Monthly Archives: August 2014

August 31, 2014 · 9:00 am

What are Dicta?

Law school has started back again, and one of the common questions that law students have been asking is how to identify dicta (singular form dictum) in the cases they are reading. Black’s Law Dictionary defines dictum as “[a] statement of opinion or belief considered authoritative because of the dignity of the person making it.” In a judicial opinion, dicta are the statements made by the court about the law that were not necessary for the court to decide the case.

As a new law student it can be difficult to identify dicta at first because so much seems new about everything you are reading. As you gain experience reading cases, it will become easier to separate out the court’s necessary statements regarding the law from those that are dicta. In the meantime, here are a few tips to get you started:

(1) Not every case will have dicta—but when it does, what you are looking for are the places where the court is describing something that is not necessary to decide the case.

(2) Look for places where the court talks about the history of a legal concept. That discussion may help put the law in context (and, in fact, you may find it valuable in your studies for that very reason!), but the history of a statute or common law rule isn’t necessary to decide the issues in a particular case.

(3) Look for places where the court’s discussion of the law and facts does not address the issues raised in the case. If it does not address the issues, that discussion is not necessary to decide the case and is likely dicta.

(4) Look for places where the court is discussing a hypothetical situation. Maybe the court talks about some facts that are not actually the facts of the case, and discusses what would happen if the law was applied to those hypothetical facts—this is a really good example of dicta. For example, in the first few weeks of most Torts classes, law students read the case of Vosburg v. Putney, 50 N.W. 403 (Wis. 1891). In this case, the court held that the defendant was liable for the tort of battery because he kicked (or maybe nudged) the plaintiff’s leg. The facts of the case show that the incident took place in the classroom, after the teacher had called the class to order. The court talks about what would have happened if the kick had taken place on the playground instead of in the classroom. Because the kick did not take place on the playground, this discussion was not necessary to the court’s decision and any legal statements about the hypothetical are dicta.

(5) I always look for dicta last—if you identify the issue(s), holding, and rationale behind the court’s holding first, you will be able to more efficiently identify things that were not necessary to the court’s resolution of the issue(s).

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August 27, 2014 · 9:00 am

Socratic Method Survival Guide

Today’s post is about how to survive—and even thrive—in a Socratic Method classroom. One of the most stressful parts of the first several weeks of law school is that many of your professors will use Socratic Method. If you’re an introvert, you may find that it’s even harder to make that feeling of dread go away. When a professor uses Socratic Method, the student is in the spotlight. You can’t always predict what the professor is going to ask you (or when you will be called on!), and, if you are a new law student, you are still trying to figure out what is expected of you and may feel a bit overwhelmed by everything that you have to learn.

Here are some keys to surviving (and growing from) the Socratic Method:

Prepare: In some ways this is the obvious one, but it’s really important and worth repeating. Preparation is the foundation to all success in law school. You have to consistently do the reading, brief the cases, and review your case briefs and class notes if you want to be successful at anything in law school, including the Socratic Method. It will be almost impossible to answer the professor’s question without putting in the hard work first.

Listen: Another key to tackling Socratic Method is active listening. It can be easy to tune out what is going on when your professor is focusing his or her attention on someone else. Often professors will transfer a line of questioning from one student to the next. If you are listening closely to the dialogue that preceded yours, you will often have a better context for the questions you will face.

It is also important to listen carefully to what your professor asks you, and how he or she responds to your answers. Sometimes we tune people out once we think we know where they are going with their questions—we start thinking about our answers instead. It’s important to make sure that you hear the professor’s full question though so that you can respond to exactly what has been asked. Especially as a new law student, you will most likely not predict where the professor is going with the questioning if you do not focus on what is being said.

Engage: Not only should you listen to the questions your professor is asking of other students, but you should actively engage with those questions. Ask yourself what your response would be to the questions that the professor is asking and compare your answers to the other students’ answers. Not only will engaging help you to understand the context of the questions if you are called on next, it is also a great way of practicing Socratic Method without being the student on the “hot seat.”

Anticipate: Part of what students find so stressful about Socratic Method is the fear of the unknown. Especially as a new law student, it often seems impossible to predict what your professor might ask you about what you’ve read. Although you may not know exactly what your professor will ask you, there are things that you can do to anticipate at least some of the possible questions. First, many professors will ask questions about specific parts of the cases you have read, and creating a good case brief for each case will help you to anticipate and answer those types of questions. Second, when you have read multiple cases that relate to the same legal issue, a professor might ask you questions about that relationship. If you think about those relationships before you come to class, you will be better prepared to answer those types of questions. Third, the notes after cases often set up additional hypotheticals—professors will often use those hypotheticals, or other similar hypotheticals, as an inspiration for Socratic Method questioning. Work through the hypotheticals from your assigned reading in advance, and you will be better able to anticipate possible questions in class.

Review: Not all questions come from the current day’s assigned reading—sometimes professors will ask you to consider how a case from today’s assignment relates to or compares to something that you read a week (or a month) before. As you read for each class, ask yourself if there are any aspects from that reading that relate to previous cases that you’ve read. If you identify anything, make a note of it in the margin of your case brief so that you are prepared if the professor asks this type of question. Even if the professor doesn’t ask, the time spent reviewing in this way will not be a waste—identifying these types of relationships will help you to organize course materials for your outlines and exams.

Simulate: Finally, for students who get really stressed about being called upon and having to speak in class, it can help to simulate the Socratic Method experience outside of class. This is where having a study partner can really come in handy. After you both have read for class and created your case briefs, you can take turns quizzing each other as if you were the professor. Sometimes the experience of having to give your answers aloud to someone else, even if it doesn’t involve the same pressure that you feel in the classroom, can help you get used to being put on the spot and speaking confidently about what you have studied.

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August 25, 2014 · 9:00 am

What to Include in Your Law School Notes

Yesterday, we explored some basic strategies to taking effective notes in law school. Sometimes law students have a hard time determining what they should include in their class notes. Today, I will focus specifically on what good notes include. Although what you should take notes of can differ depending on the subject and the professor, here are some good general strategies for taking notes in your law school classes.

First, pay attention to what the professor says in class. If a professor says that something is important, you want to make a note of that. If the professor states that there is a 3-part test for some legal concept, make sure that you write down what those 3 steps are. If the professor talks about overarching themes or compares two cases to each other, note that as well. In other words, your best guide for what you should be taking notes about, what is important from assigned readings, and what might be tested on the exam is your professor. This is one reason why taking good notes in law school is so important. Students who take few if any notes won’t have this important information later when they start synthesizing course materials and studying for exams. In contrast, students who create a transcript of what happens in class won’t be able to differentiate between important information and unimportant information.

Second, remember that in the long term what the professor says in class is much more important than what your fellow students say. Sometimes students struggle with how to take notes when the professor uses Socratic Method. When taking notes in this situation, focus your notes on what the professor has asked and what the hypotheticals are about. Keep in mind that student answers may not always be accurate and on-point. Depending on what is going on in class, the professor may not take the time to point out a student’s inaccurate statements and provide the correct answer. There is also another benefit to this approach—rather than transcribing the student’s response to the professor’s questions, you can be engaged in that discussion yourself. Follow along mentally with the discussion, answering the questions in your head and comparing your answers to the other student’s answers. Make note of things that you can’t answer on your own, so that you can go back and review that material later.

Third, make careful note of any hypotheticals. Professors use hypotheticals as a way of helping students learn the nuances of the law. Maybe you have read two cases that illustrate differences in how courts resolve a legal issue. The professor may use additional hypotheticals, involving the same legal issue but different facts, to help the class better understand how courts apply the law to resolve that particular legal issue. Law school exams are based around hypothetical situations, and the more practice you have with them, the more comfortable you will be in applying law from cases to new hypotheticals when it’s time to take your exams.

Finally, sometimes professors begin class by summarizing what was covered in previous class sessions, or they may spend a little time creating a context for the current day’s reading assignment. Professors also may summarize important points from class materials at the end of class. Make sure that you take notes from these summaries, as they provide additional insight into what your professor views as important.

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August 24, 2014 · 9:25 am

Taking Effective Notes in Law School

When most people think of taking notes, they think of sitting in a classroom and taking notes while the professor lectures. In undergrad, note-taking is often a pretty passive task—students write down what the professor is saying without really processing what is going on in class. Once class has ended, the note-taking process has ended. Some students don’t take notes in class at all, instead relying upon other course materials when they study for exams.

Your approach to taking notes in law school should be very different. The first thing that new law students need to understand is that effective note-taking is a cyclical process. Your case briefs are the foundation for your class notes—by creating case briefs, you are creating a set of notes that you can rely upon in class. Then, when you go into class, you should take additional notes about what happens during class. Many law students stop at this point, but there is still a third step to creating good notes. After class is over, you should spend a little time reviewing your notes from class, elaborating upon things you didn’t have enough time to jot down during class and correcting any errors in your notes. You should also use your class notes to clarify your case briefs. Complete this review of your class notes as soon as possible after class has ended because your memory of what happened in class will still be fresh.

Should you take notes by hand or on your computer? There’s an ongoing debate over whether law students should take notes by hand or on their computers. Some professors don’t allow computers in the classroom, and in those circumstances your decision is simple—you will take notes by hand. Most professors do allow computers in the classroom, however, and that means you will have to make the choice about what is right for you.

There are studies that have found that students who take notes by hand are able to remember lectures better than those who type their notes. One of the reasons for this phenomenon is that, when you handwrite notes, you are required to think more about what you are going to write—the cognitive process is different. Because most people cannot write as fast as they type, it isn’t possible to create a transcript of everything that is said during class. Instead, someone who handwrites has to process information differently so that they can write down the important things that were said in class.

Students who take notes on their computers have a tendency to try to write down every word. When you create a literal transcript of what happens in class, you are not really processing that information. Thus, if you choose to take notes on your computer, you will need to take a disciplined approach to your note-taking. Students who use computers also have to resist the urge to be distracted, as there is always the temptation to check social media sites, surf the internet, and message friends.

Check back in tomorrow for another blog post on this topic—I will be talking about what law students should include in their course notes!

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August 19, 2014 · 10:01 am

4 Tips for Handling Criticism

Receiving criticism can be a difficult experience. As a law student and future lawyer, you will receive criticism on a regular basis–and it won’t always be presented in a positive way. One form of criticism you may receive happens in the classroom when the professor is not satisfied with a response you gave to a question. You also receive criticism in the form of feedback you get from judges after moot court or trial competitions, or, most commonly, in comments on graded assignments.

It is easy to react negatively when we receive criticism. Often, criticism can make us feel defensive–we may feel that we are under attack. Some people respond to criticism by shutting down emotionally–but it really is an opportunity for growth. The time spent in law school can be an opportunity to learn how to handle criticism in a productive way. If you approach it with the right attitude, you will grow even more as a law student and attorney. You will also find getting feedback less stressful.

Here are some tips for turning criticism into opportunities for positive growth:

Recognize that criticism is almost never personal. You may say, “Of course it’s personal! It’s directed towards me!” That’s true, but criticism is rarely about who you are as a person. Instead, criticism is usually related to your actions (or inactions), things that relate to your interactions or communications with others.  Recognizing that criticism is not meant to be a personal attack is the first step in learning how to handle criticism.

Don’t immediately react–instead, listen. Resist the urge to react defensively when you first receive criticism. Instead, listen to what the other person is saying. When we immediately start thinking of our response to what someone else is saying, we quit listening. If you listen, you will identify more opportunities for growth.

Reframe criticism as something positive. If you make the conscious choice to reframe criticism as a tool for further improvement, you will take away some of its sting. Changing how you think about criticism may not be easy, but, if you reframe how you think about it every time you catch yourself having a negative response, you will be open to those opportunities for growth.

View criticism as a communication of the other person’s needs. When you receive criticism, it may be because what you have provided to the other person doesn’t entirely meet their requirements or needs. If you listen closely to criticism in those situations, you will be able to tailor your responses to the situation in a way that is most helpful to that other person.

Learning how to handle criticism in the right way helps you to not make the same mistakes twice. When you begin to view criticism as an opportunity for growth rather than a negative experience, you will change how others view you as well. You will gain a reputation for being a good listener (a critical skill in the legal profession), and your professors, supervisors, and bosses will come to rely on your positive responses when they give you feedback. Truly, learning how to handle criticism in one of the keys to success in law school–and in the legal profession!

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August 17, 2014 · 8:35 am

Time Management and Law School Success

Image courtesy of Stuart Miles/FreeDigitalPhotos.net

Image courtesy of Stuart Miles/FreeDigitalPhotos.net

One quality that successful law students have is effective time management skills. Time management is important not only because you have to be able to manage your time in order to get everything done in law school but also because it can help to reduce your stress and keep your priorities (both academic and personal) in focus.

Regardless of whether you are a full-time or part-time student, you should approach law school as a job with regular hours. Create a schedule for yourself. The schedule should allow you to see what you need to be doing hour by hour, day by day, week by week, and month by month, throughout the entire semester. Some students choose to keep an electronic planner, accessible on a smartphone, tablet, or computer. Others use hardbound organizer or academic calendar.

Whether you choose an electronic calendar or hard copy organizer, here are some things to keep in mind as you create your schedule:

  • Set aside time for everything you need to do during the day: your classes, work schedule, and any other commitments that you have outside of law school. Don’t forget about time traveling to and from school as well, especially if you have a significant commute.
  • Block out study time for each of your classes. The general rule of thumb is that you should spend approximately three hours outside of class studying for each hour that you spend in class. For example, if you have Torts on Mondays for one and a half hours, you will then need to schedule at least four and a half hours to read and brief cases for that class. As a new law student, you may find that it takes you even longer at first to get through your assignments, as you are still learning some of the foundational things you need to be successful in each of your classes. This is very different from most students’ experience in undergrad, where assignments could usually be completed in much less time. If you do not schedule enough time to prepare for each of your classes, you will fall behind in your studies, and it will be difficult to catch back up.
  • As you schedule time to study, ask yourself: “When is my brain most alert? Do I remember things better first thing in the morning, or am I rejuvenated and ready to tackle difficult reading for several hours in the evening after I go running or go to the gym?” Schedule your most difficult tasks for the times that you are freshest, and you will maximize your use of your time.
  • Don’t forget to set aside time in your schedule to take good care of yourself. Set aside time for meals, exercise, and breaks. You will come back to your studies refreshed and much more ready to tackle the difficult cases if you schedule this type of time into your day.

Make sure that you periodically reassess your schedule. You may find that your reading in certain classes goes faster than others, or that there are weeks when you need to schedule in more time to work on a Legal Writing assignment. Tweaking your schedule will maximize its effectiveness.

 

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August 14, 2014 · 8:00 am

The Most Frustrating Phrase in Law School: “It Depends”

For those of you beginning law school this month, welcome to the world of uncertainty! From childhood, we have all been taught that there are rules—absolute truths, if you will–that guide our understanding of the subjects we have studied. We memorized dates, names, and other important facts for history class: World War II began with Germany’s invasion of Poland on September 1, 1939. George Washington was the first President of the United States. We learned in math class that 8 + 2 = 10, and 8 x 2 = 16. If you memorized the rules and applied them in your homework assignments and exams, you were ok.

On the surface, it would seem that law school should work the same way: Memorize the law and apply it on exams. After all, laws are really rules. Why shouldn’t you be able to approach law school in the same way that you approached those multiplication tables in elementary school or the periodic table of elements in Chemistry class? Although you will have to memorize a lot of rules in law school (legal tests, elements of legal claims, definitions of legal terms, etc.), law school learning doesn’t end there. Instead, the rules are merely the starting point to answering questions in law school. You will learn that the rules that you are memorizing apply in certain circumstances—unless they don’t. The result: As you immerse yourself in your studies, you will discover that one of the most common phrases in law school is “it depends.”

For example, in your Torts class you will soon learn about the tort of battery. Black’s Law Dictionary (9th ed. 2009) defines the tort of battery as “[a]n intentional and offensive touching of another without lawful justification.” This definition seems pretty straightforward. A new law student might assume that, if she applies this definition on the exam, she will be able to answer the question: Did Bob (the defendant in the hypothetical) commit the tort of battery? In reality, the answer is not as simple as it seems. A seasoned law student will know from experience that the real answer is, “It depends.” Specific facts in the hypothetical will have an effect on a law student’s analysis. For example, what if Bob intended instead to commit an assault (another type of tort), but caused a battery—will he be liable for battery when he didn’t intend that act? What if we don’t know what Bob’s intent was? What if Bob only touched the plaintiff’s purse, which was hanging from her arm, rather than part of her body? These types of facts may have an effect on your answer.

Your answer may also depend on whether there are other legal rules that intersect with the rules regarding battery. You will learn that Bob’s actions may not be a tort if he is able to assert a defense. For example, Bob may argue that he is not liable for battery because the plaintiff consented to his actions. Or maybe Bob is a police officer, acting under authority of law. Maybe Bob will argue that he was acting in self-defense. There are numerous possible defenses that Bob may attempt to assert, and those defenses may change your analysis.

The lack of absolute answers in law is one of the reasons why law students tend to find their first-year experience so stressful. Every time that you feel like you are beginning to understand a legal rule, your professor will introduce another possible exception to that rule. The law sometimes feels like a moving target—and you are trying to hit it while wearing a blindfold!

In reality, mastering the “it depends” moments in law school is one of the keys to academic success. The uncertainties create opportunities for a more in-depth exploration of the law. Wrestling with the ambiguities will improve your legal reasoning skills, making you a better law student and, ultimately, a better lawyer. It is also important to understand that those areas where you can identify uncertainties are prime areas for testing—if you identify them and plan for them as you study, you will be better prepared for your law school exams.

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August 10, 2014 · 9:00 am

Case Briefing Shortcuts

Image courtesy of nonicknamephoto/FreeDigitalPhotos.net

Image courtesy of nonicknamephoto/FreeDigitalPhotos.net

Over the past several posts, we’ve explored how to read and brief cases for your law school classes. As you’ve read those posts, you’ve probably started to realize what a time-consuming process law school studying really is! All that reading and briefing takes a lot of time, actually—and that’s why I think a cautionary note is appropriate at this point. As you read and prepare for class, resist the urge to take shortcuts. The reading and note-taking process I’ve described in my previous posts is really what you need to do to understand the material when you are a new law student.

You may hear upper-level students talking about “book briefing”—in other words, just underlining or highlighting material in the casebook and jotting a few notes in the casebook margins, without actually completing a case brief. Some students may eventually get comfortable enough with their reading that they can book brief and get by, but book briefing is not a sound approach to studying during your first year of law school for sure, and for most students it doesn’t work well even after the first year. You will get more and more efficient in your reading and case briefing over time, but you still need to do the things that give you a deeper understanding of the assigned reading and organize material in a way that will be helpful to you later, as we’ve talked about before.

You should also avoid the temptation to rely upon other students’ case briefs or commercially prepared briefs—it may seem easier and quicker to take this approach in the short term, but you will not know the material as well and will not remember it as much when you are studying later for the exam. When you rely too much upon commercially prepared materials, you are not thinking about the subject in the way that your professor has organized your course. Commercial materials can be valuable, but as a supplement—not your primary source of information for the course. Don’t forget who will be grading your exams–it’s rarely the person who created those commercial briefs.

Moreover, don’t forget that many of the courses that you are taking in law school, including all of the first-year courses, are on the bar exam. The harder you work to really understand the law in each of these courses now, the better foundation you will have when you start studying for the bar exam after you graduate.

The bottom line: there is no real shortcut to law school success—if you cut corners with your studies now, you will find it harder to be successful on your law school exams—and on the bar exam. Shortcuts are really a dead end when it comes to learning.

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August 8, 2014 · 1:14 pm

Making the Case Brief Yours: Utilizing Preferred Learning Styles

Image courtesy of jesadaphorn/FreeDigitalPhotos.net
Image courtesy of jesadaphorn/FreeDigitalPhotos.net

Over the past several days, we have explored how to read and brief cases for your law school classes. I’ve explained the various components that make up a judicial opinion, and as well as the various types of judicial opinions you may encounter in your reading. Today, I want to focus on how you make the case brief yours—how you can personalize the case brief and use it to prepare for class by drawing from your learning preferences.

Case Brief Formats: The first way to customize your case brief is to make a conscious choice about its format. Your learning preferences may influence your formatting choices. For example, some students may prefer a more traditional case brief format, with Roman numerals, bullet points, or bolded or underlined headings and subheadings. In contrast, you may color-code different parts of your case brief, draw diagrams, or create mind maps. Most students draw from a variety of these approaches, rather than settling on one standard format for all situations.

You also want to think about how you will use the case brief in the future. Although one student may prefer to handwrite their case briefs, other students find that an electronic copy of their brief allows for the insertion of class notes and makes it easier to transition to outlining later. Some students create two columns on each page—one column with the case brief information, and the other column for taking notes in class. There is no one way to approach your case brief—ultimately, you must decide what works best for you.

Using Your Case Brief to Prepare for Class: Even after you’ve created your case brief, you may use it to prepare for class in other ways. Once again, your study preferences can come in handy. For example, you may find it helpful to talk through your case brief with other students prior to class. Some students even go so far as acting out parts of the case or even acting out the Socratic Method experience they expect to have in class, having other students quiz them about the case. (In fact, you may find that practicing your responses to Socratic questions may reduce your anxiety about being called on in class!)

Experiment with the form of your case brief in the first few weeks of law school, and see what works best for you. Law students often have assumptions about what format they should use, but as they go through the semester they may find that another approach works better. Be flexible and figure out what seems most helpful both during class and as you continue studying the topic later after class has ended.

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August 7, 2014 · 10:01 am

Reading Cases: A Short Explanation of Different Types of Judicial Opinions

This week we’ve spent some time exploring some tips for reading and briefing cases in law school. In many of the cases you will read, all of the judges in the case will agree with the court’s holding and reasoning. In some cases, however, the judges are not in agreement. A case where the judges have reached different conclusions regarding the holding and the reasoning will have multiple judicial opinions. Today’s post explores the various types of judicial opinions that may be written when the judges are not all in agreement. Click on the short animated video below for more information:

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