Mysteries Revealed: What's Law School Methods All About

Those of you in your second semester and beyond or those with older brothers or sisters who have given you the scoop on law school will find that this really isn't for you. It's for those of you who are approaching law school the same way you'd ride through a dark tunnel on a roller coaster—confident, but you'd feel just a little bit more comfortable knowing what lurks ahead.




Avoiding the Stumble Syndrome

One of the biggest problems facing law students in their early weeks is the "stumble syndrome." This malady occurs because students are hit with so much new information—and hit so quickly—during the first month of school that they feel they are continually stumbling from day to day, unable to find any firm footing.

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The result of this syndrome is that students take so long to get oriented to the ways of law school itself that they don't start learning what law school is supposed to teach them (i.e., the rules of law) until they're already behind. So if you know what to expect, you'll be able to hit the decks running and get down to the business of learning law much sooner. And the first thing you've got to learn about is the Socratic method of teaching.

The Classroom Method – The Socrates Method

What will your daily life in law school be Mke? Perhaps the most striking initial observation you'll make about your first-year law classes is their size. Typical classes contain between 100 and 150 students. Although you've all undoubtedly taken large lecture courses in undergraduate school, you cannot compare law school and undergraduate classes because most law professors don't lecture. They use some variation on what's called the "case method" or Socratic approach to education, in which they call on an individual student and ask questions about the material assigned for that day.

So while you may feel safe and complacent surrounded by 149 other faces, you're going to be a lot more vulnerable to cross-examination by your law school professor than you ever were in undergrad school. The Socratic Method is not new, nor is it unique to law school. In fact, only recently (in the last 100 years; and that, in law, is recent) and only in the United States has the technique been applied to the study of law. Prior to the late 1800s, law was learned through the reading of treatises and commentaries written by judges and practitioners and through on-the-job training.

Here's a brief example of the Socratic method in action:

There is a rule of law called "assumption of risk," which holds that if you see a clear danger and go ahead and take the risk of getting hurt, you might not be able to win a suit against the person who created that danger. There. That's a rule of law. Simple and concise, understandable and fair. But your torts professor isn't going to recite the rule as I just did. The professor will try to draw it out of you, to make you figure it out.

Consider this brief exchange:

Professor: Imagine there's a bridge spanning a river. You walk across it and halfway over the cables break. You fall into the water and are seriously injured. What would you do about it?

Student: Sue the owner of the bridge.

Professor: On what grounds?

Student: Negligence. If the bridge was open, the cables should have been strong enough to hold a pedestrian's weight.

Professor: What if, before you crossed, you noticed that the cables were frayed?

Student: One must not have thought they were too bad if I crossed.

Professor: No, you thought they were very badly frayed. But you had a vitally important appointment across the river you could not miss. What would the owner of the bridge claim in court?

Student: That I was negligent too?

Professor: Negligence is carelessness. You weren't careless. You were stupid. You saw the danger and decided to act pigheaded. You crossed a dangerous bridge anyway. . . . How would you describe what you did?

Student: I took a chance.

Professor: You took a what?

Student: I took a chance, a risk. . . .

Professor: Ah, a risk. You took a risk. . . . What else might you have done with that risk? Think of a lawyerly word, a big word. . . .

Student: 1 assumed the risk.

Professor: Very good.

See how the rule was drawn out by the professor? In law school, the system will probably work this way: Your assignments will consist of court decisions, usually contained in a casebook in which the author has compiled a number of decisions, each one representing a rule of law that you're to learn.

You'll read these cases—maybe four, six, or eight for each class session—and then "brief" them, that is, write a short synopsis of the cases according to the process described in the next. You show up in class the next day and prop open your notebook containing the briefs and your notebook for class notes.

Then the fun begins. The professor may give a brief introduction to the topic you are about to cover and then call on a student. Or the professor may simply pick a name and begin the Socratic process cold. You will usually be asked to recite the facts of the decision and possibly the procedural history of the case as it worked its way through the court system. Once you have finished, the professor may allow you to continue, discussing the rule of law and any other observations you may have made during your reading of the decision.

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If you correctly state the facts and the rule of law that the case represents, that might be the end of it. Often, though, the professor will let you recite just long enough until you have enough rope. Then the professor will open the trap door—and start the questioning.

Professors usually ask straightforward queries about the facts and the rule of the law the court selected. Also: "Why?" Get used to that question. Law school professors love it. Even if you're positive you know all the facts cold, even if you can recite the rule of law in your sleep, be prepared for a professor's ironic glance, accompanied by "But why did the court do that?" Or "Why did the attorney representing the plaintiff bring the case in this court and not another?"

Socratic sessions require you to shift gears quickly It's not unusual for you to be reciting a case when suddenly the professor interrupts you, changes the facts, and asks you to offer what the rule of law might be if those facts, rather than the ones in the case, existed. The professor might state a different legal rule, then ask you to apply that to the facts in the case you briefed for class. You will often be asked to reconcile the decision you have just recited with previous cases.

Here's another example of a Socratic professor at work:

Professor: Ms. Jones?

Student: Yes, sir? Present.

Professor: Please stand and tell us about the case of Brown v. Smith.

Student: Yes, well, in this case, a young man . . .

Professor: How young?

Student: Uh, I believe he was 16.

Professor: You believe?

Student: No. He was definitely 16. His birthday was . . .

Professor: That's fine. Please continue.

Student: This young man bought a motorcycle. It was a Honda 350 . . .

Professor: Is that all he did?

Student: Pardon?

Professor: When he bought this cycle, did he do anything else?

Student: He bought a helmet, he bought a rear-view mirror, he . . .

Professor: How would vou, as a lawyer, Ms. Jones, characterize what this young man did at the dealership?

Student: Oh, he made a contract. He entered into a contract.

Professor: Continue.

Student: This young man entered a contract to buy a motorcycle and took delivery. He only paid a part of the price—a down payment. After two weeks, he decided he didn't want the motorcycle any more. He had gotten engaged and his fiancee wanted a ring . . .

Professor: Really? What kind of ring?

Student: Oh. Well, 1 don't know.

Professor: Nor should you. It's irrelevant So is the reason he didn't want the motorcycle anymore. Extract only the vital facts from these decisions, Ms. Jones.

Student: Yes, sir. He told the dealer to pick up the motorcycle and he refused to pay the balance due. The dealer sued him for this money. The court said . . .

Professor: Sued him, Ms. Jones? Sued this poor young man? The dealer had his motorcycle back. Why was the dealer upset?

Student: Well, uhn . . .

Professor: What had the young man done that was so wrong?

Student: 1 guess the dealer was going to lose his profit.

Professor: That's true, Ms. Jones. But, again as a lawyer, how would you characterize what the boy did?

Student: Oh. He breached the contract.

Professor: Very good. He breached the contract. Please continue with this dramatic saga.

Student: The court ruled in favor of the boy. It said that he was an infant and . . .

Professor: An infant? You said he was 16.

Student: The law defines anyone under the age of majority as an infant.

Professor: And what is the age of majority?

Student: I'm not exactly sure, but 16 is in there.

Professor: Sixteen is in there somewhere, hm?

Student: That's right. Well, the court said that since he was an infant, he could avoid the contract.

Professor: Get off scot free?

Student: That's right.

Professor: Hardly seems fair, does it? Our 16-year-old infant can break a contract with impunity, but a 19-year-old adult can't.

Student: The court said this was a public policy decision. You have to draw the line somewhere. I mean, you can't very well
hold a four-year-old to a contract to pay $100 a month.

Professor: In other words, a dealer who sells a motorcycle to a four-year-old deserves what he gets?

Student: Uhm. Tm not sure if that's what 1 mean or not.

Professor: Before we get to public policy, let's return to the question at hand. How would you describe the contract in this
case?

Student: Not worth the paper it's written on?

Professor: Please leave the humor, such as it is, in this class to me, Ms. Jones.

Student: It's a voidable contract.

Professor: Voidable. Yes, it is a voidable contract. Now Ms. Jones, you are representing this motorcycle dealer. Not a bright
fellow, really. After all, he's sold motorcycles to four-year-olds, right? But even fools deserve good lawyers and you've agreed to take the case. You dig up some facts about this 16-year-old contract-breaker.

For one thing, he lives 50 miles outside of Salt Lake City and works in the city itself Commutes every day. He's also an orphan. Does this give you any ideas?

Student: Sure. I'd argue that the motorcycle was a necessary. It's a rule in the majority of states that an infant can't break a contract he enters to buy necessaries—transportation to and from his job, for instance.

Professor: Very good. Now let's change the facts. Let's take your four-year-old. We'll assume his feet don't reach the pedals on a Harley-Davidson, so let's say he buys a tricycle, on time. The same situation.

Student: Does he pedal to Salt Lake City every day?

There you have a typical, if fanciful, example of a Socratic session. Forget the legal principles; get the flavor of the game. Note that the entire exchange could be summarized by a professor in a lecture as: "Contracts of infants, who are de¬ fined by the law as anyone under the age of majority, are voidable by the child. The exception is a contract for 'necessaries,' that is, what the child needs for daily survival." Some Professors who use the Socratic system get carried away and engage in a little verbal whipping, especially if they feel you haven't done the homework. But take it in stride. Every lawyer in the country has survived the Socratic method of teaching; you will too. Remember too that because the classes are so large, you will not be called on often.

Here's a trick I used frequently: The best way to beat the nervousness in Socratic sessions is to volunteer when you know the answer. This relieves the tension and if you do it frequently enough, you may, depending on your school's grading practices, be able to earn extra credit.

Often Professors modify the traditional case approach to instruction. Rather than grilling students, they use assigned cases as points of departure for class discussions in which everyone is encouraged to participate. I found this to be the classroom environment most conducive to learning. It avoids both the tedium of pure lecture and the consuming uneasiness that sometimes accompanies Socratic classes.

Assignments

Your assignments will be almost exclusively from "casebooks," which are somber-looking tomes that include actual court decisions (or excerpts from them), each one representing a rule of law.

It is these cases that you will "brief," or synopsize, to aid in your recitation in class and in your comprehension of the rule of law each case represents. ( 6 illustrates what these decisions look like and how to brief them.) In addition to cases, you wiU usually be expected to read short discussions of the cases (which appear after each case) written by the author or editor of the casebook. These blurbs, or "notes" as they are called, are quite helpful in understanding recalcitrant cases and for summarizing and reconciling several seemingly inconsistent decisions.

You can expect assignments to be long: 100 pages per week in a single class is not unheard of. The average per class is usually between 40 and 60 pages per week. Don't fall be¬ hind in the reading. It is extremely difficult to get caught up once you fail to complete assignments; even if you sincerely intend to get to the unread portion of the assignment later in the semester, you probably won't have time to do so. A word of warning: Assignments will usually be posted before your first class session; ferret them out and do them. Professors have been known to call on students on the first day, even before they have cracked open their brand-new notebooks.

Grades and Exams

Because class rank is so important to potential employers and for determining such honors as invitations to join the law review, few law schools offer a pass-fail arrangement. Most grade their students by numbers (60 through 100) or the traditional letter standing (F through A). Grading is anonymous at many schools. You will be given a code number around exam time, which will be known only to you and a computer; professors don't know whose blue book they're grading, and other students won't know what grade you received when marks are posted.

First-year grades are based exclusively on one or two written exams (the technique for preparing for and taking these tests is discussed at great length later in this book). The one exception to this is your legal research and writing class, in which you'll be graded on writing projects and an oral presentation.

What are these exams like? Although some professors use multiple-choice and true-false exams, the majority of law school exams are essay tests. You will be give a fact pattern full of all sorts of nasty things—murders, car accidents, breached contracts, kidnappings. You'll be astonished at how much trouble people can get themselves into in the space of one paragraph.

And who gets them out of trouble?

You, of course. The question will ask: "You be the judge. What is the outcome of the case?" Or perhaps: "You are counsel for X. What arguments would you make on his behalf?"

After a period of analysis and outlining, you'll write the answer in a blue book. Then you go home, having survived the fastest three hours of your life, and wait three months to find out your grade (law school tests patience, as well as endurance).

Occasionally some professors will give you credit for class performance, perhaps as much as 10 percent of the final grade, based on your skills in recitation and willingness to volunteer. Some make this extra credit; a few professors will subtract points if you're unprepared (although I have never heard of a professor who penalized students who had done the assignment but who reached an incorrect conclusion or were simply unable to understand the point of a case).