Oct 14 2009

Passing the Bar

Published by under Advice,Best Practices

A lot of wonderful folks yet to take the Bar ask for my advice these days, and I think it’s time to share my enlightened wisdom with the masses…

1. To Thine Own Self Be True

By the time you sit for the Bar, you’ve been through three long, hellacious years of law school. And passed! By now, you ought to know what works for you and what does not when it comes to studying. If you don’t, then you can stop reading now because nothing else I say is likely to help you. Really. I mean that. Just stop.

Realizing that different material often requires different study techniques (e.g. I flow-charted Con Law, flashcarded (not a word) the hell out of Torts, and outlined Wills until my eyes blurred), take some time to seriously asses the beast you face and the best way to kill said beast. Will you make flashcards? Outlines? Practice hypos? All of the above?

The only correct answer is the one that will enable you to pass the Bar, regardless of what your professors, BarBri, and your ever-wise friends may tell you to the contrary.

2. It’s NOT About the Hours!

The single most asked question regarding the Bar exam is, “How many hours are you putting in??”

The single best answer to this question is, “Who gives a crap!? Bugger off!”

Passing the Bar is NOT a question of hours spent studying! IT. IS. NOT!!!! Do not be fooled by the “Oh, I arise with the dawn and study ceaselessly until the bewitching hour” idiots. They’re probably going to fail. Because they’re “studying” a lot, but they’re probably not studying well.

Studying for the Bar, in my humble opinion, should be a checklist, not a stopwatch. Make a list of things you must accomplish before you sleep. Then make a list of things you’d like to accomplish, but could always do on Sunday if sleep finds you sooner rather than later. Crack down the list until the list is finished. Then STOP.

If it took you 12 hours, oh well. That’s life during Bar study. If it took you four hours, DO NOT FEEL GUILTY! GOOD FOR YOU!! W00t!!!

Now, in the manner of Jesus, a parable to prove my point:

Two lumberjacks competed to see who could cut down the most trees (in the pre-environmentalist days … today it would be bamboo, but I digress). The first lumberjack worked day and night. He took no breaks. He barely ate or slept. He was a machine. The second lumberjack took a nice lunch break every day. He took an equally charming dinner. Called his wife to tell her he loved her (I added that part).

When the time came to see who won, low and behold! It was the second lumberjack. The first was confounded. “I worked around the clock! I never stopped! How did you beat me!?”

The second lumberjack replied, “Easy. I cheated.”


The second lumberjack replied, “It’s true that I took breaks. But I used those breaks to sharpen my axe.”

Cool, huh?

3. RELAX!!! Breathe in. Breathe out. Repeat.

Stressing yourself out will NOT help you pass. IT. WILL. NOT!!! Admittedly, stress is part of the game. It just is, so accept that fact and don’t let it eat you alive. And DON’T make it worse!

I suggest easing into Bar study. The first week of BarBri (or whatever) is not an ultimate predictor of success. It’s a time for you to figure what the heck is going on and what happened to your once happy life. Ease in. Remain calm. Everyone else is just as lost, hopeless, panicky, and freaked the heck out as you are. EVERYONE. (And if they say they’re not – like on Facebook – they’re lying.)

After about a week or two, kick it into gear. Now you have an idea of what’s going on and how little you learned in law school. Make your checklist. Attempt finishing it every single day. DO NOT EXPECT SUCCESS. The point of BarBri is to set you up to succeed … eventually. If you could pass the Bar in the first week of the class, you wouldn’t need the class!! So relax!! Everyone else is failing to some extent, too. EVERYONE. (And if they say they’re not – like on Facebook – they’re lying.)

When BarBri (or whatever) ends, you’ll be a couple weeks out from the Bar. Ease out. OUT!!! I SAID OUT!!!! If you’ve kept up with your checklist, then you’re right where you need to be. If you made 1,200 flashcards (ahem), now would be a good time to learn them. While sitting on your balcony. With a beer. Then a coffee. Then a Bible. Now is also a good time to write practice essays. And re-write them. And RE-write them. (We Charter Class members are quite good at re-writes. Just ask us. We’ll tell you. We’re “masters.”)

When you’re a week away, accept that Jesus still loves you even if you fail; that you cannot possibly know everything you will need to know for the exam; that you’re powers of BS are exponentially higher now than they once were; and that now would be a good time to review, as opposed to learn. You will not learn. Anything. Nothing. Zero. What’s there is there. Sorry. Deal with it.

If you ease in, crank it up, then ease out (a lot like certain other pleasant life activities that work kinda well that way .. ahem), you’ll arrive at the exam a lot less stressed than a lot of people. Again, you WILL be stressed. But it’s better to be stressed, well-rested, and well-fed than just stressed. And your chances of success should increase dramatically.

4. Here’s What I Did, So If You’re JUST Like Me…

Again, I stress that success on the Bar depends on doing what works for you. That said, here is what worked for me.

I am NOT an outline reader. I do NOT have a photographic memory. I don’t care which genius professors tell you to just read outlines (ahem), if you can’t recall and use what you’ve read, then it’s useless. Needless to say, reading outlines and taking notes on said outlines is the thing I did the week before the Bar when I wasn’t going to learn anything anyway. It is NOT something I did prior to that point.

My checklist:


Excuse me. Terribly sorry. Where was I?

Right. After BarBri, I made an outline (made, not read) of the lecture notes. Then I typed flashcards based on that outline (50-100 per subject).

If I was still awake, I worked practice MBE problems either in the BarBri books or online.

Then I went to bed. Sometimes having (gasp!) not worked practice MBE problems! Oh, the shame!!!

Saturday was a day of practice essays. All day. Like 30 essays. In a day. Every Saturday. Sometimes I’d write the same one five or six times in a row until the law was nailed into my brain. But then, I really enjoy legal writing so it was kind of fun. Yep, I am that much of a dork.

And then I’d play golf.

Sunday was a day of rest on which I always felt too guilty to rest so I’d review flashcards. While watching golf.

All the other advice you [don’t] need will be heaped upon you in droves, rest assured. And whatever happens, you’ll most likely survive. And the sun will still shine. And all will be well in the end.

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Sep 09 2009

The Stagflation of Social Development

Published by under Miscellaneous

Last year, I was having a discussion with my writing professor about 9/11.  I was telling her how close I was to the Pentagon and the chaos that erupted from the lack of ability to use cell phones and check on loved ones.  A classmate of mine interevened saying she was in 9th grade at the time.  I was absolutely deflated.  While I realized that this event was some years ago, I did not know people that young could already be in law school.  For that crowd,  a brief explanation of stagflation.  Wikipedia (my Webster’s) says that stagflation occurs when inflation and stagnation occur at the same time in an economy and remain unchecked.  The gist of this during the OPEC crisis, was that while prices were rising and changes were being made in response to the problem,  it did not fix the problem. 

From the law school perspective, we are forever trying to make our school a community.  Seemingly, this is why we are in cohorts, why leadership is a mandatory course and why we have the preceptor program and the afternoon teas.  One of the most effective ways to get a student involved in the Elon community is to engage them in student organizations.  They have the ability to work without oversight towards effecuating a new angle by which we integrate our students to the Greensboro legal community.  Over the first three years of the school’s presence, we have developed approximately 20 organizations appealing to most every aspect of a student’s personality.  As you read, two more are in development.  But, with this blossoming supply side of new organizations, space and time for activities remain stagnate.    We have but so many rooms in which to meet in this building, and with everyone on different schedules, 12:15 – 1:00 has become the default meeting time.  This obviously leads to double booking.  Take today for example (though it’s no more special than the rest):  During the same time we had a Lexis study skills review, a Phi Alpha Delta meeting, and an Elon Law Republicans meeting from 12:15 – 1:00.

Until we can master cold fission and replicate ourselves, certain decisions will have to be made.  Do I know enough about online research to sacrifice this review session for a legal fraternity to whom I have an obligation?  Can I miss out on a first meeting of an organization I would like to be a part of for the same reason?  And the logical question, which meeting has the best free lunch?  Seemingly, you could catch any one of the three on the second meeting, but most organizations only meet once a month, and this conflict of time and space seems to be a repetitive one.  In a separate dilemna, you may have to put an organizational meeting which you are chairing in front of a career services program you have been awaiting for sometime.  This is never a wise decision. 

So, if we are already stretched thin on our schedule, what then serves the purpose of continually accrediting organizations?  Instead of double booking, we will be triple booking, and so on.  Unless we can find more resources to accomodate for the operations of each organization, we are only allocating student funds to groups with low student support.  Further, if you are a member of multiple groups and only attending meetings on a rotating basis because of the conflict, how involved can you actually be?

I am, however, an advocate of not complaining about a problem unless you have a solution.  Here it is.  Monday and Wednesday – administration days.  Career Service functions, Let’s Study meetings, Town Halls, SBA/Honor Council issues.  Tuesday/Thursday/Friday – Student Organizations.  Divide each lunch hour into three 20-minute sections.  Think about all the meetings you have attended this year; each could easily be condensed into twenty minutes of actual work.  Admittingly, once or twice a year, extra organizations would have to suck it up and hold a meeting from 8:00-8:30 AM, or 4:00-5:00 PM.  However, doing so would afford each student the opportunity to become as involved as they want to be with each organization.  It would also have the collateral benefit of allowing each organization to weed out the members who show up once a semester to secure the organizational name on their resume and are never seen from again.  And all the while we spend more time at the school attending these meetings, the building starts becoming a community, instead of a place of business from 9-5 like the rest of downtown Greensboro.  Now if only we can convince the restaurants to stay open past 3…

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Sep 01 2009

Middle Children

Published by under Miscellaneous

First year law students seem to have it made.  There is a brief ‘smack in the mouth’ period until you realize how to adjust to a new life style, but ultimately you still hold the power.  Unhappy with your school?  Transfer up.  Need more scholarship?  Transfer Down.  Unsure how to handle yourself in professional situations?  There are literally volumes of books (and blogs posts) on how to make the transition to being a law student.  You don’t have to pick your classes, or who you hang out with (thanks to the cohort system), you are assigned an advisor and a preceptor to smooth the transition and give you some vision, and everyone is excited to welcome you to the school.

Third year students see the light at the end of the tunnel.  Granted, the bar looms in the distance like a severe thunderstorm, but many have just finished a summer internship that has given them some direction in life.  Some have standing job offers, some have a practice certificate so they can begin giving pragmatic meaning to their studies.  Some have prepared so well that they can coast down the road to graduation with electives and bar prep classes.

But what about the middle children?  The work load increases, because there are no ‘gimmes’ like first-year leadership.  You have some autonomy, but not enough to escape a pre-determined eleven credit workload.  You are forced to decide upon a specialization, which will mandate some classes that of absolutely no interest to you, regardless of your desired sector of the law.  And you must answer the overarching question of ‘What do I want to do with my life?’  This is the same question that many of you came to law school to avoid answering for another three years.

Somewhere in between the booze and coffee is the equilibrium of the second year student.  They suffer from what I call 20 to life, representative of the mentality of a prisoner who has been sentenced to a minimum of 20 years in prison.  You are too far into law school, in time and money, to get out and it is too late to decide you want to finish somewhere else.  So you are stuck roaming the halls, isolated from society and entrenched in a close knit circle of people in the same situation as you, perpetually talking about what you ‘should’ have done.  Against your will, the better part of the day is spent inside, while your body and your non-legal mind suffer the consequences.  No news, no pleasure reading, no exercise, just food/sleep/study/repeat.  I know the feeling well because it is much the same in the working world.  The phrase actually came from a guy who worked the midnight shift with me at the courthouse.  Biggest difference between here and there – we are not getting paid. 

Anyhow, this guy had been police for 10 years working from 11pm-11am most days, and was always in a good mood.  He was forever talking about his intramural football league.  He commuted almost an hour each way to practice twice a week, and once for games, from north of DC down to Gravelly Point, VA to play in league with no prize money, just pride.  But, football was what made him him.  He was always taking bets on the Atlanta Falcons when they played against your team, and talking about fantasy football when the rest of us walked around staring at the ground, drinking coffee, feeling tired and grumpy.  It was difficult to find someone who was energetic enough to throw a football around the office at 4 am on Tuesday morning after 5 hours of roaming the inside of  courthouse, staring at marble walls.  However, he was also the most well-liked guy on the shift because of his optimism.

Point is, in this arduous, and sometimes maddening process of school, you have got to find what makes you you.  Maybe it’s basketball, maybe it’s volunteerting, maybe it’s writing, but whatever differentiates you from the red eyes and noses buried in books is what will save you from crashing and burning.  Everyone tells your first year that you have to dedicate a night a week to your significant other if you want to make it work.  But, you must also allocate time for yourself.  It gives you stories to tell your friends, a means to relate to strangers, and talking points in your job interviews.  If you do not, at the end, we will all just be lawyers… and I don’t think anyone really wants that.

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Jun 04 2009

Three Things I Learned Writing a Book about How to Succeed in Law School—Part III

1L of a Ride: A Well-Traveled Professor’s Roadmap to Success in the First Year of Law School This is the third and final installment of guest posts derived from my recent book: 1L of a Ride: A Well-Traveled Professor’s Roadmap to Success in the First Year of Law School (Thomson West 2009). Part I addressed psychological distress in law students. Part II explored the perilous second semester. This post discusses academic research that provides answers to a hodgepodge of important/interesting questions about legal education and success in law school.

III. Surprising Empirical Answers to Law School Questions You May have Wondered About

Scores of studies have been conducted about law students, legal education, and teaching and learning in general, yet this research data is often overlooked in giving advice to law students.

Did you know that the LSAT is not nearly as strong of a success predictor as most people assume? That students who sit in the front of classrooms get higher grades than those who sit in back? That women participate in law school class discussion at lower rates than men? That, contrary to student belief, the brain cannot multitask in class without one of the tasks suffering? That the conventional wisdom to not change initial answers to multiple-choice questions is completely backwards? Read on. (As with my other posts, I’ve omitted the citations, but can provide them on request.)

LSAT Correlation to First-Year Grades. Most law school applicants and students are aware that the Law School Admission Test (LSAT) is the most heavily weighted factor influencing law school admissions. I’ve served on admissions committees at three different law schools. At each school, I’ve protested while seeing students with undergraduate GPAs barely above a 2.0 get admitted because of a good LSAT score, while students who have proved themselves through four years of college with outstanding GPAs get rejected because of average LSAT scores.

Validity studies do show a positive correlation between LSAT scores and first-year grades, but the correlation is not nearly as strong as most law students believe. Correlation is measured by a coefficient for which 1.00 represents a perfect correlation and zero shows no correlation beyond one attributable to random chance. In 2005, the Law School Admission Council, the good folks that administer the LSAT, conducted a validity study using data from 181 law schools.

The median correlation between LSAT scores and first-year grades was only .34. The correlation varied wildly among schools, from a high of .56 (reasonably strong correlation) to a low of .04 (virtually no correlation). The correlation was higher when LSAT scores were considered together with undergraduate GPAs, ranging from .24 to .65, with a median correlation of .46.

So take heart. While the LSAT does measure several important abilities―primarily the abilities to engage and manage complex text―your LSAT score does not predetermine your fate. Like all law profs, I’ve seen students with low LSAT scores excel and students with chart-topping scores flunk out.

Seat Location as Tied to Academic Performance. I always encourage law students to sit in the front of the classroom, convinced it enhances their law school experience. Now I have some research to back up my recommendation. Non-law school educators have conducted a variety of studies on the relationship of seat choice to student personality type and academic performance. They support one proposition quite clearly: students who choose to sit in the front of the room are disproportionately better students. They have higher GPAs, participate more frequently in class, and receive better grades in the course. One study, for example, found that students sitting in the front received higher percentages of As and students sitting in the back received higher percentages of Ds and Fs.

Several studies have linked this better performance to personality differences between students who choose to sit in front and those who choose the back. In other words, with regard to the cause and effect relationship between seat selection and academic performance, research suggests that students who sit in front by choice do better because better students choose to sit in front. But at least one study suggests that sitting in the front is actually causally related to better academic performance.

Don’t be a backburner! Grab a seat near the front in all your classes.

Class Participation Rates between Men and Women. Unsurprising to anyone who has been involved in legal education for any period of time, several surveys show that female students voluntarily participate much less frequently in law school classes than male students (although my Torts class this past year was a notable exception). For example, a survey of students at the University of California at Berkeley found that a majority of women, and also persons of color, never asked questions or otherwise voluntarily participated in class, while almost two-thirds of white male students reported doing both. The survey is dated, but the results are consistent with current experience.

Reasons offered by scholars as to why the Socratic method negatively impacts women include increased feelings of alienation and fear, the adversarial and competitive nature of the method, sexist conduct by certain male professors, an interest in protecting the sanctity and integrity of one’s beliefs, less willingness to engage in grandstanding, a lower interest in dominating class discussion, and—I love this one because it’s so true—better recognition by women than men of the limits of one’s knowledge. In short, male students, as a group, are more willing to engage in the adversarial, competitive “sport” of the Socratic method than women. As noted, the same surveys show that minority students also participate at lower rates.

This data is important because class participation carries several benefits with it, some tangible and some intangible: (1) Active student participation in class discussions adds to the energy level and sense of community in the classroom, making for a more lively and memorable experience for everyone; (2) You will better remember the classes in which you participate and feel more satisfaction about your law school experience; (3) Participating sharpens your oral communication and group speaking skills, essential abilities for all lawyers; (4) Your professors want to get to know you, but with so many students, we can=t realistically accomplish that unless you speak up from time to time; (5) It is an established fact of legal education that if you volunteer even once in a while, you will get called on less often when you are not volunteering; (6) Finally, many professors raise grades for class participation.

Multitasking with Computers in Class. The use of computers in law school classrooms is quite controversial among law professors, with some professors banning them and others threatening to do so. Profs Kibosh Students’ Laptops blared a headline in the American Bar Association Journal. The Washington Post published an op-ed piece by a Georgetown law professor advocating a classroom computer ban. Every time I think the great law school computer debate is about to die down, some prof will stir it up again on the lawprof listserv, igniting yet another torrent of email on the subject.

A primary concern professors have with computers is that too many students check out of the class discussion to web-browse, check email, send instant messages, etc. Gen Y and Millennial students respond that they are so skilled at multitasking that they really can learn law and check sports scores at the same time.

Is it true? Research suggests the answer is “no,” or at least “not as effectively.” Studies regarding the ability of the brain to engage in simultaneous tasks show “almost without exception” that the performance of one or both tasks directly suffers.

In one study, researchers tracked the wireless computer activity of students during class. Not surprisingly, the study showed students used their computers for a wide range of functions unrelated to the class, such as email and web-browsing. The researchers then divided a class into two groups. Prior to a lecture, one group was told to use their computers as usual, while the other was asked to close their computers. Afterwards, the researchers gave the students a surprise test. The students who used their laptops during the lecture performed significantly poorer on the test. Two months later the researchers replicated the test by switching the two groups of students and got the same results.

Another study suggested that even if multitasking does not necessarily decrease the overall ability to learn, it negatively affects the kind of learning used to acquire new concepts and information and to engage in deep analysis—learning abilities that are critical to law students. Researchers did MRI brain imaging of fourteen twenty-somethings engaged in dual-task learning. The brain imaging showed that multitaskers engaged in “habit learning” rather than “declarative learning.” Habit learning relies on a portion of the brain used for repetitive skills, whereas declarative learning involves a portion of the brain used for storing and recalling information. Basically, the researchers concluded that even though people can learn while multitasking, they can’t learn the material as well or be able to adapt it to changing conditions.

Even if you’re adept at multitasking, the research suggests you can’t do all the tasks well because of the brain’s limited processing ability. So if your professor is defining the Rule Against Perpetuities at the same moment you’re updating your Facebook status, something has to give.

Changing Answers on Multiple-Choice Questions. Ever since I was in elementary school, teachers have admonished not to change initial answers to multiple-choice questions because it’s more likely you will change an answer from right to wrong than from wrong to right. Well, guess what? The advice is completely backwards. Study after study, some of them dating back to the 1920s, consistently show that changing multiple-choice answers is more likely to increase—not decrease—test scores. An example: a study of upper-level accounting students showed that 95 percent of the students changed answers on their multiple-choice examinations (changing a total of 5.6 percent of the answers). Fifty-six percent of the answers were changed from wrong to right, while only 21 percent were changed from right to wrong. The remaining 23 percent were changed from one wrong answer to another wrong answer. These results are consistent with other studies.

Conclusion. Thanks to the CELL blog editors for giving me the opportunity to share some of the things I learned in writing my book about first-year law school success.  It’s been fun!

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May 22 2009

A Legacy Of Dissenting Opinions

Published by under Advice

“I began by saying that our history will be what we make it. If we go on as we are, then history will take its revenge, and retribution will not limp in catching up with us.” Edward R. Murrow spoke those words in 1958 during a notorious speech in which he railed against the very institutions that allowed him to attain his legendary notoriety and success. “We are currently wealthy, fat, comfortable and complacent. We have currently a built-in allergy to unpleasant or disturbing information,” Murrow insisted. I agree.

Murrow began that speech with the famous line, “This just might do nobody any good.” This blog, too, might just do nobody any good. And, as per usual, it will probably end up insulting the very institution that allowed me to attain levels of notoriety reaching the coveted SBA “Most Likely To Make A Sarcastic Comment” Award. Yet, a week from graduation, it seemed to me suddenly important to impart a few feelings on the topic of legacy.

It always seemed to me that a law school was a place to train advocates. Black’s Law defines an advocate as a person who assists, defends, pleads, or prosecutes for another. Is that what we’ve done? Or have we trained people to be wealthy, fat, comfortable, and complacent? Have we trained them to look adversity in the eye and tell it where to go, or have we taught them to not to rock the boat – keep the waters calm at all cost – owing to our own built-in allergy to unpleasant or disturbing information?

I realize the line between advocacy and complaining is a blurry one, and I am quite guilty of helping to blur that line. I realize there is a time and a place for “correct” answers and a totally different time and place for honest ones. But it always seemed to me that when the cause was right, the risk of blurring that line and being honest was one worth taking. Whether it was our excessive waste of paper, gender issues, the need for a strategic plan, the quality of the education, or the direction of the school in general, all those causes seemed awfully worth the risk of expressing a dissenting opinion.

And a legacy of well-placed dissenting opinions is one legacy I hope the Charter Class leaves behind. “Dissent: it makes the good things better and the bad things crumble.” Sometimes dissent sounds an awful lot like whining and other times it’s audacious enough to widen the eyes and raise the eyebrows of giants. But more often, dissent is the only form of communication with any power whatsoever to achieve any real change. Making the comfortable uncomfortable and getting the complacent off their “wealthy surpluses” is the only real way to accomplish much of anything an awful lot of the time.

Yes, the boat will rock. Yes, eyebrows will raise. Yes, people will get awfully uncomfortable and shift uneasily in their chairs. But, if the cause is right, the risk will be worth its taking. And maybe – just maybe – instead of churning out wealthy, fat, comfortable, and complacent yes-men, we’ll churn out some advocates instead.

Our history will be what we make of it, Elon. From one member of the Charter Class to those who remain, here’s to hoping the legacy my class left behind will help in some small way to make that history great.

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Apr 22 2009

And I thought 1L year was supposed to be the worst…

Published by under Miscellaneous

Okay so law school doesn’t actually get harder per se – but it does get busier.
1L year is tough. It’s was all about the learning curve for me. You have to re-learn how to think, analyze and study. You have to realize you take the professor, not the course. And you have to learn how to self-manage. These aren’t undergraduate courses that require 4 papers spread evenly throughout the year. This is a course where you don’t know if you understand the material until you’re in your third hour of the final exam.
But by the second year, you’ve hopefully made is over that curve. You know how to handle all the reading, how to study smarter not harder, and how to decipher what is important out of a 2-hour lecture. But second year brings about a whole new set of stresses. It just seems like the second year is when they pile everything on your plate. There is moot court, law review and the leadership positions you find yourself in other clubs and groups. There are extra lectures to help you figure out what kind of law you want to practice and decisions about what bar review courses to go ahead and sign up for. Not to mention applying for every summer associate position you hear about. And on top of that, there are still your classes that need every bit of your attention to be successful in.
It seems like every day there is another “brown bag” lunch to attend. Law school is notorious for its academic rigor. But what’s less recognized is that law school is just as demanding in all aspects of your life.

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Apr 14 2009

Paralyzed by Perfection

Published by under Miscellaneous

“What if I got it wrong, and no poem or song could put right what I got wrong…?”

My mother makes the most beautiful baskets. From scratch. By hand. Really, they’re just unbelievable. I told her to sell them, and her response was that she couldn’t possibly; not because she’s attached to them, but because “each one contains at least one tiny flaw, and I wouldn’t feel right selling them that way.” My mother is paralyzed by perfection. Guess who inherited that trait?

Bingo. This week at Legal Aid it truly occurred to me that I, too, am paralyzed by the thought that I have utterly no business doing anything, let alone representing a client in court, if I don’t know how to do it flawlessly. I mean, hello! This is someone’s life. These are someone’s rights. And they’re in my very inexperienced hands. Oh. God.

While preparing for an in-person client interview with the very intelligent woman I’m soon to represent in Randolph County 50B court, I started writing out a few preliminary questions I’d like to ask her on the stand. OK, I’ll start with a little background, I thought. No, that’s not compelling. Start with a nice heart-wrenching statement of why she’s here – her fear of her husband and desperate need of a 50B – then move on to how awesome she is at her job of being a bioterrorism expert (seriously, this lady rocks). No, that won’t do either. That’s just freaking hokey. What is this, daytime television? OK, skip the plaintiff and move to the defendant. He’ll never admit to this on the stand. And if he won’t admit to it, how the hell will the judge know who to believe. We have very bad pictures of her eye after he shot her point-blank with a bb gun, but that doesn’t prove he shot her, only that she was shot. How the hell do I pin this guy down? Maybe I should have subpoenaed people. But who? Her kids? How awful would that be?? OK, f-ck this. Just wing it. Ahhhhhhh! This is so much harder without the little spiral-bound notebook of already-admitted facts!!!!!!

That was pretty much the thought process, and has been the thought process for most of my very short legal career and all of my pre-legal career. I just cannot fathom the idea of taking on a job I seriously do not know how to do … perfectly. It seems so … wrong. But, luckily for me there is an ounce or two of common sense to calm the fiery delusions, and here is what that common sense has to say:

One: the only way to learn is to do. Everything I have ever done in law school has filled me with dread (a fact my ego lies about rather effectively in the form of statements like, “Psh. Please. I don’t get nervous.”). Every time I’ve argued to a fake jury or stood before Justice Exum to rehearse an oral argument or submitted a faux motion or prepared a memorandum of law – every single time – I’ve been terrified. It would not be perfect. It would not even be close to perfect. But every single time I’ve gained invaluable amounts of confidence and even more valuable feedback from those who arguably know what they’re doing. And with each time, I get better and the given task gets easier. The hard part is convincing myself I have any business starting.

Two: no one does it perfectly; in fact, there’s no such thing. Sitting in Guilford County court on any given morning reveals this fact with PAINFUL force. Are these people really lawyers? How much did you, the client, pay him? Pay me half that much right now and I’ll do ten times better than this dweeb. I’ve seen lawyers ask questions to which they very clearly didn’t know the answer; lawyers fail to ask even a single follow-up question to actually make the point they started; lawyers whose idea of preparation was a legal pad of scribbled notes not even they could read; and lawyers whose “closing arguments” were terrific except for failing outright to mention the law upon which the argument rested. Seriously, some of it is appalling. And it really ought to teach me that it doesn’t take a mental giant to be a lawyer in district court, and that even the slightest bit of preparation on my part ought to do the trick. At the very least, I ought to be learning that there is no such thing as perfect and no matter how effective a given attorney might be, even effectiveness does not equate to perfection.

Three: we learn best through our mistakes. It’s trite and tired and true. What’s really scary is that whole fiduciary duty thing underlying the concept of making mistakes. I could make a mistake that allows a woman’s battering husband to abuse her again. Me. I could do that to her. Oh. My. God. But just like doctors will inevitably make mistakes that kill people (eeek! One more reason NOT to be a doctor!!), I, too, have to cope with the mistakes I will make and their ramifications. And instead of allowing myself to be paralyzed by fear at that thought, I should simply resolve to work harder to ensure it doesn’t happen.
Now if only I could convince my mother to sell those baskets…

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Mar 31 2009

Empty Threats (Or: Introducing the “Entitlement Generation [of Lawyers]”)

A long while ago I wrote a blog entitled “A Culture of Complaining or Why Law Students Are Whiny Brats.” I argued that changing rules, deadlines, practices, and policies because students incapable of following them whine to you achieves naught but the following:

>>It sets everyone up to fail: the students will flop in the real world when the staggering realization of deadlines, fiduciary duties, inflexible senior partners, and even less flexible judges sets in; and the school will fail when the legal community realizes its churning out whiny toddlers instead of polished, professional lawyers.<<

Yet here we are a year after that brilliant missive, and again we find that rules are nothing but empty threats. Pandora’s Box is open once more, and this time, the issue revolves around the oft-doubted legitimacy of the school’s electoral process.

The gist of the story is this: during the recent elections, certain deadlines were made abundantly clear. They were stated in person to all candidates, as well as put in writing. This writing was signed by all candidates. One of the rules very clearly stated that failure to meet any deadline would result in removal from the ballot.

In an effort to jumpstart the process, a number of enterprising spirits decided to sign the Campaign Compliance Certification – a paper saying one had abided by all specific rules as set forth by the Elections Committee – and hand it in right there and then. Yes, this begs the obvious question: how can you affirm that you followed all the rules of a campaign that hasn’t yet started? On the basis of this seemingly obvious discrepancy, the forms of these enterprising spirits were refused. In constitutional terms, I believe we’d say the time for submission was “not yet ripe.”

Fast forward to harvesting time and the now-ripe (and oh-so-juicy!) forms are due by 5:00pm in much the same way complaints would be due at 5:00pm the day the statute of limitations runs. And in much the same way the courthouse would, the Elections Committee refused to accept said forms after 5:00pm, although those who sought extensions in advance of the deadline were granted them. As per the clearly stated, written, and signed rules, the names of those in total violation of this fairly simplistic deadline were removed from the ballot. The removal was by unanimous vote of the Elections Committee. And seeing as how these forms still had not appeared by 10:30pm, no one really felt too bad about it. (There were also issues regarding Facebook campaigning I decline to expound upon here; but suffice it to say the issues were resolved, again, by unanimous vote of the 5-person Elections Committee.)

The real-life grown-up lawyers with whom I have shared this portion of the story assume this is where the story ends. Not many folks with whom I have spoken (a small sample of humanity, I admit) understand that there would or should be more to the story than knowing a deadline, signing onto a deadline, missing a deadline, and dealing with the repercussions.

But ours is a world where there appears to be no real punishment for breaking clearly stated rules – rules from cheating to wearing business casual to “court.” And in such a world, all you have to do to get around any rule you like is put on your very best pouty face and whine that it’s just not fair.

And thus it came to pass that an emergency meeting was called; a debatable constitutional discrepancy was found (ah, loopholes); the once independent authority of a unanimous committee was made dependent; and those upon whom it was made dependent cast a wholly democratic and procedurally fair vote entirely consistent with the re-interpreted constitution and with an implied school policy that rules don’t matter.

All names removed from the ballot were replaced.

All names once on the Elections Committee removed themselves in protest.

And a name once on the student government roster removed itself as well: mine.

It’s as infuriating as it is disappointing that these precedents are so casually set. Why don’t rules matter to those who aspire to fiduciary positions? Why aren’t deadlines important to those for whom someone else’s life and property will depend on their ability to meet them? Why is personal responsibility a concept looked on with scorn and disfavor? Why are consequences run from rather than learned from? And where is the integrity to stand up and say, “You know what? I knew it; I did it; and I don’t deserve an exemption”?

I shudder to think that this is the legacy we’re leaving behind. I shudder to think that this attitude might actually follow someone into the legal profession, and what the consequences of that might be for some unsuspecting client. Will missing a deadline only become significant when someone’s claim for relief is denied because of it? When someone’s habeas petition is denied? When you’re sued – is that when it will be significant??

When Pandora’s Box is finally closed on this issue – a process being frantically attempted by those concerned over losing face – I very much doubt much will have changed. Attitudes are slow like that. But I sincerely hope that at least a few members of this, the “Entitlement Generation,” will have received a wake-up call. I hope a person or two yet to come of age will remember that rules mattered once, even if only for an hour or two, and that someday, they might not have the advantage of getting them overturned. Someday, someone with more clout than any of us might put his/her foot down, and a small whiny voice might be left squeaking from beneath it. Honestly, I hope it never comes to that. But if it does, I rest content knowing both that I tried to prevent it, and that I have absolutely no duty whatsoever to rescue them from it.

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Mar 10 2009

Three Things I Learned Writing a Book about How to Succeed in Law School—Part II

1L of a RideThis is Part II of my guest posting derived from my recent book: 1L of a Ride: A Well-Traveled Professor’s Roadmap to Success in the First Year of Law School (Thomson West 2009). Part I related to psychological distress in law students. This installment explores “The Perilous Second Semester”

II. The Perilous Second Semester

In a way I kind of feel as though the first semester was like me going into a burning building to pull somebody out of the fire. I wanted to go and was happy to do it, and after coming out I was glad I did it, but felt like I wouldn’t want to do it again. Now for the next semester I feel as though there is somebody else in the house and the fire has gotten worse. I groan and make myself go in again, and part of me wants to go back in, but in the back of my mind I’m aware of how tired I am from the first time and am a little more worried about whether or not I will get out of the building alive this time.

1L’s comment about starting the second semester

I’ve been teaching law for what seems like an eternity and, yet, until writing 1L of a Ride, had never given serious consideration to the second semester of law school as an entity of independent significance. Studying and surveying students at the University of Memphis brought home the realization that the second semester is, in fact, one of the most daunting challenges in all of law school, as reflected by the quotation above. How students respond to it is a crucial determinant of their long-term success. This is the juncture where students seem to make judgments and decisions about themselves and law school that play a large role in determining and defining their ultimate “law school selves.”

For the past couple of years, I’ve polled my Torts students at the start of the second semester with this online question:

What is your dominant feeling as you begin the second semester?

  • Excited
  • Tired
  • Bored
  • Depressed
  • Rested and ready

The most common answers by far are “Tired” and “Depressed.” Recently, I probed more deeply into student sentiments about starting the second semester. Just before classes began, I asked a section of Torts students to comment on, among other things, their state of mind and motivation and happiness levels in comparison to the first semester. The responses showed that, while some students feel better off in the second semester, a significant number are less happy and less motivated. I received several responses resembling this one:

  1. State of mind: Unhappy and sullen.
  2. Motivation level: Much less motivated—I’m already convinced I failed out of school, so the last thing I want to do is continue to work hard.
  3. Happiness level: The same amount of light unhappiness, but it’s for different reasons. In the beginning it was fear and anxiety. Now I just feel defeated.

At first blush, it seems counterintuitive that many law students find the second semester more difficult and dispiriting than the first. With three months experience under their belts, one might think the second semester would be a “been there, done that” relative breeze. Students know how to read and brief cases, outline courses, and take law school exams. They’ve made good friends, the physical surroundings are familiar, and they’ve discovered that the Socratic method and the law profs who administer it aren’t as bad as the horror stories they heard before starting law school.

The Pitfalls of the Second Semester

While the above are all real advantages, the second semester carries with it a whole new set of challenges. I list and briefly describe them below. The book expands on them and offers ways for students to address them.

Ignorance can be bliss. The uncertainty of the first semester is a substantial cause of strain on 1Ls, but unveiling law school can be problematic as well. In the second semester uncertainty about law school is replaced by a disquieting certainty that it can be an exhausting, onerous drudge. As one student put it: “Now I know exactly what I’m walking into. First semester there was a bit of excited anticipation, etc. Now I know I’ll be in the library for the next four months.”

The thrill is gone. Students arrive at law school brimming with anticipation and energy. Seeing and feeling it is one of the great joys of being a 1L law teacher. But like romances that lose their dizzying effects when the newness wears off, law school becomes more of a chore than an adventure after the ebullience of the first semester subsides. In the words of bluesman B.B. King, “the thrill is gone.”

The double-edged grade blade. Depending how they turn out, first-semester grades can be either a major boost or impediment to starting the second semester. Most students begin law school with at least some hope of finishing near the top of their class, but, of course, the mathematical reality is that only 10 percent of students finish in the top 10 percent. Ninety percent don’t.

For those who performed well, first-semester grades can infuse new energy and confidence. But for every student whose confidence gets a jolt from grades, three or four others get their egos electrocuted. High expectations, previous educational success, mandatory grading curves, and an abundance of talented people create a perfect storm for dashed hopes. The storm is unleashed the moment first-semester grades are released.

Getting back in the groove. After going and going like the battery bunny on meth for three months, students finish that last exam of the first semester and everything suddenly stops. Many students don’t know what to do with themselves during the holiday break. They’re not used to having so much free time. Many report that they can’t enjoy the break at the beginning because they feel guilty about not studying. Then, just about the time they readjust to an unstructured lifestyle full of leisure time, it’s time to get back to the grind. One of my survey questions was: “The hardest thing for me about starting the second semester is [fill in the blank].” Getting back into the groove was the most common answer.

Increased competitiveness. To the extent competitiveness is a problem in law school, students tell me it gets worse in the second semester. I think much of it relates back to that first set of grades having been issued. In the first semester, everyone is in the same boat, struggling to stay afloat. The shared experience creates a communal bond. But once first semester grades have been issued, there seems to be a feeling—both among some high achievers and some lower-than-hoped-for achievers—of “Hey, you’re in that boat and I’m in this boat.”

Enhanced workload. Depending on the law school, a major cause of second-semester stress is an increased workload. Some schools (like the University of Memphis) add an extra course in the second semester. Some professors move at a quicker pace in the second semester, which means more material and longer reading assignments. And then, of course, there’s the appellate brief and oral argument, one of the heaviest burdens of 1L existence.

Second-guessing life as a lawyer. One obstacle some students face is larger than the second semester and even law school itself. It’s the global issue of wondering whether one made the right choice in sacrificing everything (e.g., time, effort, financial resources, relationships, other opportunities) to come to law school. Should I be here? Is this what I really want to do with my life? In the first semester, students are struggling just to keep up, giving them little time to ponder the long-term wisdom of their career choice. In the second semester, nagging doubts kept at bay in the first semester start to creep into consciousness.

Financial issues. Many students get panicky, or at least very concerned, about financial issues in the second semester. Students often arrive having saved enough money to get them through the first semester only to realize they need to start borrowing more heavily starting in the second semester. Debt load, in turn, takes on greater prominence as a source of anxiety as students begin to realize that the lawyer salary data they read about prior to attending law school—and which, unfortunately, draws many students to law school—is skewed. Those $160,000 starting salaries and lavish annual bonuses splashed across the media go to only a small percentage of top-performing students who land jobs at large law firms in big cities. To make matters worse, these days students are barraged with reports about many of those highly paid associates being laid off as a consequence of the weak economy.

Summer job anxiety. Students feel tremendous pressure in the second semester to land summer clerkships at law firms. In many cases, this pressure arises from pressing financial needs, but it also stems from an expectation that getting summer legal jobs is something 1Ls are supposed to do. Depending on the city and job market, obtaining a summer association position at a law firm may be in unconquerable obstacle for a 1L, especially for those who aren’t in the top of their class.

Becoming aware of these second-semester issues has made me be a better advisor/mentor to my students. I never used to mention any of these issues to my students. Most of them never even occurred to me. Now I talk about each of them at some point during the second semester. The discussions don’t eliminate my students’ stress or worries, but they do seem to help relieve them.

For further discussions about the book click here.

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Mar 01 2009

Dropping the Ball (Or: Setting [Really Bad] Precedent Supreme Court Style; Or: Pandora’s Box Is Now … OPEN)

Published by under Miscellaneous

I would love to be my normal witty self here (because I KNOW how much you all have missed me) and wax sarcastic about the recent manner in which I once again pried the lid off ole Pandora’s Box, to say nothing of my feelings about the topic that inspired its prying.


It was a typically-sarcastic and terribly un-PC Facebook note that got the proverbial poo to hitting the equally proverbial fan in the first place; and it was for the sake of fairness and diplomacy that I declined to post the Facebook note on such pages as these. Therefore, I shall endeavor to present the issue in a slightly (hey, I’m only human) more balanced manner and leave you, the most educated 2% of the world, to debate the issue amongst yourselves.

Facts (briefly): In 2006, a co-ed law school softball team formed even before the formation of SBA. In 2007, the same co-ed softball team decided to go all-male and exclude female members. That same year, the now all-men’s team funded itself and went to the national law school tournament, competing in the all-male division (as opposed to the co-ed division, which is where the excluded women would have liked to play but-for the sudden lack of a team). In 2009, this same all-male team seeks SBA funding to attend the same all-male division of the national tournament.

Issue: whether student body funds, which derive from all students, should fund groups (or sub-groups, teams, committees, etc) that are not open to all students? Continue Reading »

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