THE LAW SCHOOL PROCESS: More than memorization is required to succeed in law school
By Professor Jeff Fleming
Archived Article FEBRUARY 2007....

To achieve success in law school, one must understand the process of the law school experience. Law school requires more than just the simple task of memorizing the legal rules that shape our society. If law school merely required the ability to memorize rules of law, any first year undergraduate could do it. Law students, particularly those in their first year, must understand that the real challenge of law school comes from the ability to apply those rules to a factual situation that puts the elements of the rules at issue.

The ability to analyze is the pure essence of legal training. It is often referred to as "the ability to think like a lawyer." Analysis is the professional skill that must be developed and nurtured from the first day of law school. Those who devote the majority of their study time to memorizing rules, but spend little time developing the skill of analysis do not fully understand the process of law school.

Learning the rules of law is the first step in law school. This can be achieved in many ways. Casebooks, hornbooks, legal outlines and other sources are readily available for this purpose. Most law students will utilize a combination of these sources to learn the rules of law. However, to truly grasp the meaning of the law requires a thorough understanding of the second step in the legal process; the application of the rules. Without understanding the application of the rules, the ability to recite them is just a hollow gesture.

The ability to analyze can be most effectively developed through the casebook method. The casebook method exposes students to the controversies that confront our courts on a daily basis. These are the controversies that demand careful consideration and resolution through the application of the legal rules.

Cases contain not only the rules of law. More importantly, they contain the facts of the controversy and the rationale that was instrumental in guiding the court to its ultimate decision. The rationale of the case provides the reasons that the court applied the rules to the facts and any public policy considerations raised in the case. Understanding the rationale of the case is the essence of case. The holding is also important because it is the answer to the issue that the court considered.

Analyzing cases requires time, patience and diligence. First, the facts of the case must be read and understood. Students must be able to comprehend the facts. In doing so, they can determine which case facts are relevant and which are irrelevant. Relevant facts are those that are important to the outcome of the case. These are the facts that the court considered pivotal when analyzing how the case should be decided. Irrelevant facts are those that provide background information which may be helpful to fully understanding the facts of the matter but are not significant to the outcome of the case. Students must be able to differentiate between relevant and irrelevant facts when analyzing a case. This skill is developed only through practice. To expect otherwise is sheer folly.

Once the facts of a case are understood, students must be able to identify the rules of law that the court applied to that situation. Consistent application of the rules of law is the cornerstone that provides continuity to our legal system. Courts must look to previous decisions of other courts for guidance in their own decision making. The court's interpretation of facts and policy considerations in the primary case, when compared to facts and policy considerations of other cases, provides a basis for the legal arguments supporting the case decision. This is why the case rationale is so important. It provides the reason that the court decided as it did. A student who finds the rule of the case but does not grasp the rationale of the case does not understand what is important.

Law students should expect to spend an average of seven hours study time per week for each class taken in their first year. As time goes on and students become more proficient in the process of law school study, this suggested study time will decrease.

It is often said that everyone is presumed to know the law. This adage also applies to law school students. This is why it is important to stay ahead of the class assignments. Law school students should not rely on their law school professors to teach them the rules of law. Law school professors presume that students can learn the rules law on their own. Law school professors are more interested in using class time to mold minds in the process of legal analysis, to demonstrate the application of the rules, and to discuss the rationale behind the case method.

Class time is intended for the development of legal analysis skills. Therefore, students must learn the rules of law before class so that class time can be used for the intended purpose of reinforcing or clarifying issues and arguments that arise through the application of the rules learned outside of class. Class time provides the forum in which students can practice their legal analysis skills. Case analysis and careful consideration of hypotheticals posed by the professors in class are the means to develop analytical skills. Students who come to class expecting to develop their legal arguments rather than expecting a simple presentation of legal rules are the ones who understand the process of law school and legal training.

Preparation for final examinations is a similar process. The first step, learning the rules of law, is the easy part of law school. The second step, the development of analytical skills, is the more difficult and more important step. To perform well on examinations, students must incorporate the second step of the law school process into their study program. Students who spend the majority of their study time memorizing the rules, at the expense of developing their analytical skills, rarely receive the result that they desire. For example, most students can memorize the rules related to certain contracts that are required to be in writing by the Statute of Frauds. However, if a student misses an agreement made on "the telephone" a fact that raises an application of the Statute of Frauds on a final examination, it really doesn't matter how much he or she actually knows about the Statute of Frauds and its rule. If the issue and analysis do not appear in the blue book, the student receives no credit despite the fact that he can recite the memorized rule in the law school hallways.

The ability to effectively analyze is developed in many ways. It is developed through the casebook method. It is developed through study groups. It is developed and then reinforced through a regular review of past examinations given on law school finals or Bar examinations. Examinations come in the forms of essay hypotheticals and multi-state questions. Reviewing past examinations is important to the law school process because it allows students to review multiple fact patterns that raise the issues and arguments that were similarly raised by the cases presented in class. Reviewing past examinations is valuable because, unlike cases presented in the casebook, past examinations do not contain the rules and rationale that are incorporated in the case materials. Past examinations contain only the facts from which students must be able to identify the issues, determine the appropriate rules and then demonstrate the appropriate rationale in argument. Reviewing these testing devices will tell the student what he really knows or where he must spend more time studying.

The final step in the law school process is the ability to demonstrate the process of analysis through legal writing under timed conditions. The ability to convey thoughts in a concise and analytical manner is the end result of learning the rules, developing legal reasoning skills through the casebook method and then using those skills in the context of examinations. As with the first two steps, this skill is learned and perfected only through practice. This is the law school process.

Fleming's Fundamentals of Law (FFOL) has been helping law students and bar candidates for well over 20 years. For more information about its courses and materials, visit: www.lawprepare.com or call 1(800) LAW-EXAM.

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When do mistakes become manslaughter?: Nightclub-stampede law suit walks line between screwing up and true criminal acts

By Eric Herman
Archived Article FEBRUARY 2007......

The bodies lay in a pile 6 feet high. Those still alive screamed for help. Ebony Reed, who was among them, saw a man with a twisted body and popped-out eyes, she said. She clutched the hand of her friend Danielle Greene, who was speaking incoherently, her head slumped against the wall. Then Greene stopped speaking altogether.

The details of the E2 nightclub stampede filled the courtroom of Judge Dennis Porter at the Cook County Criminal Courts building last month. Club managers Calvin Hollins Jr. and Calvin Hollins III and promoter Marco Flores are on trial for allegedly running the club in an unsafe manner on Feb. 17, 2003, resulting in the deaths of 21 people. The penalties, if the men are convicted, range from probation to 10 years in prison.

"Twenty-one people died on that stairwell that night -- under their friends," Assistant State's Attorney Robert Egan said. "All completely unnecessary deaths, if the people responsible for the E2 nightclub had undertaken those responsibilities."

'MACE THEIR ASS'

Few cases straddle the line between tort and criminal law like the E2 case. Tort law -- better known as personal injury -- makes people pay for their carelessness. A tractor driver loses control on an expressway, for example, killing a little girl and injuring members of her family. The family sues and wins $10.4 million.

The Hollinses and Flores--along with many others -- have been hit with dozens of lawsuits. A year ago, Hollins Jr. and partner Dwain Kyles settled with 116 plaintiffs for $1.5 million. Hollins Jr. and Kyles have declared bankruptcy. But in September 2003, Cook County prosecutors upped the ante, charging them and Kyles with involuntary manslaughter. Their lawyers say the case does not belong in criminal court.

Criminal law plays for higher stakes than personal injury. Because defendants face the loss of their freedom, the law makes it harder to prove a criminal charge.

Reed wept as she recalled the events of that night -- how a fight on the dance floor prompted the DJ to call for security to "Mace their ass," how patrons choked on the pepper spray and ran for the front exit, how she fell and broke her arm, how she watched her friend die. In the gallery sat grief-stricken family members.

But emotion is not likely to decide the case. For one thing, the three defendants opted for a bench trial. That means Judge Porter, not a jury, will decide their fate. Porter is known in the Criminal Courts Building as a "good law judge" -- one who studies the law and makes his rulings based on what he thinks it says, not on popular sentiment. Porter has no problem going his own way, many say.

NOT ENOUGH EXITS?

Illinois law defines involuntary manslaughter as an unintentional killing brought about by reckless acts "likely to cause death or great bodily harm."...

...Say, two boys are playing with a gun and the gun goes off, killing one of them. Or, during an argument, a man points a gun at his pregnant girlfriend and it goes off, killing her and the unborn baby. Both cases brought convictions for involuntary manslaughter.

Involuntary manslaughter has been used in Illinois to convict a woman who passed her cocaine addiction on to her unborn baby when the child, untreated, died a day after it was born. Other convictions include a nanny who shook a baby violently and repeatedly, and two men who set a garbage can on fire. The fire spread to a nearby house, where a baby died in the ensuing blaze.

Did the Hollinses and Flores do the equivalent of waving a loaded gun or setting a garbage can on fire? Prosecutors say they did. Fights were a regular occurrence at E2. The security guards had pepper spray. They should have known it was only a matter of time, prosecutors argue.

They have called engineers who said the club did not have enough exits. According to bouncers, two of the three exits were usually locked to keep people from getting in without paying. Neither exit met safety standards, the engineers said, so E2 could safely hold 240 people.

But motivated by greed, the defendants allowed 1,152 patrons in that night, prosecutors allege. The stampede could have been avoided, Egan said, if the defendants "had only stopped the influx of people."

'MASS STAMPEDE'

To prove recklessness -- the essential part of their case -- prosecutors must show the Hollinses and Flores consciously disregarded a known risk. In court papers filed Wednesday, Hollins Jr.'s lawyer Tom Breen called the incident "a mass stampede that no force could predict or prevent." During testimony, Breen noted the club had been operating, under various names, for 18 years. Fights might have happened, but no more than at other clubs. In fact, Breen argued, the owners employed a well-trained security team that had a policy of keeping gang-bangers out.

In short, the stampede was a freak occurrence no owner could have foreseen.

Raul Villalobos, the lawyer for Flores, argues his client did not control the guards or who came into the club. "Flores could not have predicted, prevented or controlled human instinct," Villalobos wrote in papers filed Wednesday.

The prosecution has finished putting on its case. And Wednesday, the three defendants asked Porter for a directed verdict -- a finding of not guilty before the defense puts on a case. Porter will hear arguments Feb. 22. Kyles will be tried separately at a later date.

In the meantime, Porter will ponder whether the E2 stampede was a horrible accident -- or a crime.

From Rominger Legal & The Chicago-Sun Times.

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The Nevada Supreme Court's harsh rebuke of a Las Vegas attorney has caught the attention of the state's legal community, and some say the recent opinion could affect the future conduct of trial lawyers and judges alike.

"This is pretty unusual for the Supreme Court to slap somebody down like this," said Jeffrey Stempel, who teaches professional responsibility, insurance law and civil procedure at UNLV's Boyd Law School.

The high court's December opinion stemmed from the closing arguments of attorney Phillip Emerson in four personal injury cases. In each of the cases, which were tried in 2004, Emerson represented defendants. And in each of the cases, the jury returned a defense verdict.

In its decision, authored by Justice Jim Hardesty, the Supreme Court concluded that Emerson's arguments amounted to misconduct because they "encouraged the jurors to look beyond the law and the relevant facts in deciding the cases before them." The court imposed monetary sanctions and referred Emerson to the State Bar of Nevada for disciplinary proceedings.

"We reject defendants' argument that Emerson's misconduct here was unintentional," Hardesty wrote. "In each case, Emerson delivered nearly the same closing argument, just expanding on the argument and adding additional improper material as the cases progressed."

Emerson said he did not have permission from his clients to comment on the decision, but Reno attorney Robert Eisenberg is pursuing a petition for rehearing. Eisenberg also declined to comment.

Stempel, who said he agreed with the Supreme Court ruling, said he expects the decision to have the dual effect of empowering judges "to run a little tighter ship" and of making lawyers more reluctant "to edge toward making arguments based on evidence outside the record."

The decision received praise from the Nevada Trial Lawyers Association, which submitted a friend-of-the-court brief in support of one of the appellants.

"The courtroom is the last place in our society where those injured through no fault of their own can seek justice against even the most powerful corporate interests," according to a statement released by the organization. "The court's decision enforcing the rules against prejudicial and unethical conduct helps to make justice possible for all Nevadans."

Valarie Fujii, an insurance defense lawyer in Las Vegas, called the decision unfair but said she will curb her closing arguments to comply.

"Bless Phil Emerson for taking the hit for all of us," she said. "Somebody's got to push the envelope to see what you can and cannot say."

Fujii, a member of the Nevada Trial Lawyers Association, said she considers Emerson a great trial lawyer.

"I think he was more of a puppet or the person they were using to get to the insurance company," Fujii said. "It could have been me. It could have been any attorney that does trials for insurance companies."

The Supreme Court opinion contained excerpts of Emerson's closing arguments from the four trials. The first trial at issue arose from an automobile accident in which Luis Castro rear-ended the vehicle of Gabriel and Nicholas Cabrera. Police cited Castro for causing the crash, and the Cabreras then sued Castro, alleging they were injured in the crash.

During his closing argument, Emerson argued, "People must take responsibility for their lives and not blame others for challenges and setbacks. People must stop wasting taxpayers' money and jurors' valuable time on cases like this."

The attorney also argued that cases such as the Cabreras' were causing the decline of the legal profession's reputation.

Emerson presented similar arguments during another trial, which stemmed from a multi-vehicle traffic accident. After the crash, Gregory Lioce sued Dana Cohen and John Wilson for injuries he suffered in the accident.

Wilson retained Emerson to defend him against the lawsuit. At trial, the parties disputed how the accident occurred and who was at fault.

"I have a real passion for cases like this because it's cases like this that make people skeptical and distrustful of lawyers and their clients who bring personal injury lawsuits," Emerson told the jury. "And it's a big factor as to why our profession is not as honorable a profession as it once was in the eyes of the public."

A third case arose when the face of Tiffany and Joseph Lang's 9- month-old daughter was injured by Jennifer Knippenberg's large dog while Knippenberg was caring for the infant. After their daughter underwent surgery to repair her tear duct, the Langs sued Knippenberg, alleging she was negligent.

At trial, Emerson again argued that the case had wasted taxpayer and juror resources. He also told jurors, "There is a conventional school of thought prevalent now that Americans have become a society of blamers."

A fourth case involved a traffic accident in Reno. James Seasholtz was driving, and Lindsay Wheeler was his passenger, when the front of Seasholtz's vehicle collided with another vehicle.

Wheeler sued Seasholtz for her injuries, alleging they were the result of Seasholtz's negligence. During his closing argument, Emerson admitted his client's liability for the accident. He also presented arguments similar to those he made in the previous three trials.

"The only way that people and their lawyers and their chiropractors will stop bringing these cases is if juries start saying, 'No, enough is enough,' " the lawyer argued.

In the Supreme Court opinion, justices concluded "that all of Emerson's challenged closing arguments were improper." The court classified the arguments into three types of misconduct: jury nullification, statements of personal opinion, and golden rule arguments.

The opinion included this definition of jury nullification from Black's Law Dictionary: (a) jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality or fairness.

"Emerson's arguments suggested to the jurors that, regardless of the evidence, if the jury found in the defendants' favors, the jury could remedy the social ills of frivolous lawsuits," Hardesty wrote. "Essentially, Emerson asked the jury to 'send a message' about frivolous lawsuits. His arguments were directed at causing the jurors to harbor disdain for the civil jury process - a defining, foundational characteristic of our legal system - and at perpetuating a misconception that most personal injury cases are unfounded and brought in bad faith by unscrupulous lawyers."

The Nevada Rules of Professional Conduct preclude attorneys from stating to a jury a personal opinion as to the justness of a cause, the credibility of a witness, or the culpability of a civil litigant.

"By representing to the jury his personal opinion that the plaintiffs' cases were worthless, Emerson not only violated his ethical duties, he also prejudiced the jury against the plaintiffs," the Supreme Court concluded.

Case law has established the impropriety of golden rule arguments, in which jurors are asked to place themselves in the position of one of the parties. The Supreme Court determined that Emerson made an impermissible golden rule argument in the Lang case.

The court imposed monetary sanctions in the Castro and Seasholtz cases, ordering Emerson to pay the attorney fees and costs incurred by the plaintiffs for their first trial and appeal. The court also upheld the district judges' decisions to grant new trials in both cases.

In addition, the court remanded the Lang and Lioce cases to District Court for new decisions on the plaintiffs' motions for new trials, which the district judges had denied. The Supreme Court ordered the district judges to base their decisions on new standards established in its ruling.

Several lawyers interviewed for this story expressed their opinions that Emerson crossed the line in the four cases addressed by the high court.

"I thought it was an improper argument," said Stempel, the law professor. "I thought it was way over the top."

In its friend-of-the-court brief, the Nevada Trial Lawyers Association discussed the wording Emerson used in both the Lang and Seasholtz cases.

"He used the identical phrases, indicating a planned and calculated strategy," according to the document. "This was not an accidental misstep in the heat of battle. The records show that counsel deliberately incorporated these tactics into his arguments."

The association noted in its brief that the high court has repeatedly emphasized "that it is highly improper for counsel to appeal to passion and prejudice in order to influence the verdict of a jury."

"Some Nevada attorneys continue to engage in such misconduct, attempting to distort the fact-finding process, apparently without fear of significant repercussions under current law," according to the document. "The continuing prevalence of this problem suggests that current law needs adjusting, at least with regard to blatant intentional misconduct."

Las Vegas attorney Walter Cannon, a civil defense lawyer with 30 years' experience, said he can see the appeal of Emerson's closing argument. He has used a similar argument himself.

"I don't think I've ever gone quite as far as he has," said Cannon, who sits on the bar's Southern Nevada Disciplinary Board.

Cannon said Emerson technically violated the rules of conduct, but he has seen worse examples. He said the high court's opinion will help the state's lawyers, who needed more guidance "on what is and what is not appropriate."

"I think that sends a very loud message to the community, to the legal community, that, 'Look, we're not going to put up with this kind of stuff,' " Cannon said.

Fujii said she has made statements in closing arguments similar to those cited in the opinion.

"You can't make it personal," she said. "I think that's where Phil might have made a mistake."

Las Vegas attorney Randall Mainor said the Supreme Court decision pertaining to Emerson will make trial lawyers in the state more cautious. Mainor, a plaintiffs' lawyer with numerous large judgments under his belt, based that opinion on his own experience.

In a 2000 decision, the Supreme Court overturned a jury's award of $1.47 million in a personal injury case after concluding that Mainor had improperly presented personal opinions and golden rule arguments during the trial.

"Mainor personally vouched for the justness of his cause, talked about his grandchildren, his career with the FBI, his 20 years' experience as a trial lawyer, and even cried during his closing argument," according to the opinion.

The high court concluded that many of Mainor's arguments in the case "far exceeded the boundaries of acceptable professional conduct." In its decision involving Emerson, the court made numerous references to its decision in DeJesus v. Flick, the case involving Mainor.

"I'm more careful now after the Flick case than I was before," Mainor said.

In hindsight, Mainor admitted that he went too far with his closing arguments. He said he was "docile" during the second trial, which, ironically, resulted in a $3 million verdict for his client.

From Rominger Legal & The Nevada Times.

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