It’s not the end of the world. Trust me on this. And yes, I know you’ve all heard stories about successful attorneys that failed the bar the first time around. Hey, If JFK jr couldn’t pass………but it doesn’t make you feel any better. I know. So, take a day or two to wallow. You have my permission. Turn on silly movies, grab the Ben and Jerry’s, and curl up on the couch.
But then stop. And realize this is not the worst thing that could ever happen to you. And realize that there are PLENTY of people in the same boat as you, and ALL of you will do just fine.
I know this because most of the students that come to me for private tutoring are repeat takers. And those students end up passing the bar. And they end up getting jobs, and then no one cares that they failed, or how many times they failed. You just have to pull yourself up by your boot straps, realize that you need to do something differently, and try again. I had a student take the bar 13 times, come to me for the 14th, and finally pass. Talk about dedication! If he can tough it out, so can you!
So, why did you fail and what can you do differently?
1) Didn’t put in enough time. This is rarely why students fail. Trust me. Most of my students put in PLENTY of time the first time, and I’m sure you did as well. But, on the off chance that you feel you just didn’t work hard enough, work a bit harder next time. (but please trust me when I say this is RARELY the case).
2) Did not study effectively. You might have put in HOURS and HOURS and HOURS in the library, on your couch, and everywhere else, but perhaps you were doing the wrong thing. I had a student who literally spent 12 hours a day in the library reviewing outlines her first time. Didn’t pass. Why? She was JUST reviewing outlines. Nothing else. This is not effective studying. You need to be doing something active, and merely reviewing outlines time and time again won’t cut it.
3) Your bar review didn’t work for you. Everyone learns differently. There is no “right” way to learn, and thus, no one size fits all bar review. Maybe you need more hands on, one on one help. Maybe you need live lectures instead of a video, or vice versa – maybe you need a video or dvd you can rewind. Maybe you need to spend more time doing questions and less time listening to lectures.
Those are the common themes I see, and most often it’s #2 and #3 that are the problem. How to change?
1) Capitalize on what has worked for you in the past. No, that doesn’t mean that studying for the bar exam is exactly the same as studying in law school. But you know yourself well enough to know what works.
2) Find our how you study best. Are you a visual learner? Audio? Do you need to draw lots of charts and graphs? Figure this out and then run with it. If you’re not sure, then seek out a private tutor (they can also help you figuring out where you went wrong – one read of my student’s essays, and I can figure out how to direct them)
3) Most importantly – DO SOMETHING DIFFERENTLY. The definition of insanity is repeating the same behavior and expecting different results. No one needs insane lawyers, so do something different! Shake it up – find a new bar review, find a tutor, find a new place to study, find new books, try to do more practice questions and less reviewing of your outline.
Whatever you decide, the important thing is to not give up. You can and will succeed.
Thursday, October 29, 2009
Wednesday, October 21, 2009
How To Study For Exams
Most of you have completed midterms by this point, if your professor gives them. You are also probably starting to get into study mode for finals.
So, in the Halloween spirit (because it’s my favorite holiday), I’ve decided to give you some treats. Now, while I can’t give candy over the internet, I’ll give you study tips instead.
1. Use old exams from your professors. Most professors have these available either online, or through your library. If they are not available, talk to your professor, ask if you can practice with old exams. There might be a good reason why he or she hasn’t made them available, or, perhaps it slipped their mind and your request may impress them! Either way, this is the best way to prepare for your exams. First and foremost, you need to practice your writing. Secondly, using your professor’s old exams will give you a good idea of how they write fact patterns and what they are looking for.
2. Use your professors. Go talk to them. Ask for feedback. It is their job. If they were kind enough to give you a midterm or any practice exams, pay attention to the feedback and even ask them to expand. I give my students practice essays before the actual exam, and I always give a great deal of feedback. If your professor does this, thank them and take it seriously. Visit them during their office hours and ask how you can improve. If they don’t give you midterms or practice exams, write something on your own and ask for feedback. They are your best resource, so use them!
3. Do not listen to classmates. They might mean well, they might not. Either way, everyone is different, and they don’t necessarily know anymore than you. Just because the guy that sits next to you in Torts spends 12 hours in the library doesn’t mean that will work for you. Everyone has different learning styles, so don’t try to mimic someone else.
4. Practice makes perfect. Just like I said in 1, practicing your writing is the best way to prepare. Reviewing outlines and notes will only get you so far. If your professor doesn’t have old exams, find something like LawTutor’s Big Pictures, Little Essays or Examples and Explanations. These are books that have sample hypotheticals and sample answers.
5. Learn to apply facts. Learning the law is only the first step. Applying it is the most important step. Take the books I mentioned in 4, or make up fact patterns with your study group, and practice your analysis. The more you do this, the easier I gets. When I was taking constitutional law, I used to meet with my professor and run different fact patterns with her. Not only was it actually fun, but it helped me fine tune my skills. This is what a lawyer does; a client comes in, and gives you facts. You need to then apply those facts to the law. This is also what you need to do on exams.
So, Happy Halloween, and Happy Studying!
So, in the Halloween spirit (because it’s my favorite holiday), I’ve decided to give you some treats. Now, while I can’t give candy over the internet, I’ll give you study tips instead.
1. Use old exams from your professors. Most professors have these available either online, or through your library. If they are not available, talk to your professor, ask if you can practice with old exams. There might be a good reason why he or she hasn’t made them available, or, perhaps it slipped their mind and your request may impress them! Either way, this is the best way to prepare for your exams. First and foremost, you need to practice your writing. Secondly, using your professor’s old exams will give you a good idea of how they write fact patterns and what they are looking for.
2. Use your professors. Go talk to them. Ask for feedback. It is their job. If they were kind enough to give you a midterm or any practice exams, pay attention to the feedback and even ask them to expand. I give my students practice essays before the actual exam, and I always give a great deal of feedback. If your professor does this, thank them and take it seriously. Visit them during their office hours and ask how you can improve. If they don’t give you midterms or practice exams, write something on your own and ask for feedback. They are your best resource, so use them!
3. Do not listen to classmates. They might mean well, they might not. Either way, everyone is different, and they don’t necessarily know anymore than you. Just because the guy that sits next to you in Torts spends 12 hours in the library doesn’t mean that will work for you. Everyone has different learning styles, so don’t try to mimic someone else.
4. Practice makes perfect. Just like I said in 1, practicing your writing is the best way to prepare. Reviewing outlines and notes will only get you so far. If your professor doesn’t have old exams, find something like LawTutor’s Big Pictures, Little Essays or Examples and Explanations. These are books that have sample hypotheticals and sample answers.
5. Learn to apply facts. Learning the law is only the first step. Applying it is the most important step. Take the books I mentioned in 4, or make up fact patterns with your study group, and practice your analysis. The more you do this, the easier I gets. When I was taking constitutional law, I used to meet with my professor and run different fact patterns with her. Not only was it actually fun, but it helped me fine tune my skills. This is what a lawyer does; a client comes in, and gives you facts. You need to then apply those facts to the law. This is also what you need to do on exams.
So, Happy Halloween, and Happy Studying!
Saturday, October 10, 2009
Vicarious Liability; what it is, what it isn’t
So many students, by the time they get to me when taking the bar, are horribly confused on vicarious liability. (It should be noted that this is the same thing as respondeant superior, but I find vicarious liability easier to spell, so that’s what I’m using!) So many first years are confused about it as well. If this describes you, do not be alarmed, you are not alone! Also, do not distress, it’s one of the more difficult aspects of Torts to grasp, so your confusion does not make you an inept or incapable law student. It makes you normal! (well, as normal as any of us law types can be anyway!)
So, here is the nitty gritty on vicarious liability.
Basically, if vicarious liability applies, that means you are responsible for the torts of someone else. You do not have to be negligent in any way, you’re just on the hook. Think of what the term “vicarious” means outside of law school; when you say “oh, I want to live vicariously through you”, you mean you want to sit back and live that persons’ life, or reap the benefits, without doing anything. Same for vicarious liability – you get to sit back and be liable without doing anything.
So, how is this fair? Well, we only apply vicarious liability to certain relationships; the most common being employer/employee or agency relationships. For one to be vicariously liable for the torts of their employee, the person must 1) be an employee (do not forget to analyze this element. If they flat out tell you the tortfeasor is an employee, fine, no analysis needed, but otherwise in an exam you should show why the tortfeasor is an employee, not an independent contractor, since vicarious liability does NOT apply to independent contractors) and 2) acting within the scope of their employment. For an agency relationship it’s much the same; 1) is the tortfeasor an agent, 2) acting to benefit the principal.
That’s all you need. The employer or principal does NOT, let me repeat that again, does NOT need to be negligent in any way. Do not confuse this with negligent hiring or failure to supervise.
So, what does it mean to be “acting within the scope of your employment/agency?” Well, essentially, is the tortfeasor’s actions going to benefit the employer or agent? For instance, (ex 1) if I send my assistant to get me fountain soda down the street (I do this quite often as I have an unhealthy addiction to 32oz glasses of sugar) and he takes my car and hits someone, he was acting within the scope of his employment, since he was acting to benefit me. (Really, I’m not a good lawyer, professor OR tutor without that sugary caffeine). That means that I, as the employer (or more precisely, LawTutors, LLC) is responsible for his negligence. If you notice, the company did not do anything. LawTutors did not tell him to drive recklessly, nor was LawTutors in the car with him. But my assistant WAS acting within the scope of his employment, so by default, the employer (me or LawTutors) is vicariously liable.
Some people will tell you that vicarious liability only applies to negligence. This is not true. It is just true that it more commonly applies to negligence. This is because it is rare that an intentional tort is within the scope of someone’s employment. For example; (ex 2), what if you are on a plane, and the flight attendant comes by your seat, and not liking your wardrobe choice for the day, punches you? You would not be pleased. In fact, your first inclination might be to sue the airline. Well, the flight attendant is most definitely an employee, but was he or she acting within the scope of their employment? Certainly not. I would find it hard to believe that the flight attendant punched you to further the goals of the airline. If they did, the airline has really strange customer service, even for an airline. So, there is no vicarious liability in this example.
However, (ex 3) what if you are at a bar, (I know, law students are too busy studying for that, but go with me on this hypo…..) and the bouncer roughly “bounces” you, committing a battery. Is the bar vicariously liable? Well sure! The bouncer is an employee, and “bounced” you roughly to benefit the bar. That’s essentially what a bouncer does, so unlike the flight attendant example, the bouncer WAS acting within the scope of his employment. What if the bar specifically said “when bouncing people, don’t be too rough”? Well, the bar is STILL vicariously liable because you can not, as an employer, simply avoid vicarious liability because you tell someone NOT to commit a tort.
Now, going back to example 1. There is most certainly vicarious liability, but could there be other kinds of liability on the part of me or LawTutors? Potentially! What if I knew my assistant was an awful driver. I knew he got into accidents at least twice a year, that he never looked where he was going, constantly disobeyed traffic signs, and to top it all off, was constantly texting while driving. And I was perfectly aware of all of this when I handed him my keys. Now, not only am I vicariously liable (as discussed above) but I may also be liable for my OWN negligence; for giving car keys to someone I knew was an awful driver. This is the most important distinction to make – they are SEPARTE torts. DO NOT, under any circumstances, combine the two. I see students analyze vicarious liability all the time in a hypo similar to example 1 by saying “LawTutors is vicariously liable for assistant’s actions because he was an employee and they gave him the keys knowing he was a bad driver”. NO NO NO. TWO SEPARATE torts. DIFFERENT torts. Hammer that in now, and repeat with me- SEPARATE TORTS.
Let’s do another. In example 3 with the bouncer, we have already established that the bar would be vicariously liable since the bouncer was acting within the scope of his employment. Now, let’s add to the facts. What if the bar knew the bouncer had a history of violence? The bouncer’s background check revealed that he had been in and out of jail on several occasions for assault and battery, and was even ordered to take anger management classes. If that’s the case, perhaps the bar might also be liable for negligent hiring; which is DIFFERENT from vicarious liability. With me so far? Seeing how they are separate torts?
Last one – back to example 2. We established that the airline would not be vicariously liable (unless, in some strange customer relations fail, the airline decided to make it part of their policy to punch poorly dressed passengers as a way to get their flights looking a bit better), but does that mean the poor passenger is without a claim against the airline? Not at all. Perhaps there would be a negligence claim against the airline for failure to supervisor the flight attendant, or failure to properly train the flight attendant on how to deal with passengers, or maybe, if, like the bouncer, the flight attendant had a history of violence, perhaps a negligent hiring claim. But the important thing to remember is that none of these is vicarious liability.
So, remember ONE thing when analyzing vicarious liability. The plaintiff only need establish that the tortfeasor was an employee, acting within the scope of his or her employment, and then the employer is AUTOMATICALLY liable. It should also be noted that this does not let the tortfeasor off the hook, they are ALSO liable. So don’t go committing torts at work thinking you won’t be responsible.
I hope that helped clear up any vicarious liability confusion. Even if your first year does not test it often, it comes up on the bar exam ALL the time, so it’s a good idea to master it now!
So, here is the nitty gritty on vicarious liability.
Basically, if vicarious liability applies, that means you are responsible for the torts of someone else. You do not have to be negligent in any way, you’re just on the hook. Think of what the term “vicarious” means outside of law school; when you say “oh, I want to live vicariously through you”, you mean you want to sit back and live that persons’ life, or reap the benefits, without doing anything. Same for vicarious liability – you get to sit back and be liable without doing anything.
So, how is this fair? Well, we only apply vicarious liability to certain relationships; the most common being employer/employee or agency relationships. For one to be vicariously liable for the torts of their employee, the person must 1) be an employee (do not forget to analyze this element. If they flat out tell you the tortfeasor is an employee, fine, no analysis needed, but otherwise in an exam you should show why the tortfeasor is an employee, not an independent contractor, since vicarious liability does NOT apply to independent contractors) and 2) acting within the scope of their employment. For an agency relationship it’s much the same; 1) is the tortfeasor an agent, 2) acting to benefit the principal.
That’s all you need. The employer or principal does NOT, let me repeat that again, does NOT need to be negligent in any way. Do not confuse this with negligent hiring or failure to supervise.
So, what does it mean to be “acting within the scope of your employment/agency?” Well, essentially, is the tortfeasor’s actions going to benefit the employer or agent? For instance, (ex 1) if I send my assistant to get me fountain soda down the street (I do this quite often as I have an unhealthy addiction to 32oz glasses of sugar) and he takes my car and hits someone, he was acting within the scope of his employment, since he was acting to benefit me. (Really, I’m not a good lawyer, professor OR tutor without that sugary caffeine). That means that I, as the employer (or more precisely, LawTutors, LLC) is responsible for his negligence. If you notice, the company did not do anything. LawTutors did not tell him to drive recklessly, nor was LawTutors in the car with him. But my assistant WAS acting within the scope of his employment, so by default, the employer (me or LawTutors) is vicariously liable.
Some people will tell you that vicarious liability only applies to negligence. This is not true. It is just true that it more commonly applies to negligence. This is because it is rare that an intentional tort is within the scope of someone’s employment. For example; (ex 2), what if you are on a plane, and the flight attendant comes by your seat, and not liking your wardrobe choice for the day, punches you? You would not be pleased. In fact, your first inclination might be to sue the airline. Well, the flight attendant is most definitely an employee, but was he or she acting within the scope of their employment? Certainly not. I would find it hard to believe that the flight attendant punched you to further the goals of the airline. If they did, the airline has really strange customer service, even for an airline. So, there is no vicarious liability in this example.
However, (ex 3) what if you are at a bar, (I know, law students are too busy studying for that, but go with me on this hypo…..) and the bouncer roughly “bounces” you, committing a battery. Is the bar vicariously liable? Well sure! The bouncer is an employee, and “bounced” you roughly to benefit the bar. That’s essentially what a bouncer does, so unlike the flight attendant example, the bouncer WAS acting within the scope of his employment. What if the bar specifically said “when bouncing people, don’t be too rough”? Well, the bar is STILL vicariously liable because you can not, as an employer, simply avoid vicarious liability because you tell someone NOT to commit a tort.
Now, going back to example 1. There is most certainly vicarious liability, but could there be other kinds of liability on the part of me or LawTutors? Potentially! What if I knew my assistant was an awful driver. I knew he got into accidents at least twice a year, that he never looked where he was going, constantly disobeyed traffic signs, and to top it all off, was constantly texting while driving. And I was perfectly aware of all of this when I handed him my keys. Now, not only am I vicariously liable (as discussed above) but I may also be liable for my OWN negligence; for giving car keys to someone I knew was an awful driver. This is the most important distinction to make – they are SEPARTE torts. DO NOT, under any circumstances, combine the two. I see students analyze vicarious liability all the time in a hypo similar to example 1 by saying “LawTutors is vicariously liable for assistant’s actions because he was an employee and they gave him the keys knowing he was a bad driver”. NO NO NO. TWO SEPARATE torts. DIFFERENT torts. Hammer that in now, and repeat with me- SEPARATE TORTS.
Let’s do another. In example 3 with the bouncer, we have already established that the bar would be vicariously liable since the bouncer was acting within the scope of his employment. Now, let’s add to the facts. What if the bar knew the bouncer had a history of violence? The bouncer’s background check revealed that he had been in and out of jail on several occasions for assault and battery, and was even ordered to take anger management classes. If that’s the case, perhaps the bar might also be liable for negligent hiring; which is DIFFERENT from vicarious liability. With me so far? Seeing how they are separate torts?
Last one – back to example 2. We established that the airline would not be vicariously liable (unless, in some strange customer relations fail, the airline decided to make it part of their policy to punch poorly dressed passengers as a way to get their flights looking a bit better), but does that mean the poor passenger is without a claim against the airline? Not at all. Perhaps there would be a negligence claim against the airline for failure to supervisor the flight attendant, or failure to properly train the flight attendant on how to deal with passengers, or maybe, if, like the bouncer, the flight attendant had a history of violence, perhaps a negligent hiring claim. But the important thing to remember is that none of these is vicarious liability.
So, remember ONE thing when analyzing vicarious liability. The plaintiff only need establish that the tortfeasor was an employee, acting within the scope of his or her employment, and then the employer is AUTOMATICALLY liable. It should also be noted that this does not let the tortfeasor off the hook, they are ALSO liable. So don’t go committing torts at work thinking you won’t be responsible.
I hope that helped clear up any vicarious liability confusion. Even if your first year does not test it often, it comes up on the bar exam ALL the time, so it’s a good idea to master it now!
Thursday, October 8, 2009
MIDTERM SPECIAL
MIDTERM SPECIAL - from now until November 6th, 2009!!
For a limited time only, you can purchase “Big Pictures, Little Essays” AND the “Big Picture Cds” for ONLY $49.95. This is normally a $99.95 value, and the first time LawTutor’s materials have been half off!
If LawTutors is tabling at your school, you can make this purchase at the table. Or you can call the office at 617-738-4800, or email us at info@lawtutors.net. If you need the materials shipped, there will be a $10 shipping and handling charge.
In addition, we are running a midterm special on One on One Tutoring:
If you purchase a one on one tutoring package between now and November 6th, you will get extra hours!
If you purchase a 10 hour package, you will receive 2 hours for free. If you purchase a 20 hour package, you will receive 5 hours for free. The package will not expire for a year, so if you purchase 20 hours now, you will have a year to spread out those 25 hours. That’s why it’s such a great deal to get the extra free hours now!
In addition, the materials fee for first time students will be $99.95 instead of the normal $150. Again, the first time the materials have been on sale, so take advantage now!
For a limited time only, you can purchase “Big Pictures, Little Essays” AND the “Big Picture Cds” for ONLY $49.95. This is normally a $99.95 value, and the first time LawTutor’s materials have been half off!
If LawTutors is tabling at your school, you can make this purchase at the table. Or you can call the office at 617-738-4800, or email us at info@lawtutors.net. If you need the materials shipped, there will be a $10 shipping and handling charge.
In addition, we are running a midterm special on One on One Tutoring:
If you purchase a one on one tutoring package between now and November 6th, you will get extra hours!
If you purchase a 10 hour package, you will receive 2 hours for free. If you purchase a 20 hour package, you will receive 5 hours for free. The package will not expire for a year, so if you purchase 20 hours now, you will have a year to spread out those 25 hours. That’s why it’s such a great deal to get the extra free hours now!
In addition, the materials fee for first time students will be $99.95 instead of the normal $150. Again, the first time the materials have been on sale, so take advantage now!
Friday, October 2, 2009
MPRE SEMINAR DATE CHANGE
The LawTutor's MPRE seminar has been moved from October 11th to October 17th, due to Columbus Day Weekend.
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