Tuesday, February 7, 2006
I know I have been away awhile. In part, this is due to preparations for our Law School's sabbatical inspection coming up in a few weeks. In part, this is due to preoccupation with my daughter's college application process. And, in part, this is due to dealing with a recent moderately unpleasant medical diagnosis.
However, as I have been reviewing more and more practice exams of students preparing for the Bar Exam, I have been struck by a common problem: the tendency to approach a subject by talking about everything on the laundry list of topics, rather than exercising discretion on what topics are truly raised by the facts.
As an example, I gave a Civil Procedure question with two calls. One called explicitly for a discussion of defendant's motion to dismiss for failure of the plaintiff to join a particular person. Rather than immediately begin a discussion of Compulsory Joinder and structure the answer along the lines of FRCP 19, most students began by discussing personal jurisdiction, then subject matter jurisdiction, then venue, and finally, after using most of their time, students got to the first of three sub-issues raised in a Rule 19 analysis.
This tendency should be of great concern to us in our training of lawyers. As Dennis Tonsing has written, and as we all recognize, there are analogs between what we ask students to do in Law School and what they are asked to do in the professional practice of law. Selecting and divining the right issues, and only the right issues, for discussion on an exam has its analog in narrowing and selecting the right issues to research and prepare for when a client walks in the door, because clients have neither the time nor the money to pay for unnecessary research.
We therefore need to caution students that, while it makes great sense to go into an exam with a mental checklist of possible issues, they should not answer a question by automatically writing everything on the checklist. They must learn to critically consider which issues are raised, and which are not. This facility is part of "thinking like a lawyer." (mwm)