United States: Letter To A First-Year Law Student

Luther T. Munford, Letter To A First-Year Law Student, 20 Green Bag 2nd 13 (2016)

We recently received this email message from Mr. Munford:

This is a letter I wish I had gotten when I started law school. I have sent it in various versions to several young friends as they began that adventure. It occurred to me that it might be worthy of publication, and might even stir a debate about what it is most important for first-year students to know. On the other hand, it may be out-of-date, redundant, or superseded by better advice readily made available to today's entering students. On this, I trust your judgment completely.

The letter was attached to the email. We question his judgment about our judgment, but we do judge his letter to be worthy of publication. Here it is.

– The Editors

WHEN I STARTED LAW SCHOOL, my idea was that I would learn "the law" in more or less the same way I memorized the Ten Commandments in Sunday School. That was partly right, but that turned out to be only a small piece of it. The principal purpose of law school is to teach you how to persuade judges to decide in your client's favor. The law ultimately is what judges say it is. In the last analysis, what the judges say is what the parties must do. Everything else is prelude. So what law school should do is teach you how to craft an argument that will persuade a judge.

To be sure, knowledge of the "law," i.e., the statutes, rules, and court decisions that may guide the judge's decision, is an essential tool. If you don't know "thou shalt not kill" is in there, you will be totally lost. But it is far from enough.

Among other things, you will also need to learn legal vocabulary. You need to learn the language that judges understand and heed. This is not unlike going to a foreign country to learn its language. An "appellant" lost in the trial court. The "appellee" did not.

Another helpful tool is knowledge of the types of argument lawyers generally make. When considering any text, it is useful to look at, among other things, the words, the intent of those who wrote it, the doctrines that have been used in the past to interpret it, the relative competence of the branches of government to decide, and general principles of ethics and fairness.

For example, one question might be whether "thou shalt not kill" ever prohibits killing by the state. The following are some questions that might be asked in a debate over that issue. They illustrate various types of argument:

  • What does the Hebrew word for "kill" mean? (Text)
  • How was this interpreted by the Israelites when they put the inhabitants of Jericho to the sword? (Historical intent)
  • How have the various religions who look to Moses – Jewish, Christian, Moslem – interpreted the commandment? (Doctrine)
  • Could a court enforce a prohibition against all state killing? (Institutional competence)
  • What would the moral consequences be if the state were not allowed to kill? (Ethics)

The point of law school is not to teach you the "right answer" to the question of what "thou shalt not kill" means. Rather, it is to teach you how to put together the strongest possible arguments for whatever interpretation helps your client.

You may well be puzzled as to why your contracts professor spends so little time talking about successful contracts, i.e., ones where both sides keep their bargains. It is because there is nothing to argue about when that happens. You need something like ambiguity, changed circumstances, erroneous assumptions and, of course, plain old greed to provoke a dispute about which you can argue.

THE ROLE OF "JUSTICE"

The question arises as to whether this focus on the process of argument is amoral. The suggestion that it is amoral fuels many a lawyer joke. "Is there a criminal lawyer in this town? We think so, but we haven't caught him yet."

Understanding the morality of the law begins with law's fundamental public purpose, which is to settle – or prevent – disputes between parties who disagree. We cannot live with each other without a way to settle disputes. When all else fails, the adversary process provides that way. To make it work, each side needs a "champion" irrespective of what the champion's personal views may be. So lawyers have to be able to make the arguments most likely to convince a judge that their client's case is "just." As long as basic ethical rules are followed, the lawyer's job is not to be the judge. It is to help the client resolve disputes in a way that protects the client's interests so that the judge can reach a result the parties and public will accept as being just.

You no doubt have too much to read already, but at some point, perhaps after you finish your first semester, you should read The Nature of the Judicial Process. In it, Benjamin Cardozo, a celebrated judge, describes how judges go about deciding cases. Because your task is learning how to persuade judges, it is helpful to know what at least one judge thought about that process. He wrote it in 1921 but his description still rings true.

In the book he says that the law is neither a mathematical problem nor a sportsman's game.

What he means by not a "mathematical problem" is that it cannot be said that Fact A + Fact B and Rule C will always produce Result D. Inevitably differences among who the lawyers, judges, and jury are may well produce different outcomes. Different people have different values. That is illustrated by the variety of answers people in the past have given to the question,"what is just?" Some, for example, have found standards of justice in the teachings of a religion, or economic efficiency, or what is best for those who are least well off in society, or the need to resolve disputes peacefully.

When Cardozo says that the law is not a "game," he means that lawyers and judges, even though they like rules, will not always adhere to them slavishly if the result would be unjust. A client's case may survive even if his lawyer failed to show up for court. If the case had merit, or the default was not the client's fault, or if the opposing side has not been prejudiced, a client will, sometimes, be given a second chance. This is, however, a lesson best learned from the law books, and not personal experience.

But I do believe that the sanest way to think about the law is to see it as a special type of game. There are rules, and violations of the rules frequently, if not inevitably, result in penalties. In this game the principles of justice, however defined, are always present, just as in a ball game the laws of gravity must be obeyed. Some things are certain. The plain language of a contract will, when its meaning is plain, usually be given effect. The lines on the playing field are there for the players to see. Players cannot fly through the air. But beyond that there are wide-open opportunities for tactics, argument strategies, and determined players. To continue the analogy, there is still plenty of room for a "Hail Mary" pass on the last play of the game. Your job is to learn how to throw it when your client needs it.

LAW SCHOOL

You should recognize that law schools have limited their role in this sport. They see it as their task to teach you principles of logical tactics and argument, i.e., to "speak the language" of law. They generally do not see it as their role to teach you principles of psychology, or rhetoric, or other "illogical" ways to persuade someone of the justice of your case. As long as you recognize what they are doing, and that you will ultimately need more to be an effective advocate, you will be okay. Law schools generally use the "casebook" method. Students study cases, i.e., what judges have said when they resolved some particular point. As you read and outline the cases, you should multitask:

  • What was the issue and how did the court resolve it?
  • What were the arguments that each side made and why were they accepted or rejected?
  • What kinds of arguments were made?
  • What other arguments and kinds of arguments can be made on this issue?

Which brings me to more mundane tactics for dealing with law school.

Some advice:

  • Read and outline your cases before class. Then correct and annotate your outlines during class. When you are in your third year you may find it possible to reverse this process, i.e., outline in class and annotate at home. But in the first year you may find that teachers do not give you much of an outline because they want to teach you to argue, not to just parrot back a "right" answer.
  • Find a group of like-minded students with whom you share your classes and form a study group. You will be surprised at how much you can learn from others' perspectives. Take turns doing course outlines. Some of my best friends today were in my study group. I hope you will be as lucky.
  • If possible, get exams your professors have used in the past and work them together. It will help you know what your goal is, i.e., spotting issues and listing arguments that might be made while coming to some reasonable conclusion. I have always thought this was a bit like quail hunting. You flush the issues out and then shoot them down.
  • Find time to exercise and have fun. There are lots of opportunities for both in your town.

We are all proud of this step you are taking and wish you every success in this exciting venture.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions