Law students have difficulty writing successful bar examination essays.
I wonder why.
Perhaps its because while they practice reading, taking notes, and sometimes outlining the results, they are given little or no training in writing solutions to essay questions based on factual circumstances. This, of course, is what lawyers do frequently in practice.
In practice, a client comes in with a problem. Often clients don't know what the legal problem is, only that they are in trouble. Dealing with the problem requires the attorney to identify the legal issue on which the situation will turn in negotiation or litigation. After the client speaks for awhile describing his idea of the problem, the attorney is likely to take control of the discussion by asking pointed questions directed towards raising the likely issues.
These notes may be written into an opening memo for the file to provide the context and basis for additional thinking, as in further questions that occur overnight when the brain turns over problems while you are asleep. This is a good reason to keep a pad and pen near your pillow, so when these thoughts, which may be, or contain, or lead to, the answer, will not evaporate when you roll over into dreamland.
Sometimes it's better not to take notes while your client is speaking, as it may induce nervousness or, worse, misleading answers, as the client reacts when s/he sees you writing.
During trial, if you don't want the jury to relate your acts of writing to (usually damaging) testimony, you wait awhile, and then begin writing when the testimony appears relatively harmless.
Of course, when a witness says something really useful, as in damaging to the other side, you make a big display of reaching for the pen and writing in large letters, underlining the message.
Some attorneys ask at this point if the court reporter would mind marking that portion of the testimony.
Or, if you're questioning, you may repeat the question or ask the witness, "Did you say that you saw with your own eyes that my client acted clearly in self-defense when the other gentleman so viciously attacked him? Am I correct in so understanding? Thank you very much. No further questions."
Yeah, in my dreams...
A student who passed the recent bar exam is a clear writer who did well on his essay exams. Another, who isn't as clear, didn't. It would be hard to say that one was smarter than the other. One wrote closer to the point than the other, as best I can tell. The latter absorbed, but didn't write or explain a lot. When he does speak, he makes a lot of sense, but he is a quiet guy.
I've suggested that he practice his writing, expressing himself, but how do you do this, actually?
In my own case, I practice by blogging. Before that, for years, I contributed to a home-town web site, where I grew up. We recalled old places and people. I could explain legal matters that arose in the news. I wrote in the voice of my youth, when we spoke casually and weren't too concerned with perfection, as I was speaking to other Staten Islanders using the local dialect, sort of a Brooklyn-lite.
I have read about writing, but it would be difficult to say how much it helped me write clearly or better. Generally, I'm aware that I'm supposed to write clearly to make sense on matters of importance, otherwise there's no point in writing.
One of the best books on writing that I've read wasn't a how-to book. It was E.B. White's collected letters. White wrote for the New Yorker Magazine. His wife edited it. White usually wrote short pieces, "writing small," I think he, or someone, called it.
Writing small is good.
It's how we think, usually.
We think about something that comes up, for a few minutes, and then go on to something else. We don't have to write a book about everything, although some people do decide to bore in and write a book on some subject that they research.
I don't do that.
If you mashed together everything I've posted to this blog, you'd have a book.
White was considered by some to be one of the ablest writers in the English language for his time. I thought I'd better read him to find out what I was missing.
The reason I found White's Letters so informative on writing is that in reading any of his many brief letters to friends, when advising what he'd been up to (feeding the geese, usually, on his farm near the ocean in Maine) or how he'd been feeling (there was always something aching as he got along in years) you could see that he took care to think about exactly how he did feel. He took equal care to use everyday words to describe his feelings. He wouldn't say, for example, that he was "sad" that a favorite hen died (to make up an example, as it's been awhile), but that the death of the hen affected him in such-and-such a manner, as it had become a friend, describing.
White always took good care, when writing, to tell the truth as closely as he was able, being careful to stick to what he knew, believed, or felt. If you want to know someone, these are the things you want to know about them, otherwise you don't know them very well, do you? Likewise, when you are writing, you want to let the reader know how you think, believe, or feel about the subject being addressed. This takes practice.
It is not always easy to say how you feel about something, or someone. It is not enough to say, because you don't like the president's policies, for example, that he's an idiot. The more you read about him, the more you realize that he's anything but an idiot. He's as sharp as a tack. It's just that he comes from an entirely different place, so you don't see eye-to-eye.
Hanging a label on someone doesn't quite describe the person and shows you to be less than articulate. You need to say why the person you're describing doesn't measure up to the standard you'd like to see him meet.
White didn't hang labels on people. He described them.
What White did best, in my opinion, was to describe emotion in such a way that the reader immediately recognizes which emotion is being described, because you've experienced something very similar, as well. We have a handful of big emotions, such as love, anger, hatred, desire, annoyance, etc., and a great many more that are more nuanced, generated by the myriad situations we encounter daily when interacting with people in person, over the phone, in the news, or by word-of-mouth, sometimes called gossip.
We hear or read their stories and react to them. How we react is based on an emotion that arose in us upon hearing the story. The story-teller probably figured that this would be our emotional reaction. That is likely the reason we were told the story in the first place. Why do you think Homer and Shakespeare told stories? To spark an emotion based on a realization, usually of recognition, if nothing else, contributed by the listener. Those two idea weavers were pretty good at doing this, it seems.
When he was quite young, maybe around seven or eight, my youngest son, Rick, became upset because I'd spoken to him critically, chastising him about something he'd done. He'd clearly done it, we both knew, but I hadn't realized that he'd become so upset over being spoken to. Being spoken to was a feature of our household. When you are in the business of helping to raise three boys, you want to make sure that you know you've told them right from wrong. They were always under an obligation to watch their step.
"The reason I'm sad," Rick explained, "is because now I'm not your special boy."
This made me feel terrible.
Rick is the youngest. He'd see his two older brothers being spoken to with some frequency. While he wasn't as frequently corrected (since he'd seen what not to do and was smart enough to keep out of trouble) he'd come to feel that he was my special boy, although I don't recall singling him out as more special than his two evil-doing...make that mischievous, brothers.
I reassured Rick that he'd always be my special boy. At his age I don't think I'd ever have described myself as having this emotion. I wasn't used to describing emotions, or even labeling them, as Rick had done. Emotions were something you didn't even admit you had. It wasn't cool, the only recognized emotion as I grew up. The world has changed. Rick had recognized that he had feelings, they were important, and that they had a name. His characterization as "sad" was perfect.
This is one thing, among many, that made E. B. White such an admired writer. He was sufficiently in touch with his own feelings that he could describe them in the context of the situation which prompted them to surface.
He might describe the death of a farm creature (he wrote books about spiders, geese, and mice, among others, which he tended to personify, such as Charlotte's Web and Stuart Little). Or he would address the meaning of democracy and America, during the war. He was a favorite writer among G.I.s fighting in Europe and the Pacific. Apparently his writing reminded them of what they were fighting for, the things that counted most back home. When you're in a bookstore, see if you can find a collection of some of his work.
What has this to do with writing about law?
A lot.
When you write about law, you are also required to identify some mental construct, only this time it is not so much an emotion, although it may contain that and frequently does, as it is a rational formulation of words that describes a legal principle of importance. All legal principles are important, as a case can turn on any of them, however insignificant they may appear when not directly in use. The lawyer's job is to recognize and describe them in words. And then do something legally about them.
Somebody punches you in the nose. You punch back. There's a legal principle which justifies the latter. What's its name? Self-defense. But suppose you started the fight? Do you still enjoy...the right...(for it is a right)...of self-defense? Hmm...suddenly this thing, or feeling, or thought, is a legal right. What is a right? It's something, an idea, a thought, expressed in words, that is protected, or recognized in law, i.e. by judges, prosecutors, police, and juries.
You can see how one thought leads to another. Law students are expected to learn to think like this and to speak and write down these thoughts in a coherent manner.
This is where they, and we, get in trouble. We can't remember the entire formulation written down by some law professor with hours to devote to getting the nuances right, so we make up formulations of our own, allegedly from memory, on the fly, as we write in the blue book at exam time. This way lies madness, and failure. So does trying to memorize "black letter law," the complex formulations written by professors with too much time on their hands.
What I think law writers need is time to jot down first reactions, and more time to organize them as thoughts develop into fuller and more accurate descriptions of what is at stake in this particular fact-pattern and the resulting legal conflict. Law students, I think, make the mistake of trying to remember what the law professor's formulation was when they should be assembling their own reactions to the problem and writing them down. You can reorganize your notes later.
Our minds aren't built to remember long, word-for-word, statements. This is why we use court reporters.
Our minds are built for recognizing old patterns in new, sometimes strange, situations. This, as someone once said, is how we are able to see the tiger hiding in the grass. Legal analysis is seeing the tiger hiding in the grass and saying, "Look out!" for this, describing what your mind sees.
Law students, with their inexperience in writing, tend to shut down their faculty for seeing the tiger in the grass, or when they do spot him lurking, ready to eat them up, they panic and try to remember what some professor said or wrote. In fact, what they need to do, since they are alone in the jungle, is to rely on their wits and come up with their own solution based on what they've thought about, a product of their reading, class discussion, self-discussion, and discussion with friends and fellow students. A good law student will take the time to practice by explaining the legal ideas being studied with lay family members, using plain English.
There is nothing in law that can't be explained in plain English, understandable by an intelligent child.
Adam Liptak has an article, captioned "Doling Out Other People's Money" in today's N.Y. Times on the cy pres doctrine from the law of trusts. Already your head is spinning, no doubt. It seems that when big class action lawsuits settle and the plaintiffs paid, and their attorneys, that there's some change left over, usually because not all of the potential plaintiffs have come forward to collect the few bucks each are owed. The left-over money can't go back to the bad-guy defendants who paid to settle, nor should it be used overpay the plaintiffs who've already been paid. It could escheat to the state, by why waste money like that? So what the judges do is to donate this money, which isn't theirs, actually, it's just that they control it, to some charity that seems close in purpose to the interests of the plaintiffs.
Liptak's example is of several fashion models who brought an antitrust suit against their agencies for conspiring all to charge the same rate of commission for obtaining bookings for their models, even though in a properly competitive world, some could have charged less. The leftover money from the settlement after the few models who participated had been paid, and their lawyers, was $6 million. That's a lot of spare change.
What was the judge going to do with the money in the pot?
Give it to some charity?
By what right?
By the right of "as close as possible." Yup, that's the name of the right in plain English. In French (remember, we got a lot of our law from the Brits who were conquered by William the Conqueror, of Normandy, in France). In William's court the language spoken was French. The courts naturally (since he appointed the judges) also spoke in French. The parties may have spoken English in 1066, but not the lawyers, who spoke French, or being learned, in Latin.
We call this legal Latin, today, and try to get away from it as much as possible, but some terms survive, such as voir dire and respondeat superior.
When we ask the jurors during jury selection for a jury trial to speak the truth about themselves, such as whether they have a relative who is a police officer, we call the process voir dire, to speak the truth. The phrase goes back to William the Conqueror's age, if not before.
When your car collides with a bread truck whose driver ran the red light, you don't want to sue the impecunious driver but his deep pocket employer. The employer is required to respond in damages, not the employee, hence respondeat superior, the superior must respond for the negligence committed by his employee. Legal Latin. Good.
The right of "as close as possible" is called the cy pres doctrine, from the law of trusts. The money is not owned by the judge, who is simply holding it in trust for somebody else's benefit. This is what the law of trusts is all about, holding someone else's dough for their benefit. Trust companies do it all the time (but not banks, which stand as debtors in relation to depositors and can lend your money for their profit. Interest on trust funds belongs to the beneficiary, although the trustee may charge a fee for his, or its, service. Trust law fills volumes, but that's the nut kernel. Who will this lucky recipient, called the beneficiary, be, in a class action lawsuit?
How about a charity that helps people with illnesses that occur with greater frequency among models? Like eating disorders, such as anorexia. That's where the money went, along with some to other similar charities, and hospitals. This was the next closest thing in interest to the models who didn't come forward to share in the proceeds of the lawsuit. Why didn't they? Models move around a lot, it seems, and their heads may not be into lawsuits as much as bathing suits. See the Sports Illustrated annual swimsuit issue.
The cy pres doctrine, from trusts, simply means that when a wealthy person leaves money to a named charity, say to promote education, and that charity becomes defunct while the money remains available, the court will find another, similar charity, and direct the flow of money from the trust fund to it.
The French phrase, Liptak advises, is "cy pres comme possible," meaning "as near as possible."
It might be hard for an American law student to remember the "as near as" doctrine. But "the cy pres doctrine" is one that stick with you over the decades even if you never go near the law of trusts. You may have to look it up to be reminded what the words mean, but you never forget that a doctrine called cy pres exists, whatever it may mean.
By discussing it, you tend to remember what it means, or at least that it continues to exist. It becomes one of the arrows in your quiver.
***
Henri Matisse, the artist who emphasized color in distinction to his contemporary, Picasso, who emphasized form, had a son, Pierre, who divorced his wife. Her father, a Corsican, was out to shoot him for ruining her life by divorcing her, despite their being clearly unsuited for each other. Pierre had to leave town, and sailed for New York, to take up a career as an art dealer. His family was distressed.
"So now our Pierrot's gone," Matisse wrote sadly when he got back to Nice, his home, after Paris.
"I didn't give him all the advice I should have liked because things don't come to mind all at once and he left in such a rush." [Emphasis added.]
Matisse the Master, a Life of Henri Matisse, The Conquest of Color, 1909-1954, by Hilary Spurling (Alfred A. Knopf, New York, 2005) p. 269.
This is the problem, of course.
Our minds are not built to come up with everything at once. It takes time, thought, rumination, overnight wheel-turning in the dark, for our minds to formulate solutions to problems that we "sleep on."
They don't let you sleep overnight on bar exam questions. You are expected to have all the information you need on the forefront of your mind when the clock starts. You have to budget your time, and energy.
Before entering a courtroom, the lawyer has studied the matter for which he appears. There comes a time when, like a dancer on stage, the attorney is expected to perform, at trial, or in closing argument. The time for preparation is over. This, of course, is why the testing is as rigorous as it is. You are speaking for someone whose life is at stake and who is unlikely to be as able as you are. And you only have this one chance to save him, or her.
So you think about thinking, and the law, the facts you are dealt like cards, and of speaking to effect.
***
Let's think about speaking, and thinking, shall we?
One of the traits of a good lawyer is the ability to generalize from particular facts to general principles.
Someone hits you in the nose; you hit back, and this gives rise to a legal doctrine called lawful self-defense, which has its limits, such as that the return force must be proportional not just to the initial force used but to the apparent threat.
It is often useful to go from the general idea we are using to a higher order of generality. We could be discussing the law of self-defense to defend the use of counter-force as a justified response to an unlawful physical (not verbal) attack.
But suppose that one country were attacked by another. You, as a neutral neighboring country, might wish to argue that a retaliatory attack, say in self-defense should not occur. "Don't do it," you might argue to the leaders of the attacked country. "But why not? We were attacked and enjoy the universally recognized right of self-defense to prevent another attack?"
"Here's why," you might argue. "Your attack might succeed in defeating the attacking country. But in desperation, it may decide to use its nuclear arsenal to save itself, even though it unlawfully attacked you in the first place. Then you may decide to use your nukes to prevent them from doing this. Pretty soon there's going to be a nuclear war and the neighboring countries, in fact the whole world, will be devastated by the nuclear poison. Why don't we try something else, such as setting up a body to examine the causes and what should happen to rectify matters without destroying the world. The India-Pakistan confrontation over Kashmir comes to mind.
What we've done here is to go from the specific, an attack, to a generality, the general principle that the law of self-defense applies, to recognition that the risk of over-reaction surely exists, and that it would be better, based on the even more general proposition that the safety of the world requires prevention of the use of nuclear force, not even to exercise the right of self-defense.
So, we've gone from the specific to the general to the more general.
Constitutional law writing often requires us to do this.
A person is barred from a school because of his race. We see this as unfair because other students of different races are admitted. We relate this to the constitutional guarantee that promises the equal protection of law to all regardless of race, creed, or color. And after we get done doing that, we apply the principle to denials in other contexts, such as employment and access to public facilities.
These are general terms used to cover an ever broader, i.e. more general, array of specific circumstances.
***
There's an article that discusses this idea of going step-by-step up the ladder of generality. It's called "Critical Thinking via the Abstraction Ladder," in The English Journal, Vol. 80, No. 2 (Feb. 1991), pp. 44-49, by Marcia Bundy Seabury. It appears online in JSTOR copyright 2000-2007 by JSTOR.
Seabury quotes S.I. Hayakawa, the semanticist who became president of San Francisco State and, after the riots of 1967, a U.S. senator from California. He devised the abstraction ladder in Language in Thought and Action (1972) ch. 10, based on the work of Alfred Korzybski.
Imagine a ladder, the top rung of which is labeled "wealth." Beneath that, in descending levels of specificity, are the following rungs:
wealth
asset
farm assets
livestock
cow
Bessie
Now take the following statements, each a rung below the former on the abstraction ladder:
The culinary art has reached a high state in America.
Chicago women are good cooks.
Mrs. Levin is a good cook.
Mrs. Levin makes good potato pancakes.
(Hayakawa 153, 159-60.)
(From the JSTOR headnote.)
Mediators often try to find a mutual accommodation between conflicting parties by identifying a mutual common interest to which both can agree. Mathematicians might call this 'finding the least common denominator,' but lawyers are apt to call it 'reaching for the next higher order of generality.' Some lawyers, that is. In Conlaw, this happens a lot.
***
Law students have a tendency, in writing essay exams that don't succeed, either to get stuck on the bottom or the top rungs of their intellectual ladder of abstraction, without climbing all the in-between stairs. They give their conclusions without writing out the steps by which they reached their conclusion.
Exam graders don't care so much about your conclusion, your politics, your morality or religion. They do care about seeing the steps by which you proceed from facts to the relevant ideas (meaning applicable legal principles) and then to your conclusion. Guessing which way to come out is the least of your worries. How you got their is your real concern. If you do this part correctly, your chances of reaching a correct conclusion are that much greater.
A common form of (failing) argument poses a question based, for example, on a newspaper which refuses to print an article. The contributor complains that his freedom of speech and press has thus been denied. The law student is not expected to say, "We have freedom on speech and the press in this country, guaranteed by the First Amendment, and therefore this refusal to publish is a violation for which the contributor may successfully sue the publisher." That won't wash. You can't just support an argument by saying, "The First Amendment, therefore..." (That's an old joking put-down of a First Amendment argument.)...any more than you can say, "The Constitution, therefore,...," or "I'm an American, therefore...."
The student is expected to recognize and discuss that the First Amendment guarantee is a protection which restrains government from enacting measures which punish or prohibit utterances and expressions, not private actors including corporations. The First Amendment is not a guarantee, if a person privately owns a printing press, that he must print whatever someone else wishes. Upon this realization, it should be clear that the disgruntled contributor has no successful lawsuit under current law.
Network TV is often criticized for presenting only mainstream news. This, it is urged, violates access to the airwaves by non-mainstream contributors. It does, but the question is whether this represents a First Amendment violation. In the case of print journalism, the answer clearly is no, you can't force the N.Y. Times, for example, on First Amendment grounds, to publish your message, although you might try buying some ad space.
The airwaves, by contrast, are publicly owned but leased to private users.
Advocates of forced programming, such as "the fairness doctrine," "the right of reply," "equal time," "public interest programming," and the like, argue that the publicly controlled electromagnetic band assignments on which broadcasts are carried provide enough connection to government power to make it reasonable to assert that First Amendment protections should apply even to privately licensed programming.
I'd like to mention two books that I'm reading on the subject of writing.
The first is "Telling True Stories, A Nonfiction Writers' Guide from the Nieman Foundation at Harvard University, edited by Mark Kramer and Wendy Call, a Plume Book, 2007.
Next is "Lincoln's Sword, The Presidency and the Power of Words," by Douglas Wilson, Vintage Books, 2006. Lincoln is one of the most ingenious constitutional law writers that I've ever read, especially when he is writing in the midst of controversy, not long after, as is more often the case among legal history writers.
I find it difficult to discuss books on writing without mentioning one by Rita Mae Brown, the novelist, called The Art of Writing, as I recall, no further information at hand. In it she makes this point, which has stuck with me for decades:
Each of us (writers), in Western Civilization (omitting China and India, for example) stands astride two horses galloping in opposite directions. The first is the clear, hard, thinking of the Greeks, and the second is the mysticism of the Jews and the Christians (or Judeo-Christians, to use her term, to which some people object, because you can't find very many Judeo-Christians who will admit to the description, although I might be one, having a parent in each camp, which leaves me pretty homogenized).
Giving credence to her observation is a petroleum scientist I met who visited the Holy Land with his wife. How did you enjoy the trip, I asked.
Well, he said, he and his wife were Baptists, from Texas. They had gone to the Holy Land to see the places where Jesus performed the miracle of the loaves and the fishes, turned the water into wine, healed Lazarus, and allegedly committed various other miracles.
But, the man explained, the Israeli tour bus driver would always say, "This site is where tradition has it that Jesus performed the such-and-such miracle.
"I didn't want to see a place where tradition had it that Jesus performed a miracle," the scientist said, I wanted to see the place where Jesus performed the miracle!"
He was riding two horses, galloping in opposite directions, God bless him.
***
My advice to law students experiencing difficulty writing essay exam answers is to start writing. Practice writing about anything, but in particular, describe ideas and emotions, their substance and their limits.
There are also bar review courses which stress practice exam writing.
I don't know any other way to write intelligibly than to start trying and never stopping. Law student will tell you they don't have the time. That's like a champion athlete claiming no time to practice. How do you think s/he became a champion in the first place? By making time, and practicing, and getting decent coaching, and competing. After that, they make it look easy, when it was anything but.
Any questions?
