Tuesday, October 18, 2005

Briefing for the Real World

At a recent academic support conference, one of the participants pointed out a disconnect between bar exams and law school exams:  bar exams tend to have a “right” answer to a legal problem while law school exams focus on ambiguity, giving weight to reasoning and problem-solving where an absolute “right” answer may not exist.

I have since been struck by how many students, in their briefing and outlining, seem to be preparing for some sort of over-simplified MBE instead of law school exams. They completely ignore the reasoning of cases, boiling everything down to facts and rules, as if law school exams will not test their abilities to work with the nuances of those rules; as if law school exams will not require them to work with varying legal tests that do not necessarily produce mathematically predictable results, with policies that may be in tension with one another under particular sets of facts, and with arguments for competing results.

I find myself repeatedly redirecting students to focus on identifying and briefing the rationales that underlie the rules and holdings they so dutifully record in their notes.  Law students will read well over two thousand cases before they graduate from law school; as a result, they have a golden opportunity to transform their own reasoning skills before being tested on them, on exams and in the real-world practice of law – as long as they deliberately take advantage of the opportunity.

The lesson was driven home to me in a recent meeting with a second-year student.  I had earlier suggested she modify her case briefing technique by actually breaking out and numbering the various logic and policy justifications articulated by the court in reaching its conclusions.  After a few weeks of doing so, she reported that her confidence had suddenly shot up because – get this – she found that for the first time since she began law school, she was anticipating where the professor was going in class and was repeatedly correct.  For the first time since arriving, she felt as though she could really do this work.

What is it about law school culture that seems to compel so many of our students to focus on rules alone?  Sophisticated legal thinkers know that rules, important as they may be, are just the intellectual landmarks in a much larger landscape filled with nuance, fine distinctions, and subtle shades of meaning. 

We need, apparently, to continually remind our students that landmarks may be crucial to pointing travelers in the right direction; but landmarks are seldom the destination in and of themselves and are not much good by themselves unless we live in a world made up only of landmarks. 

You and I know that the real world of law is not merely a collection of landmarks, not here and not out there.   What seems almost intuitive to us, however, may be foggy new intellectual territory to our students.  Sometimes, all they need is the simplest advice to suddenly see the terrain clearly. (DBW)

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