[1919] 2 K.B. 571
Balfour v. Balfour.
In the Court of Appeal.
1919 June 24, 25.
*571 Balfour v. Balfour.
In the Court of Appeal.
CA
Warrington, Duke and Atkin L. JJ.
1919 June 24, 25.
Husband and Wife--Contract--Temporary Separation--Allowance for Maintenance of
Wife--Domestic Arrangement--No resulting Contract.
The plaintiff sued the defendant (her husband) for money due under an alleged verbal agreement, whereby he undertook to allow her 30l. a month in consideration of her agreeing to support herself without calling upon him for any further maintenance. The parties were married in 1900. The husband was resident in Ceylon, where he held a Government appointment. The plaintiff accompanied him to Ceylon, but in 1915 they returned to England, he being on leave. In 1916 he went back to Ceylon, leaving her in England, where she had to remain temporarily under medical advice. The plaintiff alleged that the defendant before returning to Ceylon entered into the above agreement. The parties remaining apart, the plaintiff subsequently obtained a decree nisi for restitution of conjugal rights, and an order for alimony:- Held, that the alleged agreement did not constitute a legal contract, but was only an ordinary domestic arrangement which could not be sued upon. Mutual promises made in the ordinary domestic relationship of husband and wife do not of necessity give cause for action on a contract.
Decision of Sargant J. reversed.
APPEAL from a decision of Sargant J., sitting as an additional judge of the King's Bench Division.
The plaintiff sued the defendant (her husband) for money which she claimed to be due in respect of an agreed allowance of 30l. a month. The alleged agreement was entered into under the following circumstances. The parties were married in August, 1900. The husband, a civil engineer, had a post under the Government of Ceylon as Director of Irrigation, and after the marriage he and his wife went to Ceylon, and lived there together until the year 1915, except that in 1906 they paid a short visit to this country, and in 1908 the wife came to England in order to undergo an operation, after which she returned to Ceylon. In November, 1915, she came to this country with her husband, who was on leave. They remained in England until August, 1916, when the husband's leave was up and he had to return. The wife however on the doctor's advice remained in England. On*572 August 8, 1916, the husband being about to sail, the alleged parol agreement sued upon was made. The plaintiff, as appeared from the judge's note, gave the following evidence of what took place: "In August, 1916, defendant's leave was up. I was suffering from rheumatic arthritis. The doctor advised my staying in England for some months, not to go out till November 4. On August 8 my husband sailed. He gave me a cheque from 8th to 31st for 24l., and promised to give me 30l. per month till I returned." Later on she said: "My husband and I wrote the figures together on August 8; 34l. shown. Afterwards he said 30l." In cross-examination she said that they had not agreed to live apart until subsequent differences arose between them, and that the agreement of August, 1916, was one which might be made by a couple in amity. Her husband in consultation with her assessed her needs, and said he would send 30l. per month for her maintenance. She further said that she then understood that the defendant would be returning to England in a few months, but that he afterwards wrote to her suggesting that they had better remain apart. In March, 1918, she commenced proceedings for restitution of conjugal rights, and on July 30 she obtained a decree nisi. On December 16, 1918, she obtained an order for alimony.
Sargant J. held that the husband was under an obligation to support his wife, and the parties had contracted that the extent of that obligation should be defined in terms of so much a month. The consent of the wife to that arrangement was a sufficient consideration to constitute a contract which could be sued upon. He accordingly gave judgment for the plaintiff.
The husband appealed.
Barrington-Ward K.C. and Du Parcq for the appellant.
Where husband and wife are only temporarily living apart an agreement like that in the present case confers no contractual rights. There was no agreement for a separation. The agreement here was a purely domestic arrangement intended to take effect until the wife should rejoin her husband. It*573 cannot be regarded as a binding contract. The wife gave no consideration for the promise.
On the evidence it is submitted that this was a temporary domestic arrangement caused by the absence of the husband abroad, and was not intended to have a contractual operation. Hawke K.C.and Tebbs for the respondent.
Where a husband and wife are living together the wife is as capable of contracting with her husband that he shall give her a particular sum as she is of contracting with any other person.
Where husband and wife separate by mutual consent, the wife making her own terms as to her income and that income proves insufficient for her support, the wife has no authority to pledge her husband's credit: Eastland v. Burchell. [FN1]
FN1 (1878) 3 Q. B. D. 432.
[DUKE L.J. That may be because they must be taken to have agreed not to live as husband and wife.]
Living apart is a question of fact. If the parties live apart by mutual consent the right of the wife to pledge her husband's credit arises. If, however, instead of doing so she agrees to give up that right and to accept an allowance instead, she is entitled to sue for it.
The agency of the wife arises either where the husband leaves her wrongfully, or where the parties are by mutual consent living apart.
In Lush on Husband and Wife, 3rd ed., p. 404, it is stated that: "If the wife is living apart from her husband either (a) on account of the husband's misconduct, the wife being left without adequate means; (b) or by mutual consent; and the husband has agreed to make her an allowance, and neglects to pay it, the law gives her an absolute authority to pledge his credit for suitable necessaries."
[DUKE L.J. Are not those cases where the parties are matrimonially separated?]
[WARRINGTON L.J. referred to Lush on Husband and Wife, 3rd ed., p. 386.]
The agency arises where there is a separation in fact. The*574 consideration for the promise by the husband to pay the allowance was that she gave up her right to pledge his credit.
[DUKE L.J. The husband has a right to withdraw the authority to pledge his credit. The wife's consent, therefore, cannot be treated as consideration to support such a contract as this.]
Where a husband leaves his wife in England and goes abroad it is no longer at his will that she shall have authority to pledge his credit. If there be a separation in fact (except for the wife's guilt) the agency of necessity arises. The parties here intended to enter into a binding contract.
WARRINGTON L.J.
(after stating the facts). Those being the facts we have to say whether there is a legal contract between the parties, in other words, whether what took place between them was in the domain of a contract or whether it was merely a domestic arrangement such as may be made every day between a husband and wife who are living together in friendly intercourse. It may be, and I do not for a moment say that it is not, possible for such a contract as is alleged in the present case to be made between husband and wife. The question is whether such a contract was made. That can only be determined either by proving that it was made in express terms, or that there is a necessary implication from the circumstances of the parties, and the transaction generally, that such a contract was made. It is quite plain that no such contract was made in express terms, and there was no bargain on the part of the wife at all. All that took place was this: The husband and wife met in a friendly way and discussed what would be necessary for her support while she was detained in England, the husband being in Ceylon, and they came to the conclusion that 30l. a month would be about right, but there is no evidence of any express bargain by the wife that she would in all the circumstances treat that as in satisfaction of the obligation of the husband to maintain her. Can we find a contract from the position of the parties? It seems to me it is quite impossible. If we were to imply such a contract in this case we should be*575 implying on the part of the wife that whatever happened and whatever might be the change of circumstances while the husband was away she should be content with this 30l. a month, and bind herself by an obligation in law not to require him to pay anything more; and on the other hand we should be implying on the part of the husband a bargain to pay 30l. a month for some indefinite period whatever might be his circumstances. Then again it seems to me that it would be impassible to make any such implication. The matter really reduces itself to an absurdity when one considers it, because if we were to hold that there was a contract in this case we should have to hold that with regard to all the more or less trivial concerns of life where a wife, at the request of her husband, makes a promise to him, that is a promise which can be enforced in law. All I can say is that there is no such contract here. These two people never intended to make a bargain which could be enforced in law. The husband expressed his intention to make this payment, and he promised to make it, and was bound in honour to continue it so long as he was in a position to do so. The wife on the other hand, so far as I can see, made no bargain at all. That is in my opinion sufficient to dispose of the case.
It is unnecessary to consider whether if the husband failed to make the payments the wife could pledge his credit or whether if he failed to make the payments she could have made some other arrangements. The only question we have to consider is whether the wife has made out a contract which she has set out to do. In my opinion she has not.
I think the judgment of Sargant J. cannot stand, the appeal ought to be allowed and judgment ought to be entered for the defendant.
DUKE L.J.
I agree. This is in some respects an important case, and as we differ from the
judgment of the Court below I propose to state concisely my views and the grounds which have led me to the conclusion at which I have arrived. Substantially the question is whether the promise of the husband to the wife that while she is living absent from*576 him he will make her a periodical allowance involves in law a consideration on the part of the wife sufficient to convert that promise into a binding agreement. In my opinion it does not. I do not dissent, as at present advised, from the proposition that the spouses in this case might have made an agreement which would have given the plaintiff a cause of action, and I am inclined to think that the promise of the wife in respect of her separate estate could have founded an action in contract within the principles of the Married Women's Property Act, 1882. But we have to see whether there is evidence of any such exchange of promises as would make the promise of the husband the basis of an agreement. It was strongly urged by Mr. Hawke that the promise being absolute in form ought to be construed as one of the mutual promises which make an agreement. It was said that a promise and an implied undertaking between strangers, such as the promise and implied undertaking alleged in this case would have founded an action on contract. That may be so, but it is impossible to disregard in this case what was the basis of the whole communications between the parties under which the alleged contract is said to have been formed. The basis of their communications was their relationship of husband and wife, a relationship which creates certain obligations, but not that which is here put in suit. There was a discussion between the parties while they were absent from one another, whether they should agree upon a separation. In the Court below the plaintiff conceded that down to the time of her suing in the Divorce Division there was no separation, and that the period of absence was a period of absence as between husband and wife living in amity. An agreement for separation when it is established does involve mutual considerations.
That was why in Eastland v. Burchell [FN2] the agreement for separation was found by the learned judge to have been of decisive consequence. But in this case there was no separation agreement at all. The parties were husband and wife, and subject to all the conditions, in point of law, involved in that*577 relationship. It is impossible to say that where the relationship of husband and wife exists, and promises are exchanged, they must be deemed to be promises of a contractual nature. In order to establish a contract there ought to be something more than mere mutual promises having regard to the domestic relations of the parties. It is required that the obligations arising out of that relationship shall be displaced before either of the parties can found a contract upon such promises. The formula which was stated in this case to support the claim of the lady was this: In consideration that you will agree to give me 30l. a month I will agree to forego my right to pledge your credit. In the judgment of the majority of the Court of Common Pleas in Jolly v. Rees [FN3], which was affirmed in the decision of Debenham v. Mellon. [FN4] Erle C.J. states this proposition [FN5]: "But taking the law to be, that the power of the wife to charge her husband is in the capacity of his agent, it is a solecism in reasoning to say that she derives her authority from his will, and at the same time to say that the relation of wife creates the authority against his will, by a presumptio juris et de jure from marriage." What is said on the part of the wife in this case is that her arrangement with her husband that she should assent to that which was in his discretion to do or not to do was the consideration moving from her to her husband. The giving up of that which was not a right was not a consideration. The proposition that the mutual promises made in the ordinary domestic relationship of husband and wife of necessity give cause for action on a contract seems to me to go to the very root of the relationship, and to be a possible fruitful source of dissension and quarrelling. I cannot see that any benefit would result from it to either of the parties, but on the other hand it would lead to unlimited litigation in a relationship which should be obviously as far as possible protected from possibilities of that kind. I think, therefore, that in point of principle there is no foundation for the claim which is made here, and I am satisfied that there was no consideration*578 moving from the wife to the husband or promise by the husband to the wife which was sufficient to sustain this action founded on contract. I think, therefore, that the appeal must be allowed.
FN2 3 Q. B. D. 432.
FN3 (1864) 15 C. B. (N. S.) 628.
FN4 (1880) 6 App. Cas. 24.
FN5 15 C. B. (N. S.) 641.
ATKIN L.J.
The defence to this action on the alleged contract is that the defendant, the husband, entered into no contract with his wife, and for the determination of that it is necessary to remember that there are agreements between parties which do not result in contracts within the meaning of that term in our law. The ordinary example is where two parties agree to take a walk together, or where there is an offer and an acceptance of hospitality. Nobody would suggest in ordinary circumstances that those agreements result in what we know as a contract, and one of the most usual forms of agreement which does not constitute a contract appears to me to be the arrangements which are made between husband and wife. It is quite common, and it is the natural and inevitable result of the relationship of husband and wife, that the two spouses should make arrangements between themselves - agreements such as are in dispute in this action - agreements for allowances, by which the husband agrees that he will pay to his wife a certain sum of money, per week, or per month, or per year, to cover either her own expenses or the necessary expenses of the household and of the children of the marriage, and in which the wife promises either expressly or impliedly to apply the allowance for the purpose for which it is given. To my mind those agreements, or many of them, do not result in contracts at all, and they do not result in contracts even though there may be what as between other parties would constitute consideration for the agreement. The consideration, as we know, may consist either in some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other. That is a well- known definition, and it constantly happens, I think, that such arrangements made between husband and wife are arrangements in which there are mutual promises, or in which there*579 is consideration in form within the definition that I have mentioned. Nevertheless they are not contracts, and they are not contracts because the parties did not intend that they should be attended by legal consequences. To my mind it would be of the worst possible example to hold
that agreements such as this resulted in legal obligations which could be enforced in the Courts. It would mean this, that when the husband makes his wife a promise to give her an allowance of 30s. or 2l. a week, whatever he can afford to give her, for the maintenance of the household and children, and she promises so to apply it, not only could she sue him for his failure in any week to supply the allowance, but he could sue her for non- performance of the obligation, express or implied, which she had undertaken upon her part. All I can say is that the small Courts of this country would have to be multiplied one hundredfold if these arrangements were held to result in legal obligations. They are not sued upon, not because the parties are reluctant to enforce their legal rights when the agreement is broken, but because the parties, in the inception of the arrangement, never intended that they should be sued upon. Agreements such as these are outside the realm of contracts altogether. The common law does not regulate the form of agreements between spouses. Their promises are not sealed with seals and sealing wax. The consideration that really obtains for them is that natural love and affection which counts for so little in these cold Courts. The terms may be repudiated, varied or renewed as performance proceeds or as disagreements develop, and the principles of the common law as to exoneration and discharge and accord and satisfaction are such as find no place in the domestic code. The parties themselves are advocates, judges, Courts, sheriff's officer and reporter. In respect of these promises each house is a domain into which the King's writ does not seek to run, and to which his officers do not seek to be admitted. The only question in this case is whether or not this promise was of such a class or not. For the reasons given by my brethren it appears to me to be plainly established that the promise here was*580 not intended by either party to be attended by legal consequences. I think the onus was upon the plaintiff, and the plaintiff has not established any contract. The parties were living together, the wife intending to return. The suggestion is that the husband bound himself to pay 30l. a month under all circumstances, and she bound herself to be satisfied with that sum under all
circumstances, and, although she was in ill-health and alone in this country, that out of that sum she undertook to defray the whole of the medical expenses that might fall upon her, whatever might be the development of her illness, and in whatever expenses it might involve her. To my mind neither party contemplated such a result. I think that the parol evidence upon which the case turns does not establish a contract. I think that the letters do not evidence such a contract, or amplify the oral evidence which was given by the wife, which is not in dispute. For these reasons I think the judgment of the Court below was wrong and that this appeal should be allowed.
Representation
Solicitors for appellant: Lewis & Lewis. Solicitors for respondent: Sawyer & Withall, for John C. Buckwell, Brighton.
Appeal allowed. (G. A. S.)
(c) Incorporated Council of Law Reporting For England & Wales
[1919] 2 K.B. 571
Thursday, September 18, 2008
HARVEY v FACEY [1893] AC 552 - PC
PRIVY COUNCIL
HARVEY v FACEY [1893] AC 552
LORD MORRIS:
… The appellants are solicitors carrying on business in partnership at Kingston, and it appears that in the beginning of October, 1891, negotiations took place between the respondent L M Facey and the Mayor and Council of Kingston for the sale of the property in question …
[O]n the 7th of October, 1891, L M Facey was travelling in the train from Kingston to Porus, and that the appellants caused a telegram to be sent after him from Kingston addressed to him ‘on the train for Porus,’ in the following words: ‘Will you sell us Bumper Hall Pen? Telegraph lowest cash price - answer paid;’ that on the same day L M Facey replied by telegram to the appellants in the following words: ‘Lowest price for Bumper Hall Pen £900’; that on the same day the appellants replied to the last-mentioned telegram by a telegram addressed to L M Facey ‘on train at Porus’ in the words following: ‘We agree to buy Bumper Hall Pen for the sum of nine hundred pounds asked by you. Please send us your title deed in order that we may get early possession.’
… The first telegram asks two questions. The first question is as to the willingness of L M Facey to sell to the appellants; the second question asks the lowest price … L M Facey replied to the second question only, and gives his lowest price. The third telegram from the appellants treats the answer of L M Facey stating his lowest price as an unconditional offer to sell to them at the price named. Their Lordships cannot treat the telegram from L M Facey as binding him in any respect, except to the extent it does by its terms, viz, the lowest price. Everything else is left open, and the reply telegram from the appellants cannot be treated as an acceptance of an offer to sell to them; it is an offer that required to be accepted by L M Facey. The contract could only be completed if L M Facey had accepted the appellant’s last telegram.
It has been contended for the appellants that L M Facey’s telegram should be read as saying ‘yes’ to the first question put in the appellants’ telegram, but there is nothing to support that contention. L M Facey’s telegram gives a precise answer to a precise question, viz, the price. The contract must appear by the telegrams, whereas the appellants are obliged to contend that an acceptance of the first question is to be implied. Their Lordships are of opinion that the mere statement of the lowest price at which the vendor would sell contains no implied contract to sell at that price to the persons making the inquiry …
HARVEY v FACEY [1893] AC 552
LORD MORRIS:
… The appellants are solicitors carrying on business in partnership at Kingston, and it appears that in the beginning of October, 1891, negotiations took place between the respondent L M Facey and the Mayor and Council of Kingston for the sale of the property in question …
[O]n the 7th of October, 1891, L M Facey was travelling in the train from Kingston to Porus, and that the appellants caused a telegram to be sent after him from Kingston addressed to him ‘on the train for Porus,’ in the following words: ‘Will you sell us Bumper Hall Pen? Telegraph lowest cash price - answer paid;’ that on the same day L M Facey replied by telegram to the appellants in the following words: ‘Lowest price for Bumper Hall Pen £900’; that on the same day the appellants replied to the last-mentioned telegram by a telegram addressed to L M Facey ‘on train at Porus’ in the words following: ‘We agree to buy Bumper Hall Pen for the sum of nine hundred pounds asked by you. Please send us your title deed in order that we may get early possession.’
… The first telegram asks two questions. The first question is as to the willingness of L M Facey to sell to the appellants; the second question asks the lowest price … L M Facey replied to the second question only, and gives his lowest price. The third telegram from the appellants treats the answer of L M Facey stating his lowest price as an unconditional offer to sell to them at the price named. Their Lordships cannot treat the telegram from L M Facey as binding him in any respect, except to the extent it does by its terms, viz, the lowest price. Everything else is left open, and the reply telegram from the appellants cannot be treated as an acceptance of an offer to sell to them; it is an offer that required to be accepted by L M Facey. The contract could only be completed if L M Facey had accepted the appellant’s last telegram.
It has been contended for the appellants that L M Facey’s telegram should be read as saying ‘yes’ to the first question put in the appellants’ telegram, but there is nothing to support that contention. L M Facey’s telegram gives a precise answer to a precise question, viz, the price. The contract must appear by the telegrams, whereas the appellants are obliged to contend that an acceptance of the first question is to be implied. Their Lordships are of opinion that the mere statement of the lowest price at which the vendor would sell contains no implied contract to sell at that price to the persons making the inquiry …
Saturday, September 6, 2008
SCHOOLS OF HINDU LAW
Due to the emergence of various commentaries on Smriti and Sruti, different schools of thoughts arose. The commentary in one part of the country varied from the commentary in the other parts of the country.
BECAUSE OF THESE DIFFERENCES TWO MAIN SCHOOLS EMERGED:
MITAKSHARA SCHOOL, DAYABHAGA SCHOOL
MITAKSHARA SCHOOL:
The Mitakshara School exists throughout India except in the State of Bengal and Assam. The Yagna Valkya Smriti was commented on by Vigneshwara under the title Mitakshara. The followers of Mitakshara are grouped together under the Mitakshara School.
Mitakshara school is based on the code of yagnavalkya commented by vigneshwara. Inheritance is based on the principle or propinquity i.e. The nearest in blood relationship will get the property.
The school is followed throughout India except Bengal state. Sapinda relationship is of blood. The right to hindu joint family property is by birth. So, a son immediately after birth gets a right to the property.
The system of devolution of property is by survivorship. The share of co-parcener in the joint family property isnot definite or ascertainable, as their shares are fluctuating with births and deaths of the co-parceners. The co-parcener has no absolute right to transfer his share in the joint family property, as his share is not definite or ascertainable.
A women could never become a co-parcener.
The widow of a deceased co-parcener cannot enforce partition of her husband's share against his brothers.
There are four Sub-Schools under the Mitakshara School:
i.Dravida School : (Madras school)
It exists in South India. In the case of adoption by a widow it has a peculiar custom that the consent of the sapindas was necessary for a valid adoption. ('Sapindas' - blood relation)
Collector of Madura vs. Mootoo Ramalinga Sethupathy (Ramnad case):
The zaminder of Ramnad died without sons and in such a condition, the zamindari would have escheated to the Government, the widow Rani Parvatha vardhani made an adoption of a son, with the consent of the sapindas of her husband.
But on the death of the widow, the Collector of Madhura notified that the Zamindari would escheat to the State. The adopted son brought a suit for declaration of the validity of the adoption. It was a question whether a widow can make a valid adoption without her husband's consent but his sapinda's consent.
The Privy Council, after tracing the evolution of the various Schools of Hindu law, held that Hindu law should be administered from clear proof of usage which will outweigh the written text of law. Based on the Smriti Chandrika and Prasara Madhviya, the Privy Council concluded that in the Dravida School, in the absense of authority from the husband, a widow may adopt a son with the assent of his kindred.
ii. MAHARASHTRA SCHOOL: (BOMBAY SCHOOL)
It exists in Bombay (Mumbai) , From the above four bases, there are two more bases. They are Vyavakara, Mayukha and Nimaya Sindhu. The Bombay school has got an entire work of religious and Civil laws.
iii. BANARAS SCHOOL :
It exists in Orissa and Bihar. This is a modified Mitakshara School.
iv. MITHILA SCHOOL :
It exists in Uttar Pradesh near the Jamuna river areas. Apart from the above schools, there are four more schools which are now existent today. They are Vyavakara, Mayukha Nimaya and Sindhu Schools.
DAYABHAGA SCHOOL:
It exists in Bengal and Assam only. The Yagna Valkya smriti is commented on by Jimootavagana under the title Dayabhaga. It has no sub-school. it differs from Mistakshara School in many respects.
Dayabhaga School is based on the code of yagnavalkya commented by Jimutuvahana, Inheritance is based on the principle of spiritual benefit. It arises by pinda offering i.e. rice ball offering to deceased ancestors.
This school is followed in Bengal state only. Sapinda relation is by pinda offerings.
The right to Hindu joint family property is not by birth but only on the death of the father.
The system of devolution of property is by inheritance. The legal heirs (sons) have definite shares after the death of the father.
Each brother has ownership over a definite fraction of the joint family property and so can transfer his share.
The widow has a right to succeed to husband's share and enforce partition if there are no male descendants.
On the death of the husband the widow becomes a co-parcener with other brothers of the husband. She can enforce partition of her share.
BECAUSE OF THESE DIFFERENCES TWO MAIN SCHOOLS EMERGED:
MITAKSHARA SCHOOL, DAYABHAGA SCHOOL
MITAKSHARA SCHOOL:
The Mitakshara School exists throughout India except in the State of Bengal and Assam. The Yagna Valkya Smriti was commented on by Vigneshwara under the title Mitakshara. The followers of Mitakshara are grouped together under the Mitakshara School.
Mitakshara school is based on the code of yagnavalkya commented by vigneshwara. Inheritance is based on the principle or propinquity i.e. The nearest in blood relationship will get the property.
The school is followed throughout India except Bengal state. Sapinda relationship is of blood. The right to hindu joint family property is by birth. So, a son immediately after birth gets a right to the property.
The system of devolution of property is by survivorship. The share of co-parcener in the joint family property isnot definite or ascertainable, as their shares are fluctuating with births and deaths of the co-parceners. The co-parcener has no absolute right to transfer his share in the joint family property, as his share is not definite or ascertainable.
A women could never become a co-parcener.
The widow of a deceased co-parcener cannot enforce partition of her husband's share against his brothers.
There are four Sub-Schools under the Mitakshara School:
i.Dravida School : (Madras school)
It exists in South India. In the case of adoption by a widow it has a peculiar custom that the consent of the sapindas was necessary for a valid adoption. ('Sapindas' - blood relation)
Collector of Madura vs. Mootoo Ramalinga Sethupathy (Ramnad case):
The zaminder of Ramnad died without sons and in such a condition, the zamindari would have escheated to the Government, the widow Rani Parvatha vardhani made an adoption of a son, with the consent of the sapindas of her husband.
But on the death of the widow, the Collector of Madhura notified that the Zamindari would escheat to the State. The adopted son brought a suit for declaration of the validity of the adoption. It was a question whether a widow can make a valid adoption without her husband's consent but his sapinda's consent.
The Privy Council, after tracing the evolution of the various Schools of Hindu law, held that Hindu law should be administered from clear proof of usage which will outweigh the written text of law. Based on the Smriti Chandrika and Prasara Madhviya, the Privy Council concluded that in the Dravida School, in the absense of authority from the husband, a widow may adopt a son with the assent of his kindred.
ii. MAHARASHTRA SCHOOL: (BOMBAY SCHOOL)
It exists in Bombay (Mumbai) , From the above four bases, there are two more bases. They are Vyavakara, Mayukha and Nimaya Sindhu. The Bombay school has got an entire work of religious and Civil laws.
iii. BANARAS SCHOOL :
It exists in Orissa and Bihar. This is a modified Mitakshara School.
iv. MITHILA SCHOOL :
It exists in Uttar Pradesh near the Jamuna river areas. Apart from the above schools, there are four more schools which are now existent today. They are Vyavakara, Mayukha Nimaya and Sindhu Schools.
DAYABHAGA SCHOOL:
It exists in Bengal and Assam only. The Yagna Valkya smriti is commented on by Jimootavagana under the title Dayabhaga. It has no sub-school. it differs from Mistakshara School in many respects.
Dayabhaga School is based on the code of yagnavalkya commented by Jimutuvahana, Inheritance is based on the principle of spiritual benefit. It arises by pinda offering i.e. rice ball offering to deceased ancestors.
This school is followed in Bengal state only. Sapinda relation is by pinda offerings.
The right to Hindu joint family property is not by birth but only on the death of the father.
The system of devolution of property is by inheritance. The legal heirs (sons) have definite shares after the death of the father.
Each brother has ownership over a definite fraction of the joint family property and so can transfer his share.
The widow has a right to succeed to husband's share and enforce partition if there are no male descendants.
On the death of the husband the widow becomes a co-parcener with other brothers of the husband. She can enforce partition of her share.
Doctrine of factum valet
1. CONVENTIONAL CUSTOM :
This custom arose out of contract, Parties to contract generally used certain terms for their contract to be observed in their transactions. The Sale of Goods Act., Partnership, Agency, etc., are based on the conventional customs.
2. PERSONAL CUSTOM :
It relates to only a few individuals and it does not involve the people in general. For e.g., Easementary right is out of a personal custom.
3. LOCAL CUSTOM :
It is observed in a particular locality alone. For e.g., in a particular locality, there may be a custom to conduct marriage after performing certain ceremonies, which may not be present in any other locality.
4. GENERAL CUSTOM :
It is observed throughout the State. It is part of the common law of the land.
ESSENTIALS FOR A VALID CUSTOM :
1.REASONABLENESS:
The custom must be reasonable. It should not affect the society in any way. It should satisfy the principles of Natural justice. If a custom is unreasonable, then it is not valid and will not become a law For e.g. if a custom recognizes that a woman can marry more than one man, it is unreasonable and will not become a law.
2.CONFORMITY:
The custom should be in conformity with the established law of the land. If a custom is inconsistent with the law of the land, then it is invalid. For e.g. slavery is an offence under the Indian Penal Code, if a custom recognises slavery, then such custom is invalid.
3.OPINION :
The public must feel that the particular custom is beneficial for them. They must think that such a custom is a binding rule of the community and it should not be of individual choice.
4.OBSERVANCE :
A mere practice of custom will not become law. It must be observed freely and voluntarily.
5.IMMEMORIAL ANTIQUITY :
The origin of the Custom should be from time immemorial. the origin should not be traced. No living man must remember its origin. Recent customs or modern customs are not valid customs. Fashion is not custom. In England, a custom must have existed continuously from 1189 A.D. to be considered valid.
6.CONTINUITY:
The custom should be followed without interruption. It must be followed continuously.
7.PEACEFULNESS :
The custom must have been observed peacefully. In other words, it should not be protested in any way by the public or part of the public.
8.CERTAINTY :
The custom must be certain and definite. It should not be vague. If a custom is indefinite, then it is invalid.
9. CONSISTENCY WITH OTHER CUSTOMS :
The custom should not be opposed to other customs. Suppose two different customs exist which are inconsistent to each other, then both the customs are invalid.
This custom arose out of contract, Parties to contract generally used certain terms for their contract to be observed in their transactions. The Sale of Goods Act., Partnership, Agency, etc., are based on the conventional customs.
2. PERSONAL CUSTOM :
It relates to only a few individuals and it does not involve the people in general. For e.g., Easementary right is out of a personal custom.
3. LOCAL CUSTOM :
It is observed in a particular locality alone. For e.g., in a particular locality, there may be a custom to conduct marriage after performing certain ceremonies, which may not be present in any other locality.
4. GENERAL CUSTOM :
It is observed throughout the State. It is part of the common law of the land.
ESSENTIALS FOR A VALID CUSTOM :
1.REASONABLENESS:
The custom must be reasonable. It should not affect the society in any way. It should satisfy the principles of Natural justice. If a custom is unreasonable, then it is not valid and will not become a law For e.g. if a custom recognizes that a woman can marry more than one man, it is unreasonable and will not become a law.
2.CONFORMITY:
The custom should be in conformity with the established law of the land. If a custom is inconsistent with the law of the land, then it is invalid. For e.g. slavery is an offence under the Indian Penal Code, if a custom recognises slavery, then such custom is invalid.
3.OPINION :
The public must feel that the particular custom is beneficial for them. They must think that such a custom is a binding rule of the community and it should not be of individual choice.
4.OBSERVANCE :
A mere practice of custom will not become law. It must be observed freely and voluntarily.
5.IMMEMORIAL ANTIQUITY :
The origin of the Custom should be from time immemorial. the origin should not be traced. No living man must remember its origin. Recent customs or modern customs are not valid customs. Fashion is not custom. In England, a custom must have existed continuously from 1189 A.D. to be considered valid.
6.CONTINUITY:
The custom should be followed without interruption. It must be followed continuously.
7.PEACEFULNESS :
The custom must have been observed peacefully. In other words, it should not be protested in any way by the public or part of the public.
8.CERTAINTY :
The custom must be certain and definite. It should not be vague. If a custom is indefinite, then it is invalid.
9. CONSISTENCY WITH OTHER CUSTOMS :
The custom should not be opposed to other customs. Suppose two different customs exist which are inconsistent to each other, then both the customs are invalid.
SOURCES OF HINDU LAW
SOURCES OF HINDU LAW :
Hindu Law is mainly a law governing the Hindus. It is based on immemorial custom, and secular law which was called Dharma.
ANCIENT SOURCES :
Ancient sources are Sruti, Smrits, Commentaries and digests, Sadachara or Custom and Doctrine of factum valet.
SRUTI:
The Srutis are regarded as of divine origin from Vedas. Sruti literally means "What was heard" by the sages in a revelation by God which include the four vedas (by sage Vyas) namely Rig, Yajur, Sama and Atharvana Vedas, the six vedangas and the Upanishads. The period of Vedas is estimated to be 4000-1000 B.C. The Vedas are revelations of the Almighty. These vedas contained practically no law; they dealt with different forms of marriage, adoption, partition and the exclusion of women from inheritance.
SMRITIS :
It means "What was remembered". These are what were recorded by the sages in their own words of what they had heard from God. The smritis are classified as Primary Smirities and Dharmastras which constitute important sources of law. Among the Smritis, the Naradha Smritis and the Manu Smriti are very important. All these Smritis deal with the civil and criminal law, the laws of marriage and the rules of procedural law.
Next to the Vedas, Smritis are the most important source of Hindu law. The early smritis were termed as dharma sutras which were mostly in prose form. The later smritis were termed as dharma shastras, which are more systematic expostions than dharma sutras. The oldest smriti is the manu smriti. The manu smriti deals with 18 titles relating to civil and criminal law, marriage, and procedural law. The Yagnavalkya smriti (containing1010 slokas) provides that king was subordinate of Law. The other smrities are the Narada smriti and Brihaspati smriti which deal with legal subjects. Narada smriti recognised the power of the kings to make laws.
COMMENTARIES AND DIGESTS :
Since the Smritis did not agree with each other, they gave rise to commentaries which are otherwise called 'Nibandhas'. They were writen during the period between 700 A.D. to 1700 A.D. The Yagnavalkia smriti is commented upon by Vigneswara which has later become the 'Mitakshara School of Hindu Law'. The same Smriti was also commented by Jimutuvahana which later became the 'Dayabhaga School of Hindu law'.
SADACHARAS OR CUSTOMS :
Custom is a rule of action uniformly and continuously followed by the bulk of the people for a long time. Custom is recognised as an important source of all civil laws. According to 'Manu', the King must inquire into the particular laws of custom of traders.
Hindu Law is mainly a law governing the Hindus. It is based on immemorial custom, and secular law which was called Dharma.
ANCIENT SOURCES :
Ancient sources are Sruti, Smrits, Commentaries and digests, Sadachara or Custom and Doctrine of factum valet.
SRUTI:
The Srutis are regarded as of divine origin from Vedas. Sruti literally means "What was heard" by the sages in a revelation by God which include the four vedas (by sage Vyas) namely Rig, Yajur, Sama and Atharvana Vedas, the six vedangas and the Upanishads. The period of Vedas is estimated to be 4000-1000 B.C. The Vedas are revelations of the Almighty. These vedas contained practically no law; they dealt with different forms of marriage, adoption, partition and the exclusion of women from inheritance.
SMRITIS :
It means "What was remembered". These are what were recorded by the sages in their own words of what they had heard from God. The smritis are classified as Primary Smirities and Dharmastras which constitute important sources of law. Among the Smritis, the Naradha Smritis and the Manu Smriti are very important. All these Smritis deal with the civil and criminal law, the laws of marriage and the rules of procedural law.
Next to the Vedas, Smritis are the most important source of Hindu law. The early smritis were termed as dharma sutras which were mostly in prose form. The later smritis were termed as dharma shastras, which are more systematic expostions than dharma sutras. The oldest smriti is the manu smriti. The manu smriti deals with 18 titles relating to civil and criminal law, marriage, and procedural law. The Yagnavalkya smriti (containing1010 slokas) provides that king was subordinate of Law. The other smrities are the Narada smriti and Brihaspati smriti which deal with legal subjects. Narada smriti recognised the power of the kings to make laws.
COMMENTARIES AND DIGESTS :
Since the Smritis did not agree with each other, they gave rise to commentaries which are otherwise called 'Nibandhas'. They were writen during the period between 700 A.D. to 1700 A.D. The Yagnavalkia smriti is commented upon by Vigneswara which has later become the 'Mitakshara School of Hindu Law'. The same Smriti was also commented by Jimutuvahana which later became the 'Dayabhaga School of Hindu law'.
SADACHARAS OR CUSTOMS :
Custom is a rule of action uniformly and continuously followed by the bulk of the people for a long time. Custom is recognised as an important source of all civil laws. According to 'Manu', the King must inquire into the particular laws of custom of traders.
Post Exam, first step
Post Exam
Take a break. Don't start studying for your next exam right away. Schedule yourself some down time to have fun and clear your mind. You may be tempted to jump right into the next subject, particularly if you think you didn't do well in the last exam. However, you run the risk of diminishing returns. Tests take a lot out of you physically and mentally. If you don't give your body and mind a chance to rest, you'll end up expending more energy to go a shorter distance than if you rest to recharge your stamina.
Major Points in Test Taking
* Exams test two areas - issuing spotting and analysis.
* Professors differ in how they want exams written. Ask yours what she wants to see in a good exam.
* Create a one-page attack outline giving yourself an analytical framework for writing and to serve as a checklist for major issues.
* Read the question twice before writing.
* Spend ten minutes outlining an answer for every hour-long question.
* Write about issues even if the outcome is ambiguous or uncertain.
* Mention issues even if the rule is not satisfied by the facts.
* Use the rule to focus on the analysis but don't make the rule the focus of your exam.
* Don't recite the facts of the hypothetical. The professor knows the facts since she wrote the essay.
* Use every fact if your analysis. The professor only puts facts into a hypothetical for a reason. To get you to use them for some persuasive purpose in the exam.
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2. The IRAC Formula
IRAC (Issue, Rule, Analysis, and Conclusion) forms the fundamental building blocks of legal analysis. It is the process by which all lawyers think about any legal problem. The beauty of IRAC is that it allows you to reduce the complexities of the law to a simple equation.
ISSUE -> What facts and circumstances brought these parties to court?
RULE -> What is the governing law for the issue?
ANALYSIS -> Does the rule apply to these unique facts?
CONCLUSION -> How does the court's holding modify the rule of law?
Issue Spotting - The First Step
"The facts of a case suggest an Issue."
The key to issue spotting is being able to identify which facts raise which issues. Because of the complexity of the law, the elimination or addition of one fact (such as time of day or whether someone was drinking) can eliminate or add issues to a case thereby raising an entirely different rule of law.
In law school casebooks, the easiest way to isolate the issue is to merely look at the chapter headings of the cases, such as "Personal Jurisdiction" in Civil Procedure or "Offer and Acceptance" in Contracts. The cases you read will also contain language that signals the important issue. For instance, the judge will simply state:
"The case turns upon the question whether...."
OR "We come then to the basic issue in the case."
However, you need to develop issue-spotting skills on your own in order to do well on the exam and become an effective lawyer. During the exam the professor is not going to state the issue. Ask yourself some of these questions as you read the case:
Questions to ask when reading a case:
• What facts and circumstances brought these parties to court?
• Are there buzzwords in the facts that suggest an issue?
• Is the court deciding a question of fact - i.e. the parties are in dispute over what happened - or is it a question of law - i.e. the court is unsure which rule to apply to these facts?
• What are the non-issues?
Whenever you read a case, state the issue as a question turning on a set of particular facts. See the examples to see how it is done. By incorporating particular facts into the issue, you build a database of issues for the exam.
Rule - What is the Law?
"The issue is covered by a Rule of law."
Simply put, the rule is the law. The rule could be common law that was developed by the courts or a law that was passed by the legislature.
For every case you read, extract the rule of law by breaking it down into its component parts. In other words, ask the question: what elements of the rule must be proven in order for the rule to hold true?
Questions to ask when reading a case:
• What are the elements that prove the rule?
• What are the exceptions to the rule?
• From what authority does it come? Common law, statute, new rule?
• What's the underlying public policy behind the rule?
• Are there social considerations?
The trap for the unwary is to stop at the rule. Although the rule is the law, the art of lawyering is in the analysis.
Analysis - The Art of Lawyering
"Compare the facts to the rule to form the Analysis."
This important area is really relatively simple. For every relevant fact, you need to ask whether the fact helps to prove or disprove the rule. If a rule requires that a certain circumstance is present in order for the rule to apply, then the absence of that circumstance helps you reach the conclusion that the rule does not apply. For instance, all contracts for the sale of goods over $500 have to be in writing. Consequently, in analyzing a contract for the sale of goods, you apply the presence or absence of two facts - worth of good and whether there's a written contract - in order to see whether the rule holds true.
The biggest mistake people make in exam writing is to spot the issue and just recite the rule without doing the analysis. Most professors know that you can look up the law, but they want to test whether you can apply the law to a given set of circumstances. The analysis is the most important element of IRAC since this is where the real thinking happens.
Questions to ask when reading a case:
• Which facts help prove which elements of the rule?
• Why are certain facts relevant?
• How do these facts satisfy this rule?
• What types of facts are applied to the rule?
• How do these facts further the public policy underlying this rule?
• What's the counter-argument for another solution?
Conclusion - Take a Position
"From the analysis you come to a Conclusion as to whether the rule applies to the facts."
The conclusion is the shortest part of the equation. It can be a simple "yes" or "no" as to whether the rule applies to a set of facts. A clever professor will often give you a set of facts that could go either way in order to see how well you analyze a difficult issue. The mistake many students make is to never take a position one way or the other on an issue. Most professors want you to take a position and support it in order to see how well you analyze.
Another common mistake is to conclude something without having a basis for the opinion. In other words, students will spot the issue, state a rule, and then form a conclusion without doing the analysis. Make sure that whatever position you take has a firm grounding in the analysis. Remember that the position you take is always whether or not the rule applies.
If a rule does not apply, don't fall into the trap of being conclusive on a party's liability or innocence. There may be another rule by which the party should be judged. In other words you should conclude as to whether the rule applies, but you shouldn't be conclusive as to whether some other result is probable. In that case, you need to raise another rule and analyze the facts again.
In addition, the conclusion should always be stated as a probable result. Courts differ widely on a given set of facts, and there is usually flexibility for different interpretations. Be sure to look at the validity of the opponent's position. If your case has flaws, it is important to recognize those weaknesses and identify them.
Questions to ask when reading a case:
• What's the holding of the case?
• Has the holding modified the existing rule of law?
• What is the procedural effect of the holding? Is the case overturned, upheld or remanded for retrial?
• Does the holding further the underlying policy of the rule?
• Do you agree with the outcome of the case?
The IRAC Triad
IRAC is a good model for first year law students. However, in the pressure of the exam, many students leave out the most important part of the equation - the analysis. In order to illustrate the important of the analysis, I've modified the traditional model into what I call the IRAC Triad.
The IRAC Triad emphasizes the Analysis by using the Facts, Issue and Rule as building blocks. The Analysis is the end product and primary goal of the IRAC Triad, but the role that facts play in forming the analysis is highlighted.
Step 1: The facts of a case suggest an Issue.
The legal issue would not exist unless some event occurred.
Step 2: The issue is governed by a Rule of law.
The issue mechanically determines what rule is applied.
Step 3: Compare the facts to the rule to form the Analysis.
Do the facts satisfy the requirements of the rule?
The Triad is actually just a simple flowchart in which the facts can be pigeonholed into a Conclusion.
IRAC Examples
In each one of these examples, a hypothetical fact pattern is broken into IRAC elements by using the three steps of the IRAC Triad.
Contracts Hypothetical
Facts:
An old man who is very ill and near death makes an oral contract with his nephew. The terms of the contract are that the uncle will immediately give his nephew all of his life savings - $100,000 - in return for the nephew's promise to provide food and shelter for the old man until the man dies. The nephew takes the money and supports the old man at a cost of $10,000 a year. The old man lives longer than expected and is still alive after fifteen years, at which point the nephew cuts the old man off without further support.
Issue:
Is an oral contract valid after fifteen years?
Note that the issue is stated in the form of a question and uses key facts to illustrate the problem. Don't be alarmed if you didn't see the issue right away. By reading case law in contracts, you will learn that these sorts of factual situations give rise to issues surrounding whether a contract is valid.
Rule:
A contract must be in writing if it is not possible to perform the contract within one year. - Statute of Frauds
The issue immediately triggers the appropriate rule. Again, the appropriate rules are something that you will learn in your first year of contract law.
Analysis:
The Statute of Frauds does not state that the contract must be performed within one year. It only states that it must be possible to complete the contract within a year. Since a very ill, old man could have died within one year, it is possible that the contract could have been completed.
This analysis shows how closely you must pay attention to the wording of a rule. The words "not possible" indicate that a remote possibility of being able to complete the contract means the rule does not apply.
Conclusion:
The Statute of Frauds probably does not apply in these circumstances, and the oral contract is not invalid even though it was not completed within one year.
Conclusions should be short and put in terms of a probability.
Civil Procedure Hypothetical
Facts:
1. Patricia sues Daniel in federal district court over money that she says he owes her.
2. She wins her case.
3. Daniel appeals the decision in the federal appellate court, which overturns the lower court's decision on a technical error.
4. Patricia appeals to the U.S. Supreme Court, and the court refuses to hear the case.
5. Patricia attempts to sue Daniel a second time in the state court system over the same issue of the money she says he owes her.
Issue:
Does the fact that Patricia took her case to the highest federal court and lost prevent her from starting the same case in a state court?
Civil Procedure questions quite naturally focus on whether a plaintiff or defendant has correctly followed the rules in bringing a case to court. Civil Procedure generally does not focus on the substance of the dispute - i.e. whether the plaintiff or defendant wins.
Rule:
The principle of res judicata states that once a final judgment on the merits has been made on a particular case, the plaintiff is barred from bringing that same case against the same defendant in the same or different court.
Analysis:
Since Patricia appealed the case to the highest court, a final judgment is considered to have been made on the matter. She has exhausted all of the potential appeals by going to the highest court which has ruled on her case. If she attempts to bring the same cause of action (i.e. the same particular facts and controversy) in state court, then Daniel can argue to have the case thrown out of court using the principle of res judicata.
Conclusion:
Patricia cannot bring the case in state court.
Criminal Law Hypothetical
Facts:
Just as the sun is setting one night, Carl sees that the door to Vince's house is ajar. Carl knows that Vince has a home office in which there is expensive computer equipment. Carl pushes the unlocked door open, walks into the house and steals Vince's computer equipment that is valued at well over $5000.
Issue:
Is opening an unlocked door to a building at twilight to commit a theft sufficient to constitute a charge of burglary?
Rule:
The common law requirements for a burglary are that there be: 1) a breaking 2) and entry 3) of a dwelling 4) of another 5) at night 6) with the intent of committing a felony therein.
Analysis:
Element 1) Although the door was ajar and unlocked, Carl's merely opening the door was sufficient minimal force to constitute a breaking since the nearly shut door was meant to deter unwanted entry. No actual breaking of the door or lock is necessary.
Elements 2, 3 and 4) Carl clearly entered the house, which is not his own. The house is considered a dwelling since Vince regularly uses the house for sleeping purposes.
Element 5) Whether it would be considered night at twilight is determined by whether Vince's face could be discerned in natural light at that hour.
Element 6) Stealing items worth $5000 is a felony in all states.
Notice how methodically each element is proven using the facts provided. Even though something like entering seems self-evident, the fact that the defendant actually crossed the threshold has to be stated in order for the legal analysis to be complete.
Conclusion:
Vince is probably subject to a charge of burglary even though it was not technically nighttime and the door was unlocked.
Torts Hypothetical
Facts:
Peter and Doug are neighbors who hate one another.
One day, Doug is nailing some boards together on the common sidewalk that he shares with Peter.
In a classic slapstick comedy move, Doug picks up a board just as Peter is passing behind him and swings around so that the back end hits Peter in the head.
The smack in the head causes substantial injury to Peter.
Issue:
Is existing malice between two people enough to show the intent necessary for liability for battery?
Rule:
The three elements of battery are: 1) a harmful touching of another person 2) the defendant caused the touching to occur directly or indirectly and 3) the touching was intentional.
Analysis:
Element 1) The hitting of Peter in the head with a board is considered harmful since it caused substantial injury.
Element 2) Doug directly caused the injury since he was physically holding the board as it swung into Peter.
Element 3) The question of whether Doug intended to hit Peter is a matter of fact that must be decided by a jury. The fact that Doug hated Peter may weigh in the matter but is not dispositive. Doug must have known that Peter was behind him and intentionally swung the board so as to purposefully harm Peter.
Conclusion:
Without further evidence, the facts do not appear to indicate the intent necessary for Peter to sue Doug for the tort of battery.
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The IRAC Formula
Issue Spotting - The First Step
Rule - What is the Law?
Analysis - The Art of Lawyering
Conclusion - Take a Position
The IRAC Triad
IRAC Examples
The Rule of Law - In Depth
Taxonomy of Rules
Form and Function of Rules
Extracting the Rule
Analysis - In Depth
Analysis for Beginners
The Four Types of Analytical Tests
The Rule of Law - In Depth
Legal reasoning starts with the rule of law. Most professors will downplay the importance of rules - telling you that analysis and issue spotting counts more in your grade rather than knowing the rule verbatim. While this is true, you need to understand the rule in order to spot the issue and analyze effectively.
First year students should attempt to extract and restate the rule of law for every case that they read. This process puts the rule into a format that makes analysis and outlining easier. Extracting and restating the rule can be done within your brief. However, try to use the techniques described below in "Restate the Rule."
The easy way to extract the rule is, of course, to go to the commercial outlines and look the rule up. To learn the skills you'll need in your first years as a lawyer, however, it's best to try and extract the rule out of the cases yourself. Furthermore, often the commercial outlines won't state the rule with all of the nuances that you get from parsing through the casebook. Good professors know the differences between commercial outlines and the casebook. Commercial outlines and secondary sources are best used as supplements in this instance if you are having trouble extracting the rule.
Taxonomy of Rules
Rules of law break down into three main types:
• Common Law: The courts have developed common law over time based on principles of justice, equity and the morals and ethics of the time. Scholars collect the common law into volumes called the Restatements.
• Statutory Law: Congress or state legislatures write statutes, which results in laws that are primarily influenced by special interest groups. A body of law is sometimes collected in a model code or uniform statute, such as the Uniform Commercial Code or the Model Penal Code.1
• Constitutional Law: Constitutional law flows from the U.S. Constitution as interpreted by the Supreme Court.
In your first year of law school, you'll primarily be focused on the common law. Common law is judge-made law. Judges base their decisions on principles that have developed over time within the judicial system. The rule itself is really just a series of definitions. If the facts of the case fit within the definition, then the rule applies.
1 The model codes are an attempt by the legal scholars and the federal government to have consistent laws between different states. The state legislature may adopt the model code as its base, then amend it to conform with the common law traditions in that state.
Form and Function of Rules
Rules, whether as part of the common law or in statutes, can be broken down into three types - declarative rules, conditional rules and exceptions. The way you state a rule depends, in part, on its form.
Declarative rules merely state something that must always be true. For instance, in contract law it can be said that: All contracts require a bargain. There is no exception to this rule, and the converse is also true. The converse of the rule above is that: If a bargain isn't present, then no contract has been formed.
Declarative rules are also sometimes called bright-line rules. The rule is a bright line because anyone can tell where a rule holds true and where it does not. For instance, most highways have a 65 mile an hour speed limit. If you're caught over the limit, then you're on the wrong side of the bright line, and you lose.
Conditional rules, however, state that a rule applies only when a series of conditions are met or proven to be true. To follow our example:
A bargain requires:
1. an offer AND
2. acceptance AND
3. consideration.2
A variation on this type of rule would set forth a list of alternative conditions where any one of them can be present in order for the proposition to apply. In this case you would apply the word "OR" instead of "AND" to the list.
Exception rules are just the flip side of condition rules. Instead of listing conditions in order for the rule to apply, you list an exception to where a rule does not apply. Exception rules are used when the list of conditions is so great that it's easier to state the rule as a declarative rule then tell judges when the rule doesn't apply - i.e. the proposition holds true most of the time except for some circumstances.
In our example above, we need a definition of consideration to satisfy the third element of a bargain. Consideration is generally defined as either a promise or actual performance. However, consideration can't be a promise to make a gift. The reason for this is that the person receiving the gift is bound to give anything in return. Consequently, you can't have a contract to give someone a gift because there is no bargain. However, there's an exception to the rule. Here's how it works.
A promise to make a gift is not good consideration thus no contract is formed
UNLESS there is reliance on the promise.
Courts have carved out an exception to the rule that you can't have a contract to give a gift when the person who would receive the gift relies on the promise that the gift will be made.
Often a more complex rule will not fit into any of these broad categories. Instead, the rule mixes conditions together with exceptions. Your goal is to develop a method for stating the rule that makes it easy to identify the elements.
Terms of Art
You can see in our example that as you step through the rules, each rule brings up a term that needs further definition. In this example, we could continue to examine the rule by defining the term reliance. These elements are often known as terms of art.
Terms of art are simple words like "consideration," "reliance," "intent," "reasonable," or "causation" that carry greater significance in the legal context than they do in ordinary speech. For example, for lawyers the word "reasonable" changes according to the "standards of an ordinary and prudent person in the same or similar circumstances."
2 In contract law, consideration is the term used to indicate what is being exchanged between the parties. For instance, in a contract to sell a car for $1000, the seller's consideration is a promise to deliver the car for $1000. The buyer's consideration is a promise to tender $1000 in exchange for the car.
Extracting the Rule
There are three steps in rule extraction.
Step 1: Identify the rule in case law.
Step 2: State the rule in your own words and list each element that needs to be proven.
Step 3: State the public policy behind the rule.
Step One: Identify the Rule
Look for a declarative sentence that addresses the issue the court is trying to resolve.
Some language that identifies the rule:
• "As a matter of common law...."
• "In this jurisdiction..."
• "The more modern rule is..."
• "Contracts are void when..."
• "The present case is controlled by..."
Sometimes, however, it's not so easy. There are two situations that give first year students difficulty. In the first situation, the judge doesn't explicitly state the rule. In the second situation, the judge gives so many different rules that it's hard to know which rule applies. In this second situation, the judge often traces the development of rule from the common law and talks at length about how other jurisdictions differ in the application of the rule.
The solution in either situation is to ferret out the rule as implied by the holding. You identify the rule by looking at how the court resolves the issue. You generalize and form a rule that takes into account the facts of the case by making an inference from the holding of the case.
EXAMPLE
Facts: Two dogs were fighting, and a man tries to separate the dogs with a stick. He is seriously hurt in the process and sues the owner of the dogs for negligence.
Holding: The court rules that "no reasonable person in those circumstances would have assumed the risk of separating the dogs without knowing that he might be hurt. Thus the owner of the dogs is not liable."
Extracting the Rule: The court has not stated a rule but has given you a holding or judgment of the case. You can infer several principles from that holding. Such cases are judged by the following principles: 1) the circumstances, 2) what a reasonable person would do and 3) assuming a known risk means you can't hold another party liable for damages.
Step Two: Restate the rule.
Most students just copy the rule from the casebook verbatim into their notes. The more astute student restates the rule in her own words in order to get a clearer sense of what has to be proven in order to apply the rule.
Stating the rule is a two-part process.
Part 1: Restate the rule in your own words in order to clarify that you understand it and remember it better.
As with any course of study or in any form of communication, when you restate what someone else has said in your own words, you are making sure that you understand the nuances of everything they have said. In a way, you are creating your own mini-Restatement of the law in the words of a 21st century lawyer. You can then compare what you have said with the case law to see whether you have understood all of the elements correctly.
Part 2: Break the rule into elements that must be satisfied in order for the rule to apply.
Breaking the rule into elements makes it easier for you to analyze the rule in a given set of circumstances. This is a crucial step in organizing your analysis and in outlining. By breaking the rule into elements - i.e. its terms of art - you will be better able to scan your notes easily to get the gist of the principle when studying for an exam.
Formatting the Rule
When breaking the rule into elements, put each element on a separate line. This helps you to visually absorb the rule. For some people, this type of formatting appears awkward and interferes with learning the law. They prefer to see the rule written out as a sentence. If you do write the rule as a sentence then be sure to highlight the elements by underlining or italicizing the key elements.
I prefer to take rule extraction a step further. I use a computer programming approach and break the rule into its logical components in order to see the flow. The old computer programming language BASIC uses logical commands to construct rules that the program would then follow. In the same way, you can program legal rules into a neat sequence of logical statements that are constructed as IF-THEN statements.
IF-THEN Structure EXAMPLE
IF (condition is true) IF you run a stop sign
THEN (result is true) THEN you've violated a traffic law.
However, if there's one truism in the law, it's that the law is seldom as simple as an IF-THEN statement. There are nearly always multiple conditions that have to be met and exceptions to the rule for unusual circumstances.
Consequently, the simple IF-THEN statement also needs lots of other commands. One of the mind-boggling aspects of the law is how easily rules seem to contradict themselves.
The IF-THEN statement is made more complex with the operators AND, OR, BUT, NOT, UNLESS. These are known as Boolean operators and are familiar to anyone who has searched for information in a database (such as Lexis or WestLaw) or used one of the Internet search engines.
Boolean operators can be used with the traditional IF-THEN statement or can be combined with declarative rules with similar results. Use the technique that seems most understandable to you.
IF-THEN Structure with conditions Declarative Structure with conditions
IF (condition)
AND (condition)
OR (condition)
UNLESS (condition)
THEN (result is true). (Result is true) IF
(condition)
AND (condition)
OR (condition)
UNLESS (condition)
The UNLESS operator can be used in this system of stating the rule to list defenses to a particular rule when one party might be liable or guilty.
EXAMPLE of Declarative Rule with Conditions
The tort of intentional infliction of emotional distress exists IF the defendant
1. acted with either extreme OR outrageous conduct
2. AND intended to cause severe emotional distress to plaintiff
OR behaved with reckless disregard to emotional state of plaintiff
3. AND the acts were the actual or proximate cause of the distress
4. AND severe emotional distress actually occurred.
You can see that there are four conditions that have to be proven in order to find a defendant liable for intentional infliction of emotional distress.
CAPITAL letters are used with conjunctions (AND/OR), conditions (IF) or exception (UNLESS) in order to signal a connection between ideas. Use italics, underlining or boldface on key words to help identify key concepts and ideas quickly in an exam. We'll see in the next chapter how highlighting terms of art in the rule helps organize the next step of analysis.
Operators that help create a rule
• IF - THEN
• AND, OR
• BUT NOT
• UNLESS
• HOWEVER
• WHILE
• WHENEVER
• EXCEPT
• EXCEPTIONS
As you can see, this type of flowcharting can quickly get out of hand. So much of the law is interrelated, you can quickly start a long flowchart that becomes incomprehensible because there are so many conditions that have to be met. It is important to break off the rule at some point that makes sense so that you have discrete chunks of rules to follow that are easily grasped and then put together.
Sometimes you won't need the Boolean operators to make sense of a rule. However, you will still want to separate each element that needs to be proven in order to easily and visually see that each condition must be satisfied in order to apply the rule.
EXAMPLE: BURGLARY
A party is guilty of common law burglary IF there was
1. a breaking
2. and entering
3. of a dwelling
4. at night
5. with the intent to commit a felony therein.
Here, it's unnecessary to add the word "AND" to every line. It messes with the flow of the rule and would be visually unattractive. Use the Boolean operator with discretion in order to facilitate your understanding of the rule and to indicate a logical change in the conditions.
Step Three: State the Public Policy behind the Rule
The final step is to state the underlying public policy or doctrine behind the rule. Answer the question: Why does this rule exist? What societal goals, if any, are furthered by this rule? Is the rule merely one of fairness or equity or is there some economic justification for the rule?
Policy plays a key role in analysis. Sometimes, the particular facts of a case may satisfy the elements of the rule but the result is not consistent with the underlying doctrine. It's likely that the court would then consider that particular set of circumstances as an exception to the rule. By noting the policy, you integrate the policy into the rule as a condition that must be satisfied. In general, a rule will be true only if it's policy is furthered by the application of the rule.
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The IRAC Formula
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The IRAC Triad
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The Rule of Law - In Depth
Taxonomy of Rules
Form and Function of Rules
Extracting the Rule
Analysis - In Depth
Analysis for Beginners
The Four Types of Analytical Tests
Analysis - In Depth
The single most important skill for a lawyer is the ability to analyze an issue. Professors award high grades based on good analysis. For the exam, the professor develops a hypothetical dispute where the judicial decision could go either way. There is no right answer as to the dispute, but the excellent answer analyzes all of the facts and issues.
Analysis for Beginners
Analysis is the simple act of proving each element of a rule to be true or false. To analyze, you must first break up the rule into elements to be proven. This makes the analysis easier since we're working with smaller elements. You then list all of the facts and circumstances of a case. Next, you simply match up the facts to the elements to see if the element exists.
EXAMPLE
At 12 noon, Joe forces open the door of a houseboat and enters the cabin. He takes the houseboat's expensive navigation equipment, which he plans to sell at a pawnshop the next day.
Using the rule for burglary, we match up the facts to the elements to analyze the outcome.
Elements of Rule of common law burglary Facts of case Proven True?
Breaking Forces open door with crowbar. Yes.
Entering Enters cabin. Yes
Of a dwelling Houseboat Maybe. If structure is used as a residence - i.e. someone sleeps there regularly - then it probably qualifies as a dwelling.
At night 12 noon No.
With intent to commit a felony. Plan is to steal expensive equipment and pawn it. Yes.
Conclusion: Common law burglary is not satisfied since the crime did not occur at night.
The goal in a good analysis is to step through every element and match up every fact rather than just coming to a snap conclusion because one of the elements is not satisfied. While the conclusion can be short, the analysis should be full, lengthy and methodical.
The Four Types of Analytical Tests
The analysis is often not as straightforward as matching facts to elements. When the element of a rule is merely whether it's day or night, the analysis is simple. However, if the element definition is fuzzier, then the analysis becomes more difficult. For instance, in Tort law one of the most fuzzy elements for negligence concerns the word "reasonable." If a person acted reasonably then they may not be liable for negligence. However, what's "reasonable?" Was it unreasonable for a landowner to leave an open hole on his property if a trespasser falls in it? Was if instead of trespasser, the injured party was a neighbor that landowner invited over?
Court solve these definition problems by creating different types of tests to handle the tricky problem of fitting facts into elements that have fuzzy definitions. There are four primary methods.
Reasoning by Analogy
Balancing of Factors Test
Judicial Tests
Public Policy Argument
The method used depends on the rule. A court may use one or all of these methods in deciding whether to apply a rule. Think of these techniques as the set of tools that you'll use to apply the rule.
Reasoning by Analogy
To reason by analogy you draw parallels between your hypothetical cases and cases that have already been decided. Since the facts and circumstances often determine the legal issue, you can often simply look to see whether the facts of this case match the facts of previous cases. If the key facts are similar enough, then you can draw an analogy that the decision rendered in the previous case should be used in the current case as well. Likewise, if the material facts are different on key elements of a rule, then you try to distinguish the present case by arguing that it is too different from precedent in order to apply the rule.
In reasoning by analogy, it is not necessary that facts match up exactly. If you do find a case that matches up exactly, then the argument is "on point" (legalese for a slam-dunk). More likely, you will find that key facts are somewhat different. Thus, while you can reason by analogy to bolster an argument, you will often have to use an additional means of persuasion in order to apply a rule.
As you read cases, note what facts prove an element of a rule. Key cases will frequently cite other precedents to show examples of where to draw the line. By building up a list of these examples, you have a database to show you where the line should be drawn.
EXAMPLE:
In Torts, an issue arises over the standard of care that a defendant owed a plaintiff in a negligence case. The rule on the standard of care can be stated as follows:
The standard of care must be that
1. of a reasonable
2. and prudent person
3. under the same or similar circumstances.
Although we have a clear statement of the rule, it's impossible to know what behavior is reasonable and prudent without knowing some examples. Thus we build a database of examples from the case law to show where the courts have found behavior to be or not to be reasonable and prudent. Here are two cases that illustrate the standard.
Breach of Standard of Care: Operator of heavy machinery has sister ride on side of tractor. Sister is killed. Brother's experience and knowledge of machinery should have led him to conclude that it wasn't safe. - Hill v. Sparks 546 S.W.2d 473.
No Standard of Care: In a drive-through bank, a car suddenly starts to back up and defendant throws car into reverse and backs up without looking. He runs into another vehicle and causes damage. Even though defendant didn't look, held to be reasonable behavior because it was an emergency. The other car would have hit him. - Wilson v. Silbert 535 P.2d 1034.
By building the list of examples, we begin to see what is taken into account to determine the standard of care. Prudent behavior may depend on experience and knowledge. The circumstances of an emergency may change the standard temporarily. You can see that these simple examples serve as easy guides. When choosing examples, try to include cases that illustrate holdings on either side of an issue. You want to see the full spectrum of situations when the rule applies and when it doesn't apply.
With these examples in place, you can draw an analogy to the facts and circumstances of your hypothetical. If there was an emergency situation in your example, you would argue that the hypothetical was analogous (or not if that's your position) to Wilson v. Silbert.
Balancing of Factors Test
In the balancing test, the court literally balances the different interests to achieve a just result. To do a balancing test, the court identifies factors to weigh in making its decision. The factors differ according to the issue. Factors might include age, education, experience, wealth, health and intent to do harm.
The factors are not meant to be a laundry list of necessary elements; otherwise, the factors would be incorporated into the rule. Rather, each factor is just another weight tipping the scale toward applying the rule until enough of the factors are present that you've satisfied the condition. This technique gives the court some leeway to adjust the result given a set of circumstances.
Often the courts will say "no single factor is dispositive," meaning that one fact or set of facts won't decide the case. Also, you can be light in one factor and heavy in another and still apply the rule. Be sure to note whether the cases allow this sort of flexibility in applying factors. Use it only when cases specifically state that alternative weights are allowed.
General principles of the Balancing Test
• Consider all of the facts and circumstances.
• No one factor determines the case.
• Equity: This is the moralistic argument that we want to cure harms to an injured party and deter bad behavior.
EXAMPLE
In contract law, one party can make a contract void if the terms are found to be unconscionable. First, we state the rule on unconscionability by listing the elements that must be proven in order for unconscionability to be present.
Rule
Unconscionability in a contract exists IF there is:
1. absence of meaningful choice
2. AND terms unreasonably favorable to other party.
Next, we have to prove each of the elements of unconscionability. You will discover in your reading that the first element, "absence of meaningful choice," is proven by a balancing test. The factors to be considered are listed below.
Balancing Test
Weighing the following factors proves absence of meaningful choice:
1. gross inequality of bargaining power
2. unfair surprise by the one of the parties
3. lack of education of one of the parties.
4. hidden terms in the fine print of the contract.
The next step is to take each of these factors and see if it exists in the professor's hypothetical. You will want to weigh all of the factors to see whether the bulk of the factors suggest unconscionability.
Hypothetical Facts
A retailer in an inner city neighborhood has a contract where residents can purchase furniture on the installment plan. Residents tend to buy all of their furniture at this store - sometimes buying a piece every three to six months. However, if the buyer misses a payment on a single piece of furniture, the contract allows the retailer to repossess every piece of furniture the buyer has ever bought regardless of whether they have paid off all of the previous purchases. For instance, over the course of five years, a customer buys a TV, sofa, bed and table. She pays off all of the purchases. She then buys a desk but misses three payments. Under the contract, the store can repossess the TV, sofa, bed, table and the desk to cover the depreciation of the desk.
Issue: Was there an absence of meaningful choice?
Balancing Test Analysis
1. Gross inequality of bargaining power: Because of the lack of transportation, there is only one merchant who sells furniture in the inner city neighborhood. The residents have no other person to bargain with. They either have to buy furniture from the merchant at his high prices or go without the furniture. The retailer is essentially holding these buyers hostage.
2. Unfair surprise: These are terms that are unusual for most contracts. A reasonable person would think that the once they have paid off a particular item of furniture, it is there's to keep. An installment plan typically only requires repossession of the item bought and does not create a security interest in additional items.
3. Lack of education: The level of education will help determine whether the buyer had a reasonable opportunity to understand the terms of the contract. If the buyers were uneducated, then that suggests that they never expressly agreed to these terms.
4. Hidden terms: If the retailer hid the terms in the fine print of the contract or engaged in deceptive sales practices to mislead the buyer, then that also suggests that the buyer did not have full knowledge of the unreasonable terms.
No single factor by itself will prove the element. In fact, you might even have a highly educated person and still have an unconscionable contract if the rest of the factors are strong. Here, on balance, we can probably conclude that there was an absence of meaningful choice. (See Williams v. Walker-Thomas Furniture Co. 350 F.2d 445 for a real world example of this hypothetical.)
Judicial Tests
Courts also articulate a judicial "IF-THEN" test that proves a particular element. The test is sometimes couched in terms of probability. It may ask a series of questions that would prove an element. Usually, a test will allow the court some flexibility for interpretation in order to achieve a just result.
EXAMPLE
In tort law, a person can claim self-defense if they use force against someone who attacked them first. The rule on self defense requires three elements
Rule
A defendant can claim self defense against a charge of battery IF:
1. The defendant used proportional force against offensive bodily contact
2. AND there was a reasonable belief of necessity to use force under the circumstances
3. AND there was an immediate need to use the force.
We're focusing on the first element of the rule. What constitutes proportional force can be vague. For instance, is a gun proportional force against a penknife? A four-inch blade? A nine-inch hunting knife in the hands of a 200 pound male who's an an ex-Marine? In the hands of the a little old lady with arthritis? As you can see, the distinctions can easily become blurred and it's hard to know where to draw the line. Consequently, the courts have developed a test that allows the judge to formulate an answer.
Judicial Test
Self-defense is proportional IF the force used is no more than is adequate to stop the onslaught of the assault.
1. If the force is non-deadly then it should be met with non-deadly force.
2. Deadly force (e.g. a gun or other weapon that causes seriously bodily injury) should only be used when deadly force is threatened.
As you can see, this test lends some certainty as to what is proportional while still giving the court some room for interpretation.
Public Policy Argument
A good fallback method for proving a rule is to ask whether the underlying public policy of the rule is furthered by the application of the rule. Sometimes, you will be presented with a set of facts that on the surface are identical or similar to case law. However, if you applied the rule in these circumstances, the result would somehow be unjust. If that is the case, then look to the policy of the rule. Why is the rule in existence? Have judges used this rule for equity's sake, economic efficiency or because it lends certainty to the process.
Policy arguments are particularly useful in balancing tests. The policy, in fact, might be considered yet another factor to weigh in the analysis. If the policy is or is not furthered by application of the rule, then that element should be given significant weight.
EXAMPLE
In criminal law, the charge of burglary carries with it a greater penalty than mere theft. The policy behind it is that society wants to distinguish between petty theft and more serious takings of property. However, the common law rule for burglary required several elements.
Common Law Rule on Burglary
The charge of burglary is proven IF there is:
1. breaking
2. entering
3. of a dwelling
4. at night
5. with the intent to commit a felony therein.
The problem with this rule is that it doesn't further the underlying policy. A thief could break into a barn, which is not considered a dwelling since no one lives there, and steal valuable farm equipment. Likewise, a thief could enter a house and clear it out at daytime under this rule and not be guilty of burglary. Since the policy did not match up with the rule, courts started to liberalize the rule so that interpretations of dwelling were expanded or the nighttime requirement dropped. Today's rule is much more flexible.
Modern Rule on Burglary
The charge of burglary is proven IF there is an:
1. entering
2. of a structure
3. with the intent to commit a crime therein.
Some of the common public policy arguments that are used in the law include the following.
Common Public Policies
• Equity: This is the moralistic argument that we want to cure harms to an injured party and deter bad behavior.
• Economic Efficiency: This policy suggests that all rules be based on a cost-benefit analysis. Society has to have some losses in order to make gains. For instance, this view holds that you can breach a contract and only have to pay damages if it would be economically wasteful to carry out the contract.
• Predictability: Is the rule fashioned in such a way that it lends certainty to the judicial process. Everyone knows that there is a bright line rule. Cross over it and you've violated the rule. This sort of rule also lends administrative efficiency to the court such that balancing tests are not used.
***********************
1. Adopt the right frame of mind
Attitude is Essential!
Four Strategies to Think like a Lawyer
Four Strategies to Excel as a Student
Two Strategies to Bolster Self Confidence
Attitude is Essential!
Anyone, regardless of education or LSAT score, can learn how to be successful in law school. It doesn't matter how high your IQ is or what your grades were as an undergraduate. There is a simple formula to legal reasoning that can be learned inside of ten minutes and practiced to perfection for the rest of your life. To help you use this formula, however, it helps to adopt a new way of looking at the world. In other words, you need to start thinking like a lawyer. Here's how to do it.
Four Strategies to Think like a Lawyer
Law school is not about learning a set of rules. Law school is designed to teach you how to "think like a lawyer." Professors have long ago settled that lawyers can always look the law up in a book, but designing an argument and analyzing a legal problem is a matter of reshaping the way a person thinks. Four key strategies will aid you in thinking like a lawyer.
Four Strategies to Think like a Lawyer
1. Accept ambiguity
2. Don't be emotionally tied to a position
3. Argue both sides
4. Question everything
Strategy #1: Accept ambiguity.
Consider the following rule of law:
There is always an exception for every rule of law, except for the rules in which there are no exceptions.
At first glance this statement seems circular and contradictory. It states a general proposition that every rule has an exception. Then it goes onto say that there's an exception to this rule for rules that have no exceptions. It's like the childhood riddle, where someone states, "I am a liar." If that person is a liar, how do you know that they are telling the truth in the statement that they are a liar?
The law is full of conundrums and ambiguities like this one. If you can accept the interplay between those two statements without being distressed at the inherent fuzziness, then you will do well in studying the law. The law is inherently fuzzy in order to be flexible. Although judges attempt to interpret laws that are clear, there is almost always a set of circumstances where applying the rule would be unjust. Consequently, some latitude exists in the law in order to reach a just result.
This can drive you mad as a first year law student. You want as clear of an answer as you would get in mathematics or physics. The law is seldom black and white. Everything is a shade of gray. The right answer is almost always couched in terms of probabilities. "Maybe he's liable for damages." "He'll probably go to jail for murder."
There is no way around this, and the best method is to embrace and accept the inherent ambiguity of the law as a strength. Instead of thinking of the law as ambiguous, consider it flexible. Your skill as a lawyer will be in how you can use this flexibility to achieve the correct result for your client.
Strategy #2: Don't be emotionally tied to a position.
One of the biggest traps that professors use on unwary first year law students is playing on the emotions. The professor poses a hypothetical situation in which it's easy to hate one of the parties and sympathize with the other. The trick is to apply the law neutrally in response to the parties' legal rights and not your personal feelings.
The classic example is a situation in which a group of Neo-Nazis attempts to assert their First Amendment rights for free speech by holding demonstrations in a city largely populated with Jewish people who are concentration camp survivors.
Naturally, almost everyone feels sympathy for the concentration camp survivors. These people shouldn't have to be subjected to a Neo-Nazi's political belief in their own home. However, professors purposefully set up situations that create internal emotional conflict in order to illustrate that you should judge a situation according to the law and not let your individual biases get in the way. The correct legal result here is that the Neo-Nazi possesses a free speech right even in these circumstances so long as they are not inciting a riot.
This does not mean that you have to check your ethics at the door of law school. People complain that lawyers have no morals but these critics don't see the higher principles that are at stake. Those higher principles might be constitutional rights such as free speech or the right to be represented by counsel. This is the higher ethical ground that you need to take as an attorney rather than siding with one party or another merely because of your own political beliefs.
Finally, be aware that the professor's hypothetical situations are not the real world. While you may not like the result of the hypothetical, you need to demonstrate to the professor that you know how to apply the law. If you really feel that the result is unjust, then state the law with the correct legal result followed by your reasons on why you don't think the result is just. Just remember that it's a hypothetical. Don't be tied emotionally to things that don't matter.
Strategy #3: Argue both sides.
In order to avoid being emotionally tied to a position, you should always try to argue both sides of an issue. Luckily, the same ambiguity of the law that drives you crazy in Strategy # 1 allows you the flexibility to be on either side of a question in Strategy #3. Adopting this attitude will better prepare you for the exam and the practice of law. You want to be able to take on either a defendant's or plaintiff's position for any given legal issue because you don't know whether the facts on the exam will lean towards one side or the other.
One of the biggest traps that first year law students fall into is studying only from their own point of view. For instance, some people are naturally plaintiff's attorneys - fighting for the underdog against the big corporate giant. Others tend towards representing defendants - protecting shareholder interests from people out to make a quick buck on a fraudulent claim. Each side is sometimes right and sometimes wrong. Your immediate goal on the exam is not to figure out what kind of lawyer you are. Your immediate goal is to do well on the exam. This means that need to be able to argue the side that seems to be correct given the facts. This may, in fact, be a party that you wouldn't normally side with.
One major upside to this sort of training is that it will make you a better lawyer to be able to argue both sides of a case. Once you do adopt a plaintiff's or defendant's posture in real life, you will benefit from knowing what arguments the other side will bring forth. If you can understand the intricacies of another side's case, then you can better attack that argument.
Strategy #4: Question everything.
Around the age of two years old, a child often starts asking his or her parents "Why?" You should be like a two-year-old. Every rule of law, judicial decision, statute and legal construct has a reason for its existence. It may not be a very good reason, but you will be a better lawyer for behaving like a two year old and repeatedly asking "Why?"
This act of questioning focuses you on policy as a basis for the law. Understanding policy will carry you far in successfully writing exams. Arguing policy is one of the four key methods of analysis.
Four Strategies to Excel as a Student
Law school is as much a psychological game as it is an intellectual game. Students defeat themselves ahead of time by stressing out on the workload. You can put yourself in a better position as a student by adopting these simple attitudes.
Four Strategies to Excel as a Student
1. Keep your cool
2. Compete only with yourself
3. Play with concepts like a new toy
4. Strive for balance in your life
Strategy #1: Keep your cool.
Law professors use fear as a tool to motivate students to 1) work hard and 2) be cautious lawyers. Many professors feel that a little anxiety is a good thing for students. The very structure of the case method and Socratic dialogue used in most classrooms helps foster this fear since nothing is laid out on the table.
However, fear also takes you away from learning. It's a waste of valuable energy. Instead of focusing on the learning, you focus on the fear of not "getting it." To counteract the fear that is inherent in law school, consider three ideas:
First, everyone in your class is in the same state of ignorance. No one knows what's coming next.
Second, if you make a mistake in the classroom, it doesn't count. The only grade that counts in most law school classes is the final. Relax and make mistakes. It will help you in the exam to know your weak points.
Third, hundreds of thousands of students have sat where you're sitting now and have survived and thrived.
Some people purposefully create stress as a motivator for themselves. They freak out at the workload and use it as a way to bond with other students. Stay away from the people who are stressing out. Stress creates stress, and you want to focus your energies on studying, not stressing out.
Strategy #2: Compete only with yourself.
Although grades are important, it's also important to put them in perspective. One key factor in getting good grades is to forget about them and concentrate on the learning. Focusing on the competition - i.e. your fellow students - takes your eye off the ball, which is to learn the law. If you are constantly sizing up the competition and comparing yourself then you are taking yourself away from valuable study time.
Consider the following truism:
While grades are the only thing that counts, grades also count as only one thing.
The idea here is to recognize the importance of grades in determining certain things, such as law review, summer jobs and so on. At the same time, you realize that the learning and relationships are far more important keys to happiness than grades.
The stress of getting good grades often creates competition, which leads to bad feelings between students. There are true stories of people hiding books in the library or ripping pages out of case books that are necessary to complete an assignment. This sort of competition can be very destructive.
The best strategy to deal with the stress of grades is to compete only with yourself and not others. The people in your class are your future colleagues. Building trust and relationships with these people will take you much further than any marginal increase in grades you might get from cut-throat competitive tactics for grades. The most successful people in the world are not those who are most competitive with others. Rather, the most successful are those who compete with themselves to learn the most.
Strategy #3: Play with concepts like a new toy.
Whenever you learn a new legal concept, play with as if you were a kid and the concept was the coolest, neatest, newest toy that you own.
Make the concept your own by restating the principle in your own words. Turn the idea over in your head as you're walking to class or taking a shower. Whenever you learn a new rule, restate it a dozen times until you don't need notes to say it by heart. Once you really understand that concept by putting it in your own words, move on to other principles.
Apply the rule to your everyday situations. For instance, you might begin to apply the principles you learn in Contract law to your everyday dealings with grocers and retailers. As you drive down the highway, consider what you would have to prove to bring a negligence suit in Tort if there were an accident. If the car crash was caused by a faulty part in a foreign car you were driving, how could you use Civil Procedure to haul the manufacturer into Federal Court.
Closely related to this concept is the idea of making up hypothetical fact patterns in which the rule of law will or will not apply. Try this make-believe technique in order to better learn how to apply the rule. You'll be surprised at how closely you might come to guessing what fact pattern is on the exam.
A lot of the difficulty in learning comes from fighting it. We put ourselves into a non-receptive state by saying, "This is difficult. I don't understand." We also make it harder to learn by not focusing on the learning but by focusing on where we are on the general curve of learning - i.e. what's our class rank. By wasting energy on these areas we don't focus on the area where the true energy should flow - the actual learning of the law. Playing with the concepts like they were toys will defuse that difficulty.
Strategy #4: Strive for balance in your life.
A lot of law students end up studying 12 - 14 hours a days in order to get through all of the reading and work of law school. This can easily lead to burn out. Putting in more hours doesn't necessarily lead to more knowledge. The law of diminishing returns suggests that 80 hours a week may lead to less advancement in the study of law than a focused 40-hour week.
It is essential to have a balance in your life with exercise, eating right and fun time with your friends and family. You will get more out of the classroom if you are alert, well fed and otherwise on top of your game physically and emotionally than you will if you have read yet another treatise about the law.
You need to give law school a break in order to give it your maximum attention later on. You need time when you're not thinking like a lawyer in order to better achieve becoming a lawyer. In the words of the Alan Watts, a professor of Eastern religions, "By going out of your mind, you come to your senses."
Two Strategies to Bolster Self Confidence
Many law students suffer academically because they lack self confidence in their ability to handle the material. By deciding ahead of time that they don't have the ability, they fulfill that prophesy before even trying. In order to succeed academically in law school you have to adopt a belief in your ability. Belief alone won't carry you through to your goals. You also have to put in the work. But without a belief in your ability, you defeat yourself before you begin.
Reprogramming for Success
If you've gotten as far as being accepted into law school, then you have the native intelligence to understand legal reasoning. Hundreds of thousands of people have learned to analyze issues like a lawyer, and you can do it too. If that isn't proof enough, then consider adopting a few techniques to foster self-confidence in studying the law.
One method is through affirmations. Affirmations are a tool you can use to counteract the negative self-image that is ingrained in the subconscious mind. Through the negative messages we receive in childhood, the subconscious mind develops limitations as to what we can achieve. The subconscious tells us that we aren't an "A student," so we never put forth the effort to counteract that negative message.
Affirmations are a powerful tool to reprogram the subconscious. Affirmations are said in front of the mirror in the morning immediately when you get up and in the evening right before you go to sleep. It could be something as simple as:
"I, (your name), am an intelligent, confident, and articulate student who will become an outstanding advocate and attorney for my clients."
Affirmations generally get a bad rap. It's easy to dismiss affirmations as hokey, and, in a way, they are. But affirmations are also incredibly empowering. Affirmations illustrate just how powerful language can be. I challenge you to use affirmations for a week and see if they make a difference in your underlying attitude.
Another method to improve self-confidence is through visualization. High-performance athletes visualize winning a race before running it. During the actual race, they merely put into action what they have already visualized. You can use visualization to be successful in law school before you crack a book. Take a moment to visualize your first year in law school. Close your eyes and imagine a classroom where you and your fellow students engage in a lively debate. See in your mind a situation where you convince your peers to adopt a different viewpoint. Imagine taking your first test, having fun with it and knowing that you aced the exam. Fast-forward to your third year when you graduate. See yourself successfully taking the bar exam in your state. Visualizing doesn't mean that you don't have to do the work, but it will foster the belief in your ability to accomplish the task.
The Myth of Mistakes
Fostering a belief in your ability is difficult when you are constantly faced with making mistakes. Mistakes are a fact of life in law school. The number of mistakes that a law school student makes is enormous. Everything about law school is new. The language of lawyering is new. The process of learning is different than most academic fields. The analytical thought process is a skill that doesn't come easily. You should expect to make mistakes.
Success is determined by what you do with those mistakes. Are mistakes a learning experience or do those mistakes reinforce a belief that you can't do the material? If you can look at each mistake you make in law school as an opportunity to get it right for the exam, I guarantee you that you'll excel.
You're not alone in making mistakes. Did you realize that the best baseball players in the world strike out two thirds of the time they are at bat? Do they let that huge failure ratio deter them? No. Each time they step up to the plate, they have an unwavering belief that this is the ball they are going to hit out of the park. They don't let their failures get in the way of believing in their ultimate ability to succeed.
Recognize to yourself that you are only a beginner. As a beginner, you have to start out with simple concepts and take small steps in learning the material. Sometimes you won't succeed, but that's part of being a beginner. In fact, you want to make mistakes in order to see where you got it wrong the first time through. You must never let your mistakes fool you into believing that you are not capable.
Summing up, there is a two-step approach to putting yourself in the right state of mind. Adopt this phrase as your guiding principle:
Think like a winner by knowing that you will ultimately succeed, but act like a beginner by learning from your mistakes.
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3.Get smart about the case method
Speed Reading a Case
Speed v. Comprehension
Pre-reading Strategy
Taking Notes While Reading
Cases and Casebooks - a Brief History
The Structure of a Casebook
Why Brief a Case?
How to Brief a Case
Sample Case and Brief
Beyond the Casebook: Study Tools
Legal Dictionary
Commercial Outlines
Hornbooks
Study Groups
2Ls and 3Ls
Practice Exams and Model Answers
Speed Reading a Case
Reading your first case is like reading a foreign language you know only slightly. You might recognize the words, but you have to translate the concepts into English. You haven't begun to think in the foreign language yet.
Like a foreign language, case law contains terms not familiar to the first year law student. Cases are written by lawyers for lawyers, consequently the writing contains technical legal jargon and is structured for the legal mind instead of the layperson. To make it even more difficult, judges often use awkward syntax or complex words where simple ones would suffice. It doesn't help that law professors typically dish out a difficult-to-understand case in the first week of law school as a rite of passage to separate the serious students from the laggards.
Typically, the average first year law student reads only three pages an hour in their first month of law school. By the end of the first semester, most students read ten pages an hour and keep at that pace until the end of their second year. However, with the right techniques, you can start at ten pages an hour and leap to twenty or thirty pages within your first semester.
Speed v. Comprehension
There are two ways to measure effective reading - speed and comprehension. Generally, the more speed you have, the lower your comprehension. However, if you are familiar with the subject matter or know the author well, then you can generally pick up the pace of the reading without sacrificing comprehension. Pre-reading is a strategy that achieves that goal.
For most people, comprehension falls off sharply the more quickly a person reads. Assuming all other factors are constant, a student has to put in a certain amount of hours reading in order to get a B average.
Pre-reading gives you an edge by building comprehension into the equation. Thus you start out knowing a few things about the case before actually reading, thereby allowing you to read faster and retain more information. In math terms, the curve shifts before falling off. With pre-reading, the same student as above can put in fewer hours and still maintain his B average.
Pre-reading Strategy
By pre-reading the case, you can decide whether to skim, skip or read a section. This dramatically reduces the time you spend reading unnecessary material.
STEP-BY-STEP: READING STRATEGY
Step 1: Pre-read a case.
-> Read the topic sentence of every paragraph.
-> Spend 2 minutes for every 10 pages.
Step 2: Based on pre-reading, choose the most effective strategy to read each paragraph.
-> Skimming
-> Skipping
-> Reading
Step 1: Pre-reading
Pre-reading gives you the gist of the case to determine whether to skim, skip or thoroughly read a case. Pre-reading is not skimming. Skimming is a more thorough reading of the material than pre-reading. You should resist the impulse to skim the entire case as you pre-read. Think of pre-reading as a superficial skimming of the material.
Pre-reading a 10-page long case in the typical casebook should take no longer than two to three minutes. However, that scant three minutes will take a three page-an-hour reader to ten pages-an-hour almost immediately. A ten page-an-hour reader can leap to twenty pages-an-hour with a little practice.
HOW TO PRE-READ
Pre-reading consists of the following steps.
Step 1: Read the case name.
Step 2: Read the first paragraph or two to understand who the parties are and the issue that brought them to court.
Most cases will give the procedural history, parties and issues in the first two paragraphs.
Step 3: Read the first sentence of each paragraph.
By reading every topic sentence of every paragraph you should get an idea of the structure and general direction that the case is going towards.
Step 4: Read the last paragraph or two so that you understand the holding and disposition of the case.
Not every holding will be given in the last two paragraphs, but the author usually will sum up the ideas of the case as a conclusion in the final paragraphs.
The overview all comes down to getting the big picture sooner. Once you have an overview of a case, you know enough of the contents to read the case quickly and easily. There are four things that you identify as you pre-read.
1. Outcome
2. Elements of the Case
3. Legal Concepts
4. Evolution of Reasoning
Outcome: By knowing the outcome, you have a ready context for the reasoning. Although the suspense is gone, you know where the judge is going with his or her application of the rule.
Elements of the case: You've identified where the judge actually talks about the procedural history, facts, statement of rule, reasoning, holding, etc. See Chapter ___ for more detail on the structure or elements of a case. You should have an easier time going straight to a particular section in order to mentally brief a case.
Legal concepts: Instead of having each legal concept revealed to you one by one, you have the big picture ahead of time. A typical Contracts case, for example, might discuss many different rules all in the context of one issue. By knowing that three distinct rules come into play, you pinpoint the most relevant rule ahead of time.
Evolution of Reasoning: Typically, a judge will step through a case such that he or she cites the development of a rule from the common law through the debates in the legislature when the current law was originally passed. Some of this is superfluous for your purposes.
Step 2: Skimming, Skipping or Reading
Skipping: As a result of pre-reading, you can determine which paragraphs you can skip altogether. Judges often trace the development of a rule from the common law beginnings to its passage by the legislature. Since the casebook usually groups similar cases together, you will find yourself going through the same historical beginnings many times over. At some point, you can just skip this material altogether.
Although it sounds counter-intuitive, skipping can actually increase overall comprehension. Typically, students become bored when they keep rereading the same material. By skipping through material that is already familiar, you keep the pace fresh so that your mind doesn't wander.
Here are some typical paragraphs that you can skip:
• Discussion of the historical basis of a rule that has already been discussed in a previous case.
• Ancillary legal concepts that are not relevant to the legal concept being discussed.
• Examples of a principle that you already understand.
Skimming: Skimming is different from pre-reading. Skimming means you are reading everything lightly - giving it the once over. In skimming, you don't read every word, but you do scan every sentence. Instead of reading words as a single element, you read phrases. You use skimming when you are basically familiar with the material but need more information than what you got out of the overview.
Reading: Reading doesn't mean that you have to read every word. For most people, the mind is quicker than the eye. The mind typically gets bored if you read every word. By training your eyes to go quickly over each sentence, you can learn to read faster. It takes practice, and it's beyond the scope of this book to offer exercises in speed reading cases. There are many fine speed-reading books available. It pays to learn and practice speed-reading the summer before law school. Once the semester starts, you will be hard pressed to read every assignment during your first semester. However, if you haven't taken the time to learn how to speed-read, then you can still benefit from the easy to learn pre-reading strategy.
Taking Notes While Reading
One pitfall that most students fall into is highlighting nearly everything in a case. It's common in the first year to think that everything is relevant. The trick is to pre-read without highlighting anything! This can be tough because as you pre-read you get a sense of what is important and naturally want to note it. However, you can never really know what is important until you read an entire piece.
By not highlighting anything on your first pass, you also save time in the long run when you outline. When you outline, you return to a case a few weeks after you first read it. With unnecessary highlighting, you end up spending a lot of time rereading to find out what is relevant in a given case.
On your second pass through the case, identify the relevant sections and highlight the issue, rule, facts, analysis, policy, procedural history and other elements. Identify the elements with a notation in the margin. Some students use different colored highlighters to identify different elements. One color is used for the rule, another for the issue, and so on. This usually works well only for highly visual people. For myself, I find that different colors slow you down and only add to the confusion of too much highlighting.
As in all things, if it works for you and adds to your productivity and efficiency, then do it. Otherwise, eliminating the clutter will speed you along your way.
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4. keep class time in perspective
The First Day
Typical Questions Professors Ask
Five Essential Notes to Take in Class
Shorthand for Legal Terms
Recording Lectures
Computers in the Classroom
The First Day
You've read the case. You've written a brief. Now it's time for class.
More than anything else, law school is about precision in language. Anything you say in class can and will be used against you by your fellow students or the professor. However, don't fear the questions. Look forward to your chance in the hot seat. It doesn't matter if you make mistakes in class. In fact, classes are the perfect place to make mistakes. Making a mistake clears up the problem in your own mind and probably that of your fellow students as well.
In the Socratic Dialogue the professor asks a question, and the student responds. With each response the professor asks another question delving deeper into the court's reasoning. Just when you think every possible question has been answered, the professor changes the facts of the case and starts over.
The Socratic Dialogue is meant to stimulate lawerly-like thinking. While effective, the Socratic Dialogue is also the long way around to teaching legal reasoning. It can also be very demoralizing for the student because the professor's role is to trip students so they can see their mistakes. At its worst, the Socratic Dialogue becomes a sadistic interrogation.
One of the common traps in the Socratic Dialogue is to get a student stuck on the logical ground of the slippery slope argument. In the slippery slope, a professor establishes a rule of law then asks the student to a draw a line where the rule should or shouldn't apply. This is a very fact specific question. By changing the facts slightly, the professor tries to illustrate that the policy of the rule may no longer apply though the facts might justify application of the rule.
Typical Questions Professors Ask
• Who are the parties?
• What are the facts of the case?
• Which court is this?
• How did this case get to this court?
• How did the lower court rule?
• Who is the appellant (or respondent)?
• What is in dispute?
• What question does the court have to answer?
• What is the common law rule?
• What is the policy behind the rule?
• Does the court fashion a new rule of law?
• What is the holding of the case?
• If the facts were changed so that (professor suggests an additional relevant fact) would the court rule the same?
• How did the dissent decide this case differently?
Five Essential Notes to Take in Class
Ninety per cent of what is discussed in class is unnecessary for the exam. Consequently, a good deal of the material is unnecessary for your outline as well. However, there are five essential notes you want to take out of every class. If you isolate each element, you will have the makings of a good outline for the exam.
Out of each class you want to:
1. Extract the rule of the case.
2. Explain the policy behind the rule.
3. Note which facts in the case prove the rule.
4. Understand the reasoning behind the case.
5. Note the professor's opinion about the case or rule.
If the professor has spent a lot of time on one element, factor, test or example then make a special note of it. Highlight the element with some sort of special formatting to that the professor considers it important. For instance, you might reserve the format device of underlining for professor inspired elements.
Finally, develop a shorthand that you can use in order to quickly note legal issues and common legal phrases. Comments move quickly in class and you don't want to be left scribbling common terms while important and complex concepts pass you by. Here are a few suggestions for first year classes.
Shorthand for Legal Terms
Common Law C/L Judge J.
Constitutional Con Murder M
Contract K Negligence Negl
Court Ct. Plaintiff IMAGE
Criminal Crim Reasonable Reas.
Defendant IMAGE Supreme Court SC
Recording Lectures
Many first year students record the professor's lectures on tape. This can be a good way to pick things you missed the first time through. One downside, however, is that in the Socratic dialogue, it may be difficult for the tape recorder to pick up both the student's and the professor's voice. You may get only half of the conversation. Furthermore, most students find that they don't have time to listen to the tapes. One alternative is to listen to the tapes while exercising or commuting. It helps reinforce the lecture without taking away from more structured study time.
If the professor starts or ends each class with a summary of what you've studied, then another useful technique is tape just the summary. If you have a dual tape cassette recorder, you can then create a "Best of" tape, which strings all of the summaries together. By the end of the semester, you have, in the professor's own words, a capsule summary of what she thinks is important in the area you're studying. If you hit these high points in the exam, you're sure to do well on the final.
Computers in the Classroom
More students are beginning to take notes on their laptops. If you type faster than you write, then it may be a good idea to bring your computer with you.
The danger is in relying on those notes to form your outline without going through the notes and rewriting them. Taking notes on a computer does not eliminate the step of re-entering the information when you begin to outline. To see the benefit of outlining, you should really rethink the material. Rewriting the material facilitates rethinking.
Be wary of buying a laptop solely for the purpose of typing in class. You should check on the logistics of the classroom like the height of the desks at your law school and whether there are outlets to save battery power. In some of the older schools, the desks are so high that it makes typing uncomfortable and impractical. Also, many schools are not equipped with outlets, so always be sure you have enough battery power to get through class. Finally, be aware that some of your classmates may find the typing you do in class annoying. Try not to be too heavy handed on the keyboard while in class.
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5. create an outline for each class
Why Outline When You Can Buy One?
When and What to Outline
How to Outline: 6 Easy Steps
What to Leave Out
Before the Exam - The One-Page Outline
Why Outline When You Can Buy One?
Given the time pressures of law school, many students are left wondering why they should outline at all. Commercial outlines that are written by experts are readily available at cheap prices. Moreover, creating your own outline is time-consuming and difficult.
Statistics show that students who create their own outlines invariably do better on exams than those who rely on commercial outlines.1 It's the process of creating the outline and bringing the material into a cohesive and understandable format that makes the difference. Merely possessing an outline written by the professor or an outstanding student does not guarantee success.
Outlines are simply condensed summaries of the rules of law. The outline serves three primary functions.
First, it helps tremendously in getting you to think like a lawyer. You synthesize your class notes, briefs, reading and secondary sources into one coherent body of law.
Second, you remember the rules better by restating it in your own words. It will help you memorize the material by rewriting and reorganizing it.
Third, the outline is your primary tool in tackling the exam. In the final week before the exam, you out your casebook and class notes on a shelf and concentrate only on your outline. The outline makes you more efficient by giving you focus. Even if your professor allows an open book exam, you'll want to outline in order to be more efficient in using notes during the exam.
There are abundant resources in commercial outlines. However, you won't necessarily succeed by having the best commercial outline or in having an Honors Student's outline from the past. It is the process of outlining that spells the most success for a student. If you do use another student's outline, make sure that she had the same professor as you do. Professors teach their courses differently to emphasize different areas of the law.
1 Michael J. Patton, "The Student, The Situation, and Performance During the First Year of Law School," 21 Journal of Legal Education 10 (1968); Guy R. Loftman, "Study Habits and Their Effectiveness in Legal Education," Journal of Legal Education 418 (1975).
When and What to Outline
While many students attempt to outline, few know how to do it effectively in the first year. Outlining skills are usually not taught in law school. Also, many students start too late in the semester to take advantage of the process. By the time they start outlining, they've forgotten the nuances of the first half of the course. On the other end of the scale, some students start to outline too early. There's a danger of starting before you really have a grasp on the material. You need to know the material before you start to condense it into an outline.
Outlines should be started when you finish a significant portion of the course, but not beforehand. You can figure out when to start outlining by looking at the table of contents in your casebook and comparing it with the syllabus of the course. Most casebooks are broken into sections in which there are three or four chapters comprising 100 pages or so of material. In the standard first year course, this material might take five or six classes. What follows is an example of a break down of major sections and subsections for a Torts class.
Sample Torts Table of Contents
1. Intentional Torts
a. Assault
b. Battery
c. False Imprisonment
d. Intentional Infliction of Emotional Distress
e. Defense - Self Defense, Consent, Privilege
2. Negligence
a. Duty of Care
b. Breach of Duty
c. Causation
d. Defenses - Contributory Negligence, Assumption of Risk, Statute of Limitations
3. Strict Liability
a. Trespassory Torts
b. Nuisance
c. Products Liability
d. Defenses
Using the sample above, you would want to start outlining only after you have covered an entire section of material, such as all of the Intentional Torts. Although you may feel that you are ready to outline after covering only Assault and Battery, it would be better to wait until you have also covered False Imprisonment and Emotional Distress. Although the areas do not seem related, those torts all have the underlying element of "intent" in common. To fully understand the concept of intent, the other torts will lend insight. Alternatively, don't wait too long. Be sure to start outlining the material once you've completed a section while it is still fresh.
How to Outline: 6 Easy Steps
Outlining accomplishes two tasks:
1. Synthesis
2. Organization
The outline should not just rehash the book or lecture notes. If you're only regurgitating what the professor said in class or copying what the casebook author wrote, then you are missing the whole point of outlining - to get you to think like a lawyer.
Here are the steps you should take in doing your first outline.
Step-by-Step: How to Outline
Step One: Assemble the Materials
Step Two: Create a Template
Step Three: Organize the Big Picture
Step Four: Synthesize the Rule
Step Five: Illustrate the Analysis
Step Six: Provide Case Summaries
Step One: Assemble the Materials
Although it seems self-evident, you'll want to have a large workspace that is clear of clutter. Gather together every possible book, note, handout or scrap of paper relating to your class. Here's a list of some of the materials that you want to have on hand.
Materials to assemble:
• Casebook
• Class notes
• Case briefs you prepared for class
• Class handouts
• Syllabus
• Secondary sources - e.g. Commercial Outlines, etc.
• A good word processor with outlining features.
As you move through the material, you'll want to check each one of these sources in order to see if anything adds to the analysis of the rule of law or whether your professor added any insight into how the rule should be applied.
One of the most common mistakes that students make in outlining is to rely on only one source - such as the class notes or the book. It's easy to develop a rhythm by moving through the book and forgot to check your class notes in order to see what was said in class. By having a large surface area to work with, you can spread all of the materials out and better handle the multiple sources and references.
You also need a good word processing program that has an Outline mode. A book could be written on choosing the right word processor (and there are such books). It's really a matter of personal preference. The most common word processor is Microsoft Word. Although it's popular to dislike Microsoft because the company is a corporate giant, the fact is that Word is fast becoming a standard in the legal field. Word Perfect was considered the standard among law firms because it formatted legal documents such as court briefs, but Microsoft Word has eclipsed Word Perfect as the word processor of choice.
Regardless of which program you use, be sure to take the time to learn the outlining features of your word processor. The outline mode automatically justifies and indents subheadings. Many students make the mistake of indenting by using tabs. However, using tabs only works well for the first line. If your sentences go to a second line (and they will) the word processor will re-justify to the left margin thus making the document hard to read. Take the time to learn the outline mode. You'll save a lot of time in the long run.
Step Two: Create a Template
A key part to getting started is to create a structure or template. The template is merely a format that you adopt in order to "fill in the blanks" as you move through the material. The standard template organizes the material according to IRAC. The template keeps the structure consistent as you jump back and forth between different issues.
The template should have preset headings for the material that you want to gather. By having a clear understanding of where the elements go, you will move through the material more quickly. Create the template in your word processor and leave a copy of it at the top of bottom of your document so that you can easily copy and paste the template as you come to a new issue. It will save you time in the long run.
SAMPLE TEMPLATE
I. Legal Principle
A. Issue / Scope1. Issue: The scope of what's covered under this heading helps you organize and scan your outline when studying.
B. Rule
1. Common Law Rule:
2. Restatement:
3. Model Code:
4. Dissenting Rules:
5. Policy: Rule: A restatement of the rule in your own words broken down into elements. Include variations on the rule such as the Common Law, Restatement, etc.
C. Analysis
1. Reasoning by Analogy:
2. Factor Balancing:
3. Judicial Tests:
4. Policy Arguments: Analysis: Use the four primary forms of proving the rule to give examples that illustrate the use of the rule in real life.
D. Case Summaries1. 2. Cases: Write one or two sentences describing the cases you've read. These summaries are just meant to jog your memory of the case. Emphasize the facts and holding.
Although you have a set structure defined for creating the outline, it should not be rigid. Feel free to modify or leave out elements that don't make sense for a particular legal principle. For the most part, however, this method gives first year students the structure they need to learn the elements of legal reasoning.
The template should also be defined as to the outline style you use - i.e. roman numerals vs. legal outlining style (e.g. 1.1, 1.2, 1.3, 1.3.1, etc.). Most word processors will let you use either approach or a hybrid. What matters in choosing a system is that it makes the most organizational sense to you. Choose a system that will facilitate instant recall and understanding of the material. Don't use someone else's approach if it doesn't make sense. Outlining can be as idiosyncratic as you like so long as it aids you in the exam.
The outline structure used here is very similar to IRAC, and the methods used to restate and analyze the rule. The structure allows you to have instant pattern recognition during the exam and it makes it easier to build an outline by plugging items into a set format. If you've followed the advice on briefing cases, you should be able to build an outline with relative ease.
One common mistake that first year students make is to organize their outlines by case. It's natural for students to want to have major heading according to case names since this is how the material was taught. However, this type of organization will not help you on the exam. The exam requires that you recognize issues and then analyze the facts. The IRAC outline breaks rules out according to issue, thereby helping you study for the exam. While your classes have emphasized cases, you need to emphasize analysis in your outline.
We'll step through each of the major headings to see what's necessary in each. See the Appendix for an example of a fully outlined legal principle.
Step Three: Organize the Big Picture
Another pitfall that students make is jumping into the first issue before they get the big picture. Get a sense of the overall structure of your outline before diving into the first case. Know your destination before you start to go there. You'll save a lot of time and frustration by spending ten to fifteen minutes paging through all of your materials to reacquaint yourself with cases and class notes. Just flip through every page of your casebook that you plan to cover and jot down the big picture items. This helps lend a structure to your outline, so that you know what your major headings are going to be. This process is similar to the pre-reading exercise. By looking over the material and getting the gist of it, you will be able to move through it faster and not get bogged down in unnecessary details.
In this first step of getting the big picture, you'll only be filling in the Legal Principles noted by the Roman Numerals. The Roman Numerals might correlate to the headings we saw under the major section headings above for tort. Thus, the intentional torts section of your outline might be organized as follows:
I. Battery
II. Assault
III. False Imprisonment
IV. Intentional Infliction of Emotional Distress
V. Defense - Self Defense, Consent, Privilege
You may want to use broad headings such as Intentional Torts and Negligence to separate out the different sections. However, keep the particular torts or ideas as main headings even though they seem to be subheadings of a broader category. Otherwise, you will soon be indenting into sub-sub-subheadings.
Organize it in a way that makes sense to you and which correlates to how your course was taught. At this point, it would be a good idea to compare your organization to the Syllabus that the professor used in the course and to the table of contents in the book.
By using the right methods from the start, you have cut down on the time used to put this material in a useful format.
Step Four: Synthesize the Rule
If you've prepared case briefs and class notes in the IRAC style, then the substance of your outlining should flow naturally from those materials. The big difference is that instead of listing a different rule for each case, you want to synthesize the rules into one principle.
Rules build upon one another and your goal in outlining is to come up with one general rule that combines the related rules from specific cases. Despite the need to illustrate differences, you want one primary rule that governs the jurisdiction that you think your professor will test you on. The synthesized, or primary base line rule, is the one that you will work with in the exam. It is the rule that either your professor adopted in class as the better rule of law or the one that is used in your jurisdiction. Professor Bob Berring at University of California, Berkeley Boalt Hall School of Law calls this "the one perfect sentence" rule. Berring tells students to write "one perfect sentence" that summarizes each major rule of law. Student can then automatically spit out this sentence whenever the issue arises on the exam.
From that base line rule, you can then note distinctions about the rule from other jurisdiction. The jurisdiction could be the state in which your law school resides or it could be the general common law. Ask your professor what she wants you to emphasize before attempting to outline.
In order to synthesize the rule, take advantage of the structure of the casebook. The format for casebooks usually has one principal case that states the primary rule and then several squib cases that have refined the rule or give a different interpretation on a different set of facts. A squib case is a supplementary case that may be edited by the author of the casebook to only bring out certain principles.
To synthesize a rule, you have to start with the base line rule and restate it. Be sure to break the rule into elements that form terms of art. Although the squib cases illustrate distinctions, they can also help you form a general principle. For instance, you might have a principal case that illustrates the old common law and more modern cases that have revised the rule. The base line rule should take into account how the squib cases have modified the common law.
If the difference between the squib cases and the principal case is merely one of language and not substance - i.e. the rule is stated differently but the effect is the same - then just choose the language that best suits you. Don't clutter your outline with unnecessary restatements of the same principle.
After you have the base line rule, you want to list similar rules that illustrate different treatments of the same principles. This will help you in the analysis section of the exam. For instance, you want to be able to see the distinction between the following sources:
• Synthesized (or Base Line) Rule
• Common Law rule
• Restatement Rule
• Model Code Rule
• Rules from Different Jurisdictions
• Using examples to reason by analogy.
State the rule once as common law, once as the uniform statute, once as the Restatement. Note the differences that the different methods illustrate. There won't always be different rules for each type. However, if there are, then it's likely that a different result may happen with a given set of facts if a different rule were applied. Your professor is trying to see if you can catch these nuances, so be sure to make the distinction in your outline.
Finally, like the rules of law, these instructions are just guidelines. You will inevitably find some rule that doesn't fit neatly into the procedure illustrated above. Be flexible and state the proposition in a way that makes sense to you.
Step Five: Illustrate the Analysis
Analysis is the most important element of the outline. Your exam primarily tests your ability to analyze and issue-spot. Consequently, this area of the outline needs to be fleshed out with examples on how to apply the rule. There are four primary ways to prove the elements of a rule of law. You look at the terms of art in the rule and prove it by:
• Using examples to reason by analogy.
• Weighing several factors in a balancing test.
• Applying a judicial test.
• Arguing that the rule's policy is furthered by application to the rule.
One mistake that students make in outlining is to integrate the analysis into the statement of the rule. These tests are so integrated with the rule that they seem to belong as part of it. However, it helps clarify the analysis to keep the rule and tests used to prove the rule separate.
From an organizational point of view, you need to step through the proving of a rule according to each of the rule's elements. Since each individual element is often a term of art, you can use the element as a heading for proof purposes. Underneath the element heading, you then list one of the four ways to prove the rule. See the sample outline that illustrates this principle.
Step Six: Provide Case Summaries
The last step in outlining is to provide case summaries. List every case that you have read including the squib cases with a one or two line description that will jog your memory as to the specifics and holding. This one or two-liner should state sketchy facts of the case and what the case stands for. Include some facts because professors often draw upon case law fact patterns in order to create hypotheticals.
Case summaries give you an edge not only as a way to illustrate the examples for reasoning by analogy, but also to provide a quick overview of a case-by-case organization of the legal principle. By scanning this list, you remember how you learned the material. It's a chronological view into the material. Typically, it will also serve as a way to look at the development of the law, since casebooks often start with a principle case followed by cases that have distinguished that principle.
For purposes of the outline, the case summaries are much more condensed than the case brief. Most of the details are eliminated altogether. There's a real danger of putting in too much material. The point is to get you to recall rather than to have all of the facts. You will rarely need more than two or three sentences.
If a famous judge wrote the case - such as Holmes, Brandeis, or Cardozo - then note that as well. Being able to cite a judge for a certain principle is one of the ways to distinguish yourself from the crowd in an exam. It won't win you a top grade by itself - for that you need stellar analysis. But it does allow you to show that you understand the importance of the opinion by showing its source.
Some other elements to include would be the page number in your casebook so that you can quickly reference it if necessary.
Here's an example of the right way and wrong way to summarize a case for purposes of the outline.
Too Much
Palsgraf v. Long Island Railroad. 248 N.Y. 339, 162 N.E. 99. Judge Cardozo. Railroad guard pushes a man from behind in order to help him get on moving train. Man drops package wrapped in newspaper that contains fireworks. Fireworks explode. Explosions cause scales to fall on platform which harm plaintiff. Court finds that action by guard was not foreseeable as to the harm that was caused to the plaintiff. Harm caused must be apparent to the ordinary person in order for liability to attach. If the harm is unintentional then it must be natural or probable to occur in order for there to be negligence. Too remote in proximate cause theory for there to be a tort against plaintiff.
Too Little
Palsgraf. Fireworks case. Explains proximate cause.
About Right
Palsgraf v. Long Island Railroad. p. ___. Cardozo. Railroad guard pushes man who drops package. Package contains hidden fireworks that explode and cause scales to fall harming plaintiff. Illustrates that harm was not foreseeable by guard as to plaintiff so no proximate cause.
What to Leave Out
Not everything that you have in your class notes or case briefs is relevant to the outline. It's as important to know what to leave out as what to put in. For instance, unless your class is Civil Procedure, Criminal Procedure or Evidence, you probably don't need the procedural information (i.e. what happened in the lower courts and how this case came to be appealed) in your outline. Nine times out of ten, this material is irrelevant to your outline.
A clear understanding of procedure might be tangentially important in the exam. In other words, you should be able to talk the talk of procedure in an exam. In fact, your professor may have grilled students on the procedural elements in order to get them to use the artful language of lawyering. But the procedural nuances of the cases are not as important as the nuances of the rule for the body of law you're studying.
As with everything in the study of law, there is probably an exception in your material where procedure is important. In those cases, the rule integrates with some sort of procedural issue and this should be apparent. In general, however, you can leave procedure out of an outline.
Stumbling Blocks
A big stumbling block in outlining is pure fear of not getting it right. Because law students don't get much feedback except for the final exam, there is a tendency to always wonder whether you are doing something correctly. This fear often causes first year students to freeze up and not move forward. In other words, they waste time fretting about getting it right. It's easy to fall into the trap that if you don't get the outline right, you won't get the exam right. This is where you can use secondary sources such as commercial outline to verify whether you've gotten the material down correctly. Then you can move forward with more confidence.
Before the Exam - The One-Page Outline
In the final week before the exam, if not before, you should condense your outline into one page. This page - known as an attack outline - serves as a checklist of issues as you read the exam. The attack outline helps you organize your answer, remind you of key points and to make sure that you haven't missed an issue. The attack outline transforms good students into outstanding students.
The attack outline does two things:
• Builds an analytical framework
• Serves as a reminder of issues and rules
To build the attack outline, figure out how you would analyze a problem that tackled every issue in the course. Where would you start out? Build a framework that works logically from one issue to the next if there were a hypothetical that encompassed every conceivable issue.
For instance, in contracts, you wouldn't start out by analyzing what the damages from a breach of contract were. Furthermore, you wouldn't start at the point of breach. First you would need to establish that there was a valid contract, then discuss the breach, potential defenses and then move onto damages. By figuring out how to analyze an issue - that is the sequence - it helps prepare you to answer a question before you even step into the exam.
Once you have the list of issues and the order in which you would analyze them, then develop shorthand for the major elements or tests that will form the bulk of the analysis. Use this shorthand on your attack outline so that you don't forget to hit on the elements in the analysis. Shorthand and a condensed format will make for a highly idiosyncratic one pager that will probably be understandable to no one but you. That doesn't matter. You're the only person who needs to understand the one pager. If done properly, the attack outline transforms good students into outstanding students.
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6. pre-write your exam
What's Being Tested?
Know Your Audience
How Professors Grade
The 9-Step Exam Writing Formula
DOs and DON'Ts of Exam Writing
Major Points in Test Taking
Sample Exam and Answer
What's Being Tested?
In most law schools, the exam counts for the entire grade in a course. Your class participation might count only if it is extraordinary. It's entirely up to the professor. Needless to say, this puts enormous stress on students to perform, which is all the more reason to understand exactly how exams are given and what the professor is looking for.
Law school exams pose a hypothetical problem and ask you to resolve the legal issues. Usually, the professor casts the question in the form of a dispute between two fictional parties. Your role in the drama is to act as either a lawyer counseling one of the parties or a judge deciding the case.
The professor tests two skills.
1. Issue spotting and
2. Analysis.
Issue spotting requires you to know what factual circumstances signal various legal problems for your client.
Analysis requires you to apply the rule of law to the set of facts. Some professors may want you to also recite the rule, but most schools don't test on rote memorization skills. After all, you can always look up the rule of law. Professors want to test whether you know when a problem is present (i.e. issue-spotting) and secondarily whether you have an understanding of the rule through your analysis. Usually, there is no right answer to the dispute. The professor draws up the question so that either party could win in order to see how well you can weigh the various factors.
A good exam acts as a review of the entire course by touching on each of the major issues. Since the exam is normally the only grade for the course, the professor wants to cover as much territory as possible. Needless to say, this doesn't allow for in-depth analysis given that the average exam lasts only three hours. Consequently you only have time for a big picture analysis. Another way of putting it is that the writing should be wide and shallow. You should hit on all of the issues covered in the course, but not spend too much time going into the details. In the words of one professor, the best exams have the character of inspired superficiality.1
1 University of California, Berkeley Boalt Hall School of Law Professor Willie Fletcher
Know Your Audience
The first principle of exam writing (or any writing for that matter) is to know your audience, then write specifically for that audience's level of understanding. Your audience is one person - the professor. Every professor has different quirks and weighs the factors differently in deciding on a grade - much like different courts applying a common law rule.
You should ask your professor what she values in an exam. Some will insist that you state the rule; others favor policy arguments. Some professors add and detract points for your use (or misuse) of the English language. Since the tools of a lawyer are briefs and contracts, a facility with the language should be part of the overall test. Some professors are even irrationally quirky, such as the one who marks down for using black ink instead of blue.
Questions to ask your Professor before the exam:
• Do you want the rule stated or should we incorporate the rule into the analysis?
• How many questions will there be on the exam?
• What are the time restraints for each question?
• Can we bring in outlines or other source material?
• Do you want case names cited?
• Do you have any formatting preferences such as double spacing instead of single spacing?
• How do you distinguish between an excellent exam and a good exam?
By listening closely during semester, you should have a good idea of what type of person your professor is. Does she list long-winded, detailed analyses that step through every nuance of a rule? Or does she like quick answers that are based on broad policy concerns?
Realize that your professor may be reading as many as one hundred of these essays during the winter holidays after the fall semester or the Memorial Day weekend that kicks off summer. Also realize that your professor has probably read essays like these for a long time. In other words, your professor has seen it all. The point here is that it pays to be brief and to get to the point. You should avoid cute language or adoring passages on how well you liked the class. Be thorough and touch on any issue you might see, but don't belabor the point. You only get so many points
How Professors Grade
Ultimately, professors have to come up with some sort of point system for grading; otherwise the subjective quality of essays would result in unfairness. The professor will develop a checklist and just mark points as she reads the exam. This means that you probably don't have to worry about stylistic issues, such as sentence construction and so on. The professor is looking for concepts, not grammatical mistakes. Be aware, however, that good writing is likely to be appreciated.
The most conscientious professors will read the exams three times. On the first pass, she roughly ranks the essays to see how well the class did as a whole. This gives her a benchmark against which to grade each exam. On the second pass, the professor actually scores the exam. On the last pass she just flips through the exams to make sure that she got it right.
The First Ten Minutes of the Exam
Step One: Take three deep breaths. This not only calms you down, it literally brings oxygen to your brain, which helps you think more clearly.
Step Two: Get the big picture. Spend one minute and flip through the entire exam to get the big picture. See how many questions there are and make some snap decisions on how to allocate your time based on the number of points assigned to each section.
You should also note the nature of the essay questions. For a Torts exam consisting of three questions, for instance, you know the teacher is likely to ask one question about each of the major areas - intentional torts, negligence and product liability. Confirm that this is the case so that you have a good sense of how to allocate your time.
Step Three: Allocate your time. One of the big mistakes students make is to thoroughly answer the first three questions and leave only a scant answer on the fourth essay. Getting an overview and allocating your time allows you to pinpoint when you have to move onto the next issue.
You should even allocate time within each essay question so you know how much time you have to spend on each major issue. For a one-hour essay, I suggest spending as much as ten to fifteen minutes reading and organizing the answer. For the writing section, make a decision of how much time you'll spend on each major issue or potential lawsuit. Just split the time evenly among the issues. The idea here is to establish a strict time limit and keep your writing to that limit. Once, the time expires, move onto the next essay.
Step Four: Read the first question twice. On the first pass, make notes in the margins of the big issues. Pay attention to the call of the question. What is the professor asking you to answer?
Many students have programmed themselves to write a completely thorough answer the minute they spot an issue. However, sometimes the professor may provide enough facts to do a complete analysis but really only want you to answer a specific question about the case. Be sure to note that one of the things professors like to test is whether you can follow directions.
Step Five: Outline an answer. See below.
The Critical Step of Outlining an Answer
Most students start writing as soon as they read the question. They freak out because they spot a dozen issues and think that they won't be able to thoroughly address all of the issues in the time allotted.
It pays to think before writing. Outlining helps you spot the issues. Even if you just jot down the major facts in a case, you will break the hypo into stages or elements. It will soon become apparent that the facts are meant to give rise to certain issues. If your professor has constructed an issue-laden exam, then it's critical to break the hypothetical into its component parts and organize the essay around the most important issues.
How you outline an answer differs with each course. In a Contracts exam, you usually write about events chronologically. Timing about what was said when is usually an important factor in Contracts, thus the best way to analyze is chronologically. In contracts, Torts exam are usually organized according to parties. In Torts, the big question is who is liable for what harm? Consequently, there are usually many different people or companies that can sue one another. You can make the best sense of a Torts question by outlining according to the party.
Another important step during outlining is to adopt a position. Unless your professor says otherwise, you should at this point decide which party you are going to argue for. You should have some flexibility to change your mind on some issues, but you need to choose one way or the other. Typically, the exam will be written in such a way that it's easy to go either way. One common trap for first year law students is to always want to prove the rule or legal theory to be true. Remember that you can find for either side. You need to adopt a point of view that you feel is strongest.
Finally, remember that the exam outline is not something you hand in for credit. Consequently, don't spend time making it look pretty. Rather, develop shorthand for the principle issues in the case law.
For instance, in Contracts, you might use
O
A
C
for the issues of Offer, Acceptance and Consideration, which are the principal building blocks of a valid contract.
Issue Spotting
Professors usually pack more issues into an exam than anyone can reasonably answer within the time allotted.
Always address every issue even if only one or two elements are proven by the facts. Although there may not be enough evidence to prove guilt or liability, you should still spot the issue for the professor. Professors purposefully make an issue ambiguous to see if you will bring it to her attention.
Of course, you need to rank the issues according to importance. Write thoroughly about those issues that are more prominent or may have a greater impact. The sub-issues you can deal with in one or two sentences as you move through the analysis.
Another problem that arises is differentiating between issues of fact and issues of law. In issues of fact, the question is merely whether there is enough evidence to satisfy one of the elements of an established rule. Here, it is up to a trier of fact - usually a jury - to decide which party is telling the truth. Depending on the nature of the rule, one of the parties may bear the burden of proving the truthfulness of the fact. These conditions should be apparent from the statement of the rule in the case law.
An issue of law is one in which the facts are undisputed. The parties agree on what happened. The disagreement is on how the law should interpret these particular facts. Judges -not juries - rule on questions of law.
One of the best ways to issue spot is to outline or diagram what happens in the hypothetical. By identifying the parties involved or breaking major facts out of the hypo, you get a sense of where to focus your analysis.
The First Paragraph
First impressions are important. Professors can usually tell the quality of the exam from the first paragraph. There are two different methods for writing the first paragraph:
• Summary of Outcome paragraph
• Or Issue Identification paragraph
In the summary of outcome paragraph, you tell the professor the bottom line - i.e. your resolution of the case - and why. It helps to give a framework for the rest of the paper. The problem with the summary of the outcome paragraph is that students sometimes change their mind on the conclusion of the problem in the middle of the essay. In the process of the analysis, they see something that leads them to another way of thinking. However, if you've already written your first paragraph, that realization makes for a lot of stress since you're now defending a position you don't think is correct.
The second technique is to mention the general framework of the issues but not give any specifics on your conclusions. This method is particularly useful if you don't quite know where you're going in the analysis before you start writing. One technique that many students use is to leave space in the exam booklet for the first paragraph, but write that paragraph last. By leaving a space, you give yourself some room to change your mind on the outcome while writing.
Analysis - The Actual Essay
Unless your professor says otherwise, jump right into the analysis of the problem. Don't recite the facts of the hypothetical as you would for a case memorandum in a legal writing class. It's a common mistake for first year students to apply the techniques of their legal research and writing course to exam writing. It's natural to think that there should be only one way to write in the legal field and to adopt those techniques for the exam. However, the exam tests different skills. The professor doesn't require that you repeat the facts. After all, she wrote up the hypothetical. However, this doesn't mean that you don't mention the facts. Use the facts to prove or disprove the rule. (See below.)
Furthermore, don't spend a lot of time stating the rule. Up until now, we have placed a lot of emphasis on breaking the rule into its component parts (or terms of art) and then proving the rule through tests, etc. One mistake that most students make in an exam is to spend most of their time citing the rule of law in order to prove to the professor that they know the law. Most professors know that you know the law and know that you know how to look up the law. What they want to test is your ability to analyze.
Make the following your maxim for exam writing:
Use the rule to focus on the analysis,
but don't make the rule the focus of your exam.
Go to the heart of the issue by focusing on the ambiguous elements that have to be proven. Ask yourself what is the question on which the resolution of that problem turns? If there is something central to the fact situation that most of the elements are easily present for the rule to apply except for one element, don't spend a lot of time on the elements that are present. Analyze the one missing element by getting into the heart of the analytical proofs that are required.
The 9-Step Exam Writing Formula
Successful exam writing can be a formula. You can save time and earn stylistic points by pre-writing your exam. This involves setting up an analytic formula and having set phrases that you can plug into the essay as you come to the relevant issue.
Use the following formula to pre-write your essay.
Step One: State the issue.
Step Two: Identify the rule, but don't waste time stating the rule.2
Step Three: Summarize the elements of the rule that are easily satisfied by the facts.
Step Four: State the sticking point on which this issue turns - i.e. the ambiguity in the facts that makes it a difficult question.
Step Five: Apply one or more of the four types of Analysis to the problem.
Step Six: Contrast conflicting authority.
Step Seven: What are the defenses?
Step Eight: Make a conclusion.
Step Nine: Go to the next issue.
To illustrate the process, here is a sample exam question.
EXAMPLE ESSAY QUESTION
Peter Plaintiff and David Defendant are neighbors who bear each other a grudge. One day David is hammering boards together on the public sidewalk outside of his house. Peter sees David hammering and walks behind him in order to avoid talking with him. As Peter walks behind David, David brings his hammer back to hammer the boards and hits Peter in the head causing substantial injury.
Step One: State the issue. Write one sentence that identifies the issue as suggested by the facts. Get used to stating the issue by using every fact that you can.
EXAMPLE
The key issue is whether battery occurs when a defendant with a grudge who is hammering nails hits the plaintiff walking behind him as he swings the hammer.
Step Two: Identify the rule, but don't waste time analyzing the rule. Rather, incorporate the rule into your analysis of the facts.3
EXAMPLE
The governing law on the issue of battery depends on the jurisdiction, though most commonly the Common Law rule suggests that the key elements are intent, harm and causation.
Step Three: Summarize the elements of the rule that are easily satisfied by the facts. Make sure that you don't make up or infer facts from the hypothetical. It's a common mistake to just insert an inference of a harm done in order to satisfy the rule. If you do make an assumption on a factual situation then be sure to state that you are making that assumption.
EXAMPLE
Here, the element of harm is satisfied since the plaintiff suffered severe trauma to his head. Furthermore, the element of causation is proven because but for the defendant's swinging the hammer, the plaintiff would not have been harmed.
Step Four: State the sticking point on which this issue turns - i.e. the ambiguity in the facts that makes it a difficult question.
EXAMPLE
The real question in this suit is whether the defendant intended to hit the plaintiff on the head. Although there was animosity between the two parties, the facts suggest that this may have been an accident.
Step Five: Apply one or more of the four types of Analysis to the problem. Contrast conflicting authority.
Use one or more of the four types of proof to prove or disprove the rule.
Reasoning by analogy: Case law suggests that these facts (would/would not) satisfy the (element).
Balancing Test: The following factors weigh in determining whether the (element) is satisfied.
Judicial Test: Courts have applied the following test to prove whether the (element) is satisfied.
Policy: The underlying policy of the rule (is/is not) furthered by its application in this scenario. (Cite policy.)
EXAMPLE - Judicial Test
The standard test that courts apply for the general intent necessary to hold the defendant liable is that he knew with substantial certainty that harmful consequences would result from his action. Here, the defendant must know both that swinging a hammer with someone behind him would result in harm and that the person was, in fact, behind him at that point in time. Whether the defendant knew with substantial certainty is an issue of fact that is up to a jury or judge to decide. Animosity by itself, or even a motive, does not prove intent.
Step Six: Contrast conflicting authority.
EXAMPLE
Some jurisdictions rule that in circumstances where there is an unlikely accident, then motive alone might infer intent. Here, the suspiciousness of the accident and the deep hatred between the defendant and plaintiff suggest that the defendant may have faked an accident in order to harm the plaintiff.
Step Seven: What are the defenses? Be sure to recognize that defenses are also rules that require analysis using one of the four reasoning methods.
EXAMPLE
The defendant has the affirmative defense of self-defense. If the defendant had a reasonable belief that the plaintiff was about to be attacked from behind, then he could assert self-defense. However, the defendant has the burden to prove he used only as much force in swinging the hammer as was reasonably necessary to protect himself from potential injury.
Step Eight: Make a conclusion.
In writing the Conclusion you want to hedge.
Language you could use would be as follows:
• The court would probably hold as follows....
• A probable result would be....
• Given the facts, it is highly likely that...
• Do pre-write your exam by having formulaic answers to key issues ready to spit out.
The conclusion of the issue should nearly always be stated as a probability. Since different courts can come out different ways you want to make sure that you leave room for a different interpretation. There usually is no right answer. The art is in the analysis.
EXAMPLE
In all likelihood, the defendant will not be able to assert a credible defense of self-defense because there is no evidence that the plaintiff was going to attack the defendant.
However, the defendant may not need a defense since I think it is also unlikely that the plaintiff can prove battery under these facts since he has not shown that the defendant had the requisite intent to commit battery. Consequently, the defendant will probably not be held liable for battery and the plaintiff will have to seek relief under a negligence theory.
Step Nine: Go to the next issue.
EXAMPLE
Peter will seek to recover damages in negligence if he can prove....
Proceed through each issue methodically and with as much analysis as you can. Try to use every fact to either prove or disprove an issue.
2 Unless your professor says otherwise.
3 Unless your professor says otherwise.
About case names...
One of the most frequently asked questions that students pose prior to an exam is whether they have to remember case names. The answer is that it entirely depends on the professor.
Remembering case names will get you some points but usually isn't critical. Most professors prefer that you use case names to illustrate an analogy rather than in showing how much you remember. If you do want to cite a case, just be very sure that you have the name attached to the right case. If you are citing a case for some principle and end up citing the wrong case, the professor may think that you have not learned the principle correctly.
Formatting
You should make liberal use of headlines in your essay to signal the start and end of sections. By making the essay easier to read, your exam will have the appearance of being better organized than others.
DOs and DON'Ts of Exam Writing
DO...
• Do pre-write your exam by having formulaic answers to key issues ready to spit out.
• Do outline your answer using about ten minutes for an hour-long answer.
• Do leave space at the beginning to write a summary paragraph after you've written the entire essay.
• Do jump right into the analysis of the major issues.
• Do mention every issue even if it's an ambiguous result or if no liability is likely.
• Do use every fact as proof or disproof of the validity of a rule.
• Do pay attention to the call of the question.
• Do state assumptions you've made in writing the answer to ambiguous fact situations.
• Do leave your biases at home.
• Do write legibly.
DON'T...
• Don't restate the facts of the problem.
• Don't answer questions the professor doesn't ask about.
• Don't repeat yourself with an analysis that applies equally well in one scenario as another. Make the distinction then refer back to a previous analysis.
• Don't waste time on your outline making it look pretty. You don't get credit for an outline.
• Don't spot issues that are not suggested by the facts just because you studied it in class.
Post Exam
Take a break. Don't start studying for your next exam right away. Schedule yourself some down time to have fun and clear your mind. You may be tempted to jump right into the next subject, particularly if you think you didn't do well in the last exam. However, you run the risk of diminishing returns. Tests take a lot out of you physically and mentally. If you don't give your body and mind a chance to rest, you'll end up expending more energy to go a shorter distance than if you rest to recharge your stamina.
Major Points in Test Taking
• Exams test two areas - issuing spotting and analysis.
• Professors differ in how they want exams written. Ask yours what she wants to see in a good exam.
• Create a one-page attack outline giving yourself an analytical framework for writing and to serve as a checklist for major issues.
• Read the question twice before writing.
• Spend ten minutes outlining an answer for every hour-long question.
• Write about issues even if the outcome is ambiguous or uncertain.
• Mention issues even if the rule is not satisfied by the facts.
• Use the rule to focus on the analysis but don't make the rule the focus of your exam.
• Don't recite the facts of the hypothetical. The professor knows the facts since she wrote the essay.
• Use every fact if your analysis. The professor only puts facts into a hypothetical for a reason. To get you to use them for some persuasive purpose in the exam.
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Personal law school coach
http://www.lawnerds.com/testyourself/index.html
Take a break. Don't start studying for your next exam right away. Schedule yourself some down time to have fun and clear your mind. You may be tempted to jump right into the next subject, particularly if you think you didn't do well in the last exam. However, you run the risk of diminishing returns. Tests take a lot out of you physically and mentally. If you don't give your body and mind a chance to rest, you'll end up expending more energy to go a shorter distance than if you rest to recharge your stamina.
Major Points in Test Taking
* Exams test two areas - issuing spotting and analysis.
* Professors differ in how they want exams written. Ask yours what she wants to see in a good exam.
* Create a one-page attack outline giving yourself an analytical framework for writing and to serve as a checklist for major issues.
* Read the question twice before writing.
* Spend ten minutes outlining an answer for every hour-long question.
* Write about issues even if the outcome is ambiguous or uncertain.
* Mention issues even if the rule is not satisfied by the facts.
* Use the rule to focus on the analysis but don't make the rule the focus of your exam.
* Don't recite the facts of the hypothetical. The professor knows the facts since she wrote the essay.
* Use every fact if your analysis. The professor only puts facts into a hypothetical for a reason. To get you to use them for some persuasive purpose in the exam.
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2. The IRAC Formula
IRAC (Issue, Rule, Analysis, and Conclusion) forms the fundamental building blocks of legal analysis. It is the process by which all lawyers think about any legal problem. The beauty of IRAC is that it allows you to reduce the complexities of the law to a simple equation.
ISSUE -> What facts and circumstances brought these parties to court?
RULE -> What is the governing law for the issue?
ANALYSIS -> Does the rule apply to these unique facts?
CONCLUSION -> How does the court's holding modify the rule of law?
Issue Spotting - The First Step
"The facts of a case suggest an Issue."
The key to issue spotting is being able to identify which facts raise which issues. Because of the complexity of the law, the elimination or addition of one fact (such as time of day or whether someone was drinking) can eliminate or add issues to a case thereby raising an entirely different rule of law.
In law school casebooks, the easiest way to isolate the issue is to merely look at the chapter headings of the cases, such as "Personal Jurisdiction" in Civil Procedure or "Offer and Acceptance" in Contracts. The cases you read will also contain language that signals the important issue. For instance, the judge will simply state:
"The case turns upon the question whether...."
OR "We come then to the basic issue in the case."
However, you need to develop issue-spotting skills on your own in order to do well on the exam and become an effective lawyer. During the exam the professor is not going to state the issue. Ask yourself some of these questions as you read the case:
Questions to ask when reading a case:
• What facts and circumstances brought these parties to court?
• Are there buzzwords in the facts that suggest an issue?
• Is the court deciding a question of fact - i.e. the parties are in dispute over what happened - or is it a question of law - i.e. the court is unsure which rule to apply to these facts?
• What are the non-issues?
Whenever you read a case, state the issue as a question turning on a set of particular facts. See the examples to see how it is done. By incorporating particular facts into the issue, you build a database of issues for the exam.
Rule - What is the Law?
"The issue is covered by a Rule of law."
Simply put, the rule is the law. The rule could be common law that was developed by the courts or a law that was passed by the legislature.
For every case you read, extract the rule of law by breaking it down into its component parts. In other words, ask the question: what elements of the rule must be proven in order for the rule to hold true?
Questions to ask when reading a case:
• What are the elements that prove the rule?
• What are the exceptions to the rule?
• From what authority does it come? Common law, statute, new rule?
• What's the underlying public policy behind the rule?
• Are there social considerations?
The trap for the unwary is to stop at the rule. Although the rule is the law, the art of lawyering is in the analysis.
Analysis - The Art of Lawyering
"Compare the facts to the rule to form the Analysis."
This important area is really relatively simple. For every relevant fact, you need to ask whether the fact helps to prove or disprove the rule. If a rule requires that a certain circumstance is present in order for the rule to apply, then the absence of that circumstance helps you reach the conclusion that the rule does not apply. For instance, all contracts for the sale of goods over $500 have to be in writing. Consequently, in analyzing a contract for the sale of goods, you apply the presence or absence of two facts - worth of good and whether there's a written contract - in order to see whether the rule holds true.
The biggest mistake people make in exam writing is to spot the issue and just recite the rule without doing the analysis. Most professors know that you can look up the law, but they want to test whether you can apply the law to a given set of circumstances. The analysis is the most important element of IRAC since this is where the real thinking happens.
Questions to ask when reading a case:
• Which facts help prove which elements of the rule?
• Why are certain facts relevant?
• How do these facts satisfy this rule?
• What types of facts are applied to the rule?
• How do these facts further the public policy underlying this rule?
• What's the counter-argument for another solution?
Conclusion - Take a Position
"From the analysis you come to a Conclusion as to whether the rule applies to the facts."
The conclusion is the shortest part of the equation. It can be a simple "yes" or "no" as to whether the rule applies to a set of facts. A clever professor will often give you a set of facts that could go either way in order to see how well you analyze a difficult issue. The mistake many students make is to never take a position one way or the other on an issue. Most professors want you to take a position and support it in order to see how well you analyze.
Another common mistake is to conclude something without having a basis for the opinion. In other words, students will spot the issue, state a rule, and then form a conclusion without doing the analysis. Make sure that whatever position you take has a firm grounding in the analysis. Remember that the position you take is always whether or not the rule applies.
If a rule does not apply, don't fall into the trap of being conclusive on a party's liability or innocence. There may be another rule by which the party should be judged. In other words you should conclude as to whether the rule applies, but you shouldn't be conclusive as to whether some other result is probable. In that case, you need to raise another rule and analyze the facts again.
In addition, the conclusion should always be stated as a probable result. Courts differ widely on a given set of facts, and there is usually flexibility for different interpretations. Be sure to look at the validity of the opponent's position. If your case has flaws, it is important to recognize those weaknesses and identify them.
Questions to ask when reading a case:
• What's the holding of the case?
• Has the holding modified the existing rule of law?
• What is the procedural effect of the holding? Is the case overturned, upheld or remanded for retrial?
• Does the holding further the underlying policy of the rule?
• Do you agree with the outcome of the case?
The IRAC Triad
IRAC is a good model for first year law students. However, in the pressure of the exam, many students leave out the most important part of the equation - the analysis. In order to illustrate the important of the analysis, I've modified the traditional model into what I call the IRAC Triad.
The IRAC Triad emphasizes the Analysis by using the Facts, Issue and Rule as building blocks. The Analysis is the end product and primary goal of the IRAC Triad, but the role that facts play in forming the analysis is highlighted.
Step 1: The facts of a case suggest an Issue.
The legal issue would not exist unless some event occurred.
Step 2: The issue is governed by a Rule of law.
The issue mechanically determines what rule is applied.
Step 3: Compare the facts to the rule to form the Analysis.
Do the facts satisfy the requirements of the rule?
The Triad is actually just a simple flowchart in which the facts can be pigeonholed into a Conclusion.
IRAC Examples
In each one of these examples, a hypothetical fact pattern is broken into IRAC elements by using the three steps of the IRAC Triad.
Contracts Hypothetical
Facts:
An old man who is very ill and near death makes an oral contract with his nephew. The terms of the contract are that the uncle will immediately give his nephew all of his life savings - $100,000 - in return for the nephew's promise to provide food and shelter for the old man until the man dies. The nephew takes the money and supports the old man at a cost of $10,000 a year. The old man lives longer than expected and is still alive after fifteen years, at which point the nephew cuts the old man off without further support.
Issue:
Is an oral contract valid after fifteen years?
Note that the issue is stated in the form of a question and uses key facts to illustrate the problem. Don't be alarmed if you didn't see the issue right away. By reading case law in contracts, you will learn that these sorts of factual situations give rise to issues surrounding whether a contract is valid.
Rule:
A contract must be in writing if it is not possible to perform the contract within one year. - Statute of Frauds
The issue immediately triggers the appropriate rule. Again, the appropriate rules are something that you will learn in your first year of contract law.
Analysis:
The Statute of Frauds does not state that the contract must be performed within one year. It only states that it must be possible to complete the contract within a year. Since a very ill, old man could have died within one year, it is possible that the contract could have been completed.
This analysis shows how closely you must pay attention to the wording of a rule. The words "not possible" indicate that a remote possibility of being able to complete the contract means the rule does not apply.
Conclusion:
The Statute of Frauds probably does not apply in these circumstances, and the oral contract is not invalid even though it was not completed within one year.
Conclusions should be short and put in terms of a probability.
Civil Procedure Hypothetical
Facts:
1. Patricia sues Daniel in federal district court over money that she says he owes her.
2. She wins her case.
3. Daniel appeals the decision in the federal appellate court, which overturns the lower court's decision on a technical error.
4. Patricia appeals to the U.S. Supreme Court, and the court refuses to hear the case.
5. Patricia attempts to sue Daniel a second time in the state court system over the same issue of the money she says he owes her.
Issue:
Does the fact that Patricia took her case to the highest federal court and lost prevent her from starting the same case in a state court?
Civil Procedure questions quite naturally focus on whether a plaintiff or defendant has correctly followed the rules in bringing a case to court. Civil Procedure generally does not focus on the substance of the dispute - i.e. whether the plaintiff or defendant wins.
Rule:
The principle of res judicata states that once a final judgment on the merits has been made on a particular case, the plaintiff is barred from bringing that same case against the same defendant in the same or different court.
Analysis:
Since Patricia appealed the case to the highest court, a final judgment is considered to have been made on the matter. She has exhausted all of the potential appeals by going to the highest court which has ruled on her case. If she attempts to bring the same cause of action (i.e. the same particular facts and controversy) in state court, then Daniel can argue to have the case thrown out of court using the principle of res judicata.
Conclusion:
Patricia cannot bring the case in state court.
Criminal Law Hypothetical
Facts:
Just as the sun is setting one night, Carl sees that the door to Vince's house is ajar. Carl knows that Vince has a home office in which there is expensive computer equipment. Carl pushes the unlocked door open, walks into the house and steals Vince's computer equipment that is valued at well over $5000.
Issue:
Is opening an unlocked door to a building at twilight to commit a theft sufficient to constitute a charge of burglary?
Rule:
The common law requirements for a burglary are that there be: 1) a breaking 2) and entry 3) of a dwelling 4) of another 5) at night 6) with the intent of committing a felony therein.
Analysis:
Element 1) Although the door was ajar and unlocked, Carl's merely opening the door was sufficient minimal force to constitute a breaking since the nearly shut door was meant to deter unwanted entry. No actual breaking of the door or lock is necessary.
Elements 2, 3 and 4) Carl clearly entered the house, which is not his own. The house is considered a dwelling since Vince regularly uses the house for sleeping purposes.
Element 5) Whether it would be considered night at twilight is determined by whether Vince's face could be discerned in natural light at that hour.
Element 6) Stealing items worth $5000 is a felony in all states.
Notice how methodically each element is proven using the facts provided. Even though something like entering seems self-evident, the fact that the defendant actually crossed the threshold has to be stated in order for the legal analysis to be complete.
Conclusion:
Vince is probably subject to a charge of burglary even though it was not technically nighttime and the door was unlocked.
Torts Hypothetical
Facts:
Peter and Doug are neighbors who hate one another.
One day, Doug is nailing some boards together on the common sidewalk that he shares with Peter.
In a classic slapstick comedy move, Doug picks up a board just as Peter is passing behind him and swings around so that the back end hits Peter in the head.
The smack in the head causes substantial injury to Peter.
Issue:
Is existing malice between two people enough to show the intent necessary for liability for battery?
Rule:
The three elements of battery are: 1) a harmful touching of another person 2) the defendant caused the touching to occur directly or indirectly and 3) the touching was intentional.
Analysis:
Element 1) The hitting of Peter in the head with a board is considered harmful since it caused substantial injury.
Element 2) Doug directly caused the injury since he was physically holding the board as it swung into Peter.
Element 3) The question of whether Doug intended to hit Peter is a matter of fact that must be decided by a jury. The fact that Doug hated Peter may weigh in the matter but is not dispositive. Doug must have known that Peter was behind him and intentionally swung the board so as to purposefully harm Peter.
Conclusion:
Without further evidence, the facts do not appear to indicate the intent necessary for Peter to sue Doug for the tort of battery.
About Us
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The IRAC Formula
Issue Spotting - The First Step
Rule - What is the Law?
Analysis - The Art of Lawyering
Conclusion - Take a Position
The IRAC Triad
IRAC Examples
The Rule of Law - In Depth
Taxonomy of Rules
Form and Function of Rules
Extracting the Rule
Analysis - In Depth
Analysis for Beginners
The Four Types of Analytical Tests
The Rule of Law - In Depth
Legal reasoning starts with the rule of law. Most professors will downplay the importance of rules - telling you that analysis and issue spotting counts more in your grade rather than knowing the rule verbatim. While this is true, you need to understand the rule in order to spot the issue and analyze effectively.
First year students should attempt to extract and restate the rule of law for every case that they read. This process puts the rule into a format that makes analysis and outlining easier. Extracting and restating the rule can be done within your brief. However, try to use the techniques described below in "Restate the Rule."
The easy way to extract the rule is, of course, to go to the commercial outlines and look the rule up. To learn the skills you'll need in your first years as a lawyer, however, it's best to try and extract the rule out of the cases yourself. Furthermore, often the commercial outlines won't state the rule with all of the nuances that you get from parsing through the casebook. Good professors know the differences between commercial outlines and the casebook. Commercial outlines and secondary sources are best used as supplements in this instance if you are having trouble extracting the rule.
Taxonomy of Rules
Rules of law break down into three main types:
• Common Law: The courts have developed common law over time based on principles of justice, equity and the morals and ethics of the time. Scholars collect the common law into volumes called the Restatements.
• Statutory Law: Congress or state legislatures write statutes, which results in laws that are primarily influenced by special interest groups. A body of law is sometimes collected in a model code or uniform statute, such as the Uniform Commercial Code or the Model Penal Code.1
• Constitutional Law: Constitutional law flows from the U.S. Constitution as interpreted by the Supreme Court.
In your first year of law school, you'll primarily be focused on the common law. Common law is judge-made law. Judges base their decisions on principles that have developed over time within the judicial system. The rule itself is really just a series of definitions. If the facts of the case fit within the definition, then the rule applies.
1 The model codes are an attempt by the legal scholars and the federal government to have consistent laws between different states. The state legislature may adopt the model code as its base, then amend it to conform with the common law traditions in that state.
Form and Function of Rules
Rules, whether as part of the common law or in statutes, can be broken down into three types - declarative rules, conditional rules and exceptions. The way you state a rule depends, in part, on its form.
Declarative rules merely state something that must always be true. For instance, in contract law it can be said that: All contracts require a bargain. There is no exception to this rule, and the converse is also true. The converse of the rule above is that: If a bargain isn't present, then no contract has been formed.
Declarative rules are also sometimes called bright-line rules. The rule is a bright line because anyone can tell where a rule holds true and where it does not. For instance, most highways have a 65 mile an hour speed limit. If you're caught over the limit, then you're on the wrong side of the bright line, and you lose.
Conditional rules, however, state that a rule applies only when a series of conditions are met or proven to be true. To follow our example:
A bargain requires:
1. an offer AND
2. acceptance AND
3. consideration.2
A variation on this type of rule would set forth a list of alternative conditions where any one of them can be present in order for the proposition to apply. In this case you would apply the word "OR" instead of "AND" to the list.
Exception rules are just the flip side of condition rules. Instead of listing conditions in order for the rule to apply, you list an exception to where a rule does not apply. Exception rules are used when the list of conditions is so great that it's easier to state the rule as a declarative rule then tell judges when the rule doesn't apply - i.e. the proposition holds true most of the time except for some circumstances.
In our example above, we need a definition of consideration to satisfy the third element of a bargain. Consideration is generally defined as either a promise or actual performance. However, consideration can't be a promise to make a gift. The reason for this is that the person receiving the gift is bound to give anything in return. Consequently, you can't have a contract to give someone a gift because there is no bargain. However, there's an exception to the rule. Here's how it works.
A promise to make a gift is not good consideration thus no contract is formed
UNLESS there is reliance on the promise.
Courts have carved out an exception to the rule that you can't have a contract to give a gift when the person who would receive the gift relies on the promise that the gift will be made.
Often a more complex rule will not fit into any of these broad categories. Instead, the rule mixes conditions together with exceptions. Your goal is to develop a method for stating the rule that makes it easy to identify the elements.
Terms of Art
You can see in our example that as you step through the rules, each rule brings up a term that needs further definition. In this example, we could continue to examine the rule by defining the term reliance. These elements are often known as terms of art.
Terms of art are simple words like "consideration," "reliance," "intent," "reasonable," or "causation" that carry greater significance in the legal context than they do in ordinary speech. For example, for lawyers the word "reasonable" changes according to the "standards of an ordinary and prudent person in the same or similar circumstances."
2 In contract law, consideration is the term used to indicate what is being exchanged between the parties. For instance, in a contract to sell a car for $1000, the seller's consideration is a promise to deliver the car for $1000. The buyer's consideration is a promise to tender $1000 in exchange for the car.
Extracting the Rule
There are three steps in rule extraction.
Step 1: Identify the rule in case law.
Step 2: State the rule in your own words and list each element that needs to be proven.
Step 3: State the public policy behind the rule.
Step One: Identify the Rule
Look for a declarative sentence that addresses the issue the court is trying to resolve.
Some language that identifies the rule:
• "As a matter of common law...."
• "In this jurisdiction..."
• "The more modern rule is..."
• "Contracts are void when..."
• "The present case is controlled by..."
Sometimes, however, it's not so easy. There are two situations that give first year students difficulty. In the first situation, the judge doesn't explicitly state the rule. In the second situation, the judge gives so many different rules that it's hard to know which rule applies. In this second situation, the judge often traces the development of rule from the common law and talks at length about how other jurisdictions differ in the application of the rule.
The solution in either situation is to ferret out the rule as implied by the holding. You identify the rule by looking at how the court resolves the issue. You generalize and form a rule that takes into account the facts of the case by making an inference from the holding of the case.
EXAMPLE
Facts: Two dogs were fighting, and a man tries to separate the dogs with a stick. He is seriously hurt in the process and sues the owner of the dogs for negligence.
Holding: The court rules that "no reasonable person in those circumstances would have assumed the risk of separating the dogs without knowing that he might be hurt. Thus the owner of the dogs is not liable."
Extracting the Rule: The court has not stated a rule but has given you a holding or judgment of the case. You can infer several principles from that holding. Such cases are judged by the following principles: 1) the circumstances, 2) what a reasonable person would do and 3) assuming a known risk means you can't hold another party liable for damages.
Step Two: Restate the rule.
Most students just copy the rule from the casebook verbatim into their notes. The more astute student restates the rule in her own words in order to get a clearer sense of what has to be proven in order to apply the rule.
Stating the rule is a two-part process.
Part 1: Restate the rule in your own words in order to clarify that you understand it and remember it better.
As with any course of study or in any form of communication, when you restate what someone else has said in your own words, you are making sure that you understand the nuances of everything they have said. In a way, you are creating your own mini-Restatement of the law in the words of a 21st century lawyer. You can then compare what you have said with the case law to see whether you have understood all of the elements correctly.
Part 2: Break the rule into elements that must be satisfied in order for the rule to apply.
Breaking the rule into elements makes it easier for you to analyze the rule in a given set of circumstances. This is a crucial step in organizing your analysis and in outlining. By breaking the rule into elements - i.e. its terms of art - you will be better able to scan your notes easily to get the gist of the principle when studying for an exam.
Formatting the Rule
When breaking the rule into elements, put each element on a separate line. This helps you to visually absorb the rule. For some people, this type of formatting appears awkward and interferes with learning the law. They prefer to see the rule written out as a sentence. If you do write the rule as a sentence then be sure to highlight the elements by underlining or italicizing the key elements.
I prefer to take rule extraction a step further. I use a computer programming approach and break the rule into its logical components in order to see the flow. The old computer programming language BASIC uses logical commands to construct rules that the program would then follow. In the same way, you can program legal rules into a neat sequence of logical statements that are constructed as IF-THEN statements.
IF-THEN Structure EXAMPLE
IF (condition is true) IF you run a stop sign
THEN (result is true) THEN you've violated a traffic law.
However, if there's one truism in the law, it's that the law is seldom as simple as an IF-THEN statement. There are nearly always multiple conditions that have to be met and exceptions to the rule for unusual circumstances.
Consequently, the simple IF-THEN statement also needs lots of other commands. One of the mind-boggling aspects of the law is how easily rules seem to contradict themselves.
The IF-THEN statement is made more complex with the operators AND, OR, BUT, NOT, UNLESS. These are known as Boolean operators and are familiar to anyone who has searched for information in a database (such as Lexis or WestLaw) or used one of the Internet search engines.
Boolean operators can be used with the traditional IF-THEN statement or can be combined with declarative rules with similar results. Use the technique that seems most understandable to you.
IF-THEN Structure with conditions Declarative Structure with conditions
IF (condition)
AND (condition)
OR (condition)
UNLESS (condition)
THEN (result is true). (Result is true) IF
(condition)
AND (condition)
OR (condition)
UNLESS (condition)
The UNLESS operator can be used in this system of stating the rule to list defenses to a particular rule when one party might be liable or guilty.
EXAMPLE of Declarative Rule with Conditions
The tort of intentional infliction of emotional distress exists IF the defendant
1. acted with either extreme OR outrageous conduct
2. AND intended to cause severe emotional distress to plaintiff
OR behaved with reckless disregard to emotional state of plaintiff
3. AND the acts were the actual or proximate cause of the distress
4. AND severe emotional distress actually occurred.
You can see that there are four conditions that have to be proven in order to find a defendant liable for intentional infliction of emotional distress.
CAPITAL letters are used with conjunctions (AND/OR), conditions (IF) or exception (UNLESS) in order to signal a connection between ideas. Use italics, underlining or boldface on key words to help identify key concepts and ideas quickly in an exam. We'll see in the next chapter how highlighting terms of art in the rule helps organize the next step of analysis.
Operators that help create a rule
• IF - THEN
• AND, OR
• BUT NOT
• UNLESS
• HOWEVER
• WHILE
• WHENEVER
• EXCEPT
• EXCEPTIONS
As you can see, this type of flowcharting can quickly get out of hand. So much of the law is interrelated, you can quickly start a long flowchart that becomes incomprehensible because there are so many conditions that have to be met. It is important to break off the rule at some point that makes sense so that you have discrete chunks of rules to follow that are easily grasped and then put together.
Sometimes you won't need the Boolean operators to make sense of a rule. However, you will still want to separate each element that needs to be proven in order to easily and visually see that each condition must be satisfied in order to apply the rule.
EXAMPLE: BURGLARY
A party is guilty of common law burglary IF there was
1. a breaking
2. and entering
3. of a dwelling
4. at night
5. with the intent to commit a felony therein.
Here, it's unnecessary to add the word "AND" to every line. It messes with the flow of the rule and would be visually unattractive. Use the Boolean operator with discretion in order to facilitate your understanding of the rule and to indicate a logical change in the conditions.
Step Three: State the Public Policy behind the Rule
The final step is to state the underlying public policy or doctrine behind the rule. Answer the question: Why does this rule exist? What societal goals, if any, are furthered by this rule? Is the rule merely one of fairness or equity or is there some economic justification for the rule?
Policy plays a key role in analysis. Sometimes, the particular facts of a case may satisfy the elements of the rule but the result is not consistent with the underlying doctrine. It's likely that the court would then consider that particular set of circumstances as an exception to the rule. By noting the policy, you integrate the policy into the rule as a condition that must be satisfied. In general, a rule will be true only if it's policy is furthered by the application of the rule.
About Us
Site Map
Books
Links
The IRAC Formula
Issue Spotting - The First Step
Rule - What is the Law?
Analysis - The Art of Lawyering
Conclusion - Take a Position
The IRAC Triad
IRAC Examples
The Rule of Law - In Depth
Taxonomy of Rules
Form and Function of Rules
Extracting the Rule
Analysis - In Depth
Analysis for Beginners
The Four Types of Analytical Tests
Analysis - In Depth
The single most important skill for a lawyer is the ability to analyze an issue. Professors award high grades based on good analysis. For the exam, the professor develops a hypothetical dispute where the judicial decision could go either way. There is no right answer as to the dispute, but the excellent answer analyzes all of the facts and issues.
Analysis for Beginners
Analysis is the simple act of proving each element of a rule to be true or false. To analyze, you must first break up the rule into elements to be proven. This makes the analysis easier since we're working with smaller elements. You then list all of the facts and circumstances of a case. Next, you simply match up the facts to the elements to see if the element exists.
EXAMPLE
At 12 noon, Joe forces open the door of a houseboat and enters the cabin. He takes the houseboat's expensive navigation equipment, which he plans to sell at a pawnshop the next day.
Using the rule for burglary, we match up the facts to the elements to analyze the outcome.
Elements of Rule of common law burglary Facts of case Proven True?
Breaking Forces open door with crowbar. Yes.
Entering Enters cabin. Yes
Of a dwelling Houseboat Maybe. If structure is used as a residence - i.e. someone sleeps there regularly - then it probably qualifies as a dwelling.
At night 12 noon No.
With intent to commit a felony. Plan is to steal expensive equipment and pawn it. Yes.
Conclusion: Common law burglary is not satisfied since the crime did not occur at night.
The goal in a good analysis is to step through every element and match up every fact rather than just coming to a snap conclusion because one of the elements is not satisfied. While the conclusion can be short, the analysis should be full, lengthy and methodical.
The Four Types of Analytical Tests
The analysis is often not as straightforward as matching facts to elements. When the element of a rule is merely whether it's day or night, the analysis is simple. However, if the element definition is fuzzier, then the analysis becomes more difficult. For instance, in Tort law one of the most fuzzy elements for negligence concerns the word "reasonable." If a person acted reasonably then they may not be liable for negligence. However, what's "reasonable?" Was it unreasonable for a landowner to leave an open hole on his property if a trespasser falls in it? Was if instead of trespasser, the injured party was a neighbor that landowner invited over?
Court solve these definition problems by creating different types of tests to handle the tricky problem of fitting facts into elements that have fuzzy definitions. There are four primary methods.
Reasoning by Analogy
Balancing of Factors Test
Judicial Tests
Public Policy Argument
The method used depends on the rule. A court may use one or all of these methods in deciding whether to apply a rule. Think of these techniques as the set of tools that you'll use to apply the rule.
Reasoning by Analogy
To reason by analogy you draw parallels between your hypothetical cases and cases that have already been decided. Since the facts and circumstances often determine the legal issue, you can often simply look to see whether the facts of this case match the facts of previous cases. If the key facts are similar enough, then you can draw an analogy that the decision rendered in the previous case should be used in the current case as well. Likewise, if the material facts are different on key elements of a rule, then you try to distinguish the present case by arguing that it is too different from precedent in order to apply the rule.
In reasoning by analogy, it is not necessary that facts match up exactly. If you do find a case that matches up exactly, then the argument is "on point" (legalese for a slam-dunk). More likely, you will find that key facts are somewhat different. Thus, while you can reason by analogy to bolster an argument, you will often have to use an additional means of persuasion in order to apply a rule.
As you read cases, note what facts prove an element of a rule. Key cases will frequently cite other precedents to show examples of where to draw the line. By building up a list of these examples, you have a database to show you where the line should be drawn.
EXAMPLE:
In Torts, an issue arises over the standard of care that a defendant owed a plaintiff in a negligence case. The rule on the standard of care can be stated as follows:
The standard of care must be that
1. of a reasonable
2. and prudent person
3. under the same or similar circumstances.
Although we have a clear statement of the rule, it's impossible to know what behavior is reasonable and prudent without knowing some examples. Thus we build a database of examples from the case law to show where the courts have found behavior to be or not to be reasonable and prudent. Here are two cases that illustrate the standard.
Breach of Standard of Care: Operator of heavy machinery has sister ride on side of tractor. Sister is killed. Brother's experience and knowledge of machinery should have led him to conclude that it wasn't safe. - Hill v. Sparks 546 S.W.2d 473.
No Standard of Care: In a drive-through bank, a car suddenly starts to back up and defendant throws car into reverse and backs up without looking. He runs into another vehicle and causes damage. Even though defendant didn't look, held to be reasonable behavior because it was an emergency. The other car would have hit him. - Wilson v. Silbert 535 P.2d 1034.
By building the list of examples, we begin to see what is taken into account to determine the standard of care. Prudent behavior may depend on experience and knowledge. The circumstances of an emergency may change the standard temporarily. You can see that these simple examples serve as easy guides. When choosing examples, try to include cases that illustrate holdings on either side of an issue. You want to see the full spectrum of situations when the rule applies and when it doesn't apply.
With these examples in place, you can draw an analogy to the facts and circumstances of your hypothetical. If there was an emergency situation in your example, you would argue that the hypothetical was analogous (or not if that's your position) to Wilson v. Silbert.
Balancing of Factors Test
In the balancing test, the court literally balances the different interests to achieve a just result. To do a balancing test, the court identifies factors to weigh in making its decision. The factors differ according to the issue. Factors might include age, education, experience, wealth, health and intent to do harm.
The factors are not meant to be a laundry list of necessary elements; otherwise, the factors would be incorporated into the rule. Rather, each factor is just another weight tipping the scale toward applying the rule until enough of the factors are present that you've satisfied the condition. This technique gives the court some leeway to adjust the result given a set of circumstances.
Often the courts will say "no single factor is dispositive," meaning that one fact or set of facts won't decide the case. Also, you can be light in one factor and heavy in another and still apply the rule. Be sure to note whether the cases allow this sort of flexibility in applying factors. Use it only when cases specifically state that alternative weights are allowed.
General principles of the Balancing Test
• Consider all of the facts and circumstances.
• No one factor determines the case.
• Equity: This is the moralistic argument that we want to cure harms to an injured party and deter bad behavior.
EXAMPLE
In contract law, one party can make a contract void if the terms are found to be unconscionable. First, we state the rule on unconscionability by listing the elements that must be proven in order for unconscionability to be present.
Rule
Unconscionability in a contract exists IF there is:
1. absence of meaningful choice
2. AND terms unreasonably favorable to other party.
Next, we have to prove each of the elements of unconscionability. You will discover in your reading that the first element, "absence of meaningful choice," is proven by a balancing test. The factors to be considered are listed below.
Balancing Test
Weighing the following factors proves absence of meaningful choice:
1. gross inequality of bargaining power
2. unfair surprise by the one of the parties
3. lack of education of one of the parties.
4. hidden terms in the fine print of the contract.
The next step is to take each of these factors and see if it exists in the professor's hypothetical. You will want to weigh all of the factors to see whether the bulk of the factors suggest unconscionability.
Hypothetical Facts
A retailer in an inner city neighborhood has a contract where residents can purchase furniture on the installment plan. Residents tend to buy all of their furniture at this store - sometimes buying a piece every three to six months. However, if the buyer misses a payment on a single piece of furniture, the contract allows the retailer to repossess every piece of furniture the buyer has ever bought regardless of whether they have paid off all of the previous purchases. For instance, over the course of five years, a customer buys a TV, sofa, bed and table. She pays off all of the purchases. She then buys a desk but misses three payments. Under the contract, the store can repossess the TV, sofa, bed, table and the desk to cover the depreciation of the desk.
Issue: Was there an absence of meaningful choice?
Balancing Test Analysis
1. Gross inequality of bargaining power: Because of the lack of transportation, there is only one merchant who sells furniture in the inner city neighborhood. The residents have no other person to bargain with. They either have to buy furniture from the merchant at his high prices or go without the furniture. The retailer is essentially holding these buyers hostage.
2. Unfair surprise: These are terms that are unusual for most contracts. A reasonable person would think that the once they have paid off a particular item of furniture, it is there's to keep. An installment plan typically only requires repossession of the item bought and does not create a security interest in additional items.
3. Lack of education: The level of education will help determine whether the buyer had a reasonable opportunity to understand the terms of the contract. If the buyers were uneducated, then that suggests that they never expressly agreed to these terms.
4. Hidden terms: If the retailer hid the terms in the fine print of the contract or engaged in deceptive sales practices to mislead the buyer, then that also suggests that the buyer did not have full knowledge of the unreasonable terms.
No single factor by itself will prove the element. In fact, you might even have a highly educated person and still have an unconscionable contract if the rest of the factors are strong. Here, on balance, we can probably conclude that there was an absence of meaningful choice. (See Williams v. Walker-Thomas Furniture Co. 350 F.2d 445 for a real world example of this hypothetical.)
Judicial Tests
Courts also articulate a judicial "IF-THEN" test that proves a particular element. The test is sometimes couched in terms of probability. It may ask a series of questions that would prove an element. Usually, a test will allow the court some flexibility for interpretation in order to achieve a just result.
EXAMPLE
In tort law, a person can claim self-defense if they use force against someone who attacked them first. The rule on self defense requires three elements
Rule
A defendant can claim self defense against a charge of battery IF:
1. The defendant used proportional force against offensive bodily contact
2. AND there was a reasonable belief of necessity to use force under the circumstances
3. AND there was an immediate need to use the force.
We're focusing on the first element of the rule. What constitutes proportional force can be vague. For instance, is a gun proportional force against a penknife? A four-inch blade? A nine-inch hunting knife in the hands of a 200 pound male who's an an ex-Marine? In the hands of the a little old lady with arthritis? As you can see, the distinctions can easily become blurred and it's hard to know where to draw the line. Consequently, the courts have developed a test that allows the judge to formulate an answer.
Judicial Test
Self-defense is proportional IF the force used is no more than is adequate to stop the onslaught of the assault.
1. If the force is non-deadly then it should be met with non-deadly force.
2. Deadly force (e.g. a gun or other weapon that causes seriously bodily injury) should only be used when deadly force is threatened.
As you can see, this test lends some certainty as to what is proportional while still giving the court some room for interpretation.
Public Policy Argument
A good fallback method for proving a rule is to ask whether the underlying public policy of the rule is furthered by the application of the rule. Sometimes, you will be presented with a set of facts that on the surface are identical or similar to case law. However, if you applied the rule in these circumstances, the result would somehow be unjust. If that is the case, then look to the policy of the rule. Why is the rule in existence? Have judges used this rule for equity's sake, economic efficiency or because it lends certainty to the process.
Policy arguments are particularly useful in balancing tests. The policy, in fact, might be considered yet another factor to weigh in the analysis. If the policy is or is not furthered by application of the rule, then that element should be given significant weight.
EXAMPLE
In criminal law, the charge of burglary carries with it a greater penalty than mere theft. The policy behind it is that society wants to distinguish between petty theft and more serious takings of property. However, the common law rule for burglary required several elements.
Common Law Rule on Burglary
The charge of burglary is proven IF there is:
1. breaking
2. entering
3. of a dwelling
4. at night
5. with the intent to commit a felony therein.
The problem with this rule is that it doesn't further the underlying policy. A thief could break into a barn, which is not considered a dwelling since no one lives there, and steal valuable farm equipment. Likewise, a thief could enter a house and clear it out at daytime under this rule and not be guilty of burglary. Since the policy did not match up with the rule, courts started to liberalize the rule so that interpretations of dwelling were expanded or the nighttime requirement dropped. Today's rule is much more flexible.
Modern Rule on Burglary
The charge of burglary is proven IF there is an:
1. entering
2. of a structure
3. with the intent to commit a crime therein.
Some of the common public policy arguments that are used in the law include the following.
Common Public Policies
• Equity: This is the moralistic argument that we want to cure harms to an injured party and deter bad behavior.
• Economic Efficiency: This policy suggests that all rules be based on a cost-benefit analysis. Society has to have some losses in order to make gains. For instance, this view holds that you can breach a contract and only have to pay damages if it would be economically wasteful to carry out the contract.
• Predictability: Is the rule fashioned in such a way that it lends certainty to the judicial process. Everyone knows that there is a bright line rule. Cross over it and you've violated the rule. This sort of rule also lends administrative efficiency to the court such that balancing tests are not used.
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1. Adopt the right frame of mind
Attitude is Essential!
Four Strategies to Think like a Lawyer
Four Strategies to Excel as a Student
Two Strategies to Bolster Self Confidence
Attitude is Essential!
Anyone, regardless of education or LSAT score, can learn how to be successful in law school. It doesn't matter how high your IQ is or what your grades were as an undergraduate. There is a simple formula to legal reasoning that can be learned inside of ten minutes and practiced to perfection for the rest of your life. To help you use this formula, however, it helps to adopt a new way of looking at the world. In other words, you need to start thinking like a lawyer. Here's how to do it.
Four Strategies to Think like a Lawyer
Law school is not about learning a set of rules. Law school is designed to teach you how to "think like a lawyer." Professors have long ago settled that lawyers can always look the law up in a book, but designing an argument and analyzing a legal problem is a matter of reshaping the way a person thinks. Four key strategies will aid you in thinking like a lawyer.
Four Strategies to Think like a Lawyer
1. Accept ambiguity
2. Don't be emotionally tied to a position
3. Argue both sides
4. Question everything
Strategy #1: Accept ambiguity.
Consider the following rule of law:
There is always an exception for every rule of law, except for the rules in which there are no exceptions.
At first glance this statement seems circular and contradictory. It states a general proposition that every rule has an exception. Then it goes onto say that there's an exception to this rule for rules that have no exceptions. It's like the childhood riddle, where someone states, "I am a liar." If that person is a liar, how do you know that they are telling the truth in the statement that they are a liar?
The law is full of conundrums and ambiguities like this one. If you can accept the interplay between those two statements without being distressed at the inherent fuzziness, then you will do well in studying the law. The law is inherently fuzzy in order to be flexible. Although judges attempt to interpret laws that are clear, there is almost always a set of circumstances where applying the rule would be unjust. Consequently, some latitude exists in the law in order to reach a just result.
This can drive you mad as a first year law student. You want as clear of an answer as you would get in mathematics or physics. The law is seldom black and white. Everything is a shade of gray. The right answer is almost always couched in terms of probabilities. "Maybe he's liable for damages." "He'll probably go to jail for murder."
There is no way around this, and the best method is to embrace and accept the inherent ambiguity of the law as a strength. Instead of thinking of the law as ambiguous, consider it flexible. Your skill as a lawyer will be in how you can use this flexibility to achieve the correct result for your client.
Strategy #2: Don't be emotionally tied to a position.
One of the biggest traps that professors use on unwary first year law students is playing on the emotions. The professor poses a hypothetical situation in which it's easy to hate one of the parties and sympathize with the other. The trick is to apply the law neutrally in response to the parties' legal rights and not your personal feelings.
The classic example is a situation in which a group of Neo-Nazis attempts to assert their First Amendment rights for free speech by holding demonstrations in a city largely populated with Jewish people who are concentration camp survivors.
Naturally, almost everyone feels sympathy for the concentration camp survivors. These people shouldn't have to be subjected to a Neo-Nazi's political belief in their own home. However, professors purposefully set up situations that create internal emotional conflict in order to illustrate that you should judge a situation according to the law and not let your individual biases get in the way. The correct legal result here is that the Neo-Nazi possesses a free speech right even in these circumstances so long as they are not inciting a riot.
This does not mean that you have to check your ethics at the door of law school. People complain that lawyers have no morals but these critics don't see the higher principles that are at stake. Those higher principles might be constitutional rights such as free speech or the right to be represented by counsel. This is the higher ethical ground that you need to take as an attorney rather than siding with one party or another merely because of your own political beliefs.
Finally, be aware that the professor's hypothetical situations are not the real world. While you may not like the result of the hypothetical, you need to demonstrate to the professor that you know how to apply the law. If you really feel that the result is unjust, then state the law with the correct legal result followed by your reasons on why you don't think the result is just. Just remember that it's a hypothetical. Don't be tied emotionally to things that don't matter.
Strategy #3: Argue both sides.
In order to avoid being emotionally tied to a position, you should always try to argue both sides of an issue. Luckily, the same ambiguity of the law that drives you crazy in Strategy # 1 allows you the flexibility to be on either side of a question in Strategy #3. Adopting this attitude will better prepare you for the exam and the practice of law. You want to be able to take on either a defendant's or plaintiff's position for any given legal issue because you don't know whether the facts on the exam will lean towards one side or the other.
One of the biggest traps that first year law students fall into is studying only from their own point of view. For instance, some people are naturally plaintiff's attorneys - fighting for the underdog against the big corporate giant. Others tend towards representing defendants - protecting shareholder interests from people out to make a quick buck on a fraudulent claim. Each side is sometimes right and sometimes wrong. Your immediate goal on the exam is not to figure out what kind of lawyer you are. Your immediate goal is to do well on the exam. This means that need to be able to argue the side that seems to be correct given the facts. This may, in fact, be a party that you wouldn't normally side with.
One major upside to this sort of training is that it will make you a better lawyer to be able to argue both sides of a case. Once you do adopt a plaintiff's or defendant's posture in real life, you will benefit from knowing what arguments the other side will bring forth. If you can understand the intricacies of another side's case, then you can better attack that argument.
Strategy #4: Question everything.
Around the age of two years old, a child often starts asking his or her parents "Why?" You should be like a two-year-old. Every rule of law, judicial decision, statute and legal construct has a reason for its existence. It may not be a very good reason, but you will be a better lawyer for behaving like a two year old and repeatedly asking "Why?"
This act of questioning focuses you on policy as a basis for the law. Understanding policy will carry you far in successfully writing exams. Arguing policy is one of the four key methods of analysis.
Four Strategies to Excel as a Student
Law school is as much a psychological game as it is an intellectual game. Students defeat themselves ahead of time by stressing out on the workload. You can put yourself in a better position as a student by adopting these simple attitudes.
Four Strategies to Excel as a Student
1. Keep your cool
2. Compete only with yourself
3. Play with concepts like a new toy
4. Strive for balance in your life
Strategy #1: Keep your cool.
Law professors use fear as a tool to motivate students to 1) work hard and 2) be cautious lawyers. Many professors feel that a little anxiety is a good thing for students. The very structure of the case method and Socratic dialogue used in most classrooms helps foster this fear since nothing is laid out on the table.
However, fear also takes you away from learning. It's a waste of valuable energy. Instead of focusing on the learning, you focus on the fear of not "getting it." To counteract the fear that is inherent in law school, consider three ideas:
First, everyone in your class is in the same state of ignorance. No one knows what's coming next.
Second, if you make a mistake in the classroom, it doesn't count. The only grade that counts in most law school classes is the final. Relax and make mistakes. It will help you in the exam to know your weak points.
Third, hundreds of thousands of students have sat where you're sitting now and have survived and thrived.
Some people purposefully create stress as a motivator for themselves. They freak out at the workload and use it as a way to bond with other students. Stay away from the people who are stressing out. Stress creates stress, and you want to focus your energies on studying, not stressing out.
Strategy #2: Compete only with yourself.
Although grades are important, it's also important to put them in perspective. One key factor in getting good grades is to forget about them and concentrate on the learning. Focusing on the competition - i.e. your fellow students - takes your eye off the ball, which is to learn the law. If you are constantly sizing up the competition and comparing yourself then you are taking yourself away from valuable study time.
Consider the following truism:
While grades are the only thing that counts, grades also count as only one thing.
The idea here is to recognize the importance of grades in determining certain things, such as law review, summer jobs and so on. At the same time, you realize that the learning and relationships are far more important keys to happiness than grades.
The stress of getting good grades often creates competition, which leads to bad feelings between students. There are true stories of people hiding books in the library or ripping pages out of case books that are necessary to complete an assignment. This sort of competition can be very destructive.
The best strategy to deal with the stress of grades is to compete only with yourself and not others. The people in your class are your future colleagues. Building trust and relationships with these people will take you much further than any marginal increase in grades you might get from cut-throat competitive tactics for grades. The most successful people in the world are not those who are most competitive with others. Rather, the most successful are those who compete with themselves to learn the most.
Strategy #3: Play with concepts like a new toy.
Whenever you learn a new legal concept, play with as if you were a kid and the concept was the coolest, neatest, newest toy that you own.
Make the concept your own by restating the principle in your own words. Turn the idea over in your head as you're walking to class or taking a shower. Whenever you learn a new rule, restate it a dozen times until you don't need notes to say it by heart. Once you really understand that concept by putting it in your own words, move on to other principles.
Apply the rule to your everyday situations. For instance, you might begin to apply the principles you learn in Contract law to your everyday dealings with grocers and retailers. As you drive down the highway, consider what you would have to prove to bring a negligence suit in Tort if there were an accident. If the car crash was caused by a faulty part in a foreign car you were driving, how could you use Civil Procedure to haul the manufacturer into Federal Court.
Closely related to this concept is the idea of making up hypothetical fact patterns in which the rule of law will or will not apply. Try this make-believe technique in order to better learn how to apply the rule. You'll be surprised at how closely you might come to guessing what fact pattern is on the exam.
A lot of the difficulty in learning comes from fighting it. We put ourselves into a non-receptive state by saying, "This is difficult. I don't understand." We also make it harder to learn by not focusing on the learning but by focusing on where we are on the general curve of learning - i.e. what's our class rank. By wasting energy on these areas we don't focus on the area where the true energy should flow - the actual learning of the law. Playing with the concepts like they were toys will defuse that difficulty.
Strategy #4: Strive for balance in your life.
A lot of law students end up studying 12 - 14 hours a days in order to get through all of the reading and work of law school. This can easily lead to burn out. Putting in more hours doesn't necessarily lead to more knowledge. The law of diminishing returns suggests that 80 hours a week may lead to less advancement in the study of law than a focused 40-hour week.
It is essential to have a balance in your life with exercise, eating right and fun time with your friends and family. You will get more out of the classroom if you are alert, well fed and otherwise on top of your game physically and emotionally than you will if you have read yet another treatise about the law.
You need to give law school a break in order to give it your maximum attention later on. You need time when you're not thinking like a lawyer in order to better achieve becoming a lawyer. In the words of the Alan Watts, a professor of Eastern religions, "By going out of your mind, you come to your senses."
Two Strategies to Bolster Self Confidence
Many law students suffer academically because they lack self confidence in their ability to handle the material. By deciding ahead of time that they don't have the ability, they fulfill that prophesy before even trying. In order to succeed academically in law school you have to adopt a belief in your ability. Belief alone won't carry you through to your goals. You also have to put in the work. But without a belief in your ability, you defeat yourself before you begin.
Reprogramming for Success
If you've gotten as far as being accepted into law school, then you have the native intelligence to understand legal reasoning. Hundreds of thousands of people have learned to analyze issues like a lawyer, and you can do it too. If that isn't proof enough, then consider adopting a few techniques to foster self-confidence in studying the law.
One method is through affirmations. Affirmations are a tool you can use to counteract the negative self-image that is ingrained in the subconscious mind. Through the negative messages we receive in childhood, the subconscious mind develops limitations as to what we can achieve. The subconscious tells us that we aren't an "A student," so we never put forth the effort to counteract that negative message.
Affirmations are a powerful tool to reprogram the subconscious. Affirmations are said in front of the mirror in the morning immediately when you get up and in the evening right before you go to sleep. It could be something as simple as:
"I, (your name), am an intelligent, confident, and articulate student who will become an outstanding advocate and attorney for my clients."
Affirmations generally get a bad rap. It's easy to dismiss affirmations as hokey, and, in a way, they are. But affirmations are also incredibly empowering. Affirmations illustrate just how powerful language can be. I challenge you to use affirmations for a week and see if they make a difference in your underlying attitude.
Another method to improve self-confidence is through visualization. High-performance athletes visualize winning a race before running it. During the actual race, they merely put into action what they have already visualized. You can use visualization to be successful in law school before you crack a book. Take a moment to visualize your first year in law school. Close your eyes and imagine a classroom where you and your fellow students engage in a lively debate. See in your mind a situation where you convince your peers to adopt a different viewpoint. Imagine taking your first test, having fun with it and knowing that you aced the exam. Fast-forward to your third year when you graduate. See yourself successfully taking the bar exam in your state. Visualizing doesn't mean that you don't have to do the work, but it will foster the belief in your ability to accomplish the task.
The Myth of Mistakes
Fostering a belief in your ability is difficult when you are constantly faced with making mistakes. Mistakes are a fact of life in law school. The number of mistakes that a law school student makes is enormous. Everything about law school is new. The language of lawyering is new. The process of learning is different than most academic fields. The analytical thought process is a skill that doesn't come easily. You should expect to make mistakes.
Success is determined by what you do with those mistakes. Are mistakes a learning experience or do those mistakes reinforce a belief that you can't do the material? If you can look at each mistake you make in law school as an opportunity to get it right for the exam, I guarantee you that you'll excel.
You're not alone in making mistakes. Did you realize that the best baseball players in the world strike out two thirds of the time they are at bat? Do they let that huge failure ratio deter them? No. Each time they step up to the plate, they have an unwavering belief that this is the ball they are going to hit out of the park. They don't let their failures get in the way of believing in their ultimate ability to succeed.
Recognize to yourself that you are only a beginner. As a beginner, you have to start out with simple concepts and take small steps in learning the material. Sometimes you won't succeed, but that's part of being a beginner. In fact, you want to make mistakes in order to see where you got it wrong the first time through. You must never let your mistakes fool you into believing that you are not capable.
Summing up, there is a two-step approach to putting yourself in the right state of mind. Adopt this phrase as your guiding principle:
Think like a winner by knowing that you will ultimately succeed, but act like a beginner by learning from your mistakes.
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3.Get smart about the case method
Speed Reading a Case
Speed v. Comprehension
Pre-reading Strategy
Taking Notes While Reading
Cases and Casebooks - a Brief History
The Structure of a Casebook
Why Brief a Case?
How to Brief a Case
Sample Case and Brief
Beyond the Casebook: Study Tools
Legal Dictionary
Commercial Outlines
Hornbooks
Study Groups
2Ls and 3Ls
Practice Exams and Model Answers
Speed Reading a Case
Reading your first case is like reading a foreign language you know only slightly. You might recognize the words, but you have to translate the concepts into English. You haven't begun to think in the foreign language yet.
Like a foreign language, case law contains terms not familiar to the first year law student. Cases are written by lawyers for lawyers, consequently the writing contains technical legal jargon and is structured for the legal mind instead of the layperson. To make it even more difficult, judges often use awkward syntax or complex words where simple ones would suffice. It doesn't help that law professors typically dish out a difficult-to-understand case in the first week of law school as a rite of passage to separate the serious students from the laggards.
Typically, the average first year law student reads only three pages an hour in their first month of law school. By the end of the first semester, most students read ten pages an hour and keep at that pace until the end of their second year. However, with the right techniques, you can start at ten pages an hour and leap to twenty or thirty pages within your first semester.
Speed v. Comprehension
There are two ways to measure effective reading - speed and comprehension. Generally, the more speed you have, the lower your comprehension. However, if you are familiar with the subject matter or know the author well, then you can generally pick up the pace of the reading without sacrificing comprehension. Pre-reading is a strategy that achieves that goal.
For most people, comprehension falls off sharply the more quickly a person reads. Assuming all other factors are constant, a student has to put in a certain amount of hours reading in order to get a B average.
Pre-reading gives you an edge by building comprehension into the equation. Thus you start out knowing a few things about the case before actually reading, thereby allowing you to read faster and retain more information. In math terms, the curve shifts before falling off. With pre-reading, the same student as above can put in fewer hours and still maintain his B average.
Pre-reading Strategy
By pre-reading the case, you can decide whether to skim, skip or read a section. This dramatically reduces the time you spend reading unnecessary material.
STEP-BY-STEP: READING STRATEGY
Step 1: Pre-read a case.
-> Read the topic sentence of every paragraph.
-> Spend 2 minutes for every 10 pages.
Step 2: Based on pre-reading, choose the most effective strategy to read each paragraph.
-> Skimming
-> Skipping
-> Reading
Step 1: Pre-reading
Pre-reading gives you the gist of the case to determine whether to skim, skip or thoroughly read a case. Pre-reading is not skimming. Skimming is a more thorough reading of the material than pre-reading. You should resist the impulse to skim the entire case as you pre-read. Think of pre-reading as a superficial skimming of the material.
Pre-reading a 10-page long case in the typical casebook should take no longer than two to three minutes. However, that scant three minutes will take a three page-an-hour reader to ten pages-an-hour almost immediately. A ten page-an-hour reader can leap to twenty pages-an-hour with a little practice.
HOW TO PRE-READ
Pre-reading consists of the following steps.
Step 1: Read the case name.
Step 2: Read the first paragraph or two to understand who the parties are and the issue that brought them to court.
Most cases will give the procedural history, parties and issues in the first two paragraphs.
Step 3: Read the first sentence of each paragraph.
By reading every topic sentence of every paragraph you should get an idea of the structure and general direction that the case is going towards.
Step 4: Read the last paragraph or two so that you understand the holding and disposition of the case.
Not every holding will be given in the last two paragraphs, but the author usually will sum up the ideas of the case as a conclusion in the final paragraphs.
The overview all comes down to getting the big picture sooner. Once you have an overview of a case, you know enough of the contents to read the case quickly and easily. There are four things that you identify as you pre-read.
1. Outcome
2. Elements of the Case
3. Legal Concepts
4. Evolution of Reasoning
Outcome: By knowing the outcome, you have a ready context for the reasoning. Although the suspense is gone, you know where the judge is going with his or her application of the rule.
Elements of the case: You've identified where the judge actually talks about the procedural history, facts, statement of rule, reasoning, holding, etc. See Chapter ___ for more detail on the structure or elements of a case. You should have an easier time going straight to a particular section in order to mentally brief a case.
Legal concepts: Instead of having each legal concept revealed to you one by one, you have the big picture ahead of time. A typical Contracts case, for example, might discuss many different rules all in the context of one issue. By knowing that three distinct rules come into play, you pinpoint the most relevant rule ahead of time.
Evolution of Reasoning: Typically, a judge will step through a case such that he or she cites the development of a rule from the common law through the debates in the legislature when the current law was originally passed. Some of this is superfluous for your purposes.
Step 2: Skimming, Skipping or Reading
Skipping: As a result of pre-reading, you can determine which paragraphs you can skip altogether. Judges often trace the development of a rule from the common law beginnings to its passage by the legislature. Since the casebook usually groups similar cases together, you will find yourself going through the same historical beginnings many times over. At some point, you can just skip this material altogether.
Although it sounds counter-intuitive, skipping can actually increase overall comprehension. Typically, students become bored when they keep rereading the same material. By skipping through material that is already familiar, you keep the pace fresh so that your mind doesn't wander.
Here are some typical paragraphs that you can skip:
• Discussion of the historical basis of a rule that has already been discussed in a previous case.
• Ancillary legal concepts that are not relevant to the legal concept being discussed.
• Examples of a principle that you already understand.
Skimming: Skimming is different from pre-reading. Skimming means you are reading everything lightly - giving it the once over. In skimming, you don't read every word, but you do scan every sentence. Instead of reading words as a single element, you read phrases. You use skimming when you are basically familiar with the material but need more information than what you got out of the overview.
Reading: Reading doesn't mean that you have to read every word. For most people, the mind is quicker than the eye. The mind typically gets bored if you read every word. By training your eyes to go quickly over each sentence, you can learn to read faster. It takes practice, and it's beyond the scope of this book to offer exercises in speed reading cases. There are many fine speed-reading books available. It pays to learn and practice speed-reading the summer before law school. Once the semester starts, you will be hard pressed to read every assignment during your first semester. However, if you haven't taken the time to learn how to speed-read, then you can still benefit from the easy to learn pre-reading strategy.
Taking Notes While Reading
One pitfall that most students fall into is highlighting nearly everything in a case. It's common in the first year to think that everything is relevant. The trick is to pre-read without highlighting anything! This can be tough because as you pre-read you get a sense of what is important and naturally want to note it. However, you can never really know what is important until you read an entire piece.
By not highlighting anything on your first pass, you also save time in the long run when you outline. When you outline, you return to a case a few weeks after you first read it. With unnecessary highlighting, you end up spending a lot of time rereading to find out what is relevant in a given case.
On your second pass through the case, identify the relevant sections and highlight the issue, rule, facts, analysis, policy, procedural history and other elements. Identify the elements with a notation in the margin. Some students use different colored highlighters to identify different elements. One color is used for the rule, another for the issue, and so on. This usually works well only for highly visual people. For myself, I find that different colors slow you down and only add to the confusion of too much highlighting.
As in all things, if it works for you and adds to your productivity and efficiency, then do it. Otherwise, eliminating the clutter will speed you along your way.
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4. keep class time in perspective
The First Day
Typical Questions Professors Ask
Five Essential Notes to Take in Class
Shorthand for Legal Terms
Recording Lectures
Computers in the Classroom
The First Day
You've read the case. You've written a brief. Now it's time for class.
More than anything else, law school is about precision in language. Anything you say in class can and will be used against you by your fellow students or the professor. However, don't fear the questions. Look forward to your chance in the hot seat. It doesn't matter if you make mistakes in class. In fact, classes are the perfect place to make mistakes. Making a mistake clears up the problem in your own mind and probably that of your fellow students as well.
In the Socratic Dialogue the professor asks a question, and the student responds. With each response the professor asks another question delving deeper into the court's reasoning. Just when you think every possible question has been answered, the professor changes the facts of the case and starts over.
The Socratic Dialogue is meant to stimulate lawerly-like thinking. While effective, the Socratic Dialogue is also the long way around to teaching legal reasoning. It can also be very demoralizing for the student because the professor's role is to trip students so they can see their mistakes. At its worst, the Socratic Dialogue becomes a sadistic interrogation.
One of the common traps in the Socratic Dialogue is to get a student stuck on the logical ground of the slippery slope argument. In the slippery slope, a professor establishes a rule of law then asks the student to a draw a line where the rule should or shouldn't apply. This is a very fact specific question. By changing the facts slightly, the professor tries to illustrate that the policy of the rule may no longer apply though the facts might justify application of the rule.
Typical Questions Professors Ask
• Who are the parties?
• What are the facts of the case?
• Which court is this?
• How did this case get to this court?
• How did the lower court rule?
• Who is the appellant (or respondent)?
• What is in dispute?
• What question does the court have to answer?
• What is the common law rule?
• What is the policy behind the rule?
• Does the court fashion a new rule of law?
• What is the holding of the case?
• If the facts were changed so that (professor suggests an additional relevant fact) would the court rule the same?
• How did the dissent decide this case differently?
Five Essential Notes to Take in Class
Ninety per cent of what is discussed in class is unnecessary for the exam. Consequently, a good deal of the material is unnecessary for your outline as well. However, there are five essential notes you want to take out of every class. If you isolate each element, you will have the makings of a good outline for the exam.
Out of each class you want to:
1. Extract the rule of the case.
2. Explain the policy behind the rule.
3. Note which facts in the case prove the rule.
4. Understand the reasoning behind the case.
5. Note the professor's opinion about the case or rule.
If the professor has spent a lot of time on one element, factor, test or example then make a special note of it. Highlight the element with some sort of special formatting to that the professor considers it important. For instance, you might reserve the format device of underlining for professor inspired elements.
Finally, develop a shorthand that you can use in order to quickly note legal issues and common legal phrases. Comments move quickly in class and you don't want to be left scribbling common terms while important and complex concepts pass you by. Here are a few suggestions for first year classes.
Shorthand for Legal Terms
Common Law C/L Judge J.
Constitutional Con Murder M
Contract K Negligence Negl
Court Ct. Plaintiff IMAGE
Criminal Crim Reasonable Reas.
Defendant IMAGE Supreme Court SC
Recording Lectures
Many first year students record the professor's lectures on tape. This can be a good way to pick things you missed the first time through. One downside, however, is that in the Socratic dialogue, it may be difficult for the tape recorder to pick up both the student's and the professor's voice. You may get only half of the conversation. Furthermore, most students find that they don't have time to listen to the tapes. One alternative is to listen to the tapes while exercising or commuting. It helps reinforce the lecture without taking away from more structured study time.
If the professor starts or ends each class with a summary of what you've studied, then another useful technique is tape just the summary. If you have a dual tape cassette recorder, you can then create a "Best of" tape, which strings all of the summaries together. By the end of the semester, you have, in the professor's own words, a capsule summary of what she thinks is important in the area you're studying. If you hit these high points in the exam, you're sure to do well on the final.
Computers in the Classroom
More students are beginning to take notes on their laptops. If you type faster than you write, then it may be a good idea to bring your computer with you.
The danger is in relying on those notes to form your outline without going through the notes and rewriting them. Taking notes on a computer does not eliminate the step of re-entering the information when you begin to outline. To see the benefit of outlining, you should really rethink the material. Rewriting the material facilitates rethinking.
Be wary of buying a laptop solely for the purpose of typing in class. You should check on the logistics of the classroom like the height of the desks at your law school and whether there are outlets to save battery power. In some of the older schools, the desks are so high that it makes typing uncomfortable and impractical. Also, many schools are not equipped with outlets, so always be sure you have enough battery power to get through class. Finally, be aware that some of your classmates may find the typing you do in class annoying. Try not to be too heavy handed on the keyboard while in class.
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5. create an outline for each class
Why Outline When You Can Buy One?
When and What to Outline
How to Outline: 6 Easy Steps
What to Leave Out
Before the Exam - The One-Page Outline
Why Outline When You Can Buy One?
Given the time pressures of law school, many students are left wondering why they should outline at all. Commercial outlines that are written by experts are readily available at cheap prices. Moreover, creating your own outline is time-consuming and difficult.
Statistics show that students who create their own outlines invariably do better on exams than those who rely on commercial outlines.1 It's the process of creating the outline and bringing the material into a cohesive and understandable format that makes the difference. Merely possessing an outline written by the professor or an outstanding student does not guarantee success.
Outlines are simply condensed summaries of the rules of law. The outline serves three primary functions.
First, it helps tremendously in getting you to think like a lawyer. You synthesize your class notes, briefs, reading and secondary sources into one coherent body of law.
Second, you remember the rules better by restating it in your own words. It will help you memorize the material by rewriting and reorganizing it.
Third, the outline is your primary tool in tackling the exam. In the final week before the exam, you out your casebook and class notes on a shelf and concentrate only on your outline. The outline makes you more efficient by giving you focus. Even if your professor allows an open book exam, you'll want to outline in order to be more efficient in using notes during the exam.
There are abundant resources in commercial outlines. However, you won't necessarily succeed by having the best commercial outline or in having an Honors Student's outline from the past. It is the process of outlining that spells the most success for a student. If you do use another student's outline, make sure that she had the same professor as you do. Professors teach their courses differently to emphasize different areas of the law.
1 Michael J. Patton, "The Student, The Situation, and Performance During the First Year of Law School," 21 Journal of Legal Education 10 (1968); Guy R. Loftman, "Study Habits and Their Effectiveness in Legal Education," Journal of Legal Education 418 (1975).
When and What to Outline
While many students attempt to outline, few know how to do it effectively in the first year. Outlining skills are usually not taught in law school. Also, many students start too late in the semester to take advantage of the process. By the time they start outlining, they've forgotten the nuances of the first half of the course. On the other end of the scale, some students start to outline too early. There's a danger of starting before you really have a grasp on the material. You need to know the material before you start to condense it into an outline.
Outlines should be started when you finish a significant portion of the course, but not beforehand. You can figure out when to start outlining by looking at the table of contents in your casebook and comparing it with the syllabus of the course. Most casebooks are broken into sections in which there are three or four chapters comprising 100 pages or so of material. In the standard first year course, this material might take five or six classes. What follows is an example of a break down of major sections and subsections for a Torts class.
Sample Torts Table of Contents
1. Intentional Torts
a. Assault
b. Battery
c. False Imprisonment
d. Intentional Infliction of Emotional Distress
e. Defense - Self Defense, Consent, Privilege
2. Negligence
a. Duty of Care
b. Breach of Duty
c. Causation
d. Defenses - Contributory Negligence, Assumption of Risk, Statute of Limitations
3. Strict Liability
a. Trespassory Torts
b. Nuisance
c. Products Liability
d. Defenses
Using the sample above, you would want to start outlining only after you have covered an entire section of material, such as all of the Intentional Torts. Although you may feel that you are ready to outline after covering only Assault and Battery, it would be better to wait until you have also covered False Imprisonment and Emotional Distress. Although the areas do not seem related, those torts all have the underlying element of "intent" in common. To fully understand the concept of intent, the other torts will lend insight. Alternatively, don't wait too long. Be sure to start outlining the material once you've completed a section while it is still fresh.
How to Outline: 6 Easy Steps
Outlining accomplishes two tasks:
1. Synthesis
2. Organization
The outline should not just rehash the book or lecture notes. If you're only regurgitating what the professor said in class or copying what the casebook author wrote, then you are missing the whole point of outlining - to get you to think like a lawyer.
Here are the steps you should take in doing your first outline.
Step-by-Step: How to Outline
Step One: Assemble the Materials
Step Two: Create a Template
Step Three: Organize the Big Picture
Step Four: Synthesize the Rule
Step Five: Illustrate the Analysis
Step Six: Provide Case Summaries
Step One: Assemble the Materials
Although it seems self-evident, you'll want to have a large workspace that is clear of clutter. Gather together every possible book, note, handout or scrap of paper relating to your class. Here's a list of some of the materials that you want to have on hand.
Materials to assemble:
• Casebook
• Class notes
• Case briefs you prepared for class
• Class handouts
• Syllabus
• Secondary sources - e.g. Commercial Outlines, etc.
• A good word processor with outlining features.
As you move through the material, you'll want to check each one of these sources in order to see if anything adds to the analysis of the rule of law or whether your professor added any insight into how the rule should be applied.
One of the most common mistakes that students make in outlining is to rely on only one source - such as the class notes or the book. It's easy to develop a rhythm by moving through the book and forgot to check your class notes in order to see what was said in class. By having a large surface area to work with, you can spread all of the materials out and better handle the multiple sources and references.
You also need a good word processing program that has an Outline mode. A book could be written on choosing the right word processor (and there are such books). It's really a matter of personal preference. The most common word processor is Microsoft Word. Although it's popular to dislike Microsoft because the company is a corporate giant, the fact is that Word is fast becoming a standard in the legal field. Word Perfect was considered the standard among law firms because it formatted legal documents such as court briefs, but Microsoft Word has eclipsed Word Perfect as the word processor of choice.
Regardless of which program you use, be sure to take the time to learn the outlining features of your word processor. The outline mode automatically justifies and indents subheadings. Many students make the mistake of indenting by using tabs. However, using tabs only works well for the first line. If your sentences go to a second line (and they will) the word processor will re-justify to the left margin thus making the document hard to read. Take the time to learn the outline mode. You'll save a lot of time in the long run.
Step Two: Create a Template
A key part to getting started is to create a structure or template. The template is merely a format that you adopt in order to "fill in the blanks" as you move through the material. The standard template organizes the material according to IRAC. The template keeps the structure consistent as you jump back and forth between different issues.
The template should have preset headings for the material that you want to gather. By having a clear understanding of where the elements go, you will move through the material more quickly. Create the template in your word processor and leave a copy of it at the top of bottom of your document so that you can easily copy and paste the template as you come to a new issue. It will save you time in the long run.
SAMPLE TEMPLATE
I. Legal Principle
A. Issue / Scope1. Issue: The scope of what's covered under this heading helps you organize and scan your outline when studying.
B. Rule
1. Common Law Rule:
2. Restatement:
3. Model Code:
4. Dissenting Rules:
5. Policy: Rule: A restatement of the rule in your own words broken down into elements. Include variations on the rule such as the Common Law, Restatement, etc.
C. Analysis
1. Reasoning by Analogy:
2. Factor Balancing:
3. Judicial Tests:
4. Policy Arguments: Analysis: Use the four primary forms of proving the rule to give examples that illustrate the use of the rule in real life.
D. Case Summaries1. 2. Cases: Write one or two sentences describing the cases you've read. These summaries are just meant to jog your memory of the case. Emphasize the facts and holding.
Although you have a set structure defined for creating the outline, it should not be rigid. Feel free to modify or leave out elements that don't make sense for a particular legal principle. For the most part, however, this method gives first year students the structure they need to learn the elements of legal reasoning.
The template should also be defined as to the outline style you use - i.e. roman numerals vs. legal outlining style (e.g. 1.1, 1.2, 1.3, 1.3.1, etc.). Most word processors will let you use either approach or a hybrid. What matters in choosing a system is that it makes the most organizational sense to you. Choose a system that will facilitate instant recall and understanding of the material. Don't use someone else's approach if it doesn't make sense. Outlining can be as idiosyncratic as you like so long as it aids you in the exam.
The outline structure used here is very similar to IRAC, and the methods used to restate and analyze the rule. The structure allows you to have instant pattern recognition during the exam and it makes it easier to build an outline by plugging items into a set format. If you've followed the advice on briefing cases, you should be able to build an outline with relative ease.
One common mistake that first year students make is to organize their outlines by case. It's natural for students to want to have major heading according to case names since this is how the material was taught. However, this type of organization will not help you on the exam. The exam requires that you recognize issues and then analyze the facts. The IRAC outline breaks rules out according to issue, thereby helping you study for the exam. While your classes have emphasized cases, you need to emphasize analysis in your outline.
We'll step through each of the major headings to see what's necessary in each. See the Appendix for an example of a fully outlined legal principle.
Step Three: Organize the Big Picture
Another pitfall that students make is jumping into the first issue before they get the big picture. Get a sense of the overall structure of your outline before diving into the first case. Know your destination before you start to go there. You'll save a lot of time and frustration by spending ten to fifteen minutes paging through all of your materials to reacquaint yourself with cases and class notes. Just flip through every page of your casebook that you plan to cover and jot down the big picture items. This helps lend a structure to your outline, so that you know what your major headings are going to be. This process is similar to the pre-reading exercise. By looking over the material and getting the gist of it, you will be able to move through it faster and not get bogged down in unnecessary details.
In this first step of getting the big picture, you'll only be filling in the Legal Principles noted by the Roman Numerals. The Roman Numerals might correlate to the headings we saw under the major section headings above for tort. Thus, the intentional torts section of your outline might be organized as follows:
I. Battery
II. Assault
III. False Imprisonment
IV. Intentional Infliction of Emotional Distress
V. Defense - Self Defense, Consent, Privilege
You may want to use broad headings such as Intentional Torts and Negligence to separate out the different sections. However, keep the particular torts or ideas as main headings even though they seem to be subheadings of a broader category. Otherwise, you will soon be indenting into sub-sub-subheadings.
Organize it in a way that makes sense to you and which correlates to how your course was taught. At this point, it would be a good idea to compare your organization to the Syllabus that the professor used in the course and to the table of contents in the book.
By using the right methods from the start, you have cut down on the time used to put this material in a useful format.
Step Four: Synthesize the Rule
If you've prepared case briefs and class notes in the IRAC style, then the substance of your outlining should flow naturally from those materials. The big difference is that instead of listing a different rule for each case, you want to synthesize the rules into one principle.
Rules build upon one another and your goal in outlining is to come up with one general rule that combines the related rules from specific cases. Despite the need to illustrate differences, you want one primary rule that governs the jurisdiction that you think your professor will test you on. The synthesized, or primary base line rule, is the one that you will work with in the exam. It is the rule that either your professor adopted in class as the better rule of law or the one that is used in your jurisdiction. Professor Bob Berring at University of California, Berkeley Boalt Hall School of Law calls this "the one perfect sentence" rule. Berring tells students to write "one perfect sentence" that summarizes each major rule of law. Student can then automatically spit out this sentence whenever the issue arises on the exam.
From that base line rule, you can then note distinctions about the rule from other jurisdiction. The jurisdiction could be the state in which your law school resides or it could be the general common law. Ask your professor what she wants you to emphasize before attempting to outline.
In order to synthesize the rule, take advantage of the structure of the casebook. The format for casebooks usually has one principal case that states the primary rule and then several squib cases that have refined the rule or give a different interpretation on a different set of facts. A squib case is a supplementary case that may be edited by the author of the casebook to only bring out certain principles.
To synthesize a rule, you have to start with the base line rule and restate it. Be sure to break the rule into elements that form terms of art. Although the squib cases illustrate distinctions, they can also help you form a general principle. For instance, you might have a principal case that illustrates the old common law and more modern cases that have revised the rule. The base line rule should take into account how the squib cases have modified the common law.
If the difference between the squib cases and the principal case is merely one of language and not substance - i.e. the rule is stated differently but the effect is the same - then just choose the language that best suits you. Don't clutter your outline with unnecessary restatements of the same principle.
After you have the base line rule, you want to list similar rules that illustrate different treatments of the same principles. This will help you in the analysis section of the exam. For instance, you want to be able to see the distinction between the following sources:
• Synthesized (or Base Line) Rule
• Common Law rule
• Restatement Rule
• Model Code Rule
• Rules from Different Jurisdictions
• Using examples to reason by analogy.
State the rule once as common law, once as the uniform statute, once as the Restatement. Note the differences that the different methods illustrate. There won't always be different rules for each type. However, if there are, then it's likely that a different result may happen with a given set of facts if a different rule were applied. Your professor is trying to see if you can catch these nuances, so be sure to make the distinction in your outline.
Finally, like the rules of law, these instructions are just guidelines. You will inevitably find some rule that doesn't fit neatly into the procedure illustrated above. Be flexible and state the proposition in a way that makes sense to you.
Step Five: Illustrate the Analysis
Analysis is the most important element of the outline. Your exam primarily tests your ability to analyze and issue-spot. Consequently, this area of the outline needs to be fleshed out with examples on how to apply the rule. There are four primary ways to prove the elements of a rule of law. You look at the terms of art in the rule and prove it by:
• Using examples to reason by analogy.
• Weighing several factors in a balancing test.
• Applying a judicial test.
• Arguing that the rule's policy is furthered by application to the rule.
One mistake that students make in outlining is to integrate the analysis into the statement of the rule. These tests are so integrated with the rule that they seem to belong as part of it. However, it helps clarify the analysis to keep the rule and tests used to prove the rule separate.
From an organizational point of view, you need to step through the proving of a rule according to each of the rule's elements. Since each individual element is often a term of art, you can use the element as a heading for proof purposes. Underneath the element heading, you then list one of the four ways to prove the rule. See the sample outline that illustrates this principle.
Step Six: Provide Case Summaries
The last step in outlining is to provide case summaries. List every case that you have read including the squib cases with a one or two line description that will jog your memory as to the specifics and holding. This one or two-liner should state sketchy facts of the case and what the case stands for. Include some facts because professors often draw upon case law fact patterns in order to create hypotheticals.
Case summaries give you an edge not only as a way to illustrate the examples for reasoning by analogy, but also to provide a quick overview of a case-by-case organization of the legal principle. By scanning this list, you remember how you learned the material. It's a chronological view into the material. Typically, it will also serve as a way to look at the development of the law, since casebooks often start with a principle case followed by cases that have distinguished that principle.
For purposes of the outline, the case summaries are much more condensed than the case brief. Most of the details are eliminated altogether. There's a real danger of putting in too much material. The point is to get you to recall rather than to have all of the facts. You will rarely need more than two or three sentences.
If a famous judge wrote the case - such as Holmes, Brandeis, or Cardozo - then note that as well. Being able to cite a judge for a certain principle is one of the ways to distinguish yourself from the crowd in an exam. It won't win you a top grade by itself - for that you need stellar analysis. But it does allow you to show that you understand the importance of the opinion by showing its source.
Some other elements to include would be the page number in your casebook so that you can quickly reference it if necessary.
Here's an example of the right way and wrong way to summarize a case for purposes of the outline.
Too Much
Palsgraf v. Long Island Railroad. 248 N.Y. 339, 162 N.E. 99. Judge Cardozo. Railroad guard pushes a man from behind in order to help him get on moving train. Man drops package wrapped in newspaper that contains fireworks. Fireworks explode. Explosions cause scales to fall on platform which harm plaintiff. Court finds that action by guard was not foreseeable as to the harm that was caused to the plaintiff. Harm caused must be apparent to the ordinary person in order for liability to attach. If the harm is unintentional then it must be natural or probable to occur in order for there to be negligence. Too remote in proximate cause theory for there to be a tort against plaintiff.
Too Little
Palsgraf. Fireworks case. Explains proximate cause.
About Right
Palsgraf v. Long Island Railroad. p. ___. Cardozo. Railroad guard pushes man who drops package. Package contains hidden fireworks that explode and cause scales to fall harming plaintiff. Illustrates that harm was not foreseeable by guard as to plaintiff so no proximate cause.
What to Leave Out
Not everything that you have in your class notes or case briefs is relevant to the outline. It's as important to know what to leave out as what to put in. For instance, unless your class is Civil Procedure, Criminal Procedure or Evidence, you probably don't need the procedural information (i.e. what happened in the lower courts and how this case came to be appealed) in your outline. Nine times out of ten, this material is irrelevant to your outline.
A clear understanding of procedure might be tangentially important in the exam. In other words, you should be able to talk the talk of procedure in an exam. In fact, your professor may have grilled students on the procedural elements in order to get them to use the artful language of lawyering. But the procedural nuances of the cases are not as important as the nuances of the rule for the body of law you're studying.
As with everything in the study of law, there is probably an exception in your material where procedure is important. In those cases, the rule integrates with some sort of procedural issue and this should be apparent. In general, however, you can leave procedure out of an outline.
Stumbling Blocks
A big stumbling block in outlining is pure fear of not getting it right. Because law students don't get much feedback except for the final exam, there is a tendency to always wonder whether you are doing something correctly. This fear often causes first year students to freeze up and not move forward. In other words, they waste time fretting about getting it right. It's easy to fall into the trap that if you don't get the outline right, you won't get the exam right. This is where you can use secondary sources such as commercial outline to verify whether you've gotten the material down correctly. Then you can move forward with more confidence.
Before the Exam - The One-Page Outline
In the final week before the exam, if not before, you should condense your outline into one page. This page - known as an attack outline - serves as a checklist of issues as you read the exam. The attack outline helps you organize your answer, remind you of key points and to make sure that you haven't missed an issue. The attack outline transforms good students into outstanding students.
The attack outline does two things:
• Builds an analytical framework
• Serves as a reminder of issues and rules
To build the attack outline, figure out how you would analyze a problem that tackled every issue in the course. Where would you start out? Build a framework that works logically from one issue to the next if there were a hypothetical that encompassed every conceivable issue.
For instance, in contracts, you wouldn't start out by analyzing what the damages from a breach of contract were. Furthermore, you wouldn't start at the point of breach. First you would need to establish that there was a valid contract, then discuss the breach, potential defenses and then move onto damages. By figuring out how to analyze an issue - that is the sequence - it helps prepare you to answer a question before you even step into the exam.
Once you have the list of issues and the order in which you would analyze them, then develop shorthand for the major elements or tests that will form the bulk of the analysis. Use this shorthand on your attack outline so that you don't forget to hit on the elements in the analysis. Shorthand and a condensed format will make for a highly idiosyncratic one pager that will probably be understandable to no one but you. That doesn't matter. You're the only person who needs to understand the one pager. If done properly, the attack outline transforms good students into outstanding students.
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6. pre-write your exam
What's Being Tested?
Know Your Audience
How Professors Grade
The 9-Step Exam Writing Formula
DOs and DON'Ts of Exam Writing
Major Points in Test Taking
Sample Exam and Answer
What's Being Tested?
In most law schools, the exam counts for the entire grade in a course. Your class participation might count only if it is extraordinary. It's entirely up to the professor. Needless to say, this puts enormous stress on students to perform, which is all the more reason to understand exactly how exams are given and what the professor is looking for.
Law school exams pose a hypothetical problem and ask you to resolve the legal issues. Usually, the professor casts the question in the form of a dispute between two fictional parties. Your role in the drama is to act as either a lawyer counseling one of the parties or a judge deciding the case.
The professor tests two skills.
1. Issue spotting and
2. Analysis.
Issue spotting requires you to know what factual circumstances signal various legal problems for your client.
Analysis requires you to apply the rule of law to the set of facts. Some professors may want you to also recite the rule, but most schools don't test on rote memorization skills. After all, you can always look up the rule of law. Professors want to test whether you know when a problem is present (i.e. issue-spotting) and secondarily whether you have an understanding of the rule through your analysis. Usually, there is no right answer to the dispute. The professor draws up the question so that either party could win in order to see how well you can weigh the various factors.
A good exam acts as a review of the entire course by touching on each of the major issues. Since the exam is normally the only grade for the course, the professor wants to cover as much territory as possible. Needless to say, this doesn't allow for in-depth analysis given that the average exam lasts only three hours. Consequently you only have time for a big picture analysis. Another way of putting it is that the writing should be wide and shallow. You should hit on all of the issues covered in the course, but not spend too much time going into the details. In the words of one professor, the best exams have the character of inspired superficiality.1
1 University of California, Berkeley Boalt Hall School of Law Professor Willie Fletcher
Know Your Audience
The first principle of exam writing (or any writing for that matter) is to know your audience, then write specifically for that audience's level of understanding. Your audience is one person - the professor. Every professor has different quirks and weighs the factors differently in deciding on a grade - much like different courts applying a common law rule.
You should ask your professor what she values in an exam. Some will insist that you state the rule; others favor policy arguments. Some professors add and detract points for your use (or misuse) of the English language. Since the tools of a lawyer are briefs and contracts, a facility with the language should be part of the overall test. Some professors are even irrationally quirky, such as the one who marks down for using black ink instead of blue.
Questions to ask your Professor before the exam:
• Do you want the rule stated or should we incorporate the rule into the analysis?
• How many questions will there be on the exam?
• What are the time restraints for each question?
• Can we bring in outlines or other source material?
• Do you want case names cited?
• Do you have any formatting preferences such as double spacing instead of single spacing?
• How do you distinguish between an excellent exam and a good exam?
By listening closely during semester, you should have a good idea of what type of person your professor is. Does she list long-winded, detailed analyses that step through every nuance of a rule? Or does she like quick answers that are based on broad policy concerns?
Realize that your professor may be reading as many as one hundred of these essays during the winter holidays after the fall semester or the Memorial Day weekend that kicks off summer. Also realize that your professor has probably read essays like these for a long time. In other words, your professor has seen it all. The point here is that it pays to be brief and to get to the point. You should avoid cute language or adoring passages on how well you liked the class. Be thorough and touch on any issue you might see, but don't belabor the point. You only get so many points
How Professors Grade
Ultimately, professors have to come up with some sort of point system for grading; otherwise the subjective quality of essays would result in unfairness. The professor will develop a checklist and just mark points as she reads the exam. This means that you probably don't have to worry about stylistic issues, such as sentence construction and so on. The professor is looking for concepts, not grammatical mistakes. Be aware, however, that good writing is likely to be appreciated.
The most conscientious professors will read the exams three times. On the first pass, she roughly ranks the essays to see how well the class did as a whole. This gives her a benchmark against which to grade each exam. On the second pass, the professor actually scores the exam. On the last pass she just flips through the exams to make sure that she got it right.
The First Ten Minutes of the Exam
Step One: Take three deep breaths. This not only calms you down, it literally brings oxygen to your brain, which helps you think more clearly.
Step Two: Get the big picture. Spend one minute and flip through the entire exam to get the big picture. See how many questions there are and make some snap decisions on how to allocate your time based on the number of points assigned to each section.
You should also note the nature of the essay questions. For a Torts exam consisting of three questions, for instance, you know the teacher is likely to ask one question about each of the major areas - intentional torts, negligence and product liability. Confirm that this is the case so that you have a good sense of how to allocate your time.
Step Three: Allocate your time. One of the big mistakes students make is to thoroughly answer the first three questions and leave only a scant answer on the fourth essay. Getting an overview and allocating your time allows you to pinpoint when you have to move onto the next issue.
You should even allocate time within each essay question so you know how much time you have to spend on each major issue. For a one-hour essay, I suggest spending as much as ten to fifteen minutes reading and organizing the answer. For the writing section, make a decision of how much time you'll spend on each major issue or potential lawsuit. Just split the time evenly among the issues. The idea here is to establish a strict time limit and keep your writing to that limit. Once, the time expires, move onto the next essay.
Step Four: Read the first question twice. On the first pass, make notes in the margins of the big issues. Pay attention to the call of the question. What is the professor asking you to answer?
Many students have programmed themselves to write a completely thorough answer the minute they spot an issue. However, sometimes the professor may provide enough facts to do a complete analysis but really only want you to answer a specific question about the case. Be sure to note that one of the things professors like to test is whether you can follow directions.
Step Five: Outline an answer. See below.
The Critical Step of Outlining an Answer
Most students start writing as soon as they read the question. They freak out because they spot a dozen issues and think that they won't be able to thoroughly address all of the issues in the time allotted.
It pays to think before writing. Outlining helps you spot the issues. Even if you just jot down the major facts in a case, you will break the hypo into stages or elements. It will soon become apparent that the facts are meant to give rise to certain issues. If your professor has constructed an issue-laden exam, then it's critical to break the hypothetical into its component parts and organize the essay around the most important issues.
How you outline an answer differs with each course. In a Contracts exam, you usually write about events chronologically. Timing about what was said when is usually an important factor in Contracts, thus the best way to analyze is chronologically. In contracts, Torts exam are usually organized according to parties. In Torts, the big question is who is liable for what harm? Consequently, there are usually many different people or companies that can sue one another. You can make the best sense of a Torts question by outlining according to the party.
Another important step during outlining is to adopt a position. Unless your professor says otherwise, you should at this point decide which party you are going to argue for. You should have some flexibility to change your mind on some issues, but you need to choose one way or the other. Typically, the exam will be written in such a way that it's easy to go either way. One common trap for first year law students is to always want to prove the rule or legal theory to be true. Remember that you can find for either side. You need to adopt a point of view that you feel is strongest.
Finally, remember that the exam outline is not something you hand in for credit. Consequently, don't spend time making it look pretty. Rather, develop shorthand for the principle issues in the case law.
For instance, in Contracts, you might use
O
A
C
for the issues of Offer, Acceptance and Consideration, which are the principal building blocks of a valid contract.
Issue Spotting
Professors usually pack more issues into an exam than anyone can reasonably answer within the time allotted.
Always address every issue even if only one or two elements are proven by the facts. Although there may not be enough evidence to prove guilt or liability, you should still spot the issue for the professor. Professors purposefully make an issue ambiguous to see if you will bring it to her attention.
Of course, you need to rank the issues according to importance. Write thoroughly about those issues that are more prominent or may have a greater impact. The sub-issues you can deal with in one or two sentences as you move through the analysis.
Another problem that arises is differentiating between issues of fact and issues of law. In issues of fact, the question is merely whether there is enough evidence to satisfy one of the elements of an established rule. Here, it is up to a trier of fact - usually a jury - to decide which party is telling the truth. Depending on the nature of the rule, one of the parties may bear the burden of proving the truthfulness of the fact. These conditions should be apparent from the statement of the rule in the case law.
An issue of law is one in which the facts are undisputed. The parties agree on what happened. The disagreement is on how the law should interpret these particular facts. Judges -not juries - rule on questions of law.
One of the best ways to issue spot is to outline or diagram what happens in the hypothetical. By identifying the parties involved or breaking major facts out of the hypo, you get a sense of where to focus your analysis.
The First Paragraph
First impressions are important. Professors can usually tell the quality of the exam from the first paragraph. There are two different methods for writing the first paragraph:
• Summary of Outcome paragraph
• Or Issue Identification paragraph
In the summary of outcome paragraph, you tell the professor the bottom line - i.e. your resolution of the case - and why. It helps to give a framework for the rest of the paper. The problem with the summary of the outcome paragraph is that students sometimes change their mind on the conclusion of the problem in the middle of the essay. In the process of the analysis, they see something that leads them to another way of thinking. However, if you've already written your first paragraph, that realization makes for a lot of stress since you're now defending a position you don't think is correct.
The second technique is to mention the general framework of the issues but not give any specifics on your conclusions. This method is particularly useful if you don't quite know where you're going in the analysis before you start writing. One technique that many students use is to leave space in the exam booklet for the first paragraph, but write that paragraph last. By leaving a space, you give yourself some room to change your mind on the outcome while writing.
Analysis - The Actual Essay
Unless your professor says otherwise, jump right into the analysis of the problem. Don't recite the facts of the hypothetical as you would for a case memorandum in a legal writing class. It's a common mistake for first year students to apply the techniques of their legal research and writing course to exam writing. It's natural to think that there should be only one way to write in the legal field and to adopt those techniques for the exam. However, the exam tests different skills. The professor doesn't require that you repeat the facts. After all, she wrote up the hypothetical. However, this doesn't mean that you don't mention the facts. Use the facts to prove or disprove the rule. (See below.)
Furthermore, don't spend a lot of time stating the rule. Up until now, we have placed a lot of emphasis on breaking the rule into its component parts (or terms of art) and then proving the rule through tests, etc. One mistake that most students make in an exam is to spend most of their time citing the rule of law in order to prove to the professor that they know the law. Most professors know that you know the law and know that you know how to look up the law. What they want to test is your ability to analyze.
Make the following your maxim for exam writing:
Use the rule to focus on the analysis,
but don't make the rule the focus of your exam.
Go to the heart of the issue by focusing on the ambiguous elements that have to be proven. Ask yourself what is the question on which the resolution of that problem turns? If there is something central to the fact situation that most of the elements are easily present for the rule to apply except for one element, don't spend a lot of time on the elements that are present. Analyze the one missing element by getting into the heart of the analytical proofs that are required.
The 9-Step Exam Writing Formula
Successful exam writing can be a formula. You can save time and earn stylistic points by pre-writing your exam. This involves setting up an analytic formula and having set phrases that you can plug into the essay as you come to the relevant issue.
Use the following formula to pre-write your essay.
Step One: State the issue.
Step Two: Identify the rule, but don't waste time stating the rule.2
Step Three: Summarize the elements of the rule that are easily satisfied by the facts.
Step Four: State the sticking point on which this issue turns - i.e. the ambiguity in the facts that makes it a difficult question.
Step Five: Apply one or more of the four types of Analysis to the problem.
Step Six: Contrast conflicting authority.
Step Seven: What are the defenses?
Step Eight: Make a conclusion.
Step Nine: Go to the next issue.
To illustrate the process, here is a sample exam question.
EXAMPLE ESSAY QUESTION
Peter Plaintiff and David Defendant are neighbors who bear each other a grudge. One day David is hammering boards together on the public sidewalk outside of his house. Peter sees David hammering and walks behind him in order to avoid talking with him. As Peter walks behind David, David brings his hammer back to hammer the boards and hits Peter in the head causing substantial injury.
Step One: State the issue. Write one sentence that identifies the issue as suggested by the facts. Get used to stating the issue by using every fact that you can.
EXAMPLE
The key issue is whether battery occurs when a defendant with a grudge who is hammering nails hits the plaintiff walking behind him as he swings the hammer.
Step Two: Identify the rule, but don't waste time analyzing the rule. Rather, incorporate the rule into your analysis of the facts.3
EXAMPLE
The governing law on the issue of battery depends on the jurisdiction, though most commonly the Common Law rule suggests that the key elements are intent, harm and causation.
Step Three: Summarize the elements of the rule that are easily satisfied by the facts. Make sure that you don't make up or infer facts from the hypothetical. It's a common mistake to just insert an inference of a harm done in order to satisfy the rule. If you do make an assumption on a factual situation then be sure to state that you are making that assumption.
EXAMPLE
Here, the element of harm is satisfied since the plaintiff suffered severe trauma to his head. Furthermore, the element of causation is proven because but for the defendant's swinging the hammer, the plaintiff would not have been harmed.
Step Four: State the sticking point on which this issue turns - i.e. the ambiguity in the facts that makes it a difficult question.
EXAMPLE
The real question in this suit is whether the defendant intended to hit the plaintiff on the head. Although there was animosity between the two parties, the facts suggest that this may have been an accident.
Step Five: Apply one or more of the four types of Analysis to the problem. Contrast conflicting authority.
Use one or more of the four types of proof to prove or disprove the rule.
Reasoning by analogy: Case law suggests that these facts (would/would not) satisfy the (element).
Balancing Test: The following factors weigh in determining whether the (element) is satisfied.
Judicial Test: Courts have applied the following test to prove whether the (element) is satisfied.
Policy: The underlying policy of the rule (is/is not) furthered by its application in this scenario. (Cite policy.)
EXAMPLE - Judicial Test
The standard test that courts apply for the general intent necessary to hold the defendant liable is that he knew with substantial certainty that harmful consequences would result from his action. Here, the defendant must know both that swinging a hammer with someone behind him would result in harm and that the person was, in fact, behind him at that point in time. Whether the defendant knew with substantial certainty is an issue of fact that is up to a jury or judge to decide. Animosity by itself, or even a motive, does not prove intent.
Step Six: Contrast conflicting authority.
EXAMPLE
Some jurisdictions rule that in circumstances where there is an unlikely accident, then motive alone might infer intent. Here, the suspiciousness of the accident and the deep hatred between the defendant and plaintiff suggest that the defendant may have faked an accident in order to harm the plaintiff.
Step Seven: What are the defenses? Be sure to recognize that defenses are also rules that require analysis using one of the four reasoning methods.
EXAMPLE
The defendant has the affirmative defense of self-defense. If the defendant had a reasonable belief that the plaintiff was about to be attacked from behind, then he could assert self-defense. However, the defendant has the burden to prove he used only as much force in swinging the hammer as was reasonably necessary to protect himself from potential injury.
Step Eight: Make a conclusion.
In writing the Conclusion you want to hedge.
Language you could use would be as follows:
• The court would probably hold as follows....
• A probable result would be....
• Given the facts, it is highly likely that...
• Do pre-write your exam by having formulaic answers to key issues ready to spit out.
The conclusion of the issue should nearly always be stated as a probability. Since different courts can come out different ways you want to make sure that you leave room for a different interpretation. There usually is no right answer. The art is in the analysis.
EXAMPLE
In all likelihood, the defendant will not be able to assert a credible defense of self-defense because there is no evidence that the plaintiff was going to attack the defendant.
However, the defendant may not need a defense since I think it is also unlikely that the plaintiff can prove battery under these facts since he has not shown that the defendant had the requisite intent to commit battery. Consequently, the defendant will probably not be held liable for battery and the plaintiff will have to seek relief under a negligence theory.
Step Nine: Go to the next issue.
EXAMPLE
Peter will seek to recover damages in negligence if he can prove....
Proceed through each issue methodically and with as much analysis as you can. Try to use every fact to either prove or disprove an issue.
2 Unless your professor says otherwise.
3 Unless your professor says otherwise.
About case names...
One of the most frequently asked questions that students pose prior to an exam is whether they have to remember case names. The answer is that it entirely depends on the professor.
Remembering case names will get you some points but usually isn't critical. Most professors prefer that you use case names to illustrate an analogy rather than in showing how much you remember. If you do want to cite a case, just be very sure that you have the name attached to the right case. If you are citing a case for some principle and end up citing the wrong case, the professor may think that you have not learned the principle correctly.
Formatting
You should make liberal use of headlines in your essay to signal the start and end of sections. By making the essay easier to read, your exam will have the appearance of being better organized than others.
DOs and DON'Ts of Exam Writing
DO...
• Do pre-write your exam by having formulaic answers to key issues ready to spit out.
• Do outline your answer using about ten minutes for an hour-long answer.
• Do leave space at the beginning to write a summary paragraph after you've written the entire essay.
• Do jump right into the analysis of the major issues.
• Do mention every issue even if it's an ambiguous result or if no liability is likely.
• Do use every fact as proof or disproof of the validity of a rule.
• Do pay attention to the call of the question.
• Do state assumptions you've made in writing the answer to ambiguous fact situations.
• Do leave your biases at home.
• Do write legibly.
DON'T...
• Don't restate the facts of the problem.
• Don't answer questions the professor doesn't ask about.
• Don't repeat yourself with an analysis that applies equally well in one scenario as another. Make the distinction then refer back to a previous analysis.
• Don't waste time on your outline making it look pretty. You don't get credit for an outline.
• Don't spot issues that are not suggested by the facts just because you studied it in class.
Post Exam
Take a break. Don't start studying for your next exam right away. Schedule yourself some down time to have fun and clear your mind. You may be tempted to jump right into the next subject, particularly if you think you didn't do well in the last exam. However, you run the risk of diminishing returns. Tests take a lot out of you physically and mentally. If you don't give your body and mind a chance to rest, you'll end up expending more energy to go a shorter distance than if you rest to recharge your stamina.
Major Points in Test Taking
• Exams test two areas - issuing spotting and analysis.
• Professors differ in how they want exams written. Ask yours what she wants to see in a good exam.
• Create a one-page attack outline giving yourself an analytical framework for writing and to serve as a checklist for major issues.
• Read the question twice before writing.
• Spend ten minutes outlining an answer for every hour-long question.
• Write about issues even if the outcome is ambiguous or uncertain.
• Mention issues even if the rule is not satisfied by the facts.
• Use the rule to focus on the analysis but don't make the rule the focus of your exam.
• Don't recite the facts of the hypothetical. The professor knows the facts since she wrote the essay.
• Use every fact if your analysis. The professor only puts facts into a hypothetical for a reason. To get you to use them for some persuasive purpose in the exam.
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Personal law school coach
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