2 comments November 21st, 2008
Posts filed under 'Law'
Here’s a mnemonic I came up with after a couple of cocktails at Bourbon & Branch: The
- Plaintiff is the party with the burden of
- Proof, including, in a criminal case, the
- People (or other sovereign); they begin their case first (that is, in the
- Primary position), and they sit in closer
- Proximity to the jury box.
In addition, some of you 1Ls will be coming across cases involving the phrases “plaintiff in error” and “defendant in error,” for which you may substitute “appellant” and “appellee.” The plaintiff in error/appellant is the person complaining that the lower court made an error and thus filing the appeal, and the defendant in error/appellee is the one defending the lower court’s decision and against whom the other party filed the appeal.
Add comment September 12th, 2008
I’ve talked with a few friends recently about law-school supplements, and I decided it’d be a good idea to write down my ideas and impressions about where the different supplements are most useful. So here we go! (Well, after the jump, anyway.)
Law students are a compulsive, organized lot, and this shows in their study habits. The generally accepted way to study for law-school courses is by preparing a hierarchical outline of the course. (Erwin Chemerinsky, an eminent constitutional-law scholar and my con law instructor from Bar/Bri, can lecture to his Bar/Bri outline from memory, and knows all the headings and their indices by heart. This degree of eideticism is, to say the least, extremely rare.) There are arguments for and against this practice, of course, but it’s popular for a reason.
In any event, there are also commercial outlines, ones prepared by business concerns for the law-student market. Also, some students decide to make their own outlines available to their successors by contributing to outline banks, maintained by student associations, journals, and even area copy shops. These can be useful for obtaining information specific to the course you’re taking, but the quality is far less uniform–some are excellent, some are terrible.
Gilbert’s might be the most popular series of commercial law-school outlines. They’re good, basic outlines, applicable to a wide variety of casebooks. (Virtually all commercial outlines will include correlation tables, by which you’ll be able to determine which pages of the outline correspond to which pages of the casebook.)
The Bar/Bri outlines are very similar to Gilbert’s, which makes sense as they’re both owned by the Thomson empire. However, they’re a bit condensed, which can be a good thing–once I acquired the habit of reading outlines before I went to the casebook, the Bar/Bri outlines were my go-to study aid.
(Alas, there is no series of supplements called “Sullivan‘s.” Note to self: investigate this; there may be an underserved market here. Consider setting outlines to music, and particularly, a patter song re. exceptions to the hearsay rule.)
Emanuel’s outlines are similar to Gilbert’s, but they’re from a different publisher and much more detailed. This isn’t necessarily a good thing–as a 1L, the last thing you need is more text to read–but it may well be your best bet if you’re unclear on a subject after you’ve read your casebook and a less exhaustive outline. Also, they tend to include a capsule summary at the beginning, which can be helpful.
Nutshells are another product of the West Group. Unlike the similarly-titled series from O’Reilly, they’re aimed more strictly at professionals. While Nutshell manuals exist for first-year subjects, they really shine in more specialized areas, where you might need to quickly get up to speed in a particular topic area after you have a general grounding in law. If you’re a 2L, 3L, recent graduate, or practicing attorney who needs to learn the rudiments of a given area of law quickly, the Nutshell books are worth a look. Most legal bookstores carry a wide variety of Nutshell manuals, which is an advantage.
First-year law students frequently learn by “briefing” cases, which means extracting the issue, rule applied, facts, analysis, and conclusion from a case and writing them down. Canned briefs are commercially-written case briefs for a given area of law, and usually a given edition of a casebook. They can be helpful for navigating a casebook, but I think they might be going a little far towards doing your work for you (although I’m more accepting of study aids than most). High Court Case Summaries and Legalines are examples, but the latter is more of an outline that follows a given textbook very strictly.
Hornbooks are named after one of the earliest forms of educational publications, a wooden paddle with a piece of paper attached to it, covered with a thin, translucent slice of horn. Modern hornbooks generally run somewhere between one and three hundred pages, giving law students a grounding in “black-letter law”–simple, point-blank statements of the law at is, without historical overview or factual backgrounds. In terms of IRAC, hornbooks concentrate quite strongly on the R and C half of the equation. There’s a good argument in favor of this approach, as reading cases and studying legal writing and research can teach you to spot Is and do A, and R/C is the part where you need to load the most substantive, as opposed to procedural, knowledge into your brain. In any event, I think hornbooks are nearly as popular as commercial outlines as study aids go, and possibly more useful.
Treatises and legal encyclopedias
Treatises are the burly sasquatch of the legal supplement world. They’re in-depth, exhaustively detailed guides to an area of law, used by students, academics, and practitioners alike. They tend to be extensive, multi-volume treatments; Corbin on Contracts and Moy’s Walker on Patents are examples. However, there are some treatises that only run to a volume or two, which tend to be the most valuable to law students (as well as the most capable of fitting into a student budget). Prof. Chemerinsky, mentioned supra, has a treatise called Constitutional Law: Principles and Policies that I found most helpful during my con law course.
The line between hornbooks and one-volume treatises is quite thin–some people consider Chemerinsky’s con law treatise an in-depth hornbook, and fewer (but still a noteworthy minority, and largely because it’s part of a series) consider Glannon’s Examples and Explanations for civ pro a short treatise.
Legal encyclopedias are similar, except that they tend to be organized alphabetically, rather than hierarchically, and to cover multiple areas of law, or even law in general. American Jurisprudence (AmJur) and Witkin are examples.
We’re getting somewhat far afield here, but I thought that these were worth a mention. Practice guides are very similar to treatises, but with a strongly practical bent, as befits their name. Essentially, they’re HOWTOs for prosecuting a suit or otherwise practicing in a certain area of law. If you’re wondering what a practicing attorney would do in the situation you’re in, this is the place to go. The Rutter guides are very well-regarded, especially in California; ask your law librarian in other jurisdictions.
Nontraditional study aids
At the risk of winning the Pulitzer for "Gee, Thanks For Telling Us That, Captain Obvious," the Internet has made it a lot easier for people to share information. This includes the information contained in legal study guides, a lot of which has ended up on Wikipedia. If you’re just having trouble with a small part of your course, or don’t know whether you want to commit to buying a printed study aid, try searching the Web for an outline or Wikipedia article on the topic about which you’re unsure. Just remember that there’s no guarantee of quality, and if you find something on Wikipedia that’s incompletely explained, log in and set them straight–it’ll do Wikipedia good for them to get better information, and it’ll do you good for composing your thoughts and writing them down, and in the process, learning the material much better. In fact, I can almost guarantee that if you substantially research and edit or write a Wikipedia article in an area of law, you’ll be essentially untouchable on that area of the exam.
There are a wide range of perspectives on supplements. Some regard them as a crutch for the lazy, others as an essential addition to the law-school curriculum. I tend to fall towards the latter end of the spectrum, but with the strong caveat that it’s important to be selective. Law students (and lawyers, and law professors) have a lot of text to read. More text is the last thing that you need, unless it earns its keep by being enlightening. Therefore, I recommend that you:
- Read ahead. Have a quick look at an outline before you read that day’s cases, so you have some idea of what’s coming and can organize your thoughts a little bit. Cases aren’t novels; you shouldn’t worry about spoiling the ending. In fact, you should worry about not spoiling the ending–you’ll absorb the case’s lessons better if you know what’s coming. (Spoilers: Ms. Palsgraf and Mr. Tompkins lose, but Mr. Miranda and the State of Washington win.)
- Read judiciously. As I mentioned above, you’ve got a lot of reading ahead of you. Don’t think that you need to read more to understand if you’re able to keep up. (However, I still think that scanning an outline ahead of reading the casebook will help. You’re not going for mastery, just a nodding familiarity.)
- Ask around. As every traveller knows, there’s no substitute for local advice. If you’re in the market for study aids, ask your classmates, students who have taken your course, and even your professors if they have any they’d recommend. I’d say that Glannon’s Examples and Explanations for civ pro and Chemerinsky’s con law treatise were the most valuable study aids I used in law school, and the former was recommended by a fellow student and the latter by my professor. (Also, many professors, especially those who have written textbooks, have written hornbooks or treatises as well–if you’re taking a course from the person who wrote the book, looking for a study aid they wrote couldn’t hurt.)
- Consider buying used. The law of contracts, property, and torts have changed very little indeed over the past few years, and even more rapidly-changing areas like con law and civ pro are still pretty stable, and the changes are easy to spot. I’ve even heard of people who have gotten by with an older version of the casebook, pulling whichever cases weren’t in it off the Web, Lexis, or Westlaw. I didn’t live that close to the edge, but as far as study aids, older ones are well worth considering. (Incidentally, the fact that I have a number of used study aids up for sale on Craigslist has virtually nothing to do with this.)
I hope the foregoing has helped. If you have anything to add, please comment.
Add comment August 22nd, 2008
And now I am going to e-mail this to all of you and then summon the flight attendant and demand the array of alcoholic beverages I so richly deserve.
–Neal Stephenson, Cryptonomicon
Well, maybe not an array of alcoholic beverages, but I figure I’ve earned a beer after eighteen hours of tests and moving to a new place immediately afterwards. A scalar alcoholic beverage, if you will.
I think it went pretty well, but it’ll be a full sixteen weeks before they tell me whether I passed or not. However, now that I’ve actually taken the bar exam, I have some advice for those who will:
- Before you take the bar exam, traverse the route you will take to get there. I don’t mean that you should look at it on a map or transit schedule or anything like that. I mean that you should start from the place you will wake up on the morning of the bar exam at the time you will leave that morning, and take the exact route you will take that day, all the way to the end–again, not to the train station where you’ll get off, and not to the point where you’ll drive by the place where you’ll take the exam–I mean that you need to walk to wherever you will take the examination, to the very seat if you possibly can. I did exactly this, although the security guards didn’t let me into the hall where I would take it (and the seats weren’t set up, nor did I know where I would sit). Actually, I did it twice. Two times. You might consider this to be slightly paranoid, but taking a professional licensure examination tends to have that effect on people, especially law students. Surprises are great, surprises are lovely, surprises are for amateurs. You are a professional, and professionals plan all the way to the end.
- Actually, if you keep that principle in mind, you will prepare pretty well for the bar exam. Prepare your clothes and everything you’ll bring to the exam the morning before, set at least two alarms to ensure that you wake up at the appropriate time (I used four, but I am a) a very sound sleeper (one time in college, a storm broke a six-inch-thick branch outside a window, but I had no idea until my friends told me the next day) and b) a bit paranoid as mentioned supra), and bring at least twice as much of any consumable supply as you think you’ll need for the examination.
- At my test center (the Oakland Convention Center), at least, they let us leave our bags in the hallway–you’re not allowed to take anything into the exam except for what’s on the approved list. This means that you don’t need to clean out your bag completely, because they’ll make you leave it in the hallway anyway. I didn’t really worry about things getting stolen, as there was a uniformed security guard and at least two proctors in the hallway at all times–your $529 does get you a fair amount of security. (And yes, it really does cost $529, and that’s just for the bar exam. Here‘s (4k PDF) a list of all the fees the State Bar charges you. By my calculations, I’ll have paid the State Bar $1,176 before I’m admitted–of course, as compared to law school, these costs are epsilon.)
- A corollary: if you need anything that’s not on the approved list for medical or other reasons, apply to the State Bar for accommodations. There is no charge, but you need to do it ahead of time. Bring the letter specifying the accommodations you were granted with you, and be prepared to show it to every proctor or other test official you meet for all three days.
- Do whatever helps to keep yourself relaxed during the examination. I paused to take a few deep breaths every once in a while and took a few walks around the exam room, other people probably had different rituals. I observed more than a few folks doing a few quick yoga asanas in the hallway.
- It overlaps a little with a prior statement, but keep yourself in good health. Eat decent meals, get some fresh air during the lunch breaks, and try to get a good night’s sleep. Don’t depend too much on chemical assistance for that last one, though–one of the Bar/Bri lecturers shared an anecdote about a person who took half a sleeping pill (her usual dose) one night, then the other half, then a second whole pill, and finally a third, six times the amount she usually took, before she fell asleep. She was extremely groggy the next day.
That’s all I can think up for now. Back to unpacking . . .
2 comments August 6th, 2008
Today is the first day of the California Bar Exam! I’m sorry I haven’t had time to post more, but preparing for the bar exam has left me so busy that I haven’t had much time to blog about it. However, I did want to share with you this sign that somebody posted in the elevator here:
There are worse send-offs than that, I suppose. Here we go!
1 comment July 29th, 2008
I apologize for the lack of bar exam posts–even though I wrote a lot of these before my bar review course started, I haven’t really had time to post them. If you read through this, you should understand why. Anyway, where were we? Ah, yes, talking about . . .
Admission to the Bar
Ok! You have spent three years at the law and, against all odds, have graduated from an accredited law school with your sanity mostly intact. Mazel tov.
But while you are a lawyer (one who is learned in the law), you are not yet an attorney (one who may represent another in legal matters). To become such you must be admitted to the bar of the jurisdiction in which you intend to practice. You’ve gone a long way towards this already, but there are a few more hoops remaining.
All jurisdictions in the United States require that you prove that you have the appropriate moral character to become an attorney. In California, proving this requires that you fill out a remarkably long form (846 kB PDF) with details of your criminal, credit, education, and employment histories, and that your fingerprints be taken for a background check.
Having done that, the real fun begins with
The Bar Exam
which is a comprehensive test of the basic areas of law that every lawyer should know. This is slightly different in every jurisdiction. In California, we take:
- The California Essay Exam, six essay problems much like most law-school exams
- The California Performance Test, two tasks that come with a statement of the facts, a library of documents to use in analyzing it, and a question asking you to draft some sort of document based on your analysis
- The Multistate Bar Exam, two hundred multiple-choice questions (as the name implies, this exam is given in many US jurisdictions–there are multistate essay and performance tests, but California doesn’t use them)
Each of these three parts is divided into two halves (one performance test problem, three essays, or 100 MBE questions), each of which takes three hours. The exam is given over three days, which is another way California is special–it’s usually just two. We do three essays Tuesday and Thursday mornings, one performance test on Tuesday and Thursday afternoons, and a hundred MBE questions during each session on Wednesday.
To put this into perspective, the average law-school final exam (which determines the student’s entire grade for the course) takes about three hours, except for courses with take-home finals and those graded on a final paper or project. In a typical term, most students will take between three and five of these during a period of a little more than two weeks.
Furthermore, Hastings has a provision in its regulations called the “48-hour rule,” whereby if a student has two examinations that start within 48 hours of each other, the records office will postpone the latter of the two to preserve that spacing.
The California Bar Examination is the equivalent of taking six finals in three days. It begins fifteen days from today.
So you can see why I might be under a little bit of stress at this point.
1 comment July 14th, 2008
So I posted about Phoenix Wright, Ace Attorney a while ago, and I recently found the game on Verizon’s hideously maimed walled-garden of a software site. I decided it’d be worth the $5 or whatever, and you know, it’s pretty fun! It’s definitely a true adventure game–there’s only one way to get through it, which makes the gameplay more like an interactive novella than a role-playing game–but it’s fun for what it is. The replay value is next to zero, though.
However, I’m actually writing about a website I came across earlier today, specifically that of the Japan Federation of Bar Associations. You may wonder what to do if you are arrested in Japan, but never fear! There are duty attorneys for times like this!
In truth, the protections that suspects get in Japan are markedly less than the ones in the States (for example, you can be held without charges for 23 days), and people are far less likely to take advantage of them. However, the fact that the organization that offers the duty-attorney service has a cute manga informing prospective clients of the service is just adorable to my Western eyes.
Anyway, this also goes towards explaining how the Phoenix Wright justice system could seem plausible. From the States, it seems ludicrously Draconian to have, for example, trials limited to three days or the insane burden-of-proof provisions you see in the game, but I think it looks slightly more reasonable in Japan. That said, it’s just a game, and I should really just relax.
Add comment July 1st, 2008
My youngest brother, Jason, will matriculate at Washington University in St. Louis Law School this fall, and I compiled the following advice for him as he sets out on his legal education. As the eldest of three sons, I sometimes say that I’m the guy who ended up beta-testing life–making mistakes so my younger siblings don’t need to. There are benefits and drawbacks to this, as there are to everything, of course. In any event, I hope the material after the jump is helpful:
- It’s never too early, nor too late, to get involved and network. Volunteer at CLE events, consider doing writing competitions, do informational interviews, and talk to strangers. A rudimentary degree of competence in schmoozing will help you a lot, and it’s the sort of thing that’s only earned through practice. (As Prof. Wagstaffe said to my class, most of your cases will come from people you have talked with in the past week.) On a more immediate note, getting a job, as I said, is largely a matter of luck. But you can make yourself luckier if you know more people–someone who knows fifty people will be ten times more likely to get a job than someone who knows five. You can manufacture luck, but it takes some time.
- Similarly: consider joining bar associations as a student–not just the ABA, but local, regional, and practice-area groups as well. There are zillions, including the Half-Norwegian (on the Mother’s Side) American Bar Association. (This is particularly applicable to Jason and me, as we are half-Norwegian (on our mother’s side), although past presidents have had ancestry ranging from half-Norwegian (on the father’s side) to African to Italian to Danish-Swedish.)
- Sign up for Bar/Bri your first year–you’ll lock in that year’s tuition (and yes, it does go up every year–not by a drastic quantity, but hey, you need that money a lot more than Thomson does), but more importantly, you’ll also get their 1L and upper-level outlines, more on which later.
- Course outlines, hornbooks, and study aids, whether commercial or prepared by other students, can help a lot. One of the downsides of law school in the US is that they make you get the principles of law from cases that you read, and for every plain-spoken O’Connor or methodical Posner, there’s at least one inscrutable Frankfurter or some long-dead judge who clerked for Moses and must have gotten paid by the dependent clause. While it’s important to learn how to interpret legal opinions, these resources can help give you a roadmap to understanding the really opaque ones.
- A corollary: one of the best times to read outlines isn’t after class or while preparing for the test (although they can help then), but before the class, so you know what’s coming.
- Another book worth getting: Guerrilla Tactics For Getting The Legal Job Of Your Dreams, by Kimm Walton (aka the Job Goddess, and not without reason). This is the book that made me finally appreciate networking.
- Also: Glannon’s Examples and Explanations for civ pro is basically a must.
- Also also: Academic Legal Writing, by Eugene Volokh. Excellent advice for, well, academic legal writing, including the law review writing competition and your journal note or seminar paper.
- Speaking of legal writing and research, are you confused by the array of books you use in researching legal issues? I think someone made a Field Guide to the Law Library for that a while ago.
- A book not worth getting: Black’s Law Dictionary. If you must have a paper law dictionary, I think Barron’s puts out a good one that is substantially cheaper. However, Google and Wikipedia will be happy to enlighten you on the occasional obscure term for free. In the unlikely case that you need a really detailed definition, the law library will have a copy of the desktop version of Black’s, but I haven’t really needed to use any of ours (although I sometimes flipped through them while avoiding real work because I’m a word nerd).
- Some folks like making flashcards. I haven’t, but I’m trying out Genius now, and it’s pretty cool.
- Legal exam writing is unlike any other form of writing known to humankind. Your school will probably offer a workshop on this–Hastings had an outfit called the Academic Support Program that did it. Go to those workshops. Virtually everyone in your class will know the material, most people will be able to issue-spot well, but the presentation is what turns a decent exam into a great one. It took me far longer than it ought to have to realize this.
- Stay on top of things. It should go without saying, but even the most diligent people have been caught out by this one.
- It’s just law school. There are things in this world worth killing yourself over; the law is very, very far from being one of them. I’m not trying to scare you off–people with JDs do a lot of cool things–but you don’t get to, much less through, law school without being at least a little obsessive, and carried to extremes, this character trait can make you very unhealthy indeed. Hard work and a balanced life are not incompatible, and anyone who tries to tell you otherwise is deluded, or at least somewhat confused.
As I said, I hope this is helpful. If anyone in the audience has anything to add, please do so in the comments.
2 comments June 14th, 2008
Some background, first:
Becoming a Lawyer
The first step in becoming a lawyer in the United States is attending law school. In many other countries, law is an undergraduate major, but here it’s a three-year graduate degree.
The first year varies remarkably little between schools: contracts, civil procedure, torts, criminal law, and property. Some schools require constitutional law as well, and some allow students to choose an elective at one point. My law school required all the courses I mentioned at the beginning of this paragraph (two terms of the first two and one of each of the last three) and allowed us to choose one elective our second term, all of which related to an area of law governed more by statutes than by prior cases.
Students will also generally need to take a course in legal writing and research. At Hastings, we did this our first term and took a moot court course in our second. (Moot court is much like it sounds–you get a case, usually one that’s pending before the United States Supreme Court or the highest court in the state where the school is located, are randomly assigned a side to argue, and spend a unit or two’s worth of time researching, briefing, and arguing it.)
In the second year, students pretty much get to take what they want. Some schools (including Hastings) don’t require con law and evidence, but you’d be a fool not to take them, especially as they’re covered on the bar exam, more on which later.
The third year, at Hastings at least, is much the same from a formal standpoint. Some schools (such as George Washington, I’m informed) take a page from medical schools’ books and have an entirely clinical third year–students work under the tutelage of experienced attorneys or judges assisting them in their duties. It remains to be seen whether this will become standard practice, but clinical programs are becoming more common and prominent in the American law-school landscape. For my part, I spent half my time my last semester of law school working for a judge at the San Francisco Superior Court. If you’re in law school, I strongly recommend it.
Of course, you could go the seriously old-school route and not bother with law school at all, instead taking a period of apprenticeship to an attorney or judge and studying under them. This used to be the only way to become a lawyer, but it’s far less common these days–most states don’t even allow it, but California is one that does.
Add comment June 7th, 2008
I’m studying property at Sugarlump, a very cool coffee place in the Mission. About half the people in this place are studying for the bar, I think.
Add comment June 7th, 2008