Special thanks to Janet Madden, Director of the Academic Support Program, for the following materials. Briefing Cases
Students sometimes ignore their professors’ advice to brief all the cases in the assigned reading. Preparing case briefs is time-consuming, but it is time well spent. Briefing trains you to read cases closely, to thoroughly analyze the legal issues, and to distill cases down to their essence. Additionally, your case briefs are an essential guide when you are called on in class, and they can form the skeleton for your course outline.
Why Should I Brief?
Briefing helps you extract what is important from the cases.
Briefing hones your analytic skills.
Briefing prepares you for class and serves as an excellent tool to help you survive when your professor calls on you.
Your case briefs, along with you class notes, form basis from which you create the study tools (outlines, flow charts) that prepare you to take exams.
What Should Go In A Brief?
Caption. Case name and citation (indicating court that issued the opinion). Don’t forget the date. Noting the page on which the case appears in your text can be helpful to you if you need to refer to the full case later.
Facts. Include all facts relevant to the outcome of the case and helpful background facts that put the dispute between the parties in context. Keep the fact section short, and capture the facts in your own words.
Procedural History. How did the case progress through the lower courts?
Issue. This is the question the court must decide to resolve the matter before it. Usually, the issue is stated after the facts section and is signaled by “the issue presented is,” or “the question before the court is.” A case may raise more than one issue.
Holding. The holding is the answer to the issue presented. If there is more than one issue, there may be more than one holding. The holding may be signaled by “we therefore hold that,” or “the opinion of the court is...” When framing the holding and rule, be careful not to frame them too broadly or too narrowly.
Rule. The court applies a rule of law to the facts to reach its holding. It may apply more than one rule. Sometimes, it applies an existing rule; other times, the court articulates a new rule. Sometimes the court tells you explicitly, “in this case, we apply the following rule.” Other times you need to figure out what the rule is using logic: what rule must the court be applying to reach the holding? Watch out for dicta – statements made by the court that do not relate to the question actually before the court.
Rationale. The rationale explains why the court reached its decision. The rationale applied in one case can be used in analogous cases. The rationale may include both legal and policy arguments, and it may be explicit or implicit. Take note of the justice issuing the opinion.
Concurring or Dissenting Opinions. Sum these up briefly and take note of the justice who issued the opinions. Whose opinion do you find most persuasive, and why?
Disposition. Note the final resolution of the case. Was the lower court decision affirmed, reversed and remanded, overruled?
Adapt Your Brief To The Class: One Size Does Not Fit All
The contents of your brief should be tailored to what your professor thinks is important. Listen to your professor’s questions carefully to see the types of questions the professor asks about each case. Customize the contents of your brief based on the types of questions you anticipate your professor will ask. For example:
A civil procedure professor may ask detailed questions regarding the procedural history, so make sure you have the history clearly mapped out in your brief. However, other professors may gloss over procedural history, so summing up the history in a sentence or two will suffice.
If your professor often asks students to argue the case on behalf of the defendant or plaintiff, include viable arguments and counterarguments in your brief that could be asserted by each party.
When to Brief
Don’t try to prepare the brief during your initial reading of the case: you won’t know what’s significant until you have a general understanding of what’s going on. Read the case first, then go back, working through the case step by step, in order to prepare your brief.
Why “Canned” Briefs Don't Cut It
Many students will use canned briefs in lieu of preparing their own brief or, worse yet, in lieu of actually reading the case. This is a huge mistake. Canned briefs are notorious for getting the facts, holding, or other key parts of a case wrong. Professors will often ask questions that cannot be answered from a canned brief. Unless you have read and analyzed the court’s opinion yourself, you will not have the depth of understanding you’ll need. No one said law school would be easy.
Using The Case Brief As A Study Tool
Edit your brief after class to include and highlight important points discussed in class and to fix any errors.
Review your case briefs along with your class notes on a regular basis, at least every week.
As a memory tool, assign each case a tag line, for example, “defective wheel” for MacPherson v. Buick.
Consider compiling your case brief information into a cases chart organized by subject matter. For example, in a torts class, group all the Affirmative Duties cases together. Doing this helps you see how the case law in a certain area evolves and how differing facts can affect the outcome. Knowing these nuances will help you on the exam because you will be able to use the cases to make arguments as you analyze the novel fact patterns that appear in the exam.
In addition to making charts to help in mastering case names, consider making a three by five flash card for each case you read, containing a condensed version of your brief. Quiz yourself on the cases on a regular basis. These techniques are especially helpful when you have a professor who finds familiarity with cases and judges important.
Time ManagementTime management may never have been an issue for you before now: you could always pull everything together a week before finals and do just fine. Most students find that law school is quite different, requiring sustained and efficient study plans. You may need to experiment with new approaches.
Self-Assessment:
Take an honest inventory of what you know works and doesn’t work for you. When is my brain at its sharpest? (For most people, it’s in the early morning.) Do your hardest reading then.
How long does it take me to read and understand a given segment of text?
How long does it take me to brief a case?
Where do I study best? (Be honest!)
What study methods and study tools (Flash cards, outlines) really work for me?
What things distract me from studying?
Make A Study Plan, And Stick With It Long Enough To Give It A Chance To Succeed
You need a method to control the study madness. Create a study schedule and series of goals to help you stay on track with assignments. This will help you keep your expectations realistic as to the amount of time needed for a particular week’s assignments. If a study plan is not working for you after you’ve given it a good try, change the plan. The goal is not necessarily to study more, but to study more efficiently!
Consider investing in a pocket calendar that will allow you to both write a plan for each day and also create weekly and monthly plans. Keep your planner with you.
Weekly Study Schedule
Look at assignments for the week and estimate time to complete each
Block out time to complete each assignment
Block out time to review notes
Block out time just before class to review briefs for class that day
Factor in time for assignments that take longer than expected
Schedule time for leisure activities and exercise.
Set a time each day that you will STOP studying
Set study goals for each day
Semester-Long Study Schedule
Get the law school’s academic calendar and block out holidays, designated study days, and exam days.
Look at the syllabus for each class and record deadlines, especially for your Lawyering Skills I assignments.
Set a deadline to start working on outlines
Set a deadline to have outlines complete
Block out time for practice exams
Block out days for drafting writing assignments
Time Management Tips
Study in short segments. For most people, the optimal study interval is 50 minutes with a short 5 minute break between intervals. Don’t study for more than 3 hours at a stretch. Plan a long break every day (1½ hours) to refresh yourself. You’ll retain less of what you’ve studied in a marathon study session than short study sessions.
Take study breaks. Treat yourself to a fun activity (not law school related) when you finish a difficult assignment or project. This study break can keep you motivated, and it can be as simple as a fifteen minute coffee date with a friend.
Study where you won’t be distracted. Find a study place where you won’t be distracted by family, friends, pets or the phone and e-mail. Hang a “do not disturb” sign if necessary. Guard your study time jealously.
Say No! Do not allow yourself to become overloaded with outside activities that steal your study time. Especially during your first year, you must put studying first.
Don’t spin your wheels. If you feel like you’re not processing what you’re studying or your mind is wandering, STOP and take a break or switch subjects. Stop studying if you become frustrated or sleepy.
Study on the go. Make use of otherwise wasted time (e.g., driving time, short breaks between classes). Listen to study tapes when you’re driving or study some flash cards during waiting periods.
Be systematic with your review. Students that leave review until the end of the semester are often overwhelmed by how much they need to learn. Systematic review is the key. Review cases before and after class and review your class notes on a daily or, at the very least, a weekly basis. Schedule study group meetings to provide review. Systematic review will greatly improve retention and may actually save you time because you will be able to understand new material more readily, and your outlining and exam preparation will go much more smoothly.
Track your study time. On your weekly study schedule, honestly keep track of the amount of time you spend studying each subject. Tally your total studying hours for each class for the week. This will help you in estimating the amount of time it will take you to complete future assignments and projects so that your weekly study plan can be realistic.
Treat law school like a full-time job. Come to campus for class and stay on campus. Study between your classes instead of running back and forth to your house. The more studying you get done during the day, the more free time you’ll have at night.
Eat well and exercise. Eating well and exercising will keep you energized. It will also help keep you focused and mentally alert.
Find Balance. Law school will no doubt require you to change your life style and make sacrifices; but don’t give up everything you enjoy. Keep time in your schedule for family, friends, exercise and recreation. Keeping a good balance will help you remain alert, productive and feeling positive.
Make time for adequate sleep. Be realistic about your sleep needs, and schedule sleep into your time management plan. Set a fixed time for rising and going to bed each day. A good night’s sleep is key--without it, you put your health and sense of well-being at risk and substantially undermine your ability to think analytically.
Stress ManagementStress has been defined as the physical and emotional reaction people experience whenthere is a disparity between the demands on them and their ability to meet or cope with these demands.
- Most students experience some degree of stress during law school.
- Normal stress can serve as a catalyst for change and can lead to personal growth.
- But stress can easily get out of control and make you quite miserable.
Things You Can Do to Help Manage Stress
Develop a plan for
time management.
Hold realistic expectations.
Exercise.
Get enough sleep.
SEEK HELP EARLY if stress is making you unhappy:
See Janet Madden to work on a time management plan. (260-2293)
Call the Counseling Center. (260-4655)
TAKE A TEST TO SEE HOW WELL YOU ARE MANAGING STRESS:
http://wellness.uwsp.edu/Other/stresshttp://www.wellsource.com/demo/qc/mstress/msquiz.htmSucceeding in Law SchoolYou all have been successful students as undergraduates (otherwise you wouldn’t be here). Law school often brings new challenges and strains because success requires you to call upon a different skill set than you may have used before. You can adapt and succeed by starting off with a good plan.
OVERVIEW: Maintain balance; Be prepared for class; Attend class faithfully; Review regularly; Join an effective study group; Visit your professors and study group leaders; Create your own study tools and outlines; Take practice exams; Manage your time wisely; Seek help if you need it.
Maintain Balance
You can no longer take your physical or emotional health for granted. Although you will be spending most of your time on classes and studying, you need to set some time in your schedule for family, friends and other important outside activities.
Do not cut down on the amount of sleep you need to feel good.
Eat wisely and regularly.
Make sure you have health insurance.
Schedule time for fun.
Make time for exercise.
Be Prepared For Class
You should expect to spend 2 to 3 hours of time outside class for every hour you spend in class. You may find the material very difficult and confusing at times, but this does not mean you are stupid. After struggling with the material, ask for help from your professor and from your study group. If, after spending three hours on an assignment, you are still very confused, it is time to move on; do not sacrifice your other subjects or your sleep time. You will probably never feel completely prepared for any class. No matter how well you have prepared, a good professor will be able to challenge you further with new approaches. You are being taught, among other things, to tolerate ambiguity.
Read the assignment closely.
Brief cases (don’t use canned briefs as a substitute).Watch those note cases.
Review your briefs right before class.
Go To Class
The student who has a pattern of missing classes is in trouble. As an undergraduate, you may have been able to cut class and still do well. Law school is different! Class discussion can give you insight into how the professor approaches key concepts, what the professor thinks is important, and what you might expect to see on the exam.
Most students do better to sit in the front half of the room; if you can’t (or prefer not to) sit there, be especially careful to keep yourself focused.
Take effective notes. Try using a laptop to take notes. (No playing solitaire!)
Contribute thoughtfully to class discussion.
Listen actively.
Hang out for a few minutes after class if the professor stays to field questions
Review Regularly
Many students skip this vital step. You should build the review process into your study schedule. Some students find it helpful to update their course outlines on a weekly basis as well. The important thing is not to leave your review process until the end of the semester because there is so much complex material to master that you simply cannot cram for exams. You may think that you do not have time for this step, but time spent on review can make your regular studying go faster because you will understand the subjects better.
Take time each day to review the notes you took in class that day.
When you are preparing for class, take a few minutes to review the topics your professor just covered before moving on to study a new topic.
At the end of the week, take time for to review what you did that week in each class.
Join an Effective Study Group
Even if you have always studied on your own until now, you should plan to study some of the time in a group during the first year of law school.
Try to keep your group small: two to four members is plenty
Do not worry whether the other members of your group are “smart” or “dumb”
Look for partners that will contribute a proportionate share of the discussion
Look for partners who are compatible with you in terms of academic goals and work habits
If a group is not working for you, leave
Visit Your Professors And Study Group Leaders
Each of your professors, and their respective study group leaders, will announce office hours. Take advantage of this opportunity to increase your understanding, especially if you are having trouble in a particular class. Although at times you may wish you could fade into the woodwork, the fact is that getting to know your professors—and getting them to know you—outside of class can help you in many ways. When you go to see a professor, try to come with fairly specific and well-formulated questions. The process of trying to formulate your questions will prepare you to get more out of the conference.
Create Your Own Study Tools; Use Commercial Study Aids Wisely
Although completed outlines serve as an excellent study aid, the greatest benefit of an outline is the process of creating it. In the course of creating the outline you must take the chaotic and voluminous course materials and reduce them into an organized and concise study tool. It is through this process of manipulating the course material that you learn. While canned outlines and briefs can offer you an “easy fix” and a surface level knowledge of the material, you are cheating yourself out of the in-depth mastery of the material you need to ace the exam.
Take Practice Exams
Most professors put prior exams on reserve in the LRC, and some can be accessed through the LRC website. It is imperative to get a copy of prior exams for each of your professors and that you take these practice exams. The more practice exams you take, the more comfortable you will be at exam time because you will have written on the issues before, gauged how much time it takes to address certain issues and developed a plan of attack for the essay exams.
Take the exams under exam conditions. (You can start by practicing under untimed and open-book conditions to gain confidence.)
Critique your practice exam answers – exchange answers and discuss them with a study partner
Watch for additional practice exams materials from study group leaders.
Manage Your Time
Put law school as a top priority during your first year so you can focus on doing academically well. You will have more time for outside activities during your upperclass years.
Make a study schedule and keep to it
Use scheduled study time effectively – get rid of tempting distractions
Don’t miss a deadline – it will cost you. (Late penalties can result in a low pass in Lawyering Skills I.)
Seek Help If You Think You Need It
Don’t wait! At the first hint that you’re struggling, seek help. Don’t be brave and silent! Ask for help from: upperclass students, Janet Madden, your professors, study group leaders or mentors, the USD Counseling Center. You have many resources available to you – use them!
The Socratic MethodSay goodbye to the good old undergraduate method in which professors spoon feed the material to students through lectures. In law school, professors use the Socratic Method, requiring students to distill the information themselves.
What is the Socratic Method?
The professor (like the Greek philosopher Socrates) will pose a sequence of questions, leading you to think through legal concepts and problems. As painful as it may seem, the Socratic Method can teach you to analyze cases, reason by analogy, think critically about legal arguments (yours and those presented by others), understand the effects of the law, and perceive underlying social policy. The experience of answering probing questions under pressure also builds confidence and prepares you for your future as an attorney.
Common Socratic Method Questions
Recite the facts, issue, holding and rationale of a case
How does the holding of this case affect the XYZ case that we talked about yesterday?
Does this case overrule XYZ case?
Do you agree with the holding of this case? Be prepared to explain why.
Hypotheticals based roughly on the facts of the case
Present a counter-argument to one presented by another student
Active Listening
Even if you’re not the one in the hot seat, pretend that you are. Really listen to the question posed by the professor and think about how you would answer the question. Take note of where the professor guides the discussion. This will shed light on what the professor thinks is important.
Taking Notes
Consider using a laptop to take notes.
Be organized – maybe use bullet points or outline format.
Use headings – case name or issue.
The questions are often more important than the answer given by the students.
Be selective when taking down answers of other students – does it seem responsive to the question, does it sound right or is it way off base?
If on the off chance the professor does lecture, get as much down as possible because you’re likely to see it on the exam.
You’re in the “Hot Seat”!
STOP taking notes – you can get them later from a classmate
NEVER try to respond to questions if you haven’t done the reading – admit it, take the heat and hopefully the professor will move on
Talk a deep breath and remain calm
Be prepared to recite facts, issue and holding of a case – your brief is great for this
Listen to the professor’s questions or hypotheticals (sometimes these come from note cases)
Don’t allow yourself to become paralyzed by fear of giving the wrong answer
Think of it as merely a dialog between you and the professor; try to block out the fact that the rest of the class is looking on
Preparing for Class
After a few classes, you’ll get a feel for the types of questions a professor asks during class. Armed with this information, you can read your assignments with an eye toward these types of questions and prepare for them ahead of time.
Calm Those Nerves!
It’s the rare student who enjoys being called on. Much of our anxiety stems from fear of embarrassment, fear of giving the wrong answer or looking stupid in front of one’s classmates. Remember that everyone else in class is thinking, “thank goodness it wasn’t me.” It’s a waste of time to be concerned with what other students think of your performance: many aren’t listening anyway, and those that are will likely not have a lasting memory of the incident. Thus, giving a “wrong” answer or not performing as well as you would have liked is not the catastrophe that you think it is. Also, remember that grading is anonymous, so your grade does not depend upon your performance in class. Even if the professor gives push points, they’re generally based on whether you were prepared and could contribute to the discussion, not so much whether you gave “brilliant” answers in class.
Forming Effective Study Groups
Study groups aren't for everyone. However, a majority of law students find that participation in a study group, at least at some level, is helpful: you should definitely try one out. Whether to join a study group is a personal decision, and if you do join a study group, how that group functions is also at the discretion of the group members. The group should be flexible and tailored to suit the group's unique needs.
WHY JOIN A STUDY GROUP?
The group provides comfort and security.
Members can motivate and learn from each other.
Talking through material helps with understanding and retention.
Groups can generate different points of view and novel arguments that you might not come up with on your own.
You can easily miss or misunderstand subtler points; an effective group can keep its members on the right track.
WHAT MAKES A STUDY GROUP EFFECTIVE?
A study group is most effective when all the members have a common goal which they are working together to reach. The parameters of the study group should be set based on the group goals. The following guidelines can help ensure that your study group is effective:
Set goals for each meeting.
Set a regular meeting schedule and stick to it.
Keep socializing to a minimum.
Keep the meetings focused.
Require that each member come to the meetings prepared.
WHICH STUDENTS SHOULD I SEEK AS PARTNERS?
Look for classmates...
Who are well-prepared for class;
Who listen well when others talk (and don't dominate discussions);
Who share your academic goals;
Who have similar study schedules.
WHAT SORTS OF THINGS SHOULD WE DO IN OUR GROUP MEETINGS?
There are no hard and fast rules about what should take place during a study group meeting, but the following activities are typical:
Discussing material to review what students have covered in class;
Discussing upcoming new material to prepare for class;
Exchanging outline ideas (but don't exchange the outlines themselves until you've made your own first);
Taking practice exams;
Reviewing and criticizing each others practice exam answers;
Exchanging study tips;
Helping to keep each other motivated.
STUDY GROUP DON'TS
Don't allow the meeting to become a social or gossip session.
Don't use the group to share the workload. You need to brief cases and create study tools on your own, although it's good to compare with others when you ' re done.
Don't allow the group to become a substitute for individual learning.
Don't allow the group to become too large. (Each member needs to contribute.)
Don't do all your studying in a group setting.
DON'T STAY IN A STUDY GROUP THAT IS NOT WORKING FOR YOU!
Outlining (Creating Study Tools)The student's development of an outline is not merely an act of summarizing or synthesizing. It is a process of creative intelligence by which (the student) must force the material of the course into a coherent, organized, meaningful form.
-Arthur Vanderbilt
Outlining may not be the best term to describe this process: your study tool may look more like a flow chart or a set of flash cards or a combination of different organizing tools. It's the PROCESS of synthesizing that readies you for the final exam.
Why Outline?
It enables you to condense and organize a semester's worth of disheveled course materials into a manageable tool that you can understand, study, and memorize.
The process of reviewing and manipulating the course materials helps you master the material.
Preparing an outline forces you to think about the concepts, theories, and rules.
When to Outline
Some students outline weekly; others outline after the completion of each chapter or concept. Do what works for you, but whatever you do, DO NOT PROCRASTINATE. You may use differing approaches for different classes.
Once you begin your outline, keep up with it: set outlining goals.
Reserve time slots in your study schedule specifically for outlining: outlining takes longer than you may think.
Your outline should be complete by the start of the exam study period.
Outline Format
There are no format rules. Experiment to find what works for you.
Before selecting a format, think about the course material as a whole and consider the most logical and organized way to present such material.
Don't know where to start? Consider looking at the table of contents in your case book for ideas on how to organize the material. Use the headings in the book and fill in from your class notes.
Consider whether the exam will be open or closed book. For closed book exams, make the outline short enough to memorize. For open book exams, try a beefier outline with a table of contents, key word index, or tabs so you can quickly navigate the outline during the exam.
The format should help you analyze legal issues and create a framework for legal arguments.
Break concepts down into elements.
Organize by topic, not by cases (classify and synthesize the cases into groups).
Use cases and class hypotheticals to illustrate concepts.
Outline Essentials
The outline should contain:
All key points from every class
Every important case B not the whole brief, just key points from the brief
Don't forget note cases mentioned in class
Every rule of law, with variants, exceptions, minority/majority splits
Every legal theory and doctrine
Policy considerations (crucial for some professors)
All arguments and ideas learned during the semester (consider arguments for both sides of every issue)
Professor's buzz words, key phrasing
Anything the professor wrote on the board
Exam tips and strategies. (You can work out ahead of time what steps to go through in analyzing a given issue. This is an "attack sheet." )
Important hypotheticals from class.
Some Typical Outlining Mistakes
Failure to create your own outlines. (Wholesale reliance on commercial outlines or outline-swapping do you a disservice: you will not gain the in-depth knowledge of the material you need to do well on the exam. )
Failure to start outlining until November (or April).
Creating an outline that is too lengthy to commit to memory. (If your outline is unwieldy, try synthesizing a shorter capsule version that keys into the fuller version.)
Failure to break concepts down into elements.
Mastering the Study Tool BEFORE Taking the Exam
Memorize your outline; rehearse it as you would to prepare for a part in a play.
Use your outline to create other study aids: attack sheets, flash cards, flow charts, diagrams, tables or charts B whatever works for you. Each time you re-structure the material, you improve retention and understanding.
Use your outline while taking practice exams to reveal ways your outline is lacking so you can fix it before the actual exam, especially if the exam is to be open-book.
Taking Law School Essay ExamsOf course every professor is different, and each course is different too, but there is some general advice that students have found helpful in most essay exam situations.
Should I Use a Laptop or Hand Write My Exam?
This is a highly individual choice.
If you do not use a laptop to take notes in class, you should probably hand write your exam, unless you are a proficient typist.
If you're comfortable typing and are a fairly quick typist, you should consider using a laptop.
Decide early because there is a nonnegotiable deadline to register for laptop use on exams. Watch for flyers in your mailbox for deadlines.
Laptop risk: If your computer malfunctions during the exam, you must complete the remainder of your exam by hand. This may be a stress you're not willing to impose upon yourself.
Whatever your choice, take practice exams in the same manner you will be taking the actual exam.
What To Do First?
Read the directions carefully.
Count the pages of your exam to ensure you have them all.
Review the point allocation for each question and budget your time accordingly. Some professors will give time allocations. Stick to your time budget. You don't want to lose points because you didn't finish the exam.
Consider doing a quick “data dump.” Some students memorize a brief checklist of issues and immediately write this checklist on scratch paper when the proctor starts the exam. Spend no more than a few minutes doing this – it's just a reference tool for you.
Remain calm. If you find yourself becoming tense, stop and take a deep breath and refocus yourself.
Attacking the Questions – Before You Start Writing
Read the call of the question first. Are you writing a memo? Do you represent a particular party? Are you writing a judicial opinion? Are you looking for all the torts in the fact pattern, or just the torts of A against B?
Read the fact pattern once to get an overview.
Read the facts again slowly, highlighting key facts and issue spotting. Consider a third reading if time permits.
Some issues will pop out at you (and everyone else). Get the easy points with the obvious issues, but watch for those underlying, less obvious issues – these will score you the extra points needed to get your test score above the mean.
Scrutinize the facts – most facts will have legal significance. If you remove a fact, how does it change your analysis? If it changes things, then it's an important fact.
Rank your issues by importance and plan to spend the most time fleshing out the more important issues. The more important issues usually have more facts associated with them.
On scratch paper, briefly outline your answer; identify the issues and how you plan to address them.
Spend time preparing to write; for a one hour question, spend 15-20 minutes analyzing the issues and outlining (planning) your answer.
You're Ready to Write!
Use headings to separate your issues or identify causes of action.
Use IRAC format (Issue, Rule, Application, Conclusion). Focus on application – that's where the points are. (A few professors do not like the IRAC approach, at least not in its obvious form. Always be alert to what your professor likes).
Think of your reader as an intelligent lay person. Of course, your professor knows the rule, but your imaginary reader does not. You need to present the rule and its elements.
As a general rule, attack the issues in the order in which they appear in the fact pattern.
Argue both sides of the main issues. You can use the argument-counter argument format. “X will argue….However Y will argue…”
Remember those pre-prepared arguments you memorized; use all that are applicable under the facts.
Apply the law you learned in class to the facts of the fact pattern.
Writing Tips
Be concise. You don't have the time to be flowery or wordy. Stay focused.
If the professor permits, write on every other page and every other line, especially if your handwriting is poor. Your answer will be more legible, and you will have room to fit in any extras that you think of after you've written your answer.
Stay in the role assigned by the call of the question.
Write in the third person.
You won't make points with conclusory statements. The word “because” is your friend! Avoid being conclusory by forcing yourself to write “because” after your statements. Example: “Defendant breached his duty of reasonable care to plaintiff because he failed to post warning signs of the danger.”
Be organized to the extent you can be.
Use the professor's buzzwords and phrases.
What Should I do If I'm Running Out of Time?
If it's 5-7 minutes before the end of the exam and it's clear you're not going to finish your essay, stop writing. Finish your essay by outlining the remaining issues. If you have time, add some meat to the outline so the professor can see you recognized the issues, but didn't have time to write. You may get partial credit.
It's far better to allocate your time wisely in the first place.
The “Race Horse” Exam
In a race horse exam, issues will be coming out of the woodwork, and there is no possible way you can address them all in the time allotted.
Quickly list the issues you spotted and identify the “big fish” issues. Outline how you will attack those issues.
Address the “big fish” issues first, then the lesser issues.
Consider spending the last few minutes of the exam outlining the issues you spotted but didn't have time to address.
If the exam has more than one essay, be disciplined and stick to your time budget. The temptation will be to continue writing on the first essay until you have addressed all issues. DON'T DO IT! Any extra time spent on the first essay is time stolen from your second essay.
Remember, everyone is as crunched for time as you are. Remain calm and don't let the time crunch freak you out. You don't have time to freak out.
The “Thinker” Exam
In a thinker exam, the way to answer the question may not be obvious, and you will have to think about the answer for a longer time. Sometimes these are policy-related questions to which there is no real “right” answer.
Generally (not always), thinker exams will not involve a time crunch, and you will have plenty of time to formulate an answer.
Spend extra time outlining an answer for a thinker exam.
Often, the question will require you to take analysis done in class to the next level or explore the policy arguments.
Don't let the fact that the answer doesn't jump out at you freak you out. The answer isn't jumping out at anyone.
Exam Don'ts
Don't lose touch with your common sense.
Don't write introductory paragraphs, at least on horse race questions (there's no time).
Don't make up your own facts.
Don't discuss law not raised by the facts.
Don't make jokes.
Don't identify yourself.
Don't use the first person (“I think plaintiff will win).
Don't whine or apologize.
Don't leave the exam early. If you have extra time, reread the fact pattern to see if you missed any issues. You may be surprised.
Survival Tips for Taking the ExamExpect a certain amount of tension. The feeling is normal, and it can motivate you.
Cope with your tension through exercise and relaxation techniques.
Avoid last minute cramming. Avoid all-nighters that disrupt your regular sleep patterns: Analytic ability is affected by fatigue.
Think of the coming exam as the final, application step of your study process instead of as a threatening new experience.
Know the times of your exams and plan your sleep schedule so you will be at your most alert.
Arrive early, but not too early.
Have a plan of attack. (See materials on "Taking a Law School Exam.")
Be aggressive. Approach studying, and the test itself, vigorously determined to do your best with the information you know. Think of yourself as a star athlete before a big event. Keep yourself in good heath through adequate rest and diet.
Eat something sensible before the exam; you can probably hold down a bowl of cereal even if you are very tense.
Avoid over-dependence on caffeine or other chemical aids to study or to sleep.
Relax yourself during the test. If you notice you are not thinking well or you are very tense, pause, lay the test aside, and take several slow, deep breaths.
Ignore your classmates. If you tend to be distracted, buy and practice using ear plugs.
Beware of the post mortem. You will only succeed in raising your anxiety level.
If you become really ill, or if you have some other unforeseen crisis, do not take the exam! Call the Records Office to find out how to re-schedule.
Grades are Out – Now What?
Regardless of what grades you received, you must review your exams. This is one of the most valuable pieces of advice students receive in law school, yet many ignore it. Why? Students have lots of excuses, but none of them holds any water. Here are the most common excuses for not reviewing prior exams and rebuttal arguments to those excuses.
I'm happy with my grade.
Even if you got the highest grade in the class, there are lessons to be learned from reviewing your exam. There is always room for improvement. Reviewing your exam answer will help you pinpoint the areas where your analysis was strong and where it was not. You rarely remember what you wrote in an exam accurately, so it's necessary to go back and read what you actually wrote. Did your analysis sound strong? Was your answer as organized as you remembered it? Did you ramble?
I'm embarrassed about the grade I received, and I don't want the professor to know I did poorly.
Although grading is anonymous, after all the grades are in, professors get a list of their students' grades matched up with names, so your professor likely already knows how you did. Professors are impressed by students that are motivated to improve their performance. There is no shame in taking steps toward improving exam performance. Won't it be more embarrassing to continue making the same mistakes over and over again?
I don't have this professor next semester, so I don't need to know how to do better on his/her exam.
Regardless of whether you have this professor again, there is much to be learned from reviewing your exam. The lessons learned can be carried forward to all of your future exams, regardless of what professor you have. In addition, you may end up having this professor again when you're an upperclassman.
I know exactly what I did wrong on the exam; no point in reliving the nightmare.
Are you sure? You may be surprised by where you went wrong (or right) on an exam. The area where you think you totally bombed may not have been as bad as you thought. Remember, you're measured against how everyone else answered the same question – maybe no one had a stellar answer. There is no way to know exactly where you did well and where you didn't without looking at the exam. If you have misjudged your performance and where your strengths and weaknesses are, wouldn't you rather know that now, than after the next set of exams? This is the best way to start out a new semester on the right foot.
Questions Frequently Asked About Reviewing An Exam:
How do I arrange to review my exam? Check with the professor or his/her assistant to determine the exam review policy. Many professors will allow you to review your exam in their assistant's office. Then, after you have reviewed the exam, the professor will schedule an appointment to meet with you to discuss the exam.
What should I look for when I review my exam? If the professor marks points in the margins, pay attention to which paragraphs earned you points and which ones did not. This will show you where you were wasting your time and how you can better use that time elsewhere. Ask if the professor has a model answer. If there is a model answer, compare it, step-by-step, against your answer to see how your answer measured up. What issues did you get? Which did you totally miss? Which should you have given deeper treatment? Were there issues you discussed that were not in the model answer? Did you have problems with certain types of questions, such as multiple choice?
Should I meet with the professors? Yes. It is often helpful to talk to the professors to get an idea of what they were looking for and what they thought was important. Most professors will agree to review your exam before you meet to give you specific feedback on your exam. This feedback is invaluable. Take notes on this meeting.
Can I challenge my grade? Unless there is a mathematical error, all grades are final. Attempts to negotiate a higher grade will be futile. It is not unusual for students to feel angry with a professor or with the grading system in general if their months of hard work yielded an unsatisfying result. Just remember that the goal is to improve your grades in the spring, and feeling resentful may prevent you from understanding the changes you need to make. Now that you've reviewed your exams and seen what you did well and what needs improvement, you can begin to make appropriate changes in the ways you study for class and prepare for exams.
Class Specific Study AidsYou can access the class-specific handouts prepared by the learning assistants by using TWEN (The West Educational Network). (You can access other Academic Support materials, such as advice on study skills, through the law school website.)
Instructions for using TWEN.
Open your Internet browser and type
http://lawschool.westlaw.com/.
Click TWEN at the top of the
http://lawschool.westlaw.com/ home page. The sign-on page is displayed.
Enter your Westlaw password (e.g., 1234567abcd) or West OnePass username and password in the appropriate text box(es) on the left side of the page; then click GO. (If you do not have a Westlaw password, contact the Westlaw student representative.)
Click on the “drop/add a course” button in the upper right of the screen.
Check the box next to Academic Support Program, scroll to the bottom of the page and click “Submit.”
To use the Academic Support materials, click on the Academic Support page link.
Constitutional Law Study TipsLaw students sometimes find that learning Constitutional Law presents special challenges: there don't seem to be clear answers to some questions that are raised; there may not be many tidy black-letter elements to write down and memorize; and the class discussion sometimes seems inconclusive.
Students who have done well with this subject recommend you try some of the following techniques:
Always go to class , even if it is confusing for you. Be an active participant. You don't necessarily need to talk a lot, but you do need to be engaged mentally in the discussion. (Maybe it's time to turn off your laptop.)
Try doing some of your note taking ahead of time so you are freer to focus on the discussion. Write your briefs on the left hand side of the page, then jot down questions the professor raises or pertinent comments made by the professor (or by classmates) in the right-hand space.
Review your notes as soon as possible. UNDERLINE key phrases, buzzwords, anything the professor calls attention to. Look for themes, policies, trends . There certainly are rules, standards, and bright-line tests in Constitutional Law, but perhaps fewer than in some of your other classes.
Pay attention to individual justices (not so important in many other classes). Pay attention to dissenting and concurring opinions . Note the date of the opinion, and be aware of the historical context . (e.g.. Who was president?)
Go to office hours to engage the professor in discussion. Find out what the professor is interested in. (Check out the professor's law review articles.) If you are feeling lost, ask the professor if there is a recommended outside source that could provide some structure.
Even if you haven't worked with a study partner before, you may find one helpful in this class: seeing how to argue every side of each issue is important.
Checklist: How to Read a Rule or Statute Thoroughly1. Read through once to get the “big picture.”
For example, in reading a civil procedure code,
Ask, “What stage of trial are we talking about?” (Examples: Discovery, Summary judgment, post-trial)
Ask, “What kind of procedure are we talking about?” (Filing a motion, submitting discovery, initiating a proceeding)
Try to imagine a situation when you might look to the rule.
2. Look for words that suggest a “fuzzy standard” that can be further explained by case law, such as:
“Reasonable”
“Good cause”
“Substantial”
3. Look to your note cases to see if any of those “fuzzy standard” words are further defined or explained by the courts.
4. Circle every “may” and “shall” that you see to find whether the action is mandatory or discretionary . The distinction could be hugely important!
5. If the rule contains a list of any kind, figure out how the listed items are related. Are they:
Factors the court may consider and balance ?
Elements that must ALL be present in order for the court to act? (Look for “and.”)
Items which, each taken individually, provide grounds for action? (Look for “or.”)
6. For each clause, imagine the rule in use.
For particularly confusing sections, invent a hypothetical and apply the rule to it, determining the outcome when the rule is applied.
Sample student outline- Prof. Alexander’s Criminal Law class
CHAPTER 8 PRESUMPTIONS
8.01 The Nature of a Presumption
8.02 Mandatory Presumptions
[A] Rebuttable Presumptions
· Unconstitutional if presumed fact is an element of the crime
· Sandstrom v. Montana
· Shift to D the burden of proof regarding an element
[B] Irrebuttable (“Conclusive”) Presumptions
· Unconstitutional if presumed fact is an element of the crime
*** Though mandatory presumptions are unconstitutional, legislature can achieve same effect by rewording as an affirmative defense
8.03 Permissive Presumptions (“Inferences”)
· Constitutional if presumed fact more likely than not flows from the basic fact
· County Court of Ulster County v. Allen
· Do not shift the burden of proof; D has only a burden of production
· Rationale: It is highly unlikely that D has an excuse/justification and cannot produce more than a scintilla of evidence in support ( permissive presumption does not lower the probability of guilt)
8.04 Model Penal Code § 1.23
· Does not allow mandatory presumptions b/c allows for affirm. defenses
· If the legislature wants to criminalize the basic act, they should do so
· Allows permissive inferences with appropriate jury instructions
CHAPTER 9 ACTUS REUS
9.01 Actus Reus: General Principles
[A] Definition: (1) a voluntary act (2) that causes (3) social harm
· Some jurisdictions use the term to refer only to (1), others to (2)
[B] Punishing Thoughts: Why Not?
9.02 Voluntary Act: General Principles
[A] General Rule: with few exceptions, a person is not guilty of a crime unless her conduct includes a voluntary act, i.e. no status crimes
[B] The “Act” = bodily movement, muscular contraction
· Some scholars say muscular contraction itself must be voluntarily performed
· Most lawyers and the MPC [§ 1.13(2)] say an act is a muscular contraction which might be voluntary or involuntary
[C] “Voluntary”
[1] Broad Meaning: In the Context of Defenses
· D had sufficient free will to be blamed for her conduct
· Acting under duress or with a mental disorder is “involuntary”
[2] Narrow Meaning: In the Context of the Actus Reus
· An act produced by function of the human mind
· Involuntary acts: reflexive actions, spasms, epileptic seizures, hypnosis,somnambulism, automatism, St. Vitus Dance
· Voluntary acts: brainwashing, habits
[3] Voluntariness: At the Edges
[a] Hypnotism (Dressler)
[b] Multiple Personality (or Dissociative Identity) Disorder
· Confronted by few courts, but approach is to treat all personalities as one agent
[D] Voluntary Act Requirement: Rationale
· Criminal punishment should only be inflicted upon those who act as the result of free choice.
[E] Burden of Proof
· P required to prove BRD that D’s conduct included a voluntary act
· May be permissive presumptions that act was not, e.g., under hypnosis
[F] The Issue of “Time-Framing”
· P does not need to show that every act or last act was voluntary, conduct has to include a voluntary act; problem is that there is always a voluntary act if time frame is broad enough
· Problem of voluntary acts with no culpable choice (usually the point at which you start telling the story)
o Baker: speeding due to stuck cruise control
o Newton: possession of a loaded firearm when plane unexpectedly landed at JFK
· Time frame problem could be avoided by applying this rule: A person is not guilty of an offense unless her conduct, which must include a voluntary act, and which must be accompanied by a culpable state of mind (mens rea) is the actual and proximate cause of the social harm, as proscribed by the offense.
· Problem of deviant causal chains, e.g. St. Vitus Dance problem: basically comes down to whether “involuntary” act was part of plan
9.03 Voluntary Act: Supposed (But Not Real) Exceptions to the Requirement
[A] Poorly drafted statutes can appear to eliminate voluntary act req.
[B] Status offenses will probably be overturned.
· BUT it is constitutional to criminalize a certain voluntary act by a person of a particular status (e.g. felons cannot have guns) or to enhance punishment for persons of a particular status (e.g. Ronald Reagan problem)
[C] Crimes of Possession
· Interpreted to require a voluntary act, i.e. knowing procurement or receipt of contraband, or failure to dispossess self of contraband after becoming aware of its presence
9.04 Voluntary Act: Constitutional Law
[A] Robinson v. California
· Unconstitutional to criminalize addiction
[B] Powell v. Texas: no status crimes
· Constitutional to criminalize behaviors consistent with addiction
[C] Current Law: Powell in the Light of Robinson
· State may not dispense with requirement of an actus reus
9.05 Voluntary Act: Model Penal Code § 2.01
[A] General Principles
· § 2.01(1) “A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.”
[B] Exceptions to the Rule: violations
9.06 Omissions: General Principles
[A] General Rule
· With few exceptions, a person has no criminal law duty to act to prevent harm to another, even if the person imperiled may lose her life in the absence of assistance
· Criminal law system distinguishes b/tw an act that causes harm and the failure of a bystander to take measures to prevent harm
[B] Criticisms of the General Rule
[C] Defense of the General Rule
9.07 Omissions: Exceptions to the No-Liability Rule
[A] Common Law Duty to Act: “Commission by Omission”
[1] Overview
· D’s omission of a common law duty to act, assuming he is physically capable of performing the act, serves as a substitute for a voluntary act
[2] When There Is a Duty to Act
Sample student outline-Prof.Heiser’s Civil Procedure class
1. Collateral Estoppel/Issue Preclusion
-once a court has decided an issue of fact or law, that issue cannot be decided again by another court in later litigation
**Most jurisdictions(incl CA) follow Restatement §17 (3)
-judgment for D or P is conclusive w/respect to any issue actually litigated and determined if its determination was essential to that judgment
B. Preclusion Between the Same Parties
1. Claim Preclusion
Federated Dept Stores v. Moitie
p.1286
-US files action against D based on Fed antitrust act. 7 private individuals did also, all actions dismissed for not stating a claim. 5 appealed directly, but Moitie and Brown refiled in state court. Court said no artful pleading; they were functionally alleging fed claims and should be in fed court, but barred from fed court by RJdismissed. They then appealed. Meanwhile, US Sup court has reinterpreted requirements for COA in these cases so other 5 appeals now state a claim and remanded to trial. App court allowed a public policy/fairness exception to Brown and Moitie and let them go to trial too. Court: NO EXCEPTIONS to RJ. Even if judgment is wrong, still binding. Must be directly attacked on appeal. Public policy requires RJ itself, not exceptions to it, b/c there must be an end to litigation. RJ is a bright line rule. Parties cannot relitigate final judgments b/c it would be inefficient and potentially embarrassing to the courts.
Claim all rights to relief coming out of the same txn.
2. Primary Rights
Sawyer v. First City Financial Corp
p.1295
-Pl brought suit against D for breach of K. Then wanted leave to consolidate w/other fraud/conspiracy claim against them. Lower court refused to grant continuance to
consolidate b/c it would delay proceedings. When 2nd action (fraud) came to trial, TC said
barred by RJ. AppCourt: Here there are 2 Primary Rights that are distinct enough for 2 COA. Factual structure of each is very dif, so ea theory of liability can give rise to separate COA.
RULE: A single COA can not be split and made the subject of several suits.
RULE: In CA, several COAs can be joined OR brought in separate actions.
As long as they are separate COAs they are not preclusive.
3. Issue Preclusion
Tutuer Associates Inc v. Taubenesee
p.1307
-P alleges Breach of K. For seller to win, K had to be binding. In 1st suit court said there was no agreement to arbitration clause b/c K was formed by the PO which excludes other terms. In 2nd suit, Def says breach of K issue is precluded b/c issue of what terms were included was already decided to rule in 1st suit, seller can not relitigate what terms of K were. Court says dismiss b/c issue is precluded.
RULE: For Issue Preclusion:
1. Must be the same issue
2. Issue must have been actually litigated
-evidence is presented on both sides and parties are adverse
-consent and default judgments count as litigated even if not decided on basis of conflicting submissions
3. Issue must have been determined by the trier and its determination must be essential to the judgment
4. Party must have been fully represented/had full opportunity to litigate
Questions?
Please contact Janet Madden, room 117. (619) 260-2293.
madden@sandiego.eduAlso, check out Online Academic Support For Law Students at
http://academic.udayton.edu/legaled/online/index.htm.
