Right way.

* NOTE: sometimes very smart, very capable people get hung up on some aspect of the bar exam and end up not passing. You can overcome! But it might take some extra work to figure out what’s getting in your way.

Wrong way.

(2) But don’t study too much. There is a lot of pressure–both externally imposed and self-imposed–to study 24-7. This is not only ineffective; it will exhaust you and undermine your efforts. Set reasonable goals in terms of studying and meet those goals. Do this, and you will be in good shape.

(3) You have to be motivated to pass. Students sometimes complain that the bar exam is a meaningless exercise. First, I don’t think this is true; second, this mindset will not help you as you prepare for the exam. I think the bar exam is relevant. Why? Because lawyers are problem solvers. And the bar exam can be thought of as a challenging problem that you are tasked with solving. Your ability to solve this problem says something meaningful about your ability to tackle challenges in general. Also, you will be surprised how much law you will learn. Most of the details you won’t remember later, but you will have a well-rounded sense of the field, conceptually. And that is a good thing.

(4) You have to be in charge of your own destiny. If you tend to let outside forces interfere with your study plans and then blame those outside forces for your failure to study . . . this is a bad sign. Remember, you are the captain of this ship! As any past bar exam taker will tell you, attitude and mindset go a long way.

(5) You will be amazed at how much you can memorize. There is a very typical pattern with grads where they are simply overwhelmed at the beginning of the study period with the amount of material they need to memorize. A couple of weeks in, they have their study system down and are chopping away at it. By the last few days before the bar exam, you are one with the material. Remember, too, that you are not actually “memorizing” everything. You are understanding the conceptual foundations; you are learning the vocabulary and analysis process; you are memorizing the details of the rules of law. Much of what you will bring with you to the bar exam is understood and learned, not simply memorized.

(6) The best way to learn is by practicing. Yes, you need to read your outlines, listen to lectures, create study materials and review them. But the day of the bar exam, you will be answering multiple choice, essay, and performance test questions. Therefore, you want to emphasize practicing answering multiple choice, essay, and performance test questions.

(7) People generally fail the bar for three reasons: they don’t take seriously the time commitment required for studying; they don’t take seriously the task of learning the specific skill of writing bar exam answers; and/or they have a major life event during the study period. Two out of the three of these are under your control!

We will be providing individualized bar exam tutoring to a small number of law school graduates every bar exam cycle. Our focus is on grads who may have struggled a bit in law school and also on repeat takers, although anyone is welcome to contact us.

I will still be working at DU Law, teaching classes and in DU’s excellent Bar Success Program–the goal here is to make our background and experience available to grads from other law schools and in other jurisdictions.

Check out our website, give us your thoughts, and if you know of anyone who might benefit from our services, please let us know!

http://www.succeedlaw.com/about-us/

My Google images search for “attorney yelling” could not have gone better. Exhibit 1. If you can explain to me the connection between a crocodile eating a python (AWESOME!!!) and an attorney yelling, you will get a prize.

One of the topics I end up teaching students is how to draft a demand letter.  I cover the basics: (1) make a demand; (2) make the demand for a date certain; (3) use the persuasive voice; and (4) document the legal and factual basis for your claim.

While I emphasize that the purpose of a demand letter is to prompt resolution of the matter prior to litigation, I do not generally discuss in depth the distinction between persuasive voice and extortion.  It’s never really been an issue.

Exhibit 2: Lionel Hutz, you are missed.

But now I can point to a counterexample of a demand letter gone wrong.  Apparently, a judge considered this demand letter to rise to the level of extortion:  https://plus.google.com/109385971027097330016/about?hl=en

Whether the implicit threat of revealing salacious details rises to the level of extortion is a tough call, but also an issue that could have been avoided altogether through a more professional, law-focused approach.  (“Law-focused” = focused on your legal claims and the relevant facts that support them–not overblown rhetoric and lurid details.  I mean . . . “see enclosed photo”?–really?)

Remember people: You’re a lawyer–not an agent, not a bully, and not a politician.  A lawyer.  Act like one!

Exhibit 3: During the years I was practicing, I made this face on a daily basis.

Super-Associate! Image from blog.rocketlawyer.com

Sharing some excellent advice from legal writing guru Ross Guberman:

http://www.legalwritingpro.com/articles/F41-tips-for-summers-at-screen.php

Sweet photo from http://www.lgbtqnation.com.

DOMA was enacted in 1996 under the watch of President Clinton (truly the ultimate defender of the sanctity of marriage).  It was passed in the same-sex marriage panic following the Hawai’i Supreme Court’s tentative suggestion that the principle of equal protection of the laws might require states to allow same-sex couples to wed.  In response to this development, Congress rushed to pass legislation with no other purpose than to make certain that, even as states evolved to permit same-sex marriages, the federal government could continue to refuse to recognize these unions.

There are many, many ways to attack the constitutionality of DOMA.  First, it is an unprecedented interference by the federal government in the state-law realm of marriage policy.  Historically, the institution of marriage has been regulated by the states and, barring any unconstitutional regulations (such as laws prohibiting interracial marriage), the federal government accepts the definition of marriage that states elect.  Thus, DOMA represents a significant intrusion into states’ autonomy.  Second, DOMA represents unjustified discrimination against homosexuals.  Whatever may be the traditional understanding of marriage, in 2013, there is no rational basis for allowing heterosexual couples to marry while preventing homosexual couples from doing so.  Third, by excluding homosexual couples who are in all other relevant respects similarly situated to heterosexual couples, DOMA impermissibly expresses bare moral disapproval of homosexuals—something the law does not permit.

But there is another, damning critique of DOMA that has received less attention, and that is the focus of the amicus brief we filed today.  The Supreme Court—which has been ambivalent and inconsistent on so many issues of constitutional law—has consistently held that laws may not punish children for the conduct of their parents.  Thus, laws may not prevent illegitimate children from receiving benefits upon the death of a parent to express moral disapproval of childbirth out-of-wedlock, or in an effort to “incentivize” adults to marry.  Nor may the laws deny public education to children because their parents are present in the country illegally, or in an effort to stem the tide of illegal immigration.  Nor may a family court take custody of a child away from the mother because society disapproves of the mother’s interracial relationship.

The federal government provides myriad benefits to the families of federal employees—benefits that support the adults in those families and that also flow to the children, thereby supporting stable environments in which to raise those children.  Indeed, that access to federal benefits helps children is beyond argument, and is even, oddly enough, one of the reasons given in support of DOMA.

It is an odd reason to give in support of DOMA because DOMA does nothing to enhance the flow of benefits to children; rather, DOMA functions to exclude an entire sub-class of children from this type of support, simply because the children’s parents are of the same sex.

Regardless of whether one thinks it is acceptable for Congress to express moral disapproval of same-sex couples (a proposition I obviously don’t agree with), it is patently impermissible to punish the children of same-sex couples based on that moral disapproval.

There are many reasons the United States Supreme Court should find DOMA unconstitutional.  Its effect on the children of same-sex couples—both in excluding their families from benefits and in stigmatizing their families as lesser than other families—is perhaps one of the most compelling.

The doctrinal superstructure of equal protection analysis is somewhat complex.  However, at the end of the day, there is a limited set of fundamental questions the Court may address to determine the outcome in both of the marriage equality cases currently before it:  Hollingsworth v. Perry and Windsor v. United States.

By way of background, Perry is the case coming out of the 9th Circuit dealing with the constitutionality of California’s anti-gay-marriage referendum, Proposition 8.  Windsor comes out of the 2d Circuit and is one of several current challenges to the federal Defense of Marriage Act (DOMA).

The Court accepted certiorari review in both cases last Friday.

Question 1: Do the Defendants Have Standing to Bring the Appeal?

In both cases, the government (the State of California for Proposition 8 and the federal government for DOMA) initially was charged with defending the challenged law, but, in both cases, the government ultimately declined to mount a defense on appeal.  Accordingly, in California, supporters of Proposition 8 intervened to take up the defense, while DOMA is now defended by a coalition of members of Congress.

It is not clear, however, if such groups can intervene in this way when the government declines to defend a law.  Do such groups have a sufficiently concrete legal interest that confers standing upon them?  In other words, do they have a dog in this fight?  If the defendants do not have standing to bring the appeal, then the Court does not have jurisdiction over the matter and must dismiss it.

Without going into an extensive examination of the law of standing, I would be surprised if the Court dismissed either appeal on this basis.  Although the question plays out somewhat differently in the DOMA case versus the Proposition 8 case, to hold that the executive branch may simply decide to abandon a law that was enacted through the democratic process is troubling, to say the least.   This amounts to a form of judicial process veto for the executive branch over the will of Congress of, in the case of Proposition 8, the will of the people.

Question 2: Do the Laws Survive Rational Basis Review?

Rational basis review is the default standard in all equal protection cases.  It is the lowest level of judicial scrutiny available for such claims.  Accordingly, if a law fails even deferential rational basis review, the Court need not go on to consider whether any form of heightened scrutiny applies.  Alternatively, the Court may apply rational basis review if it concludes that DOMA and Proposition 8 (1) do not rely on a suspect or quasi-suspect classification and (2) do not implicate a fundamental right.  These are the only cases in which heightened equal protection scrutiny is available.

Sub-question 2-A: Are the laws based in unconstitutional animus?  While the Court has yet to offer a unified theory of animus, it has been clear that animus—which could be broadly characterized as an ideology of social-group supremacy—is never a valid basis for a law, and therefore defeats even deferential rational basis review.  If the Court concludes that DOMA and/or Proposition 8 are based in animus, it can arguably invalidate the laws on that basis alone.

Sub-question 2-B: Are the laws rationally related to a legitimate state interest?  The answer to this question likely depends on which “version” of rational basis review the Court applies.  If the Court applies traditional rational basis review, the justifications for each law will likely be judged sufficient—under this standard, even purely speculative justifications for a law are enough to save it.  But if the Court applies a more vigorous version of rational basis review, the defenders of the laws will have to demonstrate that the laws are actually achieving the goals they have set out to achieve, and this will be difficult in both cases, as the means and ends are attenuated.

Question 3: Do the Laws Survive Heightened Scrutiny?

There are two routes to heightened scrutiny (a term which includes both the strict scrutiny and intermediate scrutiny standards): showing that a law is based on a suspect or quasi-suspect classification or showing that the law uses any classification of persons, suspect or not, to interfere with a fundamental right.

Sub-question 3-A: What is the classification at issue?  Many people think that it is self-evident that sexual orientation is the classification at issue.  Even more obvious, in my view, is the fact that anti-gay-marriage laws must rely on gender classifications on their face to accomplish the goal of limiting marriage to opposite-sex couples.  Gender has already been established as a quasi-suspect classification that triggers intermediate scrutiny.  But many courts have rejected the notion that marriage bans are a form of sex discrimination because such bans don’t differentially burden women versus men.  This reasoning is patently wrong in the face of precedent, but there you have it.

It is also possible that the Court could conclude that the laws do not discriminate on the basis of sexual orientation, because no mention of orientation is made on the face of the laws.  However, the legislative history and campaign literature around both laws make it clear that homosexuals were the target of the legislation, so this seems an unwise path.

Sub-question 3-B: Is sexual orientation a suspect classification?  This is kid of the big one.  Some commentators believe that the Court will do just about anything to avoid answering this question in the affirmative, while others believe the time is ripe for the Court to take this momentous step.  There are good arguments on both sides, but I think the question will again come down to which test the Court applies.  Traditional suspect classification analysis is preoccupied with political powerlessness and immutability, while there is a modern trend toward looking at whether the trait is relevant to one’s performance in society.  If the Court focuses on the latter inquiry, I think chances are good that it will deem sexual orientation a quasi-suspect classification.

But this is a thorny issue in any case.

Sub-question 3-C: Do the laws interfere with a fundamental right?  Marriage has long been recognized as a fundamental right.  It would seem obvious, then, that laws regulating who may and may not get married interfere with this right, thus triggering strict scrutiny review.  But, again, in a world characterized by fine distinctions, nothing is really obvious.  The Courts that have answered this question in the negative have reasoned that, while there may be a recognized fundamental right to marriage, that must be read as “traditional heterosexual marriage.”  There is patently no fundamental right to same-sex marriage.

This is tantamount to the Loving Court asking not whether there is a fundamental right to marriage that all citizens enjoy as a matter of liberty and self-expression, but whether, in 1967, society recognized a fundamental right to interracial marriage.

It is simply the wrong question.

Excellent lawyer stock photo.

Dear reader,

I had the chance to chat recently with an outstanding former student who is starting work as an associate at a law firm.  This student described some of the challenges that I remember from my own time as an associate.  With the benefit of hindsight, I shared some thoughts on strategies that I wish I had employed myself (but didn’t).  I’m going to repeat that here along with some wisdom shared by former students.

This discussion may also be relevant in light of the widely circulated resignation memo of one associate who found it impossible to meet the demands of being both an associate and a parent/human being:

Above the law

Please take all of this with a grain of salt.  Everything depends on context, firm culture, and individual personalities.  That being said, here are some recurring issues and suggestions for how to anticipate and handle them:

Challenge:

Multiple partners and senior associates are loading you up with projects; none of them is aware of the assignments others are giving you.

Suggestion:

You may have learned some things about managing your time in law school, but law practice makes much more extreme demands on this skill.  In addition, you are not just managing time—you are managing expectations and you are managing people.  People who have power over you and whom you do not want to disappoint.

The power dynamic in law firms can make it very difficult to set boundaries or turn down work.  But if you say “yes” to everything, this will lead to disaster.  It is critical that you develop strategies for being assertive while still signaling that you are enthusiastic and eager to help.  Being enthusiastic does not mean you have to be a pushover.

I strongly recommend blocking out time in your calendar for every project that you are assigned.  Slightly overestimate the time a project will take (especially because you will not be very good at estimating how long a project will take when you first start practicing).  In connection with this, young associates tend to worry excessively about taking too much time on projects.  Worry about doing a good and thorough job.  If you take too much time, the billing partner can write it off and if they perceive it as a problem, they will tell you.

Use your calendar to review your available time before accepting new assignments.  Saying “I have a deadline that I need to meet by Tuesday, but I should be able to begin working on your assignment after that” is probably better than saying “I don’t have time” or “I have to prioritize Partner X’s project right now.”  But even both of these options are better than saying “yes” when you won’t have time to do a good job.

This way you are informing other attorneys about your workload in an objective, assertive way, without dropping names or coming off as someone who doesn’t work hard.

Also anticipate that once you have met the first deadline for a partner on a project, she or he may expect you to continue working on other projects in the matter right away.  Some partners are good at expressing these expectations while others are not.

For this reason, every time you accept an assignment, be sure to get a firm deadline from the assigning attorney, an estimate of how many hours they think it should take (but don’t feel bound by this—more senior attorneys often underestimate the complexity of projects—but knowing their estimate gives you a guideline for checking in), and whether they anticipate that you will continue to work on the matter after this particular project.

Challenge:

Different partners/senior associates have very different expectations in terms of what they want from your work product.

Suggestion:

Develop a checklist that you go through whenever accepting an assignment.  Obviously, don’t be annoying or heavy-handed about it, but collect a set of the questions you most frequently find yourself asking about the nature and format of an assignment, and make sure you are clear about what you are doing before you start.

DON’T ASSUME.  Don’t ever, ever assume.  I really wish someone had told me that.

You know what I’m getting at here.

Challenge:

You are assigned a project you have no idea how to complete.

Suggestion:

Do not “fake it till you make it”!  Young associates often assume they are supposed to know more than they do, and more senior partners make the same mistakes assessing the knowledge and experience level of junior associates.  Add to this the fact that you may worry about being seen as incompetent if you admit to not knowing how to complete an assignment, and it’s easy to just shut yourself in your office and try to figure it out on your own.

One way to handle this is to say something like, “I’m really excited to work on this project.  This will be the first time I have drafted interrogatories—could you tell me the basics of your approach and maybe provide me with a sample or two?”

You may get pushback for asking questions.  It is still better to persist than to hand in work that does not meet the assigning attorney’s expectations.  Also, along these lines, just as your professors vastly preferred if you prepared thoughtful questions before meeting with them, don’t ask the assigning attorney everything that pops into your mind in your initial meeting.  Get a sense of the assignment, create a list of thoughtful questions (excluding anything you can actually figure out on your own), and schedule a follow-up meeting.

Challenge:

Directions from a more senior attorney conflict with your instincts—about the law, about strategy, or about ethics.

Suggestion:

It is an unfortunate truth of many hierarchical environments, including law firms, that the people at the lower end of the hierarchy are expected to conform without pushing back or asking questions.  In this way, law practice can at times mimic one of the most difficult dynamics of law school—forcing you to abandon your instincts and intuition in the service of what is supposed to be a higher logic.

Don’t stop listening to your gut.  Don’t reflexively follow your gut, but pay attention to it and investigate any rumblings.

Overall:

These tips are not just about preserving your sanity, but also preserving your ability to do your best work.  Being overwhelmed and distracted leads poor work product, poor client service, and yes, unfortunately, ethical lapses.  Many of us became lawyers because we were good at meeting expectations and following directions.  But being a practicing attorney entails a level individual responsibility for your workload and ethical commitments that you likely have not encountered before.  Both of these aspects of your practice will be challenged at some point in time, and perhaps multiple times.  For some of us who have always been “good students,” becoming an attorney involves developing a sort of interpersonal assertiveness and self-direction that may be unfamiliar.  My best advice is to appreciate and embrace the challenge, with open eyes, courage, and integrity.

I welcome your thoughts, disagreements, and commentary.

An asp.

Within a few weeks, the 1Ls will understand what ASP is and why law schools have such programs.  But how to communicate this understanding to the 1Ls today, before they have sat through their first law school class?

“ASP” is also, unfortunately, apparently the name of a German goth band.

(1) One of the important truths about law school is that it is a unique educational experience unlike any educational experience you have had up until this point.  For example, you probably did not have something like an Academic Skills Program in your undergraduate or other graduate school experience.  So what is ASP and why do law schools have these programs?

(2) The views of upper-class students can provide some guidance in answering this question.  I recently spoke with a group of 2L and 3L students, and asked them to reach back in the recesses of their memory to the beginning of their 1L year, and see if they could identify something they didn’t know when they started law school that would have been helpful to them had they known it.  For a few minutes they struggled to remember what it was like not to know what it meant to be a law student and to study law.  (Which is a testament to how thoroughly transformative the first year of law school can be.)

When they broke through and re-connected with that earlier version of themselves, a common theme emerged.  Namely: they wish they had appreciated how different law school would be from their other educational experiences.  Obviously, the substance of what you learn in law school is different.  Less obviously: the way you learn is different.  And the way you are expected to perform–to demonstrate what you have learned–is different as well.

I’ve said it before: in my view, law school is not an “advanced liberal arts degree,” as some claim.  It’s more as if you studied philosophy as an undergrad and then ended up in graduate school for chemistry.  Or if you studied mathematics, and are now suddenly endeavoring to become an expert in Russian Literature.  You can do it, but it is a radical shift to a subject matter and intellectual discipline that is fundamentally unfamiliar to you.

Which is to say that part of successfully navigating law school is to recognize that we are novices in the field when we begin our studies.  Before law school, many of us think we know at least a little bit about law.  We are aware of the legal system and the political system; we are proficient in the English language, which is the operative language of American legal practice; we have read and seen countless portrayals of attorneys and their courtroom antics.

All of this is misleading.  Legal analysis is a unique, extremely precise, and highly disciplined system of thought with its own rules, conventions, concepts, language and values.  Learning so-called “black-letter law” is only the tip of the iceberg.

This is not meant to be discouraging.  Rather, it is my belief that to appreciate the intellectual challenge of law school is to be empowered.

(3)  But even if you agree with all I have said above, you might respond that this has always been true–law school has always been a unique intellectual challenge that students have struggled to grasp and master.  So why are law schools developing academic support programs now?

To make you better lawyers.  There has been a groundswell of criticism of legal education for its failure to produce so-called “practice ready” lawyers–that is, lawyers who are prepared for the practice of law the day they graduate from school.  In support of the goal of graduating students who have a strong grounding in both the theoretical and the practical, ASP has a role in overseeing what skills students are acquiring throughout their legal education and assessing whether we are teaching those skills effectively.  To the extent students feel that they could benefit from additional practice and feedback with respect to particular skills, ASP can provide that opportunity.

To make you better law students.  To generalize, the traditional model of legal education was very much a “sink or swim” approach where expectations for academic performance were not made explicit, and the students who succeeded were the ones who could figure out this “hidden curriculum.”  Progressive models of legal education seek to make the expectations and tools of academic performance explicit, and thus shift the focus to students’ ability to implement those tools.

To support diversity in law schools and in the profession.  We can easily imagine that 100 years ago, law students came from a relatively uniform social, cultural, economic and academic background.  Today, we seek to admit student bodies that are diverse by all of these measures.  With this diversity come different orientations to the intellectual task of law school.  By making academic expectations explicit, and providing all students with the tools to meet those expectations, we level the playing field so that students can be evaluated on their individual merits.

***

So that’s the plan.  Wish me luck!

I read J.D. Salinger’s “Catcher in the Rye” for the first time just a few months ago.  I’m not certain why I didn’t read it earlier.  It’s hard to believe that the book would have still been viewed as “controversial” by the late 1980s, when I was in highschool.  But it may have been, or perhaps there was an entirely different reason it was absent from the curriculum.

At any rate, I can imagine that the book would have affected me very differently as an adolescent than it did reading it now as an adult.  It seems that most adolescents invariably identify with the book’s sullen protagonist, Holden Caulfield, and for good reason.  Holden gives voice to a profound sense of alienation and confusion that resonates deeply with the experience of adolescence, for many.

As an adult reading the book, I was much more focused on the ways in which the adults in Holden’s life were failing him: failing to understand him, to listen to him, to perceive his obvious—if unruly—intelligence.

And as an attorney and a teacher of future attorneys, one passage in particular jumped out at me.  It appears near the end of the book, on the page immediately preceding Holden’s revelation that what he wants out of life is to be “the catcher in the rye”—an adult who looks out for children who are lost or in danger; the exact person missing from Holden’s own life.

Holden comes to realize that he wants to be the catcher in the rye in the course of a conversation with his younger sister, Phoebe.  She is worried about Holden and his malcontent ways, and is trying to figure out what her big brother will do with his life.

Phoebe asks Holden if he might become a lawyer, like their father.  To which Holden replies:

“Lawyers are all right, I guess — but it doesn’t appeal to me,” I said.  “I mean they’re all right if they go around saving innocent guys’ lives all the time, and like that, but you don’t do that kind of stuff if you’re a lawyer.  All you do is make a lot of dough and play golf and play bridge and buy cars and drink Martinis and look like a hot-shot.  And besides.  Even if you did go around saving guys’ lives and all, how would you know if you did it because you really wanted to save guys’ lives, or . . . you did it because what you really wanted to do was be a terrific lawyer, with everybody slapping you on the back and congratulating you in court when the goddam trial was over, the reporters and everybody . . . ?  How would you know you weren’t being a phony?  The trouble is, you wouldn’t.”

What is interesting is that Holden acknowledges that at least some lawyers do what Holden himself wants to do: to “save guys’ lives”; to help people.  But he nonetheless has disdain for the profession, because even those lawyers that do help people are tainted by their class aspirations—their desire to “play golf and play bridge and buy cars and drink Martinis and look like a hot-shot,” or at the very least to appear successful and powerful.

Tool.

Most damning is Holden’s belief that lawyer’s themselves are not even aware of their own motivations, and, indeed, cannot separate out their altruistic goals and their desire for personal and social power.

Part of me thinks this is true.  That even those who desire to dismantle the master’s house have committed themselves to acquiring the master’s tools (as manifested by the decision to go to law school and become lawyers), and through this process necessarily relinquish some understanding of those who are disenfranchised.  More than that, we necessarily come to identify to some extent with the class that has traditionally been empowered to move the levers of the law.

To return to a theme touched on elsewhere in this blog, resisting this impulse requires careful and intentional cultivation of a sort of double consciousness, where you acquire sufficient markers of the professional class to communicate effectively with others belonging to that class, while at the same time preserving the values and wisdom you had before you became a lawyer.