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Monday, August 18, 2008

More Advice to 1Ls

Lesley's post below offers an old chestnut of a topic: advice to 1L's.  A good topic, especially because they will soon enough face advice, usually of a different order, from 2L's and 3L's, and we have but a brief window in which to either confirm that advice or inoculate them from it.  I gave a similar talk last week, and here are a few of my general thoughts.

1) It's Not Undergrad Part 2.  I don't mean by this that law school is harder than your undergrad degree; it is for some, and not for others.  Nor do I mean that the strategies that got you through your undergrad degree won't work as well in law school, though that may be true for many students.  I mean that it is important to keep in mind that you are receiving something different from a general liberal arts or science education at law school: you are receiving a professional education.  In general terms, that means you will become acculturated into a set of professional norms, values, and skills.  In specific terms, that means that in three years and one bar exam you will be a responsible party: responsible for the welfare of a client, responsible for your errors and omissions, responsible for making your profession honorable and working for reform where you deem it appropriate, and, oh yeah, subject to professional discipline and even criminal charges.  A fair number of law students, in my view, come to law school thinking of the purpose of law school as ultimately being no different from getting a second undergraduate degree.  Although we can argue over what, exactly, law school is, I don't think we should be too cute about it.  You are here to become a professional, and you should take it seriously -- among other reasons, because doing so can add a sense of value, purpose, meaning, and enjoyment to your time here.  Like me, and like Learned Hand (see Gunther's biography), you may not be sure exactly why you came to law school, or perhaps you came because you weren't sure what else to do.  So be it; but you're here now, and you will like it more if you take it seriously.

2) Work; Don't Strategize. 

This is where the 2L/3L advice goes most seriously wrong.  1L's will get lots of advice about how to strategize their way to success.  Much of this advice involves shortcuts.  Use outlines and don't bother with the reading; learn how a particular professor thinks and what he or she wants on the exam; and so on.  They're about how to get the best possible grades with the least possible effort.  I can understand this advice, and I can understand the importance people place on grades. But aside from my opinion that most of these shortcuts aren't as effective for actual success/grades as doing the work of reading and thinking about everything (quicker, yes, but not as effective), they're called shortcuts for a reason: they omit a great deal.  However well or poorly law school teaches you how to be a lawyer, the shortcuts are even worse as professional training; and, again, you are actually going to be a legal professional in three short years.  Wouldn't it be helpful to start learning now what that means?  Wouldn't you like to know whether you actually enjoy doing what lawyers do?  Don't you want some greater return for your (substantial) tuition money than grades alone?  If so, learn the materials and learn the skills; they will ultimately work well in any and every class, despite the ready availability of commercial outlines and the quirks of individual professors.  Keep one last thing in mind: lots of lawyers get good grades and still have dead-end careers, and some lawyers who didn't do well in law school still manage to become innovative and involved lawyers with fulfilling and remunerative careers.  Short-cuts may get you the grades -- although, just as often, they don't -- but they probably won't get you the skills and passions that will help you to become a good or great lawyer.

3) Legal Writing is Not a Course.  Well, OK, it is a course.  But it's not just a course.  Don't make the mistake of thinking that it is something separate and apart from your substantive courses -- or worse, that it is less important than them.  Effective legal writing is effective legal practice -- both because good legal writing is good legal analysis, and because most of what you do as a lawyer will involve communicating clearly to others, either in written or oral form and regardless of whether you're communicating with an adversary, a client, or someone on the other side of a corporate transaction. Moreover, mastering good legal writing is the best "strategy" there is for mastering your substantive exams: a great legal exam, in my view, is just a great legal memo written under unusual time pressure.  So treat legal writing as one of your most important courses, whether or not it's pass/fail, and do your best to internalize the form of the legal memo so that you can use it on your exams.

4) Learn, Don't Transcribe.  Back when I was a mere seedling, we "took notes."  You know, with pens.  We didn't record or transcribe everything we heard in law school, especially if it came from the prof.  And it's a good thing, since not everything professors say is wise or true and not everything students say isn't.  Bring your laptop, by all means (I'm not going to get into that debate!).  But don't let it dominate your time in class.  Listen to what's going on, take the most pertinent notes, summarize, and participate.  Be an active learner, not a dolt who happens to have a large text file.

5) Screw Up -- It's Cheap!  And why should you participate -- either by speaking up in class or by at least following and thinking about the discussion?  Because it's a great way to learn the material.  Because you are paying exorbitant sums for three years of school and you might as well get involved; you might even enjoy it!  And, especially, because speaking up in law school is yet another way to actually get experience in talking about and using the law and trying to construct valid arguments.  And it's cheap!  You've already paid your tuition, and as long as your check clears you won't be kicked out just because you said something wrong in class.  On the other hand, if you're wrong, the worst punishment you face is a few titters.  No one will go to jail; no client will get audited; no deal will fall apart; you won't be disbarred.  Wouldn't you prefer a surgeon who was willing to maim a few cadavers in med school rather than waiting till you're on the table to get some practice in using the scalpel?  Same principle.  Law school is a virtually cost-free place to fall on your face, and you might just enjoy yourself and learn something in the process.

6) Drink the Kool-Aid.  Joining a profession is a little like learning a new language, and a lot like joining a cult.  (Or "new religious movement," for the scholars.)  Don't resist it.  There's a wonderfully awful book called Anarchy and Elegance, about a year spent by a journalist as a Yale 1L.  He writes quite accurately about how law school changes your mindset, but by standing outside the process and resisting it almost entirely, he fails to learn half of what he could and to understand most of the other half.  I am not advising you to abandon any critical perspective on the law and the legal profession, on professionalism and acculturation in general, and on law school.  But if you are only critical, without willingly absorbing any of what you are learning, you will become a half-educated cynic.  To a certain degree, to get the most out of law school -- the most education, but also the most joy -- you must give yourself over to the process and allow law school to remake your mind a little.  There will be time enough to cast a critical eye back over what you've learned and to ask whether all of the law and the legal profession's assumptions are correct -- indeed, you'll get plenty of that in law school itself, given my suspicion that a decreasing number of law professors actually "think like lawyers," for better and worse.  But you've got to immerse yourself first.  So, drink the Kool-Aid; join the cult.      

7) Don't Lose Your Common Sense.  To paraphrase and build on Anthony Kronman, law is a form of modified practial wisdom.  "Modified" in the sense that you have to learn something about the system to think about what values and factors are relevant to building sound and wise policy in the system -- so that, for instance, concerns about innocence in criminal law also run up against concerns about finality in the administration of criminal justice, concerns about "equality," "liberty," and other values in constitutional law run up against concerns about institutional competence and allocation, and so on.  But just because you're busy drinking the Kool-Aid, don't abandon the common sense that brought you this far without your walking into traffic, or jumping off a bridge, or going to "The Clone Wars," or drinking too much tequila.  (Warning: the last two examples may not apply to everyone.)  Every year in constitutional law, many of my students insist on arguing that vast stretches of federal law must be unconstitutional, largely, I think, because they assume that if a statute is in the exam I must want them to say it's unconstitutional. (More "strategy.")  Maybe I just want them to show me the arguments, even if common sense ultimately helps point to the conclusion that the law stays on the books.  Although law is, as I say, a modified system of common-sense and practical wisdom, it is not without common-sense and wisdom, and some of what you are learning may be more understandable, and easier to put into perspective, if you retain a dollop of simple common sense while you are trying to make heads or tails of the doctrine. 

That's more than enough for now.  Reactions are welcome, and if I lack other means of procrastination I may try to add some more practical and specific advice.      

Posted by Paul Horwitz on August 18, 2008 at 02:01 PM in Paul Horwitz | Permalink


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» "Drink the Kool-Aid; Join the Cult": from The Volokh Conspiracy
Paul Horwitz offers the following advice to entering first-year law students: "Drink the Kool-Aid."Joining a profession is a little like learning a new langu... [Read More]

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» what not to do/think/say/feel in law school. from The Shark
[brian lauter] Last week Ms. JD posted another installment of its law school advice series . This item lists Law School Don’ts, as submitted by law students from around the country. The Law School Don’ts column features several helpful tips, [Read More]

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» Advice for 1L’s from the (new) legal writer
Prof. Paul Horwitz offers new 1L’s some advice worth of consideration. I like what he says about legal writing:Legal Writing is Not a Course. Well, OK, it is a course. But it’s not just a course. Don’t make the mistake [Read More]

Tracked on Aug 24, 2008 1:41:18 PM


I won't presume to tell anyone what they should do to succeed in law school. Everyone learns differently; everyone's brain is wired differently. I will say, after a successful law-school career and 18 years (so far) of a successful legal practice, that I agree with much of Prof. Horwitz's advice. During law school, I never purchased a commercial outline. I prepared for class by reading and briefing the cases for myself. During class, I took few notes, because I can't write and listen at the same time. At the end of each semester, I used the case briefs I'd written all semester long to make my own outlines. I did okay. I'm not saying that this method would work for everyone, but I can say that it worked for me.

Posted by: Ray Ward | Aug 24, 2008 1:25:21 PM

As to study aids, you're best to create your own. Having an outline is not even close to as valuable as the act of creating the outline. Creating the outline forces you to review, think through, and organize the material. Once you've done that, you're pretty much done.

Commercial outlines and other students' outlines "shortcut" that process and can do you more harm than good.

Posted by: public_defender | Aug 20, 2008 5:26:34 AM

Not a bad list, but I'd counter the urge to actively participate unless you have (1) either the direct answer to a professor's question, or (2) a reasonable question to help clarify the material itself.

Beyond that, the negative externalities imposed on the rest of the class can be considerable and harm the learning experience. It's remarkable how many law students don't understand that they can ruin the learning experience for others simply because they feel their experience or convictions matter. My advice to Horwitz (and other professors): If you want 90% of your class to zone out of the discussion and risk not refocusing later on, ask a question along the lines of "what do you think of this holding/decision/rule?" If this isn't what you want, don't ask these questions.

Posted by: Anonymous | Aug 18, 2008 11:28:54 PM

Perhaps the problem I have here is the concept that, while a thorough, casebook-oriented approach is not necessarily optimal for grades, it *is* better for actual practice.

But is it, really?

I just took the bar, and haven't practiced yet. But what I have seen is that knowledge and practice of the law is a fairly small portion of an attorney's skill set. Just as important, even individually, are negotiating skills, people skills, research methods, and writing ability. Few of which are seriously taught in law school.

So even if an exhaustive, searching method is better for practice then shortcuts... so what? I still have one to two years of on-the-job training before I'm a serious attorney. That's where I'll learn the reality of practice.

I don't have much to say about the idea that plowing through dense, narcissistic casebooks is more fun and exciting then grasping the material in an easily readable format.

Professors do not grasp the economic reality that law students face. There are far, far more law students then there are legal jobs. What's more, the legal jobs are segregated between an aristocracy of high-paying corporate jobs, and a fairly low paying "everything else."

In this arena, law school functions mostly as a relatively meritocratic metering function. Those students at the 10% line have pretty solid earning power. Those above the 50% GPA line will probably do okay, in the long run. The bottom half face unemployment, crippling debt loads, and the waste of several years of their lives. In large part because law school depends on a few years of "finishing school" at a firm to teach actual practice. If you can't find the job...

I took a look at the employment stats for U Alabama. Just above 10% found employment at a NLJ 250 law firm. Those are the ones that pay $150K+ a year. The rest? Probably some combination of government and small firms -- and probably at 70K or less.

That is why a ruthless focus on competitiveness and study tactics that raise a student above the norm are not optional. Given debt load, and given why students go to law school in the first place (not for 50K a year) they're essential.

Posted by: Kevin! | Aug 18, 2008 5:30:26 PM

Having graduated from law school recently enough to remember the experience and with enough distance to put the experience in perspective, here are a few practical pieces of advice:

* Some of your professors are liars *

What he or she tells you will be on the exam is not necessarily true. I had exams on subject matter never assigned, theories never discussed, and areas of the law that we were told would not be on the exam. Moreover, your grade does not depend on your mastery of the subject, but rather your _comparative_ mastery vis-a-vis your classmates. Speak to former students to determine the scope of the exam in previous year, and focus particularly on whether the faculty member can be trusted. If the faculty member is visiting, be clever and contact his or her former students. Often times, certain peripatetic faculty members travel from school to school for a reason.

* Don't rely on your casebook *

It was probably put together by the 3L version of myself, and it is designed backwards in terms of how most people learn. To make sense of your assignments, each time you start a new subject area, read the professional outline of that area, and only then proceed to the book. The casebook presents one tree after another, but you need to know that you're in the woods before you can get out of them. Starting with the big picture, you will proceed from theory(ies) to examples, and not vice versa. Ultimately, you will learn inductive reasoning as well, but it is easier to start with what is familiar to you.

* Legal writing is not a writing class. *

Legal writing is about reasoning, not about writing. The goal of your 1L class is to force you to think in a certain fashion and demonstrate that process on paper. As a result, the writing will be stilted, repetitive, and obnoxious. Go with it. Focus on the reasoning, and after your 1L year you can return to fixing your style, improving clarity, and enhancing emotional persuasiveness. Besides, you are being graded on how much you write like your teacher, not how well you write.

* Study aides are your friends; don't forget to think. *

Anything that makes you think about this stuff is your friend, including the gunner sitting next to you that asks the really idiotic questions. Questions for law exams can only come in a handful of forms. That is, there is only a couple of ways to ask certain kinds of questions. Practice enough, and you will recognize the form, and thus be able to give the answer. Alas, we may think law has moved on from its formalistic stage, but in some respects it has not. Also, use a study group to try and answer the questions in the book (if the textbook is well written), but make sure you can puzzle through the questions yourself. Also, don't feel foolish trying to answer questions in class (silently to yourself) when they are asked of others. Everyone will hate you if you speak, but that doesn't mean you cannot speak silently to yourself.

* Grades really matter. *

Your ability to do well your first year is all important IF you want to go to a big firm. So all the "sweet mystery of life" stuff about how if you just stick with it, you'll get it, is silliness at least in terms of certain kinds of employment. Your 1L year, law school is about speed: it's about getting it slightly faster and better than the guy next to you. Find out what works for you in terms of really understanding the material, and do that. Caveats: (1) Faculty tend to grade based upon their political bias, so write your exam answers accordingly. Look at previous years' exams and answer the questions. (2) Find a prof who isn't an ass and make friends. You'll eventually need the rec or a summer job, and some are actually good people. (3) Faculty lie about what's on exams (see the first item above).

* Distinguish between rule-based classes and theory-based classes *

In a rule-based class (e.g., evidence, civ pro, professionalism), do not feel badly about not attending class. You can learn the material as well (and more efficiently) through study aides and drilling yourself on the questions. CALI can be very helpful. Although it's nice to think the prof up front can add value to the class, in these situations, evaluate whether that is so. However, in theory-based classes, there are so many theories that it may be helpful to see which ones your prof favors. Don't fall into the trap of focusing on the prof's pet theories -- you will be tested first and foremost on the black letter law. Know the black letter first, and only then pay attention to the other stuff.

* Exercise *

Find an outlet to burn off stress. You'll be surrounded by folks who are warped by the dysfunctional social environment. Find ways to disengage and let things go. Believe it or not, if you are healthier, you can study longer, focus better, etc.

* Network *

People forget that life is not a true meritocracy. A poor student with good friends can do better than a good student with few friends. Be social, and not just with classmates. Besides enriching your life, you never know where that next job (or career) will come from.

Posted by: practical advice | Aug 18, 2008 5:20:24 PM

Just a grace note to DBL's generous comment. Note that the kind of "getting inside a professor's head" advice he is offering, which ultimately involves grappling with the substance of the material and trying to place it in context, is not the same as the kind of "learn how a professor thinks" strategy that I mentioned in my post, which is often a cruder way of trying to discover particular "tips" to pleasing the professor. I can understand the appeal of those tips, but, again, I think that trying to treat the *professor,* rather than the *material,* as the problem to be solved is less useful and effective -- both in law school and, as DBL points out, beyond -- than trying to understand the material itself (which, to be sure, includes trying to understand the professor's own take on the material, although I think that is of secondary importance). It's also, in some ways, less efficient: a really smart person who has grappled with his or her law school materials and, per my other advice, with sound legal writing, will have the kind of skills that apply pretty effectively in every course, while learning what Prof. Smith wants is advice with a pretty limited shelf-life.

Posted by: Paul Horwitz | Aug 18, 2008 3:54:46 PM


If you want practice questions, the best, by far, are from prior exams, which are often available at the law library. Commercial outlines are pretty much useless in my experience. They cover a lot of irrelevant material and give no clue to what your professor thinks is important. Try outlining your class notes. That's the best way to get inside your professor's head. Think about what topics the professor covered and why he covered them. Was he teaching a point of law or a way of analyzing a problem or (most likely) multiple ways of analyzing a case?

After 30 years of practice, I think Prof. Horwitz's advice to 1Ls is excellent.

Posted by: DBL | Aug 18, 2008 3:47:28 PM

I thought I might get a comment like Kevin!'s. More are welcome if folks agree with him. Leaving aside whether my point was "badly confused" or "meaningless" -- you're not my wife writing under a pseudonym, are you? -- let me respond to your broader points. I did not denigrate the importance of grades (see "I can understand the importance people place on grades"). Nor did I say people shouldn't engage in "flowcharting, distilling black letter law, and practice problems." Note that those are all active exercises -- and people may even undertake them after, or in concert with, reading and thinking about the casebook! I certainly didn't denigrate the use of practice questions found in commercial outlines; they are a good thing. For that matter, I didn't even say, "don't use commercial outlines," which some professors do indeed advise. I said that the advice, which one sometimes hears and sees from students, that one should ignore the primary reading *altogether* in favor of spending all of one's time with outlines -- in context, I meant either commercial outlines or non-commercial outlines that you didn't prepare yourself -- is a shortcut, that it's generally a grade-oriented one, and that in my view it is a foolish one.

Again, I understand the importance of grades. But I am not convinced that "strategies" are the only or even the best way to get good grades. And I believe that they take much of the joy out of law school, which in turn affects one's degree of commitment and energy in law school, which in turn affects one's grades. But more importantly, it affects your ability to do law in the long term. And although getting that first job is an obvious prerequisite to doing law, if you surmount it -- and students with poor grades have done so before, even if they didn't go to Yale -- you suddenly find yourself actually engaged in the practice of law, in which case I think your "ability to excel and achieve [your] career goals," not to mention the chances that you will feel fulfilled in doing so, will be enhanced if you've done the hard work and not just taken the shortcuts. Distilling black-letter rules from a commercial outline may help on exams (although not, I think, as much as distilling them from a reading of the cases, perhaps in concert with a treatise or outline), but is less useful when you are trying to use a body of caselaw in an obscure or controverted area to build a convincing argument and black-letter law just doesn't get you that far.

In short, I'm not bad-mouthing grades, although I do want to point out that they are not the sum total of a person's long-term career. Nor am I suggesting that people throw out their commercial outlines. I *am* advising that students focus on the work itself and that they do not *just* try to succeed through strategy rather than substance -- both because I think they will do better my way, and because I think they will be happier students and lawyers.

Finally, two quick points. I agree that the 100 percent final is problematic, even though I use it in one out of my three classes; I have taken to looking for other ways to evaluate, in general. And I agree that it is important to understand the material as a system; that's one of the more practical pieces of advice I hope to give in a subsequent point. But that doesn't tell us what sources you should use in coming to an understanding of the system -- casebooks, outlines, a combination, etc. I think that while using outlines (again, *only* using outlines, or other such strategies) can lead to a superficial understanding of the "system" in some particular area, it is unlikely to lead to a deep one. Everyone's experience will be different, but one of the ways I most appreciated the systematicity of a particular subject was by reading the whole assigned syllabus in one quick go at the end of the semester, almost as a narrative; it put all the threads together in a way that helped me work out the puzzle. I doubt that's the best study method; better to do something like that every week or every month than in one burst. In any event, it was a matter of seeing the subject systematically, it did help me on exams -- and it did not involve overreliance on study materials to the exclusion of primary materials.

I hope no one thinks I am rigging the game by focusing on people who think the smart "strategy" is to ignore the casebook altogether. I have indeed met a number of students who did this and said so; and I met a lot of students who brought the Chemerinsky treatise to class instead of the casebook, which I consider a fair indication of their leanings.

Posted by: Paul Horwitz | Aug 18, 2008 3:47:26 PM

Item #2 strikes me as badly confused and, as written, meaningless.

What Professors fail to understand is that there is a deep, deep disconnect between doing well in the COURSE and doing well on the EXAM.

Doing well in the course involves, yes, reading the book, an appreciation and understanding of ambiguity, and a love of theory.

These qualities are, although not exactly useless on Final Exams, not very helpful.

Success on Law School Exams requires understanding the material as a system. That means shunting aside the interesting-but-untestable ambiguities and "for your understanding" questions at the end of each chapter. Instead, smart law students concentrate on flowcharting, distilling black letter law, and practice problems.

After all, your grade depends on one single exam, often based on Harry Potter characters or something equally stupid, and your ability to issue-spot and concisely apply law to fact.

So why call it, derisively, "short-cutting?" Did you read item #1? This is a professional school. My goal is to excel and achieve my career goals, not to please my professor. Unless you're at Yale, landing a job will depend almost entirely on your 1L grades, as will getting on law review. If you don't get a job, you may have $150,000 in nondischargeable debt.

Almost all the Professors I had denigrated the Examples and Explanation Series in favor of "just read the book!" But not only do the E&Es provide a clear example of a systematic approach to a course, they have something no law book does -- practice questions! It's vital to test your understanding, but no Professor seems to want you to do that.

Posted by: Kevin! | Aug 18, 2008 3:17:42 PM

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