One L (21 page)

 

Reviewing for law school exams proved to be some of the most arduous study I've done in my life. Many of the 2Ls and 3Ls who returned in January faced four or even five exams. The 1Ls had only the two, but the job of getting ready still seemed staggering to me. Between the two courses, we'd covered about 1,800 pages of cases, all of it dense reading and much of it worth remembering. I also had taken over 500 pages of class notes, not to mention the hornbooks, outlines, and briefs, many of which I was actively consulting. Even on second encounter, none of that material was instantly comprehensible. There were many things I'd passed over or missed the first time which I felt I had to wrestle through now.

So I spent a lot of time—between 200 and 250 hours-preparing for those tests. When we got back to Massachusetts I put myself on a sixteen-hour-a-day schedule. There seemed no other way to cram all that material in. And after all the work I'd done throughout the term, this hardly seemed the time to cut corners. Annette did her best to ignore me. I sat in my study, making notes, poring over case books, or hornbooks, or notebooks, or Gilbert's.

As taxing as the volume of work, sometimes, was its nature. The typical law school test is what's usually referred to as an “issue spotter.” A long narrative is presented, involving a complicated series of events and a number of actors. The exam generally instructs the student to put himself in the position of a law firm associate who has been asked by a senior partner for a memo describing the legal issues raised.

Inevitably, the narrative has been constructed in such a way that its facts straddle the boundaries of dozens of legal categories. A varying interpretation of a single detail can produce a Merlin-like change in the issues, and often the outcome of the case. For the student, the job is to sort quickly through the situation to try to name the endless skein of applicable rules and also to describe the implications of using one rule rather than another. Like a good lawyer, the student is expected to be able to argue both sides of each choice.

Issue spotters obviously place considerable weight on detailed mastery of the predominant common-law rules—the ones followed by the courts of most states and sometimes referred to as “black-letter law”—and the students at HLS object to them for just that reason. Little of what goes on in classes aims at developing intricate knowledge of rules. In my courses, it was important to be able to work with the rules, to deduce them from cases, to compare and distinguish them; but as the semester went on, more and more class discussion had focused on those philosophical, political, economic, and other pragmatic concerns which justify the rules and usually pass under the name of “policy.” Issue spotters, then, do not seem to test what was learned.

A number of professors are responsive to that criticism. The issue spotter has been a fixture for decades—sixty-year-old and thirty-year-old lawyers were both put through the same kinds of exams—and many teachers admit that the approach may no longer be fully suited to an education which has become more frankly speculative and intellectual. The “discuss the case” essay which Nicky gave us on the practice exam is an example of more open-ended and policy-oriented questions that are now sometimes included on law school tests. Zechman, too, told us not to trouble ourselves with too much learning of dry detail. He wanted us to concentrate on seeing patterns in the material—“the forest,” he said, “and not the trees.” Nevertheless, the Torts test, like every other exam I took last year, would contain an issue spotter. It remains the staple. Professors believe that the most gifted students will discuss the facts thoroughly in terms of both abstract theory and doctrine.

In consequence, I spent much of my time in early January bent over various commercial outlines doing a lot of straight memorization of rules. It was dull, unrewarding work and there was no way around it. Although I would have all the books beside me when I took the exams, time would be far too short to be looking things up then.

After I'd more or less learned by heart the rules in a subject area, I'd go back to my class notes and try to digest the specific policy rationales for the rules. Then, as Zechman had advised, I'd see if I could relate those ideas to the broadest thematic concerns of each course. Holding all of it together in my mind was something of a feat. When I was a kid I saw a TV show about some U.S. soldier who kept himself sane in a Korean prison by designing a house in his head. Learning a law course is much the same kind of process: putting up the struts, the walls, the roof; rule/policy/theory; trying to remember exactly how each of the layers joins and fits. Some students prefer to outline each course themselves, believing that is the best way to capture the flow and organization of the material. Others like to read and memorize prepared aids. A third school says you can sharpen your hold of the course by doing past exams. I've tried a little of each method and never found much difference between them. It's always the same slow accumulation of knowledge, the methodical job of putting that house up nail by nail. And when you get to the roof raising, when the course has really begun to fall together, with the term-long mysteries dissolving and the basic patterns becoming clearer and clearer, the study can seem as gratifying as it was boring in the rule-storing phase.

In all stages, it was largely a personal project. When we got back from Christmas, it became apparent that Stephen and Terry and Aubrey and I were all thinking about the courses in slightly different ways. For that reason, study group sessions were of limited use. We tried on a couple of occasions to get together, but the variations in the way we were preparing and in the progress each of us had made seemed mostly to disquiet us all. We each seemed to leave those meetings with the sensation that we were doing something wrong.

Instead, we resorted to the telephone for sporadic consultations. Whenever there was an area I couldn't quite grasp or a line of reasoning I couldn't follow, I would call Stephen or Aubrey or Terry for advice, and they called me. I was on the phone with one of them between eight and a dozen times each day during the reading period. Inevitably, I got solid instruction from each of them, and some of the comforting I also needed on occasion.

As the exams grew closer we were all becoming tense. My sleep was fitful and a nervous sensation was constantly in my gut. Looking back to the first of Nicky's practice tests, I could not help remembering that I had proven a capacity for screwing these things up.

But the most emotionally telling factor was that persistent double bind which I still couldn't get away from: I badly wanted to succeed and I sorely feared failing. These abstract ideas raised far more powerful feelings in me than the mere prospect of getting As or Fs. Exams represented a kind of opening (or closing) world of opportunity—Law Review, clerkships, jobs, honor, prestige—and I both dearly hoped for and dreaded losing the chance at all of those things. There is a native desire, I guess, to avoid limitations.

By the day before the Torts exam I was too keyed up to study much anymore. In the afternoon, I looked over a past exam. In the evening I called Stephen. He sounded as tense as I was, though he was not willing to admit it.

“Listen,” he told me, “we've got a floor under ourselves. You've really got hold of the policy in this course, and the doctrine, and I have too. We're going to do okay. Other people just don't understand this stuff as well as we do. I was over in the Ed School library and for Chrissake, Ellie Winship is still trying to figure out what assumption of risk is. I feel really composed,” he concluded, “I feel very calm.”

I did not. I paced and muttered and stared frozen at my notes until about ten o'clock, when I decided I should go to bed. The most important thing, I knew, was to get a good night's sleep. The exam would be at nine the next morning.

During my first year of law school, my wife put up with a lot of excessive behavior from me. I worked too hard, slept too little. I was always up or down, at extremes. But Annette still thinks the night before the Torts exam was my least collected moment and I won't disagree.

When I went to bed I took a sleeping pill, and after some thought about how nervous I was, a few milligrams of Valium. I was certain that would do the trick. At midnight, I was still awake. I got up and had a drink. It didn't seem to do much. A half hour later, I rose again to have more wine. This time Annette pulled herself out of bed to beg me not to drink again. I was going to kill myself with the pills and liquor, she said. I was going to be crazy with drugs in the morning. I went back to bed. We made love another time. Still no peace. At one-thirty, wild now with drugs and frustration, I rolled out and began to flail at the mattress: I was
trying
to destroy myself, I shouted; I was
insuring
failure. Annette quieted me and went to the living-room sofa so I could have the bed to myself. At two-thirty I got up to tell her to come back. She instructed me to go to sleep. Sometime after three, I finally did.

 

At around six-thirty Annette came in to dress for school and I woke to her stirrings. She kissed me good-bye and wished me good luck and then I got up. I felt horrible. I'd had about three hours' sleep and now the sedatives had taken hold. I was cloudy and numb. My eyes ached and itched as if I'd tucked brambles under each lid. I poured five or six cups of coffee into myself, then, at eight, set off for school. I took my backpack full of books, a thermos of coffee, and my electric typewriter. I was still dizzy and spaced out as I rode down Massachusetts Avenue on the bus, and I thought vaguely that I was doomed.

At HLS students can either handwrite or type their exams. There are separate rooms set aside for each method. I chose to type, because I do all my writing on the machine and feel comfortable in front of it. But the typing room was one of the old classrooms in Langdell, and I realized when I got there that the clatter from thirty or forty machines in a room without carpet was going to be something terrific. I was still too bleary to be overly concerned, but I was grateful when Terry showed up with earplugs for both of us. It was real generosity on his part, not only because he'd thought of me, but also because the tests were being distributed as he arrived and he'd still taken the time to bring the plugs over.

I thanked him and asked how he was.

“Scared,” he answered. “I was on the can all night, man. No sleep.”

“Me neither,” I said. I wished him good luck then turned to the exam pamphlet which the proctor had just handed me. I read the questions. The first was a straight issue-spotter. An M.D. had given a patient a drug still in experimental stages and the series of disasters you come to expect in a Torts course had followed: blindness, car crashes, paralysis—the world, in general, falling apart. We were asked what torts had occurred. The second question was wide open. It was another kind of issue-spotting narrative about a gardener and a tree falling on a neighbor's house, but we were instructed to emphasize theory and policy in our answer. The final question cited three well-known cases on nuisance law and asked for an essay about them.

We had four hours.

What had never quite struck home with me about a law exam was the importance of time. I had realized that we would be tested over a few hours on a knowledge which had taken months to acquire. And I'd looked at past exams. But I'd never really tried to write out an answer. It was only now that I saw that there was not a quarter of the time I'd need to frame a reasonably thorough response. The questions themselves covered four single-spaced pages and even after reading them twice I knew I hadn't recognized half of what was there. As it was, I couldn't figure out how I'd ever write down all of what I had seen. It was all split-second reaction, instantaneous stuff; there'd be no deep contemplation.

I was hit at once with a powerful jolt of adrenalin. It made little difference that I'd felt detached from my body when I'd entered that room. By the time I'd finished reading the questions, I was hopping. My heart started when I heard the first key strike on somebody else's typewriter, but after that, the incredible clatter of forty machines became as vague to me as Muzak. For the most part, I was lost those four hours in the oblivion of the adrenal rush. The promise of an “open book” test proved illusory, as I'd expected. I looked at my casebook for an instant, but that was mostly for comfort; I barely flipped the cover open and shut. There was no time. Proverbial wisdom is to spend at least a third of the exam period planning your answers and I tried to do that. But with my body jumping, I tended to just empty my head. I spent too long on the first question, as it was, and was typing after that in a mad fury.

When time was called, I had written nearly twelve pages. Even as I stapled the sheets and handed them to the proctor, I knew I had made some gruesome errors. But I was exhilarated. I was sure I had passed. The first law school exam. I was going to make it.

Terry took me out to lunch in celebration, then drove me home. I slept the afternoon. At five, I got up to begin studying criminal law.

 

I could not pump myself up the same way for the Criminal test two days off. By the next morning I was a little depressed about the mistakes I'd made on the Torts exam, more of which seemed to occur to me on the hour. It was not that I felt that I'd done poorly; I just realized that I'd missed the chance to do very well. Nor did I feel any of the sharpening effects of first-time apprehensions. I'd seen the monster now.

“They'll never have us that way again,” Stephen said when I spoke to him. Aubrey and Terry expressed similar sentiments. We were all more relaxed, even a little somber. There were fewer of those brainstorms by phone.

Finally, the procedure for the Criminal test made it seem less forbidding. It would be taken in the more comfortable setting of home, and although it would cover no more material than the Torts exam, the test would last eight hours, not four. The eight-hour exam is a relative innovation at HLS. It's designed to ease some of the overwhelming time pressure of the traditional exam. Many professors are sniffish about take-homes. They feel that they do not provide the same stiff trial of mental agility as tests in the classroom. On the other side, there are more than a few students who feel that having twice the time just means doubling the agony. But I found it gratifying to know that I'd have a while to think.