While class time actually is a very small percentage of the time you spend on learning in law school, it is critical time nonetheless. Research establishes that class attendance is one of the most influential performance factors in predicting law school performance. (Kimball, Farmer & Monson, Ability, Effort, and Performance Among First-Year Law Students at Brigham Young University, 1981 Am. B. Found. Res. J. 671, 689-92). For class time to extend your learning, however, you must be deliberate about making the most of that time.
Most law school classes are very different from traditional undergraduate classes. They are not passive exercises, and are not intended to tie the material into a neat package. Instead, many law school classes (and certainly those in the first year) are designed to build on the basic understandings obtained from your careful preparation, answer some of your questions, and raise many new questions. The materials in this chapter are designed to help you get the most from those classes.
Instruction in first-year law school classes around the country is remarkably similar, regardless of the subject, professor, students, location or school “rank.” (Steven I. Friedland, How We Teach: A Survey of Teaching Techniques in American Law Schools, 20 Seattle U. L. Rev. 1, 28 (1996)). In most law school classes, your professor will ask questions and students will answer. This has been characterized the “Socratic” method. Some professors are masters of the method. For others, you may need to work harder to understand their questioning method.
Professors differ in the methods used to select students for participation in this exchange. Some professors call on students randomly, others will ask for volunteers. In some classes, only two or three students will be “on the hot seat” during class; in others, a larger number of students will be asked to speak. The most important thing for you to remember is, even if you are “off the hook” for answering a question, stay as attentive and focused as if the questions were being directed to you.
Students often dread the moment at which they are asked to speak in class. For some, any public speaking is difficult, not to mention the stress of debate with the professor in the classroom. Other students seem to thrive on the opportunity to contribute to class discussion or challenge ideas presented. Why do we have this interaction in the classroom in the first place? What is the point of all this grilling by the professors? Professors have many goals in their questioning methods. Questions might be used simply as a method of keeping students honest in their class preparation. They may serve the purpose of assessing student understanding of basic rules and doctrines before moving to more advanced analysis of those rules. Primarily though, questions in the law school classroom go beyond recitation of rules, doctrines and theory, but also to develop skills of critical, independent reading and thinking, and confident articulation of ideas, arguments and analysis. The “Socratic” method can help you develop these skills if you prepare and participate. You can better prepare yourself for the moment when you are called upon (or volunteer) to speak by recognizing the kinds of questions your professor typically asks.
Often professors merely ask students to “state the case”: which basically consists of reciting the key elements of your case brief. Fine tuning your brief to meet the format expected by each professor can make responding to these questions quite straightforward. Other forms of questions are a bit more daunting. For example, the professor may ask you to speculate about the facts (“Why do you think the plaintiff rejected the goods rather than accept and sue for the difference in value?” “Why didn’t the attorney raise that issue?”). You may be asked to respond to or analyze the arguments and reasoning in a case or to provide your own arguments and analysis. (“What do you think of the X rule?” “Why was the court so concerned about Y?” “How could plaintiff have strengthened that argument?” “What is the response to that position?”). A classic of law school Socratic dialogue requires you to reconcile a series of cases. You may be asked to do that directly. (“How would you distinguish this case from the Roe decision?”)
Or, the professor may invent a hypothetical in which the facts fall squarely between two cases that you have read and your task is to analyze the boundaries of each case by predicting or arguing for the outcome in the hypothetical. Sometimes these hypotheticals are designed to point out the individual injustice that can result from strict, formal rules. Sometimes they are designed to point out the lack of predictability in very open-textured rules. Sometimes they are simply designed to test your ability to apply the rules in a straightforward fashion.
Whatever the variation on these questioning themes, don’t be afraid to pause and think before you respond. When you are thinking, be sure you are thinking about the question, rather than trying to figure out what the professor would view as the correct answer. Many students preface their response with “I’m not sure if this is what you are looking for, but…” If you truly do not understand the question, you can ask for clarification. Rather than simply say “I don’t understand” indicate how it is you understand the question (“Did you want the rationale Justice X goes through, or my own rationale”?) Don’t waste your time trying to figure out what the professor thinks is the answer though. In the vast majority of cases, the professor wants a well-reasoned, well-supported answer — ANY well-reasoned, well-supported answer.
The key to participating successfully in class is thinking as much as possible about the assigned material before entering the classroom and taking notes that allow you to efficiently and effectively recall and extend your thinking when called upon. Whether you choose to volunteer to answer questions or not, always choose to ask questions. If you are confused about a subject, you are likely not alone. You will quickly get a clear sense if you are the only one asking for clarification.
For most students, participating in class is beneficial because it forces them to pay closer attention, listen more attentively, and receive some feedback on their thinking. A few students, however, use the opportunity to speak or ask questions in ways that interfere with learning. You know that you are talking too much if your contributions generally begin with “I knew this person who… ” “What would happen if…” Leave the story telling and hypothetical construction to the professor in class, and share your stories with your classmates or the professor outside of class.
For most students, it takes a long time to learn how to take good notes. Do not simply write down what the professor says. The question and answer dialogue between the professor and class is designed to open the way to deeper understanding (and further questions). Listen carefully to the discussion; the comments of your fellow students will often be important and worth writing down.
Many law students find it difficult to take concise, organized relevant notes during class. Note taking is an important skill because it helps you get the most out of class and gives you a critical resource in preparing for exams. Use a note book with relatively fixed pages — one for each class — with space to include handouts. Wide margined (legal ruled) paper is especially helpful for using a key and summary method based on the Cornell Note Taking Method (Record, Reduce, Recite, Reflect, Review).
What do you need in order to take good notes in class?
1. You must listen. Problems that can block listening are:
a. Can’t hear the teacher. Solution: move your seat or ask the professor to speak up.
b. Can’t understand the teacher’s speech. Solution: tape the class and listen more slowly; share notes with others; ask the professor to enunciate.
c. Become bored; daydream; fall asleep. Solution: maintain body posture of attentiveness — sit up, look at the teacher, give non-verbal feedback to the teacher. Get enough sleep at night. Write down five questions to which you want the answers and listen for the answers. Be sure to listen to your classmates and note their analysis, arguments and questions as well as the teachers.
2. You must think about what you hear. Problems involved that block thinking are:
a. You are expecting “answers.” Solution: listen critically — consider questions posed as equally important as answers given.
b. What the teacher says is confusing. Solution: change your class preparation, do more background reading, be sure you understand the vocabulary being used, ask for further clarification after class.
3. You must be able to write. Problems here are:
a. Can’t read your notes. Solution: slow down, use a lap top computer.
b. Can’t write fast enough. Solution: ask teacher to repeat or slow down; use abbreviations; do more note preparation before class; consider that you may be trying to write too much.
4. You must be organized. Problems here are:
a. Teacher is disorganized. Solutions: organize the materials before coming to class and fit the professor’s analysis into your own organization; ask questions for connections that seem vague.
b. Papers get disorganized. Solutions: use tabs, cross references, and relatively fixed page notebooks for notes. Be sure to number pages of notes or indicate dates on each page so if pages fall out, you can put them back in order.
c. Can’t see the organization. Solution: more class preparation — especially use of table of contents of text; professor’s syllabus; or course outlines to provide a structure.
1. Be prepared! Prepare good case briefs and notes for class with room for making comments and notes during class. Review your text readings and your notes just before going to class.
2. Concentrate on the ideas, not the delivery. Don’t allow yourself to be distracted by mannerisms or delivery of the professor or of other students. Concentrate on the WHAT, not the HOW. Close your eyes now and then if you must (but don’t fall asleep), or move your seat.
3. Listen with an open mind. Don’t come to class with firm expectations of what the materials mean or how they will be approached.
4. Keep physically alert. Sit up straight. Look at the teacher. Sit in a spot in the classroom that keeps you alert and in the instructor’s view.
5. Keep mentally alert. Talk. Listen critically. Keep trying to guess how the material might be tested (or used in law practice).
6. Use a listen-think-write process. Don’t be a scrivener, trying to write down everything that is said. Train yourself to listen attentively to what is said, evaluate its relevance and importance, and the select what is important and write it in your own words.
7. Note the questions. Be especially careful to write down questions, hypotheticals, and theories noted by the professor and by other students. These are the seeds from which understanding (and exam questions) grow in your after class review.
8. Note your next steps: Write down any assignments noted. Compare to your syllabus and ask about discrepancies. Keep a list of questions you have so that, immediately after class, you can ask the instructor, do your research, or compare with your study partners.
9. If the instructor writes it, you should too. Even in today’s technology-rich environment, most professors do not use many audio-visual devices in their teaching. Those that do, most commonly use the chalk board. Never fail to copy anything the professor writes on the board, even drawings or symbols can give important insights into a formulation of a rule or method of analysis. For faculty who use overhead projectors or computerized presentations, the same rule applies, unless you find yourself mindlessly transcribing from wall to notes without thinking. Many professors now post or photocopy their computer presentation slides so that students can listen, think, and discuss during class without fear of losing important points.
10. Review your notes within twenty-four hours of class. Highlight key terms with colored pens or by summarizing key terms in the margins. This helps you retain what you are learning (we forget about 60% of what we learn within the first 24 hours if we do not review it).
Students are understandably upset that the questions that they have been asked in class all semester will not appear on the final exam in most classes. As one commentator observed: “Most importantly, as many authors report, it has become apparent on several levels that professors do not test what they teach, as often during the first year curriculum they “teach by the case method and actually test by the problem method.” Typically, first-year law students are greeted in the first weeks of school with massive reading assignments of appellate court opinions (the standard Case Method) followed by class periods which engage in some form of Socratic dialogue regarding those cases. At the end of the semester, although taught by the Case Method system, typically they are presented with the standard three-hour exam with loaded fact patterns providing complicated legal problems for which they have received little or no explicit training.”
Does this mean that attending class is worthless? On the contrary, class attendance and participation can be excellent preparation for the final exam. What this observation does mean, however, is that you need to understand what it is that you are trying to get out of class. You are trying to understand the rules of law in the cases — not the cases themselves– and learn how you might use these rules. (Think “tools of law” not “rules of law” and you will be further ahead). Organize your class notes and your thinking around these rules, doctrines, elements, issues and arguments rather than around the cases. Look for connections among the cases to discover further doctrines, policies, exceptions and the like. Think of each case as a sample exam question. The facts of the case are like the hypotheticals you will receive on a final exam question. The rules developed in the case are the rules you will be applying on a final exam. Critically observe the court’s “answer” to the “question.” Beware: some opinions would not earn high grades as exam answers.
While you can do all of this analysis in class without ever speaking a word, I do encourage you – and urge you to encourage each other – to actively participate. Participating in class forces you to listen more closely, improving your comprehension. It is also crucial job training. As a lawyer, you must frequently speak before other people and you will always need to be able to listen to others. Now is the time to develop and refine these skills. If you make mistakes now, only your ego suffers; errors later may cost you clients, cases, or your job.
Much of what you are asked to do in class is present an analysis of the law — its application to new factual hypotheticals. Practice this skill, particularly in writing, as often as possible. It is critical to your success.
STEP ONE: Read the facts. This is the DESCRIPTIVE phase of your analysis. Be sure you know your client’s case (the facts of the problem). Read closely and carefully. Draw inferences from the facts (most matters of motivation, causation, or alternative choices are inferential). Think about alternative inferences that can be drawn. Be aware that vague, conflicting and incomplete facts are normal in the real world. Identify your client’s goals. Be sure you have asked the six basic questions about the facts presented: What? Where? When? How? Why? Who?
STEP TWO: Next comes the critical questions for identifying issues: So what? Survey your checklist of rules that might possibly apply to resolving your client’s problem consistent with his or her goals. Brainstorm as to all possibly applicable rules… Don’t eliminate potential rules too quickly.
STEP THREE: Analyze how the applicable rules apply to your client’s facts. Identify those rules or aspects of rules that provide a clear outcome or solution and note these briefly but do not spend time engaging in extensive analysis of “givens.” Identify those rule or aspects that are, after analysis, irrelevant because they will not affect the outcome significantly.
STEP FOUR: Identify those rules or aspects of rules that create issues when applied to your client’s facts. AN ISSUE IS SOMETHING TO ARGUE ABOUT. Recall from case briefing that there are three kinds of issues: “what are the facts”, “what is the law?” and “how does the law apply to these facts?” To find these issues, look for gaps or conflicts in the law.
A. Sometimes more than one rule might apply. For example, in determining the specificity with which to require pleading a statutory action for securities fraud, does one apply rule 9 of the Federal Rules of Civil Procedure (“fraud must be pled with particularity”) or only the general standards of rule 8 (“pleadings shall contain a short and plain statement of the case”)?
B. Sometimes there may not be a rule. For example, there is no guidance in the Federal Rules of Civil Procedure regarding whether a complaint must be typewritten. (There may be local rules on this, however.)
C. Sometimes the rule provides only general guidance. Many rules in the law are stated in general terms such as “reasonable” or “timely” — interpretation of these terms is left to individual cases.
D. Sometimes there are conflicting judicial interpretations of the same rule.
STEP FIVE: Separate issues and sub-issues and organize them in a logical progression. For example, you may determine that there are two main issues. The first question is which rule applies. Having resolved that issue, however, you still may have an issue about how one or the other of those rules applies to the facts.
STEP SIX: Create arguments about what the rule means and how it should be applied to these facts.
A. Purposive Interpretation vs. Formalist Interpretation
1. Formalist: Define the term at issue without reference to context or purpose. Some sources for definition of a word include: grammatical arguments about the meaning in context; dictionaries (“plain meaning”); legal dictionaries; the statutes or rules; the legislative history of drafter’s advisory notes; the use of the word in other rules or other areas of law. When the source of law is common law, a formalist interpretation of a case looks at the legally significant facts of the precedential cases and compares the client’s facts to identify differences or similarities.
2. Purposive: Conceive the purposes behind a rule and define your term in light of those purpose(s) (There are ordinarily several, often conflicting, purposes that one can conceive for any given rule). Some sources for deriving purposes include: the rule or statute; the legislative history (advisory committee notes); judicial statements of the purpose; or your own imagination.
B. B. Broad Rule vs. Narrow Rule
1. Narrow rule: If a rule, read the language of the rule to apply to as narrow a fact situation as possible (using one of the interpretation techniques in A), then argue that your facts fall outside that narrow interpretation. If a judicial precedent interprets the rule, read the interpretation of the rule as necessarily and narrowly connected to the facts of that precedent.
2. Broad rule: If a rule, read the language of the rule to apply to as broad a fact situation as possible (using one of the interpretation techniques in A), then argue that your facts fall squarely within that broad interpretation. If a judicial precedent interprets the rule, generalize each of the facts in the case as broadly or generally as possible.
STEP SEVEN: Create arguments about how the rule should be applied in this case.
A. Five Types of “Policy” Argument
1. Arguments about judicial administration: Categorize the interpretation that you are advancing as one that is firm and predictable or flexible and open-ended. Then create arguments as to why the firm or the flexible rule is needed for the purposes of future application of the rule (often stated in terms of predictability or fairness)
2. Arguments about institutional competence: Argue that the application or interpretation of the rule at issue is or is not best decided by a particular institution (e.g., courts, the legislature, the executive, etc.). A good example of this argument is Chief Justice Rehnquist’s opinion in the Leatherman case. Courts are not competent institutions to create new categories of specificity requirements. That task is best left to the Congress because they have the greater (ability, legal or political authority, resources, etc.) to address this task. An equally powerful argument could have been made that courts are especially well suited to the task of interpreting the applicability of Rule 9. For example, courts see the cases that are most often brought for improper purposes, in vague general language, that have especially detrimental impacts merely by the filing of the complaint. Congress has allocated rule making authority to the courts (the Rules Enabling Act) thus recognizing this superior competence and authority.
3. Moral arguments: These are the arguments we often make in everyday argument or in political discussions. Morality can encompass a broad variety of value-based judgments, whose sources can vary from religion, culture, history, etc. One example: Form v. Substance Making moral decisions on the “formal” classification of the dispute (two “disputing parties”) vs. Making moral decisions on the “substantive” relative social power of the “people” involved (a pro se, civil rights plaintiff and the government). For example, in Conley v. Gibson, the United States Supreme Court said that the pro se prisoner bringing the civil rights claim should not have his complaint dismissed unless it could not state a legally enforceable claim, regardless of the clarity or simplicity of the complaint.
Morality as Form: Why should a pro se litigant be given a special rule regarding the interpretation of his or her complaint under rule 12(b)(6)? Pro se litigants can choose to have attorneys assist them (pro bono or contingent fee attorneys are available for those who cannot afford representation). If they choose to clog up the legal system by forgoing this representation, they should not be given any greater advantages than others.
Morality as Substance: Why should a pro se litigant suing the government (who may view attorneys as part of the “system” and thus not trust them, even if they could afford them) be held to the same standards of pleading as those who have the benefit of expensive, well trained lawyers. Especially in actions against the government, individuals should have the right to address their grievances individually and not be foreclosed by strict procedural rules.
4. Deterrence or social utility arguments: These arguments are based on the effect of the rule on behavior.
5. Economic arguments: Phrase the argument for application of the rule in terms of a cost – benefit analysis (factoring in whatever you wish to characterize as a “cost” or a “benefit”) and argue that the rule to be applied should be one that in its application over the course of time should mirror the same decisions that individuals or institutions would make were they to engage in this analysis. If you find this listing of forms of argumentation useful to your understanding of law, you may want to read Richard Michael Fischl & Jeremy Paul, Getting to Maybe: How to Excel on Law School Exams (Carolina Academic Press, 1999).