules relate to various facts, because you do not see them in practice. Thus,
you are missing the big picture: you are not “learning the law,” and you are
not learning how to apply it. Instead, you are reading and memorizing
information, which will not help you answer your exam questions. To return
to our travel analogy, it is the difference between reading about a country
and visiting it yourself.

TIP: In sum, you should make your own outline because:

The process of making it will force you to learn the law;

Your outline will be specific to a class and professor;
Making your own outline requires you to synthesize and apply
the law, which you will be required to do on the exam.
 What Should a Good Outline Include?
The following is a summary of the information you should include in
your outline. However, keep in mind that this is a sample of just one way to
organize your outline and not the only way. (See the sample outlines at the
end of this chapter).
I. Main topic or issue

1. What are the main policies in this area of law?

2. What are the rules? Include definition and elements, if any.
1. Case examples of when rule has and has not been violated.
2. Hypos from class as examples of how the rule is applied.
3. When will I see this on an exam? What should I look for?
4. More policy (if applicable)—make sure you focus on what your professor
brings up in class.
1. Do these rules serve the policies of this area of law?
2. Is this a good rule or a bad rule? (Will the rule help or hurt society?)

II. Main topic or issue

 How to Make Your Own Outline
Congratulations if you have decided to make your own outlines! It will
be a daunting task, but one you can accomplish if you follow the steps and
techniques provided below.
In reading individual cases and preparing for class, you focused on
specific information. You discussed individual rules and elements of those
rules and how courts applied them in different cases. In your outline, you
need to focus on the general information or the big picture. Your task is to
determine how the many different rules fit together and interact as a whole.
The first step in this process is called synthesis. (For more information on
synthesis, see Chapter 4.) You should begin synthesizing the rules every
other week as you begin to review the material. The second step is
outlining. In order to begin outlining, you need to set aside a large block of
time, approximately three to five hours, and have the following materials
available:
Casebook
Syllabus
Case briefs
Class notes
Hornbook and/or commercial outline*
* Optional items, as some students are able to create their own outline
without the use of a hornbook or commercial outline. On the other hand,
many students find both to be helpful in grasping the material.

Step 1—Get the big picture.

Refer to your course syllabus and the table of contents in your casebook
to get a feel for the big picture. Examine how the material is organized.
What are the major headings, and what are the sub-headings below them?
Depending on how your syllabus or table of contents is organized, you may
benefit from a hornbook or commercial outline as another source in
determining which issues are big issues and which are sub-issues. Use this
information as a template or skeleton for your own outline. Begin with the
syllabus or table of contents, and fill in the blanks with buzzwords,
definitions, and case names. See the example below based on the course
 syllabus in Chapter 2.

Sample Outline #1—Torts

Intentional Torts
Battery
Intent
Vosburg v. Putney
Garratt v. Dailey
Harmful or Offensive Contact
Negligence
Strict Liability

Step 2—Insert the rules.

After you have created a skeleton, the next step is to insert the rules into
your outline. Before listing all the rules, however, you should synthesize
them. (See Chapter 4.) Once you have synthesized the rules, add all of them
to your outline; break them down into elements, if necessary. This may
involve stating a general rule or definition and then listing all the elements
and exceptions. See sample below.

Sample Outline #2—Torts

Intentional Torts

1. Battery
1. The intentional causing of harmful or offensive contact with the person
of another.
1. Intent
1. Subjective—The defendant actually wanted to cause harmful
or offensive contact with the person of another.
2. Objective—The defendant committed an act that a
reasonably prudent person with ordinary sensibilities would
have foreseen would cause harmful or offensive contact with
the person of another.
2. Harmful or Offensive Contact
1. Defendant is liable for contacts that cause actual physical
 harm AND
2. For contacts that are insulting. A plaintiff is entitled to
demand that the defendant refrain from the offensive
touching, though the contact results in no visible injury.
3. Person—The defendant is liable for contact with the plaintiff's
person.

Step 3—Insert cases and hypotheticals.

Now that your outline contains rules and elements, your next step is to
understand how each rule and element is applied. Return to the individual
cases and hypotheticals discussed in class. What point does each case or
hypothetical illustrate? You must determine the rule and/or element that
each represents and include a “blurb,” or very brief summary, to explain
how that rule or element is applied. Include a sentence or two on the
relevant facts to aid in your explanation. Be sure to note what kinds of facts
trigger each issue or element of the rule. See example below.

Sample Outline #3—Torts

Intentional Torts

1. Battery
1. The intentional causing of harmful or offensive contact with the person
of another
1. Intent
1. Subjective—The defendant actually wanted to cause harmful
or offensive contact with the person of another.
1. 1) Court found intent
Vosburg v. Putney:
D kicked P in shin after class was called to order.
Court said D intended to kick him (even though D
did not intend severe injury), so we have intent to
satisfy this element of battery.
2. Objective—The defendant committed an act that a
reasonably prudent person with ordinary sensibilities would
have foreseen would cause harmful or offensive contact with
the person of another.
1. 1) Garratt v. Dailey: No intent, but knew with
 substantial certainty injury would occur
Defendant pulled a chair from underneath an
elderly lady while she was about to sit in the chair.
As a result of the chair being swiped from
underneath her, the lady fell and broke her hip.
Although the defendant did not intend for the lady
to break her hip, a reasonably prudent person with
ordinary sensibilities could have foreseen with
substantial certainty that the lady would be injured
(pulling a chair usually leads to a fall, which, in
turn leads to an injury); therefore, the defendant
intended to cause the lady's injuries.
2. Harmful or Offensive Contact
1. Defendant is liable for contacts that cause actual physical
harm AND
2. For contacts that are insulting. A plaintiff is entitled to
demand that the defendant refrain from the offensive
touching, though the contact results in no visible injury.
Offensive contact (defined by religion)
Hypo: A male nurse aids in the operation of a woman
whose religion prohibits her from being touched by a
male. The operation was successful. The nurse is liable
for battery because he caused an insulting and offensive
contact to the woman, even though no visible injury
resulted.
3. Person—The defendant is liable for contact with the plaintiff's
person.
Offensive contact (touched “extension” of person)
Hypo: The defendant publicly insulted plaintiff and grabbed
a plate from the plaintiff's hand. Although the defendant did
not actually touch the plaintiff, he committed a battery
because he forged offensive contact with an extension of the
plaintiff's person (i.e., the plate he held in his hand).

Note that the cases illustrate elements of rules. The most common
mistake students make is using cases as the focus of the outline. In other
words, the outline is nothing more than a series of case summaries.
 Remember, in and of themselves cases are irrelevant, they are only
important in so far as they illustrate how an element of the rule works.

Step 4—Insert the reasons/rationale for the rules (policy).

Now that your outline contains rules, elements of the rules, and cases and
hypotheticals showing how to apply the rules, you should be able to use this
information to make solid arguments either for or against the rule, based on
the elements or cases. In addition to these arguments, you may need to
argue policy. Policy arguments include analysis of whether a law or a
particular application of the law is fair or just in terms of several factors.
These factors include the history of the law, whom the law was intended to
protect, and the impact of the law on society (i.e., whether it benefits
society or causes more problems). Arguing policy may involve a discussion
of social, economic, political, and governmental concerns. Information will
come primarily from your notes on class discussion. If your professor
lectured on how a particular case changed the law (for example, by creating
requirements for forming contracts), then you need to include that
information in your outline. You may be able to use the reason behind the
rule or the policy implications of the rule to argue for or against the
application of a rule. See sample outline below.

Sample Outline #4—Torts

Intentional Torts

1. Battery
1. The intentional causing of harmful or offensive contact with the person
of another
1. Intent
1. Subjective—The defendant actually wanted to cause harmful
or offensive contact with the person of another.
1. 1) Court found intent
Vosburg v. Putney:
D kicked P in shin after class was called to order.
Court said D intended to kick him (even though D
did not intend severe injury), so we have intent to
satisfy this element of battery.
2. Objective—The defendant committed an act that a
 reasonably prudent person with ordinary sensibilities would
have foreseen would cause harmful or offensive contact with
the person of another.
1. 1) Garratt v. Dailey: No intent, but knew with
substantial certainty injury would occur
Defendant pulled a chair from underneath an
elderly lady while she was about to sit in the chair.
As a result of the chair being swiped from
underneath her, the lady fell and broke her hip.
Although the defendant did not intend for the lady
to break her hip, a reasonably prudent person with
ordinary sensibilities could have foreseen with
substantial certainty that the lady would be injured
(pulling a chair usually leads to a fall, which, in
turn leads to an injury); therefore, the defendant
intended to cause the lady's injuries.
2. Harmful or Offensive Contact
1. Defendant is liable for contacts that cause actual physical
harm AND
2. For contacts that are insulting. A plaintiff is entitled to
demand that the defendant refrain from the offensive
touching, though the contact results in no visible injury.
Offensive contact (defined by religion)
Hypo: A male nurse aids in the operation of a woman
whose religion prohibits her from being touched by a
male. The operation was successful. The nurse is liable
for battery because he caused an insulting and offensive
contact to the woman, even though no visible injury
resulted.
3. Person—The defendant is liable for contact with the plaintiff's
person.
Offensive contact (touched “extension” of person)
Hypo: The defendant publicly insulted plaintiff and grabbed
a plate from the plaintiff's hand. Although the defendant did
not actually touch the plaintiff, he committed a battery
because he forged offensive contact with an extension of the
plaintiff's person (i.e., the plate he held in his hand).
Policy: When something is so close to the victim's person
that it is an extension of him (i.e., an object held in his
hand), a wrongdoer is liable. Battery protects individuals
from hurt and offense—intentional interference with an
object held in plaintiff's hand, even if not hurtful, is no less
offensive.
 Additional Tips on Outlining: Open Book v.
Closed Book Exams
An outline may differ substantially for an open book exam and a closed
book exam. In open book exams, professors allow students to use materials,
often including their casebook, other required texts, and the students' own
homemade outline during the exam. Commercial outlines usually are
forbidden. In closed book exams, students are not permitted to bring
anything into the exam. You can imagine how your outline might be
different depending on the type of exam. For an open book exam, you
might seek a user-friendly, visual outline. You can make your outline user-
friendly by making an index or table of contents and dividing the outline
with tabs. This will allow you to easily locate a particular rule or case. You
should include some type of flowchart (see Chapter 6) or an issue checklist.
Having a list of all the issues covered over the year or semester will help in
a couple of ways. One, it will help you stay focused on the exam because
you will be focused on the issues on your checklist. Two, if you get stuck
and are unsure if you are on the right track, you can refer to the checklist to
make sure you have not forgotten something. (For more on using a checklist
during the exam, see Chapter 9: Tips on Exam Preparation.) For a closed
book exam, you need to prepare an outline that will enable you to both
remember the law and to work through the steps in the analysis. For a
closed book exam, you should begin with a comprehensive outline and then
keep reducing it to something you can visualize (about ten to twenty pages
per course). A flowchart is also a very helpful way to reduce your
comprehensive outline into something more manageable.

TIP: When outlining remember to follow these four steps:

1) Refer to your syllabus or table of contents for the big picture.

2) Synthesize the rules and break them down into elements.
3) Insert the cases and hypos (as examples of how to apply the
rules) into your outline.
4) Insert the reasons/rationale for the rule (policy) into your
outline.
 Additional Tips on Outlining: Outlining
Software
Technology can help you create and manage your outline. Remember, the
goal is to outline material to improve your understanding of the rules and
the application. So, if you decide to use a computer program to assist you
with outlining, make sure it helps your learning and does not hinder your
progress.
The first program you should consider is Outliner by StoreLaw. This
program is available at www.storelaw.com. It is a program specifically
created for law students. Because it is created for law students, it includes a
lot of features for your specific needs, such as templates created specifically
for certain casebooks, and links to free case briefs online at Lexis.com and
Westlaw.com.3 Although Outliner will have access to this material, you
want to be careful about “cutting and pasting” information from case briefs
directly into your outline. You want to make certain that you understand the
material and are not simply copying it from one location to another. Finally,
Outliner also works with Microsoft Word and other word processing
programs to allow you to transfer the information you put into the outline
into other formats.
The second program that may assist you in outlining and getting
organized is OneNote by Microsoft. This product is available at
office.microsoft.com. OneNote is an electronic notebook or folder. It allows
you to link a flowchart to a document, such as an outline or your
typewritten or scanned notes. You can add graphics, photos, pictures,
flashcards, spreadsheets, etc. This product can also be used for research
projects and managing tasks and teams of people working with several
documents.
The final program, OmniOutliner, is for Mac users. This program is good
for creating outlines, as well as to-do lists and other organizational tools.
You can also hide portions of the outline while you work on other portions
and you can see all of the major headings by clicking one button so that you
can remain focused.
Of course, this is not an exhaustive list of all of the software programs on
outlining, but just a sample of those for you to consider. Remember, you
must do what works best for you. So if you find that handwriting your
outline on a legal pad works, do that. If you prefer to simply type out your
outline into your word processing software and add the Roman numerals or
numbers or letters yourself, then go for it. However, if you prefer a
computer program that will help you organize the material, then you should
research these and other programs to find the best fit for your needs.
 Outlining Exercises
Exercise 6-1
Outlining: Contracts

Step 1—Fill in the blanks of the outline using the following

concepts:
A contract is an offer, an acceptance, and a consideration. Promises that
are not meant to be legally binding (illusory promises or promise of a gift)
are not contracts. They are deemed to be “mere promises.” Contracts are
based on the principle of mutual assent to a bargain. A mutual assent to a
bargain means that both parties intend to enter into a binding contractual
relationship. Courts will not enforce agreements that were made in jest or
that the parties themselves did not take seriously. In order to determine
whether the parties had a mutual assent to a bargain, courts consider
objective, rather than subjective, factors. In other words, what one of the
parties thought she was entering into is not as important as what the parties
said, what was exchanged, what was witnessed by others, and what was
acted upon at the time. If it looks like a contract to a reasonable person,
then it's a contract.
I. Parts of a contract

II. Determining whether you have a contract or a “mere promise”

1. What to look for:

2. How you know if you have a contract:
1. 1) Not present when....
2. 2) Does exist if:
1. a)
2. b)
 3. c)
4. d)
3. In sum, you have a contract when ...

Answer to Exercise 6-1

Step 1
I. Parts of a contract

1. Offer
2. Acceptance
3. C. Consideration

II. Determining whether you have a contract or a “mere promise”

1. What to look for: mutual assent to a bargain

2. B. How you know if you have it:
1. 1) Not present when all you have is a party's subjective thoughts and
intentions
2. 2) Does exist when there are objective signs of an intent to enter into a
bargain
1. a) what did the parties say?
2. b) what did the parties exchange?
3. c) what did others see / hear?
4. d) what did the parties do at the time?
3. In sum, when it looks like a contract to a reasonable person, then it's a
contract.

Step 2—Add the following case examples to the outline in the

appropriate place:
Lucy4: D and P got drunk, and P asked to purchase D's farm. D agreed,
thinking P was joking. The next day, D withdrew acceptance. P
contended he did not have reason to believe D was joking and tendered
payment; therefore, D could not withdraw. Court held that the contract
was enforceable because the outward conduct of both parties indicated
an intent to bargain. Specifically, the parties wrote out the terms on a
napkin, sent for witnesses, and signed a note memorializing their
 agreement.
Bombry5: P approached D to renew P's employment contract. D
expressed agreement to renew contract for one year. Two months later,
D fired P. D contended that no contract existed because D did not
really intend to enter into a contract with P. Court held that D's
undisclosed intent was immaterial because a reasonable person would
conclude that a bargain was made based on (1) previous renewals that
were honored, (2) the circumstances surrounding the renewal (D had
repeatedly assured P that “she would be around for a long time”), and
(3) the business environment in which the renewal was negotiated (in
D's office on a day when employee reviews were being conducted)
Dickinson6: D agreed to hold open the sale of property to P for two
days. The next day P learned that D intended to sell the property to
someone else. P raced to catch D before D left town on a train. Court
held that the actions of both parties—D offering to sell to third party
and P scrambling to beat the second sale—manifested both parties'
belief that a contract did not exist.

Answer to Exercise 6-1

Step 2
I. Parts of a contract

1. Offer
2. Acceptance
3. Consideration

II. Determining whether you have a contract or a “mere promise”

1. What to look for: mutual assent to a bargain

2. How you know if you have it:
1. 1) Not present when all you have is a party's subjective thoughts and
intentions
2. 2) Does exist when there are objective signs of an intent to enter into a
bargain
1. a) what did the parties say?
2. b) what did the parties exchange?
 3. c) what did others see / hear?
4. d) what did the parties do at the time?
3. In sum, when it looks like a contract to a reasonable person, then it's a
contract.
1. 1) “looks like a contract to a reasonable person” (because of writing,
witnesses and signatures)
Lucy: D and P got drunk and P asked to purchase D's farm. D
agreed, thinking P was joking. The next day, D withdrew
acceptance. P contended he did not have reason to believe D was
joking, and tendered payment; therefore, D could not withdraw.
Court held that the contract was enforceable because the outward
conduct of both parties indicated an intent to bargain.
Specifically, the parties wrote out the terms on a napkin, sent for
witnesses, and signed a note memorializing their agreement.
2. 2) “looks like a contract to a reasonable person” (because of
assurances, location and timing of conversation)
Bombry: P approached D to renew P's employment contract. D
expressed agreement to renew contract for one year. Two months
later, D fired P. D contended that no contract existed because D
did not really intend to enter into a contract with P. Court held
that D's undisclosed intent was immaterial because a reasonable
person would conclude that a bargain was made based on (1)
previous renewals that were honored, (2) the circumstances
surrounding the renewal (D had repeatedly assured P that “she
would be around for a long time”), and (3) the business
environment in which the renewal was negotiated (in D's office
on a day when employee reviews were being conducted).
3. 3) “does NOT look like a contract to a reasonable person” (because no
terms and no specifics)
Dickinson: D agreed to hold open the sale of property to P for two
days. The next day P learned that D intended to sell the property
to someone else. P raced to catch D before D left town on a train.
Court held that the actions of both parties—D offering to sell to
third party and P scrambling to beat the second sale—manifested
both parties' belief that a contract did not exist.

Exercise 6-2
Outlining: Criminal Law

Step 1—Fill in the blanks of the outline using the following

concepts:
The actus reus committed with the mens rea, absent any defenses, results
in criminal liability. People are blameworthy only when they act on their
own free will, that is, when they make a conscious choice to act; this is the
policy of punishment for criminal acts; therefore, the actus reus, or physical
act, must be a voluntary act in order for the actor to be blameworthy. If an
act is reflexive or unconscious, then it is not voluntary and is not committed
by the actor's free will; therefore, it is not blameworthy.
The actus reus alone is insufficient for criminal liability. The culpable act
must also be committed with the requisite mental state, or mens rea. The
voluntary act becomes a guilty act when the actor has both the intent to
bring about a result and the knowledge that the act will bring about such a
result. Like the actus reus, the policy for punishment is that people are
blameworthy only when they make a conscious choice to act.
There are defenses to criminal liability. One is self-defense. Another is
insanity.
I.

II.

III.
 Answer to Exercise 6-2
Step 1
I. Actus Reus

1. Policy: people are blameworthy only when they act on their own free will.
2. Act must be voluntary. An unconscious or reflexive act is NOT voluntary,
and the actor is not blameworthy.

II. Mens Rea

1. Policy: people are blameworthy only when they act on their own free will.
Awareness that one's act will bring about a harmful consequence is
blameworthy.
2. Intent
3. Knowledge

III. Defenses

1. Self-defense
2. Insanity

Step 2—Add the following case examples to the outline in the

appropriate place:
Martin7: D got drunk at home. Police dragged him out into the street,
then cited him for public intoxication. Court held D not culpable
because he was not in public as a result of his own voluntary act.
Newton8: After being shot in his stomach, D shot a police officer. D
then fled to a hospital for treatment. D claimed that the shot to his
stomach caused a reflexive impulse to shoot back; and because he was
acting from reflex, he was not conscious at the time he shot the police
officer. Court held that if D's action was a reflex, it was not conscious
and thus was not voluntary. Therefore, D had a complete defense.
Decina9: D, an epileptic, crashed his car and killed four people. D
claimed that because he had a seizure while driving, crashing was not
a voluntary act. Court held that because D knew he was subject to
 seizures, his voluntary act of getting into a car to drive was a voluntary
undertaking of the risk of seizure while driving; thus, his act was
voluntary.

Answer to Exercise 6-2

Step 2
I. Actus Reus

1. Policy: people are blameworthy only when they act on their own free will.
2. Act must be voluntary. An unconscious or reflexive act is NOT voluntary,
and the actor is not blameworthy.
1. Not voluntary—drunk
Martin: D got drunk at home. Police dragged him out into the
street, then cited him for public intoxication. Court held D not
culpable because he was not in public as a result of his own
voluntary act.
2. Not voluntary—reflex
Newton: After being shot in his stomach, D shot a police officer.
D then fled to a hospital for treatment. D claimed that the shot to
his stomach caused a reflexive impulse to shoot back; and
because he was acting from reflex, he was not conscious at the
time he shot the police officer. Court held that if D's action was a
reflex, it was not conscious and thus was not voluntary.
Therefore, D had a complete defense.
3. Voluntary—knew prone to seizures and voluntarily took risk
Decina: D, an epileptic, crashed his car and killed four people. D
claimed that because he had a seizure while driving, crashing was
not a voluntary act. Court held that because D knew he was
subject to seizures, his voluntary act of getting into a car to drive
was a voluntary undertaking of the risk of seizure while driving;
thus, his act was voluntary.

II. Mens Rea

1. Policy: people are blameworthy only when they act on their own free will.
 Awareness that one's act will bring about a harmful consequence is
blameworthy.
2. Intent
3. Knowledge

III. Defenses

1. Self-defense
2. Insanity

TIP: The best way to determine whether your outline is organized

“correctly” is to try a few practice questions. We suggest that you complete
a section of your outline on your own, organize a small study group (no
more than 2 or 3 persons), and try to answer a sample exam question using
only your outlines. You should all work separately and then come together
as a group to compare your answers. If you find that your outline contains
too much or not enough information, you can revise it before the final
exam.

Note that the outlines included in this chapter are not the only way to
organize material. The outlines are provided as a guide to organizing
material in a way that allows you to learn the law and to prepare for the
exam. Remember that all students learn differently, and that you must
approach material in a way that works best for you. If, after reading this
chapter and attempting to outline, you feel that outlining is not for you,
consider flowcharting (see Chapter 6). The important thing is that you take
all the information you've read and discussed in class and construct an
overview of the material.

Endnotes
1. For more on flowcharts, see Chapter 7.
2. One study found that first year law students who achieved high grades
were more likely to use systematic and organized techniques in preparing
for classes and exams than their lower-achieving classmates. The study
specifically cited creating outlines as one of these techniques. Michael J.
Patton, The Student, the Situation, and Performance During the First Year
of Law School, 21 J. Legal Educ. 10, 21–27 (1967).
3. Lexis.com and Westlaw.com provide a wealth of resources and
material for law students and lawyers. Most research services are free to
law students while in school, whereas lawyers and law firms pay for certain
electronic resources that they offer.
4. This is based on Lucy v. Zehmer, 196 Va. 493, 84 S.E.2d 516 (1954).
5. This is based on Embry v. Hargadine, McKittrick Dry Goods Co., 105
S.W. 777 (Mo. Ct. App. 1907).
6. This is based on Dickinson v. Dodd, 2 Ch. D. 463 (C.A. 1876).
7. This is based on Martin v. State, 17 So.2d 427 (Ala. Civ. App. 1944).
8. This is based on People v. Newton, 72 Misc. 2d 646, 340 N.Y.S.2d 77
(1973).
9. This is based on People v. Decina, 2 N.Y.2d 133, 138 N.E.2d 799
(1856).
Chapter 7
Putting It Together, Part Three:
Flowcharting

Do you tend to think in terms of the big picture? Do you sometimes

think, “I wonder how X relates to Y and how Y relates to Z?” If so, then
flowcharting may be more beneficial to you than outlining. A flowchart is
analogous to a set of directions or instructions. Going back to our travel
analogy, if you were to travel by car to a friend's house, he might give you a
map with the route marked. The map would illustrate your starting point
and also illustrate where to go, and most importantly, how to get there. Like
a map, a flowchart can tell you where you are (on an exam), where you
need to go (what issues you should discuss next), and how to get there
(what to include in your discussion of those issues). Just as a map points the
way on the road, a flowchart points the way on an exam. A flowchart will
help you maintain your focus on the exam by reminding you of the issues
covered in class.
Do you synthesize information by writing it out? Or, when learning, does
it help you to visually see how all the information is inter-related? If so,
then creating a flowchart could be an excellent way for you to learn how the
elements of the rule fit together in a way that is instructional rather than
informational.
 What Is a Flowchart?
A flowchart is a diagram or map that shows a progression or a procedure.
Flowcharts in law school can explain how various issues and rules are
connected and how to answer a law school exam in a step-by-step process.
Making a flowchart can help you see the big picture and how all the
information fits together. The outline collected all of your information. The
flowchart tells you how to get somewhere using that information and puts it
in a manageable visual format. As a visual illustration, a flowchart literally
draws a picture of how to approach a legal problem.
 Do I Have to Create Both a Flowchart and an
Outline?
Some people are uncomfortable making flowcharts. Others don't need to
make them because they keep their outline in their head, or they see the
flowchart as a repetition of their outline. Also, some classes are not easily
divided into sections and questions that go from “If yes, then A, if no, then
B.” Keep in mind, however, that some parts of a class may be difficult for
you, and it will be very beneficial to you to flowchart those particular
concepts. For example, Real Property as a whole is not easy to flowchart,
but its individual sections, such as landlord tenant law, running covenants,
and easements are. Thus, you can flowchart landlord-tenant, running
covenants, and easements separately, in addition to creating an outline.
Although you will undoubtedly become intimately acquainted with these
terms by the end of the course, a flowchart will make it easier to picture
them and easier to learn them.
 How Do I Know If a Flowchart Will Help Me?
A flowchart is especially helpful for visual learners. A visual learner is
one who processes information by using pictures, graphs, charts or other
pictorial representation. For example, if you used charts and diagrams to
answer the word problems on the LSAT, you may be a visual learner. For
visual learners, an outline, which is a linear set of instructions, may not be
the best way to organize material. Instead, a visual “map,” or flowchart, is
the best way to demonstrate the relationship of smaller concepts to one
another and to the whole. Accordingly, some students should prepare a
flowchart, instead of an outline, when it is time to synthesize material. For
others, a flowchart supplements an outline. Whereas the outline might be
more detailed, a flowchart is a broader depiction of the course, reduced to
one page.
 What Are the Different Types of Flowcharts?
Remember that flowcharts are like a set of directions or instructions. You
can either follow a map to your destination or follow a set of written
instructions delineating the correct path to follow. Similarly, flowcharts
usually exist in one of two formats: graphic or text-based. The most typical
is the graphic format, in which information is included in boxes with lines
designating the relationship between the information in the boxes (see
example 1). The other common type of flowchart does not utilize graphics
connected together but reads more like a set of instructions (see example 2).
It leads one through the analysis and poses the questions to ask as one
dissects a problem.

Example 1—Graphic Flowchart: Torts

Example 2—Text-Based Flowchart: Torts
Has someone been negligent? Must have four things: 1) Duty, 2) Breach,
3) Cause, and 4) Damages
1) Did someone owe a duty of care to another? Was there a duty? Look for:
a) an act or an omission (failure to act)
b) general standard—that of a reasonable person—applies to all—
children, people with disabilities, etc.
c) What was the scope of duty?
1) ordinary situations—foreseeability of reasonable person of
 injury to another
2) special situations
a) affirmative duty to act, e.g., duty to control third persons (parent-
child), duty to protect third persons (jailer, innkeeper, etc.)
b) duties imposed by statute, e.g., Good Samaritan laws
c) special duties for owners and operators of automobiles
d) special duties for vendors and lessors of land
e) special duties for owners and occupiers of land
1) to persons outside of land—not to create unreasonable risk of
harm
2) to persons coming on land—look to see who person is—
different rules for adult trespassers, children, frequent intruders,
licensees, and invitees
2) If there is a duty—was there a breach?—in light of duty owed—did D
act reasonably?
3) Was the breach the cause of P's injuries?
Look at:
a) Actual cause—“but for” test
b) Proximate cause—look at foreseeability of what occurred and how
it occurred
4) Did plaintiff incur damages?
 What Should a Good Flowchart Include?
A good flowchart can lead you through an exam question, making sure
that you cover all possible issues each question raised. Just like a checklist,
you cannot go forward in your answer to a question until you have explored
every possible situation or exception to the rule delineated in the flowchart.
A flowchart should help you memorize the law, and crucial questions to
ask, or the critical issues to cover. A flowchart should “take you through”
an exam question. If it does not help, then it needs to be re-written. A
flowchart will help even with a closed book exam; however, key phrases
and buzz words should be more concise to facilitate memorization prior to
the exam.
 How to Make Your Own Flowchart
When creating an outline, you focused on the big picture. You must
determine how the rules fit together and interact as a whole. A flowchart
helps you visualize the big picture and create steps to follow to make all
possible arguments on an exam. Creating a flowchart can be done in three
easy steps. After explaining the steps, we've included some sample
flowcharts to help you understand the flowcharting process.

Step 1—Brainstorm: create a list of all the key words, phrases,

and rules that come to mind.
Consider an entire course or part of the course you've covered so far.
Write down on a large piece of paper (or, on the computer screen) words
and phrases that constantly recur in class (duty, act, omission, minor,
negligence), including case names, if any stick in your mind. At this stage,
DO NOT sort the information. In other words, write down anything that
comes to mind: do not discount anything or arrange items in any order. You
are only brainstorming at this point. Try to complete this step without
looking at your notes or casebook. Do not write in complete sentences. Just
jot down words, phrases, ideas, and names. For example, if you were
brainstorming for a contracts class, your brainstorm sheet might look like:

Example of Brainstorm Sheet: Contracts

Offer
Consideration
Termination of offer
Termination by passage of time
Promise
Offer must have clear and definite terms
Counter-offer
Acceptance
Rejection
Offeror
 Offeree
Communication
Bargain for exchange
Commitment
Legal detriment
Silence as acceptance
Waiver as acceptance
Notice that nothing in this brainstorm sheet is put in a particular order or
sequence. This particular brainstorm sheet has no case names. It might be
that this professor does not require the class to include specific case names
on her exam, in which case, the specific names of the cases should not
appear on the brainstorm sheet. After you've completed the initial
brainstorm sheet, go back and add to it, using your class notes. Again, do
not write sentences or attempt to add complete case briefs. Limit yourself to
words, or, at most, phrases. If you have already completed an outline and
are using a flowchart as a supplement, go through the outline and use it for
filling in the brainstorming sheet. The same rule applies: do not attempt to
include in the flowchart every word that is in the outline.

TIP: Once you've completed your brainstorm sheet, compare it to one

prepared by another. Indeed, this is a great activity for a study group. Rather
than using time in the study group to prepare one brainstorm sheet, come
together after working individually to compare brainstorm sheets. In this
way, each member of the group can add the concepts or phrases they missed
to his or her own sheet. Although there is no such thing as a right or wrong
brainstorm sheet, by comparing your work with others, you should get a
sense of what points and concepts are the most important ones.

Step 2—Organize: separate these terms into different

sections/categories.
Now that you have a fairly complete brainstorm sheet, it's time to begin
organizing the concepts. Begin by grouping similar concepts or ideas
together. For example, you might highlight all the words and phrases
dealing with “offer” in yellow and all those on “acceptance” in pink. At this
stage, do a fairly broad sort. If you don't know where to begin, look back to
the table of contents in your casebook or your syllabus. What broad
concepts do those sources identify? If the Contracts casebook begins with:
I. Meeting of the Minds: Offer, Acceptance, and Consideration, then you
should begin sorting the items in your brainstorm sheet in three groups:
offer, acceptance, consideration. Again, this might be an ideal exercise for a
study group.

Example: Organize Terms Part One

Offer
Promise
Commitment
Offer must have clear and definite terms
Offeror
Offeree
Termination of offer
Termination by passage of time
Rejection
Counter-offer
Acceptance
Communication
Silence as acceptance
Waiver as acceptance
Consideration
Bargain for exchange
Legal detriment
As you begin to sort items according to broad categories, revise your
brainstorm sheet, or create a new list. Rather than present a broad list of
items, your sheet should now have some divisions. Notice that this revised
list not only has divisions but also subdivisions. You can certainly do this
by creating an outline form or visually grouping, using highlighters and
shapes to separate distinct concepts.

Example: Organize Terms: Part Two

Offer
Promise and/or commitment
Offer must have clear and definite terms
Termination of offer
By Offeror
By Offeree
Termination by passage of time
Rejection
Counter-offer
Acceptance
Acceptance must be communicated
Exceptions:
Silence as acceptance
Waiver as acceptance
Consideration
Bargain for exchange
Legal detriment

TIP: Warning!!!!! Notice how the offer grouping in this example is far
more involved than the acceptance division. Take this as a warning! Either
the acceptance section was not discussed in detail in class or, more likely,
this particular student missed some key concepts in this area. If one topic
has several items listed under it and another has only a few, you should
review your outline or notes. Did you miss listing some items in this
category? Was this category not discussed in as much detail as the previous
ones? At this stage in the process, you are trying to sort items not only into
broad categories, but, if possible, subcategories as well. In this example
there are a lot of words listed under offer and now you, the student, need to
go back and try to subdivide these terms further. This type of subdivision
will help at the next flowcharting stage where you begin to organize the
smaller pieces of the puzzle.
Step 3—Go with the flow: decipher the relationship between the
rules and turn these into issues and questions.
In step three, you must figure out the steps you need to take to analyze an
exam problem on this issue. To go back to our travel metaphor, you need to
draft clear directions so you can “travel” through all the important steps on
your exam. If you were writing instructions to explain to a friend how to get
to your house, you need to figure out where he would start. Where does he
live? What street should he take to get to the highway? Should he go East
or West (or North or South)? What exit should he take? Etc.
To figure out what comes first, start with the broadest concept. For
example, we noted that your professor might have divided the Contracts
course into three areas or issues: offer, acceptance, and consideration.
Consider the relationship among the broad concepts first. Do they follow a
particular order? In other words, does offer have to come before
consideration? Why does one concept come before another? You cannot
begin to fill in your flowchart until you have a clear understanding of the
relationship among the bigger concepts. “Where do you get this
information?” you ask. From your notes! If you have been discussing cases
and hypotheticals in class, you need to figure out how the court analyzes
each Contracts case. What does it analyze first, second, etc.? Does your
professor require that you discuss offer before you discuss acceptance? If
so, then you must put offer in your flowchart before acceptance. In our
Contracts example, we noted that our list was now divided into three sub-
categories: offer, acceptance, and consideration. Now our flowchart begins
to take on shape:
Example 2—Graphics Flowchart: Contracts
 Once you've analyzed the relationship among the broad concepts and
have them in some sort of order, you can begin flowcharting each broad
concept individually. In other words, your Contracts flowchart begins with
offer, then acceptance, and finally consideration. Now, take the offer
section. Ask yourself, what do I have to ask myself in determining whether
there is an offer on the exam? What steps must I go through? Look back to
your sort list (Step 2). Of all the items on the list, what comes first? Why?
What happens when it is not present? Where do you go from there?
Notice that each step in the flowchart is posed as a question. This
way, you are prompted on what to look for when analyzing an exam
question. First, you must discuss whether there is an offer. Ask yourself,
“What do I look for here?” Each question should lead to another question.
When making a flowchart be as concrete as possible. Do not include
“directions” like “look for an offer”—what does this mean? Break it down
into specific requirements or elements. List specific concrete steps, rather
than vague abstract ones. Notice how the following sample flowchart for
offer is much more concrete than the previous example:

Sample Graphics Flowchart—Contracts

 Other Alternatives
As we noted previously, you might flowchart, instead of outlining, or you
might flowchart, in addition to outlining. If you choose to flowchart, instead
of creating an outline, you may find that graphics, boxes, and colors help
depict the relationship among the concepts. If you found outlining very
useful, then you might not benefit from graphics. Instead, you might need
what we call a linear flowchart, like the text-based flowchart shown here.

Sample Text-based Flowchart—Contracts

Is there an offer?
Do we have a commitment or a promise?
Are the terms clear and definite?
Has the offer been terminated?—No, then look for acceptance.
By the offeror
By the offeree
Did he reject the offer?
Did he let the time for acceptance lapse?
Did he make a counter-offer?
If you do everything on your laptop computer, you might want to seek
out software to help you put your flowchart in electronic format. There are
many different programs at your disposal; we will discuss a couple of them
to get you thinking about which one might work best for you. There are
three flowcharting software programs that we will discuss, but remember
that there may be many more options out there, so make sure to do a bit of
research before you commit to a specific program.

TIP: When considering flowcharting software see if you can ...

1. Try it free for 30 days. Most software companies have free trial periods and
you should use it to really determine if this software is worth your money.
2. Transfer the material to a written outline or word processing software, like
 Microsoft Word. This could be helpful in creating an outline.
3. Use it easily and efficiently. If you find that you have difficulty changing
the colors or the links or graphs, it might take up too much of your time and
it might not be worth it.

The first program is Inspiration. It can be found online at

http://inspiration.com. This is flowcharting software designed to help you
put your ideas into a chart. The program allows you to color-code different
parts of the outline. You can add pictures from its picture library, and it is
easy to click and drag concepts to different parts of the chart. You can also
add notes to any part of the flowchart and the notes will appear when you
click on that portion of the chart. Finally, you can click a button and convert
the chart into a skeletal outline. Any notes that you added will be
incorporated into the outline and can assist you if you prefer to prepare your
flowchart before you draft an outline.
The second program is Rationale. It is available at http://austhink.com.
Rationale is a bit different in that the focus is on creating a chart with
reasoning. In Rationale you will make if/then arguments or statements
linked with the word because. Rationale transfers your chart into essay
format into a word processor, such as Microsoft Word.
The third program is MindManager and is sold online at
http://mindjet.com. MindManager is different from the other two programs
in that you focus on the concept first and the program will help you
organize your thoughts. MindManager integrates directly with Microsoft
Office and appears to be geared towards corporations and used for
managing projects and people on teams.
Even though we have included three different options, there are other
options available. The key is to research the available software and find
what works best for you. Make sure that the software helps you organize
your thoughts and does not hinder your progress of understanding the
material.
 Final Thoughts
Both outlining and flowcharting are tools you can use to learn the law
and learn how everything you've discussed fits together. You may want to
use one or both of these tools. The important thing is to organize in a way
that works. There is no one “right” way to approach learning (or, for that
matter, practicing) the law. Start early and try different approaches and
methods. We've included some sample flowcharts (and the steps we went
through to create them) for your use. CAVEAT: these examples might not
fit your particular course or professor! In fact, the flowcharts that follow
include only one topic in each subject and are not comprehensive. They
may, however, be a place for you or your study group to start in terms of
putting together your own flowcharts. Good luck!
 Sample Flowcharts
Constitutional Law—Equal Protection

Step 1—Brainstorm.
Equal protection
Classification
Suspect
Discriminatory in effect
Rational basis
Governmental action
Injury
Strict scrutiny
Discriminatory on its face
Intermediate scrutiny
14th amendment
Standing

Step 2—Organize.
Do we have an Equal Protection violation?

1. If x is entitled to a right, then y, who is similarly situated to x, is also

entitled to the same right
2. Plaintiff must have standing
3. Injury must have come from the governmental action
4. How is the government classifying people?
1. Suspect: race, ethnicity
1. Suspect on its face
1. Apply strict scrutiny
2. Must be necessary to achieve a compelling governmental
interest
2. In effect—discriminatory purpose
 1. If yes, apply strict scrutiny
2. If no, apply rationale basis
2. Quasi-Suspect: gender
1. On its face
1. Apply intermediate scrutiny
2. Must be substantially related to an important governmental
end
2. In effect—look to intent
1. If discriminatory intent, apply intermediate scrutiny
2. If no discriminatory intent, apply rationale basis
3. Non-Suspect: economic, age
1. Apply rationale basis
2. Need to have a rationale relationship between the classification
and some legitimate governmental purpose

Step 3—Go with the flow.

Civil Procedure—Pleadings

Step 1—Brainstorm.
Jurisdiction
Sanctions
Cross-claim
Counter-claim
Third-party claim
Fraud or mistake must be pled with particularity
Filed in “good faith”—Rule 11
Complaint
Answer
Filed in a timely manner
Demand for relief
Venue
Short & plain statement
12(b)(6)
Service of process
Affirmative defenses

Step 2—Organize.
1) Have you been asked to analyze a complaint? Look for common flaws,
including:
a) short and plain statement of claim
b) demand for relief
c) statement of jurisdiction/venue
d) failure to plead a special matter w/particularity
e) failure to investigate basis of complaint
f) not filed in a timely manner
2) A complaint has been filed and it's the defendant's turn to respond. Try
and see if you can file a motion. Motions to choose from include:
a) lack of personal jurisdiction
 b) lack of subject matter jurisdiction/venue
c) failure to state a claim
d) insufficiency of process
e) insufficiency of service of process
3) Rather than filing a motion, defendant files an answer. Two issues to
look for:
a) by filing an answer instead of a motion, has D waived anything?
(make sure you know which of the above motions are waived if not
raised right away)
b) are there any problems with the answer?
1) was it filed in good faith?
2) does it include affirmative defenses?
3) should D include a cross-, counter-, or third-party claim?

Step 3—Go with the flow.

Criminal Law

Step 1—Brainstorm.
Actus reus—act
Mens rea—mental state
Omission—failure to act when you should act
Model penal code
Common law
Knowledge
Intentional
Voluntary act
Defenses
Infancy
Necessity
Statute
Assumption—you started to act, now you must finish
Peril—you put a person in peril—you must act to help him or her
Relationship
Purposeful
Consent
Reckless
Negligence
Mistake
Strict liability
Malice
Willful
Contract
Causation
Excuse
Entrapment
General intent
Specific intent

Step 2—Organize.
Actus reus—act
Voluntary act
Omission—failure to act when you should act because of SCRAP:
 Statute
Contract
Relationship
Assumption—you started to act, now you must finish
Peril—you put a person in peril—you must act to help him or her
Mens rea—mental state
Model penal code
Purposeful
Knowledge
Reckless
Negligence
Strict liability
Common law
General intent
Specific intent
Malice
Intentional
Willful
Causation
Defenses
Mistake
Necessity
Excuse
Infancy
Entrapment
Consent

Step 3—Go with the flow.

 Chapter 8

Law School Examinations

Law students begin school like travelers begin a journey, excited by the
prospect of meeting new people, learning new things, and pursuing a life
dream. After two months of reading cases, attending classes, and drafting
legal writing papers, most law students, like weary travelers, start longing
for the days when their surroundings were familiar and they felt self-
assured and confident in their abilities. Law students usually experience this
“homesickness” when, after two months or so of school, they find
themselves confused about the readings and class discussions, and unsure
about how all the information fits together. Rather than exude confidence
about upcoming exams, law students express fear. While some of the fear
can be alleviated with outlining and flowcharting, the prospect of the exam
itself is daunting. Knowing the goals and purposes of the exam and exactly
what is expected of students and having a process to use in attacking the
exam are empowering. This chapter introduces the what, why, and how of
law school exams, and points out some of the most typical types of exams.
The next chapter will provide tools for conquering homesickness for the
way things were, and for forging ahead to the great soon-to-be known.
 What Should I Expect on My Law School
Exams?
Contrary to common belief, law school exams do not require you to
repeat class discussion verbatim or repeat the facts of every case you read.
Although your professor might have demanded that students understand
each detail of every case for class discussion, her exam might not require
you to know a single case name. Thus, students who prepare for the exam
by memorizing each and every detail of the cases covered in class are not
studying the right material. No law school exam question will ever ask:
“We have discussed the Vosburg case in detail in this course. Tell me
everything you know about this case.” Instead, the law school exam will
test your understanding of the rule that evolved from the Vosburg case, and
your ability to apply that rule to a new set of facts.
Most undergraduate courses test comprehension, memorization, and, to a
degree, analysis. Most law school exams test primarily analysis or
application. Although memorization and comprehension are necessary to do
well on an exam, memorization and comprehension alone are not sufficient.
To succeed on an exam, students must problem-solve. While no law school
exam will ask you to repeat any one lecture, let alone one case, you will be
required to dissect a fact pattern, identify the issues, articulate the rules of
law, and apply those rules to this fact situation. The same dissection skills
you practiced while you briefed cases are those you will use when
answering a law school exam question. Knowing that you will be tested on
your problem-solving skills and your ability to think like a lawyer, you
might still wonder: “What will my exam look like?”
Most law school exams are somewhat similar to cases. There might be a
long (e.g., one page) or a short (e.g., five sentences) fact pattern with either
a few or many persons with problems. This will be presented in a basic fact
scenario of “what happened.” You will have a story of different people
doing different things, and at the end, some people will suffer some loss.
You must determine which party or parties will win in court. Let's review
the sample exam question we first presented in Chapter 1.

Sample Law School Exam Question

 Thirteen-year-old Bobby, the school bully, beat up on Steven and
Jamal, also thirteen, every day. Unable to take it anymore, Steven and
Jamal went to the school cafeteria to talk to Steven's older brother,
Kevin, about how to stop Bobby. Steven reminded Kevin that he still
owed them a favor for their help with his science project a month ago.
Kevin, eighteen, agreed to “take care” of Bobby for Steven and Jamal,
but only if they gave Kevin their allowance for the next six months.
Both Steven and Jamal agreed. Just to be sure, Jamal snatched a
napkin to record the agreement, and all three signed it at the bottom.
The next day at school, Steven and Jamal were called into the
principal's office and informed that Bobby was in the hospital with a
broken nose and a broken arm. Afraid of the consequences, Steven and
Jamal refused to pay Kevin his “fee.” Since Kevin cannot afford a
lawyer on his allowance, he has come to you and wants to know if he
can get his “fee” from Steven and Jamal.

You may have noticed that this exam question does not mention any
cases or rules from cases. Now you may be saying to yourself, “I can't
answer that!” or “How does my professor expect me to answer this exam?
We never did anything like this before. Why am I being tested this way?”
This method of testing is not random; there are many reasons why the
traditional law school exam exists in this format.
 Why Am I Being Tested This Way?
The traditional law school exam tests your ability to solve problems and
think like a lawyer. Unless your client is a lawyer, she will not be able to
tell you what she wants to sue for, what arguments to make on her behalf,
or even whom she can sue. Instead, a client will come into your office with
a problem, and she won't know what to do. She may inundate you with
more facts than you need, or may not give you enough facts. You will have
to sort out the facts to determine the specific issue or problem at hand. Then
you will have to apply the law to these facts to determine whether your
client has a viable lawsuit. The overall goal of law school is to train you to
think like a lawyer. Exams are the primary way of creating training
simulations that reflect real lawyer-client relationships, albeit under intense
time constraints. It is important to learn to break down the problem or
hypothetical until all possible legal issues are clear. Once you have learned
to do that, then you can take the next step to decide what actions to take on
each separate issue.
 How Does the Exam Relate to Class
Discussion?
Although the two may seem miles apart, class discussion and the exam
are closely related. As you prepare for class discussion, you read cases
carefully, concentrating on dissecting the relevant facts, isolating the issue,
distilling the rules, and articulating the court's reasoning. When you
participate in class discussion, you not only check your understanding of all
of the parts of the case, but your professor also challenges you to apply
your understanding to different fact situations by posing hypotheticals. The
exam itself is an extension of class discussion. On an exam, the
hypotheticals are longer, more complex, and written, but they challenge you
to engage in problem solving, just like in-class oral hypotheticals.
Professors give hypotheticals in class to teach you the way they want you to
learn and to approach the case from their specific legal point of view. Make
it a point to write down at least one hypothetical for each issue you discuss
in class; that way you have a basis of what the exam will cover.
 Different Types of Law School Exams
Most law school exams test problem-solving skills. There are different
ways to test these skills. Earlier, we introduced you to the concept of IRAC-
spotting the issue, articulating the rule, applying or analyzing the rule in the
context of new or unfamiliar facts, and reaching a conclusion about the
likely outcome of the problem—when we introduced case briefing (IRAC is
FIRAC without the facts). The same concept can be used on exams. One
way to solve problems on a law school exam is to use IRAC (we will go
into more detail about IRAC in the next chapter), but most professors do
not treat all parts of IRAC equally. Depending on the type of exam, you
may need to focus in on one part of IRAC more than others.
There are three different types of law school exams: (1) issue-spotting,
(2) analysis, and (3) policy. Some professors have different methods in
which they require their students to answer a question. For instance, on an
offer issue on a Contracts exam, a professor may tell her students to assume
that a valid offer exists and to answer only the acceptance part of the
question. It is very important that you follow the directions given by your
professor and answer only the question asked. It is important to find out
how your professor wants his or her exam questions answered.

TIP: To figure out what to expect from your professor on an exam, try the
following:

1) Find out if your professor keeps old exams on reserve in the

library or posted on the school's webpage and check them out.
CAUTION: Your professor always has the right to change his or
her testing format and can do so at any time.
2) Ask 2nd and 3rd year students about your professor's exams.
3) Go directly to the source: ask the professor yourself. If this last
choice seems daunting, make an appointment and take a few
friends with you. Most professors are happy to meet with students
eager to do well in their course.

Issue-Spotting
 Certain professors test differently because their learning goals for the
class vary. In other words, a professor might set as a goal that by the end of
the course each student will be able to identify the relevant issues in a
complicated fact pattern, articulate the rule, and be able to apply the rule
before moving on to the next issue. This professor will devote much class
time to discussing cases. Once the class has mastered the information, the
professor will then pose hypotheticals to test students' understanding. This
professor likely will give an issue-spotting exam. This type of exam is
analogous to looking at a person quickly and then describing as much about
her as possible: looks, clothes, features, etc. In other words, the exam will
require you to go through a complicated fact pattern and identify all the
issues triggered by the facts. Once an issue has been identified, you must
then articulate the rules governing this type of issue and quickly apply the
rules to the fact situation at hand. The arduous task in this type of
examination is recognizing which facts trigger which issues and presenting
a short and concise analysis of each issue found.

Analysis
Other professors set different goals. They expect a student to explore a
single issue in-depth, rather than evaluate several issues briefly. Exploring
an issue in depth requires articulating both main and opposing arguments
and identifying flaws in each side's presentation. There might not be a lot of
issues to discuss, but those that are significant should be explored fully. In
this instance, the professor has set as a goal “critical thinking.” Because this
professor wants his class to master analytical thinking skills, a lot of class
time is spent exploring individual cases in great detail and working through
problems and hypotheticals in great depth. In the classroom, students may
spend a few days or even a week discussing a single case or issue. Here,
issue-spotting is not a primary learning goal; critical reasoning is. This type
of exam is analogous to looking at a person and then being asked to
describe in detail a single item of clothing he is wearing. The exam here,
regardless of form, will require you to do more than articulate one or two
sentences of analysis before turning to the next issue. You must focus on
both sides of the argument and fully critique them.

Policy-Oriented
Other professors might set yet another type of learning goal. Rather than
focus on students' ability to dissect cases and spot issues or apply the rule to
the facts in a well-reasoned way, this professor wants to see the class master
abstract thinking. In other words, the class should learn not only what the
law is and how it is applied, but should be able to question the result as
well. A student should be able to understand the rationale underlying the
rule. This kind of thinking is most often facilitated in the classroom with
discussion about policy and theory. There might not be a lot said about
specific cases, but there probably is quite a bit of discussion about whether
the result in a particular case was sound and whether the case can be
categorized by a particular legal theory. The exam in this type of class is
likely to assess whether you can analyze a problem using theory and policy
as a guide. On this type of exam, you must not only know why the rule was
adopted, but you must also be able to present the arguments against the rule.
On this kind of exam, you should be prepared to argue the theory and policy
both for and against the rule. This shows comprehension and
acknowledgement of the complexity of the rule.
Some professors have multiple learning goals for their students and may
give an exam with a combination of any of the three different types we've
discussed. Such an exam, for example, might involve short answer or
multiple-choice questions for issue spotting and essay questions for analysis
and policy. Regardless of your professor's goal, and regardless of the type
of exam your professor gives, all law school exams share a common thread:
they all require problem-solving. The next chapter offers a process for
solving law school problems.
 Chapter 9

Tips on Exam Preparation

By now you should be a bit more familiar with why law schools test in a
particular way, and what the goals of the examination are. Familiarity with
the exam is not enough. To succeed, you need a process—an approach—for
taking the exam. Which process you use is vital. It's like selecting the right
tool for the job, or the right accessories for your trip. If you are going
hiking or camping, you need a good backpack that is easy to pack, can hold
all your stuff, and can fit on your back. This backpack would be essential
for tackling the mountains or the great outdoors. For your law school
journey, you need a powerful tool to use to tackle your law school exams.
 Process of Problem Solving
You have to choose a strategy for tackling the exam that will lead you to
some resolution. In mathematics, for example, different formulas are used
to analyze different types of problems. Likewise, in law, a particular
formula is used to analyze all legal problems: IRAC (remember, IRAC is
FIRAC without the facts). Using IRAC will not guarantee an A, but it will
help you organize your responses in a way that makes sense and impresses
your professor. The process is especially helpful when answering long and
short essay questions, and is useful for closed book, open book, and take-
home exams. IRAC is NOT the only process or mechanism for answering
law school exams (indeed, you may need to modify the formula to meet
your needs), but it is a good start to help facilitate “thinking like a lawyer.”
 IRAC for Examinations
You may remember IRAC from our earlier chapter on reading and
briefing cases. We introduced IRAC, or more specifically FIRAC, as a
method for briefing cases. You can use that same method for answering law
school exams. Go through the IRAC process for each and every issue you
identify on an exam.

I—Identify the Issues

Your first task is to “spot the issues” or figure out the specific rules
involved in the fact pattern. To spot issues, you need to skim the question
once and identify the big general issues that leap out at you (battery, assault,
etc.). Then go back, read the entire question, and zero in on the precise sub-
issues involved. For example, don't stop once you've identified a battery
issue. Battery is too general to be conclusive. Instead, the real “I” in this
case is the sub-issue. Battery is defined as the intentional, harmful or
offensive touching of a person. This definition has three elements or sub-
issues: (1) intentional, (2) harmful or offensive touching, and (3) person. A
fact pattern may contain one or more of these sub-issues. The most
important thing to do is read the question and/or fact pattern very carefully.
Finally, after you've read over a question once and identified the big issues,
you need to re-read the question with a more careful eye. As you read,
pause after every sentence and evaluate the relevance of the facts in that
sentence. Think: what issue(s) do the facts in this sentence trigger? Can
these facts be used in a main or opposing argument? Realize that a
professor usually intends EVERY single word in a fact pattern to be
pertinent. Professors usually do not include extraneous words on an exam.
You should remember that each fact in a question probably has some
relevancy and should not be discounted. Let's look at an example.

Sample Law School Exam Question

Gus Oontite is a diligent law student. He was horrified when, after a

month of flu-like symptoms, his doctor informed him that he had a
rare type of mononucleosis (mono) that may or may not be contagious.
The doctor advised Gus to stay away from people. Gus refused, and
 went to school the next day. He made it through the morning without
sneezing. While eating lunch in the cafeteria, Gus spotted his enemy,
Connie Tagious. Connie sat across from Gus and began taunting him
about his red nose and watery eyes. Gus, unable to bear anymore,
began playing with the salt and pepper from the shakers on the table as
a distraction from Connie's insults. Unfortunately, the pepper began to
tickle Gus's nose. As he felt himself about to sneeze, he grabbed for
his handkerchief. Connie turned away and Gus sneezed on the torts
book Connie was holding. Although Connie did not suffer any
immediate injury, she came down with a mild cold about a week later.
Discuss Connie's claims.

Where would you start with this hypothetical? First, you would have to
spot the issues. Always work your way from the biggest to the smallest
issues. In this case, we would begin by identifying this as a torts case.
Specifically, this is intentional torts. Even more specifically, this is a battery
claim. To analyze battery, you will need to discuss (1) whether Gus
intended to harm or offend Connie, (2) whether Connie suffered harmful or
offensive contact, and (3) whether the sneezing on the book was contact
with Connie's person.

R—Articulate the Rules

After you have identified the issue, you must articulate the rules. For
each sub-issue you identify, you need to go through the IRAC process. If
the sub-issue is battery/intent, the rules you will be expected to articulate
are those that pertain to the intent element of battery. What is the definition
of battery? What must a plaintiff prove to satisfy the intent element of
battery? You do not have to cite cases (unless your professor says
otherwise). Instead, at this stage focus on articulating rules that clearly and
precisely define the element or sub-issue you are writing about. The answer
to our Connie v. Gus problem so far would look like this:

Connie can successfully sue Gus for battery if she can prove the three
elements of battery: (1) intent, (2) harmful or offensive contact, and (3)
with the person of another. Connie can satisfy the intent element if she can
prove that Gus desired the end result of his conduct (to give her a disease)
or if it is substantially certain that Connie would become ill as a result of
his sneeze.

A—Apply the Rules to the Facts

Here is the most challenging part of IRAC. Having articulated the rule
pertaining to the sub-issue, you need to apply the rule to the facts and make
arguments for BOTH sides. What does this mean? This means that you
need to tell the professor whether or not the facts support the particular
element you are dealing with. You must constantly answer the question
“why?” The key word here is “because.” For example, on a battery question
with the key issue of intent, you must focus on why there is or is not
sufficient intent for a battery. Explain the existence of the element using the
facts in the question. Why is there a battery? “Because there is intent.” Why
is there intent? “Because it was substantially certain that if defendant
sneezed on the book he would pass his germs and his illness on to the
plaintiff.” Strive to create a sentence structured in the same manner: “The
element of intent is present because [state those facts that prove this
element]....”
Whenever possible, make sure to present the opposing argument. You not
only want to articulate why one party should win (because there is intent),
but you also want to tell your professor what the opposition will say. Once
you explain WHY the facts of the question show that intent is present, you
must then say that the other side will argue “there is no intent because ...”
Again, you want to use the facts to support your statement. Although the
process of applying the elements of the rules to the facts looks simple, it is
the most difficult part for a law student (and a lawyer) to tackle. Our
formula “element is met because of key facts” is oversimplified. Suppose X
is caught going forty-five miles per hour in a twenty-five mile per hour
speed zone (fact). A statute proscribes that going twenty miles over the
speed limit is negligence. How would you apply the law to the facts here?
Simply saying: “She was negligent because she was going twenty miles
over the speed limit” is not good enough. In fact, that answer is conclusory,
meaning it offers no “why.” A complete application would say: “The law
states that going twenty miles over the speed limit is negligence. In this
case, defendant was going forty-five in a twenty-five mph zone—the
required twenty miles over the speed limit. Hence, she has been negligent.”
Your application needs to be this explicit and complete. Unless the question
“why” is answered throughout, your application is incomplete. To take
Connie and Gus one step further then:

Connie can sue Gus for battery if she can demonstrate the three
elements of battery: (1) intent, (2) harmful or offensive contact, and (3)
person of another. Connie can satisfy the intent element if she can
prove that Gus desired the end result of his conduct (to give her a
disease) or if it was substantially certain that Connie would become ill
as a result of his sneeze.
In this case, Connie can argue that Gus intended both his actions
(sneezing) and the result (her getting ill) because, viewing Connie as
an enemy, he played with the pepper in order to induce a sneeze, which
he knew, based on the doctor's warning, would be the type of contact
that would spread his mono. Connie can also argue that even if Gus
didn't intend to give her mono, he knew with substantial certainty that
his sneeze would spread his sickness to others, based on his doctor's
telling him to “stay away from people.”
Gus will point out, however, that he never meant to give Connie
mono. He will argue that although he knew he was contagious, he
nonetheless tried to stop his sneeze with a handkerchief. Gus was not
substantially certain that sneezing would spread his mono because the
doctor only told him that his mono may be contagious.
Gus's argument will probably fail, however, because his doctor told
him to stay away from people; thus, he should have been substantially
certain that bad consequences could follow his action to expose others.
As to harmful or offensive contact ...

C—Conclusion
After stating both the main and opposing arguments, you must call a
winner. This is the shortest part of IRAC. Although most students think
there is a “right” or “wrong” answer, most of the time, the result doesn't
really matter. Most professors do not look for a particular conclusion, as
long as the arguments of both parties are clearly and completely explained.
Moreover, it is fallacious to assume that there is a clear-cut correct answer.
More often than not, there is no correct answer. You only need to take a
position and defend it.
 Take a look at the sample question and answer in IRAC format below.

Sample Exam Question #1—Contracts

Thirteen-year-old Bobby, the school bully, beat up on Steven and Jamal,
also thirteen, every day. Unable to take it anymore, Steven and Jamal went
to the school cafeteria to talk to Steven's older brother, Kevin, about how to
stop Bobby. Steven reminded Kevin that he still owed them a favor for
helping him with his science project a month ago. Kevin, eighteen, agreed
to “take care” of Bobby for Steven and Jamal, but only if they agreed to
give Kevin their allowance for the next six months. Both Steven and Jamal
agreed. Just to be sure, Jamal wrote out the agreement on a napkin and all
three signed it at the bottom.
The next day at school, Steven and Jamal were called into the principal's
office and informed that Bobby was in the hospital with a broken nose and
a broken arm. Afraid of the consequences, Steven and Jamal refused to pay
Kevin his “fee.” Kevin has come to you and wants to know if he can get his
“fee” from Steven and Jamal.

Sample Answer in IRAC format

Issue The issue in this case is whether or not the contract between
Steven and Jamal and Kevin is valid, given that (1) Steven and
Jamal are minors (both are thirteen), and (2) the contract is for
illegal activity (fighting).
Rule Any contract signed by a person before reaching the age of
majority is voidable by that person. (The age of majority varies
from state to state, but it is eighteen in most states). All contracts
that call for one or more of the parties to engage in illegal
activity are void and not enforceable.
Application Steven and Jamal can attempt to void the contract because they
are minors. They can assert that the contract is voidable by them
because they are both under the age of eighteen, and therefore do
not have the capacity to bind themselves to a contract. Steven
and Jamal can also argue that, even if they did not want to void
the contract because of their incapacity, the contract is
automatically void because it was illegal. Steven and Jamal can
assert that the contract was for an illegal act because Kevin
was to “take care” of Bobby or beat him up, and Kevin in fact
did beat him up to the point of putting him in the hospital with a
 broken nose and a broken arm.
Conclusion Because Steven and Jamal are minors and the contract involved
illegal activity, the contract is void and cannot be enforced;
therefore Kevin will not be able to recover his “fee” from Steven
and Jamal.
Here is another example of an exam question and answer written in
IRAC format. Review the synthesis example number three from Chapter 4
before reading this question and answer.

Sample Exam Question #21—Property

Tommy One-L just moved to Big City and signed a one-year lease on an
apartment on City Avenue. He began his legal studies at Big City
University's School of Law in August. As a first-year student, Tommy is
fairly high-strung and operates under an enormous amount of stress. He
spends countless hours each week preparing for classes and completing his
“outside” legal reading. As a student, he finds it especially important that
his apartment be a place of refuge. He needs peace and quiet in order to
keep on top of his studies, as well as to maintain some semblance of mental
health.
About one month after moving into his apartment, Tommy awakened one
Saturday morning and entered his kitchen. Turning on the light, Tommy
was thunderstruck to discover his apartment overrun by thousands of
cockroaches. Horrified and repulsed by the “invasion,” he telephoned his
landlord, who said he couldn't take care of the problem for at least a week.
As a result, Tommy moved out. Moving understandably involved a great
deal of time, when time was at a premium for Tommy. After he resettled
into his new apartment (which commands substantially higher rent),
Tommy's landlord sued him for back rent and other damages. Tommy wants
to know whether he has a defense to his landlord's lawsuit.

Sample Answer in IRAC Format

Issue Whether Tommy can successfully defend an action for back rent
based on constructive eviction, due to a large quantity of
cockroaches in the apartment.
Rule Constructive eviction refers to circumstances under the control of
the landlord and that compel the tenant to leave the premises,
though not asked to leave. In order to assert constructive eviction
 as a defense to an action for unpaid rent, a tenant must prove that
some safety issue or health hazard prevented him or her from
living in the apartment. A mere nuisance, such as noise, is
insufficient.
Application Tommy can argue that the apartment is unsafe in this situation
Main because it is infested with cockroaches. Cockroaches pose both a
Argument safety issue and a health hazard because they can have serious
health consequences for the tenant. Cockroaches carry diseases
and can contaminate food. Because sickness can spread to the
tenant, cockroaches can be viewed as a health hazard. This is
similar to the case of an apartment damaged by fire because both
can lead to the spread of illness. These are similar because just as
fire damage can lead to breathing unclean air, cockroaches can
damage food and spread disease. These situations are similar
because they both cause health problems. Tommy can also assert
that his situation is similar to the case in which an apartment had
no heat in the middle of winter. In that case the apartment was
unsafe because the temperature was below zero, and that could
cause the tenants to become sick. In this case, Tommy's
apartment was unsafe because the infestation of the
cockroaches could contaminate the food and cause Tommy to get
sick.
Opposing The landlord will argue that this is merely a nuisance because one
Argument week is sufficient time to fix the cockroach problem. He will
assert that Tommy acted prematurely and did not give the
landlord a reasonable amount of time in which to fix the problem.
The landlord is wrong; this is not merely a nuisance because
unlike the case of the loud noise that is only bothersome and has
no long-term consequences, cockroaches spread disease quickly
and can cause serious health problems.
Conclusion A court likely will find that Tommy can make a valid constructive
eviction defense due to the safety and health issues presented by
the cockroaches.
In this second example, the arguments in the analysis are presented for
both sides, Tommy and his landlord. Note that this second analysis contains
additional information that the first example did not: case analogies and
distinctions. In making some arguments (depending on your class and your
professor), it might be important to argue that your case is either similar to,
or different from, other cases that you discussed in class. This will
strengthen your argument, because if your case is just like another that was
previously decided a certain way, you can assert that your case should have
the same result.
 Tips for Different Exam Formats
Now that you know the basic problem-solving method for law school
exams, following is some information on the different formats of exams
(open versus closed book). Later we will also suggest how to budget and
manage your time during an essay exam.

Essay Exams

Closed Book
Closed book is the “traditional” law school examination format and the
one most commonly used. In a closed book exam, you are expected to have
memorized all the rules, and may not bring anything into the exam other
than a pen or pencil.
Whether essay, short answer, or multiple choice, a large part of the
challenge here is not only to memorize but truly to understand the law. If
you are unable to articulate the rule of law or recognize it in a closed book
exam, you will be unable to demonstrate your understanding of the
principles. In preparing for a closed book exam, you should do several
things.
First, make sure you have the correct principles of law in your outline or
flowchart. Have you put the parts together in a way that accurately
describes the whole? Do you have a clear understanding of the majority and
minority views?
Once you've assured yourself that you put the rules together in a coherent
way, you need to memorize them. Prepare flashcards or use those available
commercially (caution—the latter are not as accurate as the ones you make
yourself because they only summarize the generic rule and are not specific
to your professor). Reduce a lengthy outline into a one or two-page
summary to memorize. See Chapter 6 on flowcharting. You probably are
unable to memorize forty or more pages, but you are able to memorize two
pages of information.

TIP: When studying, saying the rules out loud helps you remember much
better than reading silently to yourself. This is probably because hearing the
rules, even in your own voice, reinforces them in your mind. Your
roommates may think you're crazy, but it really works!

At this point, the words and phrases should be so familiar to you that by
simply mentioning them, you should be able to fill in the details. Consider
using mnemonics. Create little anagrams or phrases to help you remember
concepts. One commonly known phrase is “my legs,” a mnemonic in which
each of the first letters of the phrase stands for an exception to the statute of
frauds in Contracts (marriage, year, land, executor, guaranty, and surety).
Remember that although simple memorization is not the key to a good
grade, it certainly is a beginning.
Having memorized the rules, you need to make sure that you can apply
these principles to new fact situations. Overall, a closed book exam tests
three levels of skills: (1) knowledge of rules; (2) understanding the
relationship of the subparts to the whole; and (3) ability to apply the rules in
problem-solving.
Once you are taking the exam, before you read or even skim any
questions, jot down memorized words or phrases on the inside cover of the
bluebook or on a piece of scratch paper. This prevents you from forgetting
key phrases and helps you read the examination with the main issues in
mind. If you cannot remember the exact wording of a rule, paraphrase it as
best as you can. You may still score points if your application of the rule is
thorough.

Open Book
In an open book exam, students may bring only certain materials (usually
a collection of statutes), or any materials (including outlines, flowcharts,
etc.) with them to use during the exam. Given the sources available during
the exam, memorization is not necessarily one of the skills tested. However,
it is crucial to remember that you will not have time to search for the rules
at your leisure. Some students, if allowed to bring in an outline, choose to
annotate it and include a table of contents. This way, they can quickly locate
the relevant rule. An outline or flowchart is still recommended for an open-
book examination.
Although rule memorization might not be a part of an open book exam,
rule comprehension clearly is tested, as is rule application; therefore, make
sure your outline illustrates how all the parts and subparts fit together, and
includes supporting cases and hypotheticals. Before you annotate your
materials, check with your professor. Some only allow “clean” copies of
materials (that is, unmodified), and you risk losing your sources during the
exam. If you are allowed to annotate your materials, consider tabbing your
code or statute book for quick reference. The biggest mistake students make
during an open-book examination is to search aimlessly for a rule or
principle. To avoid this, get organized.

Take Home
The take home exam is either loved or loathed. Some students love this
format because it does not require memorizing a great deal of information,
and it allows time to think, organize, write, edit, and proofread responses.
Others loathe the take home exam because it requires full comprehension
and application of the law. Although your professor does not expect you to
memorize material, she does expect you to understand it and apply it
thoroughly and thoughtfully. Whether you choose to prepare an outline or
flowchart for the course with a take home exam depends on certain
variables. You will have to put together the material you've learned in a way
that will facilitate your understanding when you are writing your answers.
Some students decide to outline before the exam to get an overall
understanding of the course. Others wait until they receive the exam before
putting together the relevant materials into some organized format. A take
home examination does not mean a disorganized one! Thoughtfulness,
rather than wordiness, is rewarded, so it makes sense to be precise, rather
than sloppy. Do not put off the exam until the last minute. Start early. Read
each question and develop a task list. How many questions will you answer
each day? Which one will you answer first? Once you've selected the
question, read it carefully, and consider the issues it raises. What are the
relevant guiding legal principles? How do those principles apply in this
context? Because of the time frame, check, recheck, and then check again
your grammar, citations, punctuation, and spelling. Save and resave
regularly to avoid fatal computer crashes. Do not wait until the last minute
to print out the finished product; lengthy delays at your school's computer
lab are inevitable.

Multiple Choice
All students undoubtedly have taken multiple choice exams, usually on
standardized tests, like the LSAT. Although some students prefer the
 “objective” exam, multiple choice exams are not necessarily easier than
essays or short answers. For the most part, multiple choice exams still
require students to know the law, understand it, and apply it to different fact
situations. The only difference between essay and multiple choice questions
is that the answer is provided on multiple choice exams. Given the format
of multiple choice questions, students who have studied hard but do not
excel at written communication can do very well on multiple choice exams.
There are specific steps in approaching multiple choice exams. First,
develop a strategy and stick to it. Whether you choose to read the question
first and then read the fact pattern or vice versa, use the same strategy
throughout the exam. Second, once you have a strategy in mind, determine
how much time is allotted for each question, make a schedule, and stick to
it. For example, a multiple choice section worth 25% of the total points on a
four-hour exam calls for spending one hour on the multiple choice
questions. If the exam has thirty multiple choice questions, and you have an
hour to answer them, you can figure two minutes per question. If you find
yourself stuck on a question, move on after two minutes and return to it
after you have answered the rest of the questions. You can also choose one
letter as your default choice to use when you are stuck, and change it when
you return to those questions. Third, figure out the answer yourself, and
look for it among the options. If you know what the answer is, you won't be
fooled by wrong answers that merely “look right.” Fourth, if you have
overlapping options, dissect the options into individual choices.
Overlapping options are those in which the question has more than one
answer or combinations of answers, and this is reflected in the options.
Following are examples.

Overlapping Options

1. Which of the following does not violate the statute?

1. Proposition 1
2. Proposition 2
3. Proposition 3
4. Proposition 4
A. I. Only
B. III. Only
C. I. & II.
 D. I. & III.
E. II. & IV.
2. Which of the following does not violate the statute?
1. Proposition I
2. Proposition II
3. Both A & B
4. Neither A nor B

If your exam includes overlapping options, divide them into individual

options first. In our example, you would not look to the letters A, B, C, and
D, but rather at each proposition: I., II., III., IV. Next, mark each one True
or False, and then look for the right combination from the original options
to determine the correct answer. This should prevent you from becoming
confused and help eliminate wrong answers. Fifth, if you must guess, then
eliminate as many wrong answers as you can and look for the most
complete answer. Usually, but not always, an answer may be wrong because
it is incomplete: perhaps only part of the rule is included, or the rule is
stated incorrectly. If you must guess, choose an answer that is complete.
Finally, never skip questions. If you come across a question that appears
very difficult and you do not know the answer, don't save it for last; go
ahead and guess, and move on. Do not waste time thinking about the
question you skipped during the rest of the exam. You also don't want to
make avoidable mistakes on your answer sheet, like misnumbering your
responses.
Overall, most law school exams seek to evaluate the very skills that
enable a lawyer to be successful in practice: (1) to listen to the client's
“story” and separate relevant from irrelevant facts; (2) to identify the legal
issue that is triggered by those facts; (3) to articulate the rules of law that
govern that legal issue; and (4) to apply those rules to the client's fact
situation and make a convincing argument to the court.
 What to Do During an Essay Examination
Just as with multiple-choice questions, when taking essay exams you
should develop a strategy and stick to it throughout the exam. Develop a
strategy that you can use throughout finals. We suggest the following five-
step strategy: (1) prioritize, (2) brain dump, (3) issue spot, (4) organize, and
(5) write using IRAC.

Step 1—Prioritize.
Before you read even one question, you need to determine how many
questions you must answer, the point value of each question, and how much
time you should spend on each one. Some professors will give you a
suggested time limit for each question, while others will list only point-
value. Regardless, you must not spend all your time on the first question if
it is not weighted the greatest. For example, on a three-hour exam with four
questions of equal value, spend approximately forty-five minutes on each
question. Do not sacrifice time allotted for other questions for finishing an
answer to one. Keep track of time, and move on when time allotted for a
particular question runs out; otherwise, your time for answering later
questions will be insufficient. It is better to have a B on each question rather
than an A on the first question, a B on the second question, a C on the third
question, and a D on the fourth. By skimming the exam to determine point
value and the time allotted for each question you can manage your time
more effectively throughout the exam.

Step 2—Brain dump.

The second thing you should do during an exam is something called the
brain dump. It sounds nasty, but it ensures that you will not lose the vital
information you've memorized in a panic situation. When the proctor tells
you it's time to begin, turn to the inside cover of your blue book and
“dump” out any key phrases, words, names, and terms that you associate
with the course. Do not spend time organizing these items or putting them
in any particular order at this point; just spew out all the information in
abbreviated words and phrases. This process enables you to do two things:
(1) it prevents you from panicking that all the information seeps out of your
head, and (2) it places the terms in front of you BEFORE you read the
exam, letting you see the terms and read with a purpose. Now that the
necessary terms are down in black and white, you will consciously look for
these issues when you read the questions, rather than read the questions and
react to them automatically.

TIP: For the Brain Dump, use the “stream of consciousness” approach, and
jot down anything on the subject that occurs to you. Possible terms in a
Contracts course, for example, might include offer, acceptance,
consideration, statute of frauds, unconscionability, parole evidence rule,
counteroffer, and mistake.

Step 3—Issue spot.

Having completed your brain dump, skim the entire exam quickly. Check
to see which questions are assigned the most time and points, how many
short answer questions (if any) there are, and the difficulty you may
encounter on each question. As you go through each question, jot down the
general area of law that the question appears to involve. On Torts, for
example, ask yourself whether the question has more to do with intentional
torts, or with negligence. Do not go beyond the big picture at this point.
Remember, all you are trying to do is get a sense of the areas of law that are
being tested and the point value of each question.
Next, decide which question to answer first. Unless your professor tells
you otherwise, answer the questions in the order that you wish, as long as
you label each question clearly. Sometimes, doing the easiest question first
and building to the most difficult one makes most sense. This way, you
build your confidence and feel prepared to attack the more complicated
questions knowing that you at least have conquered the smaller ones. Other
times, it makes sense to start with the hardest, longest questions and end
with the shortest ones. If your energy level wanes during an exam, start
with the question that will require the most time and energy and then
proceed to the easier ones. This process also ensures that you cover in the
greatest depth the question given the greatest weight, thus minimizing the
amount of points surrendered if you run out of time at the end of the exam.
Once you decide which question to attack first, reread that question very
slowly, line by line. Each sentence should trigger something in your head:
an issue, sub-issue, case, or defense. Perhaps the sentence triggers an intent
issue for battery or assault. Jot down the issue next to each sentence. DO
NOT JUDGE OR DISMISS ISSUES AT THIS POINT; just write them
down. In other words, try not to simultaneously spot and disregard issues. If
you spot the issue of consent, don't tell yourself: “Yeah, but it doesn't really
work here.” Just jot down consent. The time to judge will come. You may
end up including or excluding the issue in your answer, but at this point,
just jot it down. If you find that you have several sentences with nothing
jotted down next to them, look back to your brain dump page, or to your
flowchart or outline on an open-book exam. Do any of the facts in the
question raise issues that match something in your brain dump sheet or
flowchart? Try to match the facts to the issues. Although this process takes
time, it is time well spent. It is much better to spend some time organizing
your answer, rather than start writing only to have to go back and erase or
change your answer. In order to help you understand this crucial step, look
at the sample question below and a sample attempt at “issue spotting.”

Sample Exam Question #32—Contracts

National Bank agreed to lend Company $800,000 at 9% interest,
provided that Company send a written response and a cashier's check of
$16,000 as a “good faith” deposit within seven days. The president of
Company did not respond to National Bank until eighteen days later, but
nonetheless sent a response and a $16,000 cashier check. National Bank
cashed the check. About one week later, the attorneys for National Bank
and Company met and agreed on the payment method and fees. Two days
later, however, Company was able to obtain a loan in the same amount from
Local Bank at 8%. Company then requested a refund of its $16,000 from
National Bank. National Bank refused. You represent Company. Can you
get the $16,000 back?

Sample Exam Question #3 with “issue spotting”

National Bank agreed to lend [offer] Company $800,000 at 9% interest,
provided that Company send a written response and a cashier's check of
$16,000 as a “good faith” deposit within seven days. [Specific form of
acceptance required] The president of Company did not respond to
National Bank until eighteen days later, [Did not “accept” as requested]
but nonetheless sent a response and a $16,000 cashier check. [Acceptance
or counter-offer?] National Bank cashed the check. [Acceptance of counter-
offer?] About one week later, the attorneys for National Bank and Company
met and agreed on the payment method and fees. [More argument for
acceptance] Two days later, however, Company was able to obtain a loan
from Local Bank at 8%. Company then requested a refund of its $16,000
from National Bank. National Bank refused. You represent Company. Can
you get the $16,000 back?
Although some of the issues may seem obvious (National Bank agreed to
lend [offer]), some are not so clear (Company nonetheless sent a response
and $16,000 [Acceptance or counter-offer?]). At this point, though, your
job is only to look at the facts and consider any possible issues or
arguments, and jot them down. After linking most or all of the facts to some
issue or argument, your next step is to organize your answer.

Step 4—Organize.
Now that you have marked possible issues to discuss, you need to
organize your answer. Think of the question as a scramble. It is your job to
unscramble it and make sense of it. Your answer will make more sense to
the professor (and you) if you take the time to organize it. Several
organizational methods can help, including making an issue-fact chart or
outlining or flowcharting your answer.
One way to organize your response is to build an issue-fact chart.3 List
the issues and sub-issues you've spotted, and then jot down a word from the
fact pattern that triggered this thought. Using the chart, decide which issues
and sub-issues are primary ones and which are secondary. The primary ones
deserve more attention in terms of analysis than the secondary ones, so
make sure you divide your time accordingly. If, as you step back and look
at your chart, overlap appears, you may need to eliminate something.
Sometimes one fact sentence is applicable to two or more concepts. For
example, one fact sentence may prove both acceptance and counter-offer.
You can reuse a fact if you use it to prove something else. Very rarely
should you eliminate an issue. Even if you think that it is not likely to
succeed or you think it is weak, make sure you tell your professor why you
discounted it. It might take only one sentence: “Although X may raise the
issue of consideration given the words..., consideration is not likely to come
into play because....” If you think an issue is not viable but don't explain it
to your professor, your professor does not know whether you failed to think
about it or just discounted it; therefore, make sure you explain your
decision. See the sample issue fact chart for our contracts problem (see next
page).
 If you outlined or flowcharted the course, you might try outlining or
flowcharting your answer to an exam question. Note that this is a different
type of outlining. Rather than provide general abstract information, you
want to present the issue(s) and sub-issues raised and impose an order on
them. One way to organize your answer is by party: who is suing whom for
what? This is particularly helpful for Torts or Criminal Law, in which your
exam could include many different people doing many different things. For
example, if Joe, Jim, Ruth, and Anne are all doing tortious things to one
another, you may consider beginning your outline like this:
I. Joe v. Ruth

1. Battery
1. Intent—substantial certainty and unlawful
2. Assault
1. Immediate apprehension?

II. Anne v. Ruth

1. Battery
1. Intent—accident
2. Harmful contact
 Notice the cursory nature of this outline. You are not writing a complete
outline; instead, you are simply organizing the issues you will discuss and
the order in which you will discuss them. Do not spend a lot of time on this
step. If you skip this step entirely, the exam answer will be disorganized and
disjointed; if you spend too much time on this step, you risk running out of
time in writing your answer. Make sure you allocate your time wisely. A
rule of thumb is that of thirds: one-third to read, one-third to organize, and
one-third to write. Obviously, this time division varies for different people.
Whatever your division, make sure you spend the proper amount of time on
each of these steps; otherwise, your answer will be difficult for your
professor to read and to grade. Continuing with our Contracts problem, here
is a sample outline answer to sample exam question number three.
I. Company v. National

1. Offer
1. Intent—agreed to lend
2. Acceptance
1. Mirror image rule—not exactly same

II. National v. Company

1. Offer—same as above
2. Acceptance
1. Same as above
2. Counter offer—accepted—cashed check and atty mtg.

You can certainly flowchart your answer instead of outlining it. Again,
remember that less is more at this stage of the game.
TIP: For addressing several issues, write about the one you know best first,
and the one you know least last. Putting your best first creates a favorable
impression as your professor reads your answer, and it builds your
confidence as you move on.

Step 5—Write using IRAC.

Now that you've organized your answer, you can move on to IRAC. You
may have several IRACs in any given answer, depending on the number of
issues you found in the question. Sometimes, sub-issues are IRACable by
themselves. For example, you might have a lot to say about intent, so much
that it deserves its own IRAC. Just remember to focus on the sub-issues.
Here's a sample answer to our Contracts question written in IRAC format.
 Sample IRAC answer
Issue The issue in this case is whether the communication between
Company and National Bank constitute an effective offer and
acceptance, or whether there was a rejection and a counter-
offer.
Rule(s) An offer is the manifestation by one party (the offeror) of a
willingness to enter into a bargain with another (the offeree) on
certain terms. For a valid offer, the manifestation must raise a
reasonable expectation in the offeree that nothing more than
acceptance is needed by the offeree to create a contract. An offer
may be terminated (and no longer valid) if there is a rejection or
counter-offer by another, or the time specified of the offer has
lapsed.
If an offer is made by one party to another when they are not
together, the acceptance of it by that party must be
manifested by some appropriate act. White v. Corlies &
Tift. In other words, the acceptance must be communicated
to the offeror.
Application Company will argue that National Bank's offer was no longer
Main valid because the time for the offer to remain open had lapsed.
Argument Company will point out that the offer specifically asked for a
written response in seven days, just as the offer in International
Filter asked for a specific response. Company did not respond
until eighteen days later, with the mailing of a $16,000 check,
making its “response” a counter-offer. Company will also assert
that National Bank did not accept the counter offer because
National Bank did not manifest its intention to accept the
counter-offer.
Opposing National Bank will argue that it accepted Company's counter-
Argument offer when it deposited the $16,000 check. National Bank will
assert that retention of Company's check plus its silence
constitutes an acceptance. Furthermore, National Bank will argue
that Company was notified of National Bank's acceptance in the
conversation between the attorneys for both parties in the meeting
to discuss the loan fees and closing.
Conclusion The court will agree with Company that (1) National Bank's offer
was terminated, because the time for acceptance had expired, and
(2) Company's counter-offer was not effectively accepted by
 National Bank because National Bank did not communicate its
acceptance to Company; therefore, Company will be able to get a
refund of its $16,000 deposit.

TIP: Five-step strategy for essay exams:

(1) Prioritize your time,

(2) Brain dump,
(3) Issue spot,
(4) Organize, and
(5) Write using IRAC.
 Exam Exercises
Exercise 9-1
Exam Question: Torts—Intentional Torts
Bonnie Richardson worked as a receptionist for First Federal Savings and
Loan. One year, a Mr. Harry Henley began working at her branch. Mr.
Henley worked in an office approximately thirty feet from Ms. Richardson's
desk. Henley had been a pipe smoker for many years and had continued to
smoke his pipe at work. Ms. Richardson hated the smoke. In fact, she had
an allergic reaction to it that caused headaches and anxiety. Although she
had a good attendance record at work before Mr. Henley's arrival, she began
to get sick more often and missed quite a few days from work because of
her headaches. Three months after Mr. Henley's arrival, Ms. Richardson
was terminated, primarily for absenteeism. Mr. Henley was aware of Ms.
Richardson's adverse reactions to his pipe smoke, but he was unwilling to
stop smoking in the office, especially because First Federal was one of the
few remaining employers not to follow the “smoke-free” office trend. Mr.
Henley often taunted Ms. Richardson by blowing pipe smoke directly in her
face and saying, “I'm your boss and you can't do a thing about my smoking;
learn to deal with it or leave!”
Ms. Richardson has come to your law office for advice on whether she
has a case for battery against Mr. Henley. Your partner has told you that she
doesn't think intent is an issue, but she is concerned about the “harmful or
offensive” aspect of battery. She wants to know whether Ms. Richardson
will be able to satisfy this element of the tort.

Answer to Exercise 9-1

Issue/Fact Ladder
 Answer in IRAC
Issue The issue is whether Ms. Richardson, an employee, can satisfy
the “harmful or offensive” element of the tort of battery, when the
only “contact” is the blowing of smoke.
Rule The “harmful or offensive” element is satisfied when defendant
touches, either directly or indirectly, anything connected with the
plaintiff's person and when the plaintiff's personal dignity is
harmed as a result of the contact.
Application In this case, Ms. Richardson could argue that she has met the
Main “harmful or offensive” requirement because Mr. Henley's smoke
Argument did contact her directly (he blew smoke in her face) and indirectly
(the smoke from his office traveled to her reception area, some
thirty feet away). She was harmed in that the smoke caused an
allergic reaction, as well as headaches that allegedly led to the
absenteeism that triggered her job termination; moreover, like the
contact in Fisher, the contact in Ms. Richardson's case was also
offensive. Mr. Fisher had a plate snatched from him in a public
 place while a restaurant employee yelled a racist remark at him.
Similarly, Ms. Richardson had smoke blown in her face, while
her supervisor commented, “I'm your boss and you can't do a
thing about my smoking; learn to deal with it or leave.” Both
comments, in a public restaurant and in a public office, would
cause a person's personal dignity to be harmed because they are
publicly humiliating.
Application Mr. Henley can argue that his conduct was not “harmful” because
Opposing (1) the office policy permitted him to smoke, and (2) it is unclear
Argument from the facts whether his smoking caused Ms. Richardson's
termination (i.e., she was terminated “primarily” for
absenteeism). It is unclear whether she had other job problems
and whether she was absent as a direct result of his smoking;
however, because the standard is “harmful or offensive,” Mr.
Henley will lose unless he can show that his contact was not an
indirect touching with plaintiff's person. Perhaps he can argue
that smoke affecting someone who sits thirty feet away from him
is a far cry from snatching a plate out of someone's hands;
however, because he did direct his smoke at Richardson's face on
occasion while making rude comments, it is likely his conduct is
offensive.
Conclusion It is likely that Mr. Henley engaged in harmful or offensive
contact for purposes of the battery analysis.

Exercise 9-2
Advanced Exam Question: Contracts
Read and answer the exam question below using the strategy outlined in
this chapter. First review Exercise 4-3, Synthesis: Contracts, from Chapter
4. Also note that, unlike the first exercise, in which you needed to argue
only the facts, this question requires you to make additional arguments for
both sides.
Joe Smith, a construction worker specializing in home remodeling,
recently opened his own refrigerator sales and repair shop called “Joe's.”
Not knowing where to begin, Joe went to Carol's Refrigerator Supply to
buy refrigerators. Joe and Carol had had previous dealings when Joe was in
the remodeling business. Carol explained to Joe that his best option would
be to purchase several refrigerators on an installment contract so that he
 would have to pay only a few dollars every month. Joe agreed with Carol's
suggestion. Carol also explained to Joe that because he was getting a
“special deal,” the refrigerators would not come with any warranties or
guarantees from the manufacturer. Joe did not quite understand what the
warranty business was about, but agreed to Carol's terms without asking
any questions.
Carol told Joe that he was getting a good deal and that he should sign up
soon because others were “waiting in line” for refrigerators. Carol and Joe
signed a contract that day. Although Joe saw the disclaimer of warranties in
somewhat larger print, in the middle of a paragraph on page five (the
contract was eight pages long), he nonetheless agreed to Carol's terms.
Later that day, Joe reviewed the contract and calculated that he was paying
2% more than the market price for the refrigerators. Joe's wife, Rita, a law
student, also told Joe that by excluding the manufacturer's warranties, Joe
would be solely liable for any defects in the refrigerators. Joe wants to
know if his contract with Carol is enforceable.

Answer to Exercise 9-2

Issue/Fact Ladder

Answer in IRAC
Issue Whether Carol can enforce her contract with Joe in court will
depend on whether the court finds the contract to be
 unconscionable. The determination whether the contract is
unconscionable will, in turn, depend on the relationship between
Joe and Carol.
Rule If Joe and Carol were business people, a court would be reluctant
to interfere with a negotiated contract. For example, in Heller, the
court did not find a contract to be unconscionable when two
sophisticated businesses were involved and the price for the
product, according to the court, was not excessive. On the other
hand, when the parties are of unequal bargaining strength, and
when one party occupies a superior bargaining position, a
different rule may apply. Henson .
Application Whether Joe is a sophisticated buyer is a matter of dispute. Carol
Main could argue that he is in the business of refrigerator sales and
Argument repair and, thus, should know about prices. This argument is
bolstered by the fact that we don't know whether the price in this
case was excessive; did Joe pay $2.00 or $2,000 over the market
price? Furthermore, Joe had been in the remodeling business
prior to entering the refrigerator business; accordingly, he
would have had experience in dealing with materials and prices,
and is not necessarily an unsophisticated buyer.
Opposing Joe could argue that he is in the business of refrigerator sales and
Argument was a victim of an unconscionable agreement based on the
following: (1) Joe only recently opened his business; (2) Joe's
former occupation was unrelated to appliances (i.e., he was a
construction worker); (3) Joe purchased the refrigerators before
he had a chance to review the contract; and (4) Joe did not notice
that he was paying over market price until later that day (thus
evidencing his lack of business sophistication). Fully
understanding the terms of the contract is not the test for
unconscionability (Henson), but the fact that Carol had ample
experience in this business, and Joe had very little, plus the
disparity in price for the refrigerators, may compel a court to find
the contract to be unconscionable.
Even if the court enforces the contract, the question remains
as to whether Carol's disclaimer (that Joe's good deal
excluded warranties) is effective. Usually, for a disclaimer to
be valid, it must be set apart from the text and obvious.
Bunge. In Bunge, the disclaimer was in bold letters on the
 front of the contract. In this case, the disclaimer was buried
in the contract (in the middle of page 5 of an eight-page
contract). Joe could argue that in order to be effective, the
disclaimer must be on the front of the contract. Carol can
assert that the disclaimer was in large print and Joe, in fact,
saw the disclaimer before he signed the contract.
Conclusion The contract in this case is likely to be found unconscionable
because of Joe's lack of experience in this business. If the court
enforces the contract, the disclaimer probably is valid, given the
large print and Joe's knowledge of the disclaimer.
Note that this exercise requires you to argue the facts and make arguments
as to which rule the court should apply and how that rule will affect both
parties.

Exercise 9-3
Exam Question: Civil Procedure—Personal Jurisdiction
Read and answer the exam question below using the strategy outlined in
this chapter.
Ken is a Florida resident who collects baseball cards. He saw and
responded to an ad in Professional Cards, a national magazine, for the sale
of an excellent condition, original Babe Ruth rookie card. Dick, a
Washington resident, offered the card. The next day, Dick mailed the card
COD to Ken. A month after the sale, Ken noticed that the card had become
discolored and blurred. Ken took the card to a professional appraiser, who
determined that the card was a fake. Ken sued Dick in a Florida court. A
Florida Long Arm statute provides that Florida courts have jurisdiction over
defendants who “transact business” in Florida. Does the Florida court have
personal jurisdiction over Dick?

Answer to Exercise 9-3

Issue/Fact Ladder
 Answer in IRAC
Issue Does the Florida court have personal jurisdiction over Dick?
Rule Because Dick neither is present in, nor consented to defend in
Florida, personal jurisdiction can only be established through a
constitutional grant of personal jurisdiction from the Florida
Long Arm Statute.
Application In this case, Florida's Long Arm Statute grants Florida courts
personal jurisdiction over those who transact business in
 Florida.
Conclusion Dick did transact business in Florida by advertising in Florida
through the national magazine and by mailing the card to Ken in
Florida.
Issue The Long Arm Statute is not the only consideration. One must
also consider whether Dick meets due process pursuant to
International Shoe . In other words, the issue is whether Dick
meets the “minimum contacts” test.
Rule “Minimum contacts” are established when a defendant “reaches”
into a particular jurisdiction for some purpose.
Application In this case, Dick does because he purposefully directed contacts
to Florida. He advertised in a national magazine, where a
foreseeable probability existed that prospective buyers in Florida
would read the magazine.
Conclusion In fact, Dick sought buyers from anywhere in the country where
the magazine was distributed.
Issue Even if his contacts were isolated (i.e., only one instance of a
sale in Florida is mentioned), will a court's exercising jurisdiction
over Dick in Florida comport with traditional notions of fair play
and substantial justice?
Rule To decide whether Dick's contacts with Florida render personal
jurisdiction in Florida fair, the court will balance all concerned
interests.
Application The court will consider Dick's inconvenience in defending a suit
in Florida (a long way away from Washington) and Ken's interest
in having the State in which he resides protect him, as a resident,
from fraud. Also, the court will give great weight to Florida's
duty of protecting its residents from harm by outsiders. Most
likely, Dick's inconvenience of travelling from Washington to
Florida will not carry much weight because he embarked to
commit a fraud purposefully by selling a fake card.
Conclusion Therefore, most likely, the personal jurisdiction grant by the
Florida Long Arm Statute will be held constitutional, and Dick
will have to defend the suit in Florida.

Exercise 9-4
 Exam Question: Criminal Law—Actus Reus4
Billy Bruiser (who is a citizen of Statesville) recently suffered the loss of
his pet Pit Bull, Killer. On that same day, Billy lost his job, and his pickup
truck was stolen. Billy was extremely angry as a result of his bad day and
went to his regular tavern to calm down. Upon arriving, Billy saw a
stranger sitting on his usual bar stool. Billy proceeded to argue with the
person and demand his chair. During the argument, Billy kicked the bottom
of the stool, causing the bar patron to fall to the floor. Billy's day was
complete when the police arrested him and charged him with battery. For
purposes of this problem, assume that Statesville's statute reads:
Battery is defined as intentionally or knowingly without legal
justification and by any means (1) causing bodily harm to an individual or
(2) making physical contact of an insulting or provoking nature with an
individual.
Has Billy committed a battery? Why or why not?

Answer to Exercise 9-4

Issue/Fact Ladder

Issue Has Billy committed a battery? Has Billy's act of kicking the
stool out from under the patron fulfilled the actus reus
requirement for the crime of battery?
Rule The actus reus for a criminal battery occurs when a person by
 any means (1) voluntarily acts to cause bodily harm to an
individual, or (2) voluntarily makes physical contact of an
insulting or provoking nature with an individual.
Application Here, Billy voluntarily kicked the stool that the other patron was
sitting on with enough force to knock it out from beneath the
other patron; this constituted an act with intent to cause harm.
Even though Billy did not directly touch the patron, his act was a
physical contact with the person of the patron; the patron was
sitting on the stool when Billy kicked it out from underneath
him. Further, Billy's act was both insulting and provoking, which
is sufficient to constitute a battery. Moreover, Billy knew with
certainty that kicking out the stool from under a person would
result in the person falling and possibly being injured, but Billy
kicked the stool nonetheless.
Conclusion Thus, Billy's act is sufficient to constitute the actus reus
requirement for criminal battery.
Issue Did Billy also have the requisite mens rea to fulfill the
commission of a battery; that is, did he intentionally and
knowingly commit the act constituting a battery?
Rule Proof that an actor's mens rea is intentional occurs when the
actor's conscious objective or purpose is to bring about a certain
result.
Application Here, Billy may not have intentionally kicked the stool with
enough force to knock it from beneath the patron; however, the
court may infer intent from the surrounding circumstances. For
example, Billy's anger at the events of his day is clear evidence
that he may have consciously wanted to kick the chair out from
under the patron. Additionally, Billy's demeanor and act of
yelling and demanding the chair is also evidence that he
consciously wanted to kick the chair. Finally, Billy kicked the
chair to remove the patron from the stool that he felt he should be
sitting on.
Rule Proof that an actor's mens rea is committed knowingly occurs
when the actor is consciously aware that a result will occur with
substantial certainty.
Application Here, Billy or any reasonable person would be certain that by
kicking the stool with enough force, it would move from beneath
 the patron. Billy's act of kicking was purposeful. The risk that the
patron would fall was practically certain.
Conclusion Thus, Billy intentionally and purposefully kicked the chair from
beneath the patron, and his act satisfies the mens rea for
battery.

Exercise 9-5
Exam Question: Criminal Law—Burglary
The state of Happy has the following common law definition of burglary:
The breaking and entering of a dwelling of another at night with the
intent to commit a felony once inside.
The law relating to this crime reflected a concern about a serious
invasion of the right of habitation during hours of darkness, when the
inhabitants are most vulnerable to attack and the invader most likely to
escape recognition.
Mr. Green is a top executive with ABC Corporation, and Mr. Brown is
his personal assistant. Although Mr. Green has a beautiful window office in
ABC's downtown location, Mr. Green often works at home. His home
office consists of a room, adjacent to his bedroom, with a desk, computer,
and a file cabinet. Mr. Green has given Mr. Brown an extra key to his house
and his security alarm code so that Mr. Brown can access his home office in
case of an emergency.
In the past couple of weeks, Mr. Green has been upset with Mr. Brown's
job performance. Mr. Brown has been preoccupied with an outside
consulting project and, as a consequence, has been late with several
assignments for Mr. Green. (No company policy prohibits outside
consulting). Mr. Brown believed that he could catch up on his work for both
ABC and his outside consulting if he had a laptop computer. Mr. Brown
knew that Mr. Green had a laptop computer at home and considered asking
to borrow it but decided against it because Mr. Green seemed upset all
week. On Thursday of that week, Mr. Green informed Mr. Brown that he
was going away for the weekend with his wife and children to get some rest
and that he would not return until Monday morning. Mr. Green also
informed Mr. Brown that he was displeased with his recent performance
and expected a considerable improvement next week. Upon hearing that
information, Mr. Brown decided that he had to get the laptop right away.
Mr. Green left for the weekend on Friday evening, and that evening at
midnight Mr. Brown drove to Mr. Green's house. Mr. Brown used his key to
enter the home and went directly to Mr. Green's office. Mr. Brown took the
laptop computer, making sure not to disturb anything, and immediately left.
Using the computer over the weekend, Mr. Green was able to finish his
consulting project as well as his assignments from Mr. Green. When Mr.
Green returned to work on Monday, he told Mr. Brown that his laptop was
missing and that he was going to report it as stolen. Mr. Brown did not
comment. Later that day, Ms. Goody (ABC's receptionist and the office
gossip) noticed Mr. Brown with a laptop and remembered Mr. Green's
missing laptop. She informed Mr. Green, who summoned security to search
Mr. Brown's office during lunch. They found the laptop and arrested Mr.
Brown for burglary later that day.
You represent Mr. Brown. At a hearing in this case, you moved to
dismiss. At the hearing, the judge determined that the home office was, in
fact, a dwelling, according to the common law. The prosecutor asked for a
continuance, and the judge set the date for the next hearing to decide the
motion to dismiss. Draft a letter to Mr. Brown detailing the arguments that
you will make to prove that this was not a burglary, and whether you
believe that you will win.

Answer to Exercise 9-5

Issue/Fact Ladder
 Answer In IRAC
Dear Mr. Brown:
You have been charged with burglary for entering Mr. Green's home
at night and taking a laptop computer. Under Happy state law, a
burglary occurs when (1) a person breaks and enters into the dwelling
of another at night (2) with the intent to commit a felony. In your case,
we face three issues. It is unlikely that the court will find you guilty of
burglary.
Issue The state must show that you entered Mr. Green's home at
night.
Rule The slightest entry into a dwelling place is sufficient to satisfy
entry.
Application Here, you entered Mr. Green's home at midnight, using the key
and the security code he gave you to use in emergency situations.
Although you were given access to Mr. Green's office, the office
was accessible only through his home.
Conclusion Thus, you unquestionably entered Mr. Green's home.
Issue The state must also show that you broke into Mr. Green's
home.
Rule Breaking into a dwelling requires either actual or constructive
force.
Application You used the key and security code that Mr. Green gave you to
unlock the door to his home. Thus, you did not use actual force
to access Mr. Green's home. Further, Mr. Green voluntarily gave
you the key and the security code to his home and gave you
permission to enter in emergency situations. You did not gain
access to Mr. Green's home by either fraud or threat of force.
Thus, you did not employ constructive force to access Green's
home because you were authorized to do so. Mr. Green may
argue that you did not have authority to enter his home at the
time you did, but I will respond that he authorized you to use
your discretion in judging an emergency situation because he did
not establish any more specific rules.
Conclusion Thus, I believe the court will find that you did not use force to
access Mr. Green's home and, therefore did not break into it.
Issue Finally, the state must show that you possessed the mens rea, or
mental state, to commit a felony.
Rule The mens rea for the crime of burglary occurs when a person's
conscious objective is to bring about a certain result, such as
stealing a laptop.
Application Here, you no doubt intended to take the laptop. You intended to
use it to complete work for Mr. Green, a purpose he clearly
authorized you to do. Further, when Mr. Green left, he demanded
that you improve your performance. I will argue that in your
judgement, you faced an emergency situation. Additionally, you
were able to complete Mr. Green's assignments using the laptop.
Mr. Green may claim that your silence when he advised you that
he was reporting the laptop stolen demonstrates your intent to
keep the laptop. I will argue that you intended to return the
laptop, but were afraid to admit that you had it at that moment
for fear of your job; after all, Mr. Green had expressed
displeasure with your performance just the week prior.
Conclusion Thus, I do not believe the court will find that you possessed the
 mens rea for burglary.

Exercise 9-6
Exam Question: Torts—Policy Question
You are a trial judge in the state of Confusion. At trial, plaintiff
introduces the following evidence:
Mama Stropus was walking her dog, Maya, in unincorporated Chaos
township one morning. She has walked her dog several times along this
particular route. The route takes her to a large open space in which she lets
Maya run free. On this route one morning, she was crossing a neighbor's
property (the neighbor had allowed Mama Stropus to walk over his
property and often stops to chat with her), when two dogs, Killer and
Brutus, pounced on Mama Stropus and Maya. Mama Stropus was knocked
to the ground and sprained her ankle, and Maya, who got into a scuffle with
Killer and Brutus, was badly hurt. The neighbor saw the scuffle but waited
twenty minutes before calling for help. The neighbor does not own the dogs
but has often seen them on his property and sometimes feeds them treats.
When Mama Stropus finally got Maya to the vet, the vet opined, “If only
you got here sooner, I could have saved her paw.” Mama Stropus then went
to her physician, who told her that the delay made her sprained ankle worse.
Mama Stropus' daughter, who went to law school, thinks that the
neighbor is liable. Do you agree? Why or why not?

Answer to Exercise 9-6

Issue/Fact Ladder
Rule A property owner is liable for harm when he breaches a duty of
care to a guest and his guest suffers injury as an actual and a
proximate result. Although a property owner owes no duty of
care to a trespasser, he owes a duty to warn of known dangerous
conditions to a licensee, and owes to an invitee the same duty
plus a duty to make reasonable inspection to discover dangerous
conditions and make them safe. Further, a property owner is
strictly liable for injuries inflicted on a licensee or an invitee by
wild animals or abnormally dangerous domestic animals kept on
his land. A property owner has a duty to assist only when a
special relationship between the owner and the injured plaintiff
exists. A plaintiff is liable for any comparative or contributory
negligence on her own part. A plaintiff also has a duty to mitigate
personal injury damages by seeking appropriate medical
treatment within a reasonable time.
Application Here, the neighbor did not invite Mama Stropus onto his
property, but he allowed her to cross it to reach the open space,
where she let Maya run. The neighbor knew that Mama Stropus
crossed his property because he often stopped and talked to her
while she was walking across his lawn; therefore, Mama Stropus
was a licensee, and the neighbor owed Mama Stropus a duty to
warn her of known dangerous conditions on his property.
However, he did not owe her a duty to make a reasonable
inspection and make dangerous conditions safe because she was
not an invitee. Although a property owner is liable for injuries
inflicted by animals kept on his property, the neighbor did not
own Killer and Brutus. Furthermore, he did not keep them on his
property; rather, they came onto his property, and he gave them
 treats on occasion. Occasionally giving treats to two dogs that
stray onto one's property does not amount to keeping them there.
Additionally, the neighbor could not have known that Killer
and Brutus were abnormally dangerous because they never
attacked him in all the times he saw them in his yard. Mama
Stropus was not comparatively or contributorily negligent
because she did nothing to provoke Killer and Brutus, and it
is indisputable that Killer and Brutus's attack actually and
proximately caused injury to Mama Stropus and Maya.
Nonetheless, the neighbor was not strictly liable for Killer
and Brutus and, thus, was not liable for the injuries to Mama
Stropus. Even if the neighbor were liable for the injuries
to Mama Stropus, her compensation would be limited.
Mama Stropus had a duty to mitigate her damages by
seeking appropriate medical care within a reasonable time;
by waiting until Maya had been treated by a veterinarian
and putting off her own treatment, Mama Stropus
contributed to the worsened condition of her ankle.
Conclusion Because the neighbor and Mama Stropus had no special
relationship, such as that between a common carrier and a
passenger or a parent and a child, Mama Stropus was a licensee
permitted to cross the neighbor's property. The neighbor did not
create a dangerous condition and did not put Mama Stropus into
a position from which he would have a duty to remove her,
therefore, the neighbor had no duty to assist Mama Stropus.
Accordingly, as the judge in this case, I disagree with Mama
Stropus' daughter and would hold that the neighbor was not
liable for Mama Stropus' injuries.

Exercise 9-7
Exam Question: Constitutional Law—Due Process
Several branches of the armed forces, including the Navy, have
promulgated regulations regarding the proper conduct of their officers.
Specifically, there are anti-fraternization policies (senior officers are not
permitted to have romantic relationships with junior officers), anti-adultery
policies (officers who commit adultery can be punished), and policies
forbidding officers from engaging in homosexual acts while in the service.
Lieutenant Stephen Clark has been in the Navy for ten years. He is an
 expert in high-tech submarine weaponry. In fact, the Navy is one of the few
establishments that has use for his high level of expertise. Although Clark
wanted to pursue other areas of study, the Navy fostered and encouraged his
particular expertise. He is super-specialized.
Clark married Ensign Mark Rodriguez, an officer junior to him, in
Hawaii last June. Hawaii recognizes same-sex unions. The ceremony was
held in secret, and only the two individuals and their immediate families
attended. In addition to their personal relationship, the two have a
professional association, as well. Clark is Rodriguez's commanding officer.
Despite their efforts to keep their personal relationship a secret (i.e., they
mentioned their marriage to no one, and they refrained from public displays
of affection), the Navy discovered the information through an anonymous
tip and discharged Clark for violating the anti-fraternization policy and the
policy banning homosexual activity. He has not been able to find
employment since his discharge.
Clark seeks to challenge the Navy's regulations on due process grounds.
What arguments could you make in his favor? What arguments do you
anticipate the government making in reply?

Answer to Exercise 9-7

Issue/fact Ladder
Answer in IRAC
Issue The issue is whether Clark was deprived of liberty when he was
forbidden to (1) fraternize with whom he wanted, and (2) marry
and engage in sexual expression with whom he desired.
Rule The Due Process Clauses of the Fifth Amendment forbids the
government from depriving an individual's life, liberty, or
property without due process of law. Whether the government
has denied an individual his liberty depends on whether the
government has interfered with a fundamental right. Whether a
right is fundamental depends, to a great extent, on the Court's
interpretation. Some justices view only those rights enumerated
in the Constitution to be fundamental (the textual approach),
while others find rights to be fundamental if they are found
within a collective, holistic reading of the Constitution (the
penumbra approach).
Application Clark will argue that freedom to associate, marry, and express
Main himself sexually are all fundamental liberties protected by the
Argument Due Process Clause. First, the right to associate is guaranteed in
the First Amendment and is, therefore, fundamental because it is
guaranteed by the Constitution. Second, under the penumbra
approach, Clark will argue that the Navy, a governmental body,
is forbidden from denying him such liberties. Clark will argue
that privacy is a fundamental right in that the right to privacy can
be inferred from a broad, holistic reading of the Constitution.
The Court has found that this fundamental privacy right protects
citizens from government interference with such things as
marriage, procreation, and family. This case is no different from
the others because it, too, involves interference with Clark's
privacy to choose with whom he associates and whom he
marries. In order for the Navy's regulation to be valid, it must
pass the strict scrutiny test.
It will be difficult for the Navy to prove that it has a
compelling interest in denying Clark his right to engage in
homosexual activity or fraternize with Rodriguez and marry
him, especially when none of these matters impacted his job
performance. Further, Hawaii recognized the marriage and
hence state law, which the government cannot arbitrarily
ignore, is protecting the right. Further, Clark will argue that
even if the Navy has somewhat of an interest in preventing
fraternizing and homosexual activity within it, the policies
completely banning both are neither substantially effective
nor the least onerous means to meet those ends. Clark will
assert that the Navy's end could be met in a less restrictive
way, such as a policy against both activities while on the job
and not “across the board.” As it is, the policy is both over-
inclusive (not all homosexuals are a job risk) and under-
inclusive (many heterosexuals are a job risk).
Application The Navy will argue that its policies against fraternizing and
Opposing homosexual activity do not interfere with a fundamental right
Argument and, therefore, do not violate due process. First, the Navy can
argue that the rights to engage in homosexual activity and marry
Rodriguez are not fundamental because neither can be found in
the Constitution (the textual approach). Even if they were
 considered to fall within the “penumbra of privacy,” the Court
has limited its protections to areas concerning traditional family
values. In other words, the Court has protected marriage,
procreation, and family, but only within the bonds of a
heterosexual relationship. Thus, the right to engage in a
homosexual relationship would be distinguishable from other
cases dealing with marriage, procreation, and family.
Finally, not only is the right not fundamental, it is also
merely economic in nature. Here, Clark is being affected
economically. Economic rights are not afforded the same
protections as fundamental rights. The Navy will have to
prove only that its regulation banning fraternization is
rationally related to a legitimate government end. The Navy
will argue that it has a valid interest in banning
fraternization and homosexual activity. It will argue that it
has a grave interest in preventing problems arising from
emotional and sexual attachments within its unique
structure, which mandates that members of the same sex
remain together in close quarters for long periods of time.
Further, the Navy will argue that fraternizing leads to
favoritism, which is detrimental to order, even in private
businesses. The Navy will argue that defending the country
is, at the very least, a valid interest, which permits it to place
these policies in effect.
Conclusion The Supreme Court will probably find for the government.
Although Clark has valid rebuttal arguments to the Navy's claims
(Hawaii recognized his marriage and his case differs from
previous ones involving homosexual unions), and this is more
than interference with a mere economic right (the Navy lured
Clark and contributed to his super-specialization), the current
conservative Court will probably find in favor of the Navy. The
Court has been reluctant to extend fundamental rights beyond
those either enumerated in the Constitution or already held as
such (e.g., contraception, abortion, sterilization, heterosexual
marriage, living with relatives, child rearing, and education).

Endnotes
1. ©1993 Cathaleen A. Roach. Used with permission.
 2. This problem and answer are based on Houston Dairy, Inc. v. John
Hancock Mutual Life Insurance Co., 643 F.2d 1185 (5th Cir. 1981).
3. Daniel Desario, Cynthia Lee, Alexander Shapiro, and Johnathan Tyler,
(Brett Harris, Ed.), Blond's Essay Series (1992). Our issue fact charts are
modeled from those found in Blond's Essay Series.
4. © 1993 Cathaleen A. Roach. Used with permission. Problem and
answer based on People v. Harrison, 10 Ill. App. 3d 158, 294 N.E.2d 1031
(1st Dist. 1978).
 Chapter 10

Time Management

Surviving in law school is an art, not a science. There is no “one way to

succeed.” Because law school has a strong competitive element, students
are sometimes concerned that they are not doing enough or studying
correctly based on what another student is doing. Do not let the anxiety of
others rub off on you. Don't worry about other students. This is your money,
your education, and your career. The best way to ensure success is for you
to find what works best for you and then just do it.
 What Works for You?
Referring back to our travel analogy, when you decide what trip you are
going to take, you have to know yourself and what works for you. For
example, do you want to cruise or fly? Do you prefer a warm climate or a
cool one? Do you want to go out of the country or not? You must answer
each question because each journey requires a different type of preparation.
Analogously, you have to decide how, when, and where you study best in
order to make the best use of your time while in law school.
 How Do You Study?
College and law school differ greatly. In college, it was possible to pull
an all nighter and perform successfully, especially when the exam required
you to regurgitate memorized information. That approach will not work in
law school, because law school requires you to engage in problem solving,
rather than just memorization; therefore, overloading your mind with a
million facts will not ensure your success in law school. Although law
school requires thinking that is different from college, you can reflect on
what study mode worked best in college when deciding how to study in law
school. Are you a visual learner who learns best by looking at graphs and
charts? Are you an independent thinker who prefers to work alone in a quiet
environment, or do you prefer to work in study groups? Are you a kinetic
learner who needs to practice to learn?1
 When Do You Study Best?
Think back to college. Did you function better at night or in the morning?
Do you find yourself up and about at 6:00 a.m. even on a Saturday? Does a
boost of energy hit you in the afternoon at around 3:00 p.m.? Before setting
up a tentative study schedule, it helps to know when you are most alert.
Also know that most law schools will schedule classes for full-time day
students throughout the day; therefore, you may have anywhere from an
hour to three hours between classes. See the sample first year class
schedule.

Sample First Year Class Schedule

Day Division Section A

Note from this schedule that the students start each day at 9:00 a.m., and
most days classes do not end until after 3:00 p.m. Although they will spend
over six hours at school each day, they are only in class for less than three
hours! How they use the remaining time is up to them. Do you want to allot
time for reading and reviewing before class or in between classes? Do you
prefer to spend that time running errands and studying either early in the
morning or in the evening? This is an important consideration when
creating a study schedule.
 Where Do You Study Best?
Do you have to treat law school like a job (i.e., 9:00 a.m. to 6:00 p.m.)
because of your other obligations? Do you require an environment of
absolute silence that only a good library can provide? Do you prefer to
study at home curled up on the sofa? Do you find it impossible to study
without some background music? These are some things you should
consider in determining where you want to do most of your studying. Some
people find they cannot study at home. They may become consumed with
“other things,” such as cleaning or preparing dinner or everything under the
sun (including organizing the sock drawer). All these things distract a
student from studying. Some individuals are the complete opposite. They
cannot take the silence of the library and must go home to study.
You should also consider whether you prefer to study immediately after
class or whether you need some “down time” before diving into work. Do
not feel pressured by other students who may immediately flock to the
library after class. If you function best by allowing your brain to relax, then
do so. Remember this is your education, and, to get the best return, you
need to do what works for you.
 Organizing Your Study Schedule
Once you decide what works for you, you need to organize your time.
You should start by completing two different schedules: a semester
schedule and a weekly schedule. The semester schedule will help you set
aside blocks of time for working on larger projects, such as legal writing
assignments, outlining, and practice exams. The weekly schedule will help
you keep track of your day-to-day activities and daily reading assignments.

Semester Schedule
First, write down a list of what you need to accomplish. The focus here is
on long-time goals and projects. This might include the dates of your finals
and any mid-term exams, outlines for your courses, and due dates of legal
writing papers and other written class assignments. Once you compile a list,
you can mark due dates and goal dates for completing these assignments on
a monthly calendar. Next, you should work backward, estimating how
much time you need to spend on each project. For example, if you have a
paper due in legal writing on the 15th, you might want to have a final draft
done by 12th and the first draft done by the 8th. Knowing when you need to
have the first draft done, you can make daily and weekly schedules to
accomplish this goal. Use this same technique with exams. For example, if
you have an exam on Tuesday, December 12, you might want to work
backward from that date, planning how you will spend each day studying.
The day before the exam, you may want to do nothing but practice exams.
The day before that, you might spend memorizing the rules for that class.
Before you memorize anything, you might want to finish your outlining and
flowcharting. A sample semester schedule might look like the chart on page
136.

TIP: CAVEAT—This is merely a sample schedule. Depending on your

own needs, you may need to schedule more time for memorizing and less
time for outlining and/or flowcharting. Remember the key is to create a
schedule to help you get organized, but recognize that you may have to
modify the schedule as you go along.
 To schedule time for outlining and flowcharting, you may need to think
of your long-term goals. You might decide that mid-way through the
semester, you need to begin working on your outlines. One option is to
schedule several hours every weekend to work on your outlines. If you
begin this schedule the first weekend in October and have four outlines to
complete, you could have all of your outlines started by November. Then
you can spend the remaining weekends finishing up your outlines, while
you spend your study time during the week preparing for class. If you stick
to this schedule, you can start doing practice exams during Thanksgiving
break.

Sample Semester Schedule

Weekly Schedule
First, start by blocking off non-study time, such as commute time from
home to school, meals (breakfast, lunch, and dinner), religious and/or
family obligations. Then you want to make a list of your study goals for the
week. Remember: you want to organize in a way that works for you. You
may make a new list every day or every week, or you may put the list in
your daily planner or calendar. Either way, by writing things down, you
remember to do them. Once you complete a task, you can cross it off the list
and take pride in your accomplishment. Also remember: you must prioritize
your studying. For example, if you have Torts in the morning and Civil
Procedure in the afternoon, read and brief for Torts before studying for
Civil Procedure.
We suggest you begin by allotting three hours of study for each hour you
spend in class. This includes reading for class, as well as reviewing your
notes afterwards. Please note that because of the length, density, and
language of some older cases, it may take longer to read and prepare for
classes. (For more on reading in law school see Chapter 2.) With that in
mind, make sure that you take advantage of every hour and manage your
time effectively. This means not only devoting time to study, but also
leaving time for yourself. Using the class schedule outlined earlier in this
chapter, two typical study schedules of law students follow:

Study Schedule A
 As you can see from Study Schedule A, this person gets an early start to
her day and is done studying by 7:00 p.m. She can spend the rest of her
evening relaxing by herself or with friends or family. This particular
schedule might work well for a typical “morning person” or someone who
cannot study at home. This person can use the time in between classes and
after classes to go to the library and study. You will also note that this
schedule does not include weekends. This may be used for the student who
wants to accomplish his or her reading and briefing during the week and
use the weekends to accomplish larger projects, such as outlining and Legal
Writing papers.

Study Schedule B
 As you can see from Study Schedule B, this person, although also
starting classes at 9:00 a.m., prefers to study later in the day, both after class
and then later after dinner until 11:00 p.m. This particular schedule might
work well for a typical “night person” or someone who prefers to study at
home because this person can go home immediately after classes to study.
Whichever schedule you prefer, or even if you choose to mix the two,
you need to make the most of every day.
 Using Technology to Help with Scheduling
In doing what works best for you, you need to use all of your resources to
make them work for you too. We suggest that you use technology to help
you create and keep to a schedule.
If you are like most students, you probably have some form of a “smart”
phone, like one using Microsoft Outlook, or a Blackberry, or an iPhone. If
you do, consider using the calendar on your phone to include exam dates,
paper deadlines, and set reminders. This can be helpful if you tend to
procrastinate and/or get nervous if you realize you only have a couple of
days left before a paper is due.
You might also want to consider using a spreadsheet program, such as
Microsoft Excel, to plot out your weekly calendar. If you are very detailed
and organized like us, you will find it really fun to see how much time it
takes to shower or get dressed, and commute to school, and how you can
find time to study when you think you are busy. Having the schedule in a
computer program also allows you to modify it from week to week if you
are working on long-term projects, such as papers or outlines. Caveat: Don't
spend so much time editing your schedule that you don't get any studying
done at all!
Finally, you can also use calendar programs that come with your email
software. Email programs like Gmail and Yahoo offer free online calendars.
You can share your calendar with your friends and some programs will send
your reminders to your email address or your phone. This will allow you to
stay on track with what you planned to accomplish. Whether you decide to
get a good old-fashioned paper monthly calendar or state-of-the-art phone
with all of the latest gadgets, explore the different calendar options and find
a system that works for you.
 Scheduling Tips for Part-Time Students
If you are a part-time student, either working during the day and taking
classes at night, or taking care of a family or other needs and taking a
lighter load of classes, you might find it more difficult to find time to study.
We suggest you try to find time where you think you don't have it by trying
the following. First, you can study on your commute to school or work (this
is a great excuse to give the car a rest and take public transportation). You
can use this time to read for class, review your notes from the previous
week, or work on problems or practice exams. Alternatively, if you must
drive, consider listening to tapes in the car. You can either tape your classes
(get your Professors' permission first) or make your own review tapes when
you finish each section. This will help you memorize the law and review
what you have already learned. Second, you can set aside blocks of time to
study in the evening after class or on the weekend. Remember: you want to
be sure to set aside time for family and friends so that they don't feel
neglected. Finally, consider using vacation time to complete larger projects,
such as outlines, legal writing papers, and studying for finals. Taking a
vacation day once or twice a semester may give you a much needed
reprieve from work and other obligations to help you focus on your studies.
 Setting Realistic Goals
Have you ever taken a trip somewhere and wanted to see everything;
even though you knew it was impossible, you tried anyway. You think that
if you are efficient, you'll be able to see every sight. You set a strict
schedule, and when you are not able to see the fourth item on your list of
twenty, you get frustrated and end up not seeing anything else. Creating a
schedule for studying in law school can be quite similar. Often times,
students set unrealistic goals, and when they cannot reach them, they
become frustrated and adopt an attitude of defeat and decide that they
cannot possibly succeed. To prevent this, think realistically. Realize that life
sometimes gets in the way of our accomplishments. (For more on this, see
Chapter 10.)
Although it will be important to stick to your schedule as much as
possible, realize that you might need to change the schedule if something
unexpected happens. If you find that it takes you longer to do the required
reading for class, try to re-do your schedule and give yourself more time. If
an old friend comes in from out of town and you find that you have lost an
entire Saturday afternoon scheduled for studying, don't worry. Just realize
that you have to make up for it on Sunday. Also, if you find that it will take
you more than one weekend to complete your Constitutional Law outline,
relax. Plan on working an extra hour or so every other night to finish it, and
start working on the next one.
Finally, don't forget to schedule time for yourself. Although law school
will be a full-time job (if you are a full-time student), you must make sure
to take care of yourself. Make sure to exercise, eat right, and do a least one
fun thing every week. Once you accomplish something, treat yourself. If
you finish your Legal Writing paper a couple of hours earlier than you
planned, go to a movie. If you set a schedule and stick to it for a week or
more, go out and have dinner with your friends. This will help you
appreciate the work you have put into law school and allow you to spend
time with friends and family. Remember that a positive attitude may be the
real key to success.

Endnote
1. For more information on different learning styles, see Lynn Murray
Willeford, What's your Style? NEW AGE JOURNAL, September/October
1993 at 114.
 Chapter 11

Additional Strategies for Success

Unforeseen trouble is a fact of life. Just as one doesn't plan on sickness or

a lost wallet, one doesn't plan for personal calamity in the midst of law
school. Nonetheless, it happens. Whether it is a minor inconvenience or a
major dilemma, you have to deal with the situation, or the problem will
escalate. Regaining one's balance after a minor inconvenience can be quite
irksome, but a major catastrophe can be devastating; certainly we all have
had trouble arise at one time or another that warranted taking a few hours, a
few days, or even a few weeks from school or work. This chapter provides
vital information for dealing with inconveniences in law school; consider it
the concierge at the hotel during your travels, and refer to it when you need
help with major problems or minor glitches.
 What to Do When Life Gets in the Way of Law
School
Law school does not stop when life gets in its way. Unfortunate things
happen at the most inconvenient times: babysitters cancel, family members
become ill, car accidents occur, thieves burglarize homes. Regardless of the
problem, you need to devise a plan of action to resolve it. You are in a
particularly difficult position if the resolution requires missing class or
prevents you from finishing an assignment. Although not every problem
lends itself to a quick fix, an immediate, thorough plan of action will serve
you well in dealing with both the matter at hand and your assignments. The
following action plan will get you through the trials of life in the midst of
law school: (1) assess the situation, (2) contact school officials and review
your options, (3) deal with the problem, and (4) get back to work.
First, assess the situation to define the problem and determine its severity.
Is the problem sufficiently severe to demand months or years to solve? For
example, are you coping with the death or serious illness of a close friend
or family member? Has your spouse lost his or her job? Has your child care
provider left town on a family emergency? You need to consider how long
it will take to deal with the problem. A week or more, or just a couple of
days?
After approximating how much time you will need to deal with the
situation, go for help and examine your options. The Dean of Students or
Student Affairs is the best starting point in determining your options. If this
is a very serious problem and you need to drop a class or take an
Incomplete, you must go through the proper channels to do so; see the Dean
of Students to find out what those channels are. We cannot overemphasize
the importance of informing school officials of your situation. Even if you
think yours is a minor problem that you can put off and handle in a couple
of days, it is better to be safe than sorry. Far too many students believe that
they can tough it out and choose “just to get through” a situation rather than
investigate other options, and too often, this approach yields unsuccessful
results. Take finals, for example. Even in the most dire circumstance, it is
impossible for the administration to undo a poor test grade. On the other
hand, students who have informed the school of potential problems early
are given greater consideration in times of need. By talking with school
officials, you also determine which options are available. If you need to
take a week off from school, administrators can inform your professors and
sometimes obtain extensions on assignments. They can also refer you to
services, counseling or otherwise, if necessary. Either way, it is best to
know what's available should a need arise.
Next, you must take time to confront the situation. Law school requires
100% of your time. Many students find preparing for class the most time
consuming aspect of law school; in fact, students often seek counseling for
time management problems (See Chapter 9 on time management). Most
law schools prohibit students from working during their first year because
of the intense workload.1 If outside matters suddenly demand your time,
consider whether you have the time necessary to successfully continue with
law school. When a major life crisis occurs, it's best to take a time-out from
law school; a few days organizing and dealing with the problem, whether it
is finding a new babysitter or visiting a loved one in the hospital, can save a
lot of trouble down the road. Only you can decide whether you are willing
to miss a couple of days of classes or more (after even a few days of law
school, you will realize the importance of class discussion); however, taking
a few days to focus on and deal with your situation may help you put your
problem behind you, or at least get it under control, so that you can move
on and get down to the business of law school.
Further, whether you decide you need to miss only a couple of classes or
a couple of weeks of classes, be sure to explain your situation to school
officials and family members. Certainly, everyone needs not know every
little detail about all your problems, but when people know that you have a
difficult situation on your hands, they can be supportive. It is easier to ask
for help (in the form of taping classes and/or borrowing notes) when the
reason is revealed. If you find yourself in trouble or need some help during
law school, the following section will direct you to those who can provide
the assistance you need to help you get to the final stage: back to work.
 Where to Go for Help
Academic Support/Academic Assistance/Academic Achievement
Office
This office provides services such as peer mentoring and classes and
seminars on study skills, outlining, exam preparation, and time
management. This office may be staffed by a full-time or an adjunct
professor and/or student teaching assistants. In some schools, the Dean of
Students may provide these services. This office is usually a fine resource
for borrowing commercial study guides and practice manuals and for
obtaining helpful tips on dealing with the rigors of law school.

Admissions Office
This office handles recruitment, selection, and admission of applicants
for the law school. Some admissions officers are involved in other aspects
of the law school from advising special committees to helping students with
academic issues or handling financial aid.

Career Center
This office provides counseling for current students and alumni seeking
employment. Often, the Career Center conducts workshops on resume
writing, interviewing, and networking. Because many large law firms
participate in on-campus interviewing programs, you may have an
opportunity to find a job by interviewing on site. The most prestigious firms
recruit only from the top 10–20% of the class and usually require recruits to
be members of an academic honor society, such as the Law Review or Moot
Court. By definition, only a small number of students reach the top ten
percent of the class. Although the Career Center devotes considerable time
to the on-campus interviewing program, this does not mean it neglects 90%
of the student body. Indeed, many smaller employers, government agencies,
and nontraditional firms use law school career centers to attract qualified
employees. It makes sense to define and assess your employment goals and
schedule an appointment with a career services counselor who can get you
started on your job search.
Counseling Center
Some universities or colleges have a separate office for mental health
services. These centers provide services to enhance students' skills and
attitudes in adjusting to law school, ways to handle stress, and methods of
relating to new people and experiences in law school. Of course, students
are always welcome to visit the counseling center for personal problems
outside of school. At the counseling center, students can meet and speak
with trained psychologists, social workers, and/or staff psychiatrists who
can discuss the problem or refer students to outside counselors if necessary.
Many law students are reluctant to use counseling services. Many believe
that the isolation, dissatisfaction, and depression brought on by the
pressures of law school will “blow over” on their own. Numerous articles
have been written on the topic of law school stress and its devastating
effects on one's sense of self (see Chapter 1 for more information). If you
experience difficulty dealing with law school pressure, take the time to give
the office an opportunity to help. The difference in a student's attitude is
amazing when he discovers that he is not alone, and a good attitude may be
the best defense against law school burnout.

Dean of Academic Services

This office provides a variety of services, from advising students on
academic or personal problems to providing career services. This office
sometimes provides services for students in need of academic support or
special accommodations in their course work. In a small school, the Dean
of Students, the Office of Disability Services, and/or the Career Center may
provide these services.

Dean of Students/Student Services

This office addresses student quality of life issues. This is the office that
students generally contact when an emergency arises, when they struggle
with courses, when they need referral services, or when they seek
information about law school organizations or departments. This office acts
as a liaison between students and the rest of the school. Make a point of
using it.

Disability Services
Many larger universities and colleges will have separate offices for
students with disabilities. In smaller law schools, students will generally
find that these services are handled through the Dean of Students or Student
Affairs offices. To receive services, students must file an application
through one of these offices and then a determination as to accommodations
is made based upon the application and supporting documents. The goal of
this office is to allow students with disabilities to become as self-sufficient
as possible and provide services to enhance their learning and integration
into the school.
If you've been diagnosed with a learning disability, make sure that your
school's administration receives all necessary documentation and
understands what you need in terms of accommodation. If you suspect that
you have a learning disability, obtaining testing is in your best interest.
Although it may be expensive, it's worth inquiring into the cost and
procedure. Your success in law school should not be hindered by something
that can be controlled, alleviated, or accommodated. By overcoming this
obstacle, you may find success much more easily attainable.

Financial Aid Office

This office provides counselors who assist students who are in need of
financial aid. They assist with scholarships, grants, and loans. In most
instances, students will have to apply for financial aid through this office
before school starts. In some schools, the admissions office also handles
students' financial needs.
If, during the course of law school, you find yourself in need of an
emergency loan, do not hesitate to contact the Financial Aid Office or the
Dean of Students. Although they are not in the business of giving away
handouts, and payment usually is not deferred until graduation, an
emergency loan will help get you out of immediate trouble and let you get
on with school.

Registrar
This office is charged with assisting students in registering for classes,
withdrawing from classes, taking leaves of absences, and obtaining
transcripts for official use. The registrar maintains official student records,
and this is your first stop in updating your address and phone number.

Student Affairs
 Generally, this office is closely connected to student organizations and
student events at the law school. This office also handles counseling for
students if not offered by the health services department. This office may
also house the Dean of Students if he or she does not maintain a separate
office.

Website
Virtually all law schools have websites that allow students easy access to
information about services or directions on finding additional information
about different offices in the law school, including e-mail addresses for
faculty and staff. Some schools have tips for handling stress, time
management, and exam preparation available online. Also, most websites
provide links to other websites for valuable information about course
materials, legal research, or law school in general. Plus, all this information
is accessible from home, so you don't have to get dressed or wait in line for
an answer.
 What's the Problem?
Refer to the following for at-a-glance assistance in solving a few typical
and not-so typical problems that occur both before and during law school.

Before Law School

I think I did poorly on my LSAT.
Law schools weigh LSAT scores heavily, mainly as a way of “weeding
out” students that they do not believe will succeed in law school. You
must look at your LSAT score relative to the other applicants. What is
the mean and median LSAT of the school you have applied to? If, after
looking at this data, you still feel that your LSAT is too low, then you
have two options: (1) take the test again, or (2) live with your score. If
you opt for the former, realize that different schools view multiple
scores differently. First, all schools will see all of your scores. Some
schools will average multiple scores, and others will evaluate your
application based on the highest score. Therefore, most schools
recommend you take the test only once. However, if you were ill, or
ill-prepared when you took the LSAT, and believe you can do
significantly better, you should consider re-taking the test. Keep in
mind that admission committees consider college GPA, work
experience, and the personal statement, among other factors, in
evaluating candidates.2 A significantly low score, however, may hinder
your chances of admission, however great your “whole package” is.
Look to the data provided in the application materials, and consult
with an admissions counselor at the school(s) to which you intend to
apply.
My college GPA and/or LSAT score are significantly lower than the median
at my first choice school.
Although committees consider more than grades and LSAT scores,
outside factors are unlikely to make up for substandard performance in
college and on the LSAT. Be realistic; use a school's admissions profile
as a gauge, not a discouragement. Again, consult with an admissions
counselor at each school; they are in the best position to advise on the
likelihood of admission. In most cases, they will be straightforward
about your chances and will not fill you with false hope.
I was “wait listed” at my number one choice and accepted at my number
two choice.
It's best not to accept admission to a school until you're positive about
committing. Contact an admissions counselor at each school and let
him or her know your situation; be honest with both about your
intentions. Defer your acceptance decision as long as possible. If you
find that your second choice school simply will not wait any longer
and you still haven't heard from your first choice school, accept your
second choice. Don't take a chance that you'll be accepted at your first
choice school at the eleventh hour. You may lose deposit money, but
you can withdraw from your second choice if your first choice comes
through; if it doesn't, at least you're still going to law school, albeit
elsewhere.
My financial aid doesn't cover all of my expenses.
If you find yourself in this precarious position, see a financial aid
officer; he or she will know whether funds are available for additional
loans and how to get them. You may have to work with what you've
got; for instance, you may have to take a weekend job, or hunt down a
roommate, or most likely take a personal loan. If you are resourceful,
you may be able to secure a scholarship not available through school,
such as one based on ethnic background. Depending on how short of
cash you are, it may be best to postpone law school and work until you
can afford at least your expenses while in school. Remember, interest
piles up over three or four years, so borrow only what you need. It's
best to pay off consumer debt prior to starting school; the last thing a
law student needs is a credit card statement that won't shrink.
The bookstore doesn't have the books I need for class.
Although it should never be a problem, sometimes law texts sell out.
Your best bet when this happens is to check out another law school;
although different schools use different books, your chances of finding
the Torts book you need is better at another law school than at Borders.
You can also try an online service, such as Amazon.com (yes, it does
carry many legal textbooks!) or LawBooks.com. Many areas have
local bookstores that carry or even specialize in legal textbooks; these
are logically (and conveniently) close to law schools. Another option
is to check the library's reserve desk. Most professors will put both
required and recommended books on reserve for student use in case of
 an emergency. Your last resort is to wait until another order comes in,
which can take over a week; in the meantime, become friends with
someone who has your book and offer to study with him/her.
I can't afford to buy all of the books I need for class.
The best way to avoid this pitfall is to prepare for the inevitable. If
you're working through summer, set aside a hundred dollars per pay
period for books; even used books are costly. If you still find yourself
without cash at hand, see a financial aid officer; he or she can help you
obtain an additional loan for expenses. If additional loans are
unavailable, you may have to resort to credit. Your only other option is
to buy used books from second or third year students; be wary of
outdated editions.

During Law School

The First Few Weeks

I don't have any friends in law school.
Your law school classmates will be your colleagues one day.
Colleagues will be in a position to refer clients to you, recommend you
for a job, and offer networking opportunities. It is, therefore, crucial
that you take a break from books and mingle with classmates. It is also
important to build a sense of community and a support system. If
you're shy and have a hard time meeting people, consider joining a
student organization. Organizations provide companionship and moral
support. Additionally, some organizations have national ties and may
offer their own networking opportunities. Remember: it's your job to
find employment after graduation, not the Career Center's. Start
considering which law topics are interesting and meet people in those
fields.
I want to form a study group.
The best starting point is the most obvious: look to your classmates.
Ask someone you feel comfortable talking to whether he/she is
interested in forming a study group. The Academic Support Office, the
Dean of Students, or even the Student Affairs office may be able to
refer you to other students or student groups interested in forming a
study group. A caveat: although study groups can be valuable in the
learning process by providing support, discipline, and feedback, they
 also can be destructive and counterproductive if not organized
correctly. Three is a magic number; groups of more than three students
tend to be less efficient and less thorough because individual members
do not get the opportunity to talk out their thoughts. Also, study groups
of more than three people lend themselves to developing cliques or
alliances. Members should not only be friends, but should also balance
each other's strengths and weaknesses. To ensure efficiency, study
groups should agree on ground rules and set a predetermined agenda.
The key to learning is the process of thinking and reasoning; the study
group should never substitute for individual understanding (for
example, delegating outlining certain courses to one member). The
group should also constantly evaluate itself to determine efficiency and
effectiveness; if it is not accomplishing goals, the best solution is
probably to dissolve.
I'm a non-traditional student, and I'm experiencing a problem adjusting to
law school.
A non-traditional law student is any student who does not fill the mold
of the typical full-time day division student coming straight from (or
not long after) college. The non-traditional student can be a student
from an ethnic or cultural minority group, an older student, or one who
is choosing law as a second career. Some are married or work full-time
and attend law school at night or part-time. Non-traditional students
face difficulties unique to their non-traditional status. For example,
juggling an existing career and/or raising a family while pursuing a
law degree place next-to-impossible demands on students. Also, non-
traditional students usually have been away from school for some time
and find the adjustment more difficult than expected. As with
traditional students, non-traditional students also feel isolated and
alone because they often feel unable to relate to traditional students. If
you are a non-traditional law student, develop a support group with
other law students like you. Several opportunities are available. First,
look to existing groups among your school's student organizations.
You may enhance your law school experience through contacts made
in organizations such as the Evening Student Bar Association, the
Women's Law Caucus, or one of the ethnic student groups. However, if
you find that no group meets your needs, consider starting one of your
own with a few current friends. A suggestion: don't waste time
complaining about law school and things that you cannot change (e.g.,
 finals at the end of the year with no midterms); rather, use the group to
discuss the pressures of law school, and share coping strategies. You
can also use the group to review practice exams before finals. For
more on practice exams see Chapter 8. You may also consider visiting
the Academic Support Office for help getting back on track with the
process of school, or see someone in the Counseling Center for help
dealing with your frustrations.

Preparing for Class

It takes me a long time to read the assigned cases, or I'm having trouble
getting through the required reading.
The Academic Support/Assistance Office can help you sort through
this dilemma. You have two possible issues. First, this may be an
environmental issue. Make sure you read in an environment and at a
time most conducive to learning. Focus on the material. If outside
thoughts interrupt you during your reading, jot them down on paper
and return to the task at hand; you can return to your thoughts after
reading. (For more on choosing a study environment, see Chapter 9.)
Second, this may be a comprehension issue. Reflect on what you aren't
grasping, and try to figure out why. Are you reading cases using
IRAC? (For more on reading cases, see Chapter 2.) Are you unfamiliar
with the legal vocabulary? (See Black's Law Dictionary and write
down any new words.) Are the concepts muddled? Although it may
sound counterproductive, try reading something else before reading
cases. Pick up a hornbook or commercial outline and review the topic
before reading the case; again, the Academic Support/Assistance
office can recommend a good source. This way, you have a basic
understanding of the rules before turning to specific cases. Although it
requires an extra step, this type of “contextual” reading eventually
increases your speed, as well as your understanding.
I'm confused, while everyone else seems to be “getting it.”
Isolation is a powerful feeling, but keep in mind that you are not alone.
Law school will be very difficult at first. Much has been written about
how isolating and psychologically taxing law school can be.3 Realize
that you are not the only one not “getting it.” The students who seem
to follow class discussion and are eager to participate are not
necessarily grasping the material better than anyone else and are not
 necessarily the ones who will earn As. In fact, many quiet students do
well on exams and many assertive students do poorly because they
don't see the subtleties. Remember: exams do not test verbal skills.
Practice exams will hone your writing ability.
I have no time for briefing cases; briefing seems to be a waste of time.
Briefing is the first step to understanding the process of “thinking like
a lawyer.” (See Chapter 2.) Briefing now will help you prepare
outlines for your exams. (See Chapter 5). Also, remember that briefing
will be hard at first, but with practice, you will begin to brief cases
quickly. Use IRAC, which replicates the exam process; in briefing and
on the exam, your task is to identify issues, recite rules, apply rules to
facts, and conclude. By briefing cases for class, you are honing your
exam skills. Seek assistance from the Academic Support/Assistance
Office or the Dean of Students, either of which can help you in
managing time and can recommend “contextual” reading aids.
Remember: certain cases in different courses take longer to brief than
others, so allot your time accordingly. You may spend three hours out
of class for every hour of class time in Civil Procedure, while you may
need only two hours for Torts. Set a regimen: spend one quarter of the
time reviewing a hornbook or study aid for context or your notes from
class to help connect the case to what you're about to read, one quarter
of the time reading cases, and half the time briefing.
I find my professor especially overbearing in class. As a result, I am
intimidated and silenced in the classroom, and am reluctant to contribute to
class discussion. I do not learn well in this environment.
Scare tactics are not effective means of promoting student learning.
Ask yourself whether the professor is unduly harsh with students, or
whether he expects precise and well thought out answers; in other
words, is the issue attitude or approach? If your professor is unduly
harsh or demeaning, see the Dean of Students; she may let him know
his students are not learning. However, if you find that he expects
precision, which is more likely the case, consult the Academic Support
office for tips on preparing better. Volunteer for questions you know
the answers to. Listen carefully; some students find that the same
answer that was wrong five minutes ago is suddenly right when
tendered at a different point in the analysis. Ask the professor
questions after class or during office hours. Although it is ultimately
your responsibility to deal with the classroom, realize that the majority
 of learning will actually take place outside class. Classroom
performance is not necessarily determinative of exam performance.
I'm not sure what constitutes plagiarism or collaboration in the law school
context.
Most students realize that representing someone else's work as their
own is plagiarism; however, students don't always recognize the many
forms plagiarism takes. Familiarize yourself with this topic by
consulting your student handbook, and ask your Legal Writing
professor when in doubt. The rule of three words states that if you use
more than three consecutive words verbatim, then you must attribute it
to the source. Many cases of students' citing lengthy passages without
proper attribution and improperly reading other students' drafts have
harsh results; however innocent, these and many variations may
violate the honor code. Make sure you know the particulars.
I am having a hard time with IRAC.
Your Legal Writing professor or Academic Support Office can help
identify which part of IRAC you don't understand and explain it. Of all
the parts of IRAC, students grapple with the application section most.
The following are the most common problems and ways to correct
them.

(1) Problem: The answer is conclusory without an analysis.

Solution: Do not state who wins and leave it at that. You must explain
why he/she wins. Correct this by using the word “because” as often as
possible in your answer (think of the reader as a two-year old
constantly asking “why?”).
(2) Problem: No specific facts are included in the answer.
Solution: Do not generalize; rather, use the specific facts given and
apply the law to them. As you go through the fact pattern, check off
the facts you use in the application. The reader should be able to
reconstruct the problem from the facts in your answer.
(3) Problem: The facts and the law are isolated, rather than integrated.
Solution: Structure your sentences using “This element is met or
satisfied” and the word “because.” Remember that you are matching
law, or elements of law, to facts. You should not have a single sentence
of pure law or pure fact; the two must be connected.
(4) Problem: The arguments are one-sided.
Solution: Include the opposing view, then your rebuttal to that view
(MOR—Main, Opposing and Rebuttal argument). See Chapter 2 and
Chapter 8 for some examples of IRAC with MOR.

I bombed my first Legal Writing assignment.

See your professor immediately to determine what areas need
improvement and how you can avoid those problems on future
assignments. If you have problems with grammar or organization, find
out if your school has a legal writing consultant or a writing center. If
so, use this service for help on improving your writing. Don't forget
that this is just one assignment and that you will have other chances to
improve your grade; look at it as a learning experience.
I understand the cases and follow class discussions, but I don't enjoy law
school. In fact, I despise going to class and find it hard to bring myself to do
the work.
Many students develop a sense of not belonging sometime during their
first year. For some, it coincides with a Legal Writing assignment, for
others, with the large amount of reading and rigorous class
discussions. Cope by venting to friends and family, or confide in a
professor or your advisor. Take a weekend off after a hectic schedule
and treat yourself like a human being. For some students, isolation is
long-term and haunting. Ask yourself, “If I were guaranteed all As this
semester, would I still want to leave?” If your answer is yes, seek out a
teacher or administrator, or discuss your feelings with the Dean of
Students or someone in the Counseling Center. You may have found
that this career path is not for you.

Mid-Semester
I don't have time for the things I used to enjoy.
This is perhaps the toughest aspect to deal with your first year, but as
you progress, you will find that law school demands more time than
you probably expected. Sacrifice is par for the course. Seek the
services of the Counseling Center for advice on dealing with the
feelings of being “trapped” in law school. Counseling can help you
regain your perspective and prevent you from getting so caught up in
school that you neglect your personal life. Take time out once in
 awhile, even just a day during the week, to see your friends and family,
go outside, and exercise. Law school is demanding, and the
Counseling Center can help you avoid letting it become a prison.
I need to start my outlines, but I don't know when or how to begin.
About five weeks into the semester, you should begin creating an
outline of all the material you have covered so far. You should look to
Academic Support professionals, second and third year students, and
the Internet for examples of student outlines. Remember that although
other student outlines and commercial outlines can be helpful, creating
your own outline is best. The purpose of the outline is to help you
understand difficult concepts, sort through them, and arrange them into
a logical, user-friendly format suited to your learning style. See
Chapter 5 for some examples and more information on how to create
an outline.
I want to drop a class or take an Incomplete.
Contact your Dean of Students or your Advisor, the same as in
undergrad. Either can advise you of your options, explain the
repercussions, and address your concerns. Be aware of withdrawal
deadlines at your school, as well as financial consequences.
I need to miss a week of school for a family emergency.
Contact the Dean of Students, who can assist you in obtaining
postponements on assignments if necessary. Also, be sure to contact
your professors; letting them know that you will not be in class and
obtaining your assignments demonstrates professionalism and shows
you care about your studies. Finally, before you leave, make sure a
fellow student you trust will be in class while you're not, and ask to
borrow his or her notes. You may also ask him or her to tape record the
class for you (make sure you get the professor's permission). If you are
straightforward about why you won't be in class, you're more likely to
receive a favorable response. If you don't know anyone well enough to
ask, contact your professors, then see them upon your return about any
questions you encountered on your own.
I am having personal problems that get in the way of academic
achievement.
See the Dean of Students, an Academic Support professional, or the
Counseling Center immediately. Too many students think that they can
shoulder the burden of personal problems on their own while getting
 the semester “over with.” Often, no matter how far out of your head
you believe the problem is, it stays and surfaces at the most
inopportune time. Schools do not change test times often, so resolve,
or at least, confront the problem before finals. Schools consider
options for a student who has encountered a truly traumatic event, but
even the most legitimate circumstance appears suspect if it surfaces at
the last minute. If you find yourself in a serious bind because you let
the problem go until finals and it escalates, see an administrator as
soon as possible. The Dean of Students may be able to have your exam
postponed or some other accommodation made, but you must disclose
your problem.
I'm having financial problems so severe I may be facing a desperate
situation soon.
If your law school is affiliated with a main university, the university
financial aid department may handle financial aid for all students. If
your law school is “stand-alone,” e.g., not affiliated with a university,
financial aid is handled internally. In either case, the Dean of Students
can help facilitate your aid, and in some instances, arrange for an
emergency loan.
I thought I could attend law school and work, but now I find that I can't do
both.
During the first year of school, full-time law students are prohibited
from working more than 20 hours a week and are strongly encouraged
not to work at all. If you must work to support yourself and/or pay for
law school, you may have to modify your plan. See the Dean of
Students or Academic Services to review your options. Many schools
offer part-time day and/or evening programs that might better
accommodate your needs. You may also explore cutting down on work
hours and increasing financial aid; should you reach this conclusion,
consult a financial aid officer. You may be better off extending the
amount of time to complete law school, rather than trying to work and
study and doing poorly at both.

Before Final Exams

I cannot take a final due to a family or personal emergency.
The Dean of Students may be able to postpone your exam or make
some other accommodation based on your needs and your situation.
 Notify him or her immediately. He or she will direct you from there.
I don't know if I've assembled the information correctly or if my “big
picture” is the right one.
Visit the Academic Support office. The process of putting all the parts
of a course together into one “big picture” is the best way to prepare
for the exam. Whether you put the course together by flowchart or by
outline is irrelevant; what matters is that you put the course together
yourself. The process mimics the one lawyers use in everyday practice.
A good synthesis: (1) defines and describes topics and subtopics; (2)
organizes material in a way that demonstrates how all the pieces fit
together; and (3) illustrates the meanings of topics and subtopics with
cases and hypotheticals. Focus on how well your outline/flowchart
organizes information in a way that describes the process of problem-
solving, not on whether the information is right or wrong.
My professor does not make practice exams available, so I have nothing to
use for preparation.
Many professors don't place practice exams on file for students. Some
give mid-term exams, either for credit or for practice. If your professor
makes any type of examination available, take advantage of the
opportunity, even if you don't feel prepared. The purpose of the
practice exam is to alleviate fear, as well as to review material.
Students who take practice exams, regardless of their scores, do better
overall on first semester finals than those who don't because they
eliminate the fear factor. If your professor does not offer a mid-term
exam, the Academic Support/Assistance office usually can help find a
question in a study aid or another professor's file and may even be
familiar with your professor's exam style. You can also look to the
Internet for sample exams. Several schools, including Harvard, post
old exams on their websites for student use. Ask your professor if she
would be willing to take a look at your answer to a sample question.
Most professors are happy to take the time, as long as they feel the
student is making an effort to learn about the law school process,
rather than just trying to get the answer.

During Final Exams

I am “blanking out” on the exam.
If you have prepared by outlining using the process-oriented approach
 and by taking practice exams, then you should have confidence going
into the exam that will act as a barrier to the “blank out” syndrome.
Before you begin reading the exam, jot down key concepts and terms
on a sheet of scratch paper or the inside cover of your bluebook to
ensure that you will not forget key terms and that you will have them
handy while reading the exam. If you find yourself panic-stricken, take
a few deep breaths and tell yourself that you will write one sentence on
the bluebook. Take a few more breaths and write another. If this
doesn't work, see the proctor about taking a five-minute breather. If
you find yourself in an impossible panic, ask the proctor to see the
Dean on duty. You won't get out of taking the exam, but the Dean on
duty may be able to calm you down and get you back on track and
may even arrange for extra time afterward to make up for what you
missed, depending on your school's exam policy.
I have a final and I'm sick.
Contact the Dean of Students immediately. Although you no doubt will
hear stories about previous students who took exams under extreme
circumstances (such as labor), you certainly should not risk a bad
grade by taking an exam when you're seriously ill. The Dean of
Students can arrange for a postponement or other accommodation.
NOTE: Your illness must be severe; you cannot postpone an exam
because your throat is sore.
I've gone through the exam and discovered facts I cannot link to a legal
issue, or I cannot spot a legal issue we spent much time on in class.
Go through each question line by line, searching for as many issues as
possible. If you discover facts you cannot link to a legal issue, go back
to the list of phrases on the inside cover of the bluebook. Are any
phrases unaccounted for? Do any of the facts trigger these issues? If
not, it may be a background fact. Do not obsess; move on, or you will
sacrifice completing other questions. It is better to finish the remaining
questions than to remain stuck on one fact. Although all professors do
not test all issues covered in class, most include the majority of topics.
Again, use your outline or flowchart or the inside cover of your
bluebook to check your progress. Do you notice a disparity in your
answers? For example, have you covered negligence in three separate
answers but have yet to mention intentional torts, despite having spent
three weeks on it in class? Quickly recheck your answers; could one of
your negligence responses actually have been an intentional torts
 question?
I know I bombed the first final.
Sometimes you believe you have bombed a final, when in actuality
you didn't (see Chapter 8). Going “back and forth” in your answer
doesn't mean you bombed. If you made good arguments for both sides,
then you probably have a good analysis. Wait for your grade before
you panic, because you can't do anything about it once you've taken
the final. If you turned in a blank bluebook, make an appointment with
the Dean of Students immediately. Put the test out of your mind and
move onto your next exam. Dwelling on how poorly you performed on
one exam will not help you on the remaining exams.

After Final Exams

What should I do if I am in academic jeopardy?
You should immediately see the Dean of Students or Academic
Services and the Academic Support or Academic Assistance person at
your school. The Dean of Students can let you know your options,
including the standards for probation and retention and what you must
do to raise your GPA. The Academic Support professional at your
school can help you improve your grades (e.g., individual tutoring,
counseling, or classes). For help on dealing with the emotional aspect
of academic jeopardy and keeping your perspective, the Counseling
Center is available. The worst thing to do in this situation is to take no
action at all.
I finished my first year of study but have not gotten a paid summer/part-
time legal job.
Not many first year students get paid legal jobs during their first
summer. Most law firms hire second year students. First year students
should contact the Career Center for opportunities in volunteer or
intern/extern programs. Although you will not be paid, you will have a
chance to network and prove yourself, possibly leading to a job later or
even earning academic credit. You can also contact professors, who
may need a summer research assistant. This way, you earn some
money while developing your research and writing skills.
How can I get a job if I am not in the top ten percent of my class?
Although the top ten percent presumably has greater opportunity to
find employment, the remaining ninety percent certainly are not out of
 the running. Many employers, especially smaller firms and companies,
hire from the pool of graduates outside the top ten. Significant
experience in a particular field as well as knowing more than one
language certainly tips the scale in your favor. Like law schools, the
majority of employers consider non-grade factors in evaluating
potential employees; therefore you should look into writing on to Law
Review, getting onto Moot Court, joining student organizations
dealing with areas of law in which you hope to practice, and/or getting
some practical experience while in law school through an intern or
extern program or the law school clinic.
I have heard about Law Review and Moot Court but don't know what they
are or how to get on. I don't even know if I qualify.
Law Review is a unique law school institution, and it is a prestigious
honor to be a member. Law Review publishes scholarly articles written
by professors and students. Each school has its own Law Review.
Students run Law Review, which means the students decide what to
publish. Students can get onto Law Review in one of two ways: “grade
on” and “write on.” Usually, Law Review automatically accepts the
top ten percent or so of the class. Many Law Reviews hold writing
competitions to allow other students to become members (hence the
term, “write on”). It is in every student's best interest to participate in
the contest; employers consider Law Review membership as evidence
of exceptional ability. Members are required to research and write a
scholarly article of their own. In the last year, members are eligible for
editorial positions. Moot Court is another important organization that
develops appellate advocacy skills. Although not as difficult to “get
on” as Law Review, it is nonetheless another prestigious honor society
to which a law student can belong. Moot Court members participate in
various competitions that involve writing a persuasive brief and
arguing the case before a group of judges. Moot Court holds
competitions for new members. Contact the Student Affairs office for
information on both of these organizations, or contact each office
directly. Remember, too, that there are many other worthwhile student
organizations besides Law Review and Moot Court, so don't limit
yourself to the two “big ones.”
By the time I graduate, I will have so much undergraduate and law school
debt that I will need to land a big firm job in order to pay for my education.
As law school tuition continues to rise, debt becomes a more pressing
 concern. Realize that big firm jobs that pay big money are very
difficult to get. In most cases, you must be in the top ten percent of
your class just to get an interview. Big firms also consider Law Review
and Moot Court experience, but this is not an option for everyone. A
financial aid advisor can suggest ways to structure your debt given
your realistic starting salary and help you determine the minimum to
borrow. The financial aid office will also have information on other
options, such as a loan forgiveness program for those who work in
public interest law (if your school has such a program).
I want to challenge a grade.
Schools have their own policies, but generally, you cannot challenge a
grade without an extraordinary circumstance, like bias or
miscalculation. If you have a unique grievance, see the Dean of
Students. Except for mathematical error, your grade will not be
changed. Once you receive a grade in a course (which will be a month
or longer after the exam), make an appointment to see the professor,
especially if you earned a C or below. Ask to see your exam
beforehand so you can be prepared with specific questions during your
appointment. Do not use the appointment time to argue your case. The
professor will not care whether you really know the material or
whether others spent less time and effort; grades depend on one thing:
the exam. Instead, use this as a learning opportunity to see where you
went wrong. Did you miss issues, articulate incorrect rules, or fail to
apply the rules to facts? Is your problem substantive (e.g., you did not
know the law), or is it process-oriented (your answer was not cohesive
but conclusory or misinformed)? Learn from your mistakes and move
on with your life (and law school).
I wasn't altogether truthful on my law school application.
Whether intentionally or not, you may have misreported or failed to
report vital information on your law school application. Do not
overlook this matter. See the Dean of Students immediately; although
she must report all mistakes, omissions, or violations of the honor code
to the Bar's character and fitness committee, she can help you address
any mistakes as soon as possible. If you fail to correct the mistake, the
Bar's character and fitness committee may exclude you from sitting for
the exam.
I am experiencing racial or sexual harassment either from a professor or a
peer.
Your law school should be sensitive to this situation, so you do not
have to tolerate harassment. Refer to the school handbook or bulletin
for the school's policy on harassment. The policy should spell out
specific steps to take to resolve harassment issues. If the school does
not have a policy, see the Dean of Students. If you are uncomfortable
addressing the situation through formal channels, speak to an
Academic Support Professional, counselor, or other trusted
administrator or professor for advice. They may be able to address
your concern without directly involving you.

Endnotes
1. The American Bar Association accreditation rules prohibit full-time
first year law students from working more than 20 hours per week.
2. The Official Guide to US Law Schools, Law Services (1998).
3. See e.g., Lani Guinier, Becoming Gentlemen: Women's Experiences At
One Ivy League Law School, 143 U. Pa. L. Rev. 1, 62 (1994). See also
generally, Alan A. Stone, Legal Education on the Couch, 85 Harv. L. Rev.
392 (1971).
 Chapter 12

Bridging the Gap as a 2L or 3L: What

Else Can I Expect in Law School?

Life after First Year—What Should I Expect

Next?
Life after your first year of law school should be similar to traveling after
you have read all of the travel books and talked to the travel agent and
booked your trip. Now it's time to board the plane or hop in the car and go!
You will have a lot of options, ranging from taking classes and working
over the summer, to getting involved in student organizations, local and
national bar associations, as well as clinics, journals or other opportunities
to gain real legal experience while in law school. So, you have to decide if
you want to take the standard tour with a tour guide, or grab a map and
make your way through the local neighborhoods on your own.
Every student in law school is faced with the choice about how involved
they want to become in their individual schools. Some students simply do
not have the time in their upper level years to spend on extra-curricular
activities, as they have to work to pay their bills. Others have more time to
spare or are specifically interested in one of the many programs that law
school has to offer. Getting involved in school activities is a great way to
get to know other students in your class while gaining exposure to the kind
of law you would eventually like to practice.
Generally speaking, your “extra-curricular” options can be divided into
two broad categories: academic and non-academic. There are things you
can do outside of the traditional classroom to gain credit. Other activities
will provide networking opportunities, as well as exposure to different
aspects of the law. Some examples of the types of academic and non-
 academic opportunities for upper-level law students include:
Academic Non-Academic

• Law Review • Student Organizations, such as the Women's Law

• Journals, such Caucus or the Black Law Student Association
as the Business • National Bar Associations, such as the American
Law Journal Bar Association
• Moot Court • Local Bar Associations, such as the DuPage
Society County Bar Association, or the Hispanic Lawyers
• Clinics Association of Illinois
• Externships or
Field Placements
• Guided
Research
Law school itself is a micro version of the legal field. Each association or
organization usually is geared towards a specific field or interest, and each
member is usually looking for a career in such a field. Exploring the
differences between each of the ways you can get involved is like exploring
the differences in the various practices of law. It might take a few tries to
find the perfect fit, but the information and knowledge you gain along the
way contributes to your experience as an attorney. We will start by defining
and explaining the academic opportunities and then move on to the non-
academic opportunities.
 Academic Opportunities
There are many ways to gain academic or course credit apart from sitting
in a traditional classroom. These include working on a law review or
journal, participating in the moot court society, working for a law school
clinic and a host of others. We will explain each one separately to help you
decide which one, if any, is right for you.
 Law Reviews and Journals
Law Review is a unique law school institution, and it is a prestigious
honor to be a member. Law Review publishes scholarly articles written by
professors and students. Each school has its own Law Review. Students run
Law Review, which means the students decide what to publish. Students
can gain the honor of being “on Law Review” in one of two ways: “grade
on” or “write on.” Usually, Law Review automatically accepts the top ten
percent of the class at the end of the first year of law school. Many Law
Reviews also hold writing competitions to allow other students to become
members (hence the term, “write on”). It is in every student's best interest to
participate in the contest; employers consider Law Review membership as
evidence of exceptional ability. Members are required to research and write
a scholarly article of their own. In the last year, members are eligible for
editorial positions and course credit, and sometimes tuition stipends.
Journals are similar to Law Review, in that they publish scholarly articles
written by professors and students. Most schools have a variety of journals,
each individually geared towards one specific type of the law. Journals also
have write-on competitions which determine the various members and
contributors. Similar to Law Review, journal membership is considered an
honor and is valued by employers as evidence of strong writing ability. If
you are interested in a specialized area of law, you should seek out schools
with journals in that area, such as Business and Commercial Law or Health
Law, so that you may have an opportunity to participate on the journal.
Also, some journal members may participate as editors and receive course
credit, and/or a tuition stipend. This varies from school to school.
 Moot Court
Moot Court is another important academic opportunity. To become a
member of the Moot Court Society, usually students will work in teams of
two to draft a brief of 30 or more pages regarding a case, and then argue for
one or both sides before a group a judges. The teams will advance until
usually only two teams remain in the competition. Those two teams will
argue for a final time and one will be declared the winner. The current
members of the Moot Court Society will pick the winners of the
competition, as well as others who drafted the “best brief” or made the
“best argument” and invite them to join.
Moot Court members participate in various local, regional, and national
competitions. Winning these competitions is not only good for the school's
reputation, but can help quickly move an ambitious student along in a field
of their interest. Each member will usually receive course credit as long as
they compete in a competition. If you have any interest in becoming a trial
attorney, or working in the public interest field, such as state's attorney's
office or the public defender, then you should seriously consider competing
for a spot on Moot Court. Some competitions for moot court can be geared
toward a specific field as well, with some focusing on international law or
criminal defense. Be sure you are applying to a moot court that interests
you, both in the actual trial and the aspects of law discussed and learned
through the trial or argument. The competition to make moot court at most
schools can be very intense, and usually those who participate want to
pursue that type of trial work as a full-time career.
Another aspect to consider for Law Review and the Journals, as well as
Moot Court is the time commitment required. Usually the time needed to
research and prepare a brief or scholarly article, as well as prepare for the
Moot Court competition is equivalent to that of a part-time job or an
additional course. Students on Moot Court and Law Review or a Journal are
expected to attend regular meetings, check in with their editors or coaches,
and, for Moot Court, practice their arguments often.
 Clinics
A clinic is a law office within a law school that handles real cases,
usually for low-income clients or not-for-profit organizations. Students may
have an opportunity to work in the clinic, either volunteering or for course
credit, under the direction of a law professor or an attorney who will
supervise their work. Most law schools have a variety of clinics that are
geared towards public interest, in a variety of fields, such as housing,
criminal appeals, immigration or the death penalty. The clinics usually have
a minimum required number of work hours per week, especially if the work
in the clinic earns course credit. Clinics often require that a student, or a
team of students, study and learn a case and take it on as their own. This
real-life exposure to clients and how the system works in that particular
field is what makes the clinic experience so invaluable. Plus, clinic
experience is a huge resume booster.
The time commitment may make the clinic feel like a part-time job or an
externship (see below); however, the experience a student can gain through
such an experience is well worth the time. A student must know his or her
own time restraints and be able to balance the hours the clinic requires and
the rest of their school load, as well as any part-time jobs they may have.
Having a passing interest in a field such as immigration will not be enough
to keep you invested in the clinic; you must be prepared to learn as much as
possible about a specific field.
 Externship/Field Placement
An externship or a field placement allows a student to work for a
government or not-for-profit agency, such as Legal Aid, under the
supervision of an attorney and receive course credit. Because the student
will receive credit, the student cannot also get paid for the work, and must
have a certain level of knowledge, usually evidenced by completion of a set
of required courses and/or number of hours completed. Most schools will
also require the student to complete a certain number of field hours for the
semester or term (usually 150–180 hours). The law school wants to ensure
that the student is learning valuable legal skills and not simply making
copies, so they will often require progress reports and supervision of an
attorney for all work completed. An externship is a wonderful way to learn
the ins and outs of the State's Attorney's Office, the Public Defender, or
Legal Aid while also getting course credit. This is a great opportunity for a
student to get a position to put on his or her resume and receive course
credit. Finally, many students may receive recommendations for permanent
positions after successful completion of an externship.
 Guided Research/Independent Study
Guided Research and Independent Study allows a student to research for
a professor and gain course credit. Usually with a guided research project
the professor will pick the topic and the student may locate cases or law
review articles and provide a synopsis of such, but may not do any
significant writing. Usually with an independent study the student will pick
the topic and research an area of law not currently being taught as a class
and complete a scholarly paper or article as a final project. Both options
allow the student to work under the direction of the professor and receive
guidance and support, as well as credit. The number of credit hours is
usually less for a guided research and the grade is typically pass or fail,
whereas the independent study is sometimes for more credit and the student
paper will be graded accordingly.
 Non-Academic Opportunities
There are many opportunities to learn more about the law or volunteer to
assist a particular cause or simply have fun. Law schools, like colleges have
numerous student organizations, as well as local and national bar
associations, which you may choose to join during your time in law school.
 Student Organizations
There are many different student organizations in every law school. All
law schools have some form of student government, such as a Student Bar
Association, and many have organizations aimed at different constituencies
and interest groups. For example, some groups are targeted towards a group
of students, such as the Women's Law Caucus or the Black Law Student
Association, and others are aimed at particular areas of law, such as the
Public Interest Law Association or the American Constitution Society.
There are even some legal fraternities, such as Phi Alpha Delta and Delta
Theta Phi. A list of some law school student organizations follows. Please
note that different schools will have different organizations.
Student Organizations
American Civil Liberties Union International Law Society
(ACLU)
American Constitution Society Intellectual Property
(ACS) Society
Amnesty International Justinian Society
Asian-Pacific American Law Student Latino/a Law Students
Association (APALSA) Association (LLSA)
LGBT Law Student Alliance
Black Law Student Association Law and Science Society
(BLSA)
Business Law Society Moot Court
Criminal Law Association Muslim Law Student
Association
Decalogue National Lawyers Guild
Delta Theta Phi Phi Alpha Delta (PAD)
Environmental Law Society Phi Delta Phi
Evening Law Student Society Public Interest Law
(ELSS) Association (PILA)
Federalist Society St. Thomas Moore
Society
Hellenic Law Society Student Bar Association
 (SBA)
Society for Immigration and Asylum Women's Bar Association
Law (SAIL)

Each group exists to meet the needs of its members by providing

mentoring, disseminating information of interest to the group, and hosting
programs and bringing in guest speakers on various topics. Some of these
student organizations have a national affiliate (such as the National Black
Law Student Association (NBLSA)) and some members may have the
opportunity to attend local, regional or national conferences for the group
and serve on those higher levels.
All of these organizations offer opportunities for students to get to know
other students outside of class, and opportunities to learn more about the
legal field or a particular area of law. All students should at least attend the
meetings or programs sponsored by student organizations, even if they are
not members. More than likely your student fees will support the student
organizations, so you are paying for these events and should take advantage
of them. If you are interested in a leadership position in law school, you
should look to the student organizations and decide which one is best for
you.

Tips for Finding the Right Organization for You

• Student Services. If you need guidance about these
organizations, seek out the Office of Student Affairs or the Dean
of Students, who usually oversees them. Sometimes the Dean can
give you a list of the student organizations available and answer
your questions about the different organizations. Usually, during
orientation or at the beginning of the year, there will be a fair or
open house for all student organizations.
• Talk to Other Students. This may seem like the most basic of
advice, but students are often intimidated by older classmates or
afraid to branch out. Go directly to the student organization
office(s) and talk to the students. Ask them any and all questions
about what their organization does, and how you can be involved.
Here you can find out if they sponsor several programs, bring in
guest speakers or offer mentors to first year students. Usually the
person in the office is an officer and will be excited about the
organization and eager to answer your questions.
 Local and National Bar Associations
Every major city or state has a bar association, and usually a young
members section or committee that students can join. Simple online
research will unearth such an association, which usually has a basic joining
fee in addition to annual fees. Sometimes there is a very small fee or no fee
at all for students. Once you are a member your level of involvement is up
to you, but such an involvement can really help you meet practicing
attorneys and other students who attend area law schools. Most bar
associations will host annual cocktail parties or receptions, in addition to
regular Continuing Legal Education (CLE) programs in which attorneys are
updated on the current status of the law. Some events are free and there are
fees for others, but the opportunity to meet practicing attorneys is
invaluable. These events are designed for students and young lawyers to
meet and network with other people in the field.
Whether you decide to “write-on” to a journal, participate in an
externship, or serve as president of the Student Bar Association, you should
seek opportunities to gain experience and network with your classmates
while in law school.
 Chapter 13

The Importance of Gaining Legal

Experience1

While law school professors stress the theory of the law and “thinking
like a lawyer,” employers value employees who have practical experience
and can “do” things, like prepare motions, handle court hearings and
execute discovery. The key, therefore, to landing a satisfying job after law
school, is to gain some practical experience while in law school. This
practical experience is similar to knowing enough about a city to conduct a
tour for visitors. If you only read about the city, you might not be able to
give the best tour and answer questions. However, if you visited multiple
times (e.g. gained experience) you could take on the most curious of
tourists. Your first opportunity to gain experience is the summer after your
first year.

Most law schools have a policy that first year full time students should not
work. In fact, the American Bar Association has a rule that full-time law
students cannot work more than 20 hours per week.

To find this first summer job, start early. Many legal employers begin
recruiting for the summer as early as January. Of course, there are a variety
of legal employers you might consider. Remember, the key is quality legal
experience that builds your resume and evidences your ability to “do” legal
tasks. We detail only a few of the many options you should consider.
 Externships, Clerkships and Other Legal Work
Externships—Why, When and Where
Most law schools have programs that can help you find an externship.
Visit your career office or externship office for more information. These
positions are often with judges or in public interest, but can serve as great
stepping stones into your legal career, and help you to decide what field you
are interested in while earning school credit. Many externship positions are
with government agencies that provide law students with great
opportunities to research, write and attend depositions and court hearings.
Keep in mind, however, that while the externship position may be
invaluable for learning and honing your skills, they are not paid positions.
However, in many cases, an externship only requires a minimum amount of
hours in terms of commitment, so you can certainly take time in the
summer to complete an externship while working.
 Judicial Clerkships
Many judges, both in the federal and state court systems, rely on law
clerks. Some hire full time attorneys as clerks, others hire law students.
Those who do hire law students often look to 2Ls. The process can be very
competitive. That being said, a judicial clerkship is invaluable. You will
learn practical aspects about the system and see it at work on a daily basis.
You will research and write memos relating to current events. And if you do
a wonderful job, you may have a judge who can serve as a reference.
 Research Assistant
Many professors hire research assistants to aid and assist them in their
own academic pursuits. Professors can seek out such an assistant to help
them in researching a project, editing a law review article, or working on a
new class or research project. Again, the opportunity to research and write
is valuable. Typically, assistants are hired for a semester, and have a
minimum of required hours they must complete a week. Working closely
with a professor teaches a student how to engage in in-depth legal analysis
and critical discourse about an emerging issue or issues in the law. The
professor can also serve as a valuable reference on a job application.
 Internships/Summer Clerkships at
Private/Public Entities
Most law students take on summer employment at a large firm, small
firm, non-profit or government entity. Unlike externships that provide
credit, internships or clerkships of this vein are paid positions. The law
school career center can help you find the list of all available positions.
Start looking early. An intern basically shadows the attorney, learns how to
interview clients, open files, research legal issues and prepare legal
documents. The experience is designed to give you a first hand account of
what it is like to work in that field or position on a day to day basis.
Summer positions at large law firms are coveted not only for the salary that
is available, but also because the summer posts often lead to permanent
offers. On campus interviews that take place during the fall of your second
year provide you with the opportunity to compete for these positions.
If you have worked as a paralegal or administrative assistant, you may
have amazing practical experience and insights into the legal profession.
However, most legal employers are looking for positions that give you a
chance to act in the capacity of an attorney. Clearly, given the rising cost of
law school, most of us have to offset the cost of education with a paying
position. However, if you are working a job outside the legal field, make
sure you find an externship or research opportunity that evidences to a
future employer that you have begun your transition into a new career.
 Writing a Good Cover Letter
Like all other types of documents, the writer must begin with the
question—what is my purpose? What's the goal? A cover letter is the
marketing tool that “sells” the information contained in your resume. It is
not a transmittal letter—enclosed please find my resume; nor is it a
regurgitation of the information contained in your resume. Instead, it is the
document that tells the employer why you are the person for the job. Thus,
it has to be persuasive.
The next question for any writer is, of course—who is my audience? For
most large employers, whether governmental agencies, nonprofits or firms,
there is a designated person who does the initial resume review. Usually,
this person sifts through anywhere from 20 to 50 resumes per week. They
can easily distinguish between a well crafted and tailored cover letter and
resume and a generic “one size fits all” document. Luckily, the resume
reviewer often tells you exactly what she or he wants to see in a cover letter
—it's all in the job posting.
The best place to begin when crafting a cover letter is the job posting or
description itself. Each employer has the perfect person in mind for the job
when drafting the job description. Therefore, pay very close attention to the
job description. It provides vital clues to what the employer is looking for in
a future employee. Let's take the following portion of a job description as
an example:
The Litigation Bureau of the State Government Agency is seeking
attorneys with sound judgment and excellent research and writing
skills. A strong candidate will have a demonstrated interest in and
enthusiasm for trial work and will also have 3 or more years of
litigation experience, especially employment litigation experience and
a demonstrated commitment to public service.
The words in the job description that have been highlighted provide vital
clues for a candidate in terms of the structure of a cover letter. An astute
candidate would devote a paragraph to each of the key attributes mentioned.
In other words, the structure of the cover letter should be:
Excellent research and writing skills
Demonstrated interest and enthusiasm for trial work
 Either employment litigation experience or demonstrated commitment
to public service
The problem with most cover letters is that they parrot back these
attributes in the cover letter without supporting evidence. Much like a poor
exam answer, they are conclusory in nature. A good cover letter, by
contrast, provides specific evidence; it builds a factual argument that
supports the conclusion. Notice how the following cover letter starts off
each paragraph with a very generic topic sentence, but then supports the
assertion with specific examples and evidence. As we will see later, the
resume is the document that lends credence to the assertions made in the
cover letter.
Dear Ms. Smith:
I would like to be considered for the attorney position in the
Litigation Bureau of State Government Agency. I have the research
and writing skills, interest in trial work, and commitment to public
service that you seek. In addition, it would be a privilege to work in
State Agency.
Like all law students, I took the introductory class legal writing.
Although I found the new structure and form to be challenging, I
ultimately excelled in the class and chose to develop my skills by
taking additional writing classes. In addition, I sought out research and
writing opportunities. For example, I was a Research Assistant for
Professor Carol Ramirez after my first year of law school. I conducted
research on Prof. Ramirez's book regarding the influence of race and
gender on promotion to partnership in large law firms. I was very
enthusiastic about the work given its connection to my previous work
with the Feminist League. In addition to the research, I edited several
passages, maintained research files and detailed several footnotes. I
also was a member of Western Law School's Arts and Media Journal. I
was privileged when my article, “How the Internet Corrupts
Copyright,” was chosen to be published this past spring. I enjoy
reading complex material, synthesizing it and using it to further a
factual argument. My time at the journal also enabled me to hone my
editorial abilities and learn the importance of attention to detail, such
as citation and punctuation.
In addition to legal research and writing, I would also like to build
my trial skills. While at Daly and Morgan, I was introduced to pre-trial
 practice. In addition to other matters, I worked on a medical
malpractice case and conducted the research and drafted the motion to
dismiss. I also assisted the senior associate in preparing for discovery
by drafting interrogatories and document requests. Finally, I was able
to sit in on several depositions in this case. All aspects of litigation
fascinated me and I was fortunate to participate in the process.
Although my litigation experience is limited, I now have a better
understanding of how to draft motions and organize discovery. My
experience at the Western Law School clinic also offered me an
opportunity to interact with and advise clients. Therefore, I feel
comfortable with participating in various aspects of litigation from
client interviews to legal research and writing and can use these
experiences to develop additional skills.
Finally, I have a strong commitment to public interest. I have
participated in our law school's public interest society since first year.
As a student lawyer in our housing clinic, I was able to put my
commitment to public service into practice by assisting individuals
with issues ranging from landlord/tenant disputes to mortgage fraud
and looming foreclosure. I have had experience in the private sector as
well, but I found that the opportunities that are available for new
attorneys are more limited (due in large part to the billable hour
requirement and client demands to minimize the number of attorneys
assigned to a particular matter). I look forward to working for a
government agency that is able to mentor a new hire. Moreover, the
cases taken on by your Office impact the public sector in a way that is
incredibly exciting. For example, the Smith v. Brown case has the
potential of redefining wage discrimination in a way that will better
people's, especially women's, everyday lives.
In sum, I admire the work and hope to contribute in some way to
your mission.
Respectfully,
Jane Doe

GREETING
Let's turn to the greeting. You should never send a mass mailing entitled “to
whom it may concern.” Instead, do your research—find a particular name
or at least use a professional title (Director of Recruiting) for your
correspondence.
FIRST SENTENCE
Your first sentence should be precise and direct—I am responding to your
posting for a summer law clerk position. Tell the recruiter specifically what
position you seek. Do not indicate that you are open to any and all
positions.
SECOND SENTENCE
Your second sentence should not be the standard “I believe I am the best
candidate for this position.” Quite frankly, at this point in your legal career,
it is difficult to differentiate yourself from other candidates. Rather than
start with an unsubstantiated statement, tell the employer why this
particular position draws your interest.
IT'S NOT ABOUT YOU
Especially for newly licensed attorneys, it is important not only to
emphasize why you are a good fit for the position, but why the position is a
good fit for you. Many candidates will have the basic skill set sought; what
sets one candidate apart from others is the genuine enthusiasm for the
position. Therefore, do you research. If there is a particular case or issue
that is emblematic of the organization's work, let them know.
SKILLS
Never overstate your abilities. No one expects a new graduate to have
“extensive” trial experience. Even if you have had an opportunity to appear
in court, do not equate that experience to trial work.
FAMILIAR WITH OFFICE OR LAW
Notice that the chosen case is a labor case. Although this candidate has no
specific labor law experience, the reference to the case gives the reader a
strong indication that she is familiar with the area of the law.

J D ANE OE

O S
1234 AK TREET

C IL
HICAGO, 60600

( ) 312 444-5555

J [email protected]

E DUCATION
 Western University Law School, Chicago, IL
J.D. anticipated, May 2013
Arts and Media Journal Member and Articles Editor
Published: Comment, “How the Internet Corrupts Copyright”, Spring
2013
Member, Public Interest Law Society
University of Illinois, Champaign, Illinois
B.A., Sociology, 2010
Member of Alpha Alpha Beta Sorority
Member of University Feminist League
E XPERIENCE

Western University Housing Clinic

Student Lawyer, Fall 2012
Assisted individuals with landlord/tenant disputes, housing matters,
loan modifications and other legal matters. Counseled individuals
regarding alternatives to foreclosure and met with representatives from
mortgage companies to negotiate loan modification programs.
Daly and Morgan
Legal Intern, Summer 2012
Intern in a medium size medical malpractice firm. Conducted research
in several cases. Research and drafted motion to dismiss in a
malpractice case involving the liability of a hospital for a trainee
anesthesiologist who ran out of oxygen before an operation was
completed. Drafted interrogatories and document production request.
Observed several witness depositions.
Western University Law School
Research Assistant, Summer 2011
Conducted research on the effect of race and gender on the promotion
of associates to partnership in large law firms. Edited passages of the
book, maintained research files and wrote several of the footnotes.
Notice how the cover letter corresponds to the resume. While the resume
presents factual information—dates, numbers, experiences, the cover letter
weaves all of this information into a narrative that explains how and why
these past experiences make you a viable candidate for the current position.
How do we achieve this level of persuasive impact? We tailor each cover
letter and resume to each job description. In the age of computer cut and
paste, it is easy to tailor these documents, yet too many applicants tend to
universalize their applications. Taking the extra time and effort to perfectly
tailor and fit your cover letter to the job you are applying for will make it
stand out from the other applicants. If a cover letter sounds too generic, it
creates the impression that this candidate doesn't necessarily want to work
here, but rather is willing to work anywhere, in any field, just to get
experience. While it might seem taxing to create different letters for each
individual job description, the end result could possibly be you in a
perfectly suited job! Remember, the recruiter is looking for THE candidate.

PHONE & EMAIL

Make sure that your cell phone has a professional greeting if that is the
number you leave for a potential employer. In terms of email address, make
sure it, too, is professional in tone. WILDjane is not appropriate.
GPA
With respect to adding in a GPA—as a recruiter of mostly lateral hires, I do
not look for this number on a resume. However, many recruiters of entry
level hires do, so if you are new to the job market, you should include this
number.
DESCRIPTIONS
Be careful for how you describe legal matters. Client confidentiality is
extremely important and you certainly do not want to disclose anything that
is not in the public domain.
THE END
Notice that the resume ends here. Many are in favor of an “interest” section,
but again, if the interest bears no relation to the job description, it is
irrelevant.
 Writing a Good Resume
Glance back at the sample resume. Notice that it is well organized, easy
to read and provides the factual support for the cover letter. Like a good
exam answer that weaves as many of the facts given in the hypothetical into
a response, a good cover letter uses as many of the facts listed in the resume
as a persuasive narrative of achievements. The purpose of the resume is to
provide those supporting facts.
Most resume reviewers go to the resume first to get a sense of the facts.
If the resume is organized in a way that makes it hard to understand, the
reviewer usually stops there. If your resume is confusing and difficult to
follow, how is it that your supervisor will be able to follow your other legal
writing? Therefore, it is imperative to organize your resume in a logical,
easy to follow manner. Notice how our sample moves from education to
experience—a sound organizational method for someone new to the job
market. Even if you have had extensive experience in a previous career, if
you are new to the legal job market, education comes first.
Do not simply list the schools you attended and degrees you earned. List
your achievements. Notice how the sample resume provides positions held
in the journal and membership in clubs. Your activities in college, and your
involvement in various organizations, are important to who you are as a
student and a possible employee. Again, note relevance. In our cover letter,
we described how and why these achievements bear upon our qualifications
for the position.
When you write the experience section, do not limit yourself to paid
positions. Make sure you list externships, clerkships, or any other practical
legal experience. Remember, the section is entitled “experience”, not
“previous jobs.” Notice that our candidate listed participation in legal clinic,
a legal internship and research assistantship in her resume. In addition,
there are succinct descriptions of the tasks performed. Be specific, without
exaggerating your involvement, participation, and skills in the legal field.
An employer wants to know the extent of your practical experience. It's not
enough to say “conducted research.” Instead, complete the thought—
conducted research on what? What did you do with the research? Did you
prepare a memorandum based on the research? Use it as a basis for a
motion? Did someone else use it as a basis of a motion? No one expects a
law student to have handled a case from start to finish, but we do assume
that she has had some familiarity with the legal system. Inquiring minds
want to know where you've been and what you've seen.
Finally, note that our resume is one page long. Although listing former
employment without a description of tasks performed leaves the resume
looking suspiciously bare, a resume that goes on for 2–3 pages is far too
detailed. Remember the cover letter should be the descriptive narrative; the
resume provides the underlying facts.
 Tales from the Front or One Recruiter's True
Confessions
As a recruiter, I go through approximately 40–60 resumes and cover
letters a week. On average, I spend less than two hours hour per week going
through them. That's about 2 minutes per candidate. That's right—two
minutes. So how can you impress me in two minutes?
First, follow directions. My website details application procedures. It
specifies how your information is to be submitted, to whom and in what
format. If you stray from the directions, I might get the impression that you
might not be good at following your supervisor's instructions. Be conscious
of proof-reading and spelling errors. The slightest incorrect spelling or
formatting issue could cause your resume to be automatically discarded. Be
mindful of the font as well. Larger than 12 point looks awkward, smaller
than 10 point looks minute.
Second, do your research. Many internet job sites or career offices list
opportunities that might have been filled. There might be other positions
that are not listed. Rather than rely on second hand information, go to the
source. Check the employer's own website when responding to a job
posting. Commercial job hunting websites or even your own law school's
career office might not have the most up to date information about a
particular job opportunity. In addition, know as much about the employer's
practice areas as possible. We have had several candidates applying to our
estate planning bureau; sadly, we don't have one!
Third, do not disregard the job posting. I try to make my job postings as
specific as possible. If the job posting specifically indicates that an
applicant must be licensed in Illinois at the time of application, then I will
not waiver from that requirement. Because 20 of the 40 or so resumes I
receive weekly are from candidates who did not follow directions, my
review is cursory.
Assuming that the candidate has not committed these three deadly sins,
we move on to the review. I look at the resume first to get a feel for the
facts. When did she graduate? From where? Accomplishments?
Experience? I have my job description in mind when I do the initial resume
review. Returning to the previous example, the job listing indicated that I'm
looking for someone with research and writing skills, who likes trial work,
public service and labor law. In the case of Jane's resume, I see some
writing experience at the Arts and Media Journal, she participated in clinic
and public interest law society (public interest is there) and she has had
some pre-trial experience, but with medical malpractice, not labor. Based
on the resume review alone, I decide to move on to the cover letter to see if
she can convince me to go further. Yes, that's right. If your resume does not
detail basic facts that I am looking for, I might not even read your cover
letter.
If your resume indicates that the basic requirements have been met, I
move on to your cover letter to see how and why you think your past
experience translates into the current position. How and why does your
experience demonstrate that you are good for this job? Quite frankly, if you
cannot sell yourself in a cover letter, I doubt your ability to write
persuasively in other contexts.
 Other Tips
1) Despite advancements in technology, most law firms and legal agencies
still prefer cover letters and resumes to come via regular mail, not email.
Having a resume and cover letter printed on clean, thick resume paper with
a matching typed envelope takes more time and effort than simply clicking
send, but giving the prospective employer a hard copy of your information
will leave a more substantial impression. Of course, make sure you check
whether the potential employer prefers electronic or regular submissions.
2) Be as specific as possible about your experience. Hyperbole (extensive
trial experience, superlative writing skills, ace researcher) does not impress
the recruiter—facts do.
3) Beware ... of Facebook®, Twitter® and other social networking sites.
More and more recruiters are Googling®, and searching Facebook® and
Twitter® and other sites before extending an offer to a candidate. Please
note that your reputation and character are at issue when you enter the legal
profession. Does your page highlight excess drinking, sexual prowess, or
other activity that might impress your friends but not your future employer?
Think before you post or consider making your site private. There are
privacy settings for all of these sites, which you can choose to control.
Regardless of these settings, your friends might have incriminating or
embarrassing photos of you. If you see something posted in regards to you,
or that references you in a negative way, alert your friends or the site
administrator to have it removed. You are now a professional, in a
professional world. Drunken college memories do not need to be broadcast
and shared for the world to see. Remember, once information is in the
public domain it is PUBLIC to all.
4) Your past can also come back to haunt you—many government agencies
also have authority (with your permission) to run criminal background
checks. If you have any arrests in your past, it is good policy to disclose up
front rather than wait until the employer discovers the matter through a
background check. Many times, the type of arrest (misdemeanor v. felony),
your age at the time (minor v. adult) and the disposition (charges dropped v.
conviction) are weighed by the employer. Overall, your ability to disclose
upfront and provide an explanation is also the better course—it
demonstrates maturity and responsibility.
5) Never, ever, misrepresent your credentials—remember, saying so does
not make it so. Stating that you have a certain experience in a field you
know casually, or that you know how to write motions to dismiss when
you've only researched the law for one, will lead the employer to expect
that you can deliver on these claims.
 The Interview
The resume and cover letter have gotten you this far, but the interview is
your chance to shine. Keep in mind that the interviewers are evaluating
whether you are the right fit for the position. Be prepared to elaborate on
your cover letter—how do your past experiences translate into this new
job? Why and how (be as specific as possible) do you fit the job description
as posted?
Too many candidates sell themselves short. Compare the two exchanges
(assume our candidate Jane has made it to the interview):

INTERVIEW #1
Interviewer: Jane, I see that you have no previous experience in the
labor law field. How are you a good fit for this position?
Jane: Although I don't have any labor law experience, I am a quick
learner and like to take on new challenges. I'm willing to work extra
long hours to learn the law in this area.

INTERVIEW #2
Interviewer: Jane, I see that you have no previous experience in the
labor law field. How are you a good fit for this position?
Jane: Although I have not worked on a labor law case, I have some
trial experience in medical malpractice, which allowed me to develop
a universal skill set (pretrial motion practice). Certainly, I still have to
hone these litigation skills, but with a solid basis I can focus my
attention on the subject matter. I have also studied labor law in law
school and have followed your case of Smith v. Brown very closely, so
labor law is not completely a new area for me. I am especially
interested in Smith because of its potential impact on female workers.
As a person who went to law school to pursue a career in public
interest, I am a good fit precisely because of my passion for these
types of issues.
 Although the first answer isn't horrible, it's far too vague and clichéd.
The second answer actually ties in past experience to current expectations.
Notice that Jane never crosses the line and attests that she has labor law
experience; instead, she ties in her previous litigation skills experience into
litigation experience needed in the current position. Jane manages to
mention her knowledge of trial experience without making claims beyond
the actual experience. She also uses this question as an opportunity to
highlight what she does know about labor law, the Office and the type of
cases they handle, and her passion for public interest. As a result, the
interviewer has the impression that she is a good fit for this position.
The newest research in interviewing techniques suggest that behavioral
interviewing2 is the best predictor of employee success in a new job. In
other words, ask an employee how she has handled writing assignments,
difficult co-workers or clients, tough deadlines and learning new skills in
the past, and you have a good predictor of how she is going to deal with
those things in the future. So, whenever possible explain how and why your
past experiences make you an ideal candidate for this position.
It goes without saying that you must be at your most polished and
articulate at the interview. Every detail counts, including: prompt arrival,
professional appearance, manners, poise, and self-confidence.
Practice helps ensure that all of these qualities are met. Practice with
anyone—friends, colleagues, family. Attend interview workshops to hone
your technique (usually offered by your career office). And be prepared.
Too many candidates treat an interview as an informal “just wondering
what your office does” type of meeting. Even if the interview is a
“courtesy” or “informational” one, treat it with the respect it deserves.
To triumph in the job search, students need to utilize the same skills that
they brought to bear in their legal studies. They must identify the issues of
importance to the employer by studying the job description carefully. They
must articulate in their resume the underlying experience, with appropriate
description that evidences experience. And, in the cover letter and
interview, they must argue how and why the past experiences translate into
qualification and enthusiasm for the new position.

Endnotes
1. Special thanks to Adelaida Otero, Recruiting Coordinator for the
Illinois Attorney General's Office for her assistance with this chapter.
 2. Unlike traditional interviewing, which focuses on the current position
and skills, behavioral interviewing focuses on the applicant's reaction to
past situations. For more information, see,
http://www.quintcareers.com/behavioral_interviewing.html,
http://www.quintcareers.com/sample_behavioral.html,
http://www.uwec.edu/Career/online_library/behavioral_int.htm.
Last Words of Advice

We hope you found the material in this book helpful. You should return
to some of the tips and exercises during your first year to review and
reinforce your skills. During the journey through law school, you will hit
some bumps in the road. However, we hope that this text will serve as a
guidebook to keep you on track. Remember that if you prepare for the
journey, remain open to the adventure and ask for help when you need it,
you should bring back only good stories, new friends and overall success.
Please feel free to email your travel postcards and stories to us at
[email protected] or [email protected].
Dictionary of Common Legal Terms*

This short dictionary is an example of the most common and typically

used legal terms. Here we present both their official legal dictionary
definition, taken from Black's Law Dictionary, as well as the common
meaning. We suggest that you invest in a good legal dictionary to reference
as you read cases and run into new terminology.
Allegation
Dictionary Definition:
The assertion, claim, declaration, or statement of a party to an action, made
in a pleading, setting out what he expects to prove.
Common Meaning:
An argument the plaintiff or party beginning the action intends to prove in
her case.
Appellant
Dictionary Definition:
The party who takes an appeal from one court or jurisdiction to another.
Common Meaning:
The losing party in a lower court ruling who seeks to overturn the court's
decision.
Appellee
Dictionary Definition:
The party in a case against whom an appeal is taken; that is, the party who
has an interest in upholding the original decision. In Supreme Court cases,
the appellee is called the respondent.
Common Meaning:
The “winning” party in a lower court decision who must defend the court's
decision.
Certiorari
Dictionary Definition:
Latin for “to be informed of.” An order issued by a superior court to an
inferior court requiring the latter to produce a certified record of a particular
case tried in that court. The purpose is for the court issuing the writ to
inspect the proceedings and determine whether there have been any
irregularities.
Common Meaning:
A Supreme Court grant to hear a case, usually because there is an
unresolved or debatable issue.
Counterclaim
Dictionary Definition:
A claim presented by a defendant in opposition to or reduction from the
claim of the plaintiff.
Common Meaning:
An argument presented by the defendant in opposition of the original claim
by the plaintiff.
Defendant
Dictionary Definition:
The person defending or denying; the party against whom relief or recovery
is sought in an action or suit, or the accused in a criminal case.
Common Meaning:
The party or person defending itself against an action or claim.
Indemnify
Dictionary Definition:
To restore the victim of a loss, in whole or in part, by payment, repair, or
replacement. To save harmless; to secure against loss or damage; to give
security for the reimbursement of a person in case of an anticipated loss
falling upon him. To make good; to compensate; to make reimbursement to
one of a loss already incurred by him.
Common Meaning:
To reimburse a party for a loss. Usually refers to a situation in which one
party (e.g., an insurance company) has compensated a victim (e.g., the
insured) for loss and now seeks to recover the money from the true
wrongdoer (i.e., the one who caused the damage).
Injunction
Dictionary Definition:
A court order prohibiting someone from doing some specified act or
commanding someone to undo some wrong or injury; a prohibitive,
equitable remedy issued or granted by a court at the suit of a party
complainant, directed to a party defendant in the action, or a party made a
defendant for that purpose, forbidding the latter from doing some act that he
is in the continuance thereof, such act being unjust and inequitable,
injurious to the plaintiff, and not such as can be adequately redressed by an
action at law.
Common Meaning:
A court order prohibiting a party from proceeding with a certain action, or
requiring a party to take some action.
Jurisdiction
Dictionary Definition:
The power of the court to decide a matter in controversy; it presupposes the
existence of a duly constituted court with control over the subject matter
and the parties.
Common Meaning:
The ability of a court to rule on the subject matter of the case and impose its
judgment on the parties.
Plaintiff
Dictionary Definition:
A person bringing an action; the party who complains or sues in a civil
action. A party seeking remedial relief for an injury to rights; it designates a
complainant.
Common Meaning:
The party or person who begins or brings a claim or suit for another's
wrongdoing.
Quid Pro Quo
Dictionary Definition:
What for what; something for something. Used in law for the giving of one
valuable thing for another.
Common Meaning:
The giving of something by one party to receive something of value from
another party; a trade or exchange usually called consideration.
Remand
Dictionary Definition:
To send back, as for further deliberation; to send back a matter to the
tribunal (or body) from which it was appealed or moved.
Common Meaning:
A court decision to send a case back to a lower court to readdress a certain
issue because of an error or misapplication of the law. In short, a “do-over.”
Respondent
Dictionary Definition:
The party who answers a bill or other proceeding. In appellate practice, the
party who contends against an appeal; the party against whom the appeal is
taken, i.e., the Appellee.
Common Meaning:
The person responding to an appeal from a court ruling.
Summary Judgment
Dictionary Definition:
A procedural device available for prompt and expeditious disposition of a
controversy without trial, when there is no dispute as to either material fact
or inferences to be drawn from undisputed facts, or if only a question of law
is involved.
Common Meaning:
A ruling deciding a claim in which the court finds no facts in dispute. In
other words, all the facts favor one party.
* The “dictionary definitions” all come from Black's Law Dictionary.
Index

A
Academic Support Office, 150
Admissions Office, 151
Auditory learner, 19

B
Briefing generally, 33
FIRAC Method, 34
In Class Modification, 46
Samples
Garratt v. Dailey, 42
Vosburg v. Putney, 40
Tips, 26, 147, 180
Why Brief?, 33, 157

C
Career Center, 151
Cases
America v. Henson, 64
Bombry, 79
Bunge Co. v. Williams, 65
Cramdon v. Carney, 61
Crowder v. Oberling, 62
Decina, 82, 83
Dickinson, 80
Ekl v. Knecht, 62
Fisher v. Carrousel Motor Hotel, 59
Garratt v. Dailey, 41
Heller v. Convalescent Home, 64
Lucy, 79
 Martin, 81
May v. Rice, 61
Newton, 81, 83
Strong v. Strange, 61
Vosburg v. Putney, 39
Civil Procedure Flowchart, 99
Closed Book Exam, 75
Constitutional Law Flowchart, 97
Contracts Flowchart, 93
Contracts Synthesis, 64, 65, 127
Counseling Center, 151
Criminal Law Flowchart, 101
Criminal Law Synthesis, 63
Coping with the Classroom, 157
Coping with the Workload, 149–150

D
Dean of Academic Services, 152
Dean of Students, 4, 6, 152, 170
Definitions, 71
Allegation, 186
Appellant, 186
Appellee, 186
Certiorari, 186
Counterclaim, 187
Defendant, 13, 27–29, 31, 36, 39–41, 53, 60, 98, 187
Indemnify, 187
Injunction, 187
Jurisdiction, 27, 98, 99, 186, 187
Plaintiff, 27, 29, 31, 35, 39–43, 50, 53, 187, 188
Quid Pro Quo, 188
Remand, 30, 188
Respondent, 186, 188
Summary Judgment, 188
Disability Services, 152
E
Exams, 103
Closed Book, 115
Essay, 105, 115
IRAC Method, 109
Multiple Choice, 117
Open Book, 116
Samples, 125
Take Home, 116
Types, 25, 105, 165
What to expect, 103
Why am I being tested this way?, 104
Exam Evaluation, 21

F
Financial Aid Office, 152
The Flowchart, 85
Components/What to include, 88
How to Make One, 88
Samples, 95
Civil Procedure, 99
Constitutional Law, 97
Contracts, 93
Criminal Law, 101
Torts, 87
Types/Other Alternatives, 93
Will it help me?, 86

H
How to Make a Flowchart, 88
How to Make an Outline, 70

K
Kinesthetic learner, 20

I
IRAC, 109

L
Langdellian Method, 7, 11, 13, 14, 43
Law School Classroom, 5, 8
Law School History, 3, 4
Learning the Language, 30
Learning Style, 17
Auditory, 19, 21
Visual, 18, 21
Kinesthetic, 20

M
Multiple Choice Exam, 117

N
Note Taking, 45
Do's and Don'ts, 46
Sample Class Discussion, 48
Sample notes, 52

O
Open Book Exam, 116
Outline(s), 67
Components/What to include, 70
Commercial v. Homemade Outlines, 69
Definition, 67
Different Types, 68
How to Make One, 70
Torts sample, 74

P
Problems You Might Encounter, 149, 153
Before Law School, 153
During Law School, 155
After Finals, 162
 Before Finals, 160
During Finals, 161
The First Few Weeks, 155
Mid-semester, 159
Preparing for Class, 156
Property Synthesis, 61

R
Reading Tips, 26

S
Sample Class Discussion, 48
Sample Exam Answers 124, 126, 127, 130, 132, 134, 135, 136, 137, 138,
139
Sample Exam Questions 120, 125, 127, 129, 131, 133, 136, 138
Sample Notes, 52
Schedule, 142–147
Class Schedule, 142, 143
Semester, 143
Weekly, 144
Socratic Method/Langdellian Method, 3, 7
Strategies for success, 149
Before Law School, 3, 6, 9, 32, 153
During Law School, 6, 15, 83, 155, 169, 184
After Finals, 162
Before Finals, 160
During Finals, 161
The First Few Weeks, 155
Mid-semester, 149
Preparing for Class, 156
How to deal with problems, 149
Where to go for help, 150
Academic Support, 150
Admissions Office, 151
Career Center, 151
 Counseling Center, 151
Dean of Academic Services, 152
Dean of Students, 152, 170
Disability Services, 152
Financial Aid Office, 152
Student Affairs, 153, 170
Web Site, 153
Student Affairs, 153, 170
Synthesis, generally, 55
Definition, 55
Exercises, 59
In College, 55
In Law School, 56
Samples 60, 61
Property, 61
Torts, 60
Tips, 57

T
Take Home Exam, 116
Teaching Styles, 105
Analysis, 106
Issue-spotting, 106
Policy, 107
Time Management, generally, 141
How Do You Study?, 141
Organizing Your Study Schedule, 143
Semester Schedule, 143, 144
Weekly Schedule, 144
Scheduling Tips for Part-Time Students, 147
What Works For You?, 141
When Do You Study Best?, 142
Where Do You Study Best?, 142
Torts Class Discussion, 48
Torts Outline, 71, 144
Torts Synthesis, 59

V
Visual learner, 18

W
Website, 153
Contents

1. Acknowledgments
2. About the Authors
3. Preface
4. Introduction
5. Chapter 1 · The Law School Experience
1. The History
2. The Customs
3. Packing for Your Trip
4. What to Bring
5. Preparing for Rough Terrain
6. Getting Around
7. Avoiding Tourist Traps
8. Traveler's Advisory
1. Endnotes
6. Chapter 2 · What Is Your Learning Style? Travel Style?
1. What Are the Different Learning Styles?
2. Visual
3. Auditory
4. Kinesthetic
5. What Is Your Learning Style?
6. Exam Evaluation—Personal
1. Endnotes
7. Chapter 3 · Learning to Read and Brief Law School Cases
1. Reading in College
2. Reading in Law School
3. Things You Need to Know before Reading Your First Case
1. The Dual Court System
2. Divisions of Courts within Each Court System
4. Learning the Language
5. Reading Tips and Techniques
6. Briefing Tips and Techniques—FIRAC
7. Sample Case and Case Brief
 1. Sample Case Brief
8. Exercise
1. Exercise 3-1 Reading and Briefing Cases
2. Answer to Exercise 3-1 Sample Case Brief
3. Endnotes
8. Chapter 4 · Effective Notetaking in Law School
1. Difference Between Notes in College and Notes in Law School
2. Dos and Don'ts for Taking Notes
1. Edit Your Brief
2. Write Down All Hypotheticals
3. Note How the “Other Stuff” Relates to FIRAC
3. Sample Class Discussion
1. Torts Class Discussion
4. Sample Notes
5. Sample Case Brief
9. Chapter 5 · Putting It Together, Part One: Synthesis
1. Synthesis in College
2. Synthesis in Law School
3. Why Hide the Directions?
4. What Is Synthesis?
5. Tips on Synthesis
6. Synthesis Exercises
1. Exercise 5-1 Synthesis: Statutory Interpretation
2. Answer to Exercise 5-1 Synthesis: Statutory Construction
3. Exercise 5-2 Synthesis: Criminal Law
4. Answer to Exercise 5-2 Synthesis: Criminal Law
5. Exercise 5-3 Synthesis: Contracts
6. Answer to Exercise 5-3 Synthesis: Contracts
7. Endnotes
10. Chapter 6 · Putting It Together, Part Two: The Role of the Law School
Outline
1. What Is an Outline?
2. What Are the Different Kinds of Outlines?
3. What Kind of Outline Should I Use—Commercial or Homemade?
4. What Should a Good Outline Include?
5. How to Make Your Own Outline
6. Additional Tips on Outlining: Open Book v. Closed Book Exams
7. Additional Tips on Outlining: Outlining Software
8. Outlining Exercises
 1. Exercise 6-1 Outlining: Contracts
2. Answer to Exercise 6-1 Step 1
3. Answer to Exercise 6-1 Step 2
4. Exercise 6-2 Outlining: Criminal Law
5. Answer to Exercise 6-2 Step 1
6. Answer to Exercise 6-2 Step 2
7. Endnotes
11. Chapter 7 · Putting It Together, Part Three: Flowcharting
1. What Is a Flowchart?
2. Do I Have to Create Both a Flowchart and an Outline?
3. How Do I Know If a Flowchart Will Help Me?
4. What Are the Different Types of Flowcharts?
5. What Should a Good Flowchart Include?
6. How to Make Your Own Flowchart
7. Other Alternatives
8. Final Thoughts
9. Sample Flowcharts
1. Constitutional Law—Equal Protection
2. Civil Procedure—Pleadings
3. Criminal Law
12. Chapter 8 · Law School Examinations
1. What Should I Expect on My Law School Exams?
2. Why Am I Being Tested This Way?
3. How Does the Exam Relate to Class Discussion?
4. Different Types of Law School Exams
1. Issue-Spotting
2. Analysis
3. Policy-Oriented
13. Chapter 9 · Tips on Exam Preparation
1. Process of Problem Solving
2. IRAC for Examinations
1. I—Identify the Issues
2. R—Articulate the Rules
3. A—Apply the Rules to the Facts
4. C—Conclusion
3. Tips for Different Exam Formats
1. Essay Exams
2. Multiple Choice
4. What to Do During an Essay Examination
 5. Exam Exercises
1. Exercise 9-1 Exam Question: Torts—Intentional Torts
2. Answer to Exercise 9-1
3. Exercise 9-2 Advanced Exam Question: Contracts
4. Answer to Exercise 9-2
5. Exercise 9-3 Exam Question: Civil Procedure—Personal
Jurisdiction
6. Answer to Exercise 9-3
7. Exercise 9-4 Exam Question: Criminal Law—Actus Reus
8. Answer to Exercise 9-4
9. Exercise 9-5 Exam Question: Criminal Law—Burglary
10. Answer to Exercise 9-5
11. Exercise 9-6 Exam Question: Torts—Policy Question
12. Answer to Exercise 9-6
13. Exercise 9-7 Exam Question: Constitutional Law—Due Process
14. Answer to Exercise 9-7
15. Endnotes
14. Chapter 10 · Time Management
1. What Works for You?
2. How Do You Study?
3. When Do You Study Best?
4. Where Do You Study Best?
5. Organizing Your Study Schedule
1. Semester Schedule
2. Weekly Schedule
6. Using Technology to Help with Scheduling
7. Scheduling Tips for Part-Time Students
8. Setting Realistic Goals
1. Endnote
15. Chapter 11 · Additional Strategies for Success
1. What to Do When Life Gets in the Way of Law School
2. Where to Go for Help
3. What's the Problem?
1. Before Law School
2. During Law School
3. Endnotes
16. Chapter 12 · Bridging the Gap as a 2L or 3L: What Else Can I Expect
in Law School?
1. Life after First Year—What Should I Expect Next?
 2. Academic Opportunities
3. Law Reviews and Journals
4. Moot Court
5. Clinics
6. Externship/Field Placement
7. Guided Research/Independent Study
8. Non-Academic Opportunities
9. Student Organizations
10. Local and National Bar Associations
17. Chapter 13 · The Importance of Gaining Legal Experience
1. Externships, Clerkships and Other Legal Work Externships—Why,
When and Where
2. Judicial Clerkships
3. Research Assistant
4. Internships/Summer Clerkships at Private/Public Entities
5. Writing a Good Cover Letter
6. Writing a Good Résumé
7. Tales from the Front or One Recruiter's True Confessions
8. Other Tips
9. The Interview
1. Endnotes
18. Last Words of Advice
19. Dictionary of Common Legal Terms
20. Index

1. i
2. iii
3. iv
4. v
5. vii
6. viii
7. ix
8. x
9. xi
10. xii
11. xiii
12. xv
13. xvii
14. xix
15. xx
16. xxi
17. xxii
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 Table of Contents
Acknowledgments
About the Authors
Preface
Introduction
Chapter 1 · The Law School Experience
The History
The Customs
Packing for Your Trip
What to Bring
Preparing for Rough Terrain
Getting Around
Avoiding Tourist Traps
Traveler's Advisory
Endnotes
Chapter 2 · What Is Your Learning Style? Travel Style?
What Are the Different Learning Styles?
Visual
Auditory
Kinesthetic
What Is Your Learning Style?
Exam Evaluation—Personal
Endnotes
Chapter 3 · Learning to Read and Brief Law School Cases
Reading in College
Reading in Law School
Things You Need to Know before Reading Your First Case
The Dual Court System
Divisions of Courts within Each Court System
Learning the Language
Reading Tips and Techniques
Briefing Tips and Techniques—FIRAC
Sample Case and Case Brief
Sample Case Brief
Exercise
Exercise 3-1 Reading and Briefing Cases
 Answer to Exercise 3-1 Sample Case Brief
Endnotes
Chapter 4 · Effective Notetaking in Law School
Difference Between Notes in College and Notes in Law School
Dos and Don'ts for Taking Notes
Edit Your Brief
Write Down All Hypotheticals
Note How the “Other Stuff” Relates to FIRAC
Sample Class Discussion
Torts Class Discussion
Sample Notes
Sample Case Brief
Chapter 5 · Putting It Together, Part One: Synthesis
Synthesis in College
Synthesis in Law School
Why Hide the Directions?
What Is Synthesis?
Tips on Synthesis
Synthesis Exercises
Exercise 5-1 Synthesis: Statutory Interpretation
Answer to Exercise 5-1 Synthesis: Statutory
Construction
Exercise 5-2 Synthesis: Criminal Law
Answer to Exercise 5-2 Synthesis: Criminal Law
Exercise 5-3 Synthesis: Contracts
Answer to Exercise 5-3 Synthesis: Contracts
Endnotes
Chapter 6 · Putting It Together, Part Two: The Role of the Law School Outline
What Is an Outline?
What Are the Different Kinds of Outlines?
What Kind of Outline Should I Use—Commercial or Homemade?
What Should a Good Outline Include?
How to Make Your Own Outline
Additional Tips on Outlining: Open Book v. Closed Book Exams
Additional Tips on Outlining: Outlining Software
Outlining Exercises
Exercise 6-1 Outlining: Contracts
Answer to Exercise 6-1 Step 1
Answer to Exercise 6-1 Step 2
 Exercise 6-2 Outlining: Criminal Law
Answer to Exercise 6-2 Step 1
Answer to Exercise 6-2 Step 2
Endnotes
Chapter 7 · Putting It Together, Part Three: Flowcharting
What Is a Flowchart?
Do I Have to Create Both a Flowchart and an Outline?
How Do I Know If a Flowchart Will Help Me?
What Are the Different Types of Flowcharts?
What Should a Good Flowchart Include?
How to Make Your Own Flowchart
Other Alternatives
Final Thoughts
Sample Flowcharts
Constitutional Law—Equal Protection
Civil Procedure—Pleadings
Criminal Law
Chapter 8 · Law School Examinations
What Should I Expect on My Law School Exams?
Why Am I Being Tested This Way?
How Does the Exam Relate to Class Discussion?
Different Types of Law School Exams
Issue-Spotting
Analysis
Policy-Oriented
Chapter 9 · Tips on Exam Preparation
Process of Problem Solving
IRAC for Examinations
I—Identify the Issues
R—Articulate the Rules
A—Apply the Rules to the Facts
C—Conclusion
Tips for Different Exam Formats
Essay Exams
Multiple Choice
What to Do During an Essay Examination
Exam Exercises
Exercise 9-1 Exam Question: Torts—Intentional
Torts
 Answer to Exercise 9-1
Exercise 9-2 Advanced Exam Question: Contracts
Answer to Exercise 9-2
Exercise 9-3 Exam Question: Civil Procedure—
Personal Jurisdiction
Answer to Exercise 9-3
Exercise 9-4 Exam Question: Criminal Law—
Actus Reus
Answer to Exercise 9-4
Exercise 9-5 Exam Question: Criminal Law—
Burglary
Answer to Exercise 9-5
Exercise 9-6 Exam Question: Torts—Policy
Question
Answer to Exercise 9-6
Exercise 9-7 Exam Question: Constitutional Law
—Due Process
Answer to Exercise 9-7
Endnotes
Chapter 10 · Time Management
What Works for You?
How Do You Study?
When Do You Study Best?
Where Do You Study Best?
Organizing Your Study Schedule
Semester Schedule
Weekly Schedule
Using Technology to Help with Scheduling
Scheduling Tips for Part-Time Students
Setting Realistic Goals
Endnote
Chapter 11 · Additional Strategies for Success
What to Do When Life Gets in the Way of Law School
Where to Go for Help
What's the Problem?
Before Law School
During Law School
Endnotes
Chapter 12 · Bridging the Gap as a 2L or 3L: What Else Can I Expect in Law
 School?
Life after First Year—What Should I Expect Next?
Academic Opportunities
Law Reviews and Journals
Moot Court
Clinics
Externship/Field Placement
Guided Research/Independent Study
Non-Academic Opportunities
Student Organizations
Local and National Bar Associations
Chapter 13 · The Importance of Gaining Legal Experience
Externships, Clerkships and Other Legal Work Externships—Why,
When and Where
Judicial Clerkships
Research Assistant
Internships/Summer Clerkships at Private/Public Entities
Writing a Good Cover Letter
Writing a Good Résumé
Tales from the Front or One Recruiter's True Confessions
Other Tips
The Interview
Endnotes
Last Words of Advice
Dictionary of Common Legal Terms
Index