David Blakeley

Age: 36
Undergraduate School: University of Texas - Dallas
Undergraduate Major: Literary Studies
Hometown: Fort Worth, TX
Status: Full-Time Day
E-mail: dablakeley@mail.txwes.edu

11/18/09 -We’re all in wind-down mode now. Classes are officially over next Tuesday, but many of us actually have our last class this week. Some of us are even done with new material and only have review sessions to attend in most classes. I have one more big hurdle to get over before I can settle in to really begin studying for finals – the ABA Regional Arbitration Competition. 

I’m not a competitor. I, along with a professor and a fellow student, am organizing the competition. It’ll be going on at the law school throughout this weekend, and it has been an endless source of agita for me. When I should be outlining, I’m answering emails, fielding telephone calls, or collecting supplies. I wake up in the middle of the night worrying about it. Luckily, so far, I’ve only dreamed about it once, and the dream wasn’t a nightmare. Even worse, my girlfriend’s birthday is Saturday, and I’ll be at the school all day. She took it pretty well, bless her, but I feel really terrible about not being able to spend the day with her.

Still, I’m looking forward to meeting people from the other law schools, and it’s rewarding just to be able to contribute to the school and to the ABA. In terms of study time over the weekend, I figure that once all the teams are in the rooms and the competition starts, all of the volunteers should be able to study for two or three hours until the round is over.

So that will go on through Sunday evening, and then, when the sun rises on Monday morning, the enormous weight I’ve been carrying around will be lifted, and I’ll be out of the blocks on the race to finals. The biggest monster for studying is going to be Constitutional Law. My outline is already fifty pages for that class. Comparatively, my next longest outline is twenty-five pages. All of my outlines are liable to grow over the next couple of weeks, but that gives you an idea of the amount of additional material in Con Law. But, in the immortal words of Sir Lancelot in Monty Python and the Holy Grail, “Ask me your questions, Bridgekeeper, I am not afraid.”


11/11/09 - I off-handedly mentioned that I was skipping my Negotiation class to fly to New Orleans last time, but I realized I had not really talked about that class at all. I’m actually in two negotiation-related classes – Negotiation and Advanced Alternative Dispute Resolution (ADR). The Advanced ADR class is really practice time for the competitive Negotiation, Mediation, and Arbitration teams, although we also have a separate textbook. To get into Advanced ADR you must have been chosen to compete based on the negotiation tryouts from the previous spring. We ADR’ers also have to take the Negotiation class.

A great deal of the time in Negotiation is spent in mock negotiations with our classmates. Each week, we receive one or two sets of facts to review for the next week’s class. The fact patterns have three parts – first, a set of common facts known to both parties, and then, a set of separate secret facts for each side of the negotiation. These secret facts will tell you what your party’s hidden motivations are and suggest limits to what your party will agree to. 

A lot of what we try to do in these exercises is figure out what the other side’s secret facts are. You can do a great deal of that just by making inferences from your own facts. For the most part, these stock fact patterns are written so that there is the possibility of reaching an agreement. However, these agreements can be harder or easier to reach depending on the specific scenario. In some of the scenarios, reaching the agreement is not necessarily the point of the exercise. And each of the exercises is designed to explore one or more particular areas of negotiation, such as “deceit,” “concession patterns,” “estimating your bargaining zone,” “decision trees,” amongst many others.

It’s interesting that, for as much as lawyers are called upon to negotiate, very few of them have actually had any training in its techniques. I’ve mentioned to several lawyer friends that I am taking the class, and they all have groaned, “Oh, I wish I had taken that in law school!” So, I feel fortunate to be doing so.


10/28/09 - I flew to New Orleans for a wedding last Friday.  You know how it is to get on a plane.  There’s a lot of stopping and starting, waiting, backing up, and so on.  The worst part, of course, is the Coach passenger’s walk of shame through First Class.  Invariably, we plebeians are stopped long enough in First Class – waiting for our fellow victims of class warfare to take their seats – to admire the reclining leather chairs and fantasize about the fluffy pillows and downy-soft blankets in which the privileged enswathe themselves for their flight; and to know that our destiny lies elsewhere, beyond the protective bulkhead, where toils a noisome rabble condemned to cramped and stiff seats and coarse blankets.

It was, I say, during my preparation to plunge into the ranks of the damned that I beheld an apparition.  It was no Virgil before my eyes, nor fair Beatrice.  Instead, there, reclining in the regal splendor of First Class, reposed Frederick White, Dean of the Texas Wesleyan School of Law and Professor of Law.  Sure that this could not be, I looked away, but when my eyes focused again, I was sure this was no wraith, but a man of flesh and blood.  “Dean White?” quoth I.

He returned my greeting.  I flatter myself that recognition even flashed upon his face.  I confessed to him that I was only able to make this flight because I was skipping my negotiation class.  I entreated him to not tell anyone at the school.  “I never saw anybody,” he assured me.

With that, the line began moving again, and I passed the bulkhead Acheron, and the walls of Dis closed around me.


10/14/09 - Let’s pick up where we left off – checking citations. The Bluebook is divided up into nearly forty sections. Each section gives rules for a different kind of source. If you’ll remember, we were checking the citations for Marbury v. Madison, so we want the section on citing cases – “R10,” in case you’re wondering. Then we just compare the format of the citation in the Bluebook with the citation in the footnote. If they match, we’re golden; if not, we’ve got to make the correction. We also have to watch for variations like using short forms of the citation for subsequent cites. It is very detail-oriented work.

For each individual footnote, we have to complete a separate work sheet. We have to include the citation the way it originally appeared in the article, then the corrected version if there was an error in it. But we’re still not done. Next, we have to make sure that the source actually says what the author of the footnote claims it does. That’s not always easy. We may very well understand where in the text the author is getting her proposition, but it may not be said in so many words. Sometimes, we may find the proposition on a different page than the author cited, or pieces of it may be scattered throughout the source. Every once in a great while, the proposition is just flat-out not in the source at all. We’ve got to decipher all of these oddities and make comments that our AE’s can follow.

Finally, we’ve got to make copies of the source and mark it up. Still using our Marbury v. Madison example, we print out the first page of the case as well as any pages that the author cites. On each of those pages, we have to indicate the place in the text that the author is citing, either by underlining, or bracketing, or something similar, and write the corresponding footnote number out to the side. After we’ve done all that, we scan it all in as a PDF file and email it to our AE, congratulating ourselves on a job well done.


10/1/09 - Last time I promised you an explanation of Cite Checks, so here it is. I suppose anyone who has been to college has a general idea of what a “cite” – that is, a “citation” – is. A citation is simply a reference in an article to another source where the author got a particular piece of information. Anything can be cited, from books and journals to personal interviews or even films or music. Whenever you cite a source in a paper, you need to acknowledge that source.  In Law Review Journals, you make that acknowledgment in a footnote.

The cite check process starts when we Law Review Candidates (2L students who are new on Law Review are called “Candidates;” I don’t know why) get a spreadsheet. The spreadsheet contains every citation within the article divided up by due date and then by source. So, I turn to the first assignment and find that I’ve been assigned, let’s say, Marbury vs. Madison. Next to the case name will be a little list of all the footnotes containing that citation. As I learned the hard way, not necessarily every cite for your case may be assigned to you. Sometimes, someone else may be working on the same source, but in a different range of footnotes. For tedious reasons I won’t test your patience by trying to explain, but that can affect the format for your own citations.

In any case, my first job is to whip out all the rulebooks of legal writing. At Texas Wesleyan Law, we use the Bluebook, and the Greenbook (in case you’re wondering, yes, the books are actually blue and green, respectively), and finally a smallish list of rules specific to our school’s journal called “Local Rules.” The Greenbook is used for rules to cite Texas materials, but the Bluebook is the big daddy of them all that we use to find rules for everything else. In these two books are the rules for how a citation for any conceivable source should look – everything from type-faces to what sort of information must be included. We first met these formats as 1Ls in our Legal Writing classes, but the sheer variety of possible sources and their quirks can still be a little dizzying at times.

But now I’ve left you with another cliffhanger, “How will our hero use these amazing tools to save himself from the treacherous citations that confront him? Tune in next time to find out!”


9/16/09 - As 1Ls, we are all told we want to be on Law Review. It’s supposed to be a big deal academically and a source of prestige. Yet, I think a lot of us – or at the very least, I can speak for myself – don’t really have a clear idea of what being on the Law Review actually means: Like, ok but what do I do? There are actually several moving parts to the Texas Wesleyan Law Review. I presume, without having any evidence for that presumption, that other schools’ law reviews work pretty much the same way.

As a 2L, we are divided up into small groups, each of which are assigned an article. Each group will proofread an article under the supervision of an “Articles Editor” (AE, for short). The Articles Editor goes through the article and divides the text and the footnotes up into more or less coherent chunks which he or she (my AE is a she) then assigns to the group members.

When we first get the article, we do what’s called a “Technical Edit” (TE, for short). We each get a few pages of the text and are responsible for looking for two things. First, we have to go over our pages for mechanical errors – spelling, punctuation, grammar, even making sure that quotations conform to the source material. That’s pretty easy, but the second part can be more difficult. The second part is reading for stylistic problems. Sometimes that is pretty clear cut, but other times, it really is a matter of preference. I might think that breaking up some compound-complex sentence into one simple sentence and one complex sentence would be better; but someone else may argue that breaks up the logical flow. 

Ultimately, the Editorial Board makes those sorts of determinations. Really, both parts of the TE are one thing. Choices in grammar and punctuation often blur the line between rule and style. My job is just to catch definite mechanical errors and then point out places where I think a re-write would help, and make a suggestion or two as to what might work better. 

After we finish with that, we start the Cite Check process. I’ll tell you about that next time.

9/2/09 –The textbook for my Constitutional Law class was listed on the syllabus as Constitutional Law, 3d Edition, by one Erwin Chemerinsky.  So, I ambled into the bookstore and found a giant stack of big red books entitled Constitutional Law. 

I dragged my weighty purchase home and read the first assignment, pages 1-34, but was left with a sense of unease.  Page 34 wasn’t a logical place for the assignment to end.  I consulted the name of the author on my textbook.  I compared it to the syllabus.  I checked again.  The authors were not the same.

So, I arrived at school early on the first day and went back to the bookstore.  I found that I had indeed bought the wrong book.  No matter, I thought, I’ve got plenty of time to read the 34 pages before class.  I compared the author, title, and edition.  Check.

I went to the library and again read pages 1-34.  One thing still puzzled me – there were no cases in the book, it was all just explanations of the law.  Putting my worries out of my mind, I headed to class.  I walked in and saw that everybody had a big red book on the table before them.

As it turned out, I had bought the supplement, not the actual textbook.  The textbook had, indeed been a big red book, just a different big red book than the last one I bought.  So, I sat down, comforting myself that I had at least not highlighted in the supplement.  I would just return it after class and get the right book.  But then, of course:

“Mr. Blakeley,” called out the professor, “will you tell us about Marbury vs. Madison?” 

Aw, you’ve got to be kidding me. 

I tried gamely to talk about the case based on the references to it in the supplement and my hazy recollection of it from an undergrad Constitutional Law class, but I had to eventually break down and confess I did not have the book.

After class, I went back to the bookstore, swapped out books and read, yet again, pages 1-34.  I hope to never have to do so again.


8/26/09 – I came up to the school last Friday, and I was surprised to see that the parking lot was full. I ended up in the elevator with another student. I asked him, “What’s going on here today?”

“1L Orientation,” he said.

Oh, yeah, I had forgotten. “Are you a 1L?”

“Yeah,” he said. “It’s all a little overwhelming.”

“Don’t worry,” I replied. “One thing I learned was that the school’s pretty good about telling you what you need to know by the time you need to know it.”

He seemed at least mildly relieved to hear that. I smiled to myself as I walked out to the parking lot. Just a year ago, I was the flustered 1L who had been glad to get an encouraging word from a student ahead of me. Paying it forward, don’t you know.

It’s easy to start your second year with at least a little swagger in your step. You made it. You survived the 1L year – not everybody does. You know how the classes are formatted; you know the campus, the staff, and you’ve had an opportunity to make friends out of the strangers you started off with a year ago. If you’ve taken some summer classes, you’ve even already moved out of your lockstep classes into upper level material. You start to see how those first year fundamentals play out in particular areas of law.

Nevertheless, the 2L year offers a new set of challenges. Personally, I’m trying to learn my way around Law Review, and soon, Alternative Dispute Resolution. I’m on the Board for P.L.A.Y. (Presenting Law Activities to Youth), and continuing to serve as a Student Ambassador and writing this blog.

Take all that and add Constitutional Law, Agency & Partnership, and Criminal Procedure, and it looks like I’ve got a pretty full semester ahead of me. I’m sure I’ll be blogging about all this stuff and who knows what else. 

The confidence of the 2L can be dangerous, though. When we pick up next time, I’ll start with the disaster that was my first day of Constitutional Law. 

5/20/09 - This will be the last entry that my fellow bloggers and I will be turning in for the year. It is a marvel how quickly the year has flown by. Upper level students have been telling me that the hardest part of law school is now over with. That may be, but I fear the temptation to relax and congratulate myself on a job well done.

A lot of we lawyers-to-be are Type-A personalities. It’s often difficult to tell ourselves to relax a little. If I sit on the couch and watch a movie, I feel like I’ve wasted an opportunity to advance myself in some way. It might be professionally, it might be spiritually, it might be as simple as cleaning the cat box. But that time is gone, and the opportunities latent within it are gone or have been deferred.

In my summer class on Monday night, someone mentioned that usually summer classes start after a week off. I found myself glad that we had started right back up. I would have sat around the whole week feeling restless. Sure, I’ve got projects and chores around the house, but I want to stay in motion in school.

In law school, you’ll win some and you’ll lose some. But as long as you keep your head down and keep working, heedless of success or failure, it will be over with all too soon.

5/14/09 - I have an incredible feeling of accomplishment for making it through the 1L year. All of my friends have already been asking me how I did on my finals. The weird thing is, it’s really hard to know. I’m sure I answered the questions pretty well - but, did I answer them better than my classmates? That’s hard to say. And it really matters. We are, after all, graded on a bell curve.

It seems that a couple of our professors took us a little farther afield than they did the first semester. On at least two of my tests, I found myself saying, “Wait a minute, did we cover this situation in class?” For a moment there’s panic. During one test, I actually sat there for about five minutes, my mouth agape, before I could begin working on a particular portion of the essay. But, then, suddenly, the proper approach to the problem came to me in a flash. The only question is, did I analyze it correctly? Or did I go in entirely the wrong direction? I won’t know until we get our grades back.

I hardly have time to even think about it because I start my summer classes on Monday, and I must be looking forward rather than looking back.

4/29/09 - Last Friday, I took part in the Alternative Dispute Resolution intramural competition. As an undergrad, I competed on UTD’s mediation team, but this was a negotiation competition. Although the dynamics between the parties were different, the idea was basically the same. You are given a negotiation problem to mull over for a week or so, and then, on the day of the competition, they assign you a side in the dispute and hand you a set of secret facts that the other side doesn’t know. These facts reveal a secret weakness in your case, or maybe what your party really wants versus what it is willing to accept.

In mediation in undergrad, the competition takes the form of three teams of two competitors each – one team mediates and the other two teams take the place of one party or the other, with one member playing counsel and the other playing client. In the negotiation, though, there’s no mediating party and no client. You and your opponent just sit down and have at it.

It was actually a lot of fun. I thought that my opponent and I put on a good show – and I think there is an element of showmanship to it. One of the judges said that she thought it was the most realistic negotiation she had seen all evening. Sadly, that apparently wasn’t enough to win (in this context, winning being defined as being selected for a spot on one of the traveling teams for next year). That’s OK, it was a great experience and, hey, I’ll just try again next year.

4/22/09 - One of the requirements for graduation is 30 hours of pro bono work. I began accumulating my hours this last weekend at Cook Children’s Hospital on Friday and at Teen Court in Crowley on Saturday. I really had a great time doing it.

At the hospital, we set up a little mock trial exercise for some of the kids. The fact situation in dispute was the Goldilocks story. The kids kept us laughing the whole time.

Teen Court is somewhat a more serious business. If you aren’t familiar with it, Teen Court is an alternative to criminal sentencing that juveniles can take part in when they plead guilty to misdemeanors. The Teen Court penalties usually involve community service hours, serving on a Teen Court jury and perhaps participating in counseling or whatnot. The sentence is decided by a jury of teens, and the case is argued by teen advocates. 

We got to spend Saturday working with those advocates on preparing for a case they had coming up. Both of the kids were smart and motivated, and it was really gratifying to get to pass on some of what I’ve learned this year to teenagers who may follow behind me. So, I had to sacrifice some study hours on Saturday, but it was more than a fair exchange. 

When I started school, I was worried that the pro bono requirement would just be a distraction from my studies. What I found is that it is really another opportunity for me to learn.

4/15/09 - The Texas Wesleyan Law community offers many opportunities to become involved outside of the classroom. So far, I haven’t taken advantage of very many of them. So far, I write this blog, I am a student ambassador and a recent inductee into Phi Delta Phi. That’s it. I know that I have a tendency to over-commit myself, so I wanted to make sure I didn’t make obligations to organizations that I could not fulfill. Nor did I want to find that my grades suffered because I was running from meeting to meeting. So, I’ve just kept my head down and focused on my coursework.

I’m sure this reticence has hurt me in some ways. For example, I have not applied for any summer internships. As a consequence, a number of my classmates have positions to work in law firms this summer, while I do not. It has also caused me to miss opportunities to network and grow closer to more of my classmates and to the legal community outside the four walls of the law school. 

Still, I don’t think I chose poorly in being cautious. One has to know one’s self. But, I think I’m ready now to begin taking on these extra obligations. With finals only a couple of weeks away, carving out time to do pro bono work or to try out for mock trial or ADR teams seems a little daunting, but I’m finally resolved and ready to make those extra efforts.

4/8/09 - We had our final major writing assignment - not only for the semester, but for the year - due last week, and it absorbed every waking hour I was not in class for the past couple of weeks. Of course, as soon as I turned it in, I noticed four errors. I have been having mild anxiety attacks ever since, contemplating how these mistakes will damage my grade. Helpful friends and loved ones have tried to cheer me up by telling me that it’s no good worrying about it now. That doesn’t help very much.

So, I tried to reward myself with a relaxing weekend, and except for the periodic knots in my stomach whenever the paper would occur to me, I did take it pretty easy. I made it out to Dallas Blooms at the Arboretum on Friday, went to Scarborough Faire on Saturday and had a couple of dinners out with friends.  The only school work I did was my readings for Monday.

So, now begins the final push. We have two more weeks of classes and then finals. We have to do an “oral argument” based on our writing assignment in our legal writing class this week. I will be the first one to go since my last name is at the top of the alphabet. Other than that, it’s just time to wind down the semester and hit my outlines to prepare for the finals. 

4/1/09 - I realized yesterday that I have not really written at all about our academic support group. Before I do so, I need to back up a bit. There are two sections in our class - I am in section 1. The whole section has all of our big, doctrinal classes together. That section is further subdivided into Legal Writing sections of about 20 people. Our academic support group is the same as our legal writing group.

The idea is to have a 2L or 3L student who can serve as a sort of mentor for the 1Ls. My group meets directly after our legal writing class on Tuesdays.  Particularly at the beginning of the fall semester, I found these meetings profoundly helpful in becoming oriented with the expectations of law school.  Over the course of the fall semester, we covered outlining, study habits, and how to format exam answers. This spring, we have spent more time on multiple choice question strategies. Academic support has even been helpful in terms of schedule planning for next year, when we started making decisions about the classes we will take.

Academic support is not without its frustrations, to be sure. For one thing, it gets really hard to make it to the sessions in the last couple of stressful weeks before turning in a writing assignment. Some of my classmates pretty much blow it off entirely. But for me, sacrificing the time has been worthwhile in the end.

3/25/09 - I was looking over old journal entries and noticed that I had resolved to do a better job of keeping up with my outlining. I have actually done that. I think all of my outlines are caught up through spring break. Unfortunately, I have noticed that doesn’t mean I’ve learned the material. 

Law school is sort of like going to a cafeteria. You get your little tray and just go down the line and fill it up – some almond fish, some green beans, a nice dinner roll, maybe a slice of chocolate pie. Taking notes is just the filling up your tray part. You’re going to have to go back periodically and get another tray. If you don’t sit down and eat what’s on each tray when you get it, you’re in trouble. The trays just stack up until you can’t possibly eat all of it at one sitting, and its cold, and you’re not even sure what some of it is anymore.

But eating the food isn’t the end of the job. You have to actually digest what you’ve eaten. What I’m finding is that outlining is not the digestion part. Au contraire, to outline is only to chew and swallow what’s on your plate. With food, it is in the stomach that the real work begins. The food must be broken down and turned into something your body can use. Similarly, you have to internalize what is in the outline and break it down before it becomes something your mind can use to sustain your life as a 1L.   

3/11/09 - Just to prove we can find the law rearing its ugly head in all sorts of contexts, I noticed a contracts problem in “Star Trek: The Next Generation” last night. One planet (Planet A) was supposed to deliver medicine to another planet (Planet B), but would not do so, claiming that they hadn’t been paid. Now Planet B claimed they had paid for it. I was puzzled that Captain Picard didn’t seem to think making a factual determination on that issue was important, but that was probably because he was only mediating. He couldn’t actually tell them what to do, what with the Prime Directive and all.

Anyway, as we are watching this drama unfold, I turned to my girlfriend and observed that this dispute would be easy to resolve under the common law. Whether or not the Planet B had performed its half of the contract by paying for the medicine, Planet A was not excused from performing its half of the contract by supplying the medicine. However, if the Uniform Commercial Code has force of law in Starfleet, then Planet A would not be expected to provide it unless Planet B was ready to cough up the cash or goods or however they paid.

I observed, in closing, that judging by all the contract case law I’ve read, a judge would probably figure out some loophole to get Planet B its medicine no matter what the UCC said. 

My girlfriend just rolled her eyes. 

3/4/09 - Sometimes, I find myself surprised to learn that my classmates and I seem to have actually absorbed some of the information that is being poured into our heads. This is especially true in Property. That class is pretty esoteric in a lot of ways. It’s not as nuanced as, say contracts, and is more rooted in the physical world than the rules we learn in civil procedure, but the terminology is very specialized, and it has a lot of “moving parts.”

The last half of our first semester was especially challenging – estates in land and future interests, it’s called. One meets all manner of odd folks – O and A, and B, and all their alphabetical kin – who seem to never tire of “conveying” (that’s selling or giving) two imaginary properties, Blackacre and Whiteacre, to each other in a dizzying variety of combinations, such as “O conveys Blackacre to A for life, then to B for life, then to C if he has reached the age of 21, otherwise to D and his heirs.”

Understanding the origins of the doctrines often requires detours into the history of feudal England where you transferred property by handing over clods of dirt in a ceremony called “livery of seisen.” From these humble origins arose a system of “fee simple absolute,” “life estate,” “fee simple subject to condition subsequent,” “contingent remainder,” and a handful of others.

When we began studying this material, I bet I was not the only one who despaired of learning all this nonsense.  Yet now, my classmates and I seem to drift easily through these concepts and can synthesize them with this semester’s material of mortgages and deeds, landlords and tenants in a way that is really a little breathtaking. It gives one a little hope that we might all turn out to be lawyers.

2/25/09 - Saturday found me visiting with a couple of friends at their palatial house in the suburbs. Talk turned, as it often does in my life, to my law school career. My buddy’s brother asked me what sort of law I was interested in. My immediate response was, “Whatever kind of law I can find a job in.” But I added that health law was what drew me to law school to begin with.

He responded, “Well, as long as you don’t want to do criminal defense. Otherwise, this conversation would be over.”

“I’m a cop,” he added.

The gist of the conversation that followed was that he disliked that criminals whom he knew were guilty sometimes escaped punishment because the defense attorney was more persuasive than the prosecution. After all, he reasoned, he knows that everyone he arrests is guilty. 

While it is probably true that most of the people who are arrested are, in fact, guilty, that’s not always so. Just ask the Wesleyan Innocence Project. In any case, I have no grounds for disputing what he knows or doesn’t know about the people he arrests. 

I only reflected later that we don’t offer those accused of crimes access to a lawyer based on whether or not they are good people, but rather because we want to be a just society. Justice requires that we act equitably not to benefit offenders, but because our right to administer justice is predicated on the presumption that we are just.

2/18/09 - Today is memo crunch time. It’s due tomorrow. It’s all anyone is talking about or thinking about. I have hit this memo with more resolve than either of the ones we turned in last semester. I have taken each paragraph, pasted it separately into a different document and then broken up each paragraph into individual sentences. That way I’m only looking at one sentence at a time, just looking for nominalizations, passive voice, convoluted wording and errors in tense shift and punctuation. I don’t usually have many mechanical errors, but I think I’m particularly prone to nominalizations, florid prose and passive voice sentences.

My propensity for these cardinal sins of modern legal writing arises from reading too much nineteenth century literature. I blame the modern master of the overwrought sentence, H.P. Lovecraft, most of all. Law school has only aggravated the problem because law students are fed on a steady diet of legal opinions that all too often are stuffed full of exactly the legalese that our professors are simultaneously trying to beat out of us.

I must admit though, when one does come across a legal opinion of more recent vintage that was obviously written by a judge committed to “plain English” in legal writing, it is a joy to behold.  It really is a breath of fresh air and seems alive and vigorous compared to its stodgy companions in the casebook.

2/11/09 - “Ignorance of the law is no excuse,” so the saying goes. As we’re learning in criminal law, while that’s not strictly true, most of the time it is correct. From what I’ve culled from class discussions and case book reading, it seems to me that there are two kinds of criminal laws. 

First, there are the laws based on the “thou shalt nots” – killing, stealing, raping, etc. These might be characterized as “natural law” or “everybody knows you can’t do that” kind of laws. The second kind of law can be thought of as “administrative law.” Some of these laws are expected to reduce certain kinds of crime – like not allowing guns where alcohol is served. Others may be intended to allow the judicial system to keep an eye on known offenders (such as sex offender registration requirements), or to simply make it easier for the judicial system to administer justice (everything from “failure to appear” citations to perjury or even resisting arrest).

Ignorance seems to be an insufficient excuse for “thou shalt not” laws. Whether we believe such laws were handed down from on high or are the product of evolutionary biology or social stresses, they reflect bedrock values that seem more or less common to all civilizations and legal thinkers from Hammurabi to Blackstone. However, I have to question whether we are wise to exercise a similar intolerance to ignorance of the great welter of administrative laws that sprawl through our cities, coil through our phone lines and have no cognizance of how bewildering is their omnipresence.

2/4/09 - In criminal law this past Monday, I managed to shock at least half of the class with the simple observation that I didn’t necessarily buy into the idea that “a child’s life is inherently more valuable than an adult’s.” I heard an actual collective gasp behind me. One of my classmates rather agitatedly informed me that I was missing the point of the argument. Another told me that I only said that because I hate kids.

To the latter, I merely responded that ad hominem arguments are a logical fallacy. To the former, I pointed out that, as we were talking about the issue of a failure to render aid, the comparative advantages of an adult over a child are irrelevant if they both would have ended up dead under the stipulated facts.

Now, to some extent, I made this comment out of a lamentable character flaw of mine that I rather enjoy saying the shocking thing. Actually, I think I do have a number of quite reasonable arguments why adults' lives are equally, if not more, valuable than children’s lives, but that’s all beside the point.

The point is that even here in law school, I find that people have difficulty seeing outside of their value systems and beyond their emotional attachments. It seems to me that this is a dangerous limitation for a lawyer, and I tend to think that the reason a given opinion is shocking to our sensibilities is not because it is false, but because it could be true. 

1/28/09 - In our civil procedure class this semester, we’ve been assigned an extra text, The Power of Procedure: The Litigation of Jones v. Clinton. We had to read the first chapter this week, and I have to say that I am totally fascinated by it.  I am just the right age for this book. Roe v. Wade happened the year I was born, so obviously I don’t remember anything about it. At the other end of my life, Bush v. Gore came too far into my jaded adulthood. But Jones v. Clinton was right on the cusp of my growth from adolescence to manhood. It was a scandal involving the first president I was old enough to vote for, and it illustrated for me that being a good leader is not necessarily the same thing as being a good guy.

From a pedagogical perspective, the book lives up to its name in terms of illustrating why procedure matters, and how a lawyer can use it to either win or lose for his client. It also allows the reader to see through the lens of history that decisions which might seem to benefit your client can turn out later to have been terrible miscalculations. In particular, there was an early settlement offer that would have only required Clinton to have made a statement denying any wrong doing on Jones’ part without even incriminating himself or requiring him to pay any money. As Hunter tells it, “the deal fell through.” This settlement might have ultimately prevented the President of the United States from facing impeachment proceedings.

1/21/09 - My optimism and energy from this time last week has soured a little.  For some reason, this weekend sorta took the wind out of my sails. I went into the weekend planning on getting all of my outlining from last week done, getting my reading accomplished through the end of this week, and having my online citation practices knocked out a week before the Friday due date. Somehow, I just never got going. It was a little frightening to roll out of the rack after a three-day weekend and realize that all I had gotten accomplished was my readings for my morning class.

The assignment for our next memo will be posted today. Law school has, in a short space of time, totally demolished my attitude toward writing. As an undergrad, I looked forward to writing assignments as an opportunity to express myself, and I looked forward to getting my papers back and basking in the customary litany of praise I received. I simply dread getting my papers back now.  I had my final memo back for two weeks before I could even open the cover page (which, by the way, informed me that my margins were .97ths of an inch instead of 1 inch). I’ve tried to maintain a good attitude, but as someone who is unused to such criticism, I’ve really gotten depressed about it. I like to think I’m open to criticism and improvement, but when you look back over your 20-page paper and there is not a single positive comment, it can be pretty traumatic.

1/14/09 - Howdy. A new semester has begun, and I am glad to be back. I’m still shaking off a couple of cobwebs, but slipping back into the textbooks feels easy and natural. There’s a rhythm to studying and going to class. At the end of the semester, my body and mind tried to perpetuate the rhythm, but it’s like running off the edge of a pool; your legs keep moving, but there’s no support. Getting back to class is like finding the ground placed back under your willing feet.

For those who wonder what grades I got ... well, I’m not going to say. Except to say that my grades were better than average, but they were not stellar. I definitely am not disappointed by my grades, but they need to improve to match what I believe I am capable of. This semester, I’m definitely going to make it a point to keep up with my outlines better. I spent several days of my pre-finals week just trying to finish up the outlines. I wasn’t really behind, but I’d like to end this semester with no more than a couple of weeks of notes to boil down.

12/17/08 - The semester is winding down, and we only have one more final to face. It’s hard to say how I have done. Most of our tests had a split between essay and multiple choice questions. I was more nervous about the essay portions, but in practice, I found the multiple choice more difficult. In an essay, if you come to a sticky point, you only have to discuss both sides. If you come across that same point in a multiple choice, you really have to consider the fine shades of distinction and come up with the one decision that is better. The tests are fairly grueling, the four-hour torts exam particularly so, but the feeling of elation once they are done makes it all worthwhile.

Believe it or not, I don’t think that whatever success I’ve had is due only to studying hard. I think most of my classmates and I had the broad outline of the material firmly ingrained in us by the end of the semester. Ideally, studying for finals is really just sort of a refresher, a way to keep the details in sharp relief.  For me, this finals period has much more been about rest, nutrition, and recovering from the semester. Since I’ve been off of the train for almost three weeks, my ceaseless sneeze and cough has gone away, and I feel better than I have since September. I think all this other stuff is just as important as the many hours I am spending cramming for the tests.

11/19/08 - I usually try to stick to one theme for each blog entry, but for this one, I just wanted to get out a few observations as the semester winds down:

1) My Legal Writing professor was admonishing us the other day not to use phrases with “be” in it more than once, such as “will be thought to be” or “likely be determined to be.” So, I unsheathed my rapier wit and quipped, “So, two ‘be’s’ is not to be!” A classmate was kind enough to suggest my pun good enough to record for posterity here. Never let it be said that I don’t take good advice.

2) Sometimes, you really want to follow up on cases referenced in notes in your books. How about a college debate team coach who kills one of his students? I’ve got to know why.

3) I’ve noticed an elderly gentleman who rides the train between Dallas and Fort Worth. The best I can tell, he rides that train every day, all day. He seems to simply have nothing else to do.  When the train comes to each end of the line, he gets up and perambulates about the train and platform before coming to rest again for his next trip. I was waiting for the train one day, and knew that he was coming up the aisle behind me, because of the steady, patient cadence of his cane striking the floor with every alternate step – I, another Ishmael, listening to the peg-legged rovings of this Ahab over his strange Pequod. I wonder what creature of the deeps haunts his thoughts.

11/12/08 - Law school is stressful. That’s a fact. Much, much more stressful than undergrad, and even more stressful than any job I’ve had – and I’ve been a bill collector, in one form or another, for most of my adult life. When you argue with people about money for a living, you get used to a certain amount of stress.  More importantly, you develop techniques and attitudes for alleviating stress. I’m usually not very susceptible to any noticeable effects of stress.

But the stress is definitely getting to me. It has manifested itself in my just being constantly sick. I haven’t been really sick in the previous two years, but I’ve been sick most of this semester. It’s never anything definable – just a sniffle, an intermittent cough, which seems to vary in intensity, but never really goes away. I was pretty ill all of last week, to the point that I stayed home last Monday.

The problem with being sick, beyond the obvious, is that it interferes with your studying. It’s hard to concentrate in class when you’re on antihistamines or your throat screams at you every time you swallow. On the other hand, the demands of school prevent you from getting well. You can’t really just rest and recuperate.  So I’ve just stayed in this twilight world between health and sickness. While looking beyond our impending finals is a dangerous distraction, I can’t help hoping that getting to the winter break will give me a chance to truly recover.

 

11/5/08 – I came into law school expecting many things. I expected a heavy workload, high expectations, and stiff competition. I expected to spend lots of money on books and tuition. What I did not expect is the many ancillary expenses and time drains that I’ve had to address as a 1L. I thought I’d mention just two of them.

First, there are bar review courses. So, in September, just as you’re getting used to the fact that you just spent $700 dollars on books, and god knows how much in tuition, you’re being pressured with the “act now to lock in your rate” bit, to sign up for one or both of the major review courses for the bar test that you’re going to take in three years…if you make it through school. Oh, by the way, doing this is going to set you back a couple of grand.

Then the state wants you to fill out a “Declaration of Intent to Study Law,” so they can stick their collective noses into your business with a background check. So in October, when you should be working on your outline for property, you’re spending your time notifying references, filling out personal history forms, and ordering a copy of your credit report. Oh, by the way, that’ll set you back another couple of hundred bucks.

I am only saying that it seems unreasonable to me to distract 1Ls from their studies for this stuff (today was fingerprinting, by the way) so early in their law school career.

10/29/08 - I’ve been a little reticent to talk much about how I approach studying.  Mostly because I don’t know if I’m taking the best approach to it. God forbid that some 1L come up to me a year from now and say, “I tried studying the way you talked about in your blog, and I’m ruined!  RUINED!” I can tell you that I’m definitely not studying the hardest. A buddy in my class told me that he studies all weekend, only stopping to take bike rides, and while he’s riding his bike, he’s listening to audio lectures on his headphones. I’m definitely not making such heroic efforts.

I watch the Cowboys each Sunday, have dinner with my girlfriend on Friday, and may even go out Saturday night as well if something special is going on. I study a lot, but I think you can reach a point where the law of diminishing returns kicks in. If I study for six or eight hours on a Saturday during the day, I don’t think sacrificing a few hours on Saturday night to shoot pool is going to get me thrown out of law school. I have, however, seriously curtailed my drinking. I have gotten to where I pretty routinely limit myself to a beer with dinner on the weekends, or no more than two if I go out to a bar. I can’t afford to not feel good the next morning. It could be that feeling good is the best test of all for your study habits.

10/22/08 - This should be the last in my three-part, white-knuckle account of my daily schedule. On Monday and Wednesday I have two classes in the afternoon, and on Thursday just one. The school also schedules various speakers around 5 p.m., so sometimes I’ll hang around for that. It depends on how much work I have hanging over my head. But I’m usually back on the train by 4:45 p.m. The afternoon train rides are often a highlight of my day. A handful of my classmates are making the same trip, so we’ll half-heartedly study while chatting. We might even discuss an issue from class or help each other fill in small holes in our notes. It’s really the most socializing I do with my fellow students.

After getting home, I’ve got some study time after dinner. Right now, my schedule is set to alternate late nights with early nights. Last night, I didn’t go to bed until around 11:30 p.m., and I have been known to stay up past midnight a couple of times. But tonight I’ll go to bed around 10 p.m., and I’ve even gone to bed earlier than that. I need about a half-hour to wind down before bed. Usually, that means reading something not school-related - maybe I’ll do a little yoga or just go out onto my patio.

So that’s how my school days go. When we pick up next time, I’ll talk about my actual study strategies, and how I try to hold it all together. Part of holding it all together is knowing when to say “enough is enough,” and this is decidedly enough for one night.

10/15/08 - When we last parted, I was in the middle of telling you about my day, and I left off at my noontime perambulations. But study time and walks are not the only benefits of lunch time at school. Almost every day, there are guest speakers, workshops, academic support groups, student association meetings, and sales pitches scattered around the building. Today, for example, the 1Ls all piled into the auditorium for a panel of our professors talking about the format for their exams and their personal preferences. As you can imagine, that was well-attended.

Recent events have ranged from training in two online resources called Westlaw and LexisNexis, to a workshop in common errors of legal writing, to a presentation by a federal judge. Besides a bunch of nifty information, most of the noontime goings-on have the benefit of including a free lunch. The TA for my academic support group bragged that he once got six straight free lunches in a row, and he challenged us to beat his record. A lot of the time, the dish du jour is pizza. Some people grumble about that, but, frankly, I’ve always eaten lots of pizza, so it doesn’t really hurt my feelings. It is funny though, to see the fliers that go up around school that say: “Such-and-such an event today in room so-and-so. Lunch provided! NOT PIZZA.”

10/8/08 - I got some email recently from a reader of this blog who asked for more “nuts and bolts” entries about law school. I thought I’d devote this particular entry to my daily schedule. Time is the most precious commodity for the law student, and I’m still tweaking my schedule here and there. I’ve tried to remain flexible, and to maximize not only my study time, but also my relaxation time.

I have to take either a bus or the DART light rail from North Dallas to Union Station, and then take the TRE to Ft. Worth. My commute is roughly two hours each way. So I get up between 5:30 and 6:00 every morning to make it to my stop. I usually spend the actual time onboard the mass transit system studying.  On a normal day, I end up getting roughly an hour and fifteen minutes of good study time in transit. Earplugs help.

When I get to school, I’ve got a little time before class, so I get a cup of coffee and study in the break room. Depending on the day, my first class starts at 10:00 or 10:30 and adjourns around noon. I try to eat quickly and usually take the rest of the time to review the material for my afternoon classes. If I’m comfortable with all that, I’ll either work on briefing cases for the next day or maybe even go outside and take a walk.

In my next entry, I’ll tell you about the rest of my day.

10/1/08 - Next week is the mid-way point in my first semester of law school. It is frightening how quickly it is flying by. We’re having a practice exam in contracts next week, so I’ve been bending most of my study efforts to trying to do as well as I can on that. Contracts, for some reason I can’t quite put my finger on, has also been my hardest class to outline, so I fell back on the table of contents in the textbook to try to make sense of it all. Professor Barnes’ syllabus actually follows the contents of the book, so I was really able to anchor my notes and the procession of the class to the textbook. With that done, the way the pieces fit together became much clearer, or at least seemed to. I don’t take anything for granted anymore.

I’ve talked before about the practice of law being essentially about relationships between people, but now I’m finding that learning the law is also about relationships. But instead of relationships between people, I’m building relationships between doctrines. There is a hierarchy of individual doctrines that must be approached in a certain order. At first, it seems overwhelming to have to learn so many rules, but once you realize where the rules fit – what their relationships are to each other – each rule helps to support the other and make it meaningful in the mental web that we law students are trying to weave.

9/24/08 - We have a whole class devoted to legal reasoning.  I did not start law school wholly unfamiliar with the topic.  As an undergrad, I took a constitutional law class that the professor, Dr. Champagne, taught more or less in the method of a class in law school.  The analysis was not as intense, and the Socratic Method was only used sparingly, but it gave the right feel to the thing.  Just knowing how to brief cases from that class was a big leg up in my first few weeks here.  In fact, I had been lulled into feeling like I already knew, in a general way, how to “think like a lawyer.”

I’m finding that I was premature in my self-congratulations.  In particular, I have realized that I botched my first memo.  I failed to get the right rule from one of the cases we had to read.  The rules you can see in the cases can be very seductive and keep you from the rule you really need.

The key question that can be easy to overlook when you see rules jumping out of the case at you is:  What question is the court trying to answer?  Seems like an obvious question, and it is, but answering it can be quite difficult. Worse, it’s such an obvious question that it is easy to blow past on your way to rule hunting.


9/17/08 - Today, Wednesday, as I write this, we are celebrating the anniversary of the signing of the Constitution of the United States. A remarkable document, really. It is, arguably, the fullest flower of the Enlightenment. Coupled with the mind of Chief Justice John Marshall, it laid the groundwork for the singular power of the United States Supreme Court.

The Court has had its hands into everything from slavery to social security payments, from selecting presidents to waste disposal. Studying Supreme Court decisions leaves one with the disconcerting impression that the Constitution can be interpreted to justify whatever policy the Court thinks most expedient at the time. In the issue of slavery, the Constitution was first used to justify slavery, later to condemn it. By its measure, the New Deal was first rejected, later approved.

As a society, I think we like to think of the Constitution the way we learned it in social studies classes in elementary school, as a sheltering blanket which keeps out the cold of lawlessness and protects the disadvantaged from the tyranny of the powerful. Yet, it has been used as an instrument of rapine, too. It has failed many times as a bar to tyranny.

But perhaps its influence is most perfidious when the tyranny it enjoins or permits comes decorated with the tinsel of laudable intentions. We all decry Supreme Court decisions that go against our values as clearly in violation of the Constitution. What we often forget is that decisions that may seem just and good can also erode our freedoms.

9/10/08 - Well, dear friends, the pressure has been turned up a notch since last we met.  You see, we were warned not to get too comfortable in our work load in the first couple of weeks of school.  Now I know why – Legal Writing.  Last Thursday, we were handed the assignment for our first memo.  Ask me what mysterious sort of creature a memo might be.  Go ahead, ask me.

I’m glad you asked.  A memo is pretty much what you think it is.  If you’ve been bumping around this earth long enough to have worked in an office, I’m sure you’ve either read or written one, or maybe you’ve at least seen Office Space.  In any case, I’m not quite sure why I’m sweating bullets.  It’s only five pages.  If that seems like a lot to you, well, you might not be cut out for law school – or your run-of-the-mill undergraduate literature course, for that matter.

I think the issue is not really the length of the memo; rather, I think it is the investment of time in preparation.  When every minute of every day counts, as often seems to be the case around here, every instinct screams out against spending time just scratching ideas on a piece of paper, or outlining, or any of the other preparatory tasks of the writer.  I want to somehow dodge all these time-wasting exercises.  I want to just skip straight to writing the final draft. 

Alas, it is not to be.

9/3/08 - Sitting down in a class in law school is like entering a labyrinth.  Worse, it’s like entering a labyrinth provided with a tour guide who seems, well, slightly mad.  You know where the exit is, and you have a pretty good idea of where you started.  You even know that your guide has gotten other people from the start to the finish; most of the time though, you can’t – for the life of you – figure out how.

Your tour guide will ask you which direction you want to start out in, and you will, after some deliberation, determine some path to take.  Now, the other end of this path may dead-end, or the path may only circle you back to where you started, or lead you right by the exit without an opening.  Yet your guide, who knows perfectly well where you are headed, encourages the worst path, as well as the most promising.  Your guide might even decide that you’ve made one too many right turns, and you are getting to the exit too quickly, so he’ll just move some of the walls around to slow you down.

Every case provides a labyrinth, and your goal is to get to the rule that governs the case.  Your professor knows what the rule is and how to get to it through the case, but he won’t just point you to it.  It is only by finding your own way out of a case that you can develop your ability to do it yourself and learn to leave your guide behind.

8/27/08 - Books.  The world of law is awash in books. If you stop and think about where you would expect to find a lawyer, you would probably first think of the courtroom. If I asked you where else you would expect to find a lawyer, you might, I hope, expect to find him surrounded by law books. Lawyers seem to like to have pictures taken of themselves against a backdrop of imposing volumes whose gold-leafed spines might bear such inscrutable terms as “Torts” or “Civil Procedure.”

For a 1L, and I suppose all law students, books are not only our constant companions and the first guides in our study of the law, but they can also be an unbelievable burden. My daily commute by public transportation clocks in at just over two hours each way. The idea of bearing all of my books to and fro every day is a back-breaking prospect. I must also consider my liability, should I knock a hapless fellow commuter senseless with an untimely attempt to remove my backpack from my suffering shoulders in the closed confines of a light rail car.

I have been advised that the key to law school is time management. I might retort that it is equally book management. I spend a great deal of time mapping out which books I need on which days, and whether or not any particular volume may be left in my locker or on a shelf at home. Admittedly, it constitutes one more variable I have to track, but the alternative is chiropractic bills that will probably outlast my student loans.

8/20/08 - When word began to spread among my friends that I had been accepted to Texas Wesleyan School of Law, I received an email from one of them.  She told me that she had mentioned that fact to a friend of hers who was finishing his last year of law school, whom I had only met briefly, and that he wanted to meet me for a drink.  We did in fact meet up and chatted about his law school experience, and I was glad for the advice. I have to admit, though, at the time, I thought the offer was nice but a little odd. Why would someone who barely knows me take time out of his schedule to give me a pep talk about school?

It has only taken two days of law school for me to understand why this almost total stranger reached out to me. The answer is quite simple, really: because he had been there, because he knew how demanding it would be, and because someone extended the same hand to him. I see that same spirit everywhere around me at school. I have been taken aback by the genuine graciousness not only of the staff and faculty, but equally of the 2Ls and 3Ls. I am coming to understand that the study and profession of the law is not only concerned with locating and applying legal rules, but also with fostering relationships between people, including with our brothers and sisters at the Bar.