Informative, Radical, All-inclusive, & Comforting — Mr. Miller's program has enabled me to face final exams with confidence, not apprehension.
—Jonathan Rosen, Case western Reserve '00
I don't think it occurs to many first years that you can approach a final exam systematically and thoroughly without driving yourself crazy. By taking apart the exam, piece by piece, the exam becomes manageable, and, more importantly, this takes away the feeling of being overwhelmed.
—Sean Johnson '94
Perhaps the best way to demonstrate the comprehensiveness of LEEWS instruction is to reprint in toto the Table of Contents from the 136 page text that accompanies the live and audio versions of LEEWS — The Legal Essay Exam Writing Primer (Primer). As you may judge, the topics are many, and go far beyond the scope of standard exam writing/preparation advice. Nor are they covered superficially. As you may judge from reprinted text of several topics, subjects are explored thoughtfully, practically, and with innovative insights. They are also probably not altogether comprehensible taken out of context of the instruction as a whole.
Almost every facet of LEEWS instruction reflected in the Primer is linked and integrated into an overall methodology and approach that is at once sophisticated and insightful, even revolutionary, yet easily understood in its individual components. Block upon block, an edifice of insight and practical steps of approach to all aspects of the exam writing/preparation process is constructed. Each block of information reinforces what went before and introduces what is to follow. Remove any one or two blocks, and questions will abound. Although the Primer seeks to make clear the LEEWS methodology and approach, many years of experience instruct that it is not possible for any but the most dedicated law student to grasp the methodology and approach from the book alone. Students must be guided through the building blocks, which is the function of the live and audio LEEWS programs.
Not that every topic contained in the Primer is squeezed into a LEEWS program. That is both impossible and unnecessary. Topics such as "Memorization Technique," "Common Errors to Avoid," and the "Policy" section reprinted below are easily comprehended by themselves once more fundamental building blocks of approach are in place. However, even these disparate subjects are necessarily alluded to as part of indoctrination into a system that is fully integrated.
Preface to Seventh Edition (pp. 1-4)
BAR EXAM PREPARATION AND STRATEGY
CHAPTER ONE (pp. 5-7)
THE NON-TECHNICAL BASICS
Elementary Environmental and Economic Considerations
THE FAILURE SYNDROME — Three Examples
CHAPTER TWO (pp. 8-13)
FUNDAMENTALS OF BAR EXAM STUDY STRATEGY
Choice of a Bar Review Course
Constitution of an Effective, Two-phase Study Strategy and Routine
PHASE ONE — The Daily Routine
PHASE TWO — The Home Stretch
Troubleshooting Your Practice Exam Performance
PREPARING FOR AND TAKING THE HYPOTHETICAL-TYPE LAW ESSAY EXAM (A SCIENCE OF PREPARATION, ISSUE IDENTIFICATION, ANALYSIS, AND PRESENTATION THAT MAKES HANDLING ANY ESSAY IN ANY EXAM IN ANY SUBJECT A PREDICTABLE EXERCISE)
CHAPTER ONE (pp.14-18)
THE PROBLEM DISSECTED
The Failure of Law School and Law Professors
The Conventional Wisdom of Essay Exam Writing / Preparation (It isn't enough.)
CHAPTER TWO (pp.19-23)
PERSPECTIVES ON THE EXAM, THE PROBLEM, THE PATH TO A SOLUTION
The Nature of the Beast
The Response of the Typical Examinee (an exercise in survival, not mastery)
Getting a Leg Up on the Problem (breaking the hypothetical — any hypo! — down into units)
CHAPTER THREE (pp. 24-27)
FUNDAMENTALS OF APPROACH — PRELIMINARY DO'S AND DON'TS
Preparation for the Exam Prior to the Exam
First Things First — Arrival at the Exam / Getting Ready
The First Ten Minutes of the Exam — Avoiding Major Mistake No. 1
The First 2-3 Minutes of the Exam — The Preliminary Overview
Planning (Outlining) Your Response
CHAPTER FOUR (pp. 28-31)
PLANNING PHASE — STEP ONE (reprinted below)
The Role of Conflict in Law, Legal Problem Solving, and All Law Essay Exams (reprinted below)
Conflict and the Lawyer's Role (reprinted below)
Examples of Conflicts, Conflict Pairings, and Objectives
What Lawyers Do in Advising Clients Is What You Want to Do on the Exam
Exercise in Application of Step One
CHAPTER FIVE (pp. 32-34)
MENTAL COMPONENTS OF AN EFFECTIVE APPROACH
The Importance of Attitude — Avoiding Major Mistake No. 2
CHAPTER SIX (pp. 35-40)
PLANNING PHASE — STEP TWO
Use of the Course Outline, Movants and Respondents, the Counterpremise
The Premise (a/k/a Manageable Component, a/k/a Relevant Issue)
When Do I Really Read the Facts? (reprinted below)
The Importance and Role of "Knowing the Law"
Development and Use of the Course Outline in Step Two — The Toolbox Analogy
Exercise in Application of Step Two
CHAPTER SEVEN (pp. 41-42)
THE THIRD MAJOR MISTAKE — LACK OF OBJECTIVITY
CHAPTER EIGHT (pp. 43-51)
"ISSUES" AND "REAL ISSUES"
"Issue Spotting" — The Problem Solved (by "The Blender") (reprinted below)
Perspective Update (reprinted below)
"Elements," the Nitty-Gritty of "Lawyerlike Analysis"
"Lawyerlike Analysis" Explained and Demonstrated (finally!)
Identifying the "Real Issue"
The Shape and Content of the Exam Outline Post Step Two (+ more on Movant/Respondent)
Counterargument versus Counterpremise
CHAPTER NINE (pp. 56-55)
PLANNING PHASE — STEP THREE
Major versus Minor Issues
The Shape and Content of the Exam Outline Post Step Three
Running Out of Time (reprinted below)
Exercise in Application of Step Three
RECAP OF PLANNING STEPS OF APPROACH AND MAJOR MISTAKES
Perspective on the Solution Thus Far (reprinted below)
CHAPTER TEN (pp. 56-58)
THE WRITING PHASE — PRELIMINARY ASPECTS
No Literary Masterpieces, Thank You
Toward Effective, Grammatical Prose — A Quick Fix
Consideration for the Grader
Labeling, Spacing, and Other Fine Points of Exam-writing Etiquette
CHAPTER ELEVEN (pp. 59-73)
THE WRITING PHASE — A FORMAT FOR ALL SEASONS
Beyond IRAC -- A Format for All Seasons
IDENTIFICATION OF THE HYPO AND QUESTION/INSTRUCTION (OR PAIRING) UNDER CONSIDERATION
SHOULD YOU INDICATE OR INTRODUCE THE CONFLICT PAIRING OR NO?
INTRODUCING THE PREMISE (ISSUE)
THE FORM AND CONTENT OF EACH PARAGRAPH (THE DISCUSSION)
Ugly, but Effective (UBE) Analysis
The Statement of Conclusion (It's unimportant. Get good at the Game.)
As Per the "C" of IRAC, the Conclusion Generally Follows the Discussion
The Wrong and Right Way to State a Conclusion
The Ebb and Flow of Litigation (more on lawyerlike analysis and the difference between premises, counterpremises, arguments, and counterarguments)
Cutting to the Chase Amid the Ebb and Flow — Dispositive Arguments / Premises
Use of the Format (and supra, infra) to Save Time
Exercises in Application of the Format
CHAPTER TWELVE (pp. 74-78)
THE WRITING PHASE — MISCELLANEOUS MATTERS
Common Errors to Avoid
Citation of Case Names, Statutes, Etc. (Generally, don't.)
Previewing a Logical Sequence for Discussion
Impress the Professor Early (i.e., in the first 2-3 pages)
Toward More Lawyerlike Analysis (Imagine each party/client is real.)
Know Your Law Professor (E.g., does she really want policy discussion?)
"Policy" — What is it? If a professor wants it discussed — where, how? (reprinted below)
CHAPTER THIRTEEN (pp. 79-86)
PREPARING FOR THE (LAW SCHOOL) EXAM
Mastering the Law (by properly preparing a case, etc.)
Getting the Most Out of Class (assuming you go) / Hornbooks, Restatements
Taking Fewer Notes in Class / The 2-4 Line Alternative to Conventional and Book Briefs
The Role of Commercial Outlines (reprinted below)
More on Developing the Course Outline (synthesizing, content, form, length, etc.)
What to Do When It Is Late in the Game (i.e., exams are a couple weeks or even days away)
"Open Book" Versus "Closed Book" Exams
"Take Home" Exams
Memorization Technique, Etcetera
MULTIPLE CHOICE, SHORT ANSWER, TRUE / FALSE
AND OTHER NON-ESSAY "OBJECTIVE" EXAM FORMATS (pp. 87-89)
Multiple Choice ("Multistate Bar Exam")
Short Answer and True/False
APPENDIX (PP. 90-136)
[Contains eight practice hypotheticals, models of planning, and model responses for each (in accordance with the LEEWS approach and format) in the following subjects — torts; combination contracts / agency / property / evidence (bar exam hypo); civil procedure; criminal law; corporations; constitutional law; evidence; and wills.]
PLANNING PHASE — STEP ONE
The very first thing you do after reviewing exam instructions is the Preliminary Overview just described. This should bring you to a consideration of the question(s)/instruction(s) at the close of the first hypothetical. 1 Now perform what we'll call "Step One."
STEP ONE IS TO IDENTIFY ALL CONFLICT PAIRINGS RELEVANT TO THE QUESTION(S)/INSTRUCTION(S) AT THE CLOSE OF THE HYPOTHETICAL, AND THE OBJECTIVE OR OBJECTIVES OF EACH PARTY TO EACH PAIRING. Sometimes Step One can be performed merely by inspecting the question(s)/instruction(s). (E.g., the criminal law hypo on p. 113). Certainly, you want to glean whatever clues the question/instruction offers. However, normally go through the facts for the first time, but quickly, and with a limited objective — namely, find relevant conflict pairings and objectives.
Now the going gets a bit sticky. To better enable you to comprehend this step, it is necessary to extricate you from the academic mindset that law school does little to correct (especially where thinking about practical legal problems is concerned), and orientate you to the "real world" province of lawyers thinking about clients' problems. Let's take it in stages.
The Role of Conflict in Law, Legal Problem Solving, and All Law Essay Exams
If you but think about it a moment, you will realize that the raison d' etre of a system of law is conflict resolution, nothing more. Statutes, legal precedents, lawsuits, etc. are first and foremost concerned with the resolution of present or (anticipated) future conflict. Why, for example, would Congress, the federal regulatory bodies, and the various state and municipal legislative bodies concern themselves with the drafting and enactment of legislation, regulations, and the like, if it were not in response to a problem (and resulting conflict) that had arisen (e.g., air pollution and those who favor and oppose certain emission restrictions; abortion; highway safety measures, etc.), or is anticipated to arise (e.g., proposed treaties regarding the permissible uses, etc. to which nations may subject space and the ocean bottom)? To put the proposition another way, if there were no problems, no conflict (if we were in Heaven!), would we need law, lawyers, judges, courts, legislatures, and the like? Would the very concept of law have meaning?
Conflict and the Lawyer's Role
Lawyers don't have to wax philosophical to comprehend the central role of conflict in their profession. They understand that they are advocates for individuals, groups, and institutions that seek to prevail in obtaining some objective. "Prevail" presupposes some opposition or obstacle to overcome. Whatever that opposition or obstacle (another person, an entity [corporate, etc.], a rule or regulation, lack of finances, the objections of opposing counsel in court, bureaucratic/legislative inertia, etc.), it creates a conflict situation. The lawyer will seek to resolve the conflict in a manner favorable to her client's interests. She will seek to overcome the opposition, best the adversary [hence, "adversary system"]. Legal principles, precedents, policy, facts, analysis, and persuasive argument are the lawyer's tools and means to accomplishing this end.
When Do I Really Read the Facts?
At about this point in the live program students often ask this. What they mean is, "When do I immerse myself in the hypothetical, and very carefully read the facts." I invite the answer from other students, and they, having better grasped the clear implication of the Preliminary Overview, Steps One and Two, respond, "NEVER!!"
Understand what it is you must not do. Immersion in facts is what gets students in trouble — Major Mistake No. 1. WHAT THE LEEWS SYSTEM IS ALL ABOUT IS A PIECEMEAL APPROACH. In Steps One and Two you are reading facts. But only limited facts. Facts relating to who is against whom — conflicts. Facts relating to possible party objectives. Then facts relating to one party, one objective, that generate premises. This likely means focusing on a phrase here, a sentence there, at most a paragraph. Always read selectively, only seeking ELEPHANT.
You needn't worry at all about "really reading the facts." In this piecemeal approach you'll review the facts again and again, when and where appropriate, each time with a different purpose, a different perspective, with differing definitions of ELEPHANT. When you analyze premises, you'll probe relevant facts more deeply than you can at this point imagine. You'll find more than the typical, unfocused immersion in facts can possibly reveal. But everything in its proper, disciplined sequence.
"ISSUES" AND "REAL ISSUES"
"Issue Spotting" — The Problem Solved (by "The Blender")
In the book, ONE L, an account of best-selling author, Scott Turow's, first year at Harvard Law School, the essay hypothetical-type exam is termed an "issue spotter." You have undoubtedly heard or will hear the conventional wisdom that "issue spotting is the name of the game" on essay exams. This is only half true, but you should feel very encouraged. You now have a system for not only identifying all issues, but very likely issues the professor missed [!!].
The "issues" referred to correspond, of course, to legal inquiries -- i.e., was service proper?; was there an assault?; was the contract breached?; was the will valid?; was the ordinance constitutional?; etc. If, as you peruse a hypothetical, you are able to identify such legal inquiries for resolution, then you are "issue spotting."
Returning to our steps of approach, IF YOU IDENTIFY A RELEVANT CONFLICT PAIRING AND OBJECTIVE OF ONE OF THE PARTIES (Step One), AND A COLORABLE PREMISE THAT THAT PARTY MAY ADVANCE IN ATTEMPTING TO GAIN THAT OBJECTIVE (Step Two), THEN YOU HAVE "SPOTTED" AN "ISSUE." You need only pose the question, "Can [the premise] be established?," to state the issue. [Note the distinction. PREMISE does not equal ISSUE. Question, WILL THE PREMISE SUCCEED? = ISSUE.]
For example, respecting Pucker Nicely's objective of getting money from Direct Hit, battery, assault, and intentional infliction of mental distress (IIMD) are colorable premises she could advance. Pose the questions: can battery be established?; can assault be established?; was there IIMD?, and three issues are apparent. But are they issues the professor wants you to spot? Are they "relevant issues?"
Certainly, they seem relevant to the instruction at the end of the torts hypo — "Discuss the rights and liabilities of all the parties." Indeed, IF A PREMISE IS RELEVANT TO AN OBJECTIVE, PARTY, PAIRING THAT IS RELEVANT TO THE QUESTION(S) / INSTRUCTION(S) AT THE CLOSE OF A HYPOTHETICAL, THEN THE ISSUE POSED BY ASKING WHETHER THAT PREMISE CAN BE ESTABLISHED — WILLY NILLY! — WILL BE RELEVANT. Thus, IDENTIFY (SPOT) RELEVANT PREMISES, AND YOU IDENTIFY (SPOT) RELEVANT ISSUES!
STEPS ONE AND TWO SOLVE THE PROBLEM OF ISSUE SPOTTING! I call them (together with the Preliminary Overview) "the Blender." PROCESS ANY PROFESSOR'S (OR BAR GRADER'S) FACT PATTERN AND QUESTION(S) / INSTRUCTION(S) WITH "THE BLENDER," AND THE PREMISES THAT EMERGE REVEAL RELEVANT ISSUES. It will become apparent, however, that identifying issues, albeit a very important part of the process, is hardly all there is to effectively addressing the essay hypothetical. Indeed, you are just warming up to the task (and art!) of being lawyerlike.
Understand what we are about. A key problem of the essay exam is the unpredictability of the question(s) / instruction(s) posed following a fact pattern. One professor instructs, for example, "Draft a set of jury instructions ...." Another instructs, "Imagine a conversation between Supreme Court Justices Scalia and Ginsberg ...." Another, "Suppose you are a Martian who has digested the Uniform Commercial Code in a matter of seconds...." Should you review old exams (as you should), you will encounter a myriad of question/instruction types. You don't want to find yourself, as many students do, sitting in the exam, scratching your head, puzzling, "What does my professor want me to do?" 2
The answer is -- the same thing, every time! If the exam tests progress in becoming a lawyer [What else would a law school exam test?!] 3 then. bottom line, there is only one thing a professor could possibly want (whether he or she consciously realizes or articulates it) — given my facts, my subject (torts, agency, etc.), and the parameters of my question(s) / instruction(s), identify and anlyze all legal issues that would be of interest to a judge or lawyer. In effect, THE QUESTION/INSTRUCTION FOLLOWING ANY HYPOTHETICAL, BOILED DOWN TO ITS ESSENCE, IS INVARIABLY THE SAME — FIND AND DISCUSS ALL RELEVANT ISSUES!
If you had a strategy or mechanism for consistently revealing relevant issues, no matter the (unpredictable) form of the question / instruction, you would thereby always be in control of the exercise. You now have such a strategy/mechanism — The Blender!
You don't want to become confused attempting to puzzle out the unpredictable, often quirky question(s) / instruction(s) emanating from the often mischievous minds of law professors. Rather, you want to process every question/instruction into a series of narrowly focused legal inquiries (issues!) that don't confuse, and that are straightforwardly dealt with (in a series of concise paragraphs, roughly one per issue). THE BLENDER IS YOUR TOOL FOR TAKING CONTROL, FOR MANAGING A HYPOTHETICAL AND MAKING ITS RESOLUTION PREDICTABLE.
Running Out of Time
As noted previously (p. 27), the time limits allotted to hypos by professors are merely estimates of necessary time, usually low estimates. Should you find that you are running out of time, and a number of topics in your examoutline remain to be addressed, in lieu of a fully developed response, recreate the portion of the outline not yet reflected in your response, more legibly and more fleshed out. Alert the professor to the additional issues (premises) you are prepared to discuss. Sketch the key points you would make with respect to each such issue (real issues and dispositive arguments). Briefly conclude. In this way you maximize credit for issues and points identified. You also avoid the familiar (and unavailing) excuse for incompleteness appended plaintively to the end of so many exam responses — "Ran out of time!"
Perspective on the Solution Thus Far
EVERY ESSAY HYPOTHETICAL PRESUPPOSES YOUR DISCOVERING AND ANALYZING A SERIES OF RELEVANT ISSUES.Doing this with skill and efficiency is the task in a nutshell. At this juncture you are hopefully intrigued with the promise of the LEEWS approach. There is a science here that goes far beyond standard exam writing wisdom. However, you are also likely overwhelmed, perhaps unnerved by the prospect of mastering the instruction you have encountered. The hypothetical-type exam is a significant challenge. It demands a confident, skilled response by one thoroughly versed in relevant law. There is no question that there is much work to be done. However, take it in stages.
First, understand that you cannot master this approach in one sitting or several. You must devote yourself to mastery of the many facets of the LEEWS approach one at a time, and over a period of days and weeks. Genuine understanding (and appreciation) will come only with practice. Review the advice on page 4, supra, respecting a practice regimen, and follow it.
At all times keep in mind (as a kind of beacon and unifying principle) the overall objective that these steps, methods, and instruction are designed to achieve — MAKING THE HANDLING OF ANY HYPO IN ANY SUBJECT (no matter the question/instruction posed) A PREDICTABLE, CONSISTENT EXERCISE. Namely, reduce every hypothetical to a series of manageable components = relevant issues to be addressed in roughly one paragraph per. The list of premises you develop via The Blender (Preliminary Overview, Steps One and Two) largely define and constitute those components/issues.
As set forth in the important perspective offered on page 35, supra, YOUR TASK, DAY-BY-DAY THROUGH THE SEMESTER IN PREPARATION FOR THE ALL-IMPORTANT FINAL EXAM IS TO GATHER (in your course outline) AND UNDERSTAND (by applying them) PREMISES. Extract premises from assigned readings (cases, etc.) and class discussion. Organize them (on a weekly basis) in your "toolbox" (course outline) for speedy reference during Step Two. Master them by using them. I.e., apply them in the context of the cases, etc. in which you find them. Think about what change[s] in the facts would cause the majority to go with the dissent, the dissent with the majority, a concurring judge with the majority opinion, etc. (See pages 79-81, infra.)
The preceding instruction, in sum, sets forth an approach designed to reveal in disciplined fashion, within 10-15 minutes of the start of any exam, a list of premises = relevant issues! Some of that instruction (especially pages 41-48), and the instruction that follows, is designed to make you adept at analyzing and presenting your analysis of these premises/issues in a series of concise, orderly paragraphs, roughly one per premise/issue. Having such a structured approach to pulling apart and handling any hypothetical enables you to manage IanyI exam, rather than merely react to it. This should give you great confidence. If nothing else, you have definite things to do at all times on any exam — a major plus! Carry on! (We didn't say this would be easy!)
"Policy" — What is it? If a professor wants it discussed — where, how?
"Policy" has to do with the custom, tradition, morality, and especially the public good and practical aims underlying and served by a legal construct. Another word for policy is "rationale." It is the reasoning and thinking behind a legal precept. Very simply, it is the why behind a rule. For example, until the 1960's it was settled law that no warranty of habitability attached to rented property, including apartments. The tenant took the "leasehold" as he found it. This had been so since feudal England, where the "leasehold" contemplated was land, which could not be warranted to produce crops. As for the cottage on the land, the yeoman farmer was deemed able to fix the roof, etc. But what of an apartment in a modern highrise building, where the tenant has no control over plumbing, etc.? Clearly, the landlord is in the best position to bear responsibility. So the law was changed. A warranty of habitability was found to run with an apartment lease. 4
Never be content to think, merely, what is the law. Also query why? This will aid in remembering the law. If the answer to why makes no sense, then perhaps the law needs changing. The policy rationale underpinning and justifying the law has likely shifted.
"Policy discussion," then, has to do with exploring the why and how of the law. Does the rule's application and/or the outcome dictated thereby serve the practical and societal aims intended? Is modification of the rule needed to better achieve those aims? Do competing aims or unintended results enter the calculus respecting what should occur in a just and equitable universe [the latter the aim of any fair legal system]? Is a new rule required? Clearly, here is grist for philosophizing, for class discussion that spirals into abstraction and fuzziness. This partially explains why students have such difficulty following professors who are "into policy."
Such spiraling, fuzzy abstraction is precisely what must be avoided in an exam response. Recognize that POLICY IS BUT ANOTHER TOOL AVAILABLE TO A LAWYER IN ADVOCATING FOR HIS CLIENT. So long as the law and its application to facts achieves a desired result, a lawyer has no interest in policy (i.e., the why of that law). But should a creative lawyer find himself at an impasse on existing law and facts, about to lose, an argument for a modification of the law, for an exception to the rule, for even the overthrow of existing law may provide an avenue to yet prevail. [Note that facts are facts! They cannot normally be changed or even added to in a hypothetical.] Such an argument will likely be grounded in policy.
Is such a "policy argument" legal or factual? Answer — because it seeks a modification or reinterpretation of law, it is a legal proposition. Therefore, in the LEEWS scheme of things A POLICY ARGUMENT IS A PREMISE (or counterpremise, depending upon order of argument). Should you determine that policy discussion is wanted by your professor, introduce it by asserting, as a premise or counterpremise (to start a paragraph!), the new interpretation of or challenge to the viability or application of a rule or legal concept. The modified legal construct, if established, would possibly achieve the objective of the party asserting it. The resulting discussion of the basis and feasibility of this modification (i.e., what the law could or should be) will be policy discussion.
For example, consider Mrs. Nicely (Mrs. N) versus DH, and her premise of IIMD (discussed p. 97, infra). Mrs. N's attorney runs into the problem that DH's calculation was to distress PN, and the law is that IIMD may not be established through transferred intent. Since other ways of establishing IIMD exist -- See the model response. Better yet, think through it yourself. --, Mrs. N's attorney would likely not challenge this bar to third party IIMD claimants. But what if no other options existed? What if IIMD could only be established through transferred intent? To challenge the rule barring this you would have to look to the why of the rule. [Do so before continuing.]
The rationale for disallowing third party IIMD suits is the eminently practical consideration that too many lawsuits would result (i.e., open floodgate). This rationale seems impervious to challenge. Yet you might argue for an exception, a narrow application that would not open the floodgate. You might argue, for example, that the conduct is deserving of punishment, irrespective of victim, that Mrs. N is closely related to the intended victim, that it occurred on PN's doorstep (where a relative might be anticipated), that it was a one-on-one encounter. Out of similar reasoning was born [in South Carolina in 1986] the tort of "negligent infliction of emotional distress." 5 Presumably out of such policy balancing (deterrence and punishment of unseemly, harmful behavior, versus floodgate concerns) was born the exception (p. 91) for "reckless, shocking and outrageous" conduct.
Note that THE PRIMARY REASON STUDENTS HAVE DIFFICULTY FOLLOWING POLICY DISCUSSION IN CLASS IS THAT THEY DON'T KNOW RELEVANT BLACK LETTER LAW — COLD! Only if you know what the law is (and how to apply it), can you think with any profit about what the law could or should be. The policy emphasis of many professors misleads students into thinking that black letter rules are unimportant. You now know better.
As exercises in policy thinking, think about why the degree of murder is higher for killing a policeman or prison guard than for killing an ordinary citizen. Why are "excited utterance," "dying declaration," "admission against interest," and "business records" exceptions to the hearsay rule? 6 What is the rationale for their admittance in evidence? (See p. 129, infra.)
The Role of Commercial Outlines
Professors typically advise against purchasing commercial outlines — Gilberts on Contracts, Emanuels, Legal Lines, etc. — and other study aids. Some go so far as to say, only semi-seriously, "Don't let me catch you with a commercial outline." Yet, should you visit that professor in her office, you would likely see a commercial outline or two on the shelf. So why do they admonish against the use of such outlines? It is basically that they are concerned lest students substitute reading outlines for reading the casebook (as many upperclassmen do).
I do not advocate not reading cases. Cases provide the "blocks of wood" (i.e., fact patterns you can alter) on which you will practice with your new tools. However, CASES CANNOT BE YOUR ONLY SOURCE OF BLACK LETTER LAW. Cases must be read in conjunction with a commercial outline. 7
It is not the purpose of the so-called "case method" of instruction to teach the law, per se. Rather, the case method is designed to instruct, via the reading of judicial opinions and lawyer arguments, the application of law to facts — i.e., how to think and analyze as a lawyer. It doesn't work very well, of course, 8 but that is now the problem of those untutored in LEEWS. Your cases, appellate opinions all, only explore real issues (those aspects [elements] of the legal rule[s] deemed determinative that are contested beyond the trial level). Thus, cases characteristically do not investigate, nor even present all elements of the legal rules they introduce. For example, one element of defamation [whether written — libel, or spoken — slander] is "communication to a third party." Should the facts of a case purporting to introduce defamation describe a defendant "in front of an audience" when uttering the alleged defamatory remarks, it is unlikely that communication to a third party will be discussed in the opinion. This necessary element will have been stipulated at trial (lest the defendant risk arousing the trial judge's ire by contesting an obvious non-issue). Very likely there will be no mention whatever of this element. Therefore, should you rely solely on the case, your knowledge of what constitute's defamation would be incomplete.
This is where a commercial outline comes into play. The quality of judicial opinions varies. At some point you may find yourself wondering, "What the heck is the law?" Then simply look up the law in the commercial outline. There it is, clear and complete. Now you have perspective. You see all the elements. You perhaps become aware of an exception that was not mentioned in the case because it wasn't relevant. You note that the rule introduced by the case is actually corollary to a more general rule. You place the law in its larger, more complete context. This helps to better understand and remember it.
The purpose of the commercial outline, then, is to provide a source of complete black letter law, clearly set forth and in context. Commercial outlines are 200-300 pages long, and you will not be responsible for their entire content, perhaps only a quarter to a third. The cases (abetted by class discussion) are a guide to what law is likely to be relevant on the exam. COMMERCIAL OUTLINES FLESH OUT THE LAW CASES POINT YOU TO. They also act as a check on whether the law extracted from cases is correct and complete. Commercial outlines further assist in framing and building the course outline/toolbox (see below).
1. Note once again (see p. 26, supra) that you should not find yourself trying to decide which hypothetical you would prefer to address first. Such a decision would imply that you had looked at the facts, which you are not supposed to do in the Preliminary Overview. To make a determination that you would prefer to address one hypo over another will mean risking Major Mistake No. 1 (p. 24, supra). Better to simply follow the chronological ordering of exercises, giving each one approximately the time suggested.
Caveat: As previously noted (pp. 20, 26), on rare occasions the professor will offer a choice of hypotheticals (e.g., "address three of five"). This is thought to be progressive. The typical exam will touch upon no more than 40-60 percent of the material covered in the course, and you will likely have gaps in your knowledge (because you were absent, weren't paying attention, etc.). Having a choice of hypos presumably avoids the (unfair) possibility of a 5 percent gap in knowledge causing you to blank on a hypo worth, perhaps 20 percent of the exam. You can elect one that you can handle. The problem is that it is nigh impossible to know that you can "handle" the exercise until you are deeply involved with it. That risks the frenzied attempt to spot issues that characterizes Major Mistake No. 1.
As noted (p. 26) my advice in this regard is twofold. First, simply avoid the choice altogether. Address the first three hypos, whatever they may be, and in chronological order. Second, if you must choose, involve yourself with the facts just long enough to decide which hypos seem especially tough. Those are the ones you should address. Broken down by the LEEWS issue identification approach, the most daunting hypos become manageable (one unit, one paragraph after another). Meanwhile, classmates will likely avoid them. Thus, you will face less competition. You may even impress the grader with your daring. Moreover, knowing law professors [only in law school might you be given a choice], the hypothetical that upon first reading seems easier is likely suckerbait. Beyond the obvious issue or two that draws you to the hypo, doubtless lurks a killer of an issue that many will not even recognize. Back
2. Once again, the bar format poses less of a problem. Bar question(s) / instruction(s) are rarely open ended, never whimsical or cute. They are typically straightforward, of the type: "How should a judge rule on the following motions? Back
3. Beware the professor who inclination is nonlegal, say, heavily economic, sociological, or even historical. His exam may seek something different. If the tenor of the class raises questions in this regard, talk to former students. Of course, you will look at old exams if any are available. You could also query the professor about what he expects. Back
4. Green v. Superior Court,, 10 Cal. 3d 616. Back
5. Kinard v. Augusta Sash, 336 SE 2d 465. Back
6. Which excludes [as unreliable] statements of an out-of-court declarant sought to be admitted for their truth. Back
7. Students often ask which commercial outlines I recommend. I offer no opinion in this regard. Rather, once you understand the concept of premise, which outline sets forth the law in a way that appeals to you? COMMERCIAL OUTLINES CANNOT BE A SUBSTITUTE FOR CASES. They don't offer fact patterns for practice in applying the law. They also don't offer policy aspects, recent developments, and other insights that may be provided by your professor. Certainly you should purchase used outlines. For that matter, locate the used book exchange at your school or bookstore, and purchase used casebooks. And sell the casebooks you have purchased new (for a small fortune) new as soon as you are finished with them (i.e., before the next edition comes out). You won't use them for the bar exam or in law practice. My understanding is that the Emanuels outline series can be downloaded free with your Lexis-Nexis research key. Back
8. As evidenced by student exam responses and grades, the case method (in conjunction with Socratic teaching) fails abysmally in this aim. Many among law school faculty and administration seem to recognize this. Hence the constant interest in alternative offerings. (E.g., clinical and work study programs, etc.) However, in the absence of a proven worthy successor, and given the circumstance that the case method succeeds for a few, the widespread and specious notion that only a few have the "right stuff" persists, and buttresses the continued forced march of the vast majority of law students through three years of confusion and discouragement. Back