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Law School Exam Tips, with Professor Anne Coughlin (2011)


Admin - August 30, 2018 - 0 comments

Transcript

00:00
what I’d like to do is to go ahead and
00:01
talk to you for maybe 20 or 30 minutes
00:03
tops and then open up to your law questions
00:07
and answers and I’ll give my answers of
00:09
course this is a session for you so I’m
00:11
going to cover the things that I think
00:12
are important for you to know but I also
00:14
want to leave ample time for you to ask
00:16
me the the questions that you have in
00:19
mind
00:20
and just speaking roughly I’m going to
00:23
break my remarks into three parts I’m
00:25
first going to say just a couple of
00:27
words to try to demystify the law school
00:29
exam then I’m going to go ahead and give
00:31
you some advice about studying for exams
00:35
studying going into and then during the
00:37
exam period then talk very specifically
00:41
about the law school exam itself what it
00:43
is that we’re looking for on these exams
00:46
and then again as I said we’ll go ahead
00:48
and and open it up for your questions
00:50
the first thing that I wanted to do
00:52
though is to demystify I probably don’t
00:54
need to do this because I think many of
00:56
you have taken midterms we’ve made an
00:58
effort to have more midterms available
01:01
precisely so that you’ll know what it is
01:03
to expect on the final but whether or
01:06
not that’s the case I just want to
01:08
emphasize these are exams
01:10
you’ve taken many exams before and
01:13
there’s no question that you did really
01:15
really well on those exams otherwise you
01:17
wouldn’t be sitting here in this room so
01:19
in some very important sense you do know
01:21
what to expect you’ve taken exams before
01:23
this is a very similar exercise and if
01:27
you follow the strategies that brought
01:29
you here do the things that worked well
01:33
for you in the past you’re going to have
01:34
a lot of success here at the law school
01:37
as well the next thing I want to do
01:40
though is just to focus briefly on
01:41
what’s being tested again with an effort
01:44
to demystify people often have the sense
01:46
I don’t know what I’m going to be tested
01:48
on and I think that you do know what
01:50
you’re going to be tested on and I think
01:53
there are two things that you’d want to
01:54
keep in mind first you’re going to be
01:56
tested on the doctrinal content that
02:00
you’ve been studying
02:01
you’ve been taking for courses contracts
02:06
torts
02:06
Civil Procedure and criminal law and
02:08
you’ve been learning the law in each of
02:10
those areas
02:11
and of course that’s one of
02:13
main objectives on the exam is going to
02:15
be to test your knowledge of that
02:17
doctrinal content so clearly that’s
02:20
material that you want to study it’s new
02:23
to you there’s an awful lot of it you’re
02:26
going to have to review it again before
02:28
you take the exam but again you know
02:30
exactly what that material is and you
02:33
know how to learn it you have to read it
02:35
you have to absorb it and then use your
02:38
own you know well-developed skills to
02:40
retain it so that you can deploy it on
02:41
the exam the other thing and I think the
02:45
thing that makes us anxious when we
02:47
first approached law school exams is of
02:49
course you’re also being tested on a new
02:51
set of skills so there’s this new
02:54
methodology that we’re aiming to teach
02:56
you this thing called thinking like a
02:59
lawyer or legal analysis and of course
03:03
that skill is going to be tested on the
03:05
exam as well and this is what we have in
03:08
mind when we tell you that we don’t want
03:11
the exams to be merely descriptive we
03:14
don’t want you simply to describe or
03:16
regurgitate the doctrinal content that
03:19
you’ve learned instead what we want you
03:21
to do is to deploy that content in
03:25
analyzing the the cases that you’re
03:28
given so what the exam is going to do is
03:31
to test your ability to recognize the
03:34
kinds of questions that a lawyer would
03:37
ask when encountering that case so in a
03:41
rule that’s governed by the in a world
03:43
that’s governed by the rule of law what
03:45
are the questions that a lawyer would
03:47
have about this case you’re going to
03:51
want to anse identify the range of
03:53
plausible answers to those questions but
03:57
more important than identifying the
03:59
answers you want to be sure that you
04:01
articulate the arguments that will move
04:05
a decision-maker to endorse one answer
04:08
over another so that’s the analytical
04:11
content what are the questions that this
04:14
fact pattern raises what are the
04:16
plausible answers that the parties will
04:18
offer and then more important you want
04:21
to develop the arguments that support
04:24
those answers and so that’s the
04:26
analytical
04:27
all content so I take it you do have a
04:32
good sense you’ve been exposed to this
04:34
doctrine for a whole semester you’re
04:35
learning it and you’ve also along the
04:38
way
04:38
I hope you’ve remarked this certainly I
04:40
know that most of you have you’ve been
04:42
learning those skills you’ve been seeing
04:44
how lawyers make arguments in cases how
04:47
judges respond to those arguments when
04:49
constructing the opinions that you’re
04:50
reading I wanted to stop next this is
04:54
the second part and give you some
04:55
preliminary thoughts about studying for
04:57
the exams some things that I found
05:00
crucial when I was a law student and
05:02
then things that I’ve continued to
05:04
observe that people find crucial here on
05:06
the first point I want to make and this
05:08
is essential it’s essential this
05:10
semester and it will be essential going
05:12
forward you want to make sure that you
05:14
know the professor’s ground rules for
05:17
taking the exam and exactly what kind of
05:20
exam is it going to be be sure that you
05:22
find out from the professor what kind of
05:25
materials you can use during the exam is
05:28
it open book
05:30
partial open book restricted open book
05:33
is it closed book you know what kinds of
05:35
materials can you use during the exam
05:37
and then the other absolutely crucial
05:40
point is to know what is the format of
05:43
the questions on the exam is it going to
05:46
be short short essays is it going to be
05:51
multiple choice what exactly is it going
05:54
to consist of as you know from taking
05:56
midterms many of the questions will be
05:58
designed to be taken in an hour you’re
06:01
given a case and you have to write a
06:03
fairly detailed essay about that one
06:05
case um is it going to be an exam of
06:07
that sort or as I said is it going to be
06:09
multiple-choice some combination of the
06:11
above you have to know these things so
06:14
make sure you ask your profession
06:16
professors those questions another point
06:20
that I want to make and this is
06:21
something that was difficult for me to
06:23
do effectively when I was a law student
06:26
you’ve got to pace yourself when
06:29
studying for the exam so or exam so
06:32
particularly now as you’re moving into
06:35
the reading period into the run-up just
06:37
before the exam you really have to be
06:40
thoughtful about
06:41
your time please be sure that you know
06:44
the time and the date for each of your
06:47
exams and then you want to make a
06:49
sensible plan for how to use your time
06:52
most effectively during the reading
06:54
period you really want to think about
06:56
which exams are going to be harder for
06:58
you to study for which you’re going to
06:59
be easier and then make sure you have a
07:02
plan for using days half days even hours
07:05
you really want to allocate your time
07:08
sensibly so that you have enough time to
07:10
study for each exam this is really
07:13
important and as I said it was really
07:14
difficult for me to do
07:15
I was married during the exam I was
07:17
married in law school I’m still married
07:19
it just drove my husband crazy I just
07:20
had a lot of trouble moving from one
07:22
subject to another and and and that’s
07:24
something that you’ve got to do the next
07:27
question is outlines people often ask
07:29
what are outlines I had this question I
07:33
came back from Thanksgiving break and
07:35
nearly died of panic when the woman
07:37
sitting next to me said she had all her
07:39
outlines done I didn’t know what an
07:41
outline was at that point I hadn’t
07:43
finished the reading for class that day
07:46
knowing me I’m very slow and plodding
07:48
reader so outlines what are they think
07:52
of it as your own little treatise for
07:55
the content of the course it’s a
07:57
document in which you lay out all of the
07:59
doctrine you learned in the class think
08:02
of it as the anatomy of that class what
08:06
the bones of the criminal law what are
08:08
the most basic elements identify the
08:10
bones and then try to put as much flesh
08:12
as you can onto those bones as possible
08:17
what are the specific elements of a
08:21
criminal cause of action of a contract
08:24
of a tort how are those elements defined
08:27
by courts how are they proved up what
08:31
are the exceptions to those elements and
08:33
so forth and at the same time the
08:36
outline will remind you of the luring
08:38
skills that you need to be developing
08:41
what were the arguments that were made
08:43
in a given case as for why a particular
08:45
element was satisfied or not what did
08:49
the judge conclude and and why so it’s
08:51
just your own little treatise
08:54
my most successful experience and I know
08:56
this from talking to students here in
08:58
and year out my most successful
09:01
experiences and yours too are likely to
09:03
be when you’ve done all of your own
09:05
studying whether you create an outline
09:08
or not some of us have photographic
09:10
memories we never have to write anything
09:12
found that wasn’t me but other people’s
09:16
work may be useful reading other
09:18
people’s outlines share them with each
09:20
other commercial outlines but typically
09:23
if you go through the entire material
09:25
yourself you’re going to have the
09:27
greatest success the other point that I
09:30
want to make too is you want to leave a
09:31
little bit of time to outline the
09:33
outline because if the professor lets
09:35
you use an outline in class you’re going
09:38
to want to have a shorter document right
09:40
that we had documents yours maybe on the
09:43
computer I’m not really sure where you
09:45
keep things these days but you’re going
09:46
to want to have something a short list
09:49
and index that lets you get into the
09:52
outline quickly or just brings the
09:54
issues back to you quickly that that’s
09:58
something that I found most useful um
10:00
the other thing that I would recommend
10:02
is that you make use of your professors
10:04
during the exam period as well if you’re
10:06
having trouble understanding a question
10:09
it may be that the professor can clear
10:12
it up for you very quickly and you don’t
10:14
need to spend a lot of time worrying or
10:16
it may be a question that’s genuinely
10:18
difficult and the reason you’re having
10:20
trouble is because it’s genuinely
10:21
difficult that means it’s likely to be
10:23
something that could be tested on the
10:25
exam so you should come upstairs and
10:27
talk to us about it the other thing to
10:29
do is to make sure you know whether your
10:31
professors have office hours posted
10:34
special rules for access during exams
10:36
people have different approaches to that
10:38
question okay so now I’m just going to
10:40
give you some specific questions for
10:42
approaching exams and many of these are
10:46
very basic but again I’m going to go
10:48
through them because they’re helpful and
10:50
again each year I find that people make
10:55
certain basic mistakes and I want to
10:57
make sure you avoid them so the first
10:59
thing you want to do is to just read the
11:01
exam question make sure that you look at
11:03
the entire document make sure you have a
11:06
complete document
11:07
and I would strongly recommend that you
11:09
skim the entire thing
11:12
before getting started writing you want
11:14
to make sure that you don’t miss a page
11:16
or god forbid a question once in a while
11:20
people will just miss the fact that
11:22
there’s a question or they’ll miss a
11:23
page and they won’t obviously have
11:25
access to the material on that page it’s
11:28
not a complete disaster but obviously
11:30
you don’t want to be in that situation
11:32
so skim the thing to know what’s there
11:35
skimming will also help you to begin to
11:38
prepare your plan of attack right you’ll
11:41
get a sense of where the different
11:43
issues are on the exam the law school
11:47
exam aims to be comprehensive most of
11:50
them fail in being completely
11:52
comprehensive but lot lots of professors
11:55
try to cover most if not all of the
11:58
doctrinal content that they covered in
12:01
class and skimming will help you say oh
12:04
there’s the question on attempt oh
12:06
there’s the question on homicide there
12:09
are dead people there oh there’s the
12:10
question on you know whatever it would
12:12
be and that gives you a little bit of a
12:14
sense about about what your plan of
12:16
attack is going to be the next thing
12:18
that I want to mention is be sure that
12:20
you notice the start and stop times for
12:22
the questions and take those time
12:24
allocations seriously again this can be
12:27
difficult to do you’ll be in the middle
12:30
of a question and you just won’t want to
12:32
give it up you won’t want to move on but
12:34
trust me it’s the law of diminishing
12:37
returns you’ve got to move on to the
12:39
next question and so so follow those
12:43
time allocations carefully obviously
12:48
once you’ve skinned you want to read
12:50
each of the questions carefully you know
12:53
take a deep breath read them carefully
12:55
one point that I want to make here that
12:57
comes up from time to time and can it’s
13:00
it’s it’s a funny issue that gets people
13:02
in trouble it might be counterintuitive
13:03
but professors get their fact patterns
13:06
from lots of different places so we get
13:09
them from real cases we get them from
13:12
our heads we make them up we also get
13:15
them from fiction from comic books plays
13:17
movies TV
13:19
so sometimes you’ll be reading an exam
13:22
and you’ll go oh I recognize that
13:24
homicide that’s the homicide from lavaud
13:27
father part 22 or that’s the homicide
13:30
from training day at the moment that own
13:32
you’re probably right
13:33
so at the moment that you recognize the
13:36
case and think you know it that’s when
13:39
you should read the most carefully
13:41
because the professor has surely made
13:43
some changes has introduced some changes
13:46
in order to make it an intelligible
13:48
question and I’ve actually had students
13:51
get into trouble not in my class but in
13:53
others where they have made assumptions
13:55
about what the facts were based on their
13:57
watching from some television show or
13:59
some opera and therefore they don’t read
14:04
as carefully as they should the other
14:06
thing though that I want to say in
14:08
connection with this is even though we
14:10
make a lot of this the the some of us
14:13
make the material up or we take it from
14:16
fiction I would strongly recommend that
14:19
you treat the exercise as if it’s real
14:22
in other words someone has come to you
14:25
with a legal problem and they want your
14:27
advice
14:28
the exercise is artificial you’ll say
14:32
back to me because of the time
14:34
constraints typically in the real world
14:37
you’re going to have more time than an
14:39
hour or two to resolve a difficult legal
14:42
question and that’s that’s true you
14:45
usually will have more time but not
14:47
always there are plenty of times you’re
14:49
going to be asked for your advice
14:50
quickly and you’ll have to give written
14:52
advice that you may have to prepare
14:54
quickly the other thing too for you to
14:56
understand is that the kind of writing
14:58
that you’re doing on your exams mirrors
15:01
writing that you do in the real world if
15:05
you will so the kind of memorandum that
15:08
you’re being asked to write a memorandum
15:09
that gives advice about the legal
15:11
elements of the cause of action that’s
15:13
the kind of memo that you’ll write for
15:15
colleagues for partners that you’re
15:18
working for for clients for judges for
15:21
the file and so you’re frequently going
15:24
to be doing this kind of analysis so
15:26
what I would say to myself on an exam if
15:29
I were you and this is what I try to do
15:31
is this is real some
15:32
but he needs to know in 60 minutes what
15:35
is the answer to this question and I’m
15:38
going to give it my best shot I can’t
15:39
give a conclusive answer perhaps but I
15:41
can at least develop a good game plan
15:44
for how to solve it okay so now the
15:47
question is how do you do that one thing
15:51
again very basic is answer the question
15:55
please be sure to identify the question
15:58
that you’ve been asked typically the
16:00
question will follow a fact pattern on
16:03
one of these essay style exams that that
16:06
we’re discussing where the professor
16:08
gives you a case and asks you advise the
16:12
client as to whether he or she has a
16:14
cause of action can charges be brought
16:16
what are your defenses okay but and
16:20
identify the question and answer it have
16:23
you been assigned a role have you been
16:25
asked to represent one party or the
16:28
other have you been asked to be the law
16:31
clerk for the judge have you been asked
16:34
to be the lawyer for a legislature you
16:38
should take that role assignment
16:40
seriously
16:40
the professor hopefully was thinking
16:42
about it and why they allocated that
16:45
question to you and so take the
16:48
assignment seriously and make sure that
16:50
you answer that question at the same
16:53
time and it’s here that I want to go
16:55
back to my discussion or references
16:57
before to legal analysis you always want
17:01
to be balanced and nuanced so you’re
17:03
going to be given an assignment say
17:06
you’re asked in a criminal case to
17:08
defend somebody who’s been accused of
17:11
the crime for you to give good advice
17:14
you have to take account of what the
17:16
other side’s arguments are you have to
17:19
be nuanced you have to constantly
17:20
second-guess yourself so just as you’re
17:23
taking the role assignment seriously ask
17:25
yourself before you leave the question
17:29
what would I say if I were being asked
17:31
to represent the other side you know
17:34
I’ve just come up with AI with what I
17:35
think is a winning claim but what will
17:39
my opponents say what would I say if I
17:41
were in my adversary shoes so you want
17:43
to go ahead and try to identify the
17:45
strongest
17:46
arguments on both side of the question
17:49
so again you’ve got a short period of
17:52
time and typically when you’re given a
17:55
case to resolve there’s going to be a
17:57
number of issues embedded in it right we
17:59
call these issue spotting exams and
18:02
you’re going to want to make judgments
18:04
about the issues that you choose to
18:07
focus on there will be some issues that
18:11
are there but may be too trivial to be
18:14
discussed and it’s a judgement call of
18:17
which is trivial which isn’t and if
18:19
you’re not sure you should of course go
18:21
ahead and discuss everything but
18:24
professors are looking for you to make
18:26
the judgement which are the issues that
18:28
I really would need to bear down on
18:30
which are the issues that would be
18:32
litigated that would give the judge
18:34
pause so for example on a criminal case
18:37
if you can tell that the actus Reyes
18:41
element is satisfied you are told this
18:45
defendant broke and entered the property
18:47
of another at night you’re told
18:50
precisely that that element is satisfied
18:53
you can you don’t need to discuss it
18:55
you can pass over it okay there will be
18:58
other issues that are less trivial
19:00
probably not frivolous to bring up but
19:03
there may be marginal they’re not the
19:04
most significant ones so at least on my
19:07
exams and I think this is true for many
19:09
professors so it’s here you should check
19:11
you should find out what your professors
19:13
want what I want you to do is to
19:15
identify the questions in the case that
19:19
are the most important which ones would
19:21
give the judge an occasion to write an
19:25
opinion which are the ones that the
19:27
parties are not going to concede which
19:29
are the ones where oh there’ll be a plea
19:32
bargain over this issue but not this one
19:34
and I want you to focus on those issues
19:36
there what you want to do is to identify
19:39
the question and more important than
19:43
identifying the correct answer what we
19:47
want you to do is to identify the
19:49
plausible answers and then articulate
19:54
the arguments that get you to that
19:57
answer so what I would eye remarks to
20:00
doing is they’ll spot the question
20:04
they’ll know what answer their client
20:08
wants to arrive at they’ll give me that
20:11
answer then move on perhaps doing the
20:15
analysis of the facts but without
20:18
explaining to me what would motivate a
20:20
judge to endorse that answer versus the
20:23
prosecutors answer so just to give you
20:26
an example from criminal law if you have
20:28
a case where you don’t know what the
20:31
mental state element is I think you all
20:34
know what I’m talking about if you
20:35
approach just a crime and you can’t tell
20:38
from the face of the crime what’s the
20:40
culpability level right you then are
20:44
going to be motivated in representing
20:46
your client to adopt one culpability
20:49
level over the other the prosecution
20:51
always want strict liability right and
20:53
the defense always wants purpose or
20:56
specific intent right and you may be
20:59
exactly right this is a strict liability
21:02
element or this is a specific intent
21:05
element but you don’t want to just
21:07
provide that answer instead what you
21:09
want to do is to identify the arguments
21:12
that you would make to a judge or to
21:14
your colleagues or to your opponents for
21:18
why it is that this statute should be
21:20
construed to require a specific intent
21:24
or purpose or the rare exception strict
21:28
liability so frequently I’ll see
21:30
students again they’ll say well my
21:32
client has a mistake of fact claim and
21:35
this is a general intent element and
21:37
therefore the mistake has to be honest
21:39
and reasonable they may be exactly right
21:42
this is a general intent element but
21:45
they need to explain to me what’s the
21:48
argument that got them there because the
21:49
judge is going to be looking at the the
21:51
statute saying I have no idea what this
21:53
element is tell me tell me what are the
21:55
arguments that get me to endorse one
21:57
conclusion over the other and then of
21:59
course you have to take account of what
22:00
the other side is going to say so that’s
22:03
the basic general advice the questions
22:07
are important so too are the answers but
22:11
because most of your exams are going to
22:14
be testing you on questions as to which
22:18
the professor thinks there is no clear
22:21
answer it’s a toss-up going in it’s much
22:26
more important that you identify the
22:28
arguments that would motivate as I said
22:30
a decision maker to endorse one answer
22:35
over the other and again just because
22:37
some judge concluded that this is the
22:38
answer doesn’t mean that that’s the
22:41
correct answer they can always be
22:42
overturned on appeal or another
22:44
jurisdiction can disagree the next thing
22:48
that I want to say I’m happy to talk in
22:50
more detail about this analytical point
22:52
with any of you I’ve been talking to my
22:54
own students about it when they’ve come
22:56
to speak to me about their midterm exams
22:57
and my impression I could be wrong is
23:00
that they’re finding it genuinely useful
23:01
where I point to places where I say look
23:04
here’s where you’ve given the answer and
23:07
it’s great but that’s not what I want
23:10
what I want is the analysis that gets me
23:12
there so with that in mind what you need
23:15
to realize is that this type of law
23:17
school exam privileges the people who
23:21
are willing to expound their analysis a
23:23
little bit and at some point in your
23:26
careers I am willing to predict that
23:28
each of you will have so much experience
23:29
and expertise and so much respect that
23:33
you’ll be able to say to people this is
23:35
the answer and they’ll go okay
23:37
but for the most part lawyers can’t do
23:39
that
23:40
we’re always called upon to explain the
23:42
analysis that got us to that answer and
23:45
certainly at the beginning of a career
23:47
and then if you’re a judge you’re
23:48
constantly having to justify your
23:51
conclusions in written opinions and
23:53
written texts so that’s the thing again
23:55
you want to expound you want to unfold
23:58
getting from A to Z really quickly is
24:01
great but you’ve got to give some of the
24:03
steps that got you there the next
24:06
question that comes up a lot is the line
24:09
between doctrine doctrinal analysis and
24:12
policy or theory on the other hand and
24:15
on the kind of exam that I’m describing
24:17
the kind of exam where you’re expected
24:20
to identify what are the legal issues
24:22
what are the doctrinal rule
24:24
tools that allow me to answer those
24:27
issues and so forth your analysis should
24:32
not be on policy or theory in the first
24:34
instance and maybe you access it only
24:37
briefly if at all it depends on the
24:39
question and it depends on the professor
24:41
so what you’re being asked to do as I
24:44
suggested at the beginning is to show
24:45
that you’ve mastered a certain doctrinal
24:47
content and you access policy sparingly
24:51
if the professor asks for it or if the
24:55
question lends itself to a policy
24:57
analysis and questions sometimes perhaps
24:59
frequently do and I’ll touch on that in
25:01
a minute but be very sure that you want
25:05
to stay close to the doctrine close to
25:08
the ground close to the rules no matter
25:10
what your professor has been doing in
25:12
class so even if you have a professor
25:14
who comes in and tells you why every
25:18
case and the face book is wrong every
25:21
case in the case book is wrong because
25:22
it doesn’t comport with the professor’s
25:25
view of theory or policy or something
25:27
like that it’s possible that you’ll need
25:31
to access some of that policy or theory
25:34
on the exam but if you’re given a case
25:36
and asked evaluate this cat case talk to
25:40
me about the legal elements of the cause
25:42
of action does your client wind is your
25:44
client lose what’s the measure of
25:45
damages you’ve got to first deploy the
25:48
doctrine because even if your professor
25:51
thinks those cases are unwise from a
25:55
policy or a theoretical perspective
25:57
that’s the law and that’s what you’re
25:59
being expected to know okay so please
26:02
start with the doctrine then when
26:06
appropriate you can deploy the policy
26:08
you’ll know when you are being asked an
26:11
open-ended policy question you know
26:14
you’ll be given a description of a case
26:17
and you’ll be asked you know you know
26:20
criticize the the underpinnings of this
26:23
case one of my exams past exams that’s
26:27
on reserve describes a federal court
26:33
opinion on the law of attempt and then
26:36
says to the students that the
26:38
legislature
26:38
or doesn’t like that approach and your
26:42
counsel for the legislature and you
26:43
should recommend you know a new approach
26:45
to the law of attempt clearly there when
26:48
recommending what the law should be you
26:50
want to be talking about the policy as
26:52
well as the doctrine sometimes again on
26:56
criminal law exams I don’t know what
26:57
other exams are like I’ll ask students
27:00
in their role as prosecutors should you
27:03
bring charges and that question of
27:07
course is going to import some policy
27:09
analysis in order to decide whether you
27:11
should bring charges you first have to
27:14
decide can I under the the principles of
27:18
criminal law can I make a case stick in
27:22
good faith could I bring this
27:24
prosecution but then the should question
27:26
is putting the normative question to you
27:28
is this a good a wise case to bring a
27:32
good good use of resources so there will
27:35
be spaces to use policy the other place
27:38
where you use policy if you have time is
27:40
where the law runs out you know if you
27:43
have again a genuinely unclear a
27:46
question to which the answer is
27:48
genuinely unclear and you want to push
27:51
the answer in one direction or another
27:52
you might mention some of the policies
27:54
that might mention that might get a
27:56
decision-maker to rule in your favor but
27:58
please keep your feet in the doctrine
28:01
start there
28:02
and then check with your professors okay
28:05
look at their exams on reserve because
28:07
occasionally you’ll discover that
28:08
there’s a professor who perhaps asks
28:10
nothing but open-ended policy questions
28:12
you can find that out before going in
28:14
but the basic rule of thumb is to expect
28:17
to apply the doctrine at least on most
28:20
of the questions the next thing that I
28:23
want to mention is that I’m frequently
28:26
asked should I be citing cases case
28:29
names and the short answer to that
28:32
question is yes you should be if you are
28:35
able to learn in that way
28:38
lawyers are constantly using precedents
28:43
applying precedents distinguishing
28:45
precedents trying to decide which line
28:48
of cases is attracted by the case before
28:50
you and so forth
28:52
and using case names is a really great
28:56
shorthand for your professor it gives
28:58
them confidence that you understand the
28:59
material and obviously you can just
29:02
refer to the you know dovey United
29:06
States problem and the professor
29:08
instantly is knows that you’re on the
29:10
same page the only cases you’ve learned
29:14
are the cases in your case book that’s
29:17
the law for you for this exam you don’t
29:19
know any other law so just focus there
29:22
learn those case names if you can if you
29:25
can’t you can still write a very
29:27
successful exam some of us aren’t so
29:29
good with absorbing names and the
29:31
professor’s have read these cases so
29:33
many times they’re like old friends for
29:36
you that’s not true
29:37
so if you’re someone who’s a little bit
29:38
named phobic don’t worry about it just
29:40
make sure you’re able to deploy the
29:43
principles that the cases represent but
29:45
if you can remember case names it’s a
29:47
good idea with that in mind you should
29:50
be careful with commercial outlines if
29:52
you find yourself needing to fall back
29:55
on commercial outlines and they can be
29:57
very helpful depending on the course and
30:00
what’s going on in your study process
30:03
you won’t want to cite cases that the
30:05
professor never heard of before and
30:07
because because that that can just
30:09
create you know confusion and problems
30:12
for for everyone the next point that I
30:16
want to make is the amps should contain
30:19
no surprises in the sense that based on
30:24
the law that you learned in that course
30:26
you are equipped to answer every
30:29
question and here’s what I mean when I
30:32
say it has no surprises what would
30:34
happen to me on law school exams is I
30:38
would immediately focus on the context
30:40
of the question and think I don’t know
30:42
that law so on our contracts exam it was
30:45
a contract relating to a wedding and I
30:49
immediately thought I don’t know the law
30:51
of contracts relating to weddings and
30:53
then ditto on the Crim law exam there
30:55
was a crime that prohibited tattooing I
30:58
thought I don’t know the law prohibiting
31:01
tattooing and of course not you don’t
31:03
know anything about that area
31:06
yeah what you know is the law of
31:07
contracts what you know is basic
31:10
criminal law principles so just again
31:13
take a deep breath say okay this is a
31:17
new context I’ve never seen this statute
31:19
before I’ve never read about this type
31:21
of tort or this type of contract before
31:23
but what I’m going to do is to fall back
31:26
on the general principles that I do know
31:28
and ask the basic questions that I’ve
31:31
been taught that lawyers ask in any case
31:33
of this kind so again don’t panic and if
31:41
there is a genuine surprise on the exam
31:43
you know shame on the professor for
31:45
trying to trick everybody and
31:47
everybody’s in the same boat so just you
31:49
know again I had this happen just go out
31:51
good luck I’ll just do it I can that
31:53
happened to me on the bar exam but that
31:54
that’s that’s that’s that’s not this
31:56
lecture the next again getting very
31:59
close to the end don’t cut and paste so
32:03
even when you’re allowed to have access
32:05
to your outlines don’t cut and paste
32:07
from your outlines I’m at least I can
32:09
spot it a mile away and cutting and
32:12
pasting you’re just regurgitating and
32:14
all I can think of is a good example for
32:16
how we react to it is the film Legally
32:19
Blonde and if you haven’t seen Legally
32:21
Blonde lately I absolutely recommend it
32:23
it’s staple for our law and film courses
32:25
not joking but in any event if you’ll
32:28
recall Reese Witherspoon finally gets
32:30
into court and the first thing she does
32:32
is to give the judge a little treatise
32:35
on the meaning of mens rea a– and the
32:37
judge is kind of soon they’re going huh
32:39
I mean the judge it has nothing to do
32:41
with anything you know it’s got
32:43
absolutely nothing to do with anything
32:44
and so she’s just regurgitating the
32:46
content that she’s learned in a course
32:48
that thinks is relevant to this criminal
32:50
trial ultimately she gets off that point
32:53
of course and is highly successful but
32:55
if you cut and paste your outline it has
32:57
that same feeling criminal law requires
33:00
proof of actus Reyes activist consists
33:03
of bla bla bla bla bla bla bla I know
33:05
that I’m glad that you know it you don’t
33:08
have time to tell me that instead what
33:10
you need to do is to identify a genuine
33:13
actus Reyes problem on this new case and
33:16
then evaluate it for me
33:19
so don’t cut and paste it’s a waste of
33:21
your time it makes us lose confidence in
33:23
you and depending on where you’re
33:25
pulling your various sources from
33:27
because a lot of stuff goes into an
33:29
outline you can actually get yourselves
33:31
into affirmative trouble by cutting and
33:33
pasting so don’t do it much better to
33:35
spend your time reading those facts and
33:37
then doing a good job don’t worry about
33:40
doing a perfect job just doing a good
33:43
job of sketching here are the questions
33:46
here are the plausible answers and here
33:49
are the arguments that get me where I
33:51
want to go taking account of my
33:54
opponent’s position I just wanted to
33:57
close with a very specific point for all
34:01
of you about self-care during the exam
34:04
and you all know about getting rest and
34:07
taking care of yourselves I have a more
34:08
specific point in mind if you find
34:11
yourself confronting some kind of
34:13
emergency whether you become very ill or
34:15
you have a family emergency or something
34:17
please don’t feel that you need to go it
34:20
alone you may be able to go it alone and
34:23
of course you’ve got to draw the line
34:25
between you know sort of a trivial
34:27
sniffle or cold and a serious illness
34:30
but once you’ve done that and you’re
34:32
confronting some genuine crisis problem
34:35
emergency step up come to Dean Ballinger
34:39
or to one of your professors and ask for
34:41
help there are almost no mandatory
34:44
deadlines in law you probably know that
34:46
right so most deadlines can be deferred
34:51
you know unless it’s a jurisdictional
34:53
deadlines in court you can always get an
34:55
extension of time and if you’re sick
34:58
the best thing to do or if you’re having
35:00
a family emergency that’s making it
35:02
impossible to get the work done is to
35:03
ask for help so that we can make an
35:05
adjustment for you before the fact if
35:07
you wait until after the fact it can be
35:09
really difficult to go back and undo
35:11
things but there’s a lot of support here
35:13
at the law school we’re here for you
35:16
I’m sure all of your professors around I
35:18
see a lot of my students here you know
35:19
I’m around
35:21
Dean Ballinger and and again this is not
35:24
the kind of thing that you should think
35:25
you have to tough it out and go it alone
35:27
because lawyers going into court or
35:28
other places get extensions all the time
35:31
so take care of yourself
35:32
Elves and ask us for help if you need it
35:34
so I think I’ll stop there and see what
35:37
your questions are
36:02
yeah I had to start writing very quickly
36:05
I mean I think that’s why so I think
36:08
it’s I think you want to spend some time
36:11
developing a plan of attack if you
36:15
create an outline that’s written I
36:17
advise my students to give me that
36:19
outline because I will read an outline
36:22
and if there’s good things in the
36:25
outline that don’t make it into the
36:26
question I’ll be sure that you get
36:28
credit for it
36:29
some people need the outline format but
36:32
I think it’s important to make you know
36:37
as it make the transition from reading
36:39
thinking and outlining to writing as
36:41
quickly as you can and yeah I’m going to
36:46
be so I’m going to stick with that and
36:47
be blunt about that so as I mentioned
36:49
before what gets valued on these exams
36:53
is the student who expounds her
36:56
arguments who’s able to develop her
36:58
arguments in some detail and with some
37:03
nuance don’t provide just an outline so
37:07
I’m glad you asked that question and I
37:09
it focuses me on the outline problem
37:12
occasionally a student rather than
37:14
giving me a prose answer will give me
37:18
just an outline and that’s usually very
37:20
unsuccessful if there’s an outline that
37:23
accompanies you know a completed essay
37:25
I’m able to develop I can see in the
37:28
outline oh this person saw and I can
37:30
give them a couple of points for that
37:31
but usually when you’re going through
37:33
just bullet points you know he wrote
37:35
there’s a men’s raya issue it might be
37:37
general intent or might be strict
37:38
liability you’re not developing any of
37:40
the nuance that needs to be there so
37:42
it’s a difficult question you’re asking
37:44
it’s a judgment call and it depends on
37:45
your own way of thinking for me writing
37:48
and thinking go hand in hand so I had to
37:50
start writing pretty quickly and hope
37:53
and pray that I was on the right path
37:55
and sometimes you’re not Civil Procedure
37:57
I walk down the wrong path saw that I
38:00
was on the wrong path thought oh oh
38:01
goodbye
38:02
correct path you know and had to say
38:04
goodbye to the correct path and then
38:06
move on and do another question you know
38:07
that that you know that was I mean that
38:10
happens that’s going to happen
38:11
some people need an outline before they
38:13
can get get started writing my problem
38:16
is if I outlined I never start writing
38:18
anyone else
38:29
I’m sorry yeah yeah
38:42
or how does that actually play out
38:47
there is going to be some back-and-forth
38:49
and you know it’s going to depend so I
38:53
think that the most successful answers
38:55
will take a position because that’s what
38:58
lawyers have to do you have to say to
39:00
your client you know I think you should
39:01
plead guilty I can make an argument for
39:04
you that that that might lead you to
39:07
litigate this case but sometimes you
39:09
won’t be able to do that now on an exam
39:11
there will hope you know the questions
39:15
won’t be that simple to resolve you
39:17
won’t read it and go plead guilty fella
39:18
right you’ll read it instead identify
39:21
the questions that that you could
39:23
plausibly bring if at the end of the
39:25
discussion you come to a strong judgment
39:29
one way or the other it’s wise to share
39:31
that and frequently students will
39:33
they’ll say you know I’ve got a shot at
39:35
persuading the judge that this element
39:37
should be treated as a specific intent
39:39
element say but you know what I think
39:41
that we’re likely to lose on that ground
39:43
and if so then I’m going to be stuck
39:47
with general and Tanner strict liability
39:48
you know so I’m not optimistic about my
39:51
chances that’s fine
39:53
most important and I think that’s good
39:55
it shows a kind of I don’t know just a
39:58
thoughtfulness a sense of commitment to
40:01
the the exercise very important though
40:04
to develop the arguments on both sides
40:06
but again if you’re being asked what do
40:08
you advise the client you know what do
40:11
you advise the judge you can’t go in if
40:13
you’re being asked what do you advise
40:15
the judge you can’t go in and say well
40:17
maybe it’s this or maybe it’s that at
40:18
that point the judge is going to say I
40:20
should get a new Clerk right because I
40:23
have to give jury instructions from the
40:25
bench right now in 30 minutes
40:28
I need to be able to answer this jury’s
40:30
question about the meaning of a
40:31
particular right crime and so then you
40:35
want to say there are three plausible
40:38
interpretations of this statute here
40:40
they are I think the best one is and
40:43
then go for it
40:44
but you absolutely you can’t give good
40:47
advice to anybody in our system without
40:50
taking account of the other side because
40:52
they’re just going to as you know come
40:54
in and knock you over
40:58
anything else we’re trying to think
41:03
about what I left out and I can’t think
41:06
of anything yes
41:17
it matters um it matters but with that
41:23
said I think that the way I respond to
41:27
that question
41:28
is for you to think about who your
41:30
audience is and when I talk to my own
41:33
students and again this is something
41:34
that you want to get from your your own
41:36
professors is typically I want them to
41:38
have me in mind as their audience or a
41:43
educated consumer of this subject matter
41:48
so someone who knows something about it
41:50
but who is genuinely uncertain about the
41:54
difficult questions and wants advice so
41:56
I don’t mind if it’s a conversational
41:59
tone if it’s very clear and you know
42:01
directly stated in plain language I
42:05
don’t need a lot of formality I
42:08
certainly don’t suggest that you
42:10
struggle over individual words and try
42:12
to craft a great memo that’s not the job
42:15
here you know later if you were going to
42:17
embody it in an opinion letter for a
42:19
client a brief an opinion for a judge
42:22
for the world then you would be working
42:26
on the prose the big thing is to try to
42:28
bear down and clearly identify what the
42:33
questions are what the arguments are but
42:35
you’re writing matters so if you’re
42:37
finding yourself struggling with that
42:43
question is my writing at the right
42:46
level I would suggest you go to one of
42:48
your professors and just hand them a
42:51
little you know question that you wrote
42:54
up and see if they’ll read it for you
42:55
because I’ve had that experience with
42:57
students the student came to me with a
42:59
couple of years ago several years ago
43:01
with an exam answer that he’d written
43:04
under exam conditions and it was
43:07
completely chaotic and jumbled I mean it
43:10
was just a disaster and I looked at and
43:13
I thought this is not the time to be
43:15
nice and coughlin
43:16
and I just said to him you know you’ve
43:19
got to get this writing under control
43:21
you know the everything’s here but I
43:24
can’t follow it it’s just all over the
43:26
place and by finals he had done that
43:30
and I’m not saying it’s due to my great
43:32
advice but I think it’s really good to
43:35
run your writing by somebody you know
43:38
and and and certainly my students have
43:39
been doing that or I’ve been encouraging
43:42
them a lot of them have been doing it
43:45
yeah anything else yes
43:54
Yeah right your latter point is a really
44:11
good one that’s the really wise things
44:13
to do you can say based on the fact
44:16
pattern I can see that
44:19
and whatever the actus Reyes is a
44:21
satisfied of course you want to be sure
44:24
that you’re right on that front but
44:25
sometimes you guys you just are sure or
44:27
you should be sure if you’re headed for
44:29
Loring it’s just absolutely clear you
44:32
know if I write a fact pattern acting
44:34
with the specific intent to murder his
44:36
mother you know you’re even told
44:39
specific intent is satisfied so you
44:41
could say I can tell from reading the
44:44
fact pattern that the parties have there
44:47
will be no significant issues with actus
44:50
Reyes and therefore I am going to devote
44:52
my time to X right the this kind of move
44:57
to signal that you’ve thought about it
44:59
and you’re aware of it and then also
45:01
merely by writing it down it might bring
45:03
to your mind an occasion to second-guess
45:07
yourself are you really that sure
45:08
because because because obviously the
45:10
fact patterns are going to be written in
45:11
the way exactly that I said so I think
45:13
that’s a great idea to say thought about
45:15
it but you realize it’s too trivial to
45:17
discuss you’re going to move on to the
45:19
more important questions the other thing
45:21
that people often want to know in
45:22
criminal law that this is just what
45:24
occurred to me is what to do when there
45:26
are competing approaches to the same
45:28
question so you know if you studied the
45:31
law of attempt there may be you know
45:33
eight different ways to define actus
45:35
reyes and 15 different ways to define
45:39
mens rea just joking but there’s at
45:40
least six and then three right and what
45:43
do you do if you have an attempt
45:44
question do you apply all of them and
45:47
the answer to that question may be yes
45:50
you do apply all of them it depends on
45:52
the question that you’ve been asked and
45:55
what the ground rules are so if the
45:57
professor says to you you are working in
46:00
a model Penal Code jurisdiction okay
46:02
then you don’t need to worry about
46:03
common law
46:04
concepts right or if the professor says
46:08
you’re working in the common law or if
46:10
you can tell by the face of the statute
46:13
that you’re in one world versus the
46:15
other then you can feel confident to
46:17
just go ahead and apply one approach but
46:19
frequently you’re being located in a
46:22
fictional jurisdiction law is the law
46:26
you studied and the law you studied in a
46:29
class is full of conflicting approaches
46:32
just as any given state may be there may
46:34
be conflicting appellate approaches to
46:36
the same question right hasn’t yet been
46:38
resolved by the Supreme Court so if
46:41
you’re in that hypothetical jurisdiction
46:43
and you don’t know is this a majority
46:45
approach jurisdiction or a minority is
46:47
it common laws at MPC then your task may
46:50
be to apply both but only if they matter
46:55
if if they both come out in the same
46:58
place you may not have to spend too much
46:59
time on the analysis anything else
47:09
everyone good I hope you have a
47:12
wonderful holiday really good break
47:14
thank you so much for coming thanks

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