Coming Attractions

I know its been about a week but I promise I have been working on some post. They will be ready to go hopefully by this evening. What can you look forward too...
NFL opening Weekend
Legal Writting
Medical Malpractice
Neurotic Law Students
and the Socratic method

So yeah, coming soon Keep Clawing Away...

Boxers or Briefs?

"Think of your briefs like...well briefs. You always want them to be clean and neat in case someone else happens to see them. They should be comfortable fit for you without being covering too much or too little. Most importantly you should always use your own unless its an emergency for best results"
-As explained by a LARC professor and told to me by a peer

I think before we get too deep into the law school career I should take some time to explain what it is exactly I spend most of my time doing, namely, Briefing. The above quote is probably the best way to illustrate the concept of what briefs should be, though it may not be too helpful if you don't know what it is. So what are these briefs that lawyers carry in those cases (hence "briefcase" in case you ever wondered where it came from)? I am here to answer that my dear friend

In short, a brief is a "short". That is to say it is a short and abbreviated note on a particular case. As a student I may read anywhere between 7 and 12 cases per week conservatively. It would be nearly impossible to recall every relevant aspect of every case for every class without some short hand technique. That is where briefing comes in handy. Again, briefs are tailored to the person using them. As a 1L my briefs are highly formalistic because i am still using a very structured set-up to ensure I get all the important information. So what do my briefs look like?

Facts
Procedural Posture
Issue
Holding
Reasoning
Rule
Concurring/Dissenting Opinions

Facts
The facts of the case are those particular elements of the case that make it unique. These tend to be the parties, their relation to each other, alleged acts, circumstances, and scenarios. Often there can be many relevant facts in any particular case, but the key is to find the Outcome Detriment Factors (ODF). While it may be true and a fact that the defendant was a man, doctor, or wore glasses if that factor didn't help the court make a decision, then it probably doesn't need to be in the brief.

Procedural Posture
Sounds hard, but is actually simple. It's just the "How". How did this case get to where it is now? Who sued whom, what did the judge/jury say at lower courts, who appealed and what was the outcome there, and if there were any relevant motions/objections. This is the technical part of the case and can be difficult to find sometimes. Personally I think it is really helpful, because often if you know the "how"of where the case is, it helps with he "Why" as ill talk about in the issue portion. I know lots of people who skim this part, I think it is a mistake to, especially considering a question that always stumps students is the simple "Who won?". You'd be surprised how many students simply don't know, who actually appealed a case or who actually won.

Issue
The "why", "heart of the matter", or "the legal issue" of any case is the issue. Often there can be more then one legal issue, and the court does not have to respond to every one of them if they don't want. Often you can point the issue out by searching for language like "We are considering","We are looking to", or "The argument to". All of these are signals that the court is going to explain what is at issue in the case. If you think about it, every case comes down to one sides interpretation of an issue vs. the other sides. With that in mind, I try to frame the issue in simple yes/no questions, which helps when I get to the Holding. For instance an issue a court my face is "Does gun regulation in a school zone fall within Congress' power to regulate via the Commerce Clause?".

Holding
"No, possession of a gun in a school zone is not commercial activity and does not directly effect interstate commerce. Thus it is not within the scope of power of Congress to regulate". The holding then, is what the majority of the case thinks is the appropriate response to the issue at hand. The holding is often tricky to pick out, that is why a good expression of the issue is so vital. It is rare that the court will directly state its holding. Often I have to piece together various thoughts and synthesis them into the courts holding. At which point I must then explain how they came up with that holding

Reasoning
Which leads to the reasoning. Why did the court rule the way it did? This portion often bogs students down. Judges talk, a lot, about a lot, and have opinions about a lot. It is critical that you wade through the fluff and distill the reasons that directly apply to the holding. Sometimes I'm lucky and they neatly number the reasons or use language like "First, Foremost, We believe, or We accept/deny" Those tend to clue me into the courts reasoning. Often they refer to past cases or general hypotheticals. I know people who spend lots of time looking up the cases Judges mention or working through the hypothetical. I don't do that. One way is not better or worse. Personally though, If a judge alludes to a case the applies it in context, I assume that was the relevant portion I need. Would it give me more depth of knowledge if I knew the context of the mentioned case? Of course! Do I need it to apply to the case at hand? Not likely. In the end it is a cost-benefit analysis that you have to make. I judge it more important to get the breadth of the reasoning and its application vs. a deep and thorough understanding of any one particular reason.

Rule
The reason I think that is because in the end, all you really need is the Rule anyway. The dirty little secret to Law school is that most of the time and energy you spend preparing for class is "wasted". Not to say it is unimportant to learn to think like a lawyer and know the context of cases, BUT what you NEED to know for practice or more importantly for the EXAM is THE BLACK LETTER LAW! The rule is just that. Often enumerated in numbered or lettered form, the rule is what the case used in its ruling as a general principle. Think about it, if every case had the same facts and issues, we would never have disputes. We would know from the past what the court said about those facts concerning that issue. But that is not what happens is it? In theory, each case has new facts and issues and the court has to deal with them. They do that by applying these general rules. An example of a rule may be: In order to prove the civil allegation of Infliction of Intentional Emotional Distress, a plaintiff must show
1) The defendants actions were extreme and outrageous
2) The defendant knew or should have reasonably known said actions would inflict emotional harm
and
3) The defendants actions had to ACTUALLY cause the injury.

As you can see, the facts of a case may change, but this rule does not (for the most part, but there are exceptions. Not important for these purposes). Thus a Judge or lawyer (or law student) can apply the Rules they know to new fact patterns and reasonably come to some guess as to how the courts will act. Now obviously reasonable people can disagree on that outcome, that is in fact why there is litigation the first place, but if everyone is using the same rule you can debate the facts and not the law.

Concurring/Dissenting Opinions
You don't tend to run across these that often unless it is a big case or a Supreme Court case. I do take the time to read them, and if there is any particularly persuasive argument I might jot it down in this section. The important thing to remember is that for the most part, while it may be persuasive, it is unimportant By definition they are not the majority, thus there opinion does not "matter". However, often there are valid lines of reasoning in dissents that can be used later for new cases so it may be helpful to know what the court says about those facts. Also in rare instance the "minority" can become the "majority". Take the dissents from Plessy V Ferguson (separate but equal) and you will find they became basically the majority opinion in Brown v. Board of Education (desegregation).

That in general is briefing. It is important to note that reading and briefing are more helpful before class so you have a understanding in case you are called on. I have seen really long briefs and really short ones. I like to think mine are somewhere in the middle. One thing I didn't mention, but that I do and maybe helpful, is funny case names. See enough Jones v. Smith or Roe V. Wades and they all start to run together. Often case names aren't helpful in helping recall of the subject matter of the case. So to help myself I often give each case another title. In my torts class they tend to be funny names because the cases are funny i.e. "Electric lasso boy electrocutes self" "Shower glass Fall" and "No look train crash". As you can see they are general, but specific enough to a case to recall A) what was at issue B) help with what happened and C) what class it was from. Often I, and other students, forget what class we read a case for, so it helps a little.

So now that I have showed you my briefs, what do you think? I hope they are clean and neat enough. I happen to think they are comfortable and just the right fit. You?

Marqus A Cole
Keep Clawing Away...

Week Two

"Fool me once, shame on you. Fool me twice, shame on me"
-Unknown

At this point I have completed two full weeks of Law school. I apologize for the delay in post but lots has been going on, that has made it a little difficult to post on a more regular basis. I do have several good topics for future post, but before we get ahead of ourselves lets answer a very critical question that the quote above illuminates.

So with two weeks under my belt, what little lessons have I learned to keep me from getting fooled again?

The first lesson I learned, was a familiar one. TIME VALUE. To say that time management is an important component of law school, would be a understatement on several levels of magnitude. It is my experience and opinion thus far, that law school in itself and the material that you are asked to learn is difficult but not impossible, but doing well is impossible if you get behind. The sheer volume of material is the real enemy in law school. Being able to manipulate, store, decipher, and master large volumes of information is the key. With that in mind I have worked out a bit of a system that has kept me above water thus far. For me at least, the key is to review all the material the professors go over at the end of the week and assimilate it into my own notes and thoughts. Secondly, I HAVE TO READ ON THE WEEKENDS. I know some people that are able to read material during the week, that does not work for me. I'm always too tired at night, or afraid that ill get behind, so i read on the weekend.

The second lesson I have learned is that, while it is important to rely on peers for their thoughts and interpretations on material...its is equally important to take everything they say with a grain of salt. Trying to compare the number of hours and study methods of one student to another is akin to comparing your apples to another's oranges. Yeah they are both fruit and you can eat them, but which is better? Well its a matter of personal preference isn't it. I personally cant study for hours on end in the library at the end of the day, its counter productive to me. I start to have nervous breakdowns, lol. I need to be at home, relaxed, and able to listen to my music. I need to be able to get up and pace, or write on my dry erase board to help illustrate my thoughts. The point being, that I've learned to work my way. Work smarter, not harder! That's my motto at least.

"Work hard, Play Harder". It's always been a motto of mine, but here it is a measure of sanity. I could literally spend every waking hour preparing for class or in class and still not be that much more clear on the material. At some point it becomes a cost-benefit analysis. You have to ask yourself if studying for another hour on top of the 5 you have already spent, will give you any more clarity or understanding. The Law of Diminishing Returns shows that after a certain point you stop getting any real benefit. That is where having a social life comes into play. I admit I am still trying to find that balance, but I have been enjoying getting to know my fellow classmates and exploring the various bars and dives of Chicago. I could do a weekly post (and may just do that) about the places I visit here in the city, but I don't want it to become to repetitive. How many ways can you say "went to bar, had drinks, great convo, and silly dancing"??

So with the long weekend, I am taking the time to recharge the batteries. The first two weeks were just a warm up lap, now the real race of this semester is about to start. I think that armed with my mind set, and study techniques I should be able to do reasonably well. So with that in mind, I am ready for this week and the rest of the semester.

Marqus A. Cole
Keep Clawing Away...

Trouble Sleeping I

In what may become a trend (hopefully not) I am finding it hard to sleep tonight. Now this could be due to the fact that
A) I slept from 3 to 6 this afternoon
or
B) In order to stay up to do all my readings for Constitutional Law, I drank two cups of French Vanilla Coffee from Dunking Donuts after 9pm.

I'm sure it has to do with one or the other of those. Either way though, that means for better or worst I am now up and fully alert even though my work is done. Which means that I have lots on my mind, and need some place to pour all of it so that I can get to sleep. This is that place, so the following post will be a scatter shot look into my mind tonight. I don't promise it will be tidy, short, or coherent.

1) First things first, I like lists. Actually I like order, which may be counter intuitive considering I don't necessarily I was like authority. Well maybe that is not true, I don't mind authority so much as I dislike unchecked authority or unwarranted authority. The point here being that my mind automatically sets up everything as a series of lists and boxes to be done or not done. I think that is why law school thus far has been a bit easier for me, before I knew what IRAC was my mind already viewed and rationalized the world in that way. IRAC being Issue, Rule, Application, and Conclusion. I analyze everything, and tend to be calculating, thus I prefer efficiency and order over disorder and randomness.

2) I really enjoy IMEEM, the internet music service. At this point I have something like 20 playlist for every state of mind I am possibly in. I don't know that I would pay for the service, maybe if there were someway for me to take it with my on the go, like on an mp3 player. Something about finding music that I like and organizing it into handy dandy list that I can play at my discretion appeals to me. Oh wait that goes back to 1 doest it?

3) I seem to be developing a reputation for being cool, calm, collected, and intuitively picking up the information from class. I don't know how true that statement is, modesty I think prevents me from agreeing entirely. I will say though, that when classmates ask me for clarification on material or my studying style my answers tend to be reassuring to them, and not too far off base when compared to what the Professor highlights and illustrates in class. I don't know this is a product of some intuitive grasp that I have of the subject matter, rather I think it has more to do with my personal disposition towards school. Again, after Pledging Sigma, I am hard pressed to think of a more extreme emotional, mental, and physical stressor that can totally readjust my persona. That is to say, after going through that, law school, while not a cake walk, ain't exactly a Marathon.

4) Speaking of marathons, I realize that I am really going to have to pace myself as I go through this. Not just on the class work side, but on the social and emotional aspects of law school. I cant go out every time someone wants too. I cant spend too much time talking to my new friends. I need to strike a balance between networking here and staying an active part of my home support network. I'm working on it, we will see how it goes.

5) On the topic of Family networks, it would appear that my entire immediate family is on Facebook now. While perusing my Grandfathers page (yes he's on and my friend) I noticed both my brother and mother had wrote on his wall recently. Now my younger brother is a sophomore in college, so that is expected, but my mother being on FB gave me something to think about. Apparently my father is on there somewhere as well hidden. My first reaction to this information, much like finding out my grandfather was on, was to try and shade and block certain aspects of my profile from them. I wasn't even sure what the etiquette on adding them would be. But as I think about it more, is it really such a bad thing? I mean I have had a general rule for awhile now that I don't put anything up on FB that I wouldn't want my mother to see, isn't this just the ultimate test of that rule? Besides I've known for a few years now that FB is not quite as secure as it once was, maybe my revulsion to family being on is simply me looking back on a time when it was just young college kids. When it was the "cool" thing to do. I think now though, maybe it isn't bad to have yet another way to keep in touch with and share things with my family. At the very least it wont hurt, and it is not as if I have anything to hide. I think eventually I will get around to adding my family. I wonder if my HS sister has a page, I'm sure she does.

6) I think this month I will give my landlord rent for the rest of the semester. It'll be just one less thing I have to think about over the next couple of months, and I wont have to worry about over spending my rent money. I know it is a little lazy of me, but really why add more stressors to an already stressful situation?

7) One of my mentors in college (Doc) warned and trained me to deal with the fact that as I moved up in my educational standards and in the business world, I should get used to seeing less and less faces that look like mine. I'm glad I was somewhat prepared, working in Senator Isakson's office really helped. But I cant feel a bit disarmed being a spec in a sea of difference. I feel as if my defenses, and my need to be prepared, is always heightened. Not to say this is a bad thing, but it is something I have noticed. I notice that I am an "other", I notice it in a way that I doubt that they notice they are "similar" to their classmates. There is a subtle psychological (double) edge that comes with that realization.

8) It is sometimes hard to deal with the thought that I will never hear a new Michael Jackson song again. He was, his music was, such a large part of my childhood, my life, my persona. That his music makes me happy is without question, but more then that, he was just a constant in my life without thinking about it. Like gravity, the precise mechanics might not be known or understood, but the effects are known and if you lost it, you would notice. I feel as if Gravity has lost a bit of its strength.

9) I am enjoying/not enjoying the solitude here. My life has become surprisingly simple, I am either in class or preparing for class or I'm at home. There is no in between, no work, no GF (per say) to have to contend with, no family connections, no real friends (as of yet). It's nice to have my time, to do the things that I want, when I want, with no responsibilities to anyone else with my time. But I am social, at least to some extent. I miss the constant company of my GF, or my LB's, or friends in Atlanta. I miss calling someone and saying its Wednesday we should do something to celebrate it being Wednesday. The fact that we could just be together and enjoy each others company. It could be serious, it could not be, but it was always just relaxing and entertaining. I hope that I find that since of comrade here with my peers. I would love to have people over just to kick it and watch a movie, or play cards, or talk about why time is a man-made concept that nature does not necessarily respect.

10) I don't really have a 10, but I got to 7 and felt as if I should go to a nice round 10. So a few more random thoughts in a list of random thoughts. I don't think it is really a great idea for Disney to buy Marvel Comics. I cant wait until Lupe Fiasco's album comes out in December. My birthday is really going to be a bust or be really good this year, there is no in between. I hope to have a puppy by the end of next summer, hopefully my land lord ok's that. There really is no substitute for good music and good conversation. Every man should have some code or rules that he lives his life by. If you give your word, you should really stick to it, otherwise you have no reason to complain that people don't trust you. We are one of three species on the planet that has sex for pleasure, either we got extremely lucky or nature knows something we don't, and that's why the other million some odd species don't.

I'm still not tired, but I do need to get in the bed. Maybe ill let my mind run some more there.
M.A.C.
Keep Clawing Away...

The River

As the river flows
The further I go
The less I know
The banks hide their nature from sight
The current takes me no matter my fight

The river, you carry your pace
So connected with this very place
Eternally entwined each and every space
And I must trust, my faith in your ride
For river you have humbled my every pride

Oh River! I need not fear
Nor need I even steer
For the end, it is forever near
You care not where I've been, just where ill be
River that flows , take me to the eternal sea

Marqus A. Cole Keep Clawing Away...

What the F*ck is the Law??

Akin to the matrix or the Tao, one can not be told what "The Law" is, per say. We all "know" what it is of course, but if we had to define it, or why it exists, or more importantly why it exists the way that it does, my hunch is that most people would be hard pressed to find a satisfactory answer to those questions. Professor CivPro mentioned in class the distinct difference between ought/shall. Ought implies that it should be done, or that its reasonable to expect it to be done. Shall implies it will be done. I mention that, because the "LAW" in my view has always been an ought. There is no inherent reason it is the way it is, and our laws aren't inherently better then others, or a religious law i.e. the Commandments. That is why I was so excited when I ran across this passage as I was reading today.

Justice Holmes 1881

The standards of the law are standards of general application. The law takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men...But a more satisfactory explanation is that, when men live in society, a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare...[ A man's] congenital defects will be allowed for in the courts of heaven, but his slips are no less troublesome to his neighbors than if they sprang from guilty neglect...When a man has a distinct defect of such a nature that all can recognize it as making certain precautions impossible, he will not be held answerable for not taking them...

***The best part, and most clear statement of the law I've ever read or heard***

A man may have as bad a heart as he chooses, if his conduct is within the rules. The standards of the law are external standards, and however much it may take moral considerations into account, it does so only for the purpose drawing a line between such bodily motions and rests as it permits, and such as it does not. What the law really forbids, and the only thing it forbids, is the act on the wrong side of the line, be that act blameworthy or otherwise

Reading that gives me chills!! I know that may not mean much to you, but to me it illustrates what I have always felt about the law...namely, it is what we make it and while there is a strong correlation between being moral and lawful, the two are not mutually exclusive. There are wicked people that are law abiding citizens, and piously moral people that do unlawful things. It is important to keep the two concepts separate, especially for a lawyer. You don't have to prove or disprove someone is a good person, you do have to prove they were lawful/unlawful. That passage just really excited me! I like Justice Holmes, its not the first time I've read an interesting passage of his. Remember, always be lawful be moral at your own discretion.

Marqus A. Cole
Keep Clawing Away...

Bar Review

Riddle me this, Riddle me that

What does a stressed out law student who has spent hours thinking like a lawyer do to unwind?

Drink like a lawyer of course!

Personally I think it is more a kin to drinking like a pirate, but that is neither here nor there. Last night I hit the town with a a group of my new friends, and it was 'interesting' to say the least. An adventure that includes several bars and clubs, randomly crashing peoples apartments, cabs & trains, and peeing on dumpsters. That kind of night? Yeah it was.

So as always let me just make a note here that names have been changed to protect the parties involved, lol, and because the names aren't important the story is. With that being said

I should backtrack a bit and put the story into a bit of context. Yesterday was the end of a busy first week of law school. The stress of being in a new environment, learning new material, new people, and general anxieties, like a steam pot all that pressure built up and needed to be released. Friday I don't actually have class so I had a chance to decompress a bit during the day. I slept in (till 9) got up and watched a little ESPN. After that I spent about 5 hours reviewing all my notes from the week, and rereading the cases with eye to the new principles I had learned. To my pleasure, I found that not only did I understand the material a lot better now, but I could make my own intuitive leaps and bounds.

Well all that reading and typing at home for hours definitely made for a sense of adventure. The Family and Law Society was hosting a "Welcome back to School" Mixer at a Bar Louie down the street from the school and quite a few 1L's were invited. I met up with Lacie and another girl from my section and we walked with a few upperclassmen to the bar. The bar had $3 Stellas and half off appetizers. A quick note should be inserted here, while I do drink, Beer is really not my thing. Here that is all most people tend to drink, so I'm trying to be open and try new things, plus it was only 3 bucks. That being said, that beer sucked. It just tasted bad to me, I don't know.

Back to the story though. So We get to the bar and about 20 or so people end up showing up; it was a good mix of new people and upperclassmen. I met up with a guy named Javier from my class who sits in front of me and we chopped it up at the table. He seems like an interesting dude and he is from Chicago. I get the sense we are going to be pretty good friends, there are not many minorities in our section (out of 70 students, I am the only black male if that gives you some reference) so we had some things in common and kind of talked about our takes on the week. Courtland, another girl from our section that sits up front with us showed up and she kicked it for awhile as well. She actually went to Spellman so it was nice to have someone else that had lived in Atlanta to talk to.

I made one of those game time executive decisions that the 3 of us should go check out her place and have some drinks before we went out later so that we wouldn't have to buy at the bar. The happy hour was over at 7 and we had a bday get together to go to at 10 for Marty later on. Courtland lived around the corner and had some Rum so we hopped a cab and went to her place. From here the story really goes down hill (i.e. gets more entertaining). Courtland buys a few bottles of wine and some more rum and we start in. As more and more liquor flowed, strangely are tongues loosened up and we got to know each other a little better and talked about school some more. Javier and I ended up free styling, at which point I knew I was really good, so me and him decide to take a cab to SideTrack the bar Marty wanted to go to.

So during the cab ride we are talking to the cabbie and making jokes with him. We've both been drinking so much that we have to piss, so we get the cab to pull over in some scheezy alley and Javier hops out and takes a piss and darts back in the cab. We drive for another 5 or so and decide to just hop out and walk the next block or so. Along the walk we had to pee again so we pull off into a side street like 10 ft away from the main street where people are walking all around and pee onto some dumpsters. Finally we make it to the actual bar

So ok SideTrack is in an area called Boy's Town, so you can kind of infer a little about the neighborhood right? Yeah, you are not wrong, but it actually was a good bar. About 10 or so 1L's were there including Mandy (A girl that sits near me in class, and along with Lacie make up 2/4 of our study group). We all started (and I use that term loosely here) with a celebratory shot of tequila to celebrate Marty's bday. From there we moved up stairs where there was a bar that was less crowded and had better music. People were sharing drinks, and discussing the good and bad of law school, and how it felt to get past the anxiety of the first week. The short of it is that we stayed till about 1 or 2 when the bar closed. From there about 6 of us piled into a cab and went off for the next club.

We ended up at some club called Hangge Ups. I say club, but it was really more a bar with a dance floor and a down stairs with some more space. The DJ was not the best by far, but at this point we were all so blowed that anything could have been on and we would have been happy. The club didn't close till 4 and we stayed to make sure. I can not actually remember the last time I literally danced till 4 in the morning. We ended up taking another round of shots of tequila while there. I finally manage to say good-byes to people and walk around a little aimlessly looking for the nearest train to get on. I get on and make the 15 min ride, almost missing my stop because i was so tired.

I walked the block and a half to my place, somehow manage to make it into my room, text everyone that i made it home ok, and pull my clothes off. Needless to say I slept well in my drunken stupor, lol. I woke up regretting it a bit this morning, I was moving slow. I had to take like a 20min shower to freshen my senses up. When I talked to Jahaira she said I was too old to be out till 4 in the morning drinking and dancing, I have to say I think I agree haha, there wont be too many of those.

So im at the library now, killing some time between studying. Im going to take Saturday and Sunday to get ahead on my readings for the week. Maybe if I find some time this weekend I may go to wal-mart, im still looking for a entertainment center for my living room, and a book shelf for my office. But more on that later. So that my readers was how a bar review goes, and that is in effect how Law Students roll, lol.

Marqus A. Cole
Keep Clawing Away...