a post for - - - -> b.r.e.n.d.a. & her family.

hello holiday readers.

i am only on the blog this afternoon because i saw a friend yesterday evening and i realized that she was not feeling quite well because of some various family issues and concerns. i know that we cannot all be bright and chipper all of the time, and whether or not she knows it, she is a very beautiful person on so many levels and she always is warm and inviting and makes me smile and laugh and giggle. mostly, she puts me at ease.

i thought i would dedicate a legal like post to her today and to those of you who finished final exams about a week ago. it can be rather tough getting through a semester of law school, without freaking out about how well you did on exams. let's see what we can do to ease all of our worries. just a little bit.


b.
be as strong as you can for as long as you can, and weak whenever you feel that the moment is upon you. if your final examinations left you speechless, then that is okay, because they are, literally, behind you. you cannot do anything about what you wrote, or did not write, or how they are going to turn out. if your life outside of school is moving up and down, and up and down, and back up again, know that you do not have control over most situations. some things you will feel more than others. some days you will be a stalwart; other days you will cry like a newborn. you owe no one an explanation for what you are doing on any given day. i give you permission to feel it or not feel it whenever the need arises.

r.
remember, you are only a human being and as such you can honor yourself with the knowledge that you cannot be at an "A" all of the time. if that was the case, there would be no other grades to dish out to the other people in the classroom. miguel ruiz says, "do your best, but remember that your best will vary from circumstance to circumstance, depending on where you are in your life." give yourself the day where some part of it is an "A," another part is a "b," a segment of it, a "c" and so on. the entire holiday does not have to be all bells and whistles, quiet, peace and reflection can also be on the agenda, too.

e.
everything is not for everybody to know. when grades come back, you do not have to run around and tell everyone everything about your class grades. be discrete. a little discretion goes a long way. it will give you time to think about your grades, whether you want to discuss exams with the professor and how you want to approach the new semester. not related to law school, but find some people who are or have experienced what you are going through and meet with them as often as you can, even if it is just to throw down a tear or two. you are not alone. i can't tell you how many times i wondered if i was going through something that no one else was experiencing, just to learn that i not only was not in something heavy, but that others were going through matters much worse than mine.

n.
no is an option. you can decide that you do not want to pile on too many classes, or jobs, or seminars, or or anything that you normally do too much of in a semester. who said that you have to keep up with other people in the school. uh, no one, I don't think!?!? you don't owe anyone an explanation for saying no, either. no is the answer that many people need to hear in order for them to do something without your help. no, as it relates to personal strife, allows you to regroup, and rebuild, and regenerate, not slowly, but "noly." slow it down. people will find out a way to do other things until you are back in the saddle. say no now to others, so that when you are ready for action again, then your yes, like your no, will mean yes!

d.
don't give up on yourself, but do understand that others may give up on you. we are all fighting our own fight in this life, whether it is law school, medical school, accounting, engineering, architecture, nursing, clerical, or unemployed, underemployed. it don't matter. i realize that so many of us (me, too) seek a little help (sometimes, it is so little) from someone, and we don't always get just the little help that we desire. well, at that time you have to find some other medium or person or guidance from "another." same with classes and studying and getting back into the saddle in january. it may take you more time to catch up with things because of the fight you are having with yourself (start off well, then slack off; start off well, then slack off). keep doing that start slack routine. eventually start will smother slack, and your will, at that time, can take over. others do mean well, but are crowded with their own lives and own inner discussions. we cannot force 'em to help us. we have to talk ourselves through it (for ourselves).

a.
almost, always there is another way to look at the problem or concern. your mind does not always want to go there. you cannot imagine that you will ever get employed with a "d" on your transcript from civil procedure. but you will. you blew the last question in contracts, and you may have to take the class over because you did not pass. you may not be able to enroll in school because of poor grades, or some other reason - health, money, health (again). what can i do once i know the writing on the wall. do i just stare at the wall, or do i look at another passage or entrance to a new life? don't worry about it happening over night, 'cause that is not going to happen. i guarantee you that one thing. i wouldn't even ask you to consider that. ever. it seems like you have been looking at that wall forever. keep looking at it. it will (very slowly) start to change a little at a time.

you have something to offer this world. you are going to have to figure it out. it would be nice if someone could press a button and tell you exactly what it is. you are more than likely gonna have to figure it out by yourself. alone. and that is okay, too. like everything else, it is a process.

for b.r.e.n.d.a. /bff and cleo. take what you can get & learn from the holiday season.

prof. smith

Part II: Personal Jurisdiction (i) Was Defendant There (In State Where Action Took Place); and (ii) Is It Fair (To Make Person Defend In Court X)?

Personal Jurisdiction: Another relationship between the Court and the Defendant.

When faced with a personal jurisdiction question, you should only consider one question/statement.

Whether it is fair that a court be allowed to force a defendant (the "person") to come to court, and tell him, her, or it, to defend a cause of action brought by the plaintiff?

If the answer to the referenced question is yes, and the question can & will be subject to various scenarios, then you should haul the defendant into the court.

That's really the end of it

A court has to have permission (the right) to force someone to enter its building. The plaintiff dictates where it wants to file, but no matter where the plaintiff files its lawsuit, no one can be forced to defend it, unless the defendant did something in the jurisdiction where the plaintiff filed its lawsuit.

You must always look at:

(i) what the defendant did [what were the defendant's actions],

(ii) where the defendant did it [in what state did it happen], NOT, NOT what state did the action end), and

(iii) is it fair to force the "person" to defend the wrong it did to plaintiff in a particular court.

Answer these three questions, and do not forget to include, with everything else, fundamental fairness, and you will have your answer

Game over.

Now, before I forget, I want to remind you to separate subject matter jurisdiction from personal jurisdiction. Take your time and ask, hmmm - is this a question about whether the court seeks jurisdiction over the subject matter, or does the court seek jurisdiction over the person.

You must make this decision first, prior to deciding the answer to the question. If you jump in without solving subject matter or personal jurisdiction, first, then you deserve the outcome in the form of a grade.

You will probably have one question that combines the two. Address each one, but do so one at a time. Did you hear me. Pick which one you will tackle first. Then stay with it until you finish that answer. Then, and only then will you move to the next topic.

Remember to keep your time before you attempt to solve the question. If PJ and SMJ are combined, then give the appropriate amount of time to each one. Keep in mind that you cannot get a good grade by answering only a portion of the question. You have to answer both parts.

Again, keep your time. Answer everything. Close the book.

Move on to the next [ad]venture.

Prof. Smith

Civil Pro: (1) The Test Is Code Based, So Use It; and (2) You Have To Know What The Question Asks of You In Order To Answer It Properly.

Some first-year students find Civil Procedure one of the easiest first-year courses, ever, and other students never quite understand the subject area, and struggle just to pass.

I understand why some think it is a breeze and others think it is a severe windstorm.

As strange as this might seem, some folk just don't get excited about Civ. Pro. It is not the substance of the law. It is "just" procedure. Procedure is like legal writing. It is so important. You cannot play the game (go to trial, etc.) if you cannot pay the price of admission (knowledge of the rules). And, your opponent will (and, should) do everything to make certain that you don't even stand in line to get a ticket. Your opponent wants to do everything possible to make certain that the court does not even hear what you have to say. Opposing counsel wants to riddle your case with many deficiency bullets. The more procedural gaps your opponent can poke in your case, the longer it will take for you to go to trial, and those procedural gaps will weigh on matters of your competency regarding the substantive case (with the judge). Yes, I know it should not, but it should. If you cannot get into to court, what are you going to do when it's time to play?

So, it really is in your best interest to get a tight handle on civil procedure.

Okay!

A code based examination: code based examinations are not as easy on the mind as often thought to be. As I mentioned in an earlier post, too many of us think that open book means easy A. You could not be farther from the truth. A code based, open book test, is hard on a student's organizational skills. It requires that an additional apparatus (the "code" itself) be present during the examination. So, instead of pen and paper and exam stapled together, or fingers and keyboard and exam stapled together, you now have that named above and a 20 to 30 page outline somewhere on the desk. Three items are not five. Different. An open book, code based test requires you to take the same three hour examination with the five pieces, as you do with criminal law (no book there, but still a three hour testing situation).

The second problem is the flipping - of pages, that is. I can hear the sound of everyone turning pages looking for the answer, when the ANSWER should be in your head. An open book test sounds like a Xerox machine convention. The deafening noise of the paper turning takes on the systematic motion of a machine churning out copies.

Then there is the sadness (the big, tear drop stain, sadness) of those who fail to complete the last question because they spent a good deal of time on the first two questions.

Too much looking back and forth caused a lot of problems later on in the exam.

If you know the law, you should inherently know the answer. I'm serious. You should know whether the motion will be granted or denied, or whether plaintiff can bring the lawsuit in the jurisdiction named in the question, or whether the defendant has the right to move the plaintiff's lawsuit.

A code based exam is no different than any other course and its exam. You are looking through the code to find the code section number, not to determine whether a motion should be granted or denied. You know the law (or, do you)? You know the answer. Yes, you do. You are looking at the code for the section number. I mean who wants to be in a final examination (with the code in tow) and cannot include the basis for the answer on the exam.

That's kind of embarrassing.

fyi: Where is your sheet of paper with the list of the code sections on it (you know, the sheet of paper that includes a matching reference to the area of law the code section # identifies)?

Just keep that part in mind.

Sometimes we blow a question because we do not understand what is being asked of us. Some of us cannot determine whether the professor is asking a question regarding subject matter jurisdiction or personal jurisdiction. I think if many first-year people could figure out what's being asked (from them in the question), then that student could pin down what she is supposed to think about in order to answer the question.

Let's talk a little about subject matter jurisdiction, first.

The United States Constitution is the director of practically every concept and/or rule you have studied in Civil Procedure.

Subject Matter Jurisdiction is all about whether a particular court is the right court to hear a matter. Now "hear a matter," should actually translate to - - is this court "qualified" to make a decision regarding this matter. Article III of the United States Constitution discusses subject matter jurisdiction of the United States Supreme Court and there is some general discussion regarding lower courts in Article III, as well. Article III discusses the type of jurisdiction the U.S. Supreme Court has when a case or controversy comes before it.

Now, if the U.S. Supreme Court does not meet the criteria set forth in Article III, then the Court cannot hear that claim. This "inability to hear a claim, piece" also applies to other federal and state courts, and other administrative agencies and tribunals across the United States. However, it all started with Article III and what the top court in the land could and could not hear.

Think of it in the simplest of terms: bankruptcy court judges are good at bankruptcy matters because that is what they are trained to do (that is also what Congress decided in Article I of the United States Constitution). Would you want a bankruptcy judge to make a decision on the custody of your children or the amount of alimony you are required to pay in a divorce action? No, that is not this court's level of expertise. The bankruptcy judge would be crossing over into the territory of the family court judge. It would violate the U.S. Constitution if banruptcy judges could hear the subject matter of another court. It would be unconstitutional to make a decision regarding a person's family law claim when you only know about Chapter 7, 11, and 13 bankruptcy matters. There's a separation of powers going on throughout the various courts in our United States and a court must stay on its side of the road for more reasons other than a particular judge or court is not an expert in another area of law. I think this explanation will work for now.

Think about it. That's a reason why subject matter jurisdiction can be challenged at any time. It makes sense to be able to bring up a challenge if a court has made decisions on issues when that court is not "subject matter" qualified to make those decisions. Do you want the car mechanic to make your birthday cake? Don't you want to say, "whoa, buddy," at any time, just to be certain that the person making the cake is actually qualified to do so. Once the car guy has made the "oil laden" cake, you are stuck with it. Just like you could be stuck with a decision from the wrong court.

Then you are stuck with another procedural issue - - res judicata - - issue preclusion -- claim preclusion -- bar and merger.

This is not what you want and it will not help you.

I'm coming back in a few hours for a little talk about personal jurisdiction.

I know some of you have civil procedure exams next Monday or Tuesday.

This post is a simple explanation about sub-issues that I hope will provide you with a few, "I get it," moments.

Prof. Smith

Criminal Law: You Cannot UnRing The Bell. You Must Charge & Defend - Charge & Defend - Charge & Defend.

Unfortunately, many first-year students have a tendency not to take the study of criminal law seriously. Too many people believe that they can study other courses, first, then wait until the last minute to give time and attention to criminal law. I believe that "we" tend to do this because we have read about crimes all of our lives, prior to coming to law school. We have read bits and pieces of information in the newspaper, seen crime scenes "live" on television, and had jarring conversations with our friends, family and neighbors. Since we believe that we are familiar with the subject matter, there is some common thread nestled in the minds of first-year law students, that makes them believe they can throw caution to the wind on criminal law exam day.

Not so.

A criminal case against a defendant is carefully crafted. It is complex, complicated, and most of all, it must be crafted correctly. The prosecution has to get it right. THE FIRST TIME. Too many missteps and a prosecutor is looking for another job. The prosecutor represents the government (the United States or a state). We (the public) expect that the prosecutor will bring charges that match what was done by the likely defendant. The prosecution must be very careful when working on a crime(s) that includes one or more individuals. So many strategic decisions to make. Who will we charge; what will we charge; who will we let "go;" who can't we let go? Do we have enough for X, Y, or Z crimes? Maybe combine A and Y, or Z, an X, or C, alone. The more people involved in the criminal act, the more time it takes the prosecutor to create a scenario that will fit the crimes he or she wants to charge against the defendant.

It is no different on an exam, except that you are supposed to include your thoughts on paper. Professors are not mind readers.

The defense has a really difficult job, too. The defendant must go up against a very high standard (beyond a reasonable doubt). I know you won't believe this, but the defense has to poke a lot of holes in a lot of different elements, in as many ways as possible, in order to raise enough doubt. Defense work is tough work. Remember, if a person ends up actually becoming a "defendant," then there was enough evidence to try this person - this person was indicted. There was something there. So, the defense attorney, knowing that everyone else knows "something is there," has to convince a judge and/or a jury, that just because there is a lot there, it is still not enough for a conviction. The defense attorney has to show that there is a problem (or, defense) even when he or she knows that everyone else in the courtroom, except for the defense attorney, the defendant, and the defendant's family, thinks that the defendant should be found guilty.

It is no different on an exam, except that you are supposed to include your thoughts on paper. Professors are not mind readers.

So, slow your roll and think like a prosecutor when creating a case against a defendant or several defendants. AND, don't forget to think like a defense attorney when you prepare to respond to the prosecutor's charges.

The White Hat Syndrome: It seems very easy for for some 1Ls to wear the prosecutor's hat and charge the potential defendant with a lot of crimes. That's okay if the fact pattern calls for it. Some people, however, pull that white hat way too far over their ears, and forget that guilt, beyond a reasonable doubt, is still the standard. Sometimes, she forgets what "reasonable doubt" means. On exams, some people decide that because they would be a prosecutor in everyday life, that they can only be a "good guy" (prosecutor) on the exam.

Please don't do it. Your job is to play the role assigned to you in the question/fact pattern.

Pay attention to the call of the question. Again, play the role assigned to you & only that role. Do not show off, which is a really bad, first-year habit. Confidence is cool (see earlier post). Showing off is reckless (this post).

Got it? Good.

You've heard the phrase, "you can't unring the bell, right?" Well, if you haven't, I think it will be very helpful for you to remember this idea when you answer a criminal law question. Most of the time (most) every movement a potential defendant makes, is a movement made toward a crime, or a movement made that will further a crime.

I'll repeat. Most of the time (most) every movement a potential defendant makes, is a movement made toward the commission of a crime, or a movement made in furtherance of a crime.

So, you (yes, you) enter your roommate's, parents' home to steal a CD that your parents' would like (and because your roommate's, parents' have two of the same CD you don't mind taking it). You take the CD, get on a train, go to your home, wrap the CD very nicely and hold it out to your parents' for a holiday present. You give it to your parents', then when you have second thoughts about what you have done, you remove it from your parents'' CD collection, When you return to school, you place the CD in your friend's old CD pile. The friend decides that her ipod is all she needs while at school, and take the CD home the following weekend. She takes the CD you took from her parents' home and places it in the exact same location where you found it 30 days ago. Her parents know nothing. She knows nothing. Your parents know nothing. You, however, know one thing.

YOU KNOW, AMONG OTHER THINGS, THAT YOU ARE A THIEF.

You know that you have burglarized someone's home, taken the item, allowed your family to be in a position where they could be charged with receipt of stolen goods, you take it back from them, hide the stolen goods, and then your roommate has now received the stolen goods, and has returned the goods to her family's home, which is what you wanted. Still, all of these transactions happened, and there are consequences associated with each. How many crimes do you see?

Just because no one knows anything about anything doesn't mean it did not happen. You cannot go back in time and change what already happened in time. You can stop the number of crimes from adding up over time, but what's done, is usually done. This is, by far, the best piece of advice I can give you for the exam (and, life). No one is exempt. Not even me.

Inchoate Crimes. Every subject you study in law school has a beginning, a middle and an end. This beginning is seen in criminal law day after day; night after night; crime after crime. If you find yourself with a fact pattern (in criminal law) and there is only one person committing crimes and there is no one else mentioned, then there cannot be solicitation or conspiracy because you cannot commit those crimes with yourself. Yes, even the defendant with a multiple personality disorder can not agree to commit a crime with himself. So, if you know the person thinks for one segment of the day that he is Barney, and another segment of the day, he is Fred, and when he sleeps, he is Dino, that he cannot commit a crime with his other two personalities.

Look & wait for the introduction of two or more persons in the fact pattern to think about solicitation, conspiracy (and, attempt - although one can attempt to commit a crime by himself). When there are two or more folk together in a fact pattern, there is going to be some kind of relationship between those parties that you will have to recognize and discuss. Yes, there will be an attempt to do something, there will be some relationship between two people where one or more people attempt to solicit one or more other people to commit a crime. And, yes, there will be some set of facts rolled up together to indicate that two or more people have agreed to do something unlawful, or to do a lawful thing, unlawfully (also known as a conspiracy).

Now, for the rub. Everyone in the fact pattern is doing something to someone else. You must separate the players like they belong to several hockey teams and determine which person in the fact pattern will be charged with what.

TAKE YOUR TIME!!!!!!!!!!!!!!

DO NOT RUSH!@!@!

TAKE ONE PLAYER A TIME and decide what his or her punishment will be.

You ain't got to (yes, I am using a double negative - get over it) move too quickly , but you must be accurate.

Remind each and every possible defendant that you are an equal opportunity student.

Now, there are going to be times where something looks like attempt, solicitation, or conspiracy, but at the end of the day, you are going to say, "nah, it's not enough for one, both or all three." You don't walk away, young man. You let the professor know that you know that it coulda, shoulda, mighta been attempt, solication, or conspiracy, but there was not enough going on in the fact pattern to justify such a charge. Tell what could have been and what has actually happened.

If it looks like attempt, smells, like solicitation, and moves like conspiracy, then you better talk about it. Raise it as an issue - analyze it as an issue, then if it is not actionable, then dismiss it as an issue. You must let your audience know that you saw it. Let the audience know that the series of events, combined, were not enough to create the crime sought (but you must explain why, based on the facts presented, it wasn't enough). Once you do that, then you can complete the discussion of the crime and move on to the next issue or set of circumstances.

Murder: is not pretty, even when it is on an exam. My biggest tip to provide you with here is that there is common law murder and statutory murder. Pick and choose and remember what your professor taught you and match the facts to the type of murder, carefully. Common law facts on an exam go to the common law definition of murder. Ditto with murder based on a statute. You may actually have enough facts under a set of circumstances where the person can be charged with common law and statutory murder.

Tag 'em! Now.

You never know which one will eventually be dropped or which one is the best theory for the state to move on. You are an attorney. Show no mercy.

One sentence on Manslaughter: see if murder fits first. If it does not, then, AND ONLY then, move to manslaughter.

Assault, battery, rape, arson, burglary, larceny, larceny by trick, false pretenses, and embezzlement. Just a few of the crimes I know you've studied this semester. Compartmentalize. That means take one crime at a time and one person at a time and then determine whether the facts support that crime. Charge a defendant one time for one crime. Hmph. I like that. Don't get all scared to charge the defendant with the crime, either. You must make certain that the facts apply to the law, but once you do that, then the game is on.

Charge him or her with as many things as legally SOUND. And it does not matter whether the person is a man or a woman. The woman gets it just as badly and the guy. No pity. No mercy. NO, one more chance. Nope. You lost that chance when you became a defendant on the paper in front of me. It may actually be your job to do this, one day, so roll up your sleeves and charge 'em with the crime and do what you must when the facts say, yes.

I need help, give it to me: if the defendant gets help from someone else, charge that person with aiding/assisting/abetting, but don't forget to defend the person and explain why the charges will (if they will) be dropped. Include first, exclude later.

CHARGE AND DEFEND.

Finally, please first-year students, DO NOT FORGET TO ADD THE DEFENSES TO YOUR LIST. It is one thing to charge, charge, and to continue to charge folk with crime after crime after crime. That's okay, but it is a must that you defend Mr. Defendant with any and everything that looks, smells, and acts like a defense to the crime.

DEFENSES ARE WRITTEN INTO EVERY CRIMINAL LAW EXAM. If you don't find them and apply the defenses, according to the facts, then you are coming back to school in the spring 2011 with no more than a bee-minus in criminal law. Likely less than that because the exam is designed to see if you see charges and defenses. There are two sides to every "v."

A lot of your grade depends on your professor's expectations of you and how well other people in your class did on the exam. Hey, if everyone sees defenses, but you don't, and your colleagues are correct, you will begin traveling down a long, dark alley, A-L-O-N-E. Welcome to C+ land.

You don't want to do that. It can, however, happen.

Okay, these are some things to think about as you prepare for criminal law.

I'll try it again, tomorrow.

Prof. Smith

Tort Law Tests The Five Senses: Sight, Smell, Hear, Taste, Touch.

Tort law can be slightly tricky, but it is doable, either as an introductory or as an advanced course.

1. COMBINE EVENTS: The one thing that you should remember about answering questions from a law school fact pattern is that you are combining a series of events. I will call them, "movements." These movements are sewn together to make up one element. Each element has its own set of movements. You must decide as you prepare the answer to a question which movements should be matched with an element. At the end of the question (a/k/a the answer), you must make a decision whether the series of movements, combined, are adequate to make up the requirements for an element. Then you must decide whether the series of movements (for each element) are enough to establish a cause of action. As you know, you need all elements to make up a cause of action for a tortious act.

2. ONE ELEMENT AT A TIME: Yes, you must combine enough events (movements) to show that you can meet one element. Acknowledge how many elements are necessary for a particular tort. Look carefully for the series of events/movements that make up all of the elements. Slowly - check the facts and determine whether you have utilized the facts necessary for each element. Remember, it is called a fact pattern for a reason. You are looking for clues (a pattern of events) that combined (yes, I've already said it once before) make up the element.

3. IDENTIFY THE FACT THAT MATCHES THE ELEMENT: Feel free to use a pen to cross out each fact that "matches" an element. You can use different techniques to designate which fact matches a certain element. You may utilize a straight line to indicate a certain fact type. Drawing a slanted line through words may help you identify a second type of facts. Perhaps, a squiggly line draw will help you draw through another fact type. Another way to match facts with elements may be to circle the words or phrases, that when combined, identify a particular element.

4. HOW WILL I KNOW WHICH FACT(S) MATCH(ES) AN ELEMENT: Let's start with some simple instructions. Let us review.

5. SEE IT. If you can SEE that the movement will cause someone else harm (in any way, shape, manner, fashion or form), then the thing you see will become part of the series of movements to make up an element. I do not care what "it" is that someone saw. If someone is observing (or, participating) in something, then it is movement, and it is part of an element.

6. SMELL IT. If you can SMELL it, then it is a movement that should be included as an element in the fact pattern. Smells are alarming - they often prompt action, provide a warning, or, at the very least, raise an eyebrow to signal the person receiving the smell to act or not act. If an actor in a fact pattern said that she smelled smoke, or that he smelled bacon frying, or that the air smelled "funny or different" then those are movements, which when combined, make up a part of some element.

Remember that tort law covers harm to the person's body (which includes anything related to harm based on the five (5) senses).

7. HEAR IT. Hearing is similar to smell, except that hearing requires noise. Be careful, here, because noise still exists even if not heard by the human ear. If you can HEAR IT, it is likely to be included in a movement or series of movements to make up an element(s) and cause of action. Just as important, however, even if you cannot hear it, if the noise can cause harm, then it is a movement and should be attributed to some element.

8. TASTE IT. The ability to taste something that can cause anyone harm, is probably the easiest of the all of the senses to recognize in tort law. So, if you can TASTE IT, add it to the movement rank and file. Don't forget one very important thing, though. The harm (from tasting something) does not have to occur at the exact same time the person tasted "the item." The harm can occur long after tasting the item. It is true (not to be explained here) that sometimes the harm never comes, but there are times a person will recover. It does not matter that you cannot predict the harm. It does not matter whether you are drinking kool aid or swallowing (hopefully, not) some one else's saliva. It does not matter whether it is food or drink, or in what quantity. If there is a possibility that a harm can occur, then there is a probability that the harm will occur.

9. TOUCH IT. Anything you can (and, do) touch is a movement that will qualify for some element. If you TOUCH IT, you will have some explaining to do to someone or someone will have some explaining to do to you. Again, touching prompts either action or non-action. It can go either way.

These six senses are the lookouts for the elements that make up a cause of action in a tort law question.

I'm coming back ... soon.

Prof. Smith

First Year Examinations - One Substantive Subject At A Time.

Let's talk about final examinations for first year students. Before I go into detail, let me tell you a few things that you must be made aware of prior to going into the examination. I will assume that most of you have already taken at least one first-year exam already. So, here goes.

1. Don't Wish That You Get Run Over By A Truck On Your Way To The Torts Final. That is not a good way to get you where you want to go, which is into the second semester of your first year of law school. I know that it is not a good idea because I actually said these words while traveling to school to sit for the final in Torts. Nothing hit me or harmed me, so I was fortunate, but you have to be careful about what you wish for - - some things you do not want to happen. Also, I realized, much later, that I knew more than I thought I did for that exam. You just don't know how much you know, at the time you are doing all of the wishing for the truck.

2. Going Into The Exam: A Bunch of You Will Be Nervous, Anxious, Even Overwhelmed; Several of You Will Be Confident & Courageous. Whatever you can do to steel your nerves, do it. Count to ten or twenty very slowly. Be conscious of your movements. Think about the task at hand and what you have already planned to do when it is time to open your bluebook or type onto the computer screen. Breathe. Slowly. That's right. You can do it. Breathe in. Breathe out. Move. Breathe in. Breathe out. Move. Channel your efforts and stay away the outcome. The one thing that combats nervousness is A-C-T-I-O-N. Action means M-O-V-E-M-E-N-T. Movement means O-R-G-A-N-I-Z-E the area around you. Organization means that you place the items that you are allowed to bring into the exam in the exact spot where you plan on using them. You want to be ready when the proctor says, start.

When the clock begins, I want you to slow it down. Again. Take your time. KEEP BREATHING S-L-O-W-L-Y. Details later.

Confident & Courageous Folk. How are you? Ready to rock and roll? Good. Alright. I want you to listen to me. Get close. Ready? Okay - here we go. Confident and Courageous people often move too quickly during the exam. Turning pages & writing. Yes, they do. They look like Speed Racer.

Guess what I want you to do. Start at the beginning of this #2 and SLOW it down. Yes, you can move at a good clip - a nice pace, but if you move too fast, you might miss something. And I don't want you to miss anything. Nothing! I have to be careful because I don't want to slow down the way you normally move through a fact pattern. You won't feel the same and that, in the long run, may hurt you.

So, I need you to pledge allegiance to this next statement: "I, Student Exam Taker, do solemnly swear, that if I am Confident & Courageous or Nervous or Anxious, that I will still slow down and read the questions on the exam, again (and read over my answer)." You swear? "I swear." Okay, now we are good.

I ALSO PROMISE NOT TO LEAVE THE EXAM UNTIL TIME IS UP NO MATTER HOW MUCH I LONG FOR IT TO BE OVER OR HOW MANY TIMES I HAVE REVIEWED MY ANSWER.

I REALIZE THAT I AM A FIRST-YEAR STUDENT. I WILL TAKE IN EVERYTHING. I WON'T HURRY BECAUSE I DON'T KNOW WHAT I MIGHT REMEMBER IN THE NEXT 15 MINUTES. I CAN WAIT.

I DON'T HAVE ANYTHING TO LOSE BY WAITING UNTIL TIME HAS ENDED.

C'mon now, "I pledge ... ."

3. Don't Talk To Everyone At the Exam Before You Enter The Room To Take The Exam. That will tear up every nerve cell you have in your body and it will make you a host of enemies for the Spring 2011 semester.

4. The Old Adage Re: Dressing in Layers Is True. Put yourself in a position to take off clothing. There is nothing worse than being so cold that you cannot concentrate at all. You cannot concentrate on the material, on writing, on thinking. On nothing. Your mind is drawing a blank. Just remember to take off clothing when you are hot. Don't faint.

5. Speaking of Fainting. Watch what you eat that morning or afternoon. Eat something that you would normally eat. If you eat chips and a coke for breakfast every morning, then today is not the day for a bran muffin and coffee. Your body is used to you. Not someone else. Don't eat something that you love a lot, but don't eat it that often, and now you want to eat it because today is special. It's a special day alright - just like this food that you haven't eaten in 18 months. Well, we all know what that can lead to - yes, a special moment during the exam. Don't disturb everyone else because you could not stick to a simple regimen of eating what you would normally eat.

6. Do You Hear What I Hear? Stop when you are told to stop. Otherwise, it is an honor code violation. Honor code violations can bring havoc on your character and fitness review at a later date. You know. That thing they call the bar exam ... offered by your jurisdiction ... two times a year? Stop. Also, don't cheat. Don't look, don't touch, don't smile, don't frown, don't drop pens, don't look at the inside of your wrist, fold your skirt up, go to the restroom and look at some answers on the wall. DON'T DO IT. Honor Code. Violation. Cheat. School Record. Character and Fitness Review. No bar exam. No passing. No swearing in ... . The list can go on, but I don't want it to because it does not have to happen to you!

7. What's In The C.A.R.D.D.S. for you? Deal your own hand.
C means cause
A means of Action
A means Analyze Actively
R means Remedy
D means Defense
D means Damages
S means Synthesize

The answer to just about any legal query should contain some thoughts about these special words. You must state a cause of action, analyze it in an active voice, include a remedy, and add any defenses. You should always include damages. Last, but surely, not least, synthesize the law you will use.

A 1L Post: Final Exams - Open Book; Triple Duty; Sleep, Eat & Study, Oh, My.

General Thoughts on Final Exams

1. An Open Book Exam Does Not Give You A License To Close Your Mind: An open book exam can be a trap for the person who has decided that the book will take the place of his or her ability to think. Books do not answer questions. That is solely your job. The rules (statutes for Civil Procedure, Evidence, Tax, Sales, Commercial Paper, Secured Transactions, Banking) are there as a quick referral, because statutes are often rather dense (detailed). Also, the rules usually have notes to provide guidance, but you should have read, parsed, and detailed the code well enough so that you can answer the question without body-hugging the code. If you need a reference to a code section or sub-section - - cool. Go ahead and follow the tab to the section you need. Discuss the law and provide a reference to the section, sub-section, and/or case name. Then move on it. The code is not the answer; it is a reference point to use the proper language. You are "The Answer."

2. Apply Equal Opportunity Study Periods For All Examinations. Do you have three exams next week? If so, don't spend three days on one exam and one night on the other two, less fortunate exams. Will you face an exam on Tuesday, Thursday & Saturday, or Monday, Wednesday & Friday? Do not spend the entire weekend on Tuesday's exam, knock that exam out of the park, then stay up all night Wednesday, only to head into Thursday's examination with a crazy look on your face because you are exhausted. Then after Thursday's examination, you fall dead asleep, and now you are extremely anxious about Saturday's test, so much so you are more nervous than anything else on Friday.

Sounds horrible, doesn't it?

It is.

So, don't do it.

Okay, what should you do. Divide your time into three sections (no, not equal time for all subjects, but some time for all subjects). Spend about 50% of your study time on Tuesday's exam, 30% on Thursday's exam and 20% on Saturday's exam. Spend the time for Tuesday's exam answering practice questions and memorizing the law. Yes, Answer The Questions. There is nothing like it. Spend the time for Thursday's exam fine tuning your outline - make sure you have what you need - clarify the law. Spend the time for Saturday's exam preparing your outline. Work on the 50% exam piece first thing in the morning, then the 30% exam piece, then the 20% exam piece. Before you turn in for the night, return to the 50% exam piece for 45 to 60 minutes. Give it one more run through. Then go to bed.

3. Sleep, Eat and Be Merry. Be certain to get at least five (5) hours of uninterrupted sleep every night. Six (6) is much better (btw: I think you should get eight (8) hours of sleep, but I know many of you won't do that, so I am trying to be realistic). Turn off the lights, the music, the telephone, the television, and the stereo and get a real dose of sleep. Rest in a bed, not on a couch, or a chair, or on a table. You are anxious if this is your first set of exams. That is okay. YOU ARE SUPPOSED TO BE SLIGHTLY ON EDGE. You take the edge off, or at least lessen it some, by sleeping. When you sleep, you also give your mind adequate time to absorb what you have read, memorized, and wrote from the previous day (know it before you go to bed). You cannot just continue to push information into your mind without allowing your mind time to calculate your thoughts and store the information away in either a short or long term memory bank. Find Good Food as often as you can. That means that you should try (just try) to stay away from too much caffeine, too many high fat foods, and an overwhelming amount of sugar late in the evening. Try to eat food that does not having you jumping all over the place. Just, try. Try. Be conscious of your decisions.

Look for Good Food, not the food that comforts you. If you cannot force yourself to stay away from comfort foods, then at least try to eat the oreos with a salad. I am not a doctor and so this is not medical advice, but all of us know that we want to keep our blood sugar stable and not have it in an uproar. We don't want our blood sure to wave our bodies around like an uncontrolled garden hose.

I have seen people drink/take all kinds of "things" to stay awake. I made it through without those things. I think you can, too. It is my contention that Good Food, in adequate amounts, will do the same thing - - if it does not help you stay awake, then it will, at least, not overfill you.

However, no one is perfect, and I can tell you exactly what I do and just did, moments ago. I had a few cheese crackers, some Ruffles potato chips, and peppermint puffs. However, along with that "dinner," I had a full vegetable plate of beets, broccoli, green peas, and mixed in sunflower seeds for protein. I had a full plate. Yes, I mixed it up. No, I'm not 100% healthy, but I feel like I did good job. Yes, sometimes it is forced, but it is rare that I do not have a full plate of vegetables. Yep. Plainly, cooked vegetables. Not dripped, dabbed or sprinkled with that stuff that we all like, but I hold it down with the P.V.

Not perfect, not imperfect, either.

4. Tomorrow: We will talk about Answering The Question: Providing a Cause of Action, Defenses, Damages, Remedies and Synthesis.

Okay, I don't know where you are in the country, but I've been awake and on the move for 16 hours straight. I'm going to transfer my energy into rest, so that I can get back to you with some more information tomorrow.

5. The Future: I hope to post #4 tomorrow for 1Ls and continue discussing the 3L bar exam conversation. Work and applications for employment will appear in a post for 2Ls next week.

Thank you,

Prof. Smith

3L Post: What Courses Do I Enroll In My Last Semester of Law School - "Secure The Transaction," please.

2. Secured Transactions. All third and fourth year students should consider enrolling in this course. This subject is another bar exam favorite. Very often you will find a Secured Transactions question coupled (joined) with a Commercial Paper question.

So, let me tell you a little about the subject. Unfortunately, there are too many students who skip this course and have to learn it, for the first time, when sitting in a commercial bar prep course. That is a bad idea - even if you do not like or truly understand the importance of the subject. Yes, important. You should not run away or hide in the closet (this subject will eventually catch up with you, sooner rather than later).

A "secured transaction" is basically just a contract. It is usually considered a contract between two or more business people. A contract between business people where one person wants to borrow some thing or several things from another person for a small or long period of time.

You could actually call the contract a leasing agreement, but, that is not how all transactions are titled. In this contract between several people, one person, usually a person who owns some type of specialty business wants to either lease or purchase certain specialty items from someone else. Someone else who specializes in selling these items. For instance, if you are a person who is attempting to open a store as an ice cream parlor, you, Mr. or Ms. Owner, will need certain things. You will need, for example, ice cream bins, a register, chairs, tables, umbrellas (for the outdoors), lights, registers, ice-cream mixers, ice-cream machines, freezers, and lots of other items.

You will likely lease these items from a person who provides equipment for your business. It is a contract? Right? Yes, it is. However, what happens if your ice cream business does not make it. Suppose the business folds due to anything (your fault, not your fault, spoiled ice cream, inferior product, bad or no advertising, people in town disappeared, cow on strike, anything). Anything!

It doesn't matter. Still, suppose you fold. When a business folds, the owner may try to prevent this "folding" event from occurring by filing bankruptcy? Don't try to analyze what type of bankruptcy - - it is not important for secured transactions - - at least, not what I have to tell you right now. The person that leases the items to the ice cream owner, generally, will want his items back because the other party to the contract cannot meet his or her obligation. That person who owes money for the items she is leasing, cannot, for whatever reason, meet the demands under the lease agreement.

Even if the person can meet the terms under the agreement, the owner of the ice cream store was unable to pay some form of rent or mortgage. This means that the items that"fold" with the store, are the items that were under some lease or contract that the owner of the store can no longer pay for, as promised.

Therefore, the person that loaned the ice cream store owner the "leased" items, now wants those items back. The person wants those items back because the items are part of his or her inventory. Another reason the person that "loaned" the items wants those items back is because of the items are just for lease, and not for sale. That means that the owner can lease these items out to someone else. Also, if the property goes into foreclosure (if it was being purchased by the ice cream parlor owner), the items that the ice cream owner leased from the other business person can be lost. Forever. What does some of this depend upon . . . ?

Status.

Did the person that leased the items to the ice cream person file a financing statement with the land records of a particular county in a particular state? A financing statement serves as notice to everyone. It says that if a new business person decides to have a relationship with the ice cream owner (but, particularly the property where the store is located) that someone else has a prior claim on certain items found inside (or, outside) of the parlor. The financing statement may, by itself, be sufficient to give the business person first priority on the goods sold to the ice cream owner. This will depend on the type of good and how that good is categorized. There are certain instances where the owner of the leased items may have to file something other than a financing statement in the land records of a particular county to "secure" the transaction and to have priority over other, later persons that do business with the ice cream owner.

However, I think you get the picture. Think about it. The name of the course is "Secured Transactions." These are transactions where the person lending the items, seeks to secure his or her transaction with the other person and become a secured creditor (eg., financing statement, or certain other documents recorded in the land records). A secured creditor seeks to hold on to ownership and the monetary value associated with the item loaned to another person.

The secured transaction is unlike an unsecured creditor, who just loses his or her investment in a particular thing or set of things (eg., credit card debt is unsecured credit) immediately. An unsecured creditor, like a credit card company, does not file a financing statement on the item you buy at a particular store. Furthermore, the credit card company is not allowing you to purchase an item, it is providing you with a monetary source in which you purchase the item. This is another story for another day, but the bottom line is that a credit card company cannot secure something that it does not own. The consumer purchases the item with the "credit[card]" given to her, so the credit card company cannot secure a transaction on that item because the consumer, not the creditor, owns the item.

Trust me, if the credit card company could secure the debt by retrieving the item (especially if there was some value to it and that value outweighed the cost of selling the item), it would. I'm not here to get down on the credit card companies.

I'm just here to tell you that you need to "secure" a spot in the Spring 2011, course on Secured Transactions. There is a whole lot more to it than ice cream parlors.

Next Up: Wills & Estates.

Prof. Smith