What I’d like to do is to go ahead and
talk to you for maybe 20 or 30 minutes, tops, and then open up to your questions
and answers and I’ll give my answers. Of course, this is a session for you so I’m
going to cover the things that I think are important for you to know but I also want to leave ample time for you to ask me the the questions that you have in mind. And just speaking roughly I’m going to
break my remarks into three parts. I’m first going to say just a couple of
words to try to demystify the law school exam then I’m going to go ahead and give you some advice about studying for exams — studying going into and then during the exam period — then talk very specifically about the law school exam itself. What it is that we’re looking for on these exams. And then again, as I said, we’ll go ahead
and — and open it up for your questions. The first thing that I wanted to do,
though, is to demystify. I probably don’t need to do this because I think many of you have taken midterms. We’ve made an effort to have more midterms available precisely so that you’ll know what it is to expect on the final but whether or not that’s the case I just want to emphasize: these are exams. You’ve taken many exams before and there’s no question that you did really,
really well on those exams, otherwise you wouldn’t be sitting here in this room. So in some very important sense you do know what to expect. You’ve taken exams before.
This is a very similar exercise. And if you follow the strategies that brought you here, do the things that worked well for you in the past, you’re going to have a lot of success here at the law school as well. The next thing I want to do, though, is just to focus briefly on what’s being tested. Again with an effort to demystify. People often have the sense, I don’t know what I’m going to be tested on and I think that you do know what you’re going to be tested on and I think there are two things that you’d want to keep in mind. First, you’re going to be tested on the doctrinal content that you’ve been studying. You’ve been taking four courses: contracts, torts, civil procedure and criminal law and you’ve been learning the law in each of those areas and of course that’s one of main objectives on the exam: is going to be to test your knowledge of that doctrinal content so clearly that’s material that you want to study. It’s new to you.
There’s an awful lot of it. You’re going to have to review it again before you take the exam but again, you know exactly what that material is and you know how to learn it: you have to read it, you have to absorb it and then use your own, you know, well-developed skills to retain it so that you can deploy it on the exam. The other thing, and I think the thing that makes us anxious when we first approach law school exams, is, of course, you’re also being tested on a new set of skills. So there’s this new methodology that we’re aiming to teach you, this thing called “thinking like a lawyer,” or legal analysis. And of course, that skill is going to be tested on the exam as well. And this is what we have in mind when we tell you that we don’t want the exams to be merely descriptive. We don’t want you simply to describe or regurgitate the doctrinal content that
you’ve learned. Instead what we want you to do is to deploy that content in analyzing the — the cases that you’re given. So what the exam is going to do is
to test your ability to recognize the kinds of questions that a lawyer would ask when encountering that case. So in a rule that’s governed by the — in a world that’s governed by the rule of law, what are the questions that a lawyer would have about this case? you’re going to want to identify the range of plausible answers to those questions. But more important than identifying the
answers, you want to be sure that you articulate the arguments that will move a decision-maker to endorse one answer over another. So that’s the analytical content:
what are the questions that this fact pattern raises? What are the plausible answers that the parties will offer? And then, more important, you want
to develop the arguments that support those answers. And so that’s the analytical content.
So I take it you do have a good sense. You’ve been exposed to this doctrine for a whole semester. You’re learning it and you’ve also, along the way — I hope you’ve remarked this, certainly I know that most of you have —
you’ve been learning those skills. You’ve been seeing how lawyers make arguments in cases. How judges respond to those arguments when constructing the opinions that you’re reading. I wanted to stop next — this is the second part — and give you some preliminary thoughts about studying for the exams. Some things that I found crucial when I was a law student and then things that I’ve continued to observe that people find crucial here. The first point I want to make — and this is essential — it’s essential this semester and it will be essential going
forward — you want to make sure that you know the professor’s ground rules for taking the exam and exactly what kind of exam is it going to be. Be sure that you find out from the professor what kind of materials you can use during the exam. Is it open book?
Partial open book? Restricted open book?
Is it closed book? You know, what kinds of materials can you use during the exam? And then the other absolutely crucial point is to know: what is the format of the questions on the exam? Is it going to be short, short essays?
Is it going to be multiple choice? What exactly is it going to consist of? As you know from taking midterms, many of the questions will be designed to be taken in an hour. You’re given a case and you have to write a fairly detailed essay about that one
case. Um — is it going to be an exam of that sort? Or, as I said, is it going to be multiple-choice? Some combination of the above? You have to know these things so make sure you ask your professors those questions. Another point that I want to make — and this is something that was difficult for me to do effectively when I was a law student — you’ve got to pace yourself when studying for the exam. So particularly now, as you’re moving into the reading period, into the run-up just before the exam, you really have to be thoughtful about managing your time. Please be sure that you know the time and the date for each of your exams and then you want to make a sensible plan for how to use your time most effectively during the reading period. You really want to think about which exams are going to be harder for you to study for,
which you’re going to be easier and then make sure you have a plan for using days, half-days, even hours. You really want to allocate your time sensibly so that you have enough time to study for each exam. This is really important.
And as I said it was really difficult for me to do. I was married during the exam.
I was married in law school. I’m still married.
It just drove my husband crazy. I just had a lot of trouble moving from one
subject to another and — and — and that’s something that you’ve got to do. The next question is outlines.
People often ask: what are outlines? I had this question. I came back from Thanksgiving break and nearly died of panic when the woman sitting next to me said she had all her outlines done. I didn’t know what an outline was at that point. I hadn’t finished the reading for class that day. Knowing me, I’m a very slow and plodding reader. So outlines: what are they? Think of it as your own little treatise for the content of the course. It’s a document in which you lay out all of the doctrine you learned in the class. Think of it as the anatomy of that class. What the bones of the criminal law — What are the most basic elements? Identify the bones and then try to put as much flesh as you can onto those bones as possible. What are the specific elements of a criminal cause of action, of a contract, of a tort? How are those elements defined by courts? How are they proved up? What are the exceptions to those elements and so forth and at the same time the outline will remind you of the lawyering skills that you need to be developing. What were the arguments that were made
in a given case as for why a particular element was satisfied or not? What did the judge conclude and — and why? So it’s just your own little treatise. My most successful experience — and I know this from talking to students year in
and year out — my most successful experiences and yours too are likely to be when you’ve done all of your own studying. Whether you create an outline or not. Some of us have photographic memories. We never have to write anything
down. That wasn’t me but other people’s work may be useful. Reading other people’s outlines.
Share them with each other. Commercial outlines. But typically if you go through the entire material yourself you’re going to have the
greatest success. The other point that I want to make too is you want to leave a little bit of time to outline the outline because if the professor lets you use an outline in class you’re going to want to have a shorter document, right? that — we had documents — yours maybe on the computer I’m not really sure where you keep things these days but you’re going to want to have something — a short list, an index — that lets you get into the outline quickly or just brings the issues back to you quickly. That — that’s something that I found most useful. The other thing that I would recommend is that you make use of your professors during the exam period as well if you’re having trouble understanding a question. It may be that the professor can clear it up for you very quickly and you don’t
need to spend a lot of time worrying or it may be a question that’s genuinely
difficult and the reason you’re having trouble is because it’s genuinely difficult. That means it’s likely to be something that could be tested on the exam so you should come upstairs and talk to us about it. The other thing to do is to make sure you know whether your professors have office hours posted, special rules for access during exams. People have different approaches to that
question. Okay so now I’m just going to give you some specific suggestions for approaching exams and many of these are very basic but, again, I’m going to go through them because they’re helpful and, again, each year I find that people make certain basic mistakes and I want to make sure you avoid them. So the first thing you want to do is to just read the exam question. Make sure that you look at the entire document. Make sure you have a complete document. And I would strongly recommend that you skim the entire thing before getting started writing. You want to make sure that you don’t miss a page or, god forbid, a question. Once in a while people will just miss the fact that there’s a question or they’ll miss a page and they won’t obviously have access to the material on that page. It’s not a complete disaster but obviously
you don’t want to be in that situation. So, skim the thing to know what’s there. Skimming will also help you to begin to prepare your plan of attack, right? You’ll get a sense of where the different issues are on the exam. The law school exam aims to be comprehensive. Most of them fail in being completely
comprehensive but lots of professors try to cover most, if not all, of the doctrinal content that they covered in class and skimming will help you say, oh there’s the question on attempt. Oh there’s the question on homicide, there
are dead people there. Oh, there’s the question on, you know, whatever it would be. And that gives you a little bit of a sense about — about what your plan of attack is going to be. The next thing that I want to mention is be sure that you notice the start and stop times for the questions and take those time allocations seriously. Again, this can be difficult to do. You’ll be in the middle of a question and you just won’t want to give it up. You won’t want to move on but, trust me, it’s the law of diminishing returns. You’ve got to move on to the next question. And so — so follow those time allocations carefully. Obviously, once you’ve skimmed, you want to read each of the questions carefully. Take a deep breath, read them carefully. One point that I want to make here that
comes up from time to time and can — it’s — it’s — it’s a funny issue that gets people in trouble. It might be counterintuitive.
But professors get their fact patterns from lots of different places. So we get them from real cases,
we get them from our heads, we make them up. We also get them from fiction, from comic books, plays, movies, TV. So sometimes you’ll be reading an exam
and you’ll go, oh, I recognize that homicide. That’s the homicide from The Godfather
Part 22 or that’s the homicide from Training Day.
And you’re probably right! At the moment that you recognize the case and think you know it, that’s when you should read the most carefully because the professor has surely made some changes — has introduced some changes in order to make it an intelligible question and I’ve actually had students get into trouble — not in my class but in others —
where they have made assumptions about what the facts were based on their watching from some television show or
some opera and therefore they don’t read as carefully as they should. The other thing, though, that I want to say in connection with this, is even though we make a lot of this, some of us make the material up or we take it from fiction, I would strongly recommend that you treat the exercise as if it’s real. In other words, someone has come to you with a legal problem and they want your
advice. The exercise is artificial, you’ll say back to me, because of the time constraints. Typically in the real world you’re going to have more time than an hour or two to resolve a difficult legal question and that’s — that’s true.
You usually will have more time, but not always. There are plenty of times you’re going to be asked for your advice quickly and you’ll have to give written advice that you may have to prepare quickly. The other thing too for you to understand is that the kind of writing that you’re doing on your exams mirrors writing that you do in the real world, if you will. So the kind of memorandum that you’re being asked to write — a memorandum that gives advice about the legal elements of the cause of action — that’s the kind of memo that you’ll write for colleagues, for partners that you’re
working for, for clients, for judges, for the file,
and so you’re frequently going to be doing this kind of analysis so what I would say to myself on an exam if I were you — and this is what I try to do —
is this is real. Somebody needs to know in 60 minutes: what is the answer to this question? And I’m going to give it my best shot.
I can’t give a conclusive answer, perhaps, but I can at least develop a good game plan for how to solve it. Okay, so now the question is: how do you do that? One thing, again, very basic is answer the question. Please be sure to identify the question that you’ve been asked. Typically the question will follow a fact pattern. On one of these essay-style exams that — that we’re discussing where the professor gives you a case and asks you to advise the client as to whether he or she has a cause of action, can charges be brought,
what are your defenses, okay. But — and identify the question and answer it. Have you been assigned a role?
Have you been asked to represent one party or the other? Have you been asked to be the law clerk for the judge? Have you been asked to be the lawyer for a legislature? You should take that role assignment
seriously. The professor hopefully was thinking
about it and why they allocated that question to you. And so take the assignment seriously and make sure that you answer that question. At the same time, and it’s here that I want to go back to my discussion or references before to legal analysis, you always want to be balanced and nuanced. So you’re going to be given an assignment. Say you’re asked in a criminal case to defend somebody who’s been accused of a crime. For you to give good advice, you have to take account of what the other side’s arguments are. You have to be nuanced.
You have to constantly second-guess yourself. So just as you’re taking the role assignment seriously, ask yourself before you leave the question: what would I say if I were being asked to represent the other side? You know I’ve just come up with what I think is a winning claim but what will my opponents say? What would I say if I were in my adversary’s shoes? So you want to go ahead and try to identify the strongest arguments on both side of the question. So again you’ve got a short period of time and typically when you’re given a case to resolve there’s going to be a number of issues embedded in it, right? We call these “issue spotting exams” and
you’re going to want to make judgments about the issues that you choose to
focus on. There will be some issues that are there but may be too trivial to be discussed and it’s a judgement call of which is trivial, which isn’t, and if you’re not sure you should of course go ahead and discuss everything, but professors are looking for you to make the judgement: which are the issues that I really would need to bear down on? Which are the issues that would be litigated?
That would give the judge pause? So, for example on a criminal case, if you can tell that the actus reus element is satisfied, you are told this defendant broke and entered the property of another at night, you’re told precisely that that element is satisfied, you can — you don’t need to discuss it.
You can pass over it, okay. There will be other issues that are less trivial, probably not frivolous to bring up, but they may be marginal.
They’re not the most significant ones. So, at least on my exams — and I think this is true for many professors — though it’s here you should check.
You should find out what your professors
want. What I want you to do is to identify the questions in the case that are the most important. Which ones would give the judge an occasion to write an opinion? Which are the ones that the parties are not going to concede? Which are the ones where, oh, there’ll be a plea bargain over this issue but not this one, and I want you to focus on those issues. There what you want to do is to identify
the question. And more important than identifying the correct answer, what we want you to do is to identify the plausible answers and then articulate the arguments that get you to that answer. So what I remark students doing is: they’ll spot the question, they’ll know what answer their client
wants to arrive at. They’ll give me that answer,
then move on, perhaps doing the analysis of the facts but without explaining to me what would motivate a judge to endorse that answer versus the prosecutor’s answer. So just to give you an example from criminal law, if you have a case where you don’t know what the mental state element is, I think you all know what I’m talking about, if you approach a crime and you can’t tell from the face of the crime what’s the
culpability level, right? You then are going to be motivated, in representing your client, to adopt one culpability level over the other. The prosecution always want strict liability, right? And the defense always wants purpose or
specific intent, right? And you may be exactly right:
this is a strict liability element or this is a specific intent element but you don’t want to just provide that answer. Instead, what you want to do is to identify the arguments that you would make to a judge or to your colleagues or to your opponents for why it is that this statute should be construed to require a specific intent or purpose or — the rare exception — strict liability. So frequently I’ll see students, again, they’ll say, well my client has a mistake of fact claim and this is a general intent element and therefore the mistake has to be honest
and reasonable. They may be exactly right, this is a general intent element, but they need to explain to me: what’s the argument that got them there? Because the judge is going to be looking at the the statute, saying, I have no idea what this element is. Tell me. Tell me what are the arguments that get me to endorse one conclusion over the other. And then of course you have to take account of what the other side is going to say. So that’s the basic general advice.
The questions are important. So too are the answers. But because most of your exams are going to be testing you on questions as to which the professor thinks there is no clear answer, it’s a toss-up going in. It’s much more important that you identify the arguments that would motivate, as I said, a decision maker to endorse one answer over the other and, again, just because some judge concluded that this is the answer doesn’t mean that that’s the correct answer. They can always be overturned on appeal or another jurisdiction can disagree. The next thing that I want to say: I’m happy to talk in more detail about this analytical point with any of you. I’ve been talking to my own students about it when they’ve come to speak to me about their midterm exams and my impression —
I could be wrong — is that they’re finding it genuinely useful where I point to places. Where I say, look, here’s where you’ve given the answer and it’s great but that’s not what I want. What I want is the analysis that gets me there. So with that in mind what you need
to realize is that this type of law school exam privileges the people who
are willing to expound their analysis a little bit and at some point in your careers I am willing to predict that each of you will have so much experience and expertise and so much respect that you’ll be able to say to people: this is the answer and they’ll go, okay, but for the most part lawyers can’t do that. We’re always called upon to explain the
analysis that got us to that answer. And certainly at the beginning of a career. And then if you’re a judge you’re constantly having to justify your conclusions in written opinions and written texts. So that’s the thing again.
You want to expound. You want to unfold. Getting from A to Z really quickly is great but you’ve got to give some of the steps that got you there. The next question that comes up a lot is the line between doctrine — doctrinal analysis and policy or theory on the other hand and on the kind of exam that I’m describing — the kind of exam where you’re expected to identify what are the legal issues, what are the doctrinal rules that allow me to answer those issues and so forth — your analysis should not be on policy or theory in the first instance. And maybe you access it only briefly, if at all. It depends on the question and it depends on the professor. So what you’re being asked to do, as I suggested at the beginning, is to show that you’ve mastered a certain doctrinal content and you access policy sparingly if the professor asks for it or if the question lends itself to a policy analysis. And questions sometimes — perhaps
frequently — do and I’ll touch on that in a minute but be very sure that you want to stay close to the doctrine. Close to the ground.
Close to the rules. No matter what your professor has been doing in class. So even if you have a professor who comes in and tells you why every case in the case book is wrong because it doesn’t comport with the professor’s view of theory or policy or something like that it’s possible that you’ll need to access some of that policy or theory on the exam but if you’re given a case and asked:
evaluate this case, talk to me about the legal elements of the cause of action. Does your client win?
Does your client lose? What’s the measure of damages? You’ve got to first deploy the doctrine because even if your professor thinks those cases are unwise from a policy or a theoretical perspective that’s the law and that’s what you’re being expected to know, okay? So please start with the doctrine then, when appropriate, you can deploy the policy. You’ll know when you are being asked an open-ended policy question. You know, you’ll be given a description of a case and you’ll be asked, you know — you know, criticize the the underpinnings of this case. One of my exams — past exams that’s
on reserve — describes a federal court opinion on the law of attempt and then says to the students that the legislature doesn’t like that approach and you’re counsel for the legislature and you should recommend, you know, a new approach to the law of attempt. Clearly there, when recommending what the law should be, you want to be talking about the policy as
well as the doctrine. Sometimes, again, on criminal law exams —
I don’t know what other exams are like — I’ll ask students, in their role as prosecutors,
should you bring charges? And that question, of course, is going to import some policy analysis. In order to decide whether you should bring charges you first have to decide: can I — under the the principles of criminal law can I make a case stick? In good faith could I bring this prosecution? But then the “should” question is putting the normative question to you: is this a good — a wise case to bring?
A good — good use of resources? So there will be spaces to use policy. The other place where you use policy, if you have time, is where the law runs out, you know, if you have, again, a genuinely unclear — a question to which the answer is genuinely unclear and you want to push the answer in one direction or another you might mention some of the policies that might mention — that might get a
decision-maker to rule in your favor. But please keep your feet in the doctrine.
Start there and then check with your professors, okay? Look at their exams on reserve because occasionally you’ll discover that there’s a professor who perhaps asks nothing but open-ended policy questions. You can find that out before going in but the basic rule of thumb is to expect to apply the doctrine, at least on most of the questions. The next thing that I want to mention is that I’m frequently asked, should I be citing cases? Case names? And the short answer to that question is yes, you should be if you are able to learn in that way. Lawyers are constantly using precedents,
applying precedents, distinguishing precedents, trying to decide which line of cases is attracted by the case before you and so forth and using case names is a really great shorthand for your professor. It gives them confidence that you understand the material. And obviously you can just refer to the, you know, “Doe v. United States problem” and the professor instantly knows that you’re on the same page. The only cases you’ve learned are the cases in your case book. That’s the law for you for this exam.
You don’t know any other law, so just focus there. Learn those case names if you can.
If you can’t, you can still write a very successful exam. Some of us aren’t so good with absorbing names and the professors have read these cases so many times they’re like old friends. For you that’s not true! so if you’re someone who’s a little bit name-phobic don’t worry about it just make sure you’re able to deploy the principles that the cases represent. But if you can remember case names it’s a good idea. With that in mind you should be careful with commercial outlines if you find yourself needing to fall back on commercial outlines. And they can be very helpful, depending on the course and what’s going on in your study process. You won’t want to cite cases that the
professor never heard of before and because — because that — that can just
create, you know, confusion and problems for — for everyone. The next point that I want to make is the exams should contain no surprises in the sense that based on the law that you learned in that course you are equipped to answer every question. And here’s what I mean when I say it has no surprises. What would happen to me on law school exams is I would immediately focus on the context of the question and think, I don’t know that law. So on our contracts exam it was a contract relating to a wedding and I immediately thought, I don’t know the law of contracts relating to weddings and then ditto on the crim law exam there
was a crime that prohibited tattooing. I thought, I don’t know the law prohibiting
And of course not. You don’t know anything about that area.
Yeah, what you know is the law of contracts. What you know is basic criminal law principles. So just, again, take a deep breath, say, okay, this is a new context, I’ve never seen this statute before, I’ve never read about this type of tort or this type of contract before, but what I’m going to do is to fall back
on the general principles that I do know and ask the basic questions that I’ve
been taught that lawyers ask in any case of this kind. So again don’t panic.
And if there is a genuine surprise on the exam, you know, shame on the professor for trying to trick everybody and everybody’s in the same boat. So just, you know, again — I had this happen — just go out, good luck, I’ll just do what can! That happened to me on the bar exam but that — that’s — that’s — that’s — that’s not this lecture. The next — again, getting very close to the end, don’t cut and paste. So even when you’re allowed to have access to your outlines don’t cut and paste from your outlines. I’m — at least I can spot it a mile away.
And cutting and pasting — you’re just regurgitating. And all I can think of is a good example for how we react to it is the film Legally Blonde and if you haven’t seen Legally Blonde lately I absolutely recommend it. It’s staple for our law and film courses,
not joking. But in any event, if you’ll recall, Reese Witherspoon finally gets into court and the first thing she does is to give the judge a little treatise on the meaning of mens rea and the judge is kind of —
soon they’re going, huh. I mean the judge —
it has nothing to do with anything you know, it’s got absolutely nothing to do with anything and so she’s just regurgitating the content that she’s learned in a course that she thinks is relevant to this criminal trial. Ultimately she gets off that point, of course, and is highly successful but if you cut and paste your outline, it has that same feeling. “Criminal law requires proof of actus reus. Actus reus consists of bla, bla, bla, bla, bla, bla, bla.” I know that, I’m glad that you know it, you don’t have time to tell me that. Instead, what you need to do is to identify a genuine actus reus problem on this new case and then evaluate it for me. So don’t cut and paste.
It’s a waste of your time, it makes us lose confidence in you and, depending on where you’re pulling your various sources from, because a lot of stuff goes into an outline, you can actually get yourselves into affirmative trouble by cutting and pasting so don’t do it much. Better to spend your time reading those facts and then doing a good job — don’t worry about doing a perfect job, just doing a good job — of sketching: here are the questions, here are the plausible answers and here are the arguments that get me where I want to go taking account of my opponent’s position. I just wanted to close with a very specific point for all of you about self-care during the exam and you all know about getting rest and taking care of yourselves. I have a more specific point in mind.
If you find yourself confronting some kind of emergency, whether you become very ill or you have a family emergency or something, please don’t feel that you need to go it
alone. You may be able to go it alone and, of course, you’ve got to draw the line
between, you know, sort of a trivial sniffle or cold and a serious illness, but once you’ve done that and you’re confronting some genuine crisis, problem,
emergency step up. Come to dean Ballinger or to one of your professors and ask for help. There are almost no mandatory deadlines in law. You probably know that, right? So most deadlines can be deferred, you know. Unless it’s a jurisdictional deadline in court you can always get an extension of time and if you’re sick, the best thing to do — or if you’re having a family emergency that’s making it impossible to get the work done — is to ask for help so that we can make an
adjustment for you before the fact. If you wait until after the fact it can be
really difficult to go back and undo things but there’s a lot of support here at the law school. We’re here for you.
I’m sure all of your professors around — I see a lot of my students here —
you know I’m around. Dean Ballinger — and — and again this is not the kind of thing that you should think
you have to tough it out and go it alone because lawyers going into court or
other places get extensions all the time. So take care of yourselves and ask us for help if you need it. So I think I’ll stop there and see what
your questions are. Yeah, I had to start writing very quickly.
I mean I think that’s why. So I think it’s — I think you want to spend some time developing a plan of attack. If you create an outline that’s written, I
advise my students to give me that outline because I will read an outline. And if there’s good things in the outline that don’t make it into the question I’ll be sure that you get credit for it. Some people need the outline format but I think it’s important to make, you know — make the transition from reading, thinking and outlining to writing as quickly as you can and yeah, I’m going to be — so I’m going to stick with that and be blunt about that. So as I mentioned before what gets valued on these exams is the student who expounds her arguments, who’s able to develop her arguments in some detail and with some nuance. Don’t provide just an outline. So I’m glad you asked that question and it focuses me on the outline problem. Occasionally a student, rather than giving me a prose answer, will give me just an outline and that’s usually very unsuccessful. If there’s an outline that accompanies, you know, a completed essay, I’m able to develop.
I can see in the outline, “oh this person saw …”
and I can give them a couple of points for that. But usually when you’re going through just bullet points, you know, here, oh, there’s a men’s rea issue it might be general intent or might be strict
liability, you’re not developing any of the nuance that needs to be there so it’s a difficult question you’re asking. It’s a judgment call and it depends on
your own way of thinking. For me writing and thinking go hand in hand so I had to start writing pretty quickly and hope and pray that I was on the right path and sometimes you’re not. Civil procedure, I walk down the wrong path saw that I was on the wrong path, thought oh, oh, goodbye correct path, you know, and had to say goodbye to the correct path and then move on and do another question, you know. That — that, you know, that was — I mean that happens. That’s going to happen. Some people need an outline before they
can get get started writing. My problem is if I outlined I never start writing.
Anyone else? I’m sorry, yeah, yeah. There is going to be some back-and-forth.
And you know, it’s going to depend. So I think that the most successful answers will take a position because that’s what lawyers have to do. You have to say to your client, you know I think you should plead guilty. I can make an argument for you that — that — that might lead you to litigate this case but sometimes you won’t be able to do that.
Now on an exam, the questions won’t be that simple to resolve. You won’t read it and go, |
plead guilty fella, right? You’ll read it,
instead identify the questions that — that you could plausibly bring If at the end of the discussion you come to a strong judgment one way or the other it’s wise to share that and frequently students will. They’ll say, you know, I’ve got a shot at persuading the judge that this element should be treated as a specific intent element, say, but you know what I think? That we’re likely to lose on that ground and if so then I’m going to be stuck with general intent or strict liability, you know, so I’m not optimistic about my chances. That’s fine.
Most important, and I think that’s good. it shows a kind of, I don’t know, just a thoughtfulness. A sense of commitment to the — the exercise. Very important, though, to develop the arguments on both sides. But again if you’re being asked: what do you advise the client? You know, what do you advise the judge?
If you’re being asked what do you advise the judge? You can’t go in and say, well maybe it’s this or maybe it’s that. At that point the judge is going to say, I should get a new clerk, right? Because I have to give jury instructions from the bench right now. In 30 minutes I need to be able to answer this jury’s question about the meaning of a particular crime. And so then you want to say, there are three plausible interpretations of this statute. Here they are.
I think the best one is — and then go for it. But you absolutely — you can’t give good
advice to anybody in our system without taking account of the other side because they’re just going to, as you know, come in and knock you over. Anything else? I’m trying to think about What I left out and I can’t think of anything — yes? it matters — um, it matters.
But with that said I think that the way I respond to that question is for you to think about who your audience is. And when I talk to my own students — and again, this is something that you want to get from your your own professors — is typically I want them to have me in mind as their audience or an educated consumer of this subject matter. So someone who knows something about it but who is genuinely uncertain about the difficult questions and wants advice. So I don’t mind if it’s a conversational tone if it’s very clear and, you know,
directly stated in plain language. I don’t need a lot of formality. I certainly don’t suggest that you struggle over individual words and try to craft a great memo. That’s not the job here, you know, later if you were going to embody it in an opinion letter for a client, a brief, an opinion for a judge, for the world,
then you would be working on the prose. The big thing is to try to bear down and clearly identify what the questions are. What the arguments are.
But your writing matters. So if you’re finding yourself struggling with that question: is my writing at the right level? I would suggest you go to one of your professors and just hand them a little, you know, question that you wrote up and see if they’ll read it for you.
Because I’ve had that experience with
students. The student came to me with —
a couple of years ago, several years ago — with an exam answer that he’d written under exam conditions and it was completely chaotic and jumbled. I mean it was just a disaster and I looked at it and I thought, this is not the time to be nice Anne Coughlin and I just said to him, you know, you’ve got to get this writing under control.
You know, everything’s here but I can’t follow it.
it’s just all over the place. And by finals he had done that.
And I’m not saying it’s due to my great
advice but I think it’s really good to run your writing by somebody you know and — and — and certainly my students have been doing that or I’ve been encouraging
them — a lot of them have been doing it.
Yeah, anything else? Yes. Yeah, right, your latter point is a really good one.
That’s the really wise thing to do. You can say, based on the fact pattern I can see that and whatever the actus reas is a satisfied. Of course, you want to be sure that you’re right on that front but sometimes you guys — you just are sure or you should be sure if you’re headed for lawyering. It’s just absolutely clear, you know, if I write a fact pattern “acting with the specific intent to murder his mother” you know, you’ve been told specific intent is satisfied so you could say, I can tell from reading the fact pattern that the parties have — there will be no significant issues with actus reus and therefore I am going to devote my time to X, right? The — this kind of move to signal that you’ve thought about it and you’re aware of it and then also merely by writing it down it might bring to your mind an occasion to second-guess yourself. Are you really that sure?
Because — because — because obviously the fact patterns aren’t going to be written in the way exactly that I said. So I think that’s a great idea to say that you’ve thought about it but you realize it’s too trivial to discuss. You’re going to move on to the more important questions. The other thing that people often want to know in criminal law that — this is just what occurred to me — is what to do when there are competing approaches to the same question. So, you know, if you studied the law of attempt there may be, you know, eight different ways to define actus reus and 15 different ways to define mens rea — just joking — but there’s at least six and then three, right? And what do you do if you have an attempt question? Do you apply all of them?
And the answer to that question may be yes. You do apply all of them. It depends on the question that you’ve been asked and what the ground rules are. So if the professor says to you you are working in a model penal code jurisdiction, okay. Then you don’t need to worry about common law concepts, right? Or if the professor says, you’re working in the common law or if you can tell by the face of the statute that you’re in one world versus the other, then you can feel confident to just go ahead and apply one approach but frequently you’re being located in a fictional jurisdiction. Law is the law you studied and the law you studied in a class is full of conflicting approaches, just as any given state may be.
There may be conflicting appellate approaches to the same question, right? Hasn’t yet been resolved by the Supreme Court. So if you’re in that hypothetical jurisdiction and you don’t know, is this a majority approach jurisdiction or a minority?
Is it common laws at MPC? Then your task may be to apply both but only if they matter, If — if they both come out in the same place you may not have to spend too much time on the analysis. Anything else? Everyone good?
I hope you have a wonderful holiday really good break. Thank you so much for coming, thanks.