KNOWLEDGE INERTIA

LAW SCHOOL PRIMER

This information was initially formatted as a book. I am working on converting the information to adjust to this format.

Introduction

This book is designed for anyone who is interested in learning about the law. It is intended for people who want to gain a basic understanding of law and the legal profession, for people studying to become paralegals, for people who are interested in attending law school, and people who are starting law school. The goal of this book is to provide an easy to read reference and introduction to general legal principles, and to help people understand the realities of law and the legal profession.

The information in this book is information that I wish I had before attending law school and is mostly presented as if the reader was going to attend law school or study law in a formal capacity. Law school and the practice of law are made mysterious and difficult by design. I understand some of the reasoning behind the way law is taught because it fosters critical thinking, however, from the “Socratic Method”(1) of teaching law to the legal jargon commonly used, understanding law is a challenge. What I have tried to do is take the mystery out of understanding how to learn law. To facilitate effectuating this goal I have included copious footnotes designed to answer questions the reader may have regarding legal vocabulary, case law rules, and legal concepts. Law school is designed to teach law by “hiding the ball.” What I have tried to do is exactly the opposite by presenting general legal concepts in a simple and easy to understand way.

(1)The “Socratic Method” is the way most law schools teach law and is designed to stimulate critical thinking. The Socratic Method involves interaction between the professor and students in which the professor asks probing questions, usually directed at one student, designed to make the student think about different ways of looking at a situation. This interaction is not only designed to make students accustomed to asking themselves these questions as a common practice, but to also foster the ability to think on the spot, speak in public, and speak in an organized an effective manner. This is one of the moist dreaded aspects of law school for most people because just about everyone will be made to feel like an idiot at some point. 

I have also included practical information about the legal profession. I was undoubtedly naïve when I attended law school. I applied to one school, I was accepted, offered a partial scholarship, and I attended. I didn’t know that there were four tiers of law schools and that a person that attends and graduates from an upper tier law school has a very high probability of obtaining financially rewarding employment afterward, while those opportunities vastly diminish through the lower tiers. The reality is that the Harvard graduate who is last in his or her class has a much better chance of obtaining a financially rewarding job than a person who is first in his or her class from a fourth tier school.

For people attending law school, this book will serve as a practical guide to facilitate success in law school and the practice of law. While success can be measured in many ways, the success this book is designed to achieve is the success of a law student in being able to understand law, obtain good grades by performing well on tests, to perform well in class, balance life with law school, understand what the profession of law is, and optimize the chances of gaining satisfying employment after law school.

It is my goal to impart this information concisely. This book is not designed to be an exhaustive academic treatise on law and the legal profession, but a way for the reader to learn how to learn law more efficiently. This book focuses on Federal and California Law in conveying how to understand law and legal concepts. To truly understand law you must learn all of the details, trivial useful and otherwise, however, the format of this book cuts out all bullshit that is not efficacious in achieving the stated goals; except for maybe a pertinent joke or anecdote here and there. If this format appeals to your sensibilities read on.

General Information on Law School/Cost/Employment

Rankings/Accreditation
ABA (American Bar Association) Law schools are divided in four tiers. The rankings that are generally followed are published by U.S. News and World Report each year.(2) The rankings are based on such factors as: Peer assessment scores, Assessment score by lawyers/judges, Median LSAT (Law School Admission Test) scores Median undergrad GPA (Grade Point Average), Acceptance rate, Employment rates for graduates, Bar passage rate, and faculty and learning resources.(3)

There are also non ABA accredited law schools which normally fall within the categories of state bar accredited and unaccredited schools. ABA approved/accredited law schools carry the most prestige and opportunity. Graduating from an ABA accredited school normally allows a person to sit for a bar exam in other states where state or unaccredited law school graduates are not allowed to do so.(4)

(2)See:   http://grad-schools.usnews.rankingsandreviews.com/best-graduate-schools/top-law-schools
(3)See:   http://www.usnews.com/education/best-graduate-schools/top-law-schools/articles/2012/03/12/methodology-law-school-rankings
(4)See:   http://www.princetonreview.com/law/law-school-accreditation.aspx

Are Top Tier Law School Graduates better Lawyers?
In my experience, the answer is no. Top tier law school graduate have more resources and opportunities, however, just like top tier law schools don’t necessarily create better human beings, top tier law schools don’t necessarily create better lawyers. I have worked with people from first tier schools and my experience is that just like in most things, the abilities and work ethic of the person are specific to that person regardless of where they were educated.

Success in the Legal Profession
People choose to study law and work in the legal field for many different reasons. While success in the legal field for some might be measured in money and material wealth, success for others might be measured in contributing to positive social or environmental change, regardless of the material benefits. It is important to understand your own goals in studying and practicing law because this will give you a better understanding of how to balance the costs and rewards of a legal education which in turn will facilitate having a more balanced and satisfying life.

If money is what is important and you want to work for a big law firm, the bottom line is that graduating from a top tier law school is the quickest ticket to financially rewarding employment opportunities. Not only does a top tier graduate have the cachet associated with a respected law school brand, but that person will make contacts through their classmates and professors which will further enhance their network of job opportunities. So if your goal of becoming a lawyer is to make a lot of money, make sure you get into a first tier school. However, the money comes with a price. While big firms lure the top tier graduates with high salaries, the firms expect high “billable hours” in return. The people I have spoken with who worked in big firms worked an average of 60 to 80 hours a week. “Billable hours” means time spent on a case for a client which can be billed to the client. Therefore, even though a lawyer might put in 60 hours at the office not all of that 60 hours will translate to billable hours. Billable hour requirements usually range from 1800-2000 hours a year.(5) A Yale publication “The Truth About the Billable Hour” which provides an interesting breakdown of how billable hour requirements play out in the real world can be found at:

http://www.law.yale.edu/studentlife/cdoadvice_truthaboutthebillablehour.htm

If you have more of a public interest goal in mind there are many organizations and entities that have a need for lawyers who are willing to work for a modest salary. The benefits of feeling good about the work must be balanced with the minimal opportunity for great financial gain. However, from my personal experience, the lawyers I have met who practice law in public interest are very passionate about their work, and through that passion exude a sense of purpose and balance I don’t see in lawyers who are mostly interested in money.

(5) NALP (National Association of Legal professionals) http://www.nalp.org/billablehours

The lawyers I know that seem the happiest in their jobs are solo practitioners. For the purposes of this section my definition of a solo practitioner is a practice with one lawyer and at most two additional clerical staff. Most of the solo practice lawyers I know have one support staff. The great thing about being a solo practitioner is that you are your own boss and you have the opportunity to set your own hours. The financial rewards are only limited to your own desire and ability to generate income. The hard part about being a solo practitioner is that you not only have to be a good lawyer, but you must also be good business person. A solo practice is something that will take up some part of your mind 24 hours a day, every day. There are no paid vacations, no paid sick days, and you must pay for all business expenses. In many ways, being a successful solo practitioner requires a lawyer to be a better business person than a lawyer.

Not every area of law is conducive to solo practice because some areas require immense resources and support to do a competent job. For example big business Chapter 11 bankruptcies (the kind which General Motors filed) would be just about impossible for a solo practitioner. The areas of law in which most solo practitioners practice are consumer bankruptcy (Chapter 7 and 13), family law, criminal defense, estate planning, employment law, and personal injury. Most of the solo practitioners I know practice in personal injury (often referred to as “PI”). Because there are many personal injury lawyers there is a lot of competition. However, the PI solo practice lawyers I know are among the most financially successful of all the lawyers I know. PI lawyers practice in a risk/reward scenario because they usually only get paid if they win or settle a case (as opposed to charging by the hour) but there is always the possibility of getting that big verdict or settlement.

One PI lawyer I know travels to Mexico and Hawaii about a total of two months out of the year. Of course these are working vacations because business never stops, but I don’t personally know any other business person in any other profession that is able to do that. On top of that, he is at the gym every morning and works from home on Fridays. While it took him 10 years to get there and he works very hard to maintain his law business, I personally consider this solo practice lawyer very successful because he is happy and seems to have found a way to balance making money with the other enjoyments of life.

Cost
A private law school education can easily cost more than $150,000. Many law schools offer different types of scholarships which can help defray the cost, and there are private and government loans available to finance the education. The bottom line is that the majority of law school graduates will be six figures in debt after graduation. If you want to make enough money to pay off your sizable student loans after graduation and still have money to live a comfortable life, you’d better graduate from a top tier school, or have rich parents. However, there are at least two alternative to simply paying back law school loans as discussed below.

Law School Public Interest Programs – Loan Repayment Assistance Programs (LRAP)
Loan repayment assistance programs (“LRAPs”) provide financial aid to law school graduates working in the public interest sector, government, or other lower-paying legal fields. In most cases, this aid is given to graduates in the form of a forgivable loan to help them repay their annual educational debt. Upon completion of the required service obligation, the LRAP administrator will forgive or cancel these loans to program participants. Most LRAPs contain limits on the amount of income a recipient can earn while participating in such a program. There are various types of LRAPs, administered by law schools, state bar foundations and federal and state governments, providing debt relief to some law graduates. For more information go to:

http://apps.americanbar.org/legalservices/probono/lawschools/definitions.html#pi_lrap

Public Service Loan Forgiveness (PSLF) Program
In 2007, Congress created the Public Service Loan Forgiveness Program to encourage individuals to enter and continue to work full time in public service jobs. Under this program, you may qualify for forgiveness of the remaining balance due on your eligible federal student loans after you have made 120 payments on those loans under certain repayment plans while employed full time by certain public service employers. Since you must make 120 monthly payments on your eligible federal student loans after October 1, 2007 before you qualify for the loan forgiveness, the first cancellations of loan balances will not be granted until October 2017. For more information go to:

http://www.studentaid.ed.gov/repay-loans/forgiveness-cancellation/charts/public-service

Succeeding In Law School Generally

Work Ethic
In order to succeed in law school a student must approach the curriculum with seriousness and focus. The law school curriculum is unlike most undergraduate degree work because it is much more difficult to do well in law school without making a serious and focused effort. The field of students you are with has been winnowed from those in undergraduate studies, and you will be among the smartest and most hard working people in graduate level academia. Of course there will still be slackers and people not a bright as you, but everyone there had enough desire and skill to achieve a spot in your class. What will separate the success of students in the class are the natural abilities to do well and the amount of effort you are willing to put into doing well.

An easy and practical way to approach law school with the proper focus and effort is to consider it as a professional job where you are required to produce measurable results. Every person has a different learning style and a different biorhythm for learning. The most important factor is to create a work schedule that conforms to your needs but still allows you adequate time to put in the necessary work.

Socializing
Most likely, some of the people that are in your class, as well as those a semester or two before and after, will turn out to be lifelong friends. There will definitely be time to socialize in the law school environment and it is an important aspect of your personal and professional growth. Law school administrations normally provide ample events for socializing. There are also many clubs and associations that will be offered on campus as well as the opportunity to run for student body positions.

Two of the most important considerations to remember in socializing are that your reputation will be a part of you throughout your personal and professional life, and that socializing should not adversely affect your studies. A reputation as an honest, hardworking and friendly person will serve you better than being known as a genius asshole, not only in school and life but also in the professional world. If you let socializing take over as the main focus of your time in law school you should consider quitting. While making friends and having a good time is always important in life, those needs should be prioritized with the goal of succeeding in law school. You will find that, in the end, the people who will turn out to be your lifelong friends will have the same priorities as you which will create synergy both at succeeding in school and in having fun.
Study Groups
Study Groups help some students. The biggest advantage to a study group is that it is extremely beneficial to talk and debate about cases and legal issues. Smaller groups are usually better. The more the people in the group have similar priorities and focus the better. It is also more productive when everyone does all the work because it leads to increased individual growth and leaves no room for slackers. As in making true friends, the best study groups aren’t forced together but are best formed organically.

Shut Up and Listen
People want to study law for many reasons, but you will find that there are an overwhelming number of people in law school who are compelled to speak out in class very often with nothing to say that is elucidating or edifying. Starting a comment in class with “I feel” happens often. A student’s personal feelings do not add to the learning experience of other students other than to let the other students know how that person feels. No one cares, and worse, it wastes precious time. Some students love to challenge professors. Professors are professors for a reason. Professors are not perfect and can, and should, be challenged on the basis of a sound legal or logic argument, but it is advantageous for a student to do so sparingly and only with a well thought out argument. Too often students are also quick to want to say that another student is wrong ostensibly to show how smart they are. That impresses no one in the right way. Something to remember is that when a person is talking, that person is usually not listening. A student will get more out of class from carefully listening and thinking critically about what the student hears.

Class Participation
Class participation is important for many reasons. Many professors base grading on class participation and give “push” points for active, meaningful participation, which can raise a student’s grade. Many Professors will also lower a grade if a student is consistently unprepared in class. Class participation comes from either being called on by the professor class or from volunteering. When volunteering, students should believe that they have something to say that is on point and pertinent. Some professors go down the class rows so a student knows when it’s getting close to the time to speak in class. Other professors choose randomly. The key to performing well in the classroom setting is in being prepared for the day’s assignment. If a student has done the work and is prepared there is no reason that the student should be afraid of having something intelligent to say. Many students cower and hide at the thought of having to speak in class at all. This is the wrong attitude and will only serve to increase the probability that the student will seem and act inept regardless of preparation. Every student will be called on to speak in class at some point. It’s inevitable. So the better attitude is to say internally “bring it on, I’ve done the work and now I get the chance to show you what I worked so hard to learn.” Having that confidence is necessary to having a positive participation experience. Don’t be worried that the professor will make you feel like a fool. That happens to everyone and will happen often throughout your law school career, so get over it quickly.

Supplements
There are many study supplements for the law student. The most popular are supplements which are keyed to the class casebooks. Such supplements brief the cases for you. Briefing cases is discussed later in this book. While this sounds like a fantastic short cut to doing well in school, in the end it will not serve you well to rely heavily on the supplements, at least until you gain the skills of properly reading, understanding and briefing a case. The practice of law requires being able to read any case and be able to understand all aspects of what that case holding means. In the real world there aren’t supplements available for the cases you will read. Furthermore, in the law school setting the ability to read and comprehend cases on your own will only come from actually doing the work. Supplements are great here and there when you might be pressed for time or to double check your own work. But in the end, relying on them too heavily will be a great detriment to your ability to perform on tests and to perform as a practicing attorney.

Taking Notes In Class
Everyone has a different system of note taking in class. It is important to find out what works best for you. What is important is that it is efficient, helps you retain the important information, and is easy to reference later. A lot of class time will be taken up by students answering a professor’s questions. Do not take dictation during these discussions. It is a waste of time. The professor will let you know what is important. Write that down. If you think you missed something important ask the professor to repeat it. Develop a shorthand for note taking. For instance using “w/” to represent “with”, using “P” to represent “plaintiff” and “D” to represent “defendant”. Developing a shorthand will help you be more efficient. I preferred taking notes with a pen and paper. Most people in my class used computers. Find which works best for you. If you have prepared well prior to class you will find that you will need to take fewer notes because you already have all of information on the issues, you have given the issues thought, and you have reached a conclusion on the legal principle involved. Class time should be spent listening for things that your hadn’t thought of or where your thinking was different from the professor’s view.

Learn to Love Language
The basic skills necessary to study law are reading and listening comprehension and the ability to communicate in a concise and organize manner. These skills are what the practice of law is predicated upon and require a mastery of language. Mastery of language requires a depth and scope of knowledge of vocabulary. One of my favorite epigraphs which epitomizes the importance of language is: “Los limites de mi lenguaje son los limites de mi mundo” (Spanish: “the limits of my language are the limits of my world”). A good rule to follow, which will not only help a person understand and communicate law, but also help a person understand and communicate better in all aspects, is if you don’t know what a word means, look it up in the dictionary. In law, words are the tools and weapons of the practice, and if your opponent has a greater arsenal than yours, your chances of victory diminish.

How To Spend Your Summers
I didn’t know that most law students try to find an internship at a law firm or governmental agency during the summer. That is the way that the law student makes contacts within a firm which will help the student obtain a job after graduation. This is important to know if you want to increase your chances of finding employment immediately after graduation. If you are in a top tier school law firms will recruit you. If you are in a bottom tier school, you’ll have to scramble to make contacts and try to get a law related job anywhere you can so that you can gain experience for your resume. Some positions are paid and some are not. Even small firms and solo practitioners are willing to hire an intern with no experience and pay that intern a small salary because almost every law student has free access to Westlaw® and LexisNexis® which is a valuable commodity to any practicing lawyer or law firm because they will make the intern to do legal research using their free database access. Westlaw® and LexisNexis® are expensive in the real world.

I spent my three summers in law school three different ways. The first summer I traveled, using leftover law school loan money. This was fun and memorable but did nothing to increase my chances for employment as a lawyer. Plus, it was costly because law school loan money isn’t cheap. Perhaps I should have taken less money to have a smaller debt load at the end or tried to find an internship, but like I said, I didn’t know what I was doing. And to tell you the truth, I don’t really regret the experience. However, I wouldn’t recommend this route as a practical one.

The second summer I spent two months in my school’s study abroad program in Thailand. Once again, I used student loan money to finance this endeavor. However, I was able to gain six units toward graduation, The units were cheaper than regular school units, I learned law, I raised my grade point average, and the bonding experiences I shared with my classmates was, and is, priceless. This is definitely a great way to spend a law school summer. Law schools normally allow student from other law schools to attend their study abroad programs. Just check the law school websites for information.

The Third summer I spent as an extern in the Federal District Court for the Northern District of California. This was best all around experience in my law school career. I lucked into this position because my best friends in school had previously been externs. Extern positions are mostly handed down in this manner. If someone has been an extern and did a great job, the law clerks will usually look to that extern to recommend another extern for the next semester. I never even heard the word “extern” before law school. In practice, the position of an extern in a court is that the law student is a law clerk’s law clerk. Law clerks help judges with legal research, writing, and drafting legal opinions and orders. Externs do the same thing for the law clerks except that externs are given lower level, less sophisticated and less important issues to work on. As an extern I had the unique experience of working for the court through which I gained an understanding of the internal functions of the court. Most lawyers don’t get this chance. I was also very lucky to work for an amazing judge. His comportment, legal knowledge, humanity, and dedication to the legal practice inspired me. I recommend this experience to any law student.
Important Basic Terminology

Understanding the following vocabulary will help you better understand the information in this book as well as give you an advantage when you start studying law. The definitions are not exhaustive, but will give you a good plain language definition. I recommend looking these words up in a legal dictionary when the situation necessitates it.

Authority- Binding or Persuasive: Case law (legal precedent) utilized in a legal argument before a court has two possible affects. If the rule of a case comes from a higher court in the same jurisdiction than the one in which it is used, the court is “bound” by the ruling, which means the lower court must follow the higher court’s ruling. If the rule of a case comes from a lower court or another jurisdiction, the court is not “bound” by the ruling, but the ruling can be utilized to persuade the court to rule in a particular way.

Case law: Law which is based on court rulings and holdings. Synonymous with common law.

Casebook: The law school textbook which contains the cases a student will study in a particular class.

Citation: While this word makes most people think of a traffic ticket and is a classification of form of punishment for breaking a law, in this book the word is used to mean a reference to legal authority such as case law, statutes, or treatises.

Civil Action: A lawsuit brought by one party (“Plaintiff”) against another party (“Defendant”) in order to resolve a civil rather than criminal matter.

Civil Law: A system of law which relies primarily on the codification of rules rather than legal precedent or case law. Much of Europe utilizes this system. In the United States only Louisiana utilizes this system.

Common Law: A system of law which is developed through the decisions of the courts on particular legal matters before it. Each court decision or holding binds courts making decisions on the same legal matters in future cases. The foundation of the common law system is known as “stare decisis.”

Crime: An act which has been deemed prosecutable by a governmental body.

Defendant: The party against whom a legal action is brought. The term defendant applies in both civil and criminal actions.

Diversity Jurisdiction: Refers to the legislatively imposed limitation on the jurisdiction of the federal courts which requires that a legal issue in a case brought before it must involve a dispute where the plaintiff and defendant are parties which are citizens of different states (Diversity of Citizenship) and that there is a minimum amount in controversy (currently must be more than $75,000). Federal courts also have jurisdiction over claims brought under “Diversity Jurisdiction”, “Pendent Claims”, and laws in which the courts have exclusive jurisdiction such as bankruptcy proceedings.

Elements: The factors necessary to prove a legal result. For example, the factors necessary to prove negligence are: 1) a legal duty; 2) breach of that duty; 3) proximate cause; 3) actual cause; 4) damages.

Federal Question Jurisdiction: Refers to the legislatively imposed limitation on the jurisdiction of the federal courts which requires that a legal issue in a case brought before it must involve a dispute of federal laws. Federal courts also have jurisdiction over claims brought under “Diversity Jurisdiction” ,“Pendent Claims” and laws in which the courts have exclusive jurisdiction such as bankruptcy proceedings.

Liable/Liability: A legal responsibility or duty imposed by law, the breach of which gives rise to a claim for damages.

Plaintiff: A party which starts a lawsuit against another party. The term plaintiff is used in civil actions, not criminal actions. In criminal actions the position of Plaintiff is the “Prosecution” and commonly referred to as “The People.”

Precedent: As a noun this word means a ruling from a case that has been previously decided which is on point to a current case and in the same jurisdiction. As a noun it sounds kind of like “president” with a hard “s”. In law, as an adjective, this word means something that’s comes before something else as in a “condition precedent” which is a condition that must be satisfied prior to something else occurring or being triggered. As an adjective the “e”s are pronounced as long “e”s.

Probative: Having the tendency to prove or disprove a fact of consequence.

Prosecution: In a criminal case, the prosecution is the governmental body bringing a legal action against a defendant. Prosecution also means to continue action as in “prosecuting a case.”

Standard of Care: In a negligence cause of action, it is standard of behavior (legal duty) one owes to another in a particular situation. The standard of behavior is based upon what a similarly situated reasonable prudent person who do.

Statute: Laws passed and promulgated by a legislative body, normally at the federal of state level. Statutes are also referred to as “codes.” Laws passed at a more local level are normally called ordinances or municipal codes.

Tort: A civil wrong in which a party is harmed and can seek legal redress for damages or injury because the party that caused the harm was liable.
USEFUL TO KNOW LATIN WORDS, PHRASES AND COMMONLY USED SYMBOLS
Law uses a lot of Latin terms which are “terms of art” in law, therefore, you must know the important ones. Also, some of the phrases come in handy in the regular world because they are concise maxims that fit many occasions, and they baffle the listener make you sound smart when used correctly.

§: This symbol means “section” and is used when referring to codified laws such as statutes. Two of the symbols together (§§) means “sections” (plural).

“De minimus”: insignificant, unimportant, triffle.

“De minimus non curat lex”: “The law does not bother with triffles.”

“Caveat”: Warning. “Let him beware.” Commonly used in “Caveat Emptor”: Let the buyer beware and “Caveat Vendidor”: “Let the seller beware”.

“Certiorari”: Most commonly refers to the certification the United States Supreme Court grants to a lower court to hear a case involving a federal question. Often shortened to “Cert.” The United States Supreme Court normally does not grant certiorari, but will do so it order to clarify the application of a federal law so that conflicting lower court decisions can be resolved.

“Ibid”: Abbreviation for ibidem. “In the same place”. Basically the same as “Id” which is utilized to indicate that the citation for the information is exactly the same as the citation used just before it, but usually used in footnotes.

“Id.”: Abbreviation of Idem. “The same”. Id. is used in legal documents to take place of a citation that would be exactly the same as the citation used immediately before. It helps avoid unnecessary repetition of the exact same citation.

“Infra”: “Below”. Used in a legal document to let the reader know that more details of the source of the statement just made will be provided later in the document.

“Inter Alia”: “Among other things.” The courts commonly use this phrase.

“Damnum Absque Injuria”. Harm without injury. A legal maxim which states that in order for a person harmed to have redress in a court of law, the harm sustained must be recognized under law as one that can be redressed in a court of law.

“Prima Facie”: “On first view” or “on its face”. A legal premise the a party needs to show a prima facie case, a showing that a case that contains evidence of all of the necessary elements of stated causes of action, in order to proceed to further litigation.

“Reductio ad absurdum”: “To reduce to the absurd”. A method of disproving an argument by showing that extending the argument to its logical conclusion leads to an absurd result. For example: Regarding The Patient Protection and Affordable Care Act, Supreme Court Justice Antonin Scalia’s argument that if the government can make people buy health insurance or pay a penalty if they don’t buy health insurance, the government can make people buy broccoli.

“Res Ipsa Loquitor”: “The things speaks for itself.” A common law doctrine in torts which uses circumstantial evidence to prove a legal duty, and breach of that duty, in a negligence action. Example: The English case of Byrne v. Broadle is the prime example of this doctrine. In that case a person was walking past a store that sold flour, when a barrel of flour fell on him and injured him. The victim did not see what happened and there were no witnesses. Nonetheless, the court held that given the circumstances, the victim would not have been harmed without a negligent act of the party with exclusive control of the barrel of flour. Since the victim did nothing to cause his own harm and the circumstances were such that the flour shop had exclusive control of the barrel of flour, the flour shop owner must have acting negligently in some way in order for the victim to have been harmed.

“Stare Decisis”: “To stand by that which was decided.” It is the principle on which a court in a common law legal system bases its decisions on legal precedent.

“Supra”: “Above”. Supra is used in legal documents to reference a part of the document that came earlier, usually referencing case law used as legal authority. For example: “…Nor does proof of a slippery floor, without more, give rise to an inference that the proprietor had knowledge of the condition. Kitts v. Shop Rite Foods, Inc., supra.” Here, supra is telling the reader that the legal principle “ Nor does proof of a slippery floor, without more, give rise to an inference that the proprietor had knowledge of the condition” came from the legal reasoning of the case “Kitts v. Shop Rite Foods, Inc.” which was referenced earlier in the document.
LAW CONCEPTS IN GENERAL

Why Do We Need Laws?
The general purpose of law is to provide order in society. Laws are made so that people have rules of interaction and transaction. A lawless society would be one where people with the most power could act in any way they desired. Arguably, that wouldn’t make for an enjoyable existence, except for the people with the power. While it seems like powerful people still operate above the law, no one is immune to all laws. In the United States, at the very least, the government will make all people pay their taxes, even if the powerful ones find ways pay less than their share.

Laws exist to provide predictability in society. Imagine if there were no traffic laws. The predictability that laws provide regulates the actions and decisions of people in society. If someone breaks a law, there is a consequence. If someone injures another person there is a consequence. The concept of stare decisis is designed to promote predictability of outcomes because if a legal principal has already been established by a case, the cases which follow that have the same issues and facts should have the same outcomes.

The Reasonable Prudent Person Standard
When it comes to civil actions against a person (a Tort) the standard question the courts ask is “What would a similarly situated reasonable prudent person do in the same situation.” You will find the word “reasonable” throughout your legal studies, and it makes sense since laws are designed to provide order in society, people in society should be expected to act in reasonable, therefore predictable, ways. You will use the word “reasonable” in your law studies a lot.

Totality of the Circumstances
Another phrase you will hear often in legal studies is “totality of the circumstances.” You will find “totality of the circumstances” used in court opinions were a ruling is predicated on many factors in the case rather than a single deciding factor. As you can imagine, this phrase is used a lot because in most instances, even if the legal issue before the court is the same as previous cases, the facts of each case will vary. Therefore if there is no single factor which impels a court to rule in a particular way, in order to provide a reasonable ruling in each case the court must take into account the particularized facts of each case.

BASIC UNDERSTANDING CORE OF FIRST YEAR CLASSES

Contracts
As you might expect Contracts is about the laws governing contracts. The basic concepts involved in Contracts are: Formation, offer, acceptance, bargaining, capacity, legality, performance, types of contracts and remedies. Contracts basically focuses on what is necessary for a valid contract, what different types of contracts exist, what can invalidate a normally valid contract, and the problems that arise when drafting, negotiating, and performing under a contract. Some schools offer a Contracts course that is blended with the UCC. The UCC stands for Uniform Commercial Code which is a code adopted by all fifty states regulating the sales of goods by merchants.

Property
You will probably find Property a bit more philosophical than what the course name would suggest. I thought it would be about real estate. It’s is much more involved than that. Basically, the class will address legal issues of personal property (such as a watch, or a car) and real property (which are the legal issues associated with land). However, one of the core principles of Property is the “bundle of rights” concept. The “bundle of rights” analogizes property ownership and possession, and the rights associated with those forms of control, to a bundle of sticks. Each of the sticks represents a discreet right of property ownership or possession. The entire bundle represents the absolute right to do anything anytime with the property that is owned or controlled. However, more realistically in the real world, one cannot do anything at anytime with property even when the property is owned or controlled by that person or entity; therefore, the bundle of rights analogy represents the way, and reasons, the law can restrict certain rights (sticks) in the bundle.

Torts
A tort is a civil wrong that can be redressed through the legal system. Another way to express a tort it is that it is a legal dispute between two parties where one party makes a legal claim that the other party has acted in a way that caused harm, and the harm can be made right by having the party that caused the harm pay the harmed party money, or make things right by having the court make that party do or refrain from doing something. There are two types of torts; an intentional tort and negligence. In an intentional tort someone intentionally acted in a way which caused a person to suffer damages giving the person who suffered damages a legal basis of recovery for the damages. An action for negligence occurs where someone has a legal claim for damages suffered as a result of another person’s action which falls below a legal standard of care. Examples of intentional torts are assault, battery and trespass; each of which requires the intention of a person to act a certain way which causes harm to another person. An example of negligence would be medical malpractice where a doctor didn’t intend to cause harm, but in performing the work of a doctor, the doctor’s performance fell below the standard of care that other doctors doing similar work under similar circumstances would have provided.

Civil Procedure
Civil procedure covers the laws governing the initiation of a lawsuit, the rules of exchanging and discovering information from opposing parties after the lawsuit continues toward trial, what the parties can do and how they must act during the trial, and what the parties can do after the trial has resulted in a verdict. Civil procedure pertains to the laws of civil suits only, that is, where the opposing parties in a lawsuit are private parties seeking a monetary judgment, declaratory relief, or injunctive relief.

Criminal Law
Criminal law covers laws that pertain to the penal code. The penal code defines different crimes and the punishment that can result from committing a specific crime. The class will also focus on different defenses to each crime.

Writing and Research
Writing and Research class focuses on the basic principles of how to research law and the correct format of presenting a legal argument in a document submitted to the court.

I.R.A.C.

The most important paradigm you will learn in law school is IRAC. Learn it, live it, love it. IRAC is the paradigm in which law is discussed and in which legal problems are solved. IRAC is an acronym representing the following: (I) Issue; (R) Rule; (A) Analysis/ Application of the rule to the facts of the case; (C) Conclusion.

ISSUE
The issue is the legal question that is presented or being addressed. When reading a case, the issue is usually apparent because court opinions normally state what the issue is. While sometimes meandering, you will find that court opinions follow the IRAC form.

When reading an exam question it will be harder to determine the issues. In exam taking, as in the practice of law, issue spotting is the most important skill to learn because being able to solve a legal problem requires spotting the legal issues that are readily apparent as well as sub-issues that may not be readily apparent but have an effect on the case. Without knowing what the issues are, any knowledge of the law that you have is useless because it has nowhere to be applied. Exams will sometimes give you a straightforward question regarding what issues to discuss, and sometimes the question will make the main issues more nebulous.

Example:
In a tort question consider the following:

There are five people in the fact pattern in an exam named A, B, C, D and E.

A straightforward exam question indicating the issues in a tort fact pattern could be:

1) What intentional torts can A claim against B and what defenses can B raise?
2) What negligence claims can C claim against E and what defenses can E raise?

A less straightforward question could be:
Discuss all torts that can be claimed by any party and all defenses that can be raised.

In the more straightforward questions you are given the main issues and the causes of action, however, you must still spot what torts and defenses are possible between the parties the questions direct you to address. However, the questions focus on specific parties so you know that the main issues are only the claims by A against B, and between C against E, and what types of torts to discuss in each instance.

In the latter question you must determine who can sue whom and for what which gives you many more possibilities.

Figuring out the issues on an exam will be discussed in more detail in Chapter ###.

RULE
Rules come from both cases and codes. Every State in the United States, except for Louisiana, recognizes common law. Common law is law that is made through the rulings of the courts. The previous rulings from the courts are published opinions made by the judges explaining why they ruled the way they did. The binding law coming from the courts is based on the Latin term stare decisis which means “to stand by which has been decided”. Therefore, common law is based on precedent set and the rules stated in cases in the past. Codes are laws systematically arranged in books and passed by legislative or administrative bodies. Codes are also called laws, statues and regulations. Very often codes are interpreted by rulings made by courts in cases involving the codes. Therefore, a rule can come purely from the rulings from cases, or from a code; however, a rule usually comes from the application of both.

Finding the Rule
When reading a case there are key words that will indicate a rule. The rule of a case is also called the “holding” of the case. The court opinion will often state something similar to “we therefore rule” or “we hold” which are great indicators that the words that follow are the rule of the case. The rules will usually be stated at the end of the opinion, however, the rules can be stated anywhere, so it pays to read the entire case carefully.

Dicta
Be careful of dicta. Dicta, the plural form of dictum, are statements made in the court’s opinion that are not necessary to the decision of the case, and are therefore not part of the rule. Rules are binding, which means lower courts must follow the rule. Dicta are not binding but can be used as persuasive authority. You can spot dicta because the court will usually preface that portion of the opinion by stating that the words that follow were a consideration but not necessary for the ultimate decision in the case. Dicta will be obvious with focused careful reading of a case.

Dissenting Opinion
Dissenting opinions are not rules. Dissenting opinions are the opinions of judges, who were part of the panel of judges hearing a particular case, and who did not agree with the reasoning, rule, and/or outcome of the published majority opinion. Dissenting opinions are important, however, because dissenting opinions have been the basis for courts changing rules later. Also, it is valuable to read dissenting opinions because they give you insight into different reasoning in the application of rules to the facts of a particular case.

Narrow v. Broad Rulings
The rules that come from cases are normally narrow in scope. Making a narrow ruling is logical and practical because it is impossible to make a rule that accounts for every possible scenario. A narrow ruling means that for a rule to automatically apply to other cases, the facts of the other cases must basically be exactly the same. Therefore, it is important to remember the facts of the case when stating a rule from that case. If the facts that you are presented with in an exam question are different than the case the rule comes from, even though the facts are very similar, the differences could make a big difference in analyzing the outcome and should always be considered.

ANALYSIS/APPLICATION

Once you have ascertained the issue and the rule or rules that apply, you must analyze how the rules apply to the particular facts in your case. It is most common that the facts of the case from which a rule is derived will be different than the facts of your particular case. In law exams, you can count on the facts being different than the case you studied. If the facts are exactly the same, then all you need to do is write down the same analysis that the court made in the case that applies. If the facts are different, then you must analyze how the different facts could change the outcome. The Analysis/Application portion of IRAC is very important in law school exams and legal arguments because it is the heart of the argument and shows that your argument has sound legal foundation and reasoning.

A key word to use to ensure that you provide proper analysis is “because.” If you use “because” you will not make legal conclusions without support because it forces you to provide analysis.

Example:

Legal conclusion without analysis: Given the facts of the case, the Defendant is guilty of involuntary manslaughter.

Legal conclusion with analysis: Given the facts of the case, the Defendant is guilty of manslaughter because the fact that the Defendant said “I love driving fast because of the danger, and I don’t care who gets hurt” shows the defendant had a subjective awareness that driving 100 miles per hour in a 55 zone could result in death or serious injury.

It is easy to see that the second example shows a thought process (analysis) which is a necessary step in making a proper legal argument.

CONCLUSION
The conclusion is the easiest part of IRAC to write because all it requires is a simple statement. I still find that the word “because” is a good way to start the section.

Example:

“Because all the necessary elements of manslaughter are satisfied in the facts, the Defendant is guilty of manslaughter.”

Getting the correct conclusion is important, however, I have found that in the law school test and bar exam forums, you can still score well by doing a good job of spotting the Issue, knowing the right rule, and analyzing the rule with the facts well. While it is very important to come to a proper and well founded legal conclusion in the real world, in the exam setting most graders are looking to see whether you have the skills to become a lawyer by focusing on your ability to spots issues, remember rules, and provide well thought out analysis. However, if you do those things well, you usually come out to the correct conclusion.
TIPS ON ORGANIZING AN EXAM ANSWER USING IRAC

There isn’t one correct way to organize an answer using IRAC. Some people will start with a conclusion as a way to show the reader that they know the right answer and will later show how they got there. Some people work up to IRAC by restating the fact pattern first. Some people actually write “Issue”, Rule, “Application”, and “Conclusion” as headings. I have found that the latter, while logical, doesn’t present well. However, using headings properly will organize your answer and quickly prompt to reader to know that you know recognize the issue, know the rules, provided analysis and a conclusion; all elements that are necessary to score well on a law exam. Below is an example of effective use of headings illustrating IRAC on a negligence question:

 
However, headings are a great way to organize an answer and an easy way to highlight knowledge and your thought process. For example, let’s say there is a tort question that deals with negligence. The elements of negligence are duty, breach, actual cause, proximate cause (legal cause), and damages. Headings to show that you know that this is a negligence tort ,and you understand negligence tort law could be shown like this:

 

 

UNDERSTANDING BASIC CASE CITATION
Understanding Case Citation
Cases are referred to in a specific citation. The Bluebook® is the standard reference guide for all legal citations. Cases that have been decided and are authorized for publication are published and organized systematically in books called “Reports” and also known as “Reporters.”

Below is an example of how to understand the information in a case citation.

 

 

The important function of the case citation is that it facilitates finding the case. The case above is a United Stated Supreme Court case as indicated by the “U.S.”

Parallel Citations
Often, case law is reported in more than one reporter; therefore, a case citation could contain the information of other reporters where the case can also be found. Supreme Court cases are officially reported in United States Reports (as seen above, indicated by “U.S.”) and may also be reported in Supreme Court Reports (“S.CT.) and U.S. Supreme Courts, Lawyer’s Edition (L.Ed). Therefore, the complete citation, including parallel citations for Roe v. Wade would look like this:

 

 

 

Pinpoint (“Pin”) Citations

When utilizing case law in a legal document, the citation should refer to a specific page in the case, the specific page would be added to the end as look like this:

This is known as a “Pinpoint Citation” or “Pin Cite.” This type of citation is important when making direct reference to particular parts of the case because it allows the reader (the court/opposing counsel) to locate that particular part of the case without having to search through the entire case. In my experience working in the court, I have found that if a document propounds that a case states something which supports a particular position, but there is no pin cite, the party proffering that position is hiding the fact that the case does not actually support that position. Therefore, no pin cite is a red flag.

Case Citations in the Real World
While you will receive a poor grade in a legal writing class for improper case citation, in the real world the minutiae of proper citation won’t lead to a court reprimand. What is important is that there is enough information for the court and the opposing party to find the cited case. An example of all that is necessary is California Rules of Court Rule 3.1113 regarding case citations in legal memorandum below:

(c) Case citation format

“A case citation must include the official report volume and page number and year of decision. The court must not require any other form of citation.”

In school you will be punished for improper spacing and missing periods when executing a citation, but in the real world, the above is all you need in California. It’s still a good idea to follow Blue Book format because in my experience proper citation shows professionalism and increases credibility.

UNDERSTANDING STATUTE/REGULATION/CODE CITATION

Statutes, regulations and codes all refer to laws enacted by federal or state governments. State government laws come from state, county, and municipal governments as well as administrative bodies. Normally, federal laws enacted by the federal government are called statutes. Normally federal regulations are laws enacted by administrative bodies. Likewise, laws enacted by State government are normally called statutes and laws enacted by state administrative bodies are called regulations. Laws enacted my municipalities are normally referred to as codes. However, all of the above terms are laws.

The federal law known as the United States Code is codified under Titles which indicates what specific area the laws pertain to. Below is a list of the Titles in the United States Code:

TITLE 1 – GENERAL PROVISIONS
TITLE 2 – THE CONGRESS
TITLE 3 – THE PRESIDENT
TITLE 4 – FLAG AND SEAL, SEAT OF GOVERNMENT, AND THE STATES
TITLE 5 – GOVERNMENT ORGANIZATION AND EMPLOYEES
TITLE 5 – APPENDIX
TITLE 6 – DOMESTIC SECURITY
TITLE 7 – AGRICULTURE
TITLE 8 – ALIENS AND NATIONALITY
TITLE 9 – ARBITRATION
TITLE 10 – ARMED FORCES
TITLE 11 – BANKRUPTCY
TITLE 11 – APPENDIX
TITLE 12 – BANKS AND BANKING
TITLE 13 – CENSUS
TITLE 14 – COAST GUARD
TITLE 15 – COMMERCE AND TRADE
TITLE 16 – CONSERVATION
TITLE 17 – COPYRIGHTS
TITLE 18 – CRIMES AND CRIMINAL PROCEDURE
TITLE 18 – APPENDIX
TITLE 19 – CUSTOMS DUTIES
TITLE 20 – EDUCATION
TITLE 21 – FOOD AND DRUGS
TITLE 22 – FOREIGN RELATIONS AND INTERCOURSE
TITLE 23 – HIGHWAYS
TITLE 24 – HOSPITALS AND ASYLUMS
TITLE 25 – INDIANS
TITLE 26 – INTERNAL REVENUE CODE
TITLE 26 – APPENDIX
TITLE 27 – INTOXICATING LIQUORS
TITLE 28 – JUDICIARY AND JUDICIAL PROCEDURE
TITLE 28 – APPENDIX
TITLE 29 – LABOR
TITLE 30 – MINERAL LANDS AND MINING
TITLE 31 – MONEY AND FINANCE
TITLE 32 – NATIONAL GUARD
TITLE 33 – NAVIGATION AND NAVIGABLE WATERS
TITLE 35 – PATENTS
TITLE 36 – PATRIOTIC AND NATIONAL OBSERVANCES, CEREMONIES, & ORGANIZATIONS
TITLE 37 – PAY AND ALLOWANCES OF THE UNIFORMED SERVICES
TITLE 38 – VETERANS BENEFITS
TITLE 38 – APPENDIX
TITLE 39 – POSTAL SERVICE
TITLE 40 – PUBLIC BUILDINGS, PROPERTY, AND WORKS
TITLE 40 – APPENDIX
TITLE 41 – PUBLIC CONTRACTS
TITLE 42 – THE PUBLIC HEALTH AND WELFARE
TITLE 43 – PUBLIC LANDS
TITLE 44 – PUBLIC PRINTING AND DOCUMENTS
TITLE 45 – RAILROADS
TITLE 46 – SHIPPING
TITLE 46, APPENDIX – SHIPPING
TITLE 47 – TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
TITLE 48 – TERRITORIES AND INSULAR POSSESSIONS
TITLE 49 – TRANSPORTATION
TITLE 50 – WAR AND NATIONAL DEFENSE
TITLE 50, APPENDIX – WAR AND NATIONAL DEFENSE
TITLE 51 – NATIONAL AND COMMERCIAL SPACE PROGRAMS

So if you were looking for federal laws pertaining to Highways, looking at Title 23 would be a good starting point, and if you were looking for Copyright laws you would look at Title 17. After the “Title” the U.S. Code is divided into “Parts” (i.e. Part I, Part II, Part III). After the “Part” the U.S. Code is divided into “Chapters”. After the “Chapters” the Code is divided into “Sections”. After the “Sections” the U.S. Code is divided into Section and Subsection numbers. Don’t worry about remembering all of that. Just remember that it’s all designed to be a logical way to be able to reference the law.

Understanding U.S. Code citation is easy once you grasp that concept. When properly citing a particular United States Code, or any law, you would reference the Blue Book® but it is generally easy to understand and cite as follows. When citing to the United States Code you would start with 1) The Title number, 2) Then the abbreviation for United States Code (“U.S.C.”) , 3) Then the symbol “§” indicating “section”, 4) Then the section number, 5) Then the subsection information.
Example:

 

 

There are many more types of federal laws and consequently many different citation formats for those laws. For example the Code of Federal Regulation is abbreviated as C.F.R. and would include specific information about the regulation number. However, all laws are codified in some logical way which will systematically list the laws in a manner that will go from a broad category or area of law to a more and more specific way of referencing a particular law in that category or area.

Laws are also referenced by abbreviations for the Sections represented. For example instead of “28 U.S.C. § 1332(a)(1)” the same code could be cited as Code Civ. Pro. §1332(a)(1). Code Civ. Pro. Is easy to understand once you know the general concepts of law and in the context of where you read the citation. “Code” refers to the U.S. Code. If it were a State law it would usually start with an abbreviation for the State, for example if it were a California Code it would start with “Cal.” For “California”. “Civ.” Represents the word “Civil” and “Pro” represents the word “Procedure”. Therefore, by seeing Civ. Pro. You would know that the code refers to a civil procedure law. The numbers and letters after the § (“section”) symbol indicate the section and subsection. The same abbreviation principles apply to codes relating to other parts of law, for example, the abbreviation “Lab.” Normally refers to the word “Labor” therefore, if you see Lab you will know that it refers to the labor code.

LEGAL RESEARCH

Some people like the drama and excitement of the courtroom. While that is the “sexy” part that is shown in movies and T.V., I enjoy legal research and writing, even though it is definitely not “sexy.”Legal research is necessary for all people who practice law because no one can know every law and precedent applicable to every legal issue presented.

In law school you will most likely be given free access to Lexis-Nexis® and Westlaw®. These are the primary research tools of most lawyers. Both of these companies provide databases which contain almost every legal research tool imaginable. These databases are amazing, and free during law school, however, once you leave law school you will find that they are quite expensive to use. Take your law school time to utilize both databases and learn to research efficiently.

There are however many free ways to do legal research which I will discuss below.

SOURCES OF LAW

In general, laws come from governmental bodies empowered to make laws, the courts through precedential ruling from cases (“case law”), and voter initiatives.

Types of Legal Authority

Primary Authority: Primary authority refers to the laws as stated by the governmental authorities empowered to make them and includes constitutions, statues, ordinances, and case law. Primary authority is the foundation on which all legal arguments must be predicated.

Secondary Authority: Secondary authority refers to any publication which discusses, analyzes, examines, criticizes and/or explains primary authority. These can be used in legal arguments as persuasive authority and are useful as a tool to find primary authority.

These are examples of common secondary sources:
• Legal Dictionaries
• Law Review Articles: Scholarly treatises and examinations of narrow, and usually controversial or unsettled, legal topics written by law students.
• (ALR) American Law Reports®: Essays written by legal experts which analyze legal topics
• Legal Treatises: Scholarly publications on specific legal topics.
• Hornbooks: Scholarly publications on legal topics designed for law students.
• The Rutter Guide®: Step by step analysis and guidance in specific areas of law. This is one of the most useful research tools in the practice of law because it also references and shows the practical application of primary sources of law. I really can’t emphasize the value of practice guides enough.

FREE SOURCES OF LEGAL RESEARCH

It is possible to do a competent job of researching law using free sources. The best place is the local law library. Most law libraries offer free limited access to Westlaw® and Lexis-Nexis®. The access provided is enough to do a professional research job. Law libraries will also have practice guides (such as the Rutter Guide®). I have found that the librarians are very knowledgeable and helpful. Be nice and to respectful to them. They are a very important resource in legal research.

The following are excellent online legal research databases:

California Judicial Counsel Forms and Rules:http://www.courts.ca.gov/formsrules.htm.

This site maintained by the California court system contains the forms necessary to file in most legal actions in the California courts as well as the rules applicable to all California courts regarding Trial Court Rules; Civil Rules; Criminal Rules; Family and Juvenile Rules; Probate Rules; Appellate Rules; Rules on Law Practice, Attorneys, and Judges; and Judicial Administration Rules. Therefore, it is a great resource to gain knowledge of court imposed civil procedure laws applicable to a given situation.

California Jury Instructions: http://www.courts.ca.gov/partners/juryinstructions.htm.

This site is extremely helpful in determining the elements necessary to prove or disprove a cause of action or criminal charge because it is a database of templates used by the court as jury instructions for both civil and criminal cases. The information is in a searchable pdf format and includes references to legal sources and authorities.

Cornell University Law School
http://www.law.cornell.edu/: This is absolutely the best law school maintained legal database I have found. It contains information on both federal and state law. I normally use it to research federal laws.

Google Scholar:
http://scholar.google.com/. Through this service you can research case law and legal publications. I have found that it doesn’t work that well when searching for a case on point to a legal issue using a Boolean search, a search in which you use symbols or words as commands to expand or limit the retrieved information (See basic definition below), but it works very well when you have a case citation. It allows you to find the case that has been cited and be able to read the case in its entirety.

Legislative Counsel for the State of California:
http://www.leginfo.ca.gov/. This site is a database of California legislative activity and California laws. However, I have found some of the information out of date, so beware of completely relying on the information it contains. Regardless, it is an excellent resource to research California State law.

State Bar Website
For Example: http://www.calbar.ca.gov/: The State Bar of California website. Most states have such a site. This website not only contains the information of every lawyer licensed to practice law in California (as well as those suspended, and disbarred), it also contains sample document forms such as wills and contracts, and it contains previous bar exam test questions and sample answers which you can use to study for the bar exam.

Wikipedia
http://www.wikipedia.org/ I wouldn’t use Wikipedia as a reference in a legal document, but it is a very good resource for obtaining general knowledge on a wide range of subjects. It is a good first step when researching a subject that you know little about, and can help you focus your research activities by providing you with other research resources.