Jessie Zaylía's Law (and Law School) Blog

How I Passed the California Bar Exam

2011-11-22T02:34:00.000-08:00

I just received an awesome comment by an anonymous person on a blog that I am deciding to delete ("What I Should Have Done the First Time I Took the CA Bar"). I am deleting that video because I recorded it regarding the preparation for my second attempt at the bar, before learning of my results.

Now, that I have passed, I believe I'm in a better position to adequately respond the the kind comment by Anonymous, which stated:

"Hi Jessie, I once read your ask why twice article a while back while I was in law school. Coincidentally, I found you in the comments from Grand Poobah's blog. I really like your writing style. You have a very clear thought process. Congrats on the bar exam. I hope you will tell us about what you did this time around. You should definitely blog about being a practicing lawyer when you get sworn in, too. It's tough out there (in the job market)."

Awwww! :D

So, without further ado, here is my blog about precisely what I did to pass the California Bar Exam -- the beast that it is.

Note: Yes, there are in fact 3 videos here. The total investment time in watching these is about 35 minutes. I believe, however, that (especially for repeat bar takers) this could very well resonate with you, and, similar to my other law blog entries, help clarify the "how" part of the exam.

And why is it, by the way, that all video thumbnails suck so badly??? Ah, well. Here are some links to the books/products/information that I used and recommend:

PMBR (Kaplan) MBE Combination Course
Strategies & Tactics for the MBE (2010)
The Bar Code Cheat Sheets in Action (3rd ed.) by Whitney Roberts
Nailing the Bar (2009) by Tim Tyler
My Own Advise (that I should have listened to in the first place!); note: use this entry as an analogy to the application/analysis portion of your essays and PTs
Conviser Mini Review (California); by the way, I simply googled this and found one on Amazon!
My T-shirt (thought I'd save you the trouble in case you actually want to implement my shirt idea)

Also, one keeper tidbit of info from the blog entry that I'm deleting must survive: Here's the link to a New York Times article about a recent study that just came out in Science in January 2011. It was conducted at Purdue. The conclusion of the study is in the title of the NYT article: To Really Learn, Quit Studying, and Take a Test.

Good luck, everyone! I know you can do it! :D

How to Get Published & Why it Matters

2010-11-26T19:09:00.000-08:00

Whether you're on a law journal or not, having a publication can be a real boon to any resume. Nearly all law schools required a writing component, where you have to take a paper course. There's no reason that you shouldn't be able to take that paper and publish it. I'm convinced that I landed some of my most prestigious law school internships from my publications, not my GPA.

A publication really sets you apart. Most law students have not published anything. Ever. So, when a perspective employer sees "PUBLICATIONS" as a category on your resume, he/she will likely be impressed and curious. That's a good thing.

Note: This blog entry is NOT about how to write a publish-worthy piece. Rather, this blog assumes that you have written something excellent and explains the process of getting that fabulous piece of work published.

You are going to need to know how to do the following:

develop good key words
write an abstract... a good one
write a cover letter for law journals in which you want to get published
create a CV (curriculum vita)
submit all of these things together with your paper

At the outset, know that a paper submitted for publication by a student is called a comment, not an article. This is specific to the legal field. In non-law academia, all published pieces are called articles. Also, when you refer to your own comment, whether in an abstract or in the paper itself, you will capitalize the word "comment." Ex: This Comment seeks to explore blah, blah, blah.

Key Words:

Key words are important because they help future scholars find your article. There are certain DOs and DO NOTs associated with creating key words. Let's begin with the DO NOTs.

DO NOT use the same words that appear in your title. This creates a redundancy. When people search for certain key terms, of course words that appear in your title will come up in that search. Therefore, you want to make your key words work for you in case somebody is trying to find a paper like yours but has not used words in your title.

DO think of synonyms for words in your title. Also, think of the type of law you are discussing in your paper. If you have written about an entity, you'll want to use that as a key word. Finally, if you discuss an important piece of legislation not mentioned in your title, use that.

One key word can actually consist of more than one word. I know this seems confusing, but it's true. So, for instance, here is a title of a paper, and here is a list of key words (usually, you want 5-8 key words):

Title: Mass Meat Consumption, Human Rights, and Animal Welfare: An Alternative Appeal to Limitative Federal Legislation

Key Words: food, water, environment, property, EPA, Declaration of Human Rights, NAFTA

Abstract:

The abstract appears at the beginning of your paper, under the title, and before the Table of Contents.

Its purpose is to act as an extremely concise synopsis of your entire paper. Usually, journals limit the number of words that an abstract can contain. Law journals usually place this limit at 200 or 250 words, so there's no room to mess around. Here's how to do it:

Goal:

The first sentence literally states the goal of the paper in non-b.s. terms. By that, I mean you must flag for the reader that you're talking about the goal of your paper. How do you do this? Simply write, "The goal of this paper is to . . . " That's it. If you prefer some kind of synonym to the word "goal," like "purpose," fine. But just get to it, and do that in the first sentence.

Ex. (taken from a different paper than the one I listed under Key Words): This paper sets out directive arguments based on international treaties as well as a combination of U.S. and Indian law for the impending Indian Supreme Court decision that will determine the extent to which corporations’ water rights may impose on basic human rights to potable water.

Background:

The second sentence should explain briefly some facts about the issue that your paper is addressing. If the issue is controversial, you can use the next sentence to demonstrate the facts of the other side of the story. This will show the reader that you can be objective, and this makes you a more trustworthy author.

Ex.: Companies like Coca-Cola, which rely on access to an abundance of water for their products, have set up factories in India and provided employment for nearby residents. On the flip side, an Indian appellate bench sacrificed a community’s access to water for Coca-Cola’s absolute property rights.

The next few sentences--tops--should discuss, in order, the effects/implications and the current state of the legal matter (whether the legal matter you're addressing is a law, a case, or whatever).

Ex.: As a result, Indian women, with whom many societies charge the daily procurement of water, must travel farther and farther to fetch the family water. The effects of Coca-Cola’s water extraction have caused political uproar within and across Indian communities. Now, the Indian Supreme Court must decide whether companies like Coca-Cola retain absolute rights to any and all water beneath their real property; the fates of companies like Coca-Cola and communities’ livelihoods rest in the Court’s hands… and there the decision has rested for years.

The "So What?" Factor:

Explain in one sentence why your issue matters. Is there a separation of powers issue? Will the resolve or lack thereof forever change employment law? Tell me: Why does your paper legally matter?

Ex: This case may spur international movement either toward or away from multinational corporations’ absolute property rights in the face of thirsting and drought-affected communities worldwide.

The Normative Factor/Conclusion:

In one sentence, tell the reader what "should" be done and why.

Ex.: The Indian Supreme Court should rely on CEDAW, the CRC, its Constitution, court precedent, and the public trust doctrine in order to both satisfy its international obligations to provide its communities with water and avoid judicial activism.

Cover Letter:
Very similar to my other post about cover letters for jobs, this kind of cover letter also serves a very specific purpose. Therefore, each paragraph has its own particular goal.

You want this cover letter to be SHORT! Otherwise, the very busy editor is not going to want to bother reading your cover letter. S/he is busy. If you can't demonstrate what your paper is about and why it matters in 3 short paragraphs, the editor will likely safely assume that you can't write very well to begin with.

First Paragraph:
I call this the "Why You?" paragraph.

The whole basic point of the first paragraph is to introduce your paper and say that it's nuanced. The journal, frankly, does not give a damn about your paper if there's nothing nuanced about it. If you don't know whether or how your paper is nuanced, you should think about that. I mean, really. What makes your paper different from all of the other ones out there? Only you can come up with that.

So, your first paragraph should contain:

the title of your paper (in proper Bluebook format)
the statement that it's nuanced
the legal topics that your paper covers

Ex.: My article, Mass Meat Consumption, Human Rights, and Animal Welfare: An Alternative Appeal

to Limitative Federal Legislation, presents several nuances to the fields of human rights, animal

welfare, and environmental law.

Note: I referred to the paper as an article because it had not been published yet, so I didn't want to call it a comment. Plus, "article" is more scholarly than "paper." I also didn't capitalize "article" because this is a cover letter, not the paper itself or the abstract.

Second paragraph:
I call this the "Prove It" paragraph. In other words, sure, it's easy to summarily claim that your paper is nuanced, but now you're going to have to prove that.

I think that the easiest, clearest, and most concise way to do this is to draw the reader's attention to 3 points regarding why your paper is different than everything else out there. I do this by using the words "first," "second," and "third." It's that simple.

Ex.: First, though most animal rights/welfare articles speak to atrocities inflicted on animals, my article recognizes that such appeals fail to spur federal legislative action. Second, my paper presents an alternative approach—a human rights approach—to support arguments for limitations on mass meat production and importation, which would at once effectively reduce animal torture, at least quantitatively, and improve human rights by reducing instances of starvation, environmental degradation, and drought. Third, the article argues that Congress both may and should legislate mass meat production/importation limitations; these powers should not be left to the states.

The Third Paragraph:
I call this the "Why Them" paragraph. Now, here's where you need to be a little creative. After all, you probably don't have time to research every journal in order to discover why they are special. Moreover, to increase your likelihood of getting your piece published, you're going to want to mass-submit this thing. I refer to this as the shotgun approach.

So, how do you make the editor of the journal feel like you really want to submit to their law journal, even while you submitted your paper to perhaps dozens of places? Well, you do this by including the following in your paragraph:

the words: opportunity, future dialogue, and intersections (if your paper discusses more than one area of law and/or policy)
the legal topic(s) that your paper address(es)

Every journal wants to believe that they, too, are nuanced and produce interesting stuff. That's why you tell them that you know their journal presents that possibility, even if you don't actually "know" it. They want to believe that's true because it adds prestige to their journal.

Ex.: I have chosen to submit my paper to your journal because it provides an ideal forum for my article’s subject matter through opportunities for future conversations regarding the intersections of human rights, the environment, and animal law.

Add a final "Thank You" paragraph, and you're done! :)

CV:
A CV is very different than a resume--especially a legal resume that remains only one page long for a few years. Unlike a resume, a CV includes everything you've ever done. Really. Throw it all in. Even the kitchen sink.

You want to have the header match that of your cover letter. Consistency is always very important.

A CV might include the following categories in, more or less, this order:

Education

Publications

Works in Progress

Presentations

Legal/Teaching/Research Experience

Academic Honors, Programs, & Scholarships

Community Service

Professional Affiliations

Research Interests

Foreign Languages

Everything under each category should be in reverse chronological order.

Do NOT include anything non-legal or non-academic. Everything should at least tentatively relate to law or scholastics. Because political events and policy issues relate to scholastics, those things can be okay.

Also, do NOT double-dip, meaning don't place one activity in more than one category. For instance, if you received an award for volunteer work, place that under either "Awards" or "Community Service" but not both. I would choose the most prestigious category in that instance, which would be Awards.

If you need more guidance with a CV, go here.

Submission:
This is the easiest part. Go to UC Berkeley's submission site. It's called ExpressO. There is a large "Start Your Submission" button in the upper right-hand corner. Start there.

Simply follow the instructions thereafter. There will be places for you to enter your Key Words, your Abstract, your Cover Letter, your CV, and your paper.

The beauty of ExpressO is that you can shotgun your paper to a ton of journals at once. You can do so by category (i.e., top 50 journals, all IP journals, etc.) by simply checking the box next to all of the journals to which you want to submit your paper.

Warning! Don't submit your article to journals that indicate that they are "closed to students." Otherwise, frankly, you look like a dumb-ass who can't even follow directions.

WHEW! That was a LOT to write. I hope that it helps y'all out.

Clubs & Organizations: How Social Should You Be?

2010-11-14T00:39:00.000-08:00

Now that I've graduated from law school, I've been receiving emails and invitations to attend certain events as an alumn. Like in law school, participation in events or clubs should be undertaken with discretion. Notwithstanding, I still think law students and lawyers should participate in, at least, some social interests.

Law students:

Being involved in a law school club can keep you from wanting to gouge your eyes out in law school. There were some days when the only motivator to me to come to campus was the fact that I had to moderate an event for the International Human Rights Law Society or some other club.

Also, being involved in a club helps you to have at least something in common with your fellow classmates besides law! Perhaps, besides talking about Pennoyer, you can talk about something interesting... like animal welfare, tattoos, or surfing.

One of the most worthwhile organizations that I became involved with was my local bar association. I met many lawyers with whom I still keep in contact. That was invaluable throughout my three years in law school, while studying for the bar, and beyond.

Lawyers:

Recently, I volunteered to judge 3 rounds for a national moot court competition after a law student who has a particular way with my heartstrings asked me to do so. Even though it was a pain to drive nearly 2 hours to get to the event, and even though I have almost zero time for myself after having started working for my firm, acting as a moot court justice was incredibly rewarding!

These kids really had it together! I was so proud of them and how well they did. Plus, I (along with every other attorney) have a belief that my feedback will somehow make a difference in their lives. I'll never know, but I'll just close my eyes and believe.

Sadly, I can't go to everything that I've been invited to. Hell, I can't even make it to 1/10 of the events... not even the events that really interest me. I just live too far away from my old law school.

Still, I found that judging the moot court competition felt good to my soul. So, I'm going to make an effort to do one thing each semester with law students... no matter where I end up working in the future.

Does this Cover Letter Make My Butt Look Big?: Address to Impress

2010-09-06T00:41:00.000-07:00

Whether you’re an attorney seeking a change in employment or a “rising” 3L trying to land a job, publication, or clerkship, having a good cover letter can make or break your chances for consideration.

But why stop with “good?” This blog entry will demonstrate the whats and hows of superb cover letter writing.

Before we plunge into the nuts and bolts of it, it may help you to have an inside look into the mind of the person who will likely receive your cover letter. Chances are that this person is (1) extremely busy, (2) extremely bored with the task of sifting through mountains of applications, and (3) extremely annoyed with all of the terrible cover letters that he/she has already read.

Even when a résumé looks awesome, a crappy cover letter will certainly land you in the circular file. Crappiness can range anywhere from poor format to poor grammar, from too long to too not-paying-enough-attention-to-get-the-job-description-right.

And even when a cover letter is concise, grammar-smart, and correct in stating the proper position sought, it is the rare, RARE cover letter that goes above and beyond “good” by having purpose. Purpose, in addition to the necessaries of good writing, will often draw the distinction among already solid résumés.

So, alas, let’s get down to it, shall we?

First: Bank on the fact that it is highly unlikely that your entire cover letter will be read... that is, until and unless you are selected for an interview. Because of this, you want to show the reader (think: future boss or Zuul to your future boss) that you appreciate his/her time. But you do this with more than a byline at the end of the page; better, you do it with format. Hence your cover letter should never extend 3 paragraphs.

When Future Boss or Zuul merely glimpses at your cover letter—number 251 in a pile of 400, he/she will greatly appreciate the look of your cover letter at a concise 3 paragraphs. The thought will be something akin to, “Thank god. A short one.” This increases the chance of Zuul actually reading your letter.

Your first and third paragraphs will be very short... about 2 sentences each. Your second paragraph is where the meat (or far friendlier meat substitute) is. Think about your second paragraph as the analysis in a memo, brief, or law exam. The analysis, of course, is the most important portion of legal writing, and, likewise, the second paragraph will be the most important portion of your cover letter. But we’ll get to the construction of these paragraphs in a bit.

Second: Each and every sentence should have a purpose. So, when I say that the first and third paragraphs should consist of only about 2 sentences, this is because each of those sentences serve a particular purpose. To arbitrarily add sentences with no purpose is a waste. It’s a waste of your time, and it’s a waste of Zuul’s time.

Third: Your cover letter needs to follow rules of grammar and style that both are accurate and appeal to the legal community. For this, I highly recommend buying, reading, and following the Texas Law Review Manual on Usage & Style (“the manual”).

Do not assume that you know how to use commas. Trust me; most of you don’t. I’m not trying to be a jerk. I’m just telling you that I’ve read many, many, many letters, writing samples, résumés, briefs, memos, blah, blah, blah to lead me to the conclusion that most people simply don’t know how to use commas in every circumstance. And I’m not saying that I know what to do 100% of the time with commas and grammar, but I know a lot more after actually having read the manual. Plus, it’s now in my arsenal in case I get stuck.

Also, refrain from semi-colons, colons, dashes, and so forth until you absolutely understand the rules regarding how and when to use them.

Some helpful rules: (1) Never use conjunctions in a cover letter (or any other professional writing, unless you’re quoting someone). (2) Do not use parentheses; there’s absolutely no need for them in a cover letter.

Some helpful hints: (1) Read your cover letter out loud. Don’t cheat by mumbling through it. Rather, go big or go home: read it out loud as though you were reading it to someone over the phone. Hell, actually read it to someone over the phone. Surely somebody out there owes you a favor, right? (2) Release the iron grasp of pride and—gulp—have somebody else read your cover letter.

Why? I’ll tell you why. I had a student once ask me for help with a cover letter, and she had made a very innocent mistake: she wrote “inter-workings” instead of “inner-workings.” Spell check wouldn’t catch it. Reading it over the phone wouldn’t alert the listener because of our American lack-of-pronunciation of “T”s. However, another person would likely catch the error. [Note: This student’s original cover letter first draft was very good, but since Zuuls actively look for reasons to exclude applications, a simple mistake like this could have easily resulted in a one-trip to the circular file.]

STRUCTURE

Now, we come to the structure of your cover letter. Everything should be block formatted (meaning, justified and flush left; in other words, don’t indent paragraphs).

Header: It must match your résumé.

Date: Don’t forget to update your date if you’re working off of a previous cover letter.

Recipient’s name and address: Make double sure that this information is accurate.

Salutation: Um… “Dear” + title (i.e., “Judge,” “Mr.,” or “Ms.”) + last name. End the salutation with a colon, not a comma.

FIRST paragraph:

Sentence #1 should convey two specific things: who you are (i.e., “a third year law student at X University” or “a third year attorney”) and what position you are applying for.

Sentence #2 should consist of some blanket statement about believing that you would make a great fit for the position. This is a relatively superficial statement, but don’t worry because the following paragraph will not only relate to this sentence but will, moreover, prove it up.

Example:

I am a second year law student at the University of San Diego School of Law and am interested in a position as an associate with [Your Firm]. I believe that my experiences in criminal law, writing, and advocacy would allow me to successfully contribute to the program.

SECOND paragraph:

Ok. This is it. This is what I call the “prove it” paragraph. This is where you prove the point that you just made in the preceding sentence: namely, that you make a great candidate.

Here, your job is to weave. Just as we weave facts and rules into an analysis as legal writers, in paragraph #2, we weave in our legal experiences with characteristics—the characteristics that employers look for. The point of the second paragraph is not to talk about your qualifications but, instead, to prove them through your experience. No self-proclaimed characteristic should stand by itself; it must be tied to a legal/professional experience so that Zuul can see why you think you have that qualification.

So, just like legal analysis, you will be using the word “because” and its progeny a lot.

Also, if you consider yourself a “diverse” applicant and want to let Zuul know about it, you should do so upfront, but it must, must, MUST speak to a qualification that pertains to the position. Otherwise, leave it out because it looks like you’re saying, “Hire me because I’m diverse,” and nobody wants to do that.

Example:

Because I am the first member in my family not only to attend law school but also to have earned a four-year degree, I am an experienced self-starter, understanding the importance of dedication and follow-through. Using these attributes, I secured two federal externships, hold the chief articles editor position for the San Diego Journal of Climate & Energy Law, am a member of the San Diego International Law Journal, have published six journal articles, and have presented independent research at several national conferences. As a former judicial extern for two federal judges, I have handled and witnessed many criminal matters before the court. Also, as part of my work for the Criminal Division of the California Attorney General, I briefed three criminal cases and, moreover, successfully argued before the California Court of Appeal in three separate criminal matters.

As you can see, I like starting out with the legal/professional experience first before I go into the characteristic/qualification that I garnered or honed from that experience.

Seriously, your second paragraph should consist of—tops—5 sentences. That’s it.

Do not regurgitate your résumé in paragraph #2. Rather, expand on things that are not obvious in your résumé. For instance, in my paragraph #2, I mentioned my six publications because, frankly, I couldn't fit all six on my single-page résumé, and I wanted Zuul to know that I had six—not two—publications.

THIRD and FINAL paragraph:

Thank Zuul, and once again express your interest to discuss your qualifications.

Example:

I look forward to discussing with you how my experiences in externing, researching, writing, and publishing would allow me to contribute to [Your Firm]. Thank you for your time and consideration.

Salutation (yes, another one): Something like “Best regards” followed by a comma should do. Note that if your final salutation has more than one word in it, all of them begin with a lower-case letter… except for the first word, that is.

Please note that you should refrain from anything with the word “submit” in it, such as “Respectfully submitted.” This is because you submit things to a court. You submit legal documents. However, this is not a legal document that you’re submitting to a court, so just choose some other salutation. K?

Your name: Press return/enter four times after your salutation, and type your name as it appears in your header. This is the standard spacing, and it provides enough room for your signature below the salutation.

Enclosure(s): If you are attaching a résumé or something else, like a writing sample, type “Enclosures” immediately below your typed name. If you are only attaching one item, type “Enclosure.”

THAT’S IT! Whew!

Long entry, but I hope this has/will help you along in your journey.

Ciao!

Study Groups: Good Idea or Painful Waste of Time?

2010-06-03T02:22:00.000-07:00

Ok, I'll be honest. You could grab about 10 random law grads, and I'm willing to bet that each would have strong feelings about the answer to this blog's topic.

I'm going to let you in on a little secret... "you" being the 1L: none of you know what you are doing. This is completely acceptable! It's just that 1L paranoia begins to set in rather rapidly as you begin law school, and you--along with the rest of your colleagues--will all pretend (consciously or not) that you DO know what you're doing.

This fact relates to study groups in a very poignant way: namely, a bunch of people who don't know what they're talking about getting together and putting forth their ideas does not appear helpful at the outset as a means of study.

You'll here over and over as a 1L that by the time you reach your third year of law school, you just "get it." This is really true. And it becomes both laughable and painful to study next to a bunch of 1Ls who are in a study group... not because they don't know what they're doing but because the "knows-better" 3L is drawn like a moth to the flame in the desire to help. Either that, or the 3L wants to cover his/her ears, scream at the top of his/her lungs, and run for the hills before the 1L study group sirens lure the 3L into spending a good chuck of his/her own study time "helping" the group.

Here's the deal. Whether study groups will help you during your first year simply depends. (Get used to that answer; it's a popular one.)

How study groups can be helpful: small, focused, and--ideally--working out practice exams. The study group experience that I wasted my time in the least was when the 3 or 4 of us (tops!) had a practice exam in front of us, and, after digesting it on our own in silence for a while, outlined all of the issues that we saw on a big dry-erase board. If I missed something, my friend didn't, and vice versa.

How study groups can suck the life out of you: too big, too much time, a leech, and too much focus on trying to figure out the "truth." Let me break it down for you.

(1) Too large of a group means too much time will be spent talking; you want to keep things succinct, and it's just impossible with a large group (5 is too big, I think).

(2) If one person doesn't know what the hell is going on, like, at ALL, you have got to cut that person loose. This is the leech. My group avoided this by setting forth ground rules at the very beginning of the semester. The ground rules went something like, "If you keep coming to the group and add nothing of any value, we're going to let you know that we don't think it's very efficient to study together anymore. Nothing personal." (Turns out that we did have to let one of our friends know that we didn't think we should study together. That was rough, but--hey--having set this all out in the ground rules at the beginning made the ousting a whole lot easier.)

(3) The "truth." Well, if you follow my blog, you know that I like examples. Let's say that the issue is whether someone consented... to anything. "Consent" is the legal issue. A fact will tip you off as to that issue. So, in the fact pattern, you will have Person A ask Person B if some outrageous/horrible thing is ok to do; Person B will shrug. Note: You will never get to the truth of this matter. Almost all of the issues on your law exams will be like this. The whole point is that, in the future, as a lawyer, you will have to argue your client's version of that fact. Does a shrug sufficiently consent? Who cares?! As a student, the professor wants you to see that this is an arguable issue because the facts are not clear and the outcome on this issue could go either way. Read my other blogs for how to deal with this stuff. Right now, I just want you to know that if you (or someone else in your study group) spend time on trying to discover or argue the "truth" of an issue that should be clearly arguable given the facts, you are wasting your time! If you must, note the facts that support, say, consent and those that don't. The time to argue will be on the exam, not with the study group.

If you do decide to work in a study group, my advice is to resist any temptation to make that your default study method. Each person should be coming to the table with some value. So, before you meet, do some practice exams or something on your own so that, individually, you can at least have an idea as to what the hell you're doing by the time you meet up. Like, you will all need to know the rules of law and rationales to cases (see my blog on an alternative to outlining for a detailed explanation) before you get together. Otherwise, the group may very well amount to a wheel-spinning session, and you don't want that.

Until next time...

Don't Let This Happen to You

2010-04-10T12:19:00.001-07:00

Normally, I don't post things like this, but I think that all new lawyers and law students should have a look at this video. First, it's so unbelievable that it's hysterically funny. Second, sure it's a major money-making program, but whatever. Third, it speaks to deference... if not anything else.

Until next time...

How and When to Use Practice Exams

2010-03-25T08:01:00.000-07:00

About mid-semester, if I'm being smart, I start busting out some practice exams. But why now? Why would I start doing that before I have a full course's worth of materials to incorporate?

I'll tell you why:

Doing practice exams over a prolonged period of time makes your thinking and analysis on the day of the exam go very smoothly because, after all, you've done it before. Personally, the more I do, the better I tend to perform. However, this doesn't hold up as well if I wait until the last few days before the exam. I think one reason for this is because doing the exams creates a more holistic approach in terms of everyday learning in class. By the time you take the real exam, you've been so used to analyzing problems for your class a certain way that it becomes a cinch.

Note: I have a very specific way that I use practice exams. I only take exams that have either model answers (by the top scoring student) or model outlines (by the professor who gave the exam).

I do this for two very simple reasons: to know when I'm wrong and to learn hidden issues.

The first couple of exams that I take I do untimed. I do this to save my sanity and because I know that it will take time for me to try and pull together the half-semester's worth of information that the professor has already gone over.

If you decide to follow my method, do not grow disheartened if (and often when) you realize upon reading the model answer that you have totally failed and wasted your time. In fact, you have not. Reading about all the ways in which you messed up is one of the best ways, I think, for law students to learn because we're so hard on ourselves and will thus drive the point home even harder the next time we take a practice exam. Further, rest assured that at least you practiced and did not perform that way on the real exam.

You're bound to not have covered some issues if you start doing this mid-semester. But you will master what most students will wait until the very last minute to do. More importantly, you will do so along the way, so the transition from practice to real-deal will, hopefully, be seamless.

As soon as I get about 2 or 3 exams under my belt, I start timing myself. This, again, is key because... well, simply put, you will be timed on the day of your actual exam. No shocker there. So, timing yourself will, again, get you used to performing not only in the proper manner but also within the same time constraints as the final.

DO NOT CHEAT YOURSELF by looking at the model answers to these practice exams before you take them! It's just not the same learning tool as doing it yourself and then grading yourself according to the model. If you read the model answer first, you might pick up on some things, but the exercise will be more passive. Make practice exams work for you. That's the whole point.

Where do you get these practice exams? Most importantly, where do you find exams with answers?

Well, there are a few ways:

1) Your law school's library or website. Some professors that make past exams available also have model answers that accompany the exams. Just check.

2) Ask your professor. One student did this my first year in law school. She simply asked the professor to provide students with the model answer. Surprisingly (or perhaps not... I don't know), she did! It was great.

3) I always think that the exams from your professors are the best source. After all, different strokes for different folks. However, if you don't have access to past exams with model answers from your professor, here you go: http://www.ggu.edu/lawlibrary/studentstudyaids/law_exams/course. There, you can search classes from 1L to 3L in alphabetical order. Then simply search around for the professors who post model answers along with the exam.

CAUTION!: The website comes from a CALIFORNIA law school, so the laws in your state (and hence exam info) might differ, depending on the class that you're taking.

4) Google is your friend. How do you think I found that website up there? It didn't come floating to me; I Google-ed it. I used to have more in my arsenal, but many of those sites have taken down public access. Take some initiative, and if you find a gem, please post it here via a comment. :)

After you've done all of the above, if you're heading toward the final weeks of class, take one of your professor's old exams, EVEN IF there's no accompanying model answer. Make an appointment with the prof, and ask whether he or she would be willing to review your answer to an old exam. I've never had a professor turn me down on this. Of course, I come prepared; I provide the professor with his or her old exam that I worked off of in order to remind the prof of the content.

I hope that this advice will help you. I should listen to my own advice more than I have recently. Whenever I've implemented practice exams early on in the semester, I've always done very well.

Until next time...

Oral Argument: A Note About Your Introduction

2010-02-16T23:52:00.000-08:00

Last week, an inquisitive 2L approached me about her upcoming oral argument. We spoke for a bit until it became clear to both of us that she did not really know what on Earth to do with her introduction sentence. She didn't know how to structure it or, more importantly, what particular functions it serves.

Many law students and, likely, lawyers encounter this same stumbling block. I have been lucky enough to have participated in many moot court competitions before actually arguing before the California Court of Appeal three times (successfully) last summer. Through trials, errors, triumphs, and blunders, I have learned a thing or two about oral argument.

One of the more important things that you can work on to focus your entire argument--not to mention direct the court to the point of your "presentation"--is the introduction. The introduction acts as a sturdy, no-nonsense frame. And it lets the court know that you know what the heck you're doing up there.

Now, to be clear, I'm not referring to the "May it please the Court, Jessie Zaylía, on behalf of Petitioner, X, Y, Z Corporation." No, no, no. I'm referring to the introduction of the argument--the very next thing you say after all of that preliminary stuff.

The introduction should be memorized... smooth.

For those who don't know where to begin... who aren't sure how to formulate a proper oral argument introduction, consider the following formula as a starting point:

Civil case: Party name + liability + theory + "because" + facts + verb + element

Allow me to explain. Example: XYZ Corporation [party] is not liable [liability] for breach of contract [theory] because it's "thank you" email [facts] did not constitute [verb] an acceptance [element of contract].

Another example... let's make this one a criminal case instead of a civil case, where we'll substitute liability for guilt or innocence: Ms. Peterson is guilty of first degree murder because 36 stabs to the chest satisfy the requisite malice aforethought.

These are just examples of where you can start. A lot of times, moot court competitions will deal with a constitutional issue. In this case, you would slightly alter the "formula" above to something along these lines: Act/Statute + constitutionality + "because" + facts + verb + constitutional provision/power/doctrine.

Example: RLUIPA [Act] is unconstitutional [constitutionality] because the imposition of strict scrutiny [facts] violates [verb] Separation of Powers [constitutional doctrine].

Note: If you have more than one issue to present to the court, get rid of the facts in your introduction. Just tell the court that a statute violates whichever constitutional provisions. Ex: RLUIPA is unconstitutional because it violates the Establishment Clause and exceeds Congress's Fourth Amendment powers.

Of course, there are variations to these things, but I don't want to confuse. I just want this blog to present a very simple jumping-off point for beginners in the world of oral advocacy. I, personally, would probably vary my own examples a bit, but the point is for you to become familiar with your own argument. You also need to be comfortable presenting your argument to the court, which means that your introduction should be polished.

Get your intro down first so that you know exactly what is going on in your case before you begin outlining your argument. You'll save time. You'll be efficient. Plus, your final oral argument product will be better for it.

Finally... an Alternative to Outlining

2010-01-13T01:46:00.000-08:00

So, this is one of the posts that I've looked forward to completing for a long time.

On a basic level, we all have different learning styles. Outlining for law school caters to linear thinking, which is great for linear learners.

Regardless of whether you're a linear learner or a more holistic-type, outlining sucks. The process sucks. The time that you put into it sucks. And, moreover, if you lose part or--heaven forbid--all of it, that REALLY sucks.

For those who find that they learn best from outlining, good for you! I am happy for you.

For the rest of us who hate it for whatever reason, consider my alternative.

Preface: this method has also worked really well for two of my mentees. One is in the top 10% at USD; the other is in the top 10% at UCLA.

I suppose I'll call this process "index-carding" only because "falshcarding" sounds too much like pre-made flashcards, which is NOT what my alternative to outlining consists of.

1. Get a pack of 3" x 5" index cards. Don't cheat by purchasing the 4" x 6"!

2. Do the following for every major case in your assigned reading:

a. On the front of the card, write the short name of the case the way that you would write it on an exam. For example, instead of "Roe v. Wade," simply write "Roe" on the front of the card. The point, here, is to make these index cards work for you as an exam tool, so writing the long name, which you won't want to dedicate time toward during an exam, is a waste.

b. Flip the card over.

c. At the very top, write the main, broad topic of in which the case falls under. So, for instance, if you're taking Contracts and the topic of the week is Consideration, you would write "Consideration" at the top of the back of the index card.

d. Immediately below the topic, write the sub-topic. Sticking with the previous example, a subtopic of consideration would include "Illusory Promises." Or, a popular sub-topic for many main topics is "Exceptions," in which case you should write a dash and the word/phrase that describes the particular exception to the topic. One example of an exception to consideration, for instance, is Promissory Estoppel.

e. Line 1: FACTS. Limit yourself to one sentence to describe the facts of the case. This one-sentence limit really forces you to narrow which facts matter in the case. I think of this sentence as a sort of newspaper headline (which isn't a full sentence in the grammatical way, but you catch my drift). Let's get out of Contracts and into another subject to spice things up, shall we? So, let's pretend that we're in Employment Discrimination (a really great course, by the way). The facts on one of my cards reads, "Forklift manager continually harassed by company president who joked about her performing sex, asked women employees to fetch coins from his pocket, and called P [plaintiff] as 'dumbass woman'."

I'll admit that I abbreviated most of the above words on my actual index card, but the important thing is that these facts include: (1) The legal significance/positions of the parties. In other words, I did not just write "plaintiff" and "defendant." You know who is who by the way I wrote the facts. Further, often the court's decision turns on the legal position of the parties, so you should know these things. (2) Enough specific facts to jog your memory during an exam. Also, the facts in my example included things that both the court and the professor discussed. (3) A verb. We know who did what to whom and what that action was. Here, the verb is "harassed," so I automatically know that the legal question here is "When does one harass?" [See my other blog post on the Legal Question for assistance with this.]

These, my friends, are the essential facts. We know the legal significance of the parties, we know the verb regarding what happened, and we know the fundamental facts upon which the case turns... or seems to turn.

f. Line 2: HOLDING & RULE. The holding means different things to different people. Sometimes, it means the party that the court came out in favor of. Sometimes, it means the rule. Sometimes it's both together. Thus, I place these items together. Again, this should be very short... as in ONE sentence. Above all, though, I think the holding is best summed up as the answer to the legal question. [Again, please feel free to see my other blog about the Legal Question.]

Usually for this section, I write "P" for plaintiff or "D" for defendant, the word "because" and then the rule. For example, in my Employment Discrimination class, I wrote for that same index card, "P because it's not necessary to prove damage to psyche to satisfy hostile work environment."

Now, I know that this means that the court held in favor of the plaintiff--the forklift manager--and that the issue was whether she needed to prove that the president of the company damaged her psyche in order to recover under the theory of hostile work environment. Moreover, I know how the court dealt with the issue; it answered with a resounding "No." P did not have to take that extra step to prove her case or recover damages.

g. Line 3: RATIONALE. By now, you should know what I'm going to say. And you're right. ONE sentence!

"But, why, Jessie?" you ask. I'll tell you why. Scroll up to a phrase that I highlighted and bolded earlier. From the beginning of class, you should be focused on the exam. That is what matters. The index-card method is a tool. It is an exam-taking tool. During an exam, you will not have time to spit up all the extra fluff that students are tempted to place in an outline. Furthermore, the index-card method assures that you cut out the extra fluff because you only have one sentence per line! This is important because, on exam day, if you want to analogize to a case, you will be able to do so extremely succinctly and successfully, assuming the information on your card was correct and that you recall the proper case.

Ok, so back to the rationale. This is the most important part of every case. I strongly advise that you read my blog entitled Why ask "Why" Twice. It shows you the way to and through the rationale. Since I don't want to repeat all of that here, I will trust that you have read that blog or really understand what--precisely--is meant by the rationale as we continue.

The rationale line for my card reads, "Title VII is not about intent; the employer's actions affected job performance and offended Title VII's broad concern of workplace equality." Technically, that's one sentence. So what if I had a semi-colon in there? It worked.

h. Line 4: POLICY or MISC. Usually, the above lines will get you where you need to go. However, if there's a dissent that's particularly noteworthy, you might want to mention it in, again, one sentence. My miscellaneous line said something like "Court considers all circumstances." Was that necessary for my card? Hell, I don't remember. But that extra line is there if you need it.

For those of you who have had difficulty with understanding the difference between rationale and policy, I think of policy as a very broad interest of the court. "Federalism" would count as a policy concern of the court. "Child safety" would be another example. I hope you see where I'm going with this...

The index-card method is so great because you can do it easily throughout the semester. Or, if you find that you're in deep trouble toward the end of the semester because you feel like you don't know anything or don't have time to weed through all your notes, this works for that. Even for those who outline, let's face it, if you're in a bind where you just don't have time or have lost all your stuff, this is a good way to go.

If you sit down and get to it, all of the major cases for one class can be done in a day... a very dedicated, long day. At the end, I like to categorize my cards by topic, then sub-topic. I also get really large binder clips for the cards for each class. This way, I can essentially fit all of my courses in one hand, bound by course.

You will learn the course as you go. By the end of this process, you will know the elements; after all, they are the sub-topics. You will know the rules. You will, most importantly, know the rationales. I've found this to be a great and very holistic way to study and prepare for law exams. For those of you who take interest in this method, I hope you find that it works just as well for you.

Toodles!

The Question is: What is the "Legal Question?"

2009-11-18T19:58:00.000-08:00

I realize that for some of us, this is getting down to the basics, but that's precisely why I'm writing about it. What, exactly, is the legal question? And how do we get to it?

Many 1Ls will notice that professors often pause during lectures, look to the the frightened students in the peanut gallery, and ask, "So, what's the legal question here?"

Some brave students--the Gunner likely beginning the trend--attempt to answer this question. The Broad: "How should the court decide?" Uhh... no. The Slightly Confused: "Whether the buyer relied on the seller?" No... that's the issue. But that's a good try.

The fact is that almost nobody explains how you're supposed to figure out what the hell the legal question is!

Another fact: I didn't know what in the world anybody meant by the mysterious legal question until my second year of law school, while I was taking a course on advanced legal writing. Even then, the professor didn't come out and explain it in the way that I'm about to, but that's when things finally hit me.

Furthermore, I know 3Ls who have not understood the concept of the legal question until we've spoken about it. It's sad. These students in particular remain closeted; they are afraid to ask for help... to admit to anyone that they have no idea what's going on.

And who knows whether there are junior attorneys out there who are likewise closeted. Whether there are not-so-junior attorneys . . .

Fear no more! Here's how you know what the legal question is, and it's really quite simple. You'll thank me later.

So, let's say we have a legal theory--something that you can bring someone into court for committing or violating. For instance, trespass, battery, negligence, breach of contract... these are all legal theories.

Typically, the definitions of legal theories are found in a statute. For instance, in order to recover for negligence (a legal theory) in tort (your class... the body of law), you must demonstrate the following elements (part of the definition of the legal theory): duty, breach, causation, and damages.

However, usually the ways in which those elements are defined/applied is determined by the court through various cases, not statute.

HERE'S HOW YOU GET TO THE LEGAL QUESTION:

It has everything to do with the elements of a theory.

If the element is a noun, the legal question is, "What is [the noun]?" Implied after that question is "according to the courts."

If the element is a verb, the question is, "When does one [the verb]?"

If the element is an adjective, the question is, "When is something [the adjective]?"

It's that simple.

For example, in negligence, our first element is duty. Duty is a noun. The legal question is: "What is a duty?" This means: According to case law, what have courts interpreted duty to mean?

Let's take a verb example. If memory serves me correctly, under the theory of battery, there has to be a touching. Now, this can be a noun or verb, but let's make it a verb for fun. The legal question is: "When does one touch?" Or, if you like the noun version better: "What is a touching?"

Finally, let's look at an adjective. One theory in employment discrimination (body of law) cases is hostile work environment, which contains an element that the harassment an employee experiences must be pervasive and severe. The legal question is: "When is something pervasive and severe?"

If understanding and determining the legal question was a fuzzy area for you, I hope that I've helped simplify and clarify the problem of the Legal Question for you. It seems mysterious when we're left without any direction. But it's really quite simple. Spread the word and the love, especially if you think this blog will help others.

Until next time . . .

Why Ask "Why" Twice?: What Every 1L (and practicing attorney) Should Know

2009-09-24T02:59:00.000-07:00

What I am about to share with you is the one piece of advice that I wish somebody--anybody--would have told me as a fresh, green 1L: the key to legal argument lies in asking "why" twice. Allow me to explain. But before I do, come with me on a journey of realization.

Keep in mind, although I direct this blog post to 1Ls, many attorneys have not yet grasped the ask-why-twice concept.

(To provide a bit of background, the legal positions that I have held in the short two and one-half years that I've been in law school have provided me with opportunities to read, analyze, write, distinguish, edit, and otherwise flesh out scores, if not hundreds, of briefs, memoranda, motions, and orders. Specifically, when I worked in the chambers of two federal judges, I read many poorly reasoned briefs and noted how this affected the judges' decisions and opinions of the attorneys. I only provide this information so that you understand that I have seen time and time again the consequences of poor legal analyses, which flow in and out of courtrooms every business day. Sadly, the bell curve of legal reasoning and writing appears to stick with us past law school; it seems to apply to practicing attorneys in that a significant percentage of lawyers follow the formulaic, average IRAC to the detriment of remaining just that: average.)

When I entered law school, I, like many other paranoid, wide-eyed, and deer-in-the-headlights 1Ls, felt hopelessly lost in the world of legal analysis. Also, like many 1Ls will discover, I did not complete my first or second semester in the safe, cozy armchair of the top 10% of the class. I went to the cheesy and ever-embarrassing seminars, where some schmuck tells you how to ace law exams. The problem, I find, is that these guys cannot perform the only task that matters: they cannot teach. They fail to adequately relay the information--the "how" to do the "what" they preach.

Analysis, analysis, analysis. That's all I heard as a 1L. But nowhere, despite my inquisitive and pro-active nature, could I find anyone who could explain with practical clarity how to analyze in a way that counts the most (and, frankly, earns the most points on most exams). Outline, outline, outline. But how do you know what to include in an outline? Chart, chart, chart. But how do you decipher what information to place in a chart? The mantras of seemingly older and wiser upperclassmen--chart, outline, and analyze--often fail to assist in meaningful ways.

"But I am analyzing!" That's what most law students say. And, as we know, this "most" population winds up in the bulk of the curve with a B average. So, of course, law students analyze. In fact, they analyze the be-jee-zus out of facts, especially after their first semester. However, only a particular type of analysis will kick what 1Ls already do into what professors and, eventually, judges want to see.

So, without further ado, here is the simple idea behind my concept. Think about a law school exam like you would a task that your new employer has handed you. The boss is your professor. The task is your exam. Your boss asks you to "discuss" the issues; each issue basically amounts to a potential claim, and your job is to figure out whether a party will likely recover/lose/win/successfully bring a suit on each claim.

This is where the asking begins. Ex: Issue #1: Can X recover on a breach-of-contract claim? Whether the answer is yes or no, you need to ask "why?" Why will she probably recover? To answer this question, you do what you and every other law student does; you look to the rule and apply each element of the rule to the facts or vice versa. However, before you move on from Element 1 to Element 2, ask "why" again. In other words, why is this an element in the rule? What did the court(s) care about so much that it chose to identify this element as part of the rule?

In the simplest terms, this is the rationale, and the rationale alone drives the rule.

To illustrate this point, which did not hit me until I worked for a federal judge during my 1L summer, allow me to humble myself with an embarrassing story:

The clerk hands me an assignment. I research efficiently and become ever-proud of myself, having found an applicable case where the facts sufficiently mimic those in the case at bar. I think and write in my memo something along the lines of, "Hey, look at all these great facts! They're the same! Thus, the rule applies, and we know how to decide this issue! Ta-da!"

Upon turning in my memo, the clerk asked me, "So, does this case apply to ours?" I responded affirmatively. Then she asked, "Why?" I paused in order to recall precisely how the court articulated the rule and described it to her. She looked at me, cocked her head slightly and once again asked, "Yah, but why?"

I was dumb-founded. I had no idea what she was talking about. I thought, "What do you mean, 'why?' Because our facts match the facts in this case--that's why!" The clerked explained, "No, Jessie. Why is that the rule? In essence, why did the court decide to apply that rule to those facts? If that [the reason behind the rule] matches what we have going on in our case, then we know the rule applies."

Lightning struck.

The rationale, the answer to the second "why," drives the rule and whether it applies. This explains how law students can analyze the facts all day long and still end up with a B.

For instance, let's take an example (cursory as it will be) from a class I'm in right now--Criminal Procedure. On exam day, my proverbial boss--the professor--might give me a hypothetical that involves the police entering a mother-in-law quarters (a sort of mini-house separate from the main house) without a warrant after they observed a man walking into the quarters while carrying large amounts of allergy medicine, which is often used for manufacturing methamphetamine. Only a five-foot pathway between the home and the quarters separates the two structures. The call of the question might ask me/you to discuss whether the agents' entry was lawful.

YOU #1: You, having memorized every line in a hornbook, know the rule: things around the house are considered "curtilage," which means that the police cannot search it without a warrant. Your "analysis" goes something like, "Curtilage is protected under the Fourth Amendment. Here, the quarters were only separated by five feet, so a court will likely find this to be curtilage. Therefore, the agents could not lawfully enter without a warrant." NO! Don't let this be you! This is far too simple of an analysis, and almost everyone will provide a similar answer at a bare minimum.

YOU #2: You, being armed with an arsenal of case law from your book, recognize that these facts mimic those in United States v. Dunn, 480 U.S. 294 (1987). In Dunn, agents watched the defendant place chemicals that can be used for producing drugs into a barn that was located about sixty yards away from the house. In that case, the court held that the barn was not curtilage because of its proximity to the house (and fence). Your "analysis" goes something like, "This case is similar to Dunn because it involves a separate structure. However, unlike the barn in Dunn, here, the quarters are very close to the main house. Therefore, it is curtilage, and the agents could not lawfully enter without a warrant." Close. Definitely better than YOU #1 above. Still, you can do better.

YOU #3: You, having asked "why" twice to each case when you studied, not only recognize that the fact pattern closely matches Dunn but also recall the court's rationale--the "why" to the why... the reason behind the rule. Your analysis goes something like, "This case is similar to Dunn because it involves a separate structure. However, unlike the barn in Dunn, here, the quarters and house are very close to one another. Thus, the agents did not lawfully enter the quarters because it likely constitutes curtilage. Moreover, they are also prohibited from searching without a warrant because, unlike the barn in Dunn, here, a mother-in-law quarters may very well have been used for intimate purposes because someone probably lives there. The quarters are more analogous to a house, where individuals have a reasonable expectation of privacy. Therefore, the unwarranted search of the quarters was unlawful." Yes.

In the above example, and in preparing my own study aids, I asked "why" twice when I read the Dunn case. In my casebook, the court (like a professor) provided me with the issue (like the call of the question on an exam): was the search of Dunn's barn without a warrant lawful?

I notice that the court answered the question in the affirmative. I asked myself "why?" once. "Why was the search lawful?"

I find my answer to the first why, which is the rule. It provided that the barn was located so far away from the house (60 yards) that it did not constitute curtilage.

Now comes the crucial point. I can't just stop there. If I want to increase either my points on an exam or my chances at convincing a judge, I must take an extra step. Otherwise, I'll never get to the rationale.

So, I asked myself "why" again. "Why isn't the barn curtilage?" Or, if you prefer, why does distance from the house matter? After all, it's still on an owner's property.

I notice that the court answered my second "why" when it expressed that a barn is not used for "intimate activities" and, therefore, Dunn did not have a "reasonable expectation of privacy."

The above sentence happens to include both the rationale and a broader rule. The broader rule, which makes up a rather lengthy section in the casebook, is that individuals are constitutionally protected from warrantless searches wherever they maintain a "reasonable expectation of privacy." The court, in deciding whether people maintained a reasonable expectation of privacy in a barn, thought about it and determined that it just doesn't make sense that a barn would carry with it a reasonable expectation of privacy. Why? Because people would not conduct themselves in intimate (hence, private) ways in a barn. This is the rationale.

Whether you agree with the court is immaterial. Your boss/professor has given you a task: namely, figure out how a court would likely rule on the facts in front of you. The rationale of the cases in your casebook--the thing that is so important and, yet, so neglected by law students and many lawyers alike--will guide you. And you'll get there. Just ask "why" twice.