• TIPS ON WRITING A LAW SCHOOL BRIEF

  Become a Rainbow Child: Book Briefing will help you write a better brief!

  It is inevitable! No matter how hard you study a case and no matter how good your brief, your professor will inevitably asks you about a question of law or fact, that is not in your brief. Immediately, you start to stammer and loose the confidence you had just seconds before. Your nose hits the book, scanning the pages for the answer. You know you read it. Where is it? Didn't you highlight that very issue when you were reading? There it is, no wait, not that one, maybe over here? The next page maybe?…

  In the mean time, your professor has done one of two things. He/she has moved on to another student, leaving you to sort through your confusion on your own, or he/she has started to ask you more questions that build on the same issue. While the former is unpleasant and may cause you some embarrassment, the latter could cause outright humiliation.

  This is NOT a student who has NOT adequately prepared! This is a student who has done the work, but just could not remember or find the reference. There is actually, a simple way to avoid this panic.

  The key is COLOR.

  • Issue and Holding ALWAYS in YELLOW
  • Causes of action and determinations by the lower court ALWAYS in ORANGE
  • Important facts for the defendant ALWAYS in GREEN
  • Important facts for the plaintiff ALWAYS in BLUE
  • Rationale of the deciding court ALWAYS in PINK (Limited only to rationale and important dicta or the whole page could be Pink.  The most important rationale is normally stated right before the holding.)
  • Something strange or abnormal that did not fit into the above, but needed to stand out, ALWAYS in PURPLE

  I even brought all these markers to class. They sat lined up in front of me in case I discovered an issue in the class discussion that I had missed, or misunderstood. My criminal law professor used to refer to me as "The Rainbow Child". My color schemes fascinated him.

  It saved a lot of margin briefing. Notes in the margin could now be limited to one or two words, or UNDERLINED in Ball Point PEN. Writing a brief from a case that is color-coded is much easier than writing from underlings and random single colored highlights.

  Now, this method does not replace writing a brief. Most professors frown on book briefing, especially in the first year. However, it sure comes in handy when your professor asks that stray question.

  "Mr. Jones, did the plaintiff limit himself to one cause of action, or were there several".

  AAACCCKK, not in my brief….ORANGE, ORANGE look for the orange.

  "Ah, Um, No sir, the plaintiff had 4 causes of action, two in negligence, one in contract and one in breach of warranty."

  You can see why this may be of assistance under fire. However, I leave you with this CAVEAT. Do not expect to get much resale value from your books at the used bookstore at the end of the term. In fact, once you become a rainbow child, you pretty much own your book for life. It's hard to even give them away, unless you are the top of your class, and the new owner actively pursues your books and understands the color scheme.

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• Essay Questions: A word about Model Answers

  One of the biggest contributing factors to a Law Student’s poor or inconsistent exam performance is a poorly written Model Answer. Law Students tend to calibrate their personal performance against the model answer. They look to the model answer as a MODEL (as the name suggests) for how the answer should have been written.

  This is unfortunate because the model answer is often wordy and the issues are rarely head-noted. How often have you turned to the model answer to find a 6-page single space typed answer? Is this an exam that was written under one-hour time pressure? Not likely!  Thus, it is not likely that your exam answer will look anywhere close to the model answer.

  • If you learn nothing else from me, learn this: one of the keys to passing a law school or bar essay question is to HEAD NOTE OFTEN and to be as CONCISE as possible. If you do this, you will turn in a paper with about 20-30 short paragraphs, each of which begins with a head note. If you do, then your paper will likely be a paper that passes!

  Notwithstanding my previous statement, model answers are far from useless. The two answers (the model answer and the student’s answer) can be reconciled through the ISSUES and FACTS. When faced with a poorly organized or wordy model answer, do not look at the model answer as guidance regarding writing style or organization. Rather, look at it only as a guide to ISSUE SPOTTING and WHAT FACTS RAISED WHAT ISSUE.

  The law student must learn to focus upon letting the FACTS OF THE EXAMINATION RAISE THE ISSUES. How often has the law student heard this? How few law students truly understand it! (This topic is discussed in detail under "The Facts Raise the Issues".) Even a poorly written model answer can be a source of issues and facts. Take an extra 15 minutes and OUTLINE THE ANSWER. Identify each issue and the facts that raised the issue. Compare your answer to the Outline. What facts did you miss? What issues did you miss? Did you discuss more than 75% of the issues? If so, you probably did well enough to pass!

  Your papers should have:

  • A Head Note (Showing the issue, e.g. CONSIDERATION)
  • The Rule Statement: (Consideration is the bargain for exchange that …etc.)
  • The Facts that raised the issue: (Here, Bob bought Nancy's car for $500…etc.)
  • The Conclusion: (Thus, because the car for money exchange...etc)

  (A note about law professors: You have to give your professor what he/she asks for, in order to succeed in law school.  Your professor may have his/her own opinion on how to write an exam.  I am telling you to write several small paragraphs containing a headnote, rule statement, facts and conclusion.  If this conflicts with what your professor wants, do it THEIR WAY AND ONLY THEIR WAY. But keep my advise in mind when it comes time to write for the Bar Examiners!

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• The Facts Raise the Issues

  "The Facts Raise the Issues"

  How many law student have heard this phrase?

  Answer: Virtually all law students.

  How many of them understand its meaning?

  Answer: Those that pass the bar exam.

  By way of example, Please review the following hypothetical:

  John called Sally and told her that he was willing to sell his car for $501. Sally said, "I’ll give you $350." John said "OK". John drew up a bill of sale which stated the above plus the fact that the car was being sold "as is". Sally paid John and took possession of the car. On the way home, the engine blew up. Now Sally is unable to use the car to get back and forth to work. Sally sues John for the return of her $350 and the cost of a rental car. Discuss?

   

  Pretty short hypothetical, but JAMMED FULL OF ISSUES.

  Let me tell you what some law students would do with this answer.

  Some students would start off by answering the call of the question. They would start off by saying something like: "Sally will not be entitled to a return of the $350 dollars because the car was sold to her as-is." This is, of course, a totally conclusionary statement worth little point value. However, in the student’s mind, they have answered the question.

  Having a lot of time left, the student may go on to say something about the offer and acceptance and consideration. They really think they are hot if they saw the Statute of Frauds but discounted it because of the counter offer. However, now they are all done, with time to spare.

  So to show the professor they really know the law, the student now throws in the doctrine of Caveat Emptor "Let the Buyer Beware". This little bit of Latin will impress the professor and demonstrate the students superior understanding of the law.

  Still having 15 minutes left, the student now brings up tort issues of "implied warranties" such as "fitness for particular purpose" and general "merchantability". This is done for the extra "hidden" point value.

  This is a student who did not let the Facts Raise the issues. The FACTS RAISE THE ISSUES.  This law student needs to stop using his/her "general" knowledge of law and start concentrating on the FACTS.

  EVERY SENTENCE in the EXAM gives you some fact about which to discuss. Unlike some professors, the bar exam is not interested in playing "hide the ball". The issues are not hidden, they are there, in each and every sentence of the exam.

  John called Sally and told her that he was willing to sell his car for $501.

  • Sale of Car: UCC, GOODS Tangible and Movable. Not Common Law:
  • $501, Called, Told:  Statute of Frauds will apply.
  • Willing to Sell: Offer, Present Contractual Intent?
  • "Car" & $500" Consideration, Benefit/Determent.

  Sally said, "I’ll give you $350."

  • Said:  Statute of Frauds
  • $350:  Statute of Frauds no longer applies.
  • I’ll give you $350: Counter Offer - Rejections original offer"

   John said "OK".

  • Said:   Statute of Fraud (which no longer applies because of the $500 issue)
  • OK:   Acceptance under UCC (no mirror issue rule). Valid Contract formed!

  John drew up a bill of sale which stated the above plus the fact that the car was being sold "as is".

  • drew up a bill of sale:  Statute of Frauds: Sufficient written memorandum,  signed by the person to be charged?
  • plus the fact that:  Attempted modification under UCC 2-207 ,
  • as is:   Material alteration as defined in UCC 2-207

  Sally paid John and took possession of the car.

  • Paid and took Possession:  Condition Concurrent, Full Performance. The contract is fully performed, no conditions outstanding.

  On the way home, the engine blew up.

  • as is:  was the modification valid under 2-207 discuss both sides

  Sally can not use the car to get back and forth to work so Sally sues John for the return of her $350 and the cost of a rental car.

  • Return of $350:  Damages Equitable Resititution
  • Return of $350:  Damages Equitable Recession:
  • Cost of rental Car to get back and forth to work:.
    1.   Damages:  Consequental/Special:
       1.  Hadly v. Baxendale analysis:
          1. Foreseeable,    
          2. ascertainable
          3. at the time of contract?

  The check marks indicate the issues discussed by the average student.  Note that that the student receives no points for his/her discussion of the doctrine of Caveat Emptor and the tort issues of Merchantability and Fitness for a particular purpose.  An excellent passing paper would have discussed the following issues 

  • UCC v. Common Law   
  • Statute of Frauds 4
  • Offer   4
  • Acceptance 4    under UCC 
  • Consideration 4
  • Modification under UCC 2-207
  • Material Alteration under UCC 2-207
  • Conditions:  Full Performance
  • Equitable Remedies
    1. Restitution 4
    2. Recession.
  • Legal Remedies
    1. Special Damages Hadly v. Baxendale
       1. Foreseeable
       2. Ascertainable
       3. At Time of Contract

   Are you beginning to see my point?

  • IN ORDER TO SUCCEED, YOU MUST FIND AN ISSUE IN VIRTUALLY EVERY SENTENCE THE EXAM.

  It is possible that one or two of the lines of the exam does not contain any valuable factual issue, but don’t assume that. Look at every sentence and come up with at least one issue. If you don’t find one, look again. If you still don’t find one, look again. If you still don’t find one after the third time, then assume that it contains no issue...but be VERY WARY that you may have missed some issue.

  (A note about law professors: While the bar examiners are relatively straight forward, law professors sometime play "hide the ball" with the issues in an exam. Sometimes a law professor will put in useless facts as "red herrings" to throw the class off the track. Just being aware of this distinction is valuable to you as a law student and a bar candidate!)

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• ONE HOUR PER EXAM

  Please Please Please, Only ONE hour per exam!

  Believe it or not, but this one suggestion ALONE may be the reason some pass, and some fail, the bar exam!

  Don't be deceived!

  Condition and train your mind now!

  ONE HOUR PER EXAM.

  Some people just can not resist spending 75 minutes on the first exam (to do a really good job).  This leaves only 52 minutes rather than one full hour to outline and write the next exam.   Of course what happens then is that they spend a full a hour on question number two, leaving only 45 minutes to outline and write question number 3.    I CAN NOT EXPRESS STRONGLY ENOUGH THAT THIS IS A DISASTER!  DO NOT DO IT!

  The true fact of the matter is that, every exam has approximately 20 - 25 issues to discuss.  Some of those issues are major, some are minor.   About 70% of those issues are the "MAJOR ISSUES" that are worth more than a majority of the point value.  These are the issue that are easily spotted.   If you can get write on all of these MAJOR issues, you will come close to a passing grade.  Throw in a couple of the minor issue and you have a passing grade.   

  Another 5 minutes, 10 minutes, 15 minutes, trying to attack a few more "Minor Issues" will, in fact, give your exam a more polished, more complete look.  HOWEVER, IT WILL NOT GAIN YOU ANY SIGNIFICANT POINT VALUE.   If you hit all the major issues and a couple of the minor issues, you will be at approximately a 70% point value.  For every additional 5 minutes, you will probably pick up another 3-5 points.   A full 15 minutes will raise your grade from a 70% to MAYBE and 85%. 

  You will GAIN 15 points, BUT WHAT DID YOU LOOSE?  TIME, VALUABLE TIME!

  You may ask, "What's wrong with picking up 15 extra points?"   Nothing if your are within your one hour time limit.  The problem is picking up 15 extra points on question 1, at the expense of losing 30 or more points on question 2 and 30 or more points on question 3 because you ran out of time.

  Remember, an 85% on question 1, plus 60% on Question 2 and 50% on Question 3 equals and average of 65%.  This is not likely to be sufficient to pass the bar.   Yes, you did a killer job on question 1, but in the scheme of the overall test, spending more than 1 hour to pick up a few points translates into not passing!

  Your goal should be to strive for 75% on EACH EXAM.   This means getting all of the major issues, and a couple of the minor issues.   DON'T CHEAT YOURSELF.   Spend ONE FULL HOUR on every exam.  

  If one hour is up, and you are in the middle of a thought, STOP, IN MID SENTENCE if you must.   Don't finish the thought.  Move on to the next question.  

  Don't be deceived!

  Condition and train your mind now!

  ONE HOUR PER EXAM.

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• My Story

Well it’s a long story, but here it goes:

I decided to go to law school at the ripe old age of 32. At that time, I was executive vice president of a computer distribution company that then had $300 million in sales. Law school had to be done at night, which, is difficult when you are working more than full time hours during the day. Juggling a career, family, and the demands of 4-5 law professors can be done, but it is not easy!

Because I was admitted as a "special student" under the State Bar Rules, I was required to take and pass the California First Year Law Student Bar Exam (Baby Bar). I passed (the first time) with a “C”, which I am told is a relatively high grade for this exam. (The test had only a 24% pass rate that year, and I am told that most persons who passed, passed with a “D”)

Because of my stubborn nature, and a desire to "make a point" (way too complicated to talk about here), I decided, defiantly, to leave my state accredited law school and finish the last 3 years of law school through a non accredited "self study" program. For the most part, no one thought I would complete the program, but I did.

I graduated about the same time as all of my friends whom I had met during my first year of law school. Upon graduation, the topics of conversation changed from Final Exams and Graduation, to The Bar Exam and Bar Review. When I announced that I did not intend to take a bar review class, my friends politely shook their heads, and said "Poor deluded Gabrielle, she does not realize that you HAVE to take a bar review in order to pass the bar!"

However, you see, I couldn't take a bar review. Most of the bar review courses were during the day. Don't forget, I had more than my hands full as the executive vice president of this ever growing computer company, which now, 4 years later had $600 million dollars in sales and 15 new offices for a total of 21 offices. If I did take a bar review course in the evening and weekends, when would I find time to actually take tests and build my test taking physical and emotional endurance?

Time off? Yeah right! My boss looked at me with that blank stare that most entrepreneurs get when you say the "V" word…."Vacation". His little eyes glazed over, and for a moment I thought that he had just drifted off. Nope, no time off was in my immediate future.

What I was able to negotiate was to take every Friday off for the 6 weeks just prior to the bar exam. During that three days, I gave myself a COMPLETE BAR EXAM, every weekend for 6 weeks. I did it under time pressure, just like it was a real bar. That meant posting signs on my bedroom door, so my family would not interrupt. It meant unplugging the phone, and becoming non-social with the neighbors.

I proceeded to sit for the California Bar Exam and managed to pass on the first try.

Now, I am not naïve enough to believe that my experience can be your experience.

I can say, that I am no one special. I am not a straight A student. Nor do I have a "brain" that absorbs information faster or better than others. However, I know that most people LEARN BY DOING. If I had one piece of advise for any of you about to take the California Baby Bar or Main Bar Exam, it would be this:

"Get your nose out of your outlines, and take tests!"

You are going to learn the law by taking the tests.

More importantly, get an understanding of "What facts raise the issues!"  

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