Author: Beau Baez

Categories
Essay Exam Torts

Nested IRAC

Eggs in nest.

Most students know about the IRAC method, but few know about Nested IRAC. The IRAC method is where you identify the issue, state the rule, provide some analysis, and then state the conclusion. But nested IRAC involves creating a separate IRAC for each issue and sub-issue on the exam.

Battery Example

Let me demonstrate this through a tortious battery example. If you don’t recall the elements to battery, you may want to watch my video on battery first.

Derek and John are in the same high school math class. One morning, Derek decides it will be funny to pull out John’s chair just as John is about to sit down. Derek pulls out the chair, and John falls on the floor. John is not physically hurt, but he is extremely embarrassed. Fully discuss which, if any, intentional tort Derek committed.

Now, let’s look at the type of answer I get from my first-year law students:

Typical First Year Law Student Answer

The issue is whether Derek committed a battery against John. Battery is the intentional contact of another in a harmful or offensive manner. Intent is when there is the desire or knowledge to a substantial certainty that the contact will occur. The contact must be direct or indirect. The contact must result in harm or offence. Derek desired to cause John to fall, because he went to John’s chair, waited till he sat down, and then pulled out the chair. Though Derek did not touch John, he knew that by pulling out the chair, John would fall on his rear, causing it to contact the ground. Also, though John was not hurt, a person in high school would be offended by being embarrassed by falling on his rear in front of other students. For these reasons, Derek committed a battery.

Problems

Did you notice that this answer does use IRAC and correctly defines battery and each of the three elements? Unfortunately, it does so in a way that leaves the reader confused. This student expects the reader to connect the intent rule in the third sentence with the analysis in the sixth sentence.

Puzzle pieces. For nested IRAC methodNow there are some problems with this approach. First, by putting everything into one giant paragraph, you might miss something important. Second, the person grading the exam might not understand that those two sentences go together. Think of your exam as a jigsaw puzzle. Put pieces together that connect to each other, not three rows apart from each other. Third, your answer will look much more professional with a better organization style, which can make the difference between getting a B or an A on the exam.

Nested IRAC Example

Now, let’s look at nested IRAC. On an exam, every time you have a different concept, even if it’s connected to one concept, you should IRAC that concept in its own paragraph.

Going back to our battery example, you should start with a short introductory paragraph that provides the issue, rule, and then a short conclusion for battery as a whole. You then need additional paragraphs for the sub-issues, or elements as they are called. For battery, that means three more paragraphs: one for intent, contact, and harmful or offensive.

The second paragraph then begins with the issue for that paragraph: The first issue is whether Derek had the intent to commit a battery against John. You then provide the rule, analysis, and conclusion for that issue.

Next, do the same thing for the remaining two elements, leaving you with four paragraphs for this battery essay.

Results

When you use this method, you will write stronger answers because you are less likely to miss an issue. For example, in one large paragraph, you might forget the analysis because it’s hidden in a jumbled mess. But with a nested IRAC, as soon as you notice that your paragraph has only two sentences you’ll know there is a problem. So begin practicing now, and consider using the prewriting essay method I discussed in an earlier episode.

If you’re still not convinced, here is a comprehensive discussion on the benefits and dangers of using the IRAC method.

 

 

Categories
Civil Procedure

International Shoe Co. v. Washington

Beau Baez holding shoe for International Shoe Co. v. Washington case

Many 1L students struggle to understand the importance of International Shoe Co. v. Washington. In this post you will learn the relevant facts, the rule you need for exam purposes, and an exam tip for nailing the analysis section on an essay exam.

Contacts in Washington

International Shoe Company was a shoe company incorporated in Delaware with its principal place of business in Missouri. In the State of Washington, International Shoe hired 13 people to solicit orders for the shoes. But the salesmen did not actually sell any shoes in Washington. Once the orders were taken, the salesmen sent the order forms back to headquarters in Missouri. It was in Missouri where the decision was made on whether or not to sell the shoes. This method insured that all shoe sales occurred in Missouri rather than in Washington. The reason for this sales method was primarily to avoid paying state corporate income taxes.

Tax Dispute

But the State of Washington was not trying to enforce its corporate income taxe. Washington was only trying to enforce its unemployment insurance tax as applied to the International Shoe salesmen. When International Shoe refused to pay the unemployment insurance tax, Washington state first issued a tax assessment. Next, Washington sued International Shoe in its own State courts to enforce the tax assessment. Because International Shoe’s office was located in Missouri, the State of Washington sent notice of the lawsuit to those offices by registered mail. International Shoe claimed that since they did not have a permanent presence in Washington, the notice sent by mail to Missouri violated the Due Process clause of the United States Constitution.

Due Process

US Constitution used for International Shoe Co. v. WashingtonAnd finally, this brings us to the primary issue in the case: Does the Due Process clause allow a State court to exercise in personam jurisdiction over an out-of-state defendant who does not have a permanent presence in the State? The Supreme Court explained that historically, in personam jurisdiction required the defendant’s physical presence in the State. This precedent is garnered from Pennoyer v. Neff, which is discussed in this video: Sex and the Senator in Pennoyer v. Neff.

Rule in International Shoe Co. v. Washington

Though the Court could easily have found that International Shoe was physically present in Washington State, the Court chose to articulate the following new rule: To exercise in personam jurisdiction over an out-of-state defendant, the Due Process clause requires the defendant to have minimum contacts with the forum State such that the suit does not offend traditional notions of fair play and substantial justice.

Applied to the facts in this case, the Court noted that 13 salesmen soliciting orders for a substantial number of shoes meets the minimum contacts test.

Study Tips

One challenge in preparing for a personal jurisdiction exam is all the different tests you need to learn. This includes more than just the minimum contacts test in International Shoe Co. v. Washington. You will need to learn the tests in World Wide Volkswagen, Asahi, and several other cases. Early in the semester, use flashcards to help you learn the rules, that way you are prepared for exam day.

Exam Tip

On a final exam, you need to examine every contact that the out-of-state defendant has with the State. Given that companies can do business over the Internet today without ever sending a human into another State, the minimum contacts test is very important. For a brief overview of how technology comes into play when establishing minimum contacts, see this article on the Principles of Jurisdiction.

Your goal on an exam is to persuade the grader that there are or are not minimum contacts. Usually, your professor will give you a set of facts that can go either way. So don’t spend a lot of time looking for the “right” answer. The only right answer is one that identifies the issue, correctly states the rule of law, and then provides a well-thought out reason for whatever conclusion you happen to reach. For help on developing strong analysis, watch my episode called Three Steps to Better Analysis.

 

 

Categories
Torts

US v Carroll Towing

US v Carroll Towing is one of Judge Learned Hand’s most famous tort opinions. Judge Learned Hand served on the second circuit court of appeals, and is often called the greatest circuit court judge. For more biographical information, here is a good article on Judge Learned Hand.

Contract with US Government

The case starts off in the New York City harbor during World War II. The Pennsylvania Rail Road was shipping flour owned by the United States government in its railway cars. When the railway cars arrived in New York City, the railroad rented the barge Anna C. from Connors Marine. They then moved the railway cars onto the barge in the harbor.

As part of their rental agreement, Connors Marine promised to provide a sailor. The sailor, or what the case calls a bargee, was supposed to be on the barge between 8 am and 4 pm every day. Because of wartime conditions, barges were daisy-chained to each other from the pier, extending out into the harbor.

The Scene

tug boats and barges, like the ones in US v Carroll TowingThe Anna C. was moored at pier 52 along with five other barges, all lashed one right next to the other. Over at the next pier, called the public pier, four barges were secured in the same manner. The captain of the tugboat Carroll found these two rows of barges and needed one of
the barges in the public pier next to the Anna C. But to get his barge he needed to remove a rope that connected the two rows of barges.

So the captain of the tug sent two employees onto the barges to remove the rope—the case calls one of the employees a bargee and the other a deckhand. They untied the rope and got their barge, but they forgot to retie the rope once they were done.

Drifting Boats

After a few minutes the rope that secured the Anna C. broke from the pier and all six barges started to float away. It was about 2:00 p.m.

After drifting for a few minutes, the Anna C. crashed into the propeller of a nearby tanker, ripping a hole in the Anna C.’s hull that could not be seen from outside the ship because the hole was under the water line.

The captain of the tugboat rushed back and secured the Anna C. to the pier, but he was unaware of the hole. The Anna C. filled with water and sank into the harbor, destroying all the flour owned by the United States.

It is clear that if Anna C.’s employee had been on board he would have found the hole and kept the Anna C. from sinking.

Negligence

The issue in US v Carroll Towing is whether Connors Marine breached its duty of care by failing to have an employee on board the Anna C. during working hours, as required by its contract. (As an aside, check out this video for a little more help on issue spotting.)

Learned Hand used the following algebraic formula to explain breach of duty: B<PxL. B is the burden of taking adequate precautions; P is the probability of harm and; L is the gravity of the harm. For a more detailed explanation, you can watch a video the explains the Learned Hand formula in more detail.

As applied to this case, the burden for Connors Marine was keeping an employee on the barge during working hours. Next, we look at the probability of harm. In a busy wartime harbor with many barges being moved in and out, that is fairly high. Finally, we look at the gravity of harm. If a barge were to break loose, the harm would likely cause significant damage. Learned Hand held that Connors Marine, the barge owner, breached its duty of care and was therefore negligent for failing to have an employee on board the Anna C. when she sank.

If you are still struggling with the Learned Hand formula, you may want to use the elaborative interrogation technique,

 

Categories
Torts

Proximate Cause

Raise your hand if you perfectly understand proximate cause (aka “legal cause”). No one? Read to the end as I explain how this concept works and how to use it on an exam.

Definition

In every tort, a plaintiff must prove that the defendant was not only the actual cause of the injury, but also the proximate cause of the injury. Proximate cause requires the plaintiff’s harm to be a reasonably foreseeable consequence of the defendant’s wrongful action. In a negligence case, there must be a relatively close connection between the defendant’s breach of duty and the injury.

Proximate cause is sometimes difficult for students to grasp. Why? Because it can be used to eliminate liability for a negligent defendant who caused the harm to the plaintiff. You are probably asking: why would the law eliminate liability for someone who was at fault in causing the plaintiff’s injury? In very rare cases, the events leading to the injury are freakish, remote, or improbable; or, there may be a superseding intervening event that injured the plaintiff. In these cases, the defendant is not the proximate cause of the injury, even though all the other elements are met.  (See my video on intervening causes for a more in-depth explanation on unforeseeable intervening events).

When deciding if someone is not the proximate cause of an injury, the law looks for an unforeseeable type of injury or superseding intervening event. A superseding intervening event is another term for an unforeseeable intervening event. When examining an unforeseeable type of injury, the law ignores the unforeseeable manner or extent of injury.

Rat on Fire

For example, in one case, the owner of a building negligently maintained an exposed pilot light, which had the potential to cause a fire. One would have expected the carpet or someone’s clothes to catch on fire, but instead, in this case, a rat ran by the exposed flame, its fur caught on fire, it ran into a hole, and the building caught on fire, causing damage to the plaintiff’s property in his apartment.

Now, though the manner of how the building caught on fire was unforeseeable, it was still a foreseeable consequence that the owner’s negligence would result in a fire. Therefore, the owner was the proximate cause of the fire.

Eggshell Plaintiff

Also, the law ignores the unforeseeable extent of injury in what is called the eggshell plaintiff rule. For example, if someone negligently backs into the car of a 95-year-old, causing her outrageously high medical bills, the defendant is still the proximate cause of the injury. You take the plaintiff as you find them.

In real life, plaintiffs prove proximate cause 99.99% of the time. In other words, proximate cause isn’t difficult to prove. So why do we spend so much time discussing a topic that has so little real-world application? Because proximate cause is the darling of law professors and bar examiners! For a more detailed discussion, you can read the proximate cause article by Professor Paul Hayden.

Example: Boiling Enamel

Cauldron. Used in proximate cause hypothetical

Let’s work through a fact pattern. Duffy is in the road construction business, and uses boiling enamel as part of the construction process. Duffy sets up a cauldron near a busy road, but he fails to set up any barriers in front of the boiling enamel. He also fails to place a person in front of the enamel to direct traffic away from it.

For the first element in a negligence action, Duffy had a duty to act reasonably under the circumstances. Second, Duffy breached his duty because a reasonable person would have taken a few basic precautions. For example, he should have placed a barrier around the boiling enamel. Also, he should have had people with flags on the road to get people to slow down. Under these facts, Duffy clearly acted unreasonably.

Suppose though that instead of a car crashing through and hitting the enamel, we have an airplane with engine problems. Pilot sees the road and decides to land. He lands at a point near Duffy, at which point the boiling enamel splashes on Perry. Under these facts Duffy isn’t the proximate cause of the harm because the airplane was a superseding intervening event that broke the causal link.

Foreseeability is the Norm

In real life, injuries are almost always a foreseeable consequence of the negligent conduct. If someone is speeding down the road, the foreseeable consequence is an injured pedestrian or another car. When a waiter fails to clean up a water spill, it’s reasonably foreseeable that someone is going to fall. Or, if an airplane mechanic fails to put enough oil into an airplane’s engine, it’s reasonably foreseeable that the plane will crash. It is only in strange cases, like Palsgraf v. Long Island Railroad where foreseeability becomes an issue.

Exam Tip

On an exam, always mention proximate cause in its own paragraph after you establish actual cause. When the harm is foreseeable, three to four sentences will suffice. But if the fact pattern deals with an unforeseeable type of harm or unforeseeable intervening event, then you need to discuss proximate cause in more detail. Don’t forget that reasonable minds can differ in these cases. So pick one side or the other and explain why you believe the defendant is or is not the proximate cause.

If proximate cause is still confusing, our tutors are available to help you master this difficult concept. If you want to explore this complex area, read Causation in the Law by H.L.A. Hart.

 

Categories
Torts

Res Ipsa Loquitur

woman with purple hair told to leave meeting. Used for res ips loquitur

Today I want to discuss the Torts concept res ipsa loquitur. A Latin phrase, which translated means “the thing speaks for itself.” Though for something that should speak for itself, it sure causes a lot of confusion! (For some interesting information on the doctrine, consider reading this article on the effect of the res ipsa loquitur doctrine).

The Context

In negligence cases a defendant can only be found liable if the defendant breached a duty owed to the plaintiff. But sometimes, there is no direct evidence that the defendant did anything to violate the duty of care.

Man walking by building. res ipsa loquitur if window fallsFor example, suppose that someone owns a 10-story office building. One of the sealed windows towards the top, pops out, falls down, and severely injures a pedestrian. At the time the window fell, the office was vacant. In a lawsuit, the building’s owner might try to argue that he doesn’t know why the sealed window popped out. And since he doesn’t know, he must not be negligent. What do you think about that argument? It does have a certain appeal to it. But we should all agree that sealed windows in office buildings don’t magically pop out unless someone is negligent.

To combat this kind of silly argument, res ipsa loquitur was born when the only evidence is circumstantial. Circumstantial evidence allows a jury to make an inference based on what is known. In the window example, we know that there was a sealed window and that it popped out. The inference is that the building owner breached his duty of care.

The History

Latin marble writingThe phrase res ipsa loquitur comes from a mid 19th century British case called Byrne v. Boadle. For purposes of this article, all you need to know is that the world would have been better off if the court had not used Latin. And instead, stated that it was providing a rule for the use of circumstantial evidence in establishing breach of duty.

The Rule

The question of what evidence and instructions can be heard by the jury is up to the judge. In a res ipsa loquitur case, the judge will allow the jury to get a res ipsa loquitur instruction if the following three elements are met:

  1. The harm suffered is most likely caused by the negligence of someone. If it was an act of nature, like a hurricane, then the plaintiff loses on this element.
  2. It is more likely than not that defendant was negligent. (There has to be some connection to the defendant, and it has to be fairly apparent that the defendant breached his duty of care. Some of the cases that you read might state this element differently, saying that the defendant had exclusive control of the object which caused the harm. These cases tend to be older, and those cases never held for absolute control, which is why the more modern rule states that it is more likely than not the defendant’s negligence. After all, how else does a sealed window inexplicably pop out of a building unless the building owner was negligent, either while installing the window or failing to make reasonable inspections?)
  3. The Plaintiff was not at fault. (Obviously, a plaintiff that contributes to the negligent act cannot use res ipsa loquitur.)

Keep in mind that by proving all three elements, a plaintiff does not automatically win their case. What the plaintiff gets is a jury instruction that allows the jury to make an inference that defendant breached the duty of care. The jury can decide to make or not make the inference.

How to Use on an Exam

Treat each element of the res ipsa loquitur test separately. This means providing one full IRAC paragraph for each element, as explained in the video on Nested IRAC. If you try to place all of the elements in one giant paragraph, you’re going to have one big res ipsa loquitur mess. To be clear, a res ipsa loquitur discussion requires 4 paragraphs. The first paragraph will mention the phrase, that it is used to get an inference for the breach of duty, that the judge makes the decision as to whether the jury gets a res ipsa loquitur instruction, and that the jury is free to either accept or reject the inference. The next paragraph will deal with the first element. And finally, the third paragraph deals with the second element. And the final paragraph will deal with the third element. One paragraph for each element.

If you really want nail a res ipsa loquitur question on an exam, check out this tip on how to answer an essay question before seeing it. Also, if you are struggling with Torts, I highly recommend Understanding Torts, a study aid that I have required my students to read since 2001.

Now that you’ve read the article, I hope that res ipsa loquitur!

 

 

Categories
Essay Exam Exam Preparation Physical

10 Exam Day Tips

Don't panic sign for exam day tips post

Looking for exam day tips? It’s the end of the semester and most of you are preparing for final exams. DON’T PANIC! By following these 10 exam day tips you can improve your grades. The principle behind these exam day tips is simple: calm students outperform nervous and tired students every single time.

Let me tell you about John (name has been changed), one of my friends at the elite law school we attended. John is very intelligent but he had one problem: he got overly nervous before exams. On the first morning of the bar exam I noticed that he was frantically reviewing his materials. During the lunch break he rushed to his car so he could study more. And I am sure that he spent every free moment that evening and the next morning reviewing his notes. He flunked the bar that time and also the next two times he took it. I can assure you that John was prepared and would have passed the bar exam the first time if he had remained calm.

Here are your exam day tips:

Tip #1

Remain calm and trust yourself. Did you go to class? Have you prepared the right type of outline? Did you make flash cards? Have you done the hard work before the exam? Did you watch the videos on my YouTube channel?? If you did all of that, then trust that you will perform to the best of your ability.

Tip #2

Get a good night’s rest so that you can perform at your highest level. In fact, watch a TV show or do something else to relax, and get your mind off the exam. If you go into the exam tired and stressed, you will get a lower grade.

Tip #3

Last minute cramming will confuse you rather than help you. I get the strangest questions from students within the last 24 hours before an exam, questions that make no sense and aren’t usually tested on the exam anyway. Last minute cramming will actually result in lower grades, not higher ones.

Breakfast plate. Exam day tips.Tip #4

Eat a well-balanced breakfast as studies show that breakfast is the most important meal of the day. This doesn’t mean to have a huge, protein- and carb-loaded, sugary feast for breakfast, but you want to have something in your system so that your brain operates at its optimal level. Check out this article for more detailed info on why breakfast helps your brain
perform better.

Tip#5

Before you leave home make sure you have everything you need for the exam, such as your laptop, pen, paper, or books. In fact, if you can, pack all that stuff up the night before so you don’t have to worry about it in the morning.

Tip#6

Plan to arrive early. I recommend getting to school at least one hour early as you never know what might happen, whether that is bad traffic, a flat tire, or a speeding ticket.

Tip #7

Stay comfortable. One way to stay comfortable is to dress in layers, as the exam room may be too hot or too cold for you. Also, if you need to go to the bathroom during the exam, then go to the bathroom. Don’t worry about losing five minutes of exam time for a bathroom break; otherwise you will be distracted as you think about how desperately you need to go to the bathroom.

By the way, I have one story related to bathroom breaks. A law students was afraid of losing anytime on the exam because of bathroom breaks, so he purchased adult diapers to avoid having to get up during the exam. Please, DON’T do this! It’s actually good for you to get up for five minutes, go to the bathroom, and get your blood circulation moving again.

Tip #8

Yawn before and during the exam as it is a calming technique—and it works!

Tip #9

If you are extremely sick on exam day then get permission to take the exam on another day. I’ve had dozens of students get a low grade because they didn’t know they could request an accommodation. Sure, there are those that abuse the system, but when somebody is obviously sick then they are entitled to take the exam on another day. Just make sure to contact the Registrar, or other authorized person, who can give you permission to take the exam on a different day.

Tip #10

If you are excessively nervous and can’t calm down, consider seeing a mental health counselor, a pastor, or medical professional. Another friend of mine, who also went to an elite law school, failed the bar three times before she went to her doctor. With medicine to calm her down she passed the exam the next time she took it. There is no shame in seeking help from a professional when it is necessary.

Conclusion

These exam day tips can help, but don’t forget to use the IRAC method for your essays. Also, make sure you understand how professors grade so that you can prepare for the exam. Now, use these exam day tips and good luck on your exam!

 

Categories
Personality Skills

Succeeding With a Teachable Spirit

Child learning in clearing with teachable spirit

Students with a teachable spirit will become more successful, regardless of where they start their journey. Do you believe that you have all the answers? Do you believe that your professor is a lousy teacher? I’ve seen it over and over again. Arrogant students who believe they know how to study and to take exams. But most of these students don’t do as well as they thought they would. They then blame the professor for bad exam questions, a forced curve that artificially kept their grade down, or poor grading by the profesor.

A few years ago I had a student who flunked one of my courses. The student took my course a second time, and once again flunked it, even though I used the same multiple choice questions from the prior exam. Rather than accepting personal responsibility, this student blamed me for flunking the final. You will never be as successful as you can be with this type of attitude. You need to develop a teachable spirit.

 

Suspend Your Disbelief

So here’s my recommendation: suspend your disbelief. Its hard, but once you start you will begin improving, whether you are at the top of your class or at the bottom.

This is how you do it. You hear something from an expert, like your professor, and the advice contradicts what you believe to be true. The professor may be giving you advice that is contrary to what some upperclassman has told you. This is when you need to suspend your disbelief and trust your professor. But, you say, this upperclassman got the highest grade in the class last semester. Or someone on the internet said they nailed law school, getting almost all A’s. Now, I don’t doubt that these students got top grades. But let’s think critically about the inference you are being asked to make. The argument goes something like this. I got all “A’s” and if you follow what I did then you will also get all “A’s.” But are you exactly like that upperclassman or the person you saw on YouTube? Do you have the same IQ, the same background, the same undergraduate GPA, the same experience? Did you have the same professors? Are your final exams similar to what that other person had?

There are many variables that go into someone getting the highest grade in a course, and it is possible that you share none of those variables with that top student. So take their anecdotal evidence with a grain of salt.

Not All Equal

Let’s look at one variable, for example. Some students come to law school with exceptionally strong technical writing skills. Those students overwhelmingly do better because they were trained to write better. They went a high school that taught technical writing, and then to a college with a strong emphasis on essay exams. (If you want to see what a law school final could look like, I have some writing prompts at my exam bank.)

Now I don’t know about your experience, but more and more students are going to law school without a strong writing background. This means that the advice you receive from these “A” students won’t work for you. Why? Because you are starting at different places. Imagine that you and your classmates are climbing a mountain. But you are not all starting at the bottom of the mountain. Some are starting at the bottom, some in the middle, and a few near the top. That is what law school is like, which is why some students hire tutors. After all, a tutor can help you move faster up that mountain, just like a personal trainer can help your body get in shape.

Philosopher statue. In teachable spirit post.Undergraduate Majors

Another variable is undergraduate majors. I’ve noticed that philosophy majors tend to do well in law school because their philosophy courses emphasized the same critical reasoning skills needed to succeed in law school. If the person giving you advice was trained in philosophy, that person’s advice may not be of use to you. Again, you are both starting at a different point along the path to an “A.”

Briefing Cases

You may have heard from others that you should not brief your cases, which I is horrible advice–you should brief your cases.   You now have a decision to make: do you believe those other people that gave you that bad advice, or a professor that has helped thousands of law students, and understands what it takes to succeed. Now, some people have succeeded without case briefing, but ask yourself, what knowledge, skills, and abilities did they bring with them to law school, and do you have the same knowledge, skills, and abilities?

To succeed in law school you need to suspend your disbelief and develop a teachable spirit. For additional info on why having a teachable spirit is important, check out this Harvard Business Review article. on humble leaders.

Categories
Exam Preparation law school academic success Study Technique

Study Group How To

study group

Are you wondering whether you should join a study group, or if you’re in one, how to make it work better? There is an ancient Japanese proverb that says: “None of us is as smart as all of us.” In general, that is true. But study groups that are not designed well can lead to pooled ignorance.

Advantages

One advantage of study groups is that it creates accountability. If you know you must complete a group project by a certain date, you’re going to get it done. But if you’re not convinced, here is a scientific article on the benefits of small groups outside of the classroom.

Here are seven tips for successful small groups.

Tip 1

One, set a time limit and the number of hours you will meet. For most of the semester, a one hour meeting, two or three times a week should be enough. As you get closer to finals, you will want to increase that amount. But any more than that and you will probably be wasting time.

Tip 2

Two, focus on discussing the confusing areas, not everything that was discussed in class. All too often, a study group can morph into a social group. While we all need community, too much social interaction defeats the learning aspect of the group, as group members start gossiping about others and griping about professors. That’s just not productive.

Tip 3

Three, trade outlines. Before your meeting, decide on what part of the law you are going to work on and then at the meeting, swap outlines. Everyone has to prepare their own outline, but by trading them you can expose gaps in your understanding and discover errors.

Tip 4

Four, do practice exams and then grade someone else’s essay. Doing a practice exam, without feedback from someone, is practically worthless.   Take an old exam, or a commercial practice exam. Once you complete the exam, trade it with someone else in the group. Each person will grade that other person’s exam, and you have to agree to be brutally honest in your grading. Now, here’s the magic with this approach. Not only are you getting feedback from someone else, but you are grading someone else’s exam so you will be more objective. Unfortunately, when we grade our own work, we are often unable to see the flaws. But when you grade somebody else’s exam, you see more of their problems than they do. And by spotting that other person’s problems, you develop a more critical eye, which will help you when you take your final exam.  If you need some practice exams, there are some exams you can download for free at this exam bank.

No cell phone sign. Use with study group.Tip 5

Five, eliminate distractions during your sessions. This means either turning off your phones or turning them to airplane mode. You may have to agree to place all your phones in the middle of the table to prevent distractions.

Tip 6

Six, review the law by asking each other questions about the law. You can make a game out of this, where two of you take one side, and two on the other. You might even want to use flashcards, which will help you expose gaps in your knowledge–I recommend the creating a Leitner box, which is an advanced flashcard method.   The key is for the study group to focus on the rules of law that are likely to appear on the final exam.

Tip 7

Seven, assign tasks. Divide the work evenly and in a way that each member knows exactly what they are responsible for.

Membership and Don’ts

So who should you include in your study group? Limit the group to 3 or 4 people. Two is not enough, and when you start getting to 5 and above, you create a situation where some members may not fully participate. You get the freeloader problem. The members of the group should have similar goals, be focused, and motivated. Remember, the study group is helping you prepare for the final exam and is NOT a therapy session. Also, look for a bit of intellectual diversity in the group. If you’re all progressives or you’re all conservatives, you are more likely going to develop group think. By mixing it up a bit, the group will be stronger as you bring your differences with you to the table.

 

Categories
Exam Preparation law school academic success Study Technique

Learning Faster with the Feynman Technique

Confused student.

Have you ever left class wondering what your professor was even talking about? The Feynman Technique will help you learn material faster and at a level where you will remember the concept for years to come. Professor Richard Feynman was a Nobel prize winning physicist who had the nickname “the Great Explainer.” By following four steps, you will learn a topic well enough to remember it on the final exam and the bar exam.

Step 1

Step one: write the name of the concept you want to learn at the top of a page (try to handwrite as much as possible; see this video for why handwriting your notes during class is better).  As the semester progresses, come back to the document every time you need to add more knowledge related to that topic. For example, if you’re having problems understanding proximate cause, write that down. You might start off with the unforeseeable manner of injury, and then later in the semester come back to the unforeseeable intervening event.

Step 2

Person teaching another as in the Feynman TechniqueStep two: pretend you are teaching the topic to someone else, preferably a high school student. This means that you must make it simple enough for them to understand, including word choice and sentence structure. All too often, a law student will copy a rule verbatim from a case. While the rule statement may be accurate, how likely are you to remember antiquated language from the early 1900s or earlier? For example, when you take Business Associations you will likely read Benjamin Cardozo’s classic case Meinhard v. Salmon. Your professor will certainly focus on these words for establishing the standard of care:

Joint adventurers, like copartners, owe to one another, while the enterprise continues, the duty of the finest loyalty. Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.

That is some of the best legal prose I’ve ever read, but do you really understand what Cardozo is saying? Let’s take that language and make it simpler. Teach it to that high school student by stating it in modern English: “Partners owe to each other the highest standard of behavior.” And there you have it folks, a long phrase converted into ten simple words. When you are working on this step, make sure to explain the rule as simply and briefly as possible. And for some cool information on why teaching a subject will help you learn it better—and why oldest children, on average, are smarter than younger siblings—see this article on the protege effect.

Step 3

Step three: When you get stuck or are shaky on one of the concepts, go back and study more. This means looking at your books, doing more research, and talking to your professor. If you have multiple choice questions, work through those as well. Remember, if you can’t teach the material to a high schooler, you don’t know it well enough.

Step 4

Step four: Go back to step 1 and repeat the process. In other words, the Feynman Technique is about the process, not the end product. This is because we all understand material better when we teach it. I understood torts at a much deeper level when I taught it, and you will understand something better when you teach it. If you see a technical term, try to simplify it. Will that high school student really understand, without additional explanation, the terms “consideration by estoppel” or “negligence per se?” As you simplify the concept, you will begin to understand the material in a much deeper way that will help you not only remember it on the exam, but will also help you with issue spotting and multiple-choice bar exam questions.

Ultimately, if you’ve tried everything you can but are still having problems, consider looking for a law school tutor. There is no shame in asking for help, especially for something as important as your education.

 

Categories
Essay Exam Exam Preparation Study Technique Time Management

Answer an Essay Question Before You See it!

Word test on chalk board.

Would you like to answer an essay question before you see it!  Want to have more time on exam day to think through your answer? You can have 60% of your essay exam complete before exam day with this preparation method.

Ideally, you should already have three sets of notes, as I mentioned in my episode called “Three Sets of Notes Method.”  In addition, you need to create a fourth set of notes, which I call your Exam Answer outline. This is an organizational tool that will allow you to move quickly during the final. Also, you will write a much stronger essay.

The Process

Here’s how it works. For each possible issue, you will write the ideal answer into your Exam Answer outline. Obviously you won’t know the names of the parties so simply use “Defendant” and “Plaintiff” for the parties involved. And while you do not know the parties’ names, you do know the law and how rules interact with each other.

Negligence Example

Let’s go through a negligence example. Ask yourself what the ideal first sentence of a negligence answer looks like. Then write out something like: “The issue is whether D was negligent when he committed the act against P.” On exam day, you will replace “D,” “P,” and “committed the act” with the facts from the exam.

The next sentence is your ideal rule statement, which you will pull directly from your rule outline. “Negligence occurs when a defendant owes a duty of care, breaches that duty, is the actual and proximate cause, and there are damages to the plaintiff.”   Then wrap up the first paragraph with a brief conclusion. Because all the elements are met, D is liable to P for negligence. By the way, if you haven’t noticed, I am using the IRAC method, which I covered in an earlier blog post.

Now, write the second ideal paragraph, which in this case involves duty of care. “The first issue is whether D owed P a duty of care. Duty of care is a legally recognized relationship between the parties, and is measured by the reasonably prudent person standard. In this case D owed P a duty of care because….” At this point you’ll have a blank, which you will fill in on exam day. Then the last sentence will read: “This element is met (or not met) because D owed (or did not owe) P a duty of care.”

Negligence Per Se

You will do this for each element, but don’t stop there. You also need to create alternative paragraphs, depending on the issues that might appear on your exam. For example, before you get to the final exam, have you thought through how to deal with negligence per se? I ask this because when you have a negligence per se question, you need to discuss the negligence per se AND the reasonably prudent person standard. And you need to do this because it is always possible that the court will deny the negligence per se instruction, leaving you with having to argue the reasonably prudent person standard. This means you need to have an ideal paragraph for this possibility.

So work through negligence per se, using this approach, and end the negligence per se paragraph with something like this: “Plaintiff should be able to establish duty through negligence per se. However, if the court finds that negligence per se cannot be used, then Plaintiff can still prevail under the reasonably prudent person standard.”

There are other areas that you also need to think about. Where does res ipsa loquitur fit into an exam? On a criminal law exam, where do you discuss premeditation? On a contracts exam, where do you discuss a UCC distinctive?

Final Advice

Word plan on a puzzle. Answer an essay question before you see it.

You can wait till exam day to think about all this, but if you plan it all out in advance, now when
you have time, you will know exactly how to structure your essay answer and understand the connections between the different rules. This approach will also give you more time to focus on the analysis portion of the exam, which is where most professors award points. For some additional ideas on how to structure a pre-planned essay, see this guide on how to structure an essay.

By the way, if you have an open book exam, you will truly have a huge advantage over your colleagues that haven’t done this.

 

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