Failure to consider and address valid counter-arguments may leave an essay answer on thin ice, as illustrated by Bruce Wayne in the movie Batman Begins. Below is a video showing Wayne (pre-Batman) being trained in combat by Henri Ducard, who later turns out to be the villain Ra’s al Ghul. Ducard/Ghul reminds Wayne to “always mind your surroundings.”  But Wayne, hoping for a quick and easy win, ignores the fragile ice below his feet, leading to an equally quick and humbling defeat.  At about 1:00 into the video the battle reaches its climax:

Wayne: Yield!
Ducard/Ghul: You haven’t beaten me.  You’ve sacrificed sure footing for a killing stroke.

Anticipating and raising counter-arguments isn’t just law-school stuff: it’s what lawyers do every day.  If lawyers don’t anticipate counter-arguments, they’ll be blind-sided when their adversary — or worse, the judge — raises them.  Thus, a good lawyer has to be his own “best frenemy,” anticipating the arguments against his position.  This will enable the lawyer to take a number of crucial tactics, such as: 1) strengthening arguments to avoid leaving room for counter-attack; 2) rebutting counter-arguments after they are made; 3) preemptively rebutting counter-arguments before they are made; and 4) omitting arguments that turn out to have fatal defects.

Being mindful of one’s surroundings isn’t just limited to the courtroom.  A tennis player must consider the position of her opponent before returning the ball.  A chess player must anticipate his opponent’s range of counter-moves.  And law students — as well as superheroes — must do the same.

Advice part I (life and stress) here.
Advice part II (studying and attitudes) here.
Advice part III (back up your data) here.
Advice part IV (essay exams) here.
Advice part V (conclusory argumentation) here.
Advice part VI (incomplete argumentation) here.

Lincoln on Humility and Success

I am not an accomplished lawyer. I find quite as much material for a lecture in those points wherein I have failed, as in those wherein I have been moderately successful.

Lincoln on Lawyers and their Image of Dishonesty

There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief — resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.

Lincoln on Diligence

The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done. When you bring a common-law suit, if you have the facts for doing so, write the declaration at once. If a law point be involved, examine the books, and note the authority you rely on upon the declaration itself, where you are sure to find it when wanted. The same of defenses and pleas. In business not likely to be litigated, — ordinary collection cases, foreclosures, partitions, and the like, — make all examinations of titles, and note them, and even draft orders and decrees in advance. This course has a triple advantage; it avoids omissions and neglect, saves your labor when once done, performs the labor out of court when you have leisure, rather than in court when you have not.

Lincoln on Communications Skills and the Value of Hard Work

Extemporaneous speaking should be practiced and cultivated. It is the lawyer’s avenue to the public. However able and faithful he may be in other respects, people are slow to bring him business if he cannot make a speech. And yet there is not a more fatal error to young lawyers than relying too much on speech-making. If any one, upon his rare powers of speaking, shall claim an exemption from the drudgery of the law, his case is a failure in advance.

Lincoln on Peacemakers as the True Winners

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough. Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.

Lincoln on the Economics of Law Practice

The matter of fees is important, far beyond the mere question of bread and butter involved. Properly attended to, fuller justice is done to both lawyer and client. An exorbitant fee should never be claimed. As a general rule never take your whole fee in advance, nor any more than a small retainer. When fully paid beforehand, you are more than a common mortal if you can feel the same interest in the case, as if something was still in prospect for you, as well as for your client. And when you lack interest in the case the job will very likely lack skill and diligence in the performance. Settle the amount of fee and take a note in advance. Then you will feel that you are working for something, and you are sure to do your work faithfully and well. Never sell a fee note — at least not before the consideration service is performed. It leads to negligence and dishonesty –  negligence by losing interest in the case, and dishonesty in refusing to refund when you have allowed the consideration to fail.

If ever, oh ever, a Wiz there was the Wizard of Oz is one because
Because, because, because, because, because
Because of the wonderful things he does.

Always give the “because.”  If you state a conclusion (that the Wizard of Oz is a “Wiz”), make sure you give the reasons — i.e., state the issue, rule of law, analysis, and counter-analysis — that support the conclusion.  Thus, always make sure you’ve given the “because, because, because.”  Why is he a wizard?  Because of the wonderful things he does.

Of course, Dorothy’s analysis is still lacking.  She says the Wizard of Oz is a Wiz because of the wonderful things he does.  What are those things?  Explain.  Why are those things wonderful?  Because . . . .  And so on. So Dorothy shows what should be done: always give the “becauses.”

An illustration of what not to do can be found in Monty Python’s classic sketch Argument Clinic.  When I was in law school, one of my professors would mock students who engaged in what he called “Monty Python” arguing.  In the sketch, Michael Palin buys a five-minute argument.  John Cleese, in turn, simply contradicts everything Palin says.  Exasperted, Palin argues with Cleese over what is a proper argument:

Palin:  An argument is a connected series of statements to establish a definite proposition.

Cleese:   No it isn’t.

Palin:  Yes it is! It’s isn’t just contradiction.

Cleese:   Look, if I argue with you, I must take up a contrary position.

Palin:  But it isn’t just saying “No it isn’t.”

Cleese:   Yes it is!

Palin:   No it isn’t!

Cleese:   Yes it is!

Palin:  Argument’s an intellectual process. Contradiction is just the automatic gainsaying of anything the other person says.

Cleese:  No it isn’t.

Click here to view the embedded video.

Advice part I (life and stress) here.
Advice part II (studying and attitudes) here.
Advice part III (back up your data) here.
Advice part IV (essay exams) here.
Advice part V (conclusory argumentation) here.
Advice part VI (incomplete argumentation) here.

Substantive considerations:

Argue the facts presented. A common error on essay exams is failing to argue the facts provided.  Sometimes I see relevant facts omitted from the discussion.  Other times, students change facts or invent facts that aren’t in the exam.  Sometimes this is because students don’t want to discuss the issues presented. You can’t do that.  However, if you believe that additional facts are needed for your analysis, state what those facts are how they would affect your analysis.

Focus on the issues raised. Do not raise irrelevant issues.  Use your judgment as to the main issues that are likely to be worth more points.  Minor issues are likely to be worth fewer or no points.  You get no points for “negative issue-spotting.”

Do not be conclusory. Always be Dorothy from The Wizard of Oz, i.e., provide the “because, because, because.”  (Think of the lyrics to “We’re Off to See the Wizard.”)  If you state a conclusion without indicating (in that sentence or surrounding sentences) “why” or “because,” then you’re probably being conclusory.  Conclusory is bad.

Don’t forget about the cases. Although my main focus in my class in the fall is on the Federal Rules of Civil Procedure (“FRCP”) (we do jurisdiction and Erie in the spring), cases including note cases and notes after the cases are important, too.  They help to flesh out terms within Rules, show splits in authority, and cover matters not covered in the Rules.  As such, you need to know them.  And sometimes the relevant rule of law might be contained within the cases.  Think of Rule 26(b)(1), noting that discovery includes certain “nonprivileged matter.”  But Rule 26(b)(1) doesn’t indicate what is and is not privileged; for the attorney-client privilege as discussed in class, you’ll need to know, for example, the Upjohn case.

Case names and Rule numbers. This term, I do not care if you list case names.  But I do care about you stating the applicable rules of law.  Stating the case name without the relevant rule of law gets you no points.  Instead, you can state the case name with the rule of law.  Or simply state the rule of law without the case name.  Similar considerations exist regarding citing Rules of the FRCP.  Making a conclusory statement and saying, “See FRCP 12(b)” is not stating the rule of law.  You must state what the rule of law is, not just its name.  If you can state the Rule number and the rule of law contained within the Rule, great.  If you can only remember the rule of law contained within the Rule (but not its number), that’s fine too.

Organization and time-management considerations:

Read the instructions carefully. In my exams, they’ll tell you the value of each question and give suggested times.  Also, for users of blue books, write on every other page, every other line: 1) it’s cleaner and easier to read; and 2) if you miss something and have to go back to clarify or add something in, you’ve got room to work with.

Read all questions carefully. Read an essay question several times before outlining an answer.  Read it again after outlining and before writing.  Read it again after you write your answer (to see if you’ve missed anything).

Outline your answer before starting to write. You will feel the time pressure to write right away.  Do not start to write immediately.  Instead, outline your answer before you start to write, either on the exam or the inside front cover of the blue book.  You should outline and make sure that you structure your outline to reflect the issues raised.  If you do a good IRAC outline, you can then easily write up your answer in the IRAC format.   In the event that you run out of time, I may look at the outline and give partial credit for issues spotted, as appropriate.  (But as noted above and applicable generally to these tips, this may vary with your professor.)  Further tips about outlining:

• Draw a picture.  Diagram the litigation.  It will help you to spot relevant legal issues.
• Do a “fold” outline.  What I mean is that you might try folding a piece of paper in half:  on the left-hand side, put the Rules and other legal issues along with relevant tests or standards.  On the right-hand side – across from the applicable Rules or issues – put all relevant facts.  This method of outlining might help you to organize your answer.

IRAC format. The IRAC format is taught because it forces you to write in an organized manner.  Having said that and as noted in further detail below, you should be flexible in your approach.  Some questions will involve multiple Rules and issues, so a strict issue-rule-analysis-conclusion order won’t be possible.  Do not apply the IRAC paradigm mechanically; instead, use your outlining time to formulate a flow for IRAC (or multiple IRACs) that fits the needs of the questions presented.  (In fact, for my students, I suggest an IRACAP-C format, namely: issue, rule, analysis, reasonable counter-analysis, policy where applicable, and conclusion.)  Again, different professors may have preferred ways to organize an answer.

Corollary to IRAC: form follows function. Some Rules are mostly logical in their flow, and others center on “squishy” terms.  Some have both elements.  Also, some Rules contain within themselves an implicit order of analysis, whereas others contain a plethora of issues that may or may not be relevant to different contexts.  (Compare a question on Rule 19 to a question on discovery strategies to a complex joinder scenario.)  So realize that the IRAC format you need for a specific question might vary with the Rules and/or issues raised.  My suggestion in your studies – quiz thyself.  Specifically, go through the Rules and try to think of how an essay question might be created to test the operations of a Rule, and the kind of “outline” you’d use to answer questions involving such a Rule.  Coming up with your own questions is a great way to study.  It also helps you to develop the flexibility in organization you’ll need for different kinds of issues.

Use subheadings, or at least paragraph breaks, in your full-length response. Long, unbroken paragraphs/pages tend to be unorganized, verbose and difficult to read.  For me, it is perfectly acceptable to break things up.  Along similar lines, make sure you correctly label your answers, such as “Question 1,” “Question 2,” etc.

Manage your time. Sometimes students have difficulties finishing the all of the questions in the time provided.   Address this issue by:

• Watching the clock.  Know how much time is suggested for multiple-choice questions and essays.  My instructions clearly state how much time I suggest for each part of the exam, and the points are weighted accordingly.  Don’t spend the entire time writing a brilliant answer to one essay question and then run out of time for other essays and multiple choice questions.
• Not squandering too much time on essay questions that are worth fewer points.  For example, if one question is worth 20 points with a suggested time of 20 minutes, and another is worth 80 points with a suggested time of 80 minutes, it would be inadvisable to spend 80 minutes on the first question.
• Knowing your doctrine well.  This minimizes “remembering” time and aids organization.
• Outlining before writing.  This helps you capture and organize all of the issues before you start writing, so the writing flows quickly.
• If you start to run out of time, give a quick outline of what you intend to say.  I may give partial credit.  (Again, as noted throughout, your professor’s expectations and practices may vary.)

Write legibly, write grammatically, and do not misspell or misstate key terms. This speaks for itself.  And make sure for summary judgment, you talk about genuine issue of material fact, not general issue of reasonable fact!

More in this series on advice for new law students:

Advice part I (life and stress) here.
Advice part II (studying and attitudes) here.
Advice part III (back up your data) here.
Advice part IV (essay exams) here.
Advice part V (conclusory argumentation) here.
Advice part VI (incomplete argumentation) here.

My home page is at http://nathenson.org.

This site, digital garbage, is my academic blog on law and technology.

I also run a personal blog at http://nathenson.org/blog.

Course pages are available to STU students through Blackboard at http://webcourses.lexisnexis.com.   You’ll need to get your Lexis ID from the law library.

UPDATE: Lexis is in the process of updating its main law school homepage.  The update has led to problems for users of Internet Explorer 7.  If you have difficulty logging into Blackboard, try using Mozilla Firefox.

Around the same time, I read Maggie Jackson’s post at Nanci Alboher’s blog about Jackson’s new book, Distracted: The Erosion of Attention and the Coming Dark Age.  Citing an expert in the field of “interruption science,” Jackson states that knowledge workers switch tasks on average every three minutes.  Once distracted, they take a half-hour to return to their original task.  Jackson notes that “[in] meetings where everyone is checking e-mail, opportunities for collective creative energy and critical thinking are lost.”

Substitute “meetings” with “law school” and one sees a pretty accurate image of what can happen in classrooms with laptops.  I would imagine that Jackson would agree that banning laptops would enhance the classroom experience.  As she states in her posting (albeit not on the topic of laptops):

We are born interrupt-driven -– that’s how humans stay tuned to their environment. But if we jump on every e-mail or ping, we’ll have trouble pursuing our long-term goals. To make inroads on the deep, messy work of life, we need to stay focused, bringing the spotlight of our attention back again and again to the work at hand.

More serious may be the loss of the circulating 35-millimeter theatrical prints.  While not original masters, these are the copies made for screenings at repertory theaters, art museum retrospectives and in college classes. . . .

. . . .

This latest fire, I hope, will prompt Universal and its fellow majors to better preserve not just key titles like “Duck Soup,” “Dracula” or “Vertigo” — which will surely be reprinted and return to circulation — but also the other 90 percent of their inventories, the less famous and therefore more vulnerable titles that the studio may not feel justify spending thousands to save. These are exquisite samples of 20th-century American culture and deserve to always be seen in their extravagant, sensual, big-screen glory.

It sounds like after the fire, some of Universals’ assets no longer exist beyond a single remaining master copy.  That’s troubling for several reasons.  First, should the masters be destroyed, the best (and in some cases, only) copies will be lost.  Second, for cultural use to be made of the materials, new copies must be made.

What does this have to do with law students?  The same thing: the importance of archiving and the dangers of failing to do so.  Every term, students suffer data catastrophes — hard drive crashes, stolen laptops, etc. — leading to lost class notes, outlines, paper drafts, etc.  Law school is stressful enough without the added strain of losing a 100-page outline two days before the final exam. But sadly, it seems to happen every term.

Back up your essential files, do so regularly, and keep them in secure and geographically distinct places, such as multiple computers, external hard drives kept elsewhere, network storage, and/or online storage.  Or do simple and quick backups: periodically email your essential files to yourself.

Advice part I (life and stress) here.
Advice part II (studying and attitudes) here.
Advice part III (back up your data) here.
Advice part IV (essay exams) here.
Advice part V (conclusory argumentation) here.
Advice part VI (incomplete argumentation) here.

Read carefully. It’s not enough to read the assigned materials passively. Don’t skim. It’s not enough just to get the “gist” of the materials — you need to come to class prepared to discuss the materials and to apply the principles contained in the materials to different fact patterns. So read slowly. Sometimes the placement of even a comma makes a huge difference in the meaning of a phrase or a statute.

Read critically. Though it’s vital to understand a court’s rationale, that doesn’t mean you shouldn’t think critically about what you read. Are there flaws in the court’s reasoning? Has the decision glossed over difficult or unresolved steps of its analysis? If the nine Justices of the United States Supreme Court can disagree, you too can question what you read. Remember, not all decisions are binding precedent — for example, a decision on state contract law decided in Ohio is not binding to a Pennsylvania court deciding Pennsylvania contract law, and vice-versa. If you were trying to persuade a Pennsylvania judge not to follow an Ohio court opinion, what would you argue?

Re-read. Read and re-read the materials. You’ll appreciate and understand legal materials better upon re-reading (or re-re-reading, etc.) them.

Look things up. Don’t know the meaning of a latin term contained in a case? Look it up in a legal dictionary like Black’s Law Dictionary.

Don’t book brief. Don’t do your briefs in the margins of your casebook. Type or write them up separately. Taking the time to write things out makes you think about what you’re trying to articulate and helps you to understand it better.

Don’t be a court reporter. You’re a law student, not a transcriptionist. If you use a laptop (and some professors will not permit them), don’t transcribe everything that’s being said. Be an active listener — listen carefully to classroom discussion and think about what’s being said.

Don’t sweat what the other person is doing. Everybody learns differently. Color-coded tabs or highlighters might be great for one person and a waste of time to the next.

Study groups. Some people work effectively in study groups, some don’t. Know thyself.

Keep your life. Take time to exercise, to get sleep, to have fun, or to simply do nothing.

Build bridges. The relationships you build in law school may last your entire professional and personal life. Your professional career doesn’t start upon graduation, it starts the first day of orientation.

ADDENDA:

Advice part I (life and stress) here.
Advice part II (studying and attitudes) here.
Advice part III (back up your data) here.
Advice part IV (essay exams) here.
Advice part V (conclusory argumentation) here.
Advice part VI (incomplete argumentation) here.

Thankfully, many law-school orientations now provide important emphasis on developing these skills. And you’ll develop them throughout your first year and beyond. So along those lines, here are some resources from a number of lawprofs that new students may find to be of interest. In a follow-up post, I’ll add some other thoughts to those contained below:

Feeling lost is normal. Don’t worry but do seek out your profs early and often. Orin Kerr writes that it’s perfectly normal for new students to feel lost because “professors start treating you like you’re in the legal profession from day one.” He’s right. Hang in there. If you feel overwhelmed, you’re perfectly normal. Concentrate on learning the materials and developing good work habits. Kerr further notes that one of the best ways of dealing with new-student confusion is to go to your profs’ offices during office hours and ask lots and lots of questions. Don’t be afraid that your questions are dumb. For one thing, most questions aren’t dumb. (In fact, some of the best questions I’ve ever been asked have been prefaced by the qualifier, “This is probably a dumb question . . . .”) For another thing, it’s much better to seek clarification before exams than afterwards.

Learning the law versus learning how to learn the law. Michael O’Hear draws a valuable distinction between learning the substance of law (such as “how is a contract formed,” “what are the elements of burglary,” etc.) and learning the skills of lawyering. He notes, “[t]he first semester of law school is not really about mastering any particular content, but acquiring certain essential lawyering skills: how to read a case, how to read a statute, how to reason analogically, how to construct a syllogism, etc.” Michael makes a great point — one of the key goals of the first year is to develop those essential skills. Knowing this may help you to make a concerted effort. But at the same time, don’t forget that it’s equally important to learn the substance of the law as well. The rub is that you’re learning your lawyering skills — such as how to read a case — at the same time you’re learning the substance of the law contained in the case itself.

Treat law school as a job but not as your life. Brannon Denning writes that you should 1) treat law school like a job; 2) exercise; and 3) maintain outside interests. This is right, too. Treat law school like your full-time job and make sure you have a life outside of that job. Get your work done, but exercise. It clears your mind and keeps you healthy. And have a life outside of law school. Even better, make sure that you maintain relationships with people who aren’t lawyers or law students. It reminds you that there’s more to life than law school. As Brannon says, “while law school should be treated like a job, it shouldn’t be regarded as a prison sentence.”

“Welcome to Law School” series. Last year, my friend and colleague Mike Madison posted an extensive and thoughtful series entitled Welcome to Law School. You can find links to the series of postings at the bottom of this post at his blog.

Stress management. Here’s a link to a booklet by Lawrence Krieger on The Hidden Sources of Law School Stress. (Hat tip to Mike Madison where I learned of this, and who in turn found it from fellow blogger Eric Goldman.)

ADDENDA:

Advice part I (life and stress) here.
Advice part II (studying and attitudes) here.
Advice part III (back up your data) here.
Advice part IV (essay exams) here.
Advice part V (conclusory argumentation) here.
Advice part VI (incomplete argumentation) here.