Essay #1 7 Secrets to Law School Success
Secrets to Law School Success
The Secrets to Law School Success are difficult to accept when you are a first year law student. They are easy to see in hindsight but when you listen to all those around you and in particular to law school professors you will be confused and influenced by their positions of authority. Most students just plain listen to the wrong people who have no idea what they are talking about.
The Secrets to Law School Success are elusive because the first year of law school is the most confusing and wasteful time of your life.
Most students will spend their precious time following worthless advice that is completely contradictory to all known methods of learning; methods that they have used to achieve excellent results in their past academic performance. Everyone will tell you that you have to learn how to think like a lawyer but just do little exercise and ask anyone of these so called experts what and how does one think like a lawyer. They will not have an answer that is cogent or even organized. Yet, you ask us that question and we can easily define what thinking like a lawyer is.
Because of anxiety, confusion, and inability to determine who is telling them the truth, most students will totally abandon the study methods they have used for at least 17years or more (from which they have achieved superior results) and embark on experimental learning methods that have no basis in education and in fact do not work. That is the big mistake that almost all law students make in their first year of law school and that is why most first year first semester law students never learn the Secrets to Law School Success.
Just take a few minutes and carefully read what we have written and you too can achieve the Secrets to Law School Success.
Secrets to Law School Success #1
You already know how to think like a lawyer.
Ask yourself the following questions: 1. Did you take the LSAT? 2. Did you pass the LSAT? (You may answer yes to this question if you have been accepted to an ABA accredited law school in the United States). If you can answer yes to these questions, you already know how to think like a lawyer. The only real problem that you have is that you do not know any law. If you do not know any law, it is next to impossible to produce the type of lawyer like analysis most law school professors look for on exam answers. If you know a lot of law it is really easy to produce legal analysis in a lawyer like fashion. If you knew all the law in any particular area or had studied it for 20 years and actually applied it in court you would be able to perform perfect lawyer like analysis.
The more law you know from memory, the better able you will be to legally analyze any given factual situation. You have been using the memorize-apply study method all of your life and there is no reason for you to abandon that method for the Socratic method which is inferior to all other learning methods known. Stay with what has brought you to the party; it will never fail you.
There are no special training methods or learning experiences needed to produce lawyer like analysis. You already know how to think like a lawyer; All you need to do is to learn some law, learn how to apply it, and then learn how to dissertate that law.
Secrets to Law School Success #2
Your grades in law school will be based almost solely on final exam performance.
Exam writing is a skill. No matter how intelligent you are, or think you are, you can only learn a skill by practice. Proficiency in a skill can never be developed based on your inherent level of intelligence or knowledge about any particular subject. Knowledge and intelligence will only accelerate the rate at which you learn a skill. However, once you learn the skill for just one of the classes you are taking, you will have learned the skill of exam writing for all the classes you are taking. You cannot learn a skill from just one lecture. You will not even understand most of the advice given in a short 4-5hour lecture until you learn a critical mass of law.
To effectively learn the skill of exam writing you must practice, practice, and practice some more. This must include a biweekly review of the critical skills and advice given in any lecture. The more law you learn and the more you practice the skill of exam writing the more you will learn from the information we have to convey to you about the skill of exam writing.
Secrets to Law School Success #3
Issue spotting is dependent on how much law you have memorized before you take any exam.
It’s a fact; your grade on any exam will be dependent on how much law you have memorized and can recite from memory the night before the exam. This is based on a simple principal; if you can’t spot the issues on an exam you won’t score the points.
Example: If there are 27 items that you can ever possibly know about Offer under contract law and you only know 13 of them you have the potential of spotting only 13 issues. The only way you can potentially spot all the issues on an exam about Offers is to have the 13 issues that you know about be the only issues present on the exam. That possibility is highly unlikely.
Secrets to Law School Success #4
You cannot memorize all the law you need to know and learn skill two to three weeks before an exam.
There are 327 things that you need to know about contract law in order to guarantee that you will get an A on any exam that you will ever take. There are 466 things that you need to know about criminal law…. There are 390 things that you need to know about tort law…. There are 195things that you need to know about constitutional law…Get the picture.
If you wait until October to start memorizing the law or to practice the skill of exam writing, you may be too late. The sooner you start, the easier it will be. Don’t be fooled by professors giving you open book exams and telling you that it is not necessary to memorize the law. You will not have enough time on an exam to be paging through books or even your own outline in order to look up information.
Those students who spend their exam time spotting issues, organizing their answers, formulating their legal analysis of the issue present, and then neatly writing the answer improper English will get the best grades.
Secrets to Law School Success #5
In order to learn the application of law, you have to brief at least 1,000 cases in each particular course. However, short form questions and answers will accomplish the same result. It takes about 45 minutes to fully brief a case. It only takes about 2 minutes to do a short form question and answer. Even if the questions and answers were half as effective as case brief, in actuality they are 80% as effective, they would still provide an enormous advantage in saving time in learning the application of the law.
If you want to be preoccupied with conventional case briefing in order to learn how to apply law, you will waste a lot of time and effort. Conventional case briefing is too time consuming. You do not have time to research the other 800 cases (for each course) that are not in your casebook in order to learn the application of the law. Brief the full version of the cases in your casebook and then do short form question and answers.
Secrets to Law School Success #6
You will only go over about 60% of the law in classroom discussions. You cannot rely on class room discussions for learning the law. You can only rely upon classroom discussions for helping you with the application of the law. This is the biggest area of misunderstanding in law school. In order for you to excel in law school you must memorize, apply and dissertate the law. During class time you do not have enough time to do all three so short cuts must be taken. Professors are not teachers and they are there to provoke independent thought and as such they will only go over the application of the law as this is the most difficult area that cannot always be learned in a vacuum. You are supposed to have learned or memorized the law before you go to class.
Naturally, most case books concentrate on areas of the law that are more difficult to apply and do not address all areas when there is no real controversy over the application of law in that particular area. Students who rely on casebooks and class discussions to learn law will not know about 60% of the law needed to dowel on an exam.
Secrets to Law School Success #7
The more notes you take in class the worse you will do in-law school.
The typical student comes to class without having learned any law. That student spends an inordinate amount of time reading cases thinking that he will learn law from those cases. When that student enters class she generally does not know the law from memory or has not even studied the law. Then the student proceeds to write down enormous amounts of notes that have little or no meaning when they are reviewed for an exam. That student and many of her compatriots may even try to reason about the law and make logical conclusions about the law even when they know nothing about that law.
All we can say is good luck; you’ll need it.
You cannot take notes on how to think and that is what applying the law is all about. If most students knew the law before they walked into class, they would simply say to themselves that this case is applying the transferred intent doctrine under tort law or this case is showing us how the reasonable person standard for a manifestation of contractual intent is analyzed under offer under contract law.
In class, you are merely learning the application of the law and making sure that you understand the underlying principle that the application is based upon. If you already know the law, or are well underway to memorizing it, you go to class to learn how to apply the law and make sure you understand the principle behind the application of that law. It is virtually impossible to take notes on how to think about something.
In fact, when most students start to memorize the law their understanding of what is being discussed in class increases by orders of magnitude and the amount of note taking drops to virtually nothing. You are in class to make sure that you can apply the law and understand the principles behind the application of the law.
You cannot learn the law in class nor can you ever understand the law if you do not take the time to memorize it and know all of its important aspects. Stop writing and listen and learn when you are in class.
Essay #2 Exam Writing: Why you must memorize the law.
Many will tell you not to memorize the law. If you listen to them, you will never be a good attorney and you will never be good at legal analysis.
Let’s take a good hard look at offer. Here is just about everything you need to know about offer. Read through it and ask yourself, “Do I really understand what the term or concept means for each of the elements listed?”
The material on offer starts here:
An offer is a manifestation of contractual intent communicated to an identified offeree with definiteness and certainty of terms.
Manifestation of contractual intent: Determined by applying the objective person standard to the words used and to the surrounding circumstances. The surrounding circumstances prevail over the actual words used.
Communicated: There must be real communication so that the offeree knows of the offer (determined by the reasonable person standard).
Identified offeree: All offers must be directed to someone (determined by the reasonable person standard).
Exceptions: Public offers where the identity of the offeree in a unilateral contract is determined at the time when acceptance occurs.
Definite and certain terms Old law: The offer must make clear the subject matter, quantity, price, and time of performance. Modern law: Only the subject matter need be defined. (Real estate-description/ price, Sale of goods-quantity, Services-duration). Other unstated terms will be implied by the court using the reasonable person standard. Terms stated with ambiguity will not be enforceable and may make the contract void. Indefiniteness of terms may be cured by part performance or by the use of objective standards if such standards can be implied or are stated in the contract. See Old UCC 2-204 for goods.
Application:(1) Advertisements: They are generally not considered to be offers unless the terms and conditions stated, including quantity, are definite and certain. The advertisement must also specify an identified offeree.
(2) Circulars: Same as advertisements.
(3) Auctions: Old UCC 2-328.
(4) Contract bids: They are usually considered to be invitations to deal.
Legal significance: Offeror is the master of the offer; he can specify terms and conditions, provided that they are legal and not unconscionable. Identified offeree has the power of acceptance whereby offeree’s assent creates a bargain.
Termination or lapse (Roccer):
- Rejection by the offeree: Unequivocable statements by the offeree manifesting a lack of mutual assent.
- Operation of law: Death or incapacity of the offeror, illegality, supervening illegality, or destruction of the subject matter.
- Counter offer: A change in terms communicated back to the offeror by the offeree terminates the original offer. See Old UCC 2-207.
- Conditional: Generally, a class of counter offer, but does not change the terms, merely adds to them or qualifies them.
- Expiration or lapse: At the time stated in the offer or, if not stated, after a reasonable period of time.
- Revocation: A retraction of the offer by the offeror prior to the offeree’s valid acceptance. Revocations are effective when received within the ambit of the offeree’s control (meaning that the offeree need not be aware of the receipt). Revocations may be indirect. Indirect revocation requires acts that are inconsistent with the offer (reasonable person standard) and are communicated by a reliable source.
A unilateral offer is one in which the offeror bargains for a performance rather than for a promise. Only the offeror has a duty to perform when the contract is made.
Revocation Old rules: Offer is revocable until performance is complete. Implied promise: Part performance creates an implied bilateral contract. This is a very strange created fiction and as such it is not very popular.
Revocation Modern rules: First restatement 45: Offer is open for a reasonable time if performance has begun. Second restatement 45: Offer is open for a reasonable time if performance has begun,and by using the principles of promissory estoppel recovery on reliance for preparation may be obtained(Restatement 87).
Application First and Second restatement: Death or incapacity does not terminate the offer, as it is now an option contract made irrevocable for a reasonable period of time once performance has begun.
An offer that bargains for a promise in return for a promise, as opposed to for an act or performance as in a unilateral offer.
An ambiguous offer is one that could be reasonably interpreted to require acceptance by a promise or an act. Restatement 1st: An ambiguous offer is one that must be accepted by a promise. Restatement 2nd: An ambiguous offer must be accepted by either a promise or an act with beginning of performance operating as a promise to complete performance.
An option is a contract to keep an offer open. The offer is kept open despite death or incapacity, and terminates precisely at the time stated with no rights beyond that point in time. Counteroffers within the option period generally do not terminate the power of acceptance. All option contracts require consideration or a consideration substitute. Nominal consideration is enough. A reciting of a purported nominal consideration is enough under Restatement 87, as are substitutes of foreseeable reliance and performance under a unilateral contract and by statute.
See Old UCC 2-205: Merchant’s firm offer.
The material on offer ends here.
When you are done reading through offer you will discover rather quickly that most of what you need to know about offer is easy to learn and is just merely common sense.About the only thing that may throw you for a loop is the manifestation of contractual intent stuff in the fundamental definition. The manifestation of contractual intent is an idiomatic expression and a concept that you must master in order to understand offers. But, the rest of offer, all the other 26 things you need to know, can be learned simply by memorization.
If you can learn all the non-idiomatic law simply by memorization wouldn’t you be a fool not to memorize the law? Oh and just a simple little fact, about 95% of all the law you need to know is not idiomatic. Besides being an extremely easy way to learn almost all the law you need, memorization is the keystone to legal analysis and issue spotting as well as the skill of exam writing.
When you do legal analysis you take all the law you have memorized and turn it into a question and ask if that element is present in the facts you have before you. Memorizing all the law makes sure you ask all the questions you can.
If you don’t ask the questions you will not address that issue and as such your legal analysis will be extremely poor.
You must memorize the idiomatic concepts as well but mere memorization of them will not give you a true understanding of that material as it does for the vast majority of the law that you need to know. You must read many cases to understand the nuances of the idiomatic expressions and concepts. But for the rest, you are crazy if you do not memorize because simple memorization will give you true understanding of those elements. Just because you are in law school do not let your commonsense abandon you.
Essay #3 Superbriefs™ case briefs
Rom Law™ now has over 12,000 Superbriefs™ casebriefs
We are adding from 10-20 new Superbriefs™ per day to the present product. Here is why Superbriefs™ are so good.
Before the computer tells us what the case is about it looks at all the uses of the case when it is cited by other cases. Then it formulates a relevant connection probability of how the case is viewed in usage by majority holdings, dissents and plurality holdings and not merely when it was decided.
Our computer programs determine what the case means by its future usages.
Further, Superbriefs™ case brief the entire case and this results in superior understanding and superior knowledge. Look at the brief we have supplied with this newsletter and stop reading at the dissent. Then read the dissent and figure out how much more knowledge you will have. Oh, did we forget to mention that most cases in casebooks are heavily edited and they almost always delete a dissent that explains the case.
UNITED STATES PAROLE COMMISSION V. GERAGHTY
445 U.S. 388 (1980)
NATURE OF THE CASE: This was an appeal of a decision to hear an appeal of a trial court’s denial of a class certification after the plaintiff’s personal claim had become moot.
FACTS: The Parole Commission (D) adopted explicit release guidelines for adult prisoners in 1973. In 1976, Congress enacted a reorganization of the parole commission and required the new Parole Commission to promulgate rules and regulations for parole of any eligible prisoner. Geraghty (P) was convicted of conspiracy to commit extortion and of making false declarations to a grand jury. P was sentenced to concurrent prison terms of four years on the conspiracy count and one year on the false declaration count. P moved under Rule FRCP 35 and got the sentenced reduced to 30 months. P then applied for release on parole and that was denied; under the rules he could not get parole before he served his entire sentence. P applied again and the application was denied for the same reasons as the first. P then sued under a class action challenging the parole guidelines. The request for class certification was denied. P appealed. On June 30, 1977, P was released from prison by serving 22 months and the earning of good time credits. D then moved to dismiss the appeals as moot. The court of appeals ruled that the litigation was not moot.
ISSUE: Can an erroneous denial of class certification and then a subsequent mootness in the claim of the class plaintiff render the matter moot? Does the question whether a particular person is a proper party to maintain the action, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government?
RULE OF LAW: An action brought on behalf of a class does not become moot upon expiration of the named plaintiff’s substantive claim, even though class certification has been denied, since the proposed representative of the class retains a “personal stake” in obtaining class certification sufficient to assure that Art. III values are not undermined. The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. See other rules below.
HOLDING AND DECISION: (Blackmun, Justice) Can an erroneous denial of class certification and then a subsequent mootness in the claim of the class plaintiff render the matter moot? No. Does the question whether a particular person is a proper party to maintain the action, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government? No. The fact that a named plaintiff’s substantive claims are mooted due to an occurrence other than a judgment on the merits does not mean that all other issues in the case are mooted. A plaintiff who brings a class action presents two separate issues, one being the claim on the merits and the other being the claim that he is entitled to represent a class. “The denial of class certification stands as an adjudication of one of the issues litigated,” and, in determining whether the plaintiff may continue to press the class certification claim after the claim on the merits “expires,” the nature of the “personal stake” in the class certification claim must be examined. P filed the action as a class representative. A positive disposition of the matter was made prior to P’s personal claim becoming moot. This does not render the class action moot in that P has the right to appeal the decision of the District Court on behalf of the class. Mootness has two aspects: “when the issues presented are no longer `live’ or the parties lack a legally cognizable interest in the outcome.” Prisoners currently affected by the guidelines have moved to be substituted, or to intervene, as “named” respondents in this Court. The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. . . . The question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. An action brought on behalf of a class does not become moot upon expiration of the named plaintiff’s substantive claim even though class certification has been denied. Mootness of the named plaintiff’s individual claim after a class has been duly certified does not render the action moot. The judgment of the court of appeals is vacated and the issue is remanded to determine if P is the proper party to press the claims of the class or whether another representative is proper. This case demonstrates the flexible character of the Art. III mootness doctrine. As has been noted in the past, Art. III justiciability is “not a legal concept with a fixed content or susceptible of scientific verification.”
Dissenting: (Powell, Justice) The majority says that mootness is a “flexible” doctrine, which may be adapted as we see fit to “nontraditional” forms of litigation. The Court holds that the named plaintiff has a right “analogous to the private attorney general concept” to appeal the denial of class certification even when his personal claim for relief is moot. Both steps are significant departures from settled law that rationally cannot be confined to the narrow issue presented in this case. The personal stake requirement has a double aspect. On the one hand, it derives from Art. III limitations on the power of the federal courts. On the other, it embodies additional, self-imposed restraints on the exercise of judicial power. In order to satisfy Art. III, the plaintiff must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant. No class has been certified, and the lone plaintiff no longer has any personal stake in the litigation. The Court announces today for the first time — and without attempting to reconcile the many cases to the contrary — that there are two categories of “the Art. III mootness doctrine:” “flexible” and “less flexible.” While the Court’s new concept of “flexible” mootness is unprecedented, the content given that concept is even more disturbing. The Court splits the class aspects of this action into two separate “claims”: (i) that the action may be maintained by respondent on behalf of a class, and (ii) that the class is entitled to relief on the merits. Since no class has been certified, the Court concedes that the claim on the merits is moot. But respondent is said to have a personal stake in his “procedural claim” despite his lack of a stake in the merits. The Court makes no effort to identify any injury to respondent that may be redressed by, or any benefit to respondent that may accrue from, a favorable ruling on the certification question. The Court finds that the Federal Rules of Civil Procedure create a “right,” “analogous to the private attorney general concept,” to have a class certified. Second, the Court thinks that the case retains the “imperatives of a dispute capable of judicial resolution,” which are identified as (i) a sharply presented issue, (ii) a concrete factual setting, and (iii) a self-interested party actually contesting the case. Even Congress may not confer federal court jurisdiction when Art. III does not. Since neither Rule 23 nor the private attorney general concept can fill the jurisdictional gap, the Court’s new perception of Art. III requirements must rest entirely on its tripartite test of concrete adverseness.
LEGAL ANALYSIS: Some claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.
P was only the representative of the class and if his claim is moot, the only issue generated is whether P is the proper party to represent the class; it does not mean the class cannot litigate its claims. The dissent, which is not in any of the casebooks, clearly shows that this is not as cut and dry as one would be lead to believe. The dissent also gives you an alternative number of rules of law for the case as it frames the argument of the majority for you which is why we imagine that it is not in any casebooks: “The majority says that mootness is a “flexible” doctrine, which may be adapted as we see fit to “nontraditional” forms of litigation. The Court holds that the named plaintiff has a right “analogous to the private attorney general concept” to appeal the denial of class certification even when his personal claim for relief is moot. Both steps are significant departures from settled law that rationally cannot be confined to the narrow issue presented in this case. Recent decisions of this Court have considered the personal stake requirement with some care.”
The class action law suit is an exception so long as the controversy is live. This also avoids the ability of the defendant to end a class action on a technicality by offering the lead plaintiff a sweetheart settlement. The court was also clear to make sure that if P won the appeal for class certification, he still may be removed as he may not be deemed to represent the class effectively if his personal stake in the outcome is mooted. But that issue is separate from the issue of the appeal in the first instance.
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Essay #4 Success in Law School
TO SUCCEED IN LAW SCHOOL GET M.A.D.™
Law school is simply a rite of passage; you have to go to law school to be able to take a bar exam so that you can obtain a license to practice law. Law school will not teach you to be an attorney, nor to think like one, nor will it give you the business skills that will ensure your successes a practicing attorney. Law school will expose you to the law, and whether you learn anything will be strictly up to you and no one else.
The teaching methods used by professors in law school redetermined by economics and the fact that most professors hate teaching and would rather be playing golf, writing books, taking the next big case, or trying to get their own show on TV.
The “Socratic Method” is used because it’s inexpensive and can accommodate a large number of students. It has its merits, but as far as teaching someone to think and act like a lawyer it falls short of what is required.
The “Socratic Method” is effective in teaching philosophy and that is exactly what you will learn in law school: the philosophy of law. Learning to argue and think like a lawyer is strictly a matter of good legal research and experience. It is the art of persuasion. Such a skill can only be learned over period of time and with experience. The “Socratic Method “plays no role in developing legal research skills, and only small role in developing the art of persuasion. It is for this reason that the vast majority of lawyers who practice are mediocre. In addition, the majority of law school graduates do not practice law five years after graduation.
What’s wrong? Nothing, really. It’s just that law schools have a monopoly and for the most part are enjoying it. Law schools and the practice of law are nothing more than business. The sooner you realize this the better off you will be. This may seem very cynical but it was written to try and make a point. Do not be impressed by or scared about what will happen in law school. Law school is not a “Paper Chase”, although some professors love the image of Kingsfield tearing apart students causing them to melt in nervous breakdowns.
Remember, the person who asks the questions using the “Socratic Method” wins the argument. Remember the vast amount of anxiety you feel as a law student is because you are faced with the unknown on a large number of levels. You are with people you do not know, and you have no idea who to believe with all the”worthless” advice you are receiving without ever checking who is giving it.
In response to this stress most of you will abandon all the methods you have used in the past to learn things. Don’t be so stupid. The same thing that got you good grades in undergrad or in any other higher education endeavor will be the same thing that gets you through law school except for one minor difference. All the material you learn in law school builds upon each element so you must learn and emember it all and not do a data dump after each test.
To get through law school you only need to do five things: Memorize the law. Learn the application of the law. Learn the skill of issue spotting. Learn the skill of exam writing. Learn the methods of legal research.
So don’t get frustrated, don’t get nervous, don’t go crazy studying everything, just get M.A.D.™
The M.A.D.™ study method is unique to the Study Partner law outlines.
It consists of the following study methods:
M.EMORIZE A.PPLY D.ISSERTATE.
The law that you need to memorize is contained in a concise and easy to learn format in the Study Partner™ law school series. This entire series is now contained on the Rom Law™program. Contained in these study guides are all the elements of the law as well as the definitions that you need to use to write essay exams in school and on Bar Exams. Because the product is digital it is very easy to modify and add to the outlines. You can enhance the given definitions with class notes or with more details on finer points of law that you learn in class.
Many students like to input the case names and holdings into the ready-made outline. It is important to note that if your note taking exceeds the current size of the outlines already given you, you should stop writing and listen more to the concept of the law and its application.You learn the application of the law by reading and briefing the entire case and not the edited version in the casebook.
In addition, you must also do large numbers of short form questions and answers and longer hypos in the form of practice exams. We have a bank of short form Q&A in the back of each Study Partner™ outline in the Rom Law™. We also have 720 Series™ Flash Cards in Rom Law™ to assist you in both memorization and application reviews. We have hundreds of hypothetical questions in the Exam Writing section of the Rom Law™ as well.
In addition to the memorization and application that you learned in class, you will have to spend a significant amount of time dissertating on the law. Dissertation of the law is a proprietary study method of Study Partner™. Dissertation is essential to your complete understanding of the law and cannot be overlooked. In order to dissertate, simply choose a topic and write down everything you know about the topic in five minutes or less. When you are finished, compare the completeness and accuracy of your writing with what is contained in the Study Partner™ Law Outlines on Rom law™ and with your own class notes on the topic.
What you did not write down is what you do not know about the law.
In your study group sessions, you should be dissertating on the law with each other (both verbally and in writing). The five-minute time limit is important because it will help you quickly organize your thoughts on the topic into a general outline.
This will give you a significant advantage on exams with time limits.
Pay particular attention to the dissertation of majority and minority law as this will aid you in answering MBE questions as well as in answering essay questions and automatically giving you two sides to an argument.
Study Partner ™ study methods work. Don’t let law professors confuse you! Get into a daily routine of learning the law the Study Partner™ way and achieve superior results in law school and on Bar exams.
Study Partner™ is proud to be the only law outline company that is able to supply all its outlines, flashcards, and case briefs on computer programs that work on Windows, MAC or Online.
With all the information you need on computer it is even easier to customize your outlines and print them out on demand for class of study sessions.
Essay #5 Thinking Like a Lawyer
Don’t fall for that thinking like a lawyer verbiage that comes of out the mouths of the intellectual giants.
Ask any of the intellectual giants about defining thinking like lawyer and you won’t get an answer that is intelligent, thoughtful and useful in your future life as an attorney.
Here is the real answer. Thinking like a lawyer involves taking all the law in a given field and turning each element of the law into a question and then asking those questions in relation to the fact pattern you have present. You then find the answers either by common sense application or by case law.
If the answers are not favorable to the outcome you desire, look for policy decisions on how you can make them favorable by changing the law to conform to other jurisdictions or asking that new law be created under principles of fairness and the common law. If that fails, look to motive and emotional issues and try to upset the other side emotionally and give them opportunities to make mistakes so you can take advantage of them. That’s it.
We add one little twist by stating that it is taking all the law you have memorized and then turning it into question and then answering the questions by common sensor case law. If you memorize all the law in a certain field thinking like a lawyer is like shooting fish in a barrel.
One interesting fact; there is not that much law to memorize. So maybe if you learned the law just like you learned everything else in undergrad you will do extremely well. The only difference between law and undergrad is you cannot do a data dump on the law, it must be in permanent memory. Much of the law you memorize builds on each element. So the more law you memorize the more questions you ask and the better attorney you become. When the laws in permanent memory your brain takes over and does most of the legal analysis subconsciously so it happens extremely fast.
Essay #6 What does a case stand for?
With respect to the cases that are used in law school casebooks, there are usually two fundamental parts to each case. There is the actual rule of law of the case and then there is the theory on how that rule of law was developed.
Profs just love using the theory as the rule of law. That is a mistake of enormous magnitude. The theory will only give you a hint as to how the next case will be decided and nothing more. The reason this is true is because the Supreme Court and many state courts are politicized beyond all belief. Virtually all of them legislate from the bench and all of them have their own agendas. So the application of any theory of law will always depend on the make-up of the court and the secret agendas judges have.
In fact, analogy is a more powerful predictive tool than the theory of any case. However, law students are rarely exposed to analogy as it requires a full understanding of the fundamental law in many areas to make the proper connections. Law students don’t learn enough fundamental law and spend 50% of their time being exposed to boutique fluff courses instead of really learning contracts, torts, criminal law, real property, civil procedure, criminal procedure, evidence, etc.
Even judges and in many instances Supreme Court Justices miss analogy and the connections to be made. In case you doubt what we are talking about, download the Rom Law product, install it, and go to the Casebriefs and hit Compendium and look up WHARF (HOLDINGS) LTD. V. UNITED INTERN. HOLDINGS, INC. 532U.S. 588 (2001) and SEC v. ZANFORD 535 U.S. 813 (2002).
There you will see a prime example of the Court missing a very big and important connection on how to resolve the problems before it.
That being said, you will always be able to spot the actual holding of the case unless you are asleep at the wheel.
As for the theory, theories generally have no context unless you understand the nature of prior case law and prior decisions. Sometimes that is very hard to do because the casebooks in many instances do not give you that hindsight. But, if you know to look for the theory and rationale or the explanation of just how the court got to its actual rule of law, you will easily spot the theories and you will easily be able to give the profs what they want to hear. When in Rome….you know the rest.
As for the Socratic method, it cannot work and it will never be effective unless you know the law. That requires memorization. Memorization is the fundamental starting point of all good legal analysis. Without memorizing the law, you will never be a good lawyer and you will make law school twice as hard as it should be.
You can read more about what we have to say about study methods and how to make the anxiety of law school go away in our advice columns on this site. We may sound very cynical on a lot of the advice we give. But remember one thing, the law is extremely easy to learn. Most of the great legal minds learned the law, for the most part, on their own. Modernly, unless they hide the ball on you a lot, no sane person would pay $60,000 per year to sit in a law school. Hence, they make things four times harder than it should be to justify the price they are charging.
We love them for it and admire them because it’s a business and they are extremely good business people in creating high demand for a product that should not exist. It just doesn’t get any better than that. We rank their success up there with the paper towel people who brought modern consumer germ phobia to a pinnacle of unimagined success by having everyone using paper towels instead of cloths because of germs and alleged ease of cleanliness!
Essay #7 An Intelligence Test For Superior Legal Minds
You are at the top of the basement stairs.
There is a light for the stairway.
When you go down the stairway you obviously might turn the light on to see.
Let’s assume that in this instance you do.
At the bottom of the stairs are two switches. One controls the stairway light and the other controls the basement lights. Both light switches are in the down position. Do you merely turn on the basement lights by using one switcher do you use both switches and the side of your finger to turn both on at the same time?
If you turn both of them at the same time, you turn on the basement lights and turn off the stairway light.
When you leave the basement do you switch both simultaneously again? This would turn off the basement lights and turn on the stairway light. Or are you a single minded person and you merely turn the basement lights off and then when you return to the top of the stairs you turn off the stairway light?
Which method was meant to be used by the electrician who designed such a circuit?
If you switch both, you will make a genius lawyer. If you turn one switch at time, which is what 99.99% of the people do, well good luck.
We just told you we were very cynical. The example we have just given is the type of thought that was used to create the vast majority of seminal legal cases. Legal thought is extremely linear and two dimensional. The best legal minds make simple connections and they are proclaimed geniuses. We make fun of them because there is no core principal to make the law useful to everyday people. We would have a lot of respect for legislation from the bench if the goal was to make the law simple and easy to apply, thus keeping people out of court and from having to hire attorneys.
People who turn the switches one at a time are the types who just love balancing tests and who love making things complicated and difficult.
Are there two switches in your brain or just one?Figure it out and practice a few times on the cellar steps of your home or apartment complex and set your mind to create good law. But remember one thing: Keep it Simple Stupid.
Essay #8 Do The Professors Really Know the Law?
On Fox News, Lis Wiehl an adjunct professor of law at New York Law School, and formerly an associate professor at University of Washington Law School made a startling claim over a legal issues presented on a newscast. (This occurred around 2007-2008).
The short form facts appear to be that a college student fell down a dumpster and was in fact killed. Amazingly, Professor Wiehl spent the entire time talking about how this was the attractive nuisance doctrine. We were so amazed; we were speechless.
Did she really know something about the law that we missed?
Does the attractive nuisance doctrine apply to students at college who are over 18 and are adults?
Is a dumpster an attractive nuisance in the first place, or even a dangerous instrumentality?
After all, we invented Dean’s Law Dictionary and we have programs that think better than Professors do and can do complete legal analysis. Well you can read for yourself.
If you have thought that law professors were always short a few cards and really don’t know that much this certainly is one nail in the coffin. What grade would you give her???
From Dean’s Law Dictionary:While the attractive nuisance doctrine is not ordinarily applicable to adults, it “may be successfully invoked by an adult seeking damages for his or her own injury if the injury was suffered in an attempt to rescue a child from danger created by the defendant’s negligence.” 62 American Jurisprudence 2d (1990), Premises Liability, Section 288
Attractive Nuisance Doctrine:An unusual condition, instrumentality, machine, or other agency on premises which is dangerous to children of tender years but so interesting and luring to them as to attract them to the premises.
Courts have consistently held that children have a special status in tort law and that duties of care owed to children are different from duties owed to adults: ‘The amount of care required to discharge a duty owed to a child of tender years is necessarily greater than that required to discharge a duty owed to an adult under the same circumstances. ‘Children of tender years, and youthful persons generally, are entitled to a degree of care proportioned to their inability to foresee and avoid the perils that they may encounter. The same discernment and foresight in discovering defects and dangers cannot be reasonably expected of them, that older and experienced persons habitually employ; and therefore the greater precaution should be taken, where children are exposed to them.’ ‘ Di Gildo v. Caponi (1969), 18 Ohio St. 2d 125, 127, 47 Ohio Op. 2d 282, 283, 247 N.E.2d 732, 734, quoting Ohio Jurisprudence 2d 512 (1959),
Recognizing the special status of children in the law, court have even accorded special protection to child trespassers by adopting the ‘dangerous instrumentality’ doctrine: ‘The dangerous instrumentality exception [to nonliability to trespassers] imposes upon the owner or occupier of a premises a higher duty of care to a child trespasser when such owner or occupier actively and negligently operates hazardous machinery or other apparatus, the dangerousness of which is not readily apparent to children.’ McKinney v. Hartz & Restle Realtors, Inc. (1987), 31 Ohio St. 3d 244, 247, 31 Ohio B. Rep. 449, 452, 510 N.E.2d 386, 390. That doctrine was developed in Coy v. Columbus, Delaware & Marion Elec. Co. (1932), 125 Ohio St. 283, 181 N.E. 131, a case where a six-year-old boy was injured when he touched a high voltage transformer owned by the defendant and located in a vacant lot known to be frequented by children. The court applied a negligence standard to the behavior of the company, despite the fact that the child had been trespassing. The court quoted with favor the court in Haywood v. S. Hill Mfg. Co. (1925), 142 Va. 761, 765-766, 128 S.E. 362, 363-364: ‘ ‘Certainly a deadly, hidden force, as in this case, should not be left easily accessible to children whose frequent presence in this vicinity was known to the defendant, and acquiesced in by it, and this without so much as a danger sign anywhere thereabout. The care must be commensurate with the danger.’ ‘
Thus, the court adopted as early as 1932 some of the hallmarks of the attractive nuisance doctrine. Elements such as knowledge of children’s presence, the maintenance of a potentially dangerous force, and an exercise of care by the owner commensurate with the danger are a part of the attractive nuisance doctrine in most states, as reflected in Section 339 of the Restatement of Torts. The doctrine as adopted by numerous states is set forth in Restatement of the Law 2d, Torts (1965), Section 339:’A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon land if:'(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and'(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and ‘(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and'(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and ‘(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.’
Attractive nuisance found its initial genesis in the turntable doctrine. The ‘turntable doctrine’ was a somewhat controversial doctrine wherein railroads could be liable to children for injuries suffered on unguarded railroad turntables. The theory of liability was established in Sioux City & Pacific RR. Co. v. Stout (1873), 84 U.S. (17 Wall.) 657, 21 L. Ed. 745, and has been adopted by many states. The burning question for many years was whether to apply the doctrine to non-turntable cases. Many of the states that adopted the turntable doctrine refused to apply it to cases not involving turntables. Id. at 245, 83 N.E. at 69-70. The Restatement of the Law, Torts (1934) and Restatement of the Law 2d, Torts (1965) removed legal fictions and imposed balancing factors to consider on behalf of landowners. Comment, The Restatement’s Attractive Nuisance Doctrine: An Attractive Alternative for Ohio (1985), 46 Ohio St. L.J. 135, 138-139. Only two states that have not either created a special duty for trespassing children or done away with distinctions of duty based upon a person’s status as an invitee, licensee, or trespasser. Kessler v. Mortenson (Utah 2000), 2000 UT 95, 16 P.3d 1225, 1228; Drumheller, Maryland’s Rejection of Attractive Nuisance Doctrine (1996), 55 Md.L.Rev. 807, 810, and fn. 32.
One of the key elements of the doctrine as defined in the Restatement is that ‘the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass.’ Section 339(a). The Restatement’s version of the attractive nuisance doctrine balances society’s interest in protecting children with the rights of landowners to enjoy their property. Even when a landowner is found to have an attractive nuisance on his or her land, the landowner is left merely with the burden of acting with ordinary care. A landowner does not automatically become liable for any injury a child trespasser may suffer on that land. The requirement of foreseeability is built into the doctrine. The landowner must know or have reason to know that children are likely to trespass upon the part of the property that contains the dangerous condition. See Section 339(a). Moreover, the landowner’s duty ‘does not extend to those conditions the existence of which is obvious even to children and the risk of which should be fully realized by them.’ Id. at Comment i. Also, if the condition of the property that poses the risk is essential to the landowner, the doctrine would not apply: ‘The public interest in the possessor’s free use of his land for his own purposes is of great significance. A particular condition is, therefore, regarded as not involving unreasonable risk to trespassing children unless it involves a grave risk to them which could be obviated without any serious interference with the possessor’s legitimate use of his land.’ Id. at Comment n.
Land occupiers have a duty to exercise ordinary care to avoid any reasonably foreseeable risk of harm created by artificial conditions to children trespassing on the land. A child trespasser is defined: generally children above the age of fourteen do not qualify. The child must be so immature as to be unable to recognize the danger involved. The nuisance need not attract the child onto the property.
In Gerchberg v. Loney, 223 Kan. 446 the court stated the elements of the attractive nuisance theory as follows: ‘A possessor of land is subject to liability for bodily harm to children intruding thereon caused by some condition that he maintains on the premises if; ‘(1) the possessor knows, or in the exercise of ordinary care should know, that young children are likely to trespass upon the premises, and ‘(2) the possessor knows, or in the exercise of ordinary care should know, that the condition exists and that it involves an unreasonable risk of bodily harm to young children, and'(3) the children because of their youth either do not discover the condition or understand the danger involved in coming into the dangerous area, and ‘(4) one using ordinary care would not have maintained the condition when taking into consideration the usefulness of the condition and whether or not the expense or inconvenience to the defendant in remedying the condition would be slight in comparison to the risk of harm to children.’ 223 Kan. at 447-48. See PIK Civ.2d 12.40; Restatement (Second) of Torts § 339 (1963).
In Gerchberg, a five-year-old boy was severely burned when he went upon a neighbor’s property and started playing with and around the neighbor’s trash burner. Earlier in the day the neighbor’s 10-year-old son had been burning trash, and there was still smoke coming from the trash burner when the plaintiff entered upon defendant’s premises, tried to throw papers into the trash burner, and somehow set himself on fire. Although this court accepted the agreement of the parties that the plaintiff was a licensee, the facts as set forth in considerable detail by the Court of Appeals would certainly have supported a determination that the young boy was in fact a trespasser. 1 Kan. App. 2d at 85-88.
What is now known as the attractive nuisance doctrine or theory of liability was first recognized in Kansas in K.C. Rly. Co. v. Fitzsimmons, 22 Kan. 686 (1879). In Fitzsimmons, a 12-year-old boy was injured while playing upon a railroad turntable located in an open pasture. On appeal by the railroad the court stated: ‘No person has a right to leave, even on his own land, dangerous machinery calculated to attract and entice boys to it, there to be injured, unless he first takes proper steps to guard against all danger; and any person who thus does leave dangerous machinery exposed, without first providing against all danger, is guilty of negligence. It is a violation of that beneficent maxim, sic utere tuo ut alienum non laedas. It is true that the boys in such cases are technically trespassers. But even trespassers have rights which cannot be ignored. . . .’ 22 Kan. at 691.
In later years the theory of liability recognized in the ‘turntable’ cases came to be known as the attractive nuisance exception to the willful, wanton, or reckless conduct required for recovery by a child trespasser. While the strict requirement that the injured child be at least a technical trespasser has been relaxed somewhat, other elements of the attractive nuisance theory remain viable.
The first Kansas case to consider whether a swimming pool fell within the attractive nuisance theory was Gilliland v. City of Topeka, 124 Kan. 726, 262 Pac. 493 (1928). In Gilliland, a six-year-old boy drowned in a swimming pool in a public park in Topeka. The plaintiff asserted liability on the part of the City, alleging ‘the swimming pool with its equipment and appurtenances was a nuisance attractive to children.’ 124 Kan. 726. The court discussed the turntable cases and held; ‘The swimming pool was doubtless attractive to children, but it was not a nuisance….’A swimming pool forming one of the public attractions in a city park does not belong in the same class with the places regarded as attractive nuisances within the rule of the turntable cases, as that rule is applied by this court.’ 124 Kan. 726, 727.
The holding in Gilliland was followed shortly thereafter in Warren v. City of Topeka, 125 Kan. 524, 265 Pac. 78 (1928), wherein plaintiffs sought recovery for the drowning of their 12-year-old daughter in a swimming pool at Gage Park in Topeka. ‘It is necessary that the instrumentality alleged to be an attractive nuisance should have been so situated as to entice the child onto the premises before liability could be imposed. It is not sufficient that it attract him after he had already become a trespasser. Rules should not be adopted which, if carried to their logical conclusion, would make a property owner an insurer of a trespassing child against all injury. Such rules would make the ownership of property and modern conveniences well-nigh intolerable.’ 194 Kan. at 84.
Swimming pools are not, as a matter of law, attractive nuisances. Factors that can be considered include whether the landowner knew children frequent the area where the pool is located and whether the condition of the pool is so unusual that the interest of the child is enticed. McCormick v. Williams, 194 Kan. 81, 82-84, 397 P.2d 392 (1964). The McCormick court specifically stated it was not sufficient that the minor was attracted to the nuisance after an act of trespass occurred; the minor must have been enticed onto the premises by the attraction of the nuisance. 194 Kan. at 84.
The child must be attracted or enticed onto the property by the alleged nuisance, remain as prescribed requirements under the attractive nuisance theory. Most courts which have examined this issue have refused to extend the attractive nuisance doctrine to swimming pools. See e.g., Earnest v. Regent Pool, Inc., 288 Ala. 63, 257 So. 2d 313 (1972); Mims v. Brown, 49 Ala. App. 643, 275 So. 2d 159 (1973); Carlson v. Tucson Racquet and Swim Club, Inc., 127 Ariz. 247, 619 P.2d 756 (Ct. App. 1980); Wilford v. Little, 144 Cal. App. 2d 477, 301 P.2d 282 (1956); Lake v. Ferrer, 139 Cal. App. 2d 114, 293 P.2d 104 (1956); Staley v. Security Ass’n, 152 Colo. 19, 380 P.2d 53 (1963); Banks v. Mason, 132 So. 2d 219 (Fla. Dist. App. 1961); Thompson v. Ewin, 457 So. 2d 303 (La. App. 1984); Murphy v. Baltimore Gas & Elec., 290 Md. 186, 428 A.2d 459 (1981); Phachansiri v. Lowell, 35 Mass. App. 576, 623 N.E.2d 1124 (1993);McCullough v. Tilden, 44 Misc.2d 256, 253 N.Y.S.2d 422 (1964); Elliott v. Nagy, 22 Ohio St. 3d 58, 488 N.E.2d 853 (1986); Vaughn v. City of Alcoa, 194 Tenn. 449, 251 S.W.2d 304 (1952).
Essay #8 Black’s Law Dictionary revealed as a Hoax?
This article has remained up on its website for a number of years. We were emailed it yesterday. We have tried to contact Reuters which is now owned by Thompson which in turn owns West. We have sent 3 emails requests and called Reuters 4 times to verify the news wire and they have refused to take our call or return any of our messages or to respond to our email requests to verify this news wire. http://100777.com/node/189Black’s Law Dictionary Revealed as Hoax Filed under:Man made Law May 28, 2003 – 11:59 Montreal, PQ (Reuters) – May 28, 2003 – 11:59
Sarah Medhurst (nee Black) shocked journalists and legal scholars at a press conference held at the Black family estate Monday when she revealed that Black’s Law Dictionary, a highly regarded legal reference text, was originally written as a joke by her eccentric great grandfather Henry Campbell Black.
Medhurst appeared unapologetic, suggesting that the Black family had never tried very hard to keep it a secret. “Have any of you actually taken the time to read it?” she asked, flipping open the renowned text; “Look at page 840 for instance. ‘John-a-Nokes’? Or how about page 347? ‘Correality – the quality or state of being correal.” She then cast a challenging look around the room. Medhurst admitted that the entire Black family has participated in the century-long ruse, working together to generate content for the ever-expanding text.
She credits her Uncle Bertrand with developing one of their most successful filler techniques: “We created more than 30 new entries just by using the word ‘actual’. Actual agency – see agency. Actual allegiance – see allegiance. Actual authority – see authority. And on and on – you get the idea.” Medhurst admits that the family started to get lazy in later editions, at times resorting to stealing terms from other dictionaries. “I remember one time my brother pulled ‘Le Roi’ (literally: “the king”) right out of his French-English dictionary to meet the deadline for the 5th edition while on a three-week ski trip in the French Alps.” She claims the ploy has been used sparingly, however, and that the family put a stop to the practice when her brother started bringing the Official Scrabble Dictionary to editorial meetings.
Henry Campbell Black had never intended – or even imagined – that his dictionary would become the authoritative source for legal terminology. “My great granddad had actually written the text for an upcoming firm skit night”, Medhurst explains. “It was his way of showing how convoluted and, well, pompous the legal profession had become.”
The dictionary became an instant hit, however, and Henry Black’s comedic intentions went unnoticed. When the money started to roll in, Black elected to pursue a highly lucrative career in legal publishing instead of becoming a marginally talented prop comic.
When asked why the family is revealing the fake after all this time, Medhurst stated that they had grown tired of living a lie, and were genuinely concerned that the universally accepted legal lexicon “is actually just a bunch of made-up gibberish.” The family is asking that lawyers and students alike immediately dispose of any editions of Black’s Law Dictionary into the nearest trash receptacle or recycle bin. West Group, the current publisher of Black’s, could not be reached for comment.
Essay #9 Law School Issue Spotting
Effective Issue Spotting for Law School Exam Writing Requires Memorization of Majority and Minority law.
Issue spotting is the most important aspect of the skill of law school exam writing and in taking law school exams because if you do not spot the issues there is no chance at all for you to score points on an exam. Issue spotting is a topic that is frequently overlooked by most law students, leading to poor exam results. Even in traditional IRAC law school exam writing it is the first and most important element.
There are two reasons why law students fail law school exam writing; the first is that the law students do not know the law because they have not taken the time to memorize and dissertate on the law. The second is more hideous; in the frenzy of the law school exam writing process, the law student completely misses an issue. This is due to the fact that those law students who miss issues violate the first rule of law school exams: Issue Spotting
All issues are derived from the facts and the facts are written in words and every word on an exam is a potential issue!
R&R™ Issue Spotting for Law School Exam Writing is the First and most Important Element of Traditional IRAC exam writing.
This leads us to the first practical exercise in issue spotting. It is called Rewrite and Recognize™, or R&R™ for short. A quick demonstration will immediately show any law student how this Issue Spotting drill works in the scheme of basic IRAC. The following paragraph was taken from a bar exam given by the state of California, and will be analyzed for potential criminal liability and issue spotting.
One evening Albert was told that his estranged wife Zola was having overnight male guests in their residence. He immediately stormed out of the Sleezy Saloon, where he had been all evening, and drove his car wildly to the residence.
Before a law student begins, it must be pointed out that the purpose of this exercise is to create a sensitivity in the law student’s mind to the words that convey fact patterns, and to discipline the law student to read the facts of the question and to completely understand how they relate to the law. The law student will not be answering interrogatories, so this exercise in issue spotting will ignore the rule that to answer an exam question a law student should read the interrogatory first, and then specifically focus on the facts in order to answer the interrogatory and nothing else. When a law student practices issue spotting the law student should just concern herself with all of the possible interpretations of the facts, and not with those brought forth with the call of the interrogatory.
First Rewrite the facts so that you can practice issue spotting. This is a very simple exercise, and results in a list of key words.
Zola having overnight male guests
been all evening
drove car wildly
If you as a law student were to take this rewritten fact pattern, close the book, and never refer to the written exam paragraph again, the law student should be able to recall in detail all the events of the fact pattern without any difficulty just by looking at the law student’s list.
We are now able to begin the issue spotting process of Recognizing the issues presented by the fact pattern. This drill is quite simple if the law student has taken the time to memorize the law and to dissertate on it as presented in the Rom Law ™ in the Law Outlines on Disk ™. The trick to remember is that each line of your facts listed should present a possible issue to the law student for issue spotting. If it does not, you as a law student do not know the law.
“Evening” represents the common law crime of burglary. The associated facts to burglary are “their residence” and “been there all evening,” which suggest that it may still evening or it may be sunrise and also the issue of burglarizing one’s own residence.
“Sleezy Saloon” suggests intoxication, a defense, and is supported by the fact that he had “been there all evening” and “drove his car wildly”. The latter indicates a charge of drunk driving and a possible mitigation to the provocation (infra) suggested by the fact that his “estranged wife” had “overnight guests”. The fact that it took time to drive to the residence and that he might have had a chance to cool off or maybe a reasonable person would have done so would also mitigate the provocation.
“Estranged wife” suggests the issue of provocation and is supported by the facts that he “immediately stormed out” and that she has “overnight guests”, which on further analysis could also suggest a possible charge of adultery.
All of the individual facts relate to one another in combinations. If you as a law student are not using all of the facts presented, you are not spotting the issues and you will not be able to effectively frame a cogent answer to the specific interrogatories presented for excellence at law school exam writing. We picked a criminal law example because too many law students have been watching too much TV and already know that law for the most part. Also it is amazing how many law students fail to issue spot the issue related to the possibility of drunk driving in this fact pattern. We have also shown this fact pattern to uneducated lay people who know nothing about the technical aspects of the law and they quickly and easily spotted the fact that he may be drunk and he was speeding. Law students simply just don’t really read and listen and they look for all the big things or over analyze or think there is some magic formula to learn how to really read the facts. That is why law students fail at issue spotting over and over again.
Some basic words recur and beg the issue, such as ‘evening’ for burglary and the use of ‘the Saloon’ for intoxication. Others that are used are more subtle; these separate those law students think they know the law from those who really do. In the given example they are used to reinforce the fact that it may still be night, and the storming out of the Saloon, the wild driving, and the estranged wife are used to support the issues of burglary, provocation, drunk driving, intoxication, and adultery.
Of course, do not forget those insignificant crimes such as drunk driving, speeding, and adultery. Although they pale in comparison to burglary and murder, they will show that you as a law student have an in-depth understanding of the law and possess superior skills in analyzing fact patterns and that you have mastered issue spotting.
Issue Spotting is a Skill that Requires Practice Practice Practice
The key to issue spotting is to Practice Practice Practice. If you do you will see fact patterns repeat themselves over and over and over again. Thus, issue spotting becomes easier and easier. This will tip you off that if you cannot relate an issue to that particular fact pattern then you must go find out if there is any law that you in fact just do not know.
In other words, if you as a law student see a fact pattern over and over again that says there is a Blue Cow standing in the middle of the field; and you don’t know any Blue Cow law you better go look it up to see if such law exists. We assure you on law school exams you will need to analyze every word to produce superior issue spotting.
After you have practiced issue spotting for approximately 100 paragraphs for each topic for which you desire to be proficient, it will begin to appear quite simple and you will begin to read the facts, spot the issues, and use the facts to support the issues presented without difficulty. More importantly, you will begin to write better answers on your exams as you automatically begin to use the facts to support the issues.
If you come across a situation in which you cannot spot an issue or use the facts presented to support other issues presented, it is highly probable that you are missing something important. In this case, it is recommended that you refer to your Hornbook or Rom Law ™ on the subject and check to see whether or not the facts suggest any possible issues. Remember: the only rule that you will have to follow in issue spotting is that all issues are derived from the facts and the facts are written in words and every word on an exam is a potential issue!
The more a law student does issue spotting the more issues she will spot and the more law she will learn. The more a law student does issue spotting the faster she will be able to analyze fact patterns. For the average law student, if they practice issue spotting as we have described it is not uncommon for the average law student to spot more issues on a law school exam than the professor thought were there.