MOLLY BISHOP SHADEL: So, first,
I want to say congratulations. You are starting your
legal educations, which is a very exciting
time in your life. And not only that,
you are doing it at one of the top law
schools in the country. So good for you. Good for you for
doing the work that was required to get in here. [APPLAUSE] All right. So the work,
unfortunately, is not over. It has just begun. So what we want to do is
prepare you for the kind of work that you're going to have to
do in the law school classroom. So I'm going to take
on that first topic-- what is it that you need
to think about to prepare before you even come to class? All right. So let me ask this question. By a show of hands,
how many of you have seen either Legally
Blonde or The Paper Chase? Put your hands up in the air. And how many of you thought,
yikes, I don't actually want to be in one of those classes? Put your hands in the air. Yeah, I see a lot of hands. OK. So those movies, that's
the Hollywood version of the Socratic method. So the Socratic method
is the signature pedagogy of American law schools. It's that way of
teaching where we ask you to read a
judicial opinion, which is called a case, and
then you come to class. Then the professor
calls on you, and you are asked to answer
questions in front of some of your classmates. So that is understandably
an intimidating proposition for a lot of people. So why do we do this? Why have we been
teaching this way? We've been doing
this since 1870. And the logic is
that this is the best way to instruct law
students about how to think like lawyers. Before 1870, you used
to come to law school, and it was just lectures. You would sit there, and
you would take notes, and law school was
like two years long, and you would just sort of
self-report your progress. There wasn't even an exam
period or anything like that. So maybe that sounds
really good to you, but I guarantee you
that you would not be a very good lawyer coming
out of a system like that. So instead, what we
are asking you to do is to immerse
yourself in the cases and to think about
them critically. We're asking you
to pull them apart, and then you come to
class, and we're asking you to explain them to us. And by doing that, you are going
to have a better understanding of how pieces work and what
it is that persuades judges. The other reason that we still
cling to the Socratic method is because it is a
rhetorical education. It is giving you a chance to
practice speaking out loud in a stressful situation. So even though that
can be very unpleasant, it is something that is
really useful to learn. So that's a way to
teach this to you. Now, I promise you that
most of the professors here are very, very nice people. And I don't think you're
going to encounter the Socratic method the way you
might have seen it in The Paper Chase. It's usually a much more
gentle experience than that. And, in fact, you're going to
encounter plenty of classes where people don't even use
the Socratic method at all. Especially as you get into
your upper level classes, you might find yourself in a
lecture or a class that uses group discussion or
a simulation class-- that's the kind of
class that I teach-- or clinics. So this won't be the
only thing that you're going to be encountering
in law school. But since the Socratic
method seems particularly intimidating, that's
what we thought we would focus on because we
want to demystify it for you. So what do you need to know to
do well in a Socratic class? So my first tip
to you is that you are going to have to
keep up with the reading. So law school is
not like college. When I went to college,
I was an English major. So that meant I did
a lot of reading, but I did it mostly at
the end of the semester. So I'd go to lecture, and I'd
take notes about some book that I have not read. And then at the end of
the semester, I'd catch up and I'd read the book. And then I'd look
back at my notes, and I'd think, oh, OK,
now this makes sense. And then I'd go take the
exam, and it was fine. You can't do that in law school. And that is because a legal
education is cumulative. You will not understand what
is happening in class if you haven't done the reading. And you won't understand what's
happening in class this week if you didn't
understand what was happening in class last week. And so that means
you need a system right now that is going to let
you keep up with this reading. So here's my suggestion to you. Instead of thinking about this
like an extension of college, you might want to think of
law school as your new job. So just as with any
job, you're expected to show up for work at a
certain time, say 9:00, and you're expected
to stay there and work until the end of the workday. That's your job for
law school as well. So some part of your day
is you're sitting in class. But for those other hours of
your work day, you are reading. You are keeping up
with the workload. That kind of discipline
of just chipping away at it every single
day can really help. You probably have
also noticed-- we told you to read Lucy versus
Zehmer for this morning's session. And in doing that,
you probably noticed it's hard to read cases. It takes a little while. It's longer than if you
were just reading a novel. And that is because the
language is unfamiliar. Sometimes cases are very dry. We have all had that
experience of reading the case and then getting to the
end and thinking, what? I have no idea what
that was about it. And so then you have
to start all over again and read it a second time. That is perfectly normal. You should expect
that, especially in your first semester. So that means that you need
to carve out some extra time because you may
find yourself having to read the material several
times through in order to understand it. I promise you that it gets
easier the more you do it. By the time you are
3Ls, you will just be whipping through these cases. It won't take any time at all. But it takes some practice. And then eventually,
you will find, oh, this language is
actually familiar. Oh, this is a structure
that I understand. Oh, I get what it is I'm
supposed to be looking for. But this first
semester, just know that it's going to take time. So this isn't the semester to
be signing up for extra shifts at the Gap or something. This is the semester
to be spending a lot of extra time
doing your reading. All right. As you are reading,
you are going to be reading for
particular things. And so here is a little
secret of reading a case. It kind of ends up being the
same stuff over and over again. So as you are
reading a case, you want to look for-- here is
my laundry list for you. You want to look
for these things. All right. So one of the things you
want to look for is you got to figure out the
facts of the case. So that means, who
did what to whom? Why are we here? Who is the person who sued? What is the story? So just figuring that out
can sometimes take some time if the case is really old. You want to know what the
procedural posture is. OK, so the procedural posture
means, what court are we in? So what kind of judge
are we talking about? And how much room does that
judge have to maneuver? So if you're reading
an opinion that was issued by a
trial court judge, then that judge is
looking at things fresh and has lots of room to say
what the facts are and so forth. If, instead, you're reading
an appellate case, which is usually what you're reading
for most of your law school classes, then what
you will find is that the appellate
court is not always allowed to look at things anew. So if the case involves
an issue of fact-- so that means, was this
witness credible or not? Is this fact true or false? Usually, in most
appellate courts, you're going to find that
the appellate court is only allowed to review that to
see whether the trial court's decision was clearly erroneous,
whether the trial court just abused its discretion. Otherwise, they got
to kind of defer. If you think about
it, it makes sense. It's because the
trial court judge is the one who was actually
there and better able to assess things on the ground. However, if the opinion
that you're reading is about an issue of the law-- so that means an interpretation
of a statute, for example, trying to figure out
what the law means-- then usually the courts of
appeals have more discretion. And so usually you
will see a paragraph that will say, "This is
a de novo review," which means from the beginning. We're looking at this all over
again, looking at this anew. So the reason
you're going to care about that is it lets you know
how much wiggle room have I got here-- did the judge have to
issue this opinion. So as you read
cases, you eventually are going to find
there's kind of a system, and you will start to look for
the paragraph that tells you what the procedural
posture of the case is. Another thing you're
going to look for, you're going to
try to figure out what is the holding of the
case and what is dicta. OK, so the holding
means exactly what the court said in
order to resolve the dispute in front of it. So the holding, that ends up
being important because it is going to bind future cases. So that means-- you heard
from Professor Kendrick, I think, about the fact that
we are in a common law system. So that means the law
isn't just statutes. The law is also what judges
say about those statutes. So when a judge
has said something and that becomes
part of the law, that means the judges that
come after are going to have to follow what that judge said. And so you want
to think about it, what did the judge actually say? And the part that
the judge said that was necessary to resolving
the dispute in front of him or her, that's the holding. That's the part that actually
is going to bind future courts. Judges say other stuff, too. In every case, there's going
to be extraneous conversation. That stuff's called dicta. And so it can be persuasive. It can be beautifully
articulated. Sometimes dicta
becomes very famous and becomes very influential
in how people think. But it's not binding. So an example would
be, let's imagine that we have a
judge who is talking about a case in which somebody
drove a car through a park and did doing that
violate the law. So the judge writes
about the car being driven through the park. But in the course of
issuing this opinion, the judge also kind of
extrapolates and says, well, if the guy had driven a
scooter through the park, then maybe this would
be a different thing. All right? So then let's imagine the
next case comes along, and the next case
is a scooter case. All that stuff
about the scooter, it was all dicta because it
wasn't necessary to resolving the dispute about the car. So you as a lawyer, you
would use it if it helps you. And you would try to say
it's great reasoning. It makes a lot of sense. But it's not the holding. And so the judge doesn't
have to follow it. All right, so that part
of figuring out what is the holding, what
is dicta, that's going to take you some time. You're going to spend some
time on that, especially the first month or so of
school, because it's not always that clear. And you will see lawyers
arguing about this. Lawyers will try to argue that
things are part of the holding. And other will say,
no, no, it should be more narrow than that. The point is,
reasonable minds can disagree about these things. So that is great fodder
for classroom discussion. You're also going to
want to pay attention to issues of precedent. So issues of
precedent can mean you have figured out the
holding of the case that you were asked to read. And so therefore, what
are the other cases that are going to come after
going to have to follow? Or you may see in
your case the court struggling with the
cases that came before it and trying to figure
out, all right, do we have to follow
these other cases? Are they precedential? Or can we somehow
distinguish what came before? Can we somehow say
it doesn't apply? If you have a case from
the US Supreme Court, you might even see the
Court say, you know what? We don't like that precedent. This is no longer good law. That phrase, by the way, when
I was a 1L, used to confuse me. I remember somebody in
my study group saying, this isn't good law. And I thought, does that
mean it's not a good law? What it means is it's
not the law anymore. It's been overturned. So it could be that the Supreme
Court says, yeah, here's what the precedent was. But you know what? We don't like it. It's no good anymore. It's not good law. We've got a new rule, new
system, new precedent. So if you see any
discussion about that, like how the case fits into
what has happened historically, you want to pay
attention to that. The reason that precedent's
so important in a common law system is you really
do want changes to happen incrementally. If judges can sort
of make things up out of whole cloth
every single time, then you would have a system
that is little more fragile. So you would have
people not really knowing how to behave
because they wouldn't really know what the law is. It would depend on
your particular judge. You'd have people at the
mercy of the individual whims of a judge. So a judge just
doesn't like you. He doesn't like the looks
of you and then make it up. So we don't want that. That's why we have precedent,
so that judges' discretion is a little bit cabined. And then it's also just for
purely practical reasons. If judges had to decide
things anew every single time, the workloads would
become onerous, and courts would just slow down. So that's why precedent
is pretty significant. So if you see
conversations about that, you should be paying attention. You will also want to
think-- so you figured out the facts of the
case, the story. You will also want to think
about what facts are really important to this particular
holding and what facts aren't. So there are going
to be some that are just really extraneous. There are others that
are really critical. So a favorite line
of questioning of law school professors is,
what if I change this fact? If this central
fact is different, does that change the holding? And so that, you need
to be thinking about. What did this holding mean? That will help you figure out
whether a changing of the fact makes a difference. Another favorite
line of questions, I'll give you a
new hypothetical. I'm going to give you
a new fact pattern. How would this case apply
to this new fact pattern? So, again, that
is really testing, what are the parameters
of this holding? For a lot of this stuff, there's
not necessarily a right answer. The point about
being a lawyer is that you should be able to
argue it different ways. That's what you're practicing. Are you able to argue this so
that you can make a persuasive case that, yes, this would
apply to this new fact pattern or, no, no, it wouldn't? It is smart to think about
where what you're reading fits into your course overall. So it's easy to get mired
in the weeds and just, like, put your head
down and do the reading. And if you do that, you may
miss some big picture themes in your classes. So a really good
habit, periodically pull out your syllabus
and look at it not just to see what your
next reading assignment is. Look at it to see, what is
the framework of this class? Like, where are
we in this story? So sort of thinking
globally about what did this individual case kind
of add to my body of knowledge about contracts or torts or
whatever it is that you're studying can be very helpful. I mean, you might get
questions about that in class. And then finally,
you will want to look for text that is important. So here is text
that's important. If the court says, "We are
now establishing a new rule," or if they say something like,
"Here is a three-pronged test," highlight it. That text is really important. And so those are things that the
professor will ask you about. And when you're
answering the questions, go to the actual language. Don't paraphrase it. Read the actual language
because probably what you're going to get into is
a parsing of that language. What does this language mean? All right. So those are the things
that you are looking for, and they're pretty common not
matter what your topic is. Those are the sorts of things
you're going to see in cases. As you are reading and
looking for these things, you will also, of
course, be taking notes. Now, to survive in a
Socratic classroom, you want to create notes that
will help you answer questions. So I think it's helpful to think
of your notes as a visual aid that you can look at
quickly to be able to find the information that you want. So I'm going to tell
you about my system that I used when I
was a law student. And it is just a model. It's one way that
you can do this. It is not a perfect system. It's not the only system. So you absolutely
could figure out your own idiosyncratic
system, and that's fine. The point is just
to have a system, just to have some
sort of routine that will let you create a visual
aid that is going to work for you while you are in class. So the visual aids that
I tended to rely on are the ones that I've
given you as a handout. So one is a piece of paper. That's the first
page of this case we asked you guys to
read, Lucy versus Zehmer. And then the other is a
one-page summary of the case. So that one-page summary of
the case, it's called a brief. So you may have heard
of briefing a case, which is what we're
going to talk about next. It's different--
so briefing a case, it's not the same
thing as a legal brief. So sometimes you'll
hear people talking about filing a legal
brief, and what they mean is like filing a document in
court that is an argument. And it's totally different, even
though the words are the same. Briefing a case means you are
taking notes about the case. And your goal in
briefing the case is to be able to get through
class, to be able to answer questions about the case. All right? OK. So let me also say this. So your peers may tell you not
to bother as you move forward. You may have older
law students that will tell you, eh, don't waste
your time briefing cases. Just read the cases, move on. And I am going to tell you
that I think that is a mistake. Briefing cases does
not take very long. But it is tremendously helpful
because it is a discipline. It is making you take this
case and break it down into its component parts. So that is yet another way of
interacting with the materials, yet another way of
synthesizing it. And it is so helpful
when you're called on. When you are feeling
stressed out, it's so helpful to have this
document in front of you because it probably has
the answers on it for you. All right. So let's talk about how this
brief and these notes worked, and the case that we're going
to use is Lucy versus Zehmer. I hope you guys
all read this case. But even if you didn't, you'll
be able to follow along. So Lucy versus Zehmer
is a Virginia case. Here we are at the
University of Virginia, so we should tell you what
the world of Virginia is like. So this is Virginia. This is the Ferguson
Farm in Dinwiddie County. It's 470 acres,
and this farm was owned by Mr. Zehmer
and his wife, Ida. And it was coveted by Mr. Lucy. He wanted this
farm really badly. So on December the
20th, 1952, Mr. Lucy entered a restaurant owned by
Mr. Zehmer, Ye Olde Virginnie, with a bottle of
whiskey in his hand. And the two men sat
down and began to drink, and they began to talk. They said things like, "He
was high as a Georgia pine," and "Great balls of fire." This is how they talk
in Dinwiddie County, according to the states. [LAUGHTER] Waitress testified that the
men were drinking right much. Ultimately, at the end
of the conversation, Mr. Zehmer wrote out a
bill of sale for the farm. So here is the bill of sale. You can see that it is
on a restaurant check. And it says, "We hereby agree
to sell WO Lucy the Ferguson Farm complete for $50,000,
title satisfactory to buyer," and at the bottom, it's
signed by Mr. Zehmer and by his wife, Ida. All right, so that's the story. That's what happened. So if you take a look
at the case itself-- so here is the first page, which
you've given you as a handout-- you can see this
stuff is in there, but it's kind of jumbled. Like, as you're reading
the facts of the case, they're all mixed stuff. They don't have it set
out in an orderly way like here's what
the consumer says, here's what Mr. Lucy says. It's all kind of mixed up. So what I was trying to do
when I was reading cases is highlight things so that
it would make sense for me. So here's how I would have come
up with highlighting like this. I would've read this
case the first time through without touching it. I wouldn't have
highlighted a thing. So I would've read it
through just to figure out what the heck is going on. What is the story? And the reason that I'm going
to suggest that to you-- don't highlight the first way
through-- is because otherwise, you will highlight everything. And then you will
end up with a case where every single
thing is underlined, and that does not
help you in class. All right. So you read it through once. I got it. I got what the story is. Now you read it through
again, and then you start using your highlighting to
help you find the specific text that you might want. So you can see I always
would circle the defendant and the plaintiff. Oh, and by the way, people
like to use little-- the defendant as like a little
triangle and the plaintiff is like a little pie symbol. You'll see that
in people's notes. So if you want to be really
official, you can use that. [LAUGHTER] All right, so you
circle their names. And then I have underlined also,
what is the issue in the case? So that means, what is the
thing that the court is being asked to resolve. And I go ahead and underline
that in the casebook as well in case the professor
really cares about that specific language,
in case he or she doesn't want you to paraphrase it. So I'm looking for that. And down here at
the bottom, this is the paragraph that tells
you the procedural posture. So this is the one that
says they're asking for specific performance. That means the guy
wants the farm. He doesn't just
want his money back. He wants the actual farm. And it says it's on appeal. All right, so I've
highlighted that. So the other thing
I've done here, though, is since this is a case where
there are a lot of facts, I might use multicolored
highlighters to try to sort those out. So what I did here was anything
that was helping Mr. Lucy, I'm highlighting in
green, and anything that's helping Mr. Zehmer,
I'm highlighting in yellow. And that's because the way the
court's written the opinion, it's all conflated
with each other. So Mr. Lucy, he's got things
like Mr. Zehmer actually wrote this contract,
that he took the time to write this thing. That contract's got
pretty clear terms. It says we're going to
give this to you, $50,000. They signed it. Both of them signed it. He got his wife to
sign this contract. And then there's the fact that
Mr. Lucy's been after this farm for years. So not a huge surprise
that he's serious. He really means this. So Mr. Zehmer, that's the
stuff that's in yellow. And so that's things like
he thought it was a joke. They've been drinking. Once he realized Mr. Lucy was
serious, he said, "No, no, no. I'm not selling this to you. I think we're joking. I'm not going to take the
$5 you seem to be offering me to bind this contract. No, no, no. I didn't think it was for real." So those things
I've highlighted. OK, so you can take
this page, and then you can compare it with
the brief, which is the other document
I've given you. So the brief, it's just
taken this information and put it into a form. So this literally was a form. Yeah. INTERVIEWER: I think some
of us are missing this-- MOLLY BISHOP SHADEL: Oh, no. OK. Have we got-- Sarah, do you know if there
more copies of the handout? SARAH: [INAUDIBLE] MOLLY BISHOP SHADEL: If you
are missing these handouts, would you please put
your hand in the air? So it looks like the down-front
folks and the folks back there. SARAH: The down front and
the people in the back, OK. MOLLY BISHOP SHADEL: OK. Keep your hand in the air. I'll just keep talking, but
keep your hand in the air till you get your handout,
and that way, we'll be sure that you have it. But the handout is just this. It is what I'm showing
here on the slide. So you're not missing
any information here. All right. So if you compare
them side by side, though, you'll see
that all I've done is I've just taken this
information from this case, but now I'm putting it
into a one-page form. And this literally is a form. This was the form that I
used to use in law school. The idea of having a form
is it's a discipline. Again, it is making
you make sure that you find every
single time, who are the parties, what
is the issue, what is the procedural posture? Just that discipline of
answering those questions for yourself over
and over again helps you learn how to
read these cases. But then the part
with the facts, those I put in order
of this is for Zehmer, and this is for Lucy. And the reason I might do
that for a case like this is because these
facts are pretty fun. This could be one where the
professor would say to you, "Can you make the
best argument that you can on behalf of Mr. Zehmer? Can you make the best
argument that you can on behalf of Mr. Lucy?" So having those facts sorted
out can be really useful. All right. So what happened here? The court said Mr. Lucy wins. He gets the farm. And it's because, you know,
who can read Mr. Zehmer's? Mr. Lucy gets to have
the farm because it seemed like it was all good. And so a contrary ruling,
you could have bad effects, and we'll let Professor
Geis get into that. But that's essentially
what this brief is. OK. So the point of this is
to help you in class. This is not your outline. This is not going
to be helping you-- it will help you
on your exams, too. Going through this process
will help you on exams. But right now, all
you're thinking about is, like, how am I getting
through my classes? And then you go into class. All right. So here you are in class. And let's imagine that
you are the person who has just been called on. So what do you do? So the first thing you do is
you realize, you got this. You did this work. You got this brief. So you have already
thought through this case in some detail. So this is going to help you. And then you take a deep breath. And I'm going to advise you to
tune out your other classmates and just look at the professor. The professor is
asking you questions. Ignore everybody else because
that's not helping you. They're probably not feeding
you the right answers. Listen to the professor and just
think of it as a conversation. Most of the professors are
going to try to help you. They're going to try to
give you a hint about where it is you're trying to go. A lot of these questions
that you're being asked, there isn't necessarily
a right answer. So really, what they're
asking you to do is to think. So this is your
chance to practice. So that involves just
taking some deep breaths and realizing you
did do this work. I'm also going to suggest
that you practice. Try to answer with
some confidence because this is a
professional program. You are learning to be
lawyers, and lawyers have to speak with confidence. The only way you're
going to get that is to kind of fake
it till you make it. So try answering the
questions as if you know what you're talking about,
even when you don't. I also want to say-- so law school, we
sometimes will ask you to disagree with each other. Sometimes we're talking about
things that are very fraught. Sometimes we're talking
about things people care deeply about, like abortion,
first amendment rights, gun control, things like that. And so you will hear positions
that you don't agree with. In fact, we may ask
you to argue positions that you don't agree with. And so I want to
say right now, this is the beginning of your
professional network. These folks that you're in class
with will also become lawyers. They will remember you and have
positive feelings about you if you've treated
them with respect. So law school is a
place to practice disagreeing agreeably,
disagreeing respectfully and professionally, not
tearing people down. So when your
classmates are talking, you want to realize it is hard. It is hard to answer questions. So you don't laugh
at each other. You support each other. After class, you say,
good job, good for you. Because you really
will do a good job. You really do know the
answers if you just have a little
confidence in yourself. All right. So let me-- oh, actually,
one last thing I want to say. I wish that I had thought
of this as a student, but I didn't. I thought of it when
we were talking. If I could do it
all over again, I would have one more
category in my brief. And it would be, what
happened in class? Having the discipline
to go back to that brief and just having one more
paragraph where I wrote down, this is what the
conversation was, I think would've been
tremendously useful. Because usually in
the conversation, you were going to
begin to figure out, what are the
doctrinal implications that this professor cares about? It might help you
figure out why you're looking at this case
in the first place. And so that means-- certainly if you're
answering the questions, you're going to
go back and write something about,
what questions did you answer, what do you say? But even if you're not
the person on call, it means you need
to be listening. You cannot check out. You have to be listening. Because if you are
not fully engaged, you won't know what to say about
why this case was important and what happened in class. If you stay fully
engaged, you're going to get so much more
out of your legal education. All right. I'm going to turn the floor over
to Professor Geis now, who's got his own PowerPoint here. [INAUDIBLE] [APPLAUSE] GEORGE GEIS: So good morning. INTERVIEWER: Good morning. GEORGE GEIS: We
are ready to turn to our next topic
in contract law. And this is called
the agreement. Now, remember that
in order to have a legally binding contract,
you have to have an agreement. We don't impose contracts
on you by fiat of law. But it's an agreement between
two private parties, typically, that turns into something
that's legally binding. And we can usually break
it down the agreement into two parts, the
offer and the acceptance. So for example, you might
make someone an offer. I'll paint your house
if you give me $1,000. And then the person you're
speaking to might say, sure. And then you have your
offer and acceptance. And then you have a contract. They might not say, sure. They might make a counteroffer. Well, how about if I only
pay you $950 instead? And then the
conversations continue. But the important part is
that we need an agreement. Now, there are some
nuances, however, to the agreement
process, which brings us to the critical case
of Lucy versus Zehmer. So Hannah Donna, let me set the
stage for Lucy Versus Zehmer. Lucy had long coveted
the Ferguson Farm. He had made several offers
to buy the farm in the past, and these offers had
always been turned down. They had not yet
arrived at a deal. Late one Saturday
night, Lucy drove up to Zehmer's restaurant,
Ye Olde Virginnie. He passed through
the gas station and walked into the diner and
decided to wait around and look for Mr. Zehmer. Can you tell us briefly
what happened next? HANNAH DONNA: Well, Lucy
offered about $50,000-- offered $50,000 for the
Ferguson Farm to Zehmer. And they talked for about 40
minutes, shared some drinks, and then Zehmer wrote
and signed a contract on the back of a receipt
detailing the transaction. He actually wrote two
contracts because the first one didn't include his wife. It said, "I hereby
sell" instead of we. So he tore it up and rewrote it. He then convinced his wife to
sign, whispering in her ear that it was a joke so
Lucy couldn't hear. Zehmer gave the contract
Lucy who offered him $5 to seal the deal. But Zehmer didn't accept the $5. Lucy took the contract the
next day to his brother and then to a judge
on the Monday, which is two days later. GEORGE GEIS: OK. So we've got a lot
of back and forth between these two
parties, and I think what you said is exactly right. Lucy went in, negotiated
with Zehmer for a while, and then ultimately,
they drafted, and the Zehmers signed this
agreement or this something on the back of a bar
bill where they agreed to sell the farm for $50,000. And as you said
correctly, Lucy tried to pay $5 to seal the
deal or bind the bargain. And Zehmer, at that point,
said, hold on a second, right? We don't really
have an agreement. And Zehmer later
went on and tried to deny that there
was a contract. Why does Zehmer say
there wasn't a contract? HANNAH DONNA: Well, he
says that was a joke. GEORGE GEIS: OK. HANNAH DONNA: And that
he and his wife both knew it was a joke. Lucy should've
known it was a joke. So it wasn't a real-- GEORGE GEIS: We were
joking around, right? We were just horsing around. This wasn't a real
binding commitment. And so Zehmer denies this. And this means now that the
entire issue of the case centers around whether we have
a real offer and acceptance, whether there's really an
agreement that would then give rise to a contract. Now, what does Lucy want? What is Lucy suing for? HANNAH DONNA: He wants
performance of the contract. GEORGE GEIS: Performance, right? Specific performance. So he's not looking
for money damages for breach of the contract. Lucy actually wants this farm. Lucy would like to have the
right to buy the farm itself, and that's what he's
suing to try to get. Now let's cut to the chase. Is Zehmer bound contractually? HANNAH DONNA: Yes. GEORGE GEIS: Yes. Why? HANNAH DONNA: The objective
giving of contracts, it doesn't matter what your
subjective intentions are. Whether there's
a promise depends on external or objective
interpretation. And since Lucy
could not have known that Zehmer was joking in
his mind, the contract holds. GEORGE GEIS: OK. So the court sets out a rule of
law called the objective test. And it says we are
going to look at what a reasonable person
would think happened under the circumstances. And if it looks to
a reasonable person like there was real offer
and acceptance, then we're going to deem
there as being real offer and acceptance. Now, Hannah, what
facts led the court to believe that a reasonable
person would not think this was a joke? Why does the court come out this
way under the objective test? HANNAH DONNA: Well, Zehmer wrote
out not one but two contracts and clearly ripped up
the inappropriate one and rewrote it so that
the wife was included. They bargained over price. Both Zehmer and his wife
signed the contract. And Lucy immediately the next
day took action on the contract to go about buying the farm. GEORGE GEIS: OK. So they talked for a while. They haggled back and forth. They wrote it down. We could add maybe a
couple of other things. They actually thought through-- I've got a copy of
the contract here. I'll flip it so you can
see it a little more. They thought through the
title provisions, right? The title has to be
satisfactory to the buyer. They had both he and his
wife go back and sign it. So they negotiated
for quite a while. And ultimately, the
court was convinced by a variety of things that
any reasonable person would think this was a real
deal, and, therefore, it became a real deal. Now, Alex Hayden, let
me jump over to you. Imagine that you had
the case, and you were going to argue for the Zehmers. You're representing
the defendants now. What sort of story
would you tell? How would you
describe the situation or describe what was going
on in order to make out the case in the best possible
life for the Zehmers? ALEX HAYDEN: Sure. I would point to the fact
that Lucy brought the whiskey with him to the farm. It seemed a little underhanded
to bring an intoxicant when you're trying to
purchase property, especially that late at tonight. GEORGE GEIS: OK. ALEX HAYDEN: I would
also point to the fact that Lucy wanted
to pay $5 to bind the bargain and, in addition,
the amount effort he went through to make the
contract-- signed by the wife and perfectly titled. It seemed like he was kind
of anticipating there might be problems with this later on. GEORGE GEIS: OK. ALEX HAYDEN: And
then I would also-- GEORGE GEIS: Let
me stop you there. Doesn't that show that
they were seriously negotiating back and
forth with each other if he actually took the
time to bring the wife in? ALEX HAYDEN: That's
certainly one reading of it. But I would say look
at the objective truth. The court seems to buy more of
what Lucy said he was thinking. But I think probably
close to the truth would be that Lucy
understood that Zehmer wasn't fully committing to this and-- GEORGE GEIS: So what
was really going on? I mean, tell it to
us in common words. If it wasn't sort of a
real serious negotiation-- and I think that's the
story you want to tell if you're representing Zehmer-- what would you say was
happening in the bar that night? ALEX HAYDEN: Lucy came
in with the intention of getting the farm at
pretty much any cost if he could do it. GEORGE GEIS: OK. But that sounds like a real
negotiation, doesn't it? I mean, do you want to say
something a little different if you're Zehmer? ALEX HAYDEN: Basically
that he made out with a windfall of $50,000 using
the influence of alcohol and-- GEORGE GEIS: All right,
so he got him drunk. He kind of really pushed
him down that way. Hannah, what do you think? If you were representing
Zehmer, how would you describe what's happening? HANNAH DONNA: I
would say that Zehmer has several times said he's
not going to sell the farm. He's told Lucy several times he
doesn't want to sell the farm. And the fact that
he, after drinking for 40 minutes with
Lucy, finally agreed to sell the farm, Lucy should've
known that he was drunk, should've known he would never
the farm based on his past. GEORGE GEIS: Based on
the past interactions. Well, can't we joke
about selling something for years and years and
years and eventually strike a real deal nevertheless,
especially if the price keeps getting raised? HANNAH DONNA: We
can, but the way that Zehmer and Lucy interacted
showed that itself was a joke. Oh, I bet you won't
sell this for $50,000. Oh, I bet you
can't find $50,000. I mean, it seemed like a
joke the way that they were. GEORGE GEIS: All right. So maybe-- and I think this gets
into a line of reasoning that you'd want to push
if you were Zehmer-- you'd probably say-- yeah,
and first, you clearly raised the intoxication
argument, right? I think that's one that you
want to try to press on. But there's another way
to explain, I think, what's going on here, which
is, look, this was just Lucy sort of needling--
or this was Zehmer needling Lucy to
say, I don't think you have the money, right? And trying to kind of press
him and tease him and go on and on trying to see
if he could just make him cave in the context
of a lot of drink. So, Alex, I think that might
be another line of reasoning that you would want to pursue. Hannah, imagine that
you were the judge and this case came to you. How would you decide? HANNAH DONNA: I would
decide for Lucy. GEORGE GEIS: For Lucy? How come? HANNAH DONNA: I think, for
me, one of the [INAUDIBLE] factors is the fact that they
rewrote the contract to include Zehmer's wife. I think that really shows
thought and the fact that this was a real
contract and not a joke. GEORGE GEIS: OK, so the
fact that they went back to Mrs. Zehmer and asked
her to also sign this took it to a level of
seriousness that you think turned it into a situation
where you'd reasonably understand this as being
a binding contract. Now I want to read you a passage
from the case related to that. One of the things that happened
was that Mr. Zehmer went over at that moment in time to try
to get his wife to sign it, and they were talking through. Zehmer came back to
where she was standing and said, "You want to
put your name to this?" She said, "No." But he said in an undertone,
"It's nothing but a joke," and she signed it. Now if Lucy heard
that, would that change the outcome of the case? HANNAH DONNA: Yes, because
then the outward intention would be known. It would no longer be
subjective intent [INAUDIBLE].. GEORGE GEIS: So they,
all of a sudden-- right? That might have really
change the case. Because if Lucy overheard
Zehmer telling his wife, "Oh, this is
nothing but a joke," it wouldn't be reasonable
anymore for Lucy to think that this was still
a real serious negotiation. So did Lucy overhear Mr.
Zehmer say that to his wife? HANNAH DONNA: Allegedly no. GEORGE GEIS: Allegedly no. [LAUGHTER] We know more than that. The case actually tells us if
you go a little bit further on, and this is closer to
the end of the case. Both of the Zehmers testify
that when Zehmer asked his wife to sign, he
whispered that it was a joke so Lucy wouldn't
hear and that it was not intended that he should hear. I think that's a pretty
pivotal part of the case because I think you're right. And if they'd said it louder
so that Lucy actually heard, "Well, this is just a joke. Honey, why don't you
sign it?", then I think that there might be a
different outcome to the case. But that's not what happened. And so maybe under the
objective standard, we should find there as being
a legally binding contract. Alex, let me come back to you. Let's talk a little bit about
this result, this result. One of two or maybe three
things is really happening here. There's one or two or three
things that are going on. First thing that
might be going on is that Zehmer might
be lying after the fact to try to get out of a deal
that was really struck. Maybe there was a real
contract that was struck, and now Zehmer is
lying after the fact and saying, "Well,
I was just joking. I was just joshing. I didn't really,
really mean it." Second thing that might
have been going on is that Zehmer was
really, really joking at that time during the
negotiations, and, in his mind, he was thinking, there's
no real serious way that I'm meaning
to sell the farm. And that might have really
been what's happening. And Lucy just sort of
didn't understand that. Do we care which of
those two circumstances were taking place? ALEX HAYDEN: In a general
sense, probably not. I mean, a lot of
contract cases are simply setting the standard rules that
future parties can understand, you know? Oh, if the rule
is you're joking, you have to make
sure they're not when you make a contract later. Or it's if you're joking, you
have to make it very clear that you're joking. So for future parties, no. Obviously, these parties, yes. GEORGE GEIS: So
you're telling me that if we were to somehow
look down from above and figure out what
really happened, it's possible that Lucy
really was in his mind joking and meaning
to joke-- sorry, Zehmer really was meaning
to joke at the time, and we still don't even
care as a matter of law? ALEX HAYDEN: There's
definitely an argument that can be made that
it doesn't matter, that you're simply
creating a rule that we're going to use this objective
theory, and going forward, it's what this neutral
reasonable observer-- GEORGE GEIS: Well, that's right. I mean, that's exactly
what the court says. If you look at how they describe
the situation, it says-- this is a few paragraphs,
six or seven paragraphs from the bottom. "Whether the writing
signed by the defendants and now sought to be
enforced by the complainants was the result of a
serious offer by Lucy and a serious acceptance
by the defendants or was a serious offer by Lucy
and an acceptance in secret just by the defendants,
in either event, it constituted a
binding contract of sale between the parties." Well, what kind of a
crazy rule is this? How are we going to bind
Zehmer to a contract if Zehmer might not really
have meant or intended to enter into the contract? Why don't we instead
prefer a subjective test where we say, look, in
order to have a contract, you have to have the
intent to make an agreement and, therefore, we're going
to ask whether both parties subjectively actually
had the intent to enter in the agreement. And if they did, then
there's a contract. And if they didn't,
there's not a contract. What's wrong with that? ALEX HAYDEN: I think there's
two issues with that. First is that it makes-- it kind of frustrates
the purpose of contract law in the
sense you're supposed to be able to plan for the future. You're making these deals
to position yourself to have your house painted or
to pay your bills with the money from painting it. And if someone can just
kind of rescind the contract by saying, "Oh, I was joking,"
that's pretty frustrating. GEORGE GEIS: All right. So that's, I think, a
bigger problem, right? I mean, I make you an offer. I'll sell you my
Toyota for $10,000. And you say, OK,
and raise the money. And I say, ha, ha. I had my fingers crossed
behind my back, right? We have no contract. In my mind, I was
thinking there's no way I'm really
making the deal. I mean, that's a problem. We want people to be able
to behave with certainty when it looks like and
should look like to anybody that they reasonably
concluded the contract. And that's where I think the
objective test is trying to do. That's a critical starting
point for offer and acceptance in contract law. Now, Alexander Hoffarth,
I want to come over to you because Zehmer has
another line of defense, right? The Zehmers are trying to argue,
even apart from the application of the objective
test in this way, that there's another reason
why the Zehmers shouldn't be bound to the contract. What is it? ALEXANDER HOFFARTH:
I was too drunk. GEORGE GEIS: I was too drunk. I was high as a
Georgia pine, right? There's no way I should be
responsible for this sort of an offer and acceptance
because I was really drunk. And, you know, Zehmer kind of
makes a big deal out of it, right? Zehmer goes back and
looks at the bar bill and says, "I can't even
recognize my own handwriting. That's how bad I was. I spelled the
Ferguson Farm wrong. I couldn't spell
satisfactory right. I mean, I didn't know
what I was doing." I'm not so sure looking
closer at the bar bill that there are any misspellings,
but at least that's what Zehmer was playing up. So is this defense going
to work for Zehmer? Was there an incapacity defense? ALEXANDER HOFFARTH: No. The court says it doesn't. GEORGE GEIS: OK. Why not? ALEXANDER HOFFARTH:
The court says that he wasn't
intoxicated to the extent that he couldn't understand
what he was doing. And that's really
the rule in Virginia. GEORGE GEIS: OK. So the standard we
need is that you're so intoxicated that
you can't understand the nature and consequences
of your actions. As you said, you don't even know
what it is that you're doing. Well, what facts
does the court use to determine that Zehmer kind
of knew what he was doing? ALEXANDER HOFFARTH: Yeah, so I
think Hannah already has sort of laid it out nicely, right? The fact that there's
two contracts. The first one was
in first person. Then he changes it to
"we" to include the wife. That matters. The fact that it's written. Doesn't matter that
it's on a bar tab. It's still written down. And it has land for money. I mean, that would suggest
that he knew what he was doing. GEORGE GEIS: Right. So the fact they went through
all of these different actions might lead someone
to believe that-- but could you do all this stuff
while you were really, really drunk, too? ALEXANDER HOFFARTH:
Yeah, I mean, but, again, it's the same
sort of thing as what we were just talking about
with the joking, right? I mean, if you have
a sense that you're capable of making a contract,
and that's what Lucy thought-- Lucy was drunk, too. They both were drunk. It's pre-Christmas in
Virginia to celebrate. Right? I mean-- GEORGE GEIS: Look. Go ahead. ALEXANDER HOFFARTH: It would
suggest that there still can be a contract, even though
two parties-- both parties are drunk. GEORGE GEIS: That's right. I mean, you can
have a few drinks, and you can certainly make
a legally binding contract. At some point, I guess,
you'll have drunk so much that you
don't understand the nature and consequences of
what it is that you're doing. And the court didn't think
that the parties got here. Let me ask either the
other two students. Do you have any other facts
or anecdotes or pieces of evidence from the case
that might lead us to believe that the court
actually got it right and the parties
weren't too drunk? Alex. ALEX HAYDEN: Both parties
have a great amount detail about what happened that night. They were pretty particular
about who said what and where and who did they talk to,
how many contacts there were, what they changed. Just, there's a
high level detail that kind of doesn't really
add up to it [INAUDIBLE].. GEORGE GEIS: So the
court sees [INAUDIBLE] if you were so
drunk, how can you then come back and
talk in a lot of detail about exactly what happened? There's another
nice passage where Mrs. Zehmer told Mr. Zehmer,
"Well, Lucy's really drunk. I could tell. Lucy staggered out. Why don't you go
drive him home?" Right? I mean, that sort of undermines
Zehmer's argument as well, right? Why is she saying,
go drive him home, if he is too drunk [INAUDIBLE]? So I think for those
reasons-- and, ultimately, if you read the
opinion carefully, the lawyer for Zehmer
actually conceded that the Zehmers were not too
drunk to make a real contract. So the incapacity via
intoxication is a side issue. It's not the fundamental
issue of the case. Real quick, let me
tell you a side story. So I was teaching this
case a few years ago. And after class was over, one
of the students in the class came up afterwards, and they
said, "Professor Geis, I want to tell you a story
about something that happened to one of my friends." And my eyes got big because
I know that a good story is going to come out, right? It's sort of
positioned that way. And they said, "Well,
one of my friends was staying up one
night having some drinks and surfing the
internet on eBay." And I said, "OK. I didn't know that
was a thing, but--" [LAUGHTER] "And the next
morning, he woke up, and he received an email in his
inbox saying, 'Congratulations. Your bid for $48,000 for the
Mercedes is the winning bid.' [LAUGHTER] Alexander, is that a
legally binding contract? ALEXANDER HOFFARTH: Yeah. GEORGE GEIS: Yeah. How come? ALEXANDER HOFFARTH:
Because, again, there was an offer of
$48,000 and acceptance of it by the Mercedes owner. The Mercedes owner
can't tell that he was too drunk to make the contract. So congratulations. He's got his Mercedes. GEORGE GEIS: So under
the objective test, there's at least a pretty
good argument that all you saw were these bids
going back and forth. How would you know that someone
was too intoxicated to do it? Now maybe our poor bidder
could make out a claim. I don't know how he would
muster the evidence, that I was really so
drunk I didn't know what it was that I was doing. But that's a pretty
hard claim to make out. So it's possible
that that person would be in a lot of
trouble, putting aside a sort of special
rules that eBay might have on its site related
to the whole bidding process. OK. So incapacity is a
bit of a side issue. It's relevant, but it's
not the main issue. The main issue we
have here is the issue of the objective test. We are going to look at what it
is that the parties say and do, and we're going to
essentially impart a reasonable interpretation. We're going to divine
objective truth, what any reasonable
person would think that means on the basis
of the surrounding facts. And I guess it's fair to ask
whether a court can really do this. Is it realistic for us to
expect that a judge or a court can somehow divine objective
truth from the variety of facts that take place? I mean, this converts issues
of fact into issues of law. And I think we're asking a
lot in some circumstances for the court to be
able to say, well, there's a lot of messy facts
like those that are going on in Lucy and Zehmer. But nevertheless, this
is what really happened, what a reasonable person should
think this means, not that. And really, the
way that you think about this objective
standard, in some ways, come down to your different
theories of judicial reasoning and what the purpose
of the law is. And so I want to kind of
quickly summarize this case just by introducing two
alternative theories of judicial philosophy. The first theory is
more of a realist theory or a relativistic theory. And I think it's
nicely summed up by a quote from Corbin, who's
famous contract scholar. Here's what Corbin would say. "A sufficient reason for
comparative historical studies of cases in great
number is the fact that such study frees the
teacher and the lawyer and the judge from the
illusion of certainty and from the delusion that
law is absolute and eternal." In other words, a realist
judge might say, look, there's lots of stuff going on. And judges have
lots of flexibility under the objective test
and other rules of law to sort of tailor the
outcome to what they think is the right thing to do. And it might depend
on their mood that morning what
they're going to view as being the objective truth in
any given set of circumstances. And if the judge at something
different for breakfast, well, then maybe she
would have come out slightly a different way. That's a little bit more about
a judicial realism philosophy. We should contrast that with
more of a judicial formalism. And this could be summed
up by another shorter quote by Langdell. And he would say,
"Law is science." It's not realism. Law is science. There is objective
truth out there. And the role of the
judge is to find what that objective truth is. Some judges get it wrong. But if a judge properly
understands and applies the facts and uses things
like the objective test, they can determine what
is the ultimate truth is. And law, therefore, should be
understood as akin to science. So I don't think we're going
to solve this one today. Just be aware that
there are these two alternative conceptions
of what judges can and really should do. And the objective test, I think,
is one place in contract law where themes like this
really come to center stage. All right. I want to finish quickly
with one last review case. Hannah, maybe I can
come back over to you. Try this. I offer to sell you
my Toyota for $10,000. And you say, OK. You bet. We meet the next day, and
you hand over a big fat stack of $50 bill, $10,000 worth. And I say, thank you, and I
hand over to you my toy Yoda. [LAUGHTER] Are you really obligated
to take this action figure under the objective test? Can I do that? HANNAH DONNA: I would argue no. [LAUGHTER] GEORGE GEIS: Why not? How do we know that? HANNAH DONNA: Well, I would say
that a reasonable person would assume that when you say
Toyota, you're implying your car and not your figure toy Yoda. GEORGE GEIS: Yeah. That has to be right. Doesn't it? HANNAH DONNA:
Well, I would argue that it's an
information-forcing rule and so the idea of, if it's not
what a reasonable person would believe, you would
have to disclose it. GEORGE GEIS: OK. So Even if I though when
we negotiating upfront that my toy Yoda
was worth $10,000 and that that would be a
fair price for the toy Yoda, too bad on me, right? Because a reasonably
objective person would never-- I don't think--
think that when I was talking about
a $10,000 Toyota, I meant that thing over there. I would think we're
talking about the car. Now that, I hope, for all of
us is a relatively easy one. But it's an application
of the objective test. And I want you all to
finish by just thinking, how do we know that? How do we know that
when we say Toyota it's the car and not the toy? And do we really
expect that courts can do that same type
of analysis, however we know that, in those much
more complicated sets of facts and circumstances and
context that usually arise in any contract dispute? All right. That's enough for today. We'll pick it up tomorrow
with our next case. [APPLAUSE] [SIDE CONVERSATION] TOBY HEYTENS: All right. Hi. Again, my name is Toby Heytens. This is a deeply weird
experience for me for two reasons that I'll
share with you real quick. One is it just
occurred to me that I was sitting in this room on
my first day of law school a long time ago. So this is real weird, the
realization that I was-- the room was not this nice then. So you're welcome. [LAUGHTER] I also have this
vivid recollection that I vividly remember
doing Lucy versus Zehmer in contracts, and I haven't
seen Lucy versus Zehmer taught since I was a 1L because
I don't teach contracts. So that was also kind of weird. There wasn't a
PowerPoint either. So that was exciting. OK. So what I'm going to
do is talk to you-- so we've been talking
about so far-- Molly sort of talked
about preparing for class, and what you just
saw with George was sort of the class part. And so you can
probably deduce this-- the logical structure that
I'm now going to talk to you about is, OK, so class is
over, and now what do I do? What do I do after
the class is over? Because the class is
part of the process, but the class isn't
the whole process. And so I want to talk
through you with that. The single most important
thing I would actually say-- what I want to do is
I want to skip to the end. I want to skip from-- imagine
that was-- that plausibly could be day one of contracts. I want to skip from
day one of contracts to the exam in contracts
because then we're going to work backwards
to talk through how you spend the time
between those two things. The most important
thing-- in some ways, I actually think--
when I'm sitting down thinking about my sort of
fundamental approach here, the single most important
realization to have is that you are not going to
be asked to do that again. The thing that you
just saw is not something you will
be asked to do again. And what do I mean by that? Exams vary tremendously. There will not be a question
on your exam that says, state the facts and the
holding of Lucy versus Zehmer. There will not be
an exam question that asks you to stay
the facts and holding of Lucy versus Zehmer. And it is
extraordinarily unlikely that you will get a
question on the exam that is literally just the facts and
holding of Lucy versus Zehmer. So fun fact-- I actually took
the Virginia bar last month for reasons. [LAUGHTER] And on the bar exam,
on the Multi-State, there's this multiple choice
component of the bar exam. There's a 200-question
multiple-choice test. It is actually the case that
on the Multi-State portion of the bar exam, there
will be some questions that are literally real
cases and asking you what the right answer is. It won't say, this is
Lucy versus Zehmer. But they'll give you the facts,
and if you're a sufficient law nerd who remembers
cases in this way, you may find yourself
sitting in the bar exam in three years going, this
question is just literally Lucy versus Zehmer. This question on the
bar exam that I'm being asked to answer now
is just Lucy versus Zehmer. But you will not be asked to
do that on a law school exam. You will not be asked,
what's the right result in Lucy versus Zehmer? And you won't be
asked a question that is literally just the facts
and circumstances of Lucy versus Zehmer where your
only task on the exam is go, oh, this is Lucy versus
Zehmer and I'll just repeat everything we learned
about Lucy versus Zehmer. What you're going
to be asked to do, what you're going
to be asked to do is to apply what you have
learned to different fact situations. Fundamentally,
that's what you will be asked to do when
you're evaluated on the exam at the
end of the semester. And I'll take a few
minutes here to talk about the different ways that
you'll be asked to do this. But I think it's most
important at the beginning to see fundamentally
what you will be asked to do
almost irrespective of the type of evaluation,
the type of specific question. You will be asked
to apply what you have learned to a different
factual situation. So one way you might
be asked that is what's known as an issue spotter. You're going to hear this. This is the essay. This is probably still
the dominant method of law school exam questions. So you're given a fact pattern. I mean, here's an example. You all took the LSAT recently. Imagine the reading comp
section of the LSAT, and imagine that you're given
a fact pattern of three, four, five, six paragraphs. And then at the end of that,
there will be a question. And it will say-- it could be some
level of generality. It could say, analyze all of
the contract issues raised by the previous six paragraphs. It could be a slightly
narrower question. Under the facts and
circumstances that's given, have the parties entered
into a binding agreement? So that, then, isn't
asking you about damages. That's not asking
you about defenses. But, right? It'll give you a fact
pattern, and then you'll be asked to analyze the
fact pattern in the course of writing some sort of essay. That's probably still
the dominant method of law school exam question. Another approach you might get
is that you might have a fact-- and this is something I use-- you might get a fact
pattern, and then after that fact
pattern, you might be asked a series of
shorter, more targeting questions, a so-called short
answer, where it basically says, analyze this
issue in a paragraph. Analyze this issue
in a paragraph. Analyze this issue
in a paragraph. Now, another type of
short answer question is that you're not
given six paragraphs. You're just given one paragraph. And then you're asked to
do a quick little analysis of that one paragraph. And other possibilities
that you get-- short answer, multiple choice,
fill in the blank. But fundamentally, these are
all the same kind of thing. You're going to be asked to take
some information that you've learned during the
semester and then to apply that to a different
situation than the ones that you've discussed in class. So one variation, by
the way, just a flag-- some of you will remember this
from your study for your 1L exams. I mean, one approach is
to ask a fact pattern that looks a lot like Lucy versus
Zehmer, but it is not, in fact, Lucy versus Zehmer, that I have
changed one or two or three facts of Lucy versus Zehmer. And now your job is to explain
whether those changed facts affect the outcome of the case. So you'll be asked to do that
in a lot of different ways. But what you're
going to be doing is ask to apply what you've
talked about and learned about in class to a
different situation. So here is one
immediate action item. Some of you will have books that
have questions in them, that have practice problems in them. When I do civil procedure-- I'm not doing that
this semester. But when I do civil
procedure, my book has a lot of practice
questions in them. If your book has practice
questions, do them. Do them before class. Go through those
practice questions. And try to figure
out, what do I think is the right answer to
that practice question? One reason to do that--
again, none of you are going to have
me for civ pro, so I'm not giving this away. One reason to do that is
because your instructor might be like me and they
might ask about them in class. So that goes for Molly's
being prepared for class. One reason to do that
is because they might ask these questions in class. But even if they
don't, the value of doing it ahead
of time on your own is that it makes you try to
extrapolate back and think about the bigger picture
implications of the fact pattern that you're reading. So that's what you're
going to be asked to do at the end of the semester. You're going to be asked to
take the facts and circumstances and to apply them to a
different set of situations. And for me, what this does
is it helps illustrate your entire objective
from the moment class ends until the moment
you take the exam. Another thing that you're
going to be asked to do is to combine-- and this isn't just on the exam. You're going to be asked
to do this the next day. So we've talked about
one day of class. But that wasn't the last
day of contracts, right? That was the first
day of contracts, the third day of contracts, or
the fourth day of contracts. And what there's going to be
is a next day of contracts. And I think the single most
important thing that I try to impart, one of the single
biggest challenges that I find in helping people get
through this material-- and it builds off
something Molly said-- these days build on each other. Every single day to
one degree or another builds on every single
day that came before. And one of the sort
of biggest challenges I have and one of things I
encourage you to be constantly trying to figure out how
to do is to realize today is not an island. Today is connected to
yesterday, and today is connected to tomorrow. And so when you're
preparing for and reading the material for
tomorrow, you should also be asking yourself,
not just trying to understand this
material, but how does this material
connect to the material you've already done? And it's not even
necessarily linear. Again, I'll use the
example of the course I'm most familiar with. So people who've had Alexander
had civil procedure with me. So he can attest to this. There's some material that
we do at the very beginning of the semester and
then we come back to in a gigantic way at
the end of the semester. And the last four or
five days of class draw incredibly
heavily on material from the very beginning
of this semester. And that's just because that's
how a lot of legal topics are. They're integrated. There is no beginning,
middle, and end. They're all sort of
a web of material. And so you can't really
understand part of the web without understanding the
other parts of the web. So I think that's just something
mentally to be thinking about, to be asking yourself of the
act of reading and learning, how does this relate
to what we've done? So that's the objective. Now I want to talk you
through three ideas about how you go about doing this. One, this builds
off something Molly said at the end, of
which I endorse firmly. You need to promptly-- and this is actually
vitally important. In order to do as well
as you possibly can, you need to promptly review and
revise your notes post-class. Ideally, ideally,
it is the same day. But I think in order for you to
get the full benefit of this, it is no later than
the end of the week. So one possibility--
and your schedules are all going to be different. You might have a
day that you have three or four long classes. You will not have time
to do that on days that you have three
or four long classes. But what you will have-- I mean, if you have
those days, you also have days that you have
fewer classes, right? There will be some days you
have more classes, some days you have fewer classes. You'll also have these weekends. But I think, ideally, in order
to really get the benefits out of this, this is
something that you need to do on a regular
recurring basis not more than a week after the class. I mean, one approach that I've
heard people using to success is every weekend, you
just sort of go back and you review
the previous week. And you sort of try to
integrate everything that happened the previous week. Let's talk about
what you're doing. So the first thing I think
you're going to want to do is you're going to want to
find some way of integrating what happened in
class to the notes that you took before class. And I'll tell you, as
a 1L, I experimented with a variety of different
ways of doing this. You need to figure out
what way works for you. But so you're going
to have the material you wrote before class. You're going to
have the material you wrote during class. And you want to put those
two things together. And when I say put those
two things together, I mean really two things. One, there's going to be
material from class that wasn't in your pre-class notes. This is the sort of what we
learn after the class material. You want to pay
attention to that stuff. I mean, I think one of the
things about both doing well on the exam but also just
learning the material is picking up on the stuff
that your professor seems to think is important or
mentions or emphasizes, right? Think back about class. Look at your notes from class. Think back about class. What did we really dwell on? What did we spend
a lot of time on? In particular, what
did we dwell on and spend time on that
either wasn't in the reading or was emphasized
much more in class than was my impression
of it from the reading? Do you know what that is? That is a signal that that is
something your professor thinks is important, and
your professor is the person who writes the exam. And your professor
is the person that will be deciding what questions
to ask in class tomorrow and the next day
and the next day. And they're basically
telling you, I think this material
is important. You should pay attention
to figuring out what they think is important. Relatedly, you
should start removing things that were
in your notes that, with the benefit of hindsight,
don't seem like they were all that important. This is going to take a lot
longer at the beginning. In four months' time,
you will look back, and you will think
how much better you are at this after four
months, and after a year, it's unbelievable. But one of the
things you're going to be doing, going through this
process for the first time, it's a process of figuring
out of what is important and what isn't important. So I promise that your
first sets of notes will have a lot of material
that you will go back and look upon post-class, and
you'll go, you know, as it turns out, that
wasn't very important. As it turns out, I
wrote down a bunch of things in my pre-class notes
that literally never came up in class. And now with my understanding
of what happened in class, that material wasn't super
important, as it turns out. You should take that
material out of your notes. Once you've decided
that it's not important, take it out of your notes. The goal here-- we're going to
talk about outlining in a way. But for, me outlining
is a process. It's not an outcome. And part of the process-- there's no contest. It is not a contest to have
the longest outline possible. [LAUGHTER] You're not going to get
a grade on your outline. There's no A for effort in
how long your outline is. I actually think-- when I talk
about notes and preparation material and things
like outlines, how long should it be? It should be not one word longer
than it absolutely has to be. Right? Which means if there's something
in there that's not important, you should take it out. You should remove it. It is about editing as
much as it is about adding. So remove things that
aren't important. And another thing that
you're going to start to do-- this is the third, and I would
do this even in the immediate post-class period-- you want to start moving away
from taking notes for class to taking notes for an exam or
taking notes for the future. So here's a tagline I thought
of that might be helpful for you to think about it. You want to move away from
outlining or briefing the case, and you want to move towards
outlining the material. And the material
is not the case, and the case is
not the material. So in other words,
I'm not going to be asked a question about Lucy
versus Zehmer, the case. But I might be asked a question
about offer and acceptance. We might talk tomorrow in class
about offer and acceptance. And I might be asked a question
about the objective theory of contract, and
I probably will be asked in class in the future
about the objective theory of contract. And I might talk about
intoxication again. So I want to talk about
intoxication and things like that. But moving away from
briefing the case to outlining the material. And so then, this
sort of relates. This is the process. These aren't clearly divided up. But the other thing
that I think you're going to want to be
doing is practice integrating the material. You want to work to
integrate your understanding of the material
throughout the semester. You want to start building your
mental map, your mental web of this area of law. And the individual
days are data points. But the goal is to use
those data points to build the web between the data
points because that's how you're really going to
learn and master this material. And it's how you can be
able to do well on the exam. So here's one very
specific tip that I use, that I always tell people
when I teach civ pro. So you're going to
read future cases. So what are future cases? Future cases are fact patterns. What am I going to be
asked to do on the exam? I'm going to be asked
to analyze a fact pattern in all likelihood. So one of the ways that
I can use future cases is I can use them to review
my knowledge of concepts that the case isn't
technically about. So for example, say
that in a future class, I'm asked to read-- this is
really horrible because I'm going to try to come up with an
example off the top of my head. It's not going to go very well. But so, OK. So there's a famous
contracts case about like-- George, this the mill shaft. Is that Hadley versus Baxendale? So there's a case about where
somebody, like, contracts with somebody to fix the
mill shaft that does grain. I don't know. Anyway, that case,
when you read it, when you read it,
that case, you're going to read it to talk
about damages, right? That's not wrong OK. That's a case about damages. But what happens is, is somebody
hires somebody to fix something for them, and they don't
fix it in a timely manner, and it harms them. And the question is, how much
money should they have to pay? You're going to read that
case to talk about damages. But when you read
that case, there's no reason that you
can't use it to review Lucy versus Zehmer, which is
to say, everybody in this case is assuming-- in Hadley-- that there
is a valid contract between the parties, and the
only question is how much they have to pay. OK. Stop. Why am I sure about--
let's just go through it. Everybody assumes there
is a valid agreement. Why is everybody sure
there's a valid agreement? What does a valid
agreement require? It requires offer. Was there an offer? Well, yeah. Someone brought in
a broken mill shaft to people who fixed mill shafts. And was there acceptance? Yes. People who are in the
business of fixing mill shafts took the broken mill shaft
and said they'd fix it. Does that sound like an exchange
of an offer and acceptance that an objective person
would think and tends to-- yes, it does. But notice what I've done there. In the course of reading
that case, that fact pattern, I've used it to review
my understanding of offer and acceptance from
a previous class. And I think the
discipline of doing that is actually
really valuable, both because it'll help you
reinforce the material you already know, and
it will force you to start approaching
the case the way you would approach a
question on the exam. Because imagine I was given
the facts of that case as a question on an exam. I would then have to
go, was there offer? Was there acceptance? Yes, yes, all of those things. So that's one really
concrete thing. Use the future fact
patterns that your book is going to provide you as a
way to integrate and incorporate your understanding of
the previous materials. A related thing when
it comes to your notes. And this is sort of the
process of outlining. This is how your notes
from a specific day become your notes from a week,
become your notes from two weeks, become your notes from
a month, become something that people will
call an outline. You're going to hear
a lot about outlining. But this is my fundamental
take, that, fundamentally, what you want to do is
to build your knowledge of the entire course. And the way you do it
is you start with a day, and one day combines
into two days, and two days combines
into three days, and three days
combines into a week. And before you know it,
ta-da, you have an outline. So one of the ways I would try
to do it is I would start-- and I would encourage you
sooner rather than later-- don't think about it as an outline. Don't think about that
the goal is to create some gigantic document. Think about, how do I combine
my notes from the last two days? And if you want to start
small, look, use your syllabus. Your syllabus might
say, we're going to spend three days on
offer and acceptance. OK? Your syllabus might
say, we're going to spend three days on contract
and offer and acceptance. So once you've spent three
days on offer and acceptance, your task that weekend
or the next week, let me figure out how I combine
my three days of notes on offer and acceptance into
one set of notes about offer and acceptance. I will try to summarize
all of my notes on offer and acceptance
into a single document. Because another thing
you're not going to be asked to do on the
exam is to say, day 31, what do you remember
from day 31? That's not how an exam question
is going to be working. Right? And so start combining them. And a couple things
I would encourage you to do when you
start to do that. One, don't feel bound by the
order in which you did them in class. The goal here is to put
yourself in a position to do well when you're
evaluated on this material. You do not need to be
a prisoner to the order in which your instructor
chose to do something. George and I were talking
before I came up here, and I've now, like, more than a
decade later, had an epiphany, I think, a somewhat, to
me, counterintuitive, unconventional way my own
contracts class was organized. And I, up until
this moment, did not understand why it was
organized that way. But the point is, just because
you did day one, then day two, then day three does not
mean your notes that put that material
together have to go day one, day two, day three. Maybe you think it makes more
sense to start with day three. Maybe you think it makes more
sense to go three, two, one. Maybe you think it makes sense
to put the material together from the individual days. Because the goal here is for
you to learn the material and for you to be able
to analyze a problem, not for you to outline the
course that your instructor actually taught you. Another thing you need to
do is don't feel the need to include everything. It turns out that in the
grand scheme of things, not all of this material
is super relevant or super important or super
germane going forward. Another thing that I
want to really encourage you to do when you
start putting together the material from
a particular topic is to not just
focus on the facts and not just focus on the narrow
rules, but focus on the themes. This is a sort of big,
practical, big picture takeaway piece of advice. Many of us are not all subtle. We are really, really,
really not subtle. If you pay attention and
you put it all together, you will realize that many
classes have two or three big things that
your professor talks about all the fricking time. And pay attention for that. Listen for that. Listen. Like, this is a riff that I
feel like I have heard before. Or this is a type of a question
that people have heard before. You know, one of
things that I do when I teach civil
procedure is I always ask a sort of big picture
theme question at the end on the exam. And I change it every
single semester. But one of things I always said
and no one has ever come by to disagree with me
after the fact and say, this is a question that if
you've been paying attention to our class discussion
for this entire semester, you should not find this
question remotely surprising. Alexander, can you-- yeah, good. These are all
questions that we've talked about during
the semester, we talked about a lot. And not, like, one
day for half an hour. We've talked a lot about them. So when you're outlining the
material, when you're outlining the offer and
acceptance material, just to continue
with that example, pay attention to the
big picture themes that were being talked about in
that section of the class and include those in your notes. OK. This is another one. Because this is an
integrated, iterative process, I really, really,
really want to encourage you to ask for help
sooner rather than later. Because for me, you're learning
and absorbing of this material is a continuous-- or
should be, ideally-- a continuous process
throughout the semester. That means that if you're
stuck, the time to ask for help is sooner rather than later. What you should not be doing-- I'll tell you what you
should not be doing, and then we'll talk about
what you should be doing. Do not spend the entire
semester compiling a list of 50 questions
that you will go by your professor's
office and ask two days before the exam. That is too late. It is too late to compile
a list of 50 questions that you will go by and ask
one after another, right? The time to ask-- Now, that doesn't mean
you should [INAUDIBLE].. I definitely agree
with the sense this is a professional environment. And one of things
you need to be doing is thinking about and modeling
professional behavior. So there is, in
fact, something-- I'll put it this way. Is there such a thing as asking
too many questions too often? Yes. Yes, there is. [LAUGHTER] But I will say,
as a person, this is sort of your aim
for me doing this. Descriptively, the
number of people who made that mistake
versus number of people who ask too few questions
or ask them to, the ratio is so incredibly skewed
in this direction it is difficult to comprehend. The overwhelming
majority of people that I have taught since I have
been here come nowhere close to this problem. And a huge, huge,
huge number of people are over on this side of it. Ask questions. Ask them sooner
rather than later. I would just say, here
is a social contract between you and the professor. Before you ask the
question, you should spend some time trying to
figure out if you can figure it out yourself. That's just the
decent thing to do. Thanks. So I have never actually said-- since I'm not teaching
you this fall, I won't say it to many of you. The most frustrating thing
that I've never actually said that I would occasionally
like to say to someone is that's fascinating
because the precise question that you're asking me is
answered in the reading, literally. And I don't mean it's implied. I mean literally the
answer to that question is contained in the reading. I've never pointed
that out to the person. I've usually just smiled
and answered the question. But please do make
sure before you ask your professor a
question that the answer to that question is not
contained in the reading. And spend a little
time thinking about it because, actually, one
of the things that's really useful in terms of having
the professional interactions that you're going to want
start having is to say, I think this question
is difficult. Here's why I think
it's difficult. I thought that the
answer might be x. But I don't think the answer can
be x because the problem with x is y. And so now I'm really not sure. I would love getting
those questions. Those questions are
thoughtful questions. They're interesting questions. The person has made some
effort to figure out what the answer might
be, and they're stuck. That's great. That's not only not being
a burden or a problem, that's perfect. That's modeling the kind of
behavior that you want to do. And you want to answer
those questions sooner rather than later. All of us have office hours. One of the things that's most
special about this place, I think you're going to find
this almost immediately, people are around. And people want to talk to you. And people want to help you. Take advantage of that. Do that and do that and do that. I guess I will say
one thing on before I pivot to the very last thing. I have noticed in my
own classes, all of you come from very
different backgrounds. So I went to a small
liberal arts college. The largest class
I had in college was substantially
smaller than the number of people in this room. I think it was 80 people. I think the next
biggest class I had as an undergrad was about 45. And most of them were under 20. And so as a result,
I didn't find the idea of talking
to professors and asking them questions to be
weird because I had spent four years in college doing that. Some of you come
from very different academic environments, different
academic environments where you are used to have classes
with this many people or more people where you're having TAs
and where your interactions are with TAs rather than professors. I just want to encourage
you, legitimately, seriously, absolutely take advantage of the
fact you have three years here where you have the opportunity
to ask questions of lots of really interesting
people with really interesting backgrounds who
really want to help you. But we can't help you if you
don't take advantage of it. So please, please,
please absolutely do that and do it sooner
rather than later. So the takeaways here,
and in [INAUDIBLE] class, you'll notice that I
always say, takeaways. So these are the three. If you remembered nothing else
that I've said over the last 25 minutes, the single
most important thing is that no day is an island. I want you to repeat
this mantra to yourself throughout the semester. No day is an island. No day is an island. No day is an island. The goal is to, as
quickly as possible, start thinking about these
things in integrated units. And you want to start practicing
integrating that material. And you want to start
practicing integrating that material sooner rather
than later because integrating and applying the material
is not only what you will be asked to do in the exam-- it does, and that's
important, of course-- but it's what you'll be
asked to do as a lawyer. This is what lawyers will do. No one will come by your
office and say, hey, what do you think about
Lucy versus Zehmer? It's not going to happen. Someone's going to
come into your office and say, hey, I have
a case I'm working on. And let me describe it to you. What do you think about it? And what do you think
are the hard issues? And what do you think are
the interesting issues? And what other facts
do you want to know before you tell
me what you think the answer to this problem is? That's what lawyers do. That's what you are going
to all be training to do, and sooner than you think. And the third is to ask for
help and to ask for help sooner. Don't put it off. It's going to be
difficult. There are going to be times
that are difficult. One of the things I
often say to people is the most terrifying
words that someone has ever said to me as a 1L is
it's going really well. I think I basically
understand everything. If you find yourself saying
that on the way to law school, that is not a good sign. That is a bad sign. [LAUGHTER] Because a lot of this
stuff is really hard. And if you're thinking about
it and you're wrestling with it and you're grappling with it,
you will find some of it hard. If you don't find
it hard, I'm worried that that's because you're
not digging into it enough. So don't panic when
you find it difficult. I will tell you all, I'm
sure I will teach some of you something over law school. I have a terrifying
story about how a week before my Civ Pro exam. My two closest friends my
first semester of law school, I told them that
there was a concept I needed them to explain to me. And when I said I need
you to explain it to me, I don't mean I need some
specific things explained to me. I need you to start over. [LAUGHTER] Well, in particular,
[INAUDIBLE],, which is the class I teach now. It's like a topic that you will
spend three weeks on instead of twelve. And I said to these
friends, I need you to explain this entire
topic to me from the beginning because I don't understand
a thing about it. So you're going to do great. [LAUGHTER] I think we're going to answer
some questions now, so thanks. [APPLAUSE] INTERVIEWER 1: OK, so
we're going to have some time for questions. Does anybody want to ask me
a question from the audience? Or should we go
out of the question that we've already
gotten from people. Your questions? MOLLY BISHOP SHADEL: Can
you turn the PowerPoint off? INTERVIEWER 1: Yes. TOBY HEYTENS: For those
of you who are facing us, there is a blinding light
shining directly at us. INTERVIEWER 1:
It's fun, isn't it? TOBY HEYTENS: No, it's not. It's like the sun. It's that bright. [LAUGHTER] [INAUDIBLE] INTERVIEWER 1: Also, we have
the three students here as well. So you can ask
them questions too. They are all second
and third year. Well, one's a JD
MBA, so he's kind of a second-ish third year-ish. And the other two
are third year. So they aren't first years. They actually have been
doing this for a little bit. So you can also direct
some questions to them. So I'll just go through some
of the questions that we have. So I'm trying to read my cases. It's taking me forever. How long should this
be taking me to do? MOLLY BISHOP SHADEL: Forever. It's just going to take
a while at the beginning. I don't think these
mics are working, so we're just going to holler. It's just going to take a while. I remember the first few
weeks of law school for me, I had to read everything
at least three times just to understand what
the heck was going on. But it gets faster as you go on. There are these commercial
outlines out there. I am not going to recommend
that you use them in place of doing your own work. You shouldn't. You need to slog through
the material yourself. But if you're reading a case and
you feel like I just don't even know what to look at, sometimes
that can be a helpful thing to go buy a commercial outline,
read their paragraph summary, and then try to read
the case and see, OK, now I get what it was I'm
supposed to be looking for. I might use a product
like that in that way. I would not use it in place
of actually reading the cases. I would not use it in place
of creating your own briefs and then ultimately creating
your own outline for the class. But that can sometimes help
speed up the reading process. INTERVIEWER 1: So
what do I do when I find a dissenting opinion
or a concurring opinion? Do I have to really
pay attention to those? GEORGE GEIS: I think
those are usually a tip-off that there's a
fissure in the case that's worth paying attention to. Many of you probably already
know this, but in most classes the case books that you're
using are not the full opinions. They're edited opinions. And the editors make choices
about how much of the core case to put in and whether or
not to include a concurrence or a dissent if there is one. And so the problem
with those case books is they're super long. Most editors try to pare it
down as much as they can. If there's a concurrence or
if there's a dissent in there, it's likely a pretty big tip-off
of something interesting worth talking about. Maybe this is a
real fissure where the law is at a knife edge
and could go either way. And by paying attention,
especially to a dissent, you can arm yourself with a
good set of counter-arguments that you might want to draw
upon if that sort of a topic actually does become a central
focus of the discussion. INTERVIEWER 1: I want to add
one thing for anybody who has John Jeffries this semester
because this happened to me. He reads footnotes. So read the footnotes
that are in the cases, too, because they're
usually important. And I think most professors do. But sometimes when
you're just trying to read to get
through the cases, you don't look at the footnotes. But look at the footnotes. They're in there for a reason. MOLLY BISHOP SHADEL:
That's because he wrote some of those footnotes. [LAUGHTER] INTERVIEWER 1: So when
should I start outlining? And the students can
answer these questions too. SUBJECT 1: I think it depends. I started outlining around
the beginning of November because at that point
I had a bigger sense of what the class structure was. It was part of the way to
exams that I had enough time to get my outline done. Read over it and print it. SUBJECT 2: There's a fear
of outlining too soon. And this is what Professor
Hayden was talking about. If you don't have a good sense
of the framework of the course, if you don't understand how
the pieces fit together, and sometimes it takes 3/4
of the semester to get there, it's not worth it. It's not worth really diving
into an outline, of course, because you don't understand
all the pieces in the skeleton to try answer your question. So just be [INAUDIBLE]. People will talk about
starting outlining in the middle of September. I think that's
probably something I would avoid because
you don't have a sense of how
everything fits together by the middle of September. So wait. I think at the end
of October or late November is probably
a wise point because you have a good sense
of how the course works. ALEXANDER HOFFARTH: Just
to add, that law school is really individual. So if saying this person has
started to do this already, you should gauge your
own understanding, your own needs of what you
need to outline and how soon. Try to stay away
from, all right, everyone else is
doing something. They're not all doing something. Do what is working for
you and find the way that you can be successful
that matches with what you do. TOBY HEYTENS: So I will
say that the one thing that relates to that, for me, is how
Alexander put his finger on it. He said, until you get
a handle on the course. I think one of the
reasons I was probably someone who, by these standards,
started outrageously early was because it was the process
of trying to assemble a written summary of the course
that itself helps me figure out the course. People do different. One of the things I've learned
about myself over the years is I have a very hard
time thinking abstractly. I have a very hard time
thinking outside the context of applying. And so for me, one of the
ways that I figure out whether I understand
the material is that I try to
summarize the material. And then when I try to
summarize the material and realize that I don't
know how to summarize part of the material, is
the tip off-for me that I don't understand
part of the material. Or that I don't know how
the parts of the material fit together. So one things I
will certainly say about that is I would encourage
you to view this as a process. Again, you're going to hear
this word over and over again. You are not going to
turn in this document. This document is not
going to get a grade. This document, if you create
one-- and I suspect most of you will this semester-- has
one and only one objective. It is the instrumental
objective of preparing you to do well on an exam. That's it. So there was an instructor
a number of years ago who told me if the process
has been done correctly, you could be walking
into the exam, an alligator could grab
it and run away with it and rip it up and throw
it down a storm drain. And it doesn't matter
because by the moment you're walking into the
exam, its work is done. It has no further
function to serve. And so I think that's the
real way to think about it. So you start
outlining too early. You've decided. Some of you will
probably do this. And you decide that
you've done it all wrong. Then you should rewrite it. Again, it's not a paper. You're not going to turn it in. You're not going to get a grade. The purpose of this is
to help you to figure out how to force yourself to
work through the material so you get to the point where
you understand it, I think. GEORGE GEIS: It's related a
little bit, I think, to the way that many professors think
about structuring the class. We all make decisions
when we're sitting down to plan a course of how are we
going to structure this class and how are we going to
try to provide students with both the forest perspective
and the individual tree perspective. And so what you saw
today in our case was an example of
an individual tree, looking too closely
at something. But many of us try to
put a lot of thought into our syllabus
and other things where you also have a little
bit of a bigger forest picture. And I think just to reiterate
what some people have said, until you realize, OK,
I can at least start to get glimpses of the forest
instead of just looking in at the individual trees,
it's not really worth putting a lot of time into
the outlining process. But at some point
you're going to begin to zoom back a little
bit and feel like, OK, I kind of understand how these
things are fitting together. And that's probably
a pretty good tip-off that it might be worthwhile
trying to do some of the things that Professor Hayden talked
about with the synthesis and the integration by working
towards a little bit of a more condensed outline. But there's lots of
different ways to do it. MOLLY BISHOP SHADEL: I
tended to outline at the end. I really did. Because I always found that if
I started to do it too early, I wasn't being choosy. I was just putting
everything in. So it wasn't
helping me learn it. Whereas if I did it at
the end of the semester, it was a way for me to actually
memorize what was going on. And I think that was useful. This is not exactly
about outlines. But some of you guys will come
into class with your laptops. And you will transcribe every
word that is being said. And I don't think that's as
useful as coming in and taking notes on pen and paper so
you're having to pick and choose what you're writing down
because the point of creating the outline is to put it through
your brain so you can get it. I would say the
point of taking notes is the same sort of thing. You're supposed to
be thinking about it and grappling with it
so you can process it. If instead you're just
writing on your laptop, then you're just being a scribe. And you're not actually
thinking about it. So I think those are
two analogous things. If you're doing your
outline too early, you're probably not
actually grappling with it. You're just trying
to put it all in. And that's not
helping you learn it. INTERVIEWER 1: So once
you get to an exam, how should you use your outline
once you're in the exam? TOBY HEYTENS: You should not. MOLLY BISHOP SHADEL: I used
to use it as a double check. But no, you're right. For most of my exams, I wasn't
really using my outline. I had learned it by
creating my outline. So the outline was
to the side, and I was answering the questions. But I sometimes flipped
through the outline. I made a table of
contents for my outline. And so I scanned my table
of contents to think is there any issue
that I forgot, something that I should have
talked about with this fact pattern that I missed. GEORGE GEIS: I was going
to say something similar. I usually advise my students
once you've got your outline and now you're driving
towards the final week or so of preparation
for the exam, you might want to think
about outlining your outline and just really
condensing it down, whether it's a table of contents
or whether it's something else. Some of you might have
heard about something called an attack sheet or
something like that, which I guess is a little bit similar. It's taking your synthesis
of the course via the outline and taking it up to
another level of synthesis where in a very
short, targeted manner you can go down through a
series of questions or issues that you might ask yourself. So when you run
into a fact pattern, you actually can try to
think about let me make sure I'm covering everything. Let me make sure I haven't
forgotten something. Oh, wait a second, I forgot
that there's this intoxication defense in contract law. Oh, yeah, it looks
like there might be a fact on this
exam related to that. And so you might want to
have a one or two pager that you can use
to refer to quickly in the process of thinking about
your answer to a test question. But beyond that, I
really don't think you're going to have any
time to refer to the outline. INTERVIEWER 1: When should
I start studying for exams? MOLLY BISHOP SHADEL: Oh, gosh. [LAUGHTER] INTERVIEWER: Not Tuesday. [LAUGHTER] TOBY HEYTENS: Well, perhaps I'm
a little idiosyncratic on this. I don't really
differentiate studying for exams between
preparing for class and integrating my
material for class. I don't think there's a sharp
division between those two things because I think
that doesn't really work. So for me, the question
is when should I start spending more time? Except you're going to spend-- that's weird. So it's probably the
case you'll spend-- look, you're
starting law school. You're going to spend
outrageous amount of time for the first few weeks. And then you're going to decide
that's crazy and unsustainable. And you'll get better, so
it'll go down a little bit. And then at some point it
starts to go back up again. It's more like the parabola of
work or the inverse of that. [LAUGHTER] GEORGE GEIS: Other student
perspectives on that? ALEXANDER HOFFARTH: I think
it depends on the class. Torts, for example, they
require as much studying as just going over everything,
creating that outline attack. That will help you a lot. For Civ Pro, it was
every day memorizing these statutes for a closed-book
multiple choice exam. It kind of depends what you're
doing and what the goal is. I guess the average
person might start studying after [INAUDIBLE]
mid to early November is the answer that
students would give. But again, it's individual. It's what you're studying for. It's how well prepared
you feel in that class. It's how many notes
have in that class. It's multi-factored. GEORGE GEIS: Put it this way. I certainly wouldn't
invest a lot of time now in worrying about that. As I think Professor Shadel
said, you get in there and you read a case like Lucy. And there's so much
stuff going on. And your just trying to
figure out what matters and what doesn't matter. And I think that's the task
for the first few weeks is just figuring
out how to separate the wheat from the chaff. And eventually, you'll start
to figure that out much quicker and be able to
integrate the things. And then I do think
that there's definitely a season when you get a
little bit closer to the exam. Because I think you want to
put yourself in a position where you've got your outline or
your attack sheet or whatever, and then you can use
that to just take a lot of practice
exams or old exams or actually go through
the exercise of doing exactly what you going to
have to do on the exam. I think that's a valuable
way to study too. So you just want to get
yourself in a position to be able to do that. But that can be the last
month, the last three weeks. I mean there's no one magic
frame when all of a sudden you need to shift over. But you certainly don't
have to worry about it now. MOLLY BISHOP SHADEL:
Right now you're keeping up with the reading. That's your job. You're going to make sure
you get your reading done. You're going to practice
briefing your cases. And by the time you get
to November, maybe that's what you're thinking about. GEORGE GEIS: We have
a question up here. AUDIENCE: My question is, is
there anything, any advice that you now know, now, that
if you were in our shoes that you would wish
you had known then? MOLLY BISHOP
SHADEL: Yeah, I wish that I had known about
how to manage stress. So I did a lot of just
putting my head down and just working with just reading
and trying to keep up. And eventually, I
learned that I was better able to think if I
also made sure to exercise every day, if I made
sure to sleep and eat and things like that. So I don't think I knew
anything about that when I started law school. And so first year law school
I would get sick all the time. And I couldn't sleep. And I'd feel anxious. By the third year
of law school, I was paying a lot more
attention to things like I have got
to go to the gym. I have got to take
a deep breath. And I've got to go out
with my friends sometimes. And so I think that
would be my advice. Think about that. GEORGE GEIS: I think that
you're at an interesting time in your career. I agree with what
Professor Shadel said. I think that there's
lots of opportunities to do all kinds of things here. And you can live a
wonderful balanced life on top of the class. I think it's worth hitting it
a little harder this semester than you sometimes
might have in the past. We're all coming from
different circumstances, but it's worth
investing some effort. We're all here for a reason. And I think really
good things can happen if you do really well early on. I think this is
the type of place where there's going to be great
opportunities for everybody. And so it's not worth
stressing about all the time. But I think that to reiterate
another theme that's come up, there's no one way for
anybody to attack this. Just to talk about
what I did, I had worked for a couple of years
before going to law school. And so for me, it was nice
to be able to come back into an environment
where I had more control over my own schedule. I worked pretty diligently. But I also didn't go crazy. I'd go in and I'd I
take notes in my class. And I'd try to prepare
as much as I could. And then at the end of the
day, I'd go to my computer. And I would actually
type up a synthesis of what the notes
were, along the lines of what Professor
Heytens was suggesting. And then at some point 2/3 of
the way through the semester, I began to think about how do
I take those typewritten notes and then work it
into something that's a little more structured. But there are lots of other
ways that people did it. And to again rephrase
something the students said, I don't think it's worth
getting that hung up on what everybody else
is doing because what works for them might be
perfectly sound for them. But it may not be the right
way for you to tackle things. TOBY HEYTENS: I
would pay attention-- this is something, at least,
I had not thought of enough before I started here. I hadn't worked for a few years. I went straight through. I think it wasn't
until probably 2L or 3L that I really paid attention
to when specifically, when during the day, I was
able to productively work. This is mentally taxing stuff
you're going to be doing. This is mentally taxing reading. And it's mentally
taxing thinking. And again, in some
sense the only objective is to learn the material as well
as you can in the short term, instrumentally, so you
can do well in exams. And in the long term so
that you can actually know the material for your
future lives as lawyers. And something I don't think
I learned until my 2L or 3L year, if I really want to
tackle difficult material what I need to do is I need to get
up first thing in the morning. And I need to start
working immediately. And I mean immediately. Don't shower. Don't get dressed. Go to your desk, start reading
because I'm a world class procrastinator. And I will, if I let
myself do anything other than get up and start
reading, I will find a way to waste two hours of time. And the reason
that that's bad is I've actually learned that my
most mentally productive time of the day is about the
first three and one half hours after I wake up. If I need to get done good
hard thinking, learning, it is the first three and a
half hours when I wake up. I then have to take a
break for about two hours because I'm mentally worthless
between noon and 2:00. I just can't mentally do
anything between noon and 2:00. And then I have a
period of three or four hours where I can think again
well until like 5:00 or 6:00. It's not that I don't do any
work outside those times. But one of the things
I've learned about myself, and I would encourage you to
pay attention to about yourself, my best thinking
and my best learning happens between about 8:00 in
the morning and about 11:00 in the morning. And it happens between
2:00 and 5:00 PM. And so if I'm needing to
learn a lot of materials, I need to wall off those times. And I need to use those times
to be thinking and learning. And again, you should
find out that if I'm going to have lunch
with a friend, if I'm going to go to the gym, I
should go between noon and 2:00 because I am not going to
get any useful thinking done between noon and 2:00. So I might as well not stare
at my computer not learning anything. I should do all the other things
that I want to do with my life. I should then take a break
between 6:00 and 8:00 because I'm not going to learn
anything between 6:00 and 8:00. And then I can work for a few
hours between 8:00 and 11:00 if I have a really busy day. But I think paying attention
to that about yourself and not fighting
that about yourself because the objective
is to learn. And you can't learn
without paying attention to how you learn the best
and when you learn the best. MOLLY BISHOP SHADEL: I think
I want to emphasize something that George alluded to, which
is that your first year ends up being significant. It's kind of a stupid
system, really. But after your first
year of law school, you get these two
semesters of grades, and then you do on
grounds interviews. You guys may have seen some
of the students walking around in their suits. So they're interviewing
for their jobs that will happen after the
second year of law school. And that ends up being this
really important summer job that could maybe turn
into your permanent job. And you're doing
those interviews based on two semesters of
grades, just your first year. It doesn't mean if your
first year doesn't go well, that it's the end of the world. It really doesn't. People can turn this around. But it does mean that if you
are ever going to pay attention to your grades, it's
the first year that ends up being important. And so I would be
thinking about-- I can remember signing up for
activities my first year that were really time consuming. And that was a mistake. It's better to sign up for
activities that are fun and that are going to connect
you with people that you like. But I was doing the court
appointed special advocate kind of stuff, which was an
enormous time commitment. And it was not
appropriate for a 1L. It would be better for somebody
who is later in their career where it's not as significant. So I would say
prioritizing studying for this first year will pay off
for you in a significant way. If it doesn't, if
your grades aren't what you want them to be,
the world is not over. It is possible to
turn it around. Many, many people do. But I would say first
year, pay attention to it.
