[blindlaw] Four Secrets to Law School Success

Mon Aug 30 01:33:33 UTC 2010

I thought that the following Article by Professor  Michael C. Dorf would be
of interested to  list members starting  or thinking about law school. 

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 <http://writ.news.findlaw.com/dorf> Michael C. Dorf

Four Secrets to Law School Success

By MICHAEL C. DORF  <http://writ.news.findlaw.com/dorf> 

Monday, August 23, 2010

By MICHAEL C. DORF

With a job market that remains, at best, uncertain awaiting them at the end
of their three years, new and returning law students are understandably
anxious about what they can do to make the most out of their legal
education. In the past, I have offered advice about the
<http://writ.news.findlaw.com/dorf/20050803.html>  first-year curriculum and
how to think like a <http://writ.news.findlaw.com/dorf/20010822.html>
lawyer. In this column, I share four lessons that I have learned in nearly
two decades of law teaching. 

The Most Important Skill You Can Acquire: Distinguishing Hard From Easy
Questions

Many laypeople labor under a misconception about the law and the work that
lawyers do: The law, they imagine, consists of something like a very long
list of rules, compiled in multiple volumes labeled "contract law,"
"property law," "criminal law," and so forth. The lawyer's job, in this
view, is simply to look up the answer to the question of what the law
requires in any given circumstance. 

In fact, that picture is partly accurate. Books of statutes, regulations,
and case reports really do contain a large number of rules. Although many of
those rules are quite clear, identifying them can be difficult for the
layperson because of their sheer quantity. 

For example, an entrepreneur opening a new restaurant could, in principle,
locate all of the federal, state, and local rules with which she must comply
by searching on the Internet, but in doing so, she is likely to miss
something important. Consulting with an experienced attorney will ensure
that she avoids inadvertently breaking the law. 

Yet the picture of the lawyer as human search engine is quite incomplete.
The most valuable and challenging work that lawyers do comes after they
identify the relevant statutes, regulations, and cases. That work consists
in analyzing the nature and scope of legal obligations when the law is
unclear--for the purpose of either advising a client or defending the
client's position in court. 

Most of what happens in law school centers around preparation for this
second kind of lawyer's work. Instructors ask probing questions of students
to develop their skills at categorization and argumentation. When different
sources of law point in different directions, lawyers must know how to
assess the likelihood that a court will find in favor of one or another
resolution. They must also know how best to persuade a court to rule in a
way that favors their client. Law school models and hones these skills. 

One of the most important skills a good lawyer possesses is the ability to
distinguish between those legal questions to which the law provides a clear
answer, and those questions that are unsettled. A client contemplating some
course of conduct will want to know whether it is clearly legal, clearly
illegal, or possibly legal but possibly the sort of conduct that could
result in civil liability, a fine, or even imprisonment. Likewise, a client
facing a lawsuit will be much more likely to settle the case if her lawyer
tells her that there is a greater than fifty percent chance of liability,
than if her lawyer says that she will almost certainly win. As these
examples suggest, the answers to legal questions fall along a spectrum that
ranges from crystal clear to extremely unclear. 

Law teachers tend to ask questions of their students without first
identifying whether we are simply asking for the answer--as we might, if we
are testing their ability to look up clear answers--or whether we are,
instead, asking them to show us how they can argue for one or another result
when the law does not provide a clear answer. 

That brings me to my first piece of advice. You should understand every
question your instructors ask as really posing two questions: In addition to
the question itself, there is a prior, unstated, query: Is this the sort of
question to which the law provides a clear answer? 

The Right Kind of Confusion

Students sometimes tell me that they came to class understanding the
assigned material, but left class in a state of confusion. No doubt, some
such confusion arises from my deficiencies as a teacher, but not all of it,
I suspect. In many of these instances, the students were simply mistaken:
They came to class with only a superficial understanding of the material. 

In a typical law school class, the instructor spends only a relatively small
proportion of the allotted time covering the basics. What were the facts of
the relevant case? What did the court decide? What reasons did it give? The
answers to these sorts of questions are apparent on the face of the
material, or at least they become apparent to students within a few weeks of
the start of law school, as they learn how to read and understand legal
documents. 

But such an understanding is superficial because the real work of lawyers is
synthetic. They need to be able to take rulings from many different cases
and construct a set of general rules and principles that they then bring to
bear on new cases. For any reasonably complicated area of the law, there
will be no single right answer to the question of how to combine the
relevant cases to discern a set of general rules and principles. And even
when experts agree about the relevant rules and principles, there will be
many borderline cases as to which the way these rules and principles ought
to apply is indeterminate. Law school teachers tend to focus a good portion
of their questions and discussion on these borderline cases, so as to help
students understand the limits of the law. 

Thus, a student should be confused at the end of a good class, because a
good class will have probed the areas in which the law is unsettled or
confused. We might even say that if I haven't managed to confuse my
students, I haven't done my job! 

The key for students is to arrive at the right sort of confusion. Students
should not be swimming in confusion. Rather, they should be able to see just
where the law leaves gaps and ambiguities. Aiming to arrive at the right
kind of confusion is simply another way of saying that law students should
be able to tell the difference between questions that have clear answers,
and questions that do not. 

Thus we come to my second piece of advice: As you prepare for class, try to
internalize the voice of your professors asking questions about the margins
of the legal issues that are being covered. Go beyond the basics of each
case to ask yourself how the announced rule of law applies in other
circumstances, the extent to which it overlaps with or contradicts decisions
in other cases, and whether the individual decision or the pattern as a
whole makes sense in light of the law's purposes. These questions form the
bulk of what you study in class, and so you should try to anticipate them
before class. 

Don't Just Read; Write and Discuss

In many of your law school classes, all or most of your grade will be based
on your performance on a final examination at the end of the semester. Those
high stakes can be anxiety-provoking on their own, but there is an added
kicker in law school: We do not prepare you to take exams. 

The bulk of classroom discussion is deconstructive. Your instructors pose
hypothetical questions to get you to say whether you think a case you read
was rightly or wrongly decided. Yet, on our exams, we ask you to be
constructive: We provide you with a set of real or hypothetical facts and
ask you how the existing law applies. 

To be sure, the analytical skills we teach in class should be useful in
answering exam questions. If you have been reading carefully and paying
attention in class, you will have a good idea of how to synthesize different
cases to yield a general rule that is applicable in new cases. You will even
have some experience in making short oral statements explaining your
reasoning. 

What you will mostly lack, however, is practice in making a sustained
written argument for a particular result or explaining the competing
considerations in play. Your first-semester course in legal writing will
have given you some practice in this skill, but it will not necessarily
involve the subject matter of your substantive classes. And even if your
instructors have provided you with practice exercises during the course of
the semester, you will have spent only a small fraction of your total
preparation time outside class on such exercises. 

Thus, I come to my third piece of advice: Complete practice exams. Many
professors distribute their exams from previous years, but it is not
essential that you work with those in particular. There are websites and
books containing practice exams. Beginning about mid-way through the
semester, you should practice answering exam questions under simulated exam
conditions. Then get together with a group of classmates to review your
respective answers. You will find that the practice improves your general
ability to write exams and that the discussion with classmates helps you
learn the material. 

Have Fun 

Fourth and finally, you should try to have fun in law school. By that, I
mean two things. 

First, make some time to do fun things outside of your studies: exercise; go
to the movies; read fiction; do some of whatever you liked to do before you
committed yourself to studying the law. 

Second, have fun in your study of the law. Law is both a fascinating mental
puzzle and a supremely important social institution. You are studying it to
become a competent professional, but in the course of doing so, you should
also bring to bear the same spirit of intellectual inquiry that
characterized your undergraduate studies (assuming you didn't waste your
time in college). Treating your legal studies as a continuation of a liberal
education will enable you to enjoy law school and will make you a better
lawyer. 

Writing over a century ago, Oliver Wendell Holmes, Jr. said more or less the
same thing, albeit more poetically: The "more general aspects of the law,"
Holmes wrote, "give it universal interest. It is through them that you not
only become a great master in your calling, but connect your subject with
the universe and catch an echo of the infinite . . . ." 

Even if you fail to hear that echo, the least you can do is to try to find
your study of law interesting. 

  _____  

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell
University. He blogs at dorfonlaw.org <http://www.dorfonlaw.org/> . His next
book, The
<http://www.oup.com/us/catalog/general/subject/Law/ConstitutionalLaw/?view=u
sa&ci=9780195370034>  Oxford Introductions to U.S. Law: Constitutional Law
(with Trevor Morrison), will be published in September. 

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