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Four Secrets to Law School Success |
By MICHAEL C. DORF |
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| Monday, August 23, 2010 |
By MICHAEL C. DORF
With a job market that remains, at best, uncertain awaiting them at the end of their three years, new and returning law students are understandably anxious about what they can do to make the most out of their legal education. In the past, I have offered advice about the first-year curriculum and how to think like a lawyer. In this column, I share four lessons that I have learned in nearly two decades of law teaching.
The Most Important Skill You Can Acquire: Distinguishing Hard From Easy Questions
Many laypeople labor under a misconception about the law and the work that lawyers do: The law, they imagine, consists of something like a very long list of rules, compiled in multiple volumes labeled "contract law," "property law," "criminal law," and so forth. The lawyer's job, in this view, is simply to look up the answer to the question of what the law requires in any given circumstance.
In fact, that picture is partly accurate. Books of statutes, regulations, and case reports really do contain a large number of rules. Although many of those rules are quite clear, identifying them can be difficult for the layperson because of their sheer quantity.
For example, an entrepreneur opening a new restaurant could, in principle, locate all of the federal, state, and local rules with which she must comply by searching on the Internet, but in doing so, she is likely to miss something important. Consulting with an experienced attorney will ensure that she avoids inadvertently breaking the law.
Yet the picture of the lawyer as human search engine is quite incomplete. The most valuable and challenging work that lawyers do comes after they identify the relevant statutes, regulations, and cases. That work consists in analyzing the nature and scope of legal obligations when the law is unclear--for the purpose of either advising a client or defending the client's position in court.
Most of what happens in law school centers around preparation for this second kind of lawyer's work. Instructors ask probing questions of students to develop their skills at categorization and argumentation. When different sources of law point in different directions, lawyers must know how to assess the likelihood that a court will find in favor of one or another resolution. They must also know how best to persuade a court to rule in a way that favors their client. Law school models and hones these skills.
One of the most important skills a good lawyer possesses is the ability to distinguish between those legal questions to which the law provides a clear answer, and those questions that are unsettled. A client contemplating some course of conduct will want to know whether it is clearly legal, clearly illegal, or possibly legal but possibly the sort of conduct that could result in civil liability, a fine, or even imprisonment. Likewise, a client facing a lawsuit will be much more likely to settle the case if her lawyer tells her that there is a greater than fifty percent chance of liability, than if her lawyer says that she will almost certainly win. As these examples suggest, the answers to legal questions fall along a spectrum that ranges from crystal clear to extremely unclear.
Law teachers tend to ask questions of their students without first identifying whether we are simply asking for the answer--as we might, if we are testing their ability to look up clear answers--or whether we are, instead, asking them to show us how they can argue for one or another result when the law does not provide a clear answer.
That brings me to my first piece of advice. You should understand every question your instructors ask as really posing two questions: In addition to the question itself, there is a prior, unstated, query: Is this the sort of question to which the law provides a clear answer?
The Right Kind of Confusion
Students sometimes tell me that they came to class understanding the assigned material, but left class in a state of confusion. No doubt, some such confusion arises from my deficiencies as a teacher, but not all of it, I suspect. In many of these instances, the students were simply mistaken: They came to class with only a superficial understanding of the material.
In a typical law school class, the instructor spends only a relatively small proportion of the allotted time covering the basics. What were the facts of the relevant case? What did the court decide? What reasons did it give? The answers to these sorts of questions are apparent on the face of the material, or at least they become apparent to students within a few weeks of the start of law school, as they learn how to read and understand legal documents.
But such an understanding is superficial because the real work of lawyers is synthetic. They need to be able to take rulings from many different cases and construct a set of general rules and principles that they then bring to bear on new cases. For any reasonably complicated area of the law, there will be no single right answer to the question of how to combine the relevant cases to discern a set of general rules and principles. And even when experts agree about the relevant rules and principles, there will be many borderline cases as to which the way these rules and principles ought to apply is indeterminate. Law school teachers tend to focus a good portion of their questions and discussion on these borderline cases, so as to help students understand the limits of the law.
Thus, a student should be confused at the end of a good class, because a good class will have probed the areas in which the law is unsettled or confused. We might even say that if I haven't managed to confuse my students, I haven't done my job!
The key for students is to arrive at the right sort of confusion. Students should not be swimming in confusion. Rather, they should be able to see just where the law leaves gaps and ambiguities. Aiming to arrive at the right kind of confusion is simply another way of saying that law students should be able to tell the difference between questions that have clear answers, and questions that do not.
Thus we come to my second piece of advice: As you prepare for class, try to internalize the voice of your professors asking questions about the margins of the legal issues that are being covered. Go beyond the basics of each case to ask yourself how the announced rule of law applies in other circumstances, the extent to which it overlaps with or contradicts decisions in other cases, and whether the individual decision or the pattern as a whole makes sense in light of the law's purposes. These questions form the bulk of what you study in class, and so you should try to anticipate them before class.
Don't Just Read; Write and Discuss
In many of your law school classes, all or most of your grade will be based on your performance on a final examination at the end of the semester. Those high stakes can be anxiety-provoking on their own, but there is an added kicker in law school: We do not prepare you to take exams.
The bulk of classroom discussion is deconstructive. Your instructors pose hypothetical questions to get you to say whether you think a case you read was rightly or wrongly decided. Yet, on our exams, we ask you to be constructive: We provide you with a set of real or hypothetical facts and ask you how the existing law applies.
To be sure, the analytical skills we teach in class should be useful in answering exam questions. If you have been reading carefully and paying attention in class, you will have a good idea of how to synthesize different cases to yield a general rule that is applicable in new cases. You will even have some experience in making short oral statements explaining your reasoning.
What you will mostly lack, however, is practice in making a sustained written argument for a particular result or explaining the competing considerations in play. Your first-semester course in legal writing will have given you some practice in this skill, but it will not necessarily involve the subject matter of your substantive classes. And even if your instructors have provided you with practice exercises during the course of the semester, you will have spent only a small fraction of your total preparation time outside class on such exercises.
Thus, I come to my third piece of advice: Complete practice exams. Many professors distribute their exams from previous years, but it is not essential that you work with those in particular. There are websites and books containing practice exams. Beginning about mid-way through the semester, you should practice answering exam questions under simulated exam conditions. Then get together with a group of classmates to review your respective answers. You will find that the practice improves your general ability to write exams and that the discussion with classmates helps you learn the material.
Have Fun
Fourth and finally, you should try to have fun in law school. By that, I mean two things.
First, make some time to do fun things outside of your studies: exercise; go to the movies; read fiction; do some of whatever you liked to do before you committed yourself to studying the law.
Second, have fun in your study of the law. Law is both a fascinating mental puzzle and a supremely important social institution. You are studying it to become a competent professional, but in the course of doing so, you should also bring to bear the same spirit of intellectual inquiry that characterized your undergraduate studies (assuming you didn't waste your time in college). Treating your legal studies as a continuation of a liberal education will enable you to enjoy law school and will make you a better lawyer.
Writing over a century ago, Oliver Wendell Holmes, Jr. said more or less the same thing, albeit more poetically: The "more general aspects of the law," Holmes wrote, "give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite . . . ."
Even if you fail to hear that echo, the least you can do is to try to find your study of law interesting.