Welcome

Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


I am most conservative and appropriate in my approach so if you comment and/or have questions to ask, please do so with an equal degree of appropriateness.



I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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DISCLAIMER

THIS SITE IS NOT AFFILIATED WITH, APPROVED BY, OFFICIALLY REPRESENTATIVE OF OR FINANCIALLY SUPPORTED BY CONCORD LAW SCHOOL OR ITS AFFILIATES OR PARENT COMPANIES.

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I have no set schedule of posting, but I hope you will check in from time to time.

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Monday, February 28, 2011

21 – Why Some Students Fail to Succeed in Law School

Why Some Students Fail to Succeed in Law School

I often hear from students who are not or who have not “made grades” in law school and who will be or have been academically dismissed.  I understand the devastation and the heartbreak that most students feel – and the embarrassment.  I was not always the best law student, but I used a lot of what follows, and it worked out pretty well.

For some students, law school is easy.  For many students, law school is “doable.” For some students, law school is just not for them.  It is not where they should be.

Faced with being academically dismissed, it is difficult to sort through these categories.  One’s ego or poor self-perception often will take over and lead to the wrong conclusion.  I want to encourage you, if you are in this position, not to, too quickly arrive at a wrong conclusion.  Take some time before you judge yourself.  Look at your options for the future and prepare to move on.  One never knows what the future holds.  I believe that things happen for a reason, and that years later, one can see what he has and who he is that is positive – see things that he would never give up now, even IF she could change the past.  Sure there is a nagging sense of loss or failure.  Most everyone feels that way over something.  Don’t let that rule your life.

Maybe you will decide that law school just wasn’t for you, but I believe most students fit in the category that law school was doable, but for whatever reason, “I just didn’t get it done.”

The purpose of this article is not to bemoan what has happened and try to analyze all of that, but rather to catch “I’m not getting it done” before you reach the point of academic dismissal looms in your future or reached the point of no return.  For those of you who are too far down that road though, please accept my encouragement to move on in life’s great adventure.  There are many alternate pathways to take that will lead to a life well-fulfilled.

Now, for those of you who are early enough in your law school life, let’s try to figure out what to do.  If law school is easy for you and/or you are doing well, you can still read on.  The following may help you, too.

1.      See if you can honestly place yourself in one of my first two of three categories.  I don’t think my categories are magical or profound.  There are certainly other ways to categorize and there may be a number of steps between my categories that many people can see.  What I would like to express to you is that for most people, law school is doable.  So, don’t give up.  The key is being honest and to set appropriate expectations.  Most people don’t ace law school.  In fact, in my judgment, law schools who allow many students to ace law school may be “dumbing down.”  There is a lot of financial pressure on law schools and law professors to keep students matriculating from IL to 2L to 3L to 4L.  There may be social and political pressure as well.  I don’t want to castigate those schools.  That pressure exists everywhere.  I feel it myself, from time to time, though I am fortunate that my law school has never pressured me to raise my grades.  Our approach is always “How can we get students to perform better?  What can WE do to get students to perform better?”  I don’t condone the dumbing down due to financial, social or political pressure.  I’m just saying that I understand it and sympathize with it.  But, first steps first:  Can you conclude that law school is doable or that law school may not be easy, but you are doing well and want to do better?   If so, set appropriate and reasonable expectations.
2.      Determining appropriate and reasonable expectations is not necessarily establishing how smart you are.   Determining appropriate and reasonable expectations is being practical, logical and wise.  Do some investigation.  Has anyone in the history of your school every received a grade of 100?  If so, how often does that happen?  If not, you are being impractical, illogical and unwise to expect that you will be the lone exception.  If a grade of 100 is given all of the time, personally, I would be skeptical of the school.  If it is given sparingly, to the most exceptional students, then you will have to ask yourself “Am I this most exceptional student?”  If not, receiving a grade of 100, or at least most grades of 100, is not an appropriate and reasonable expectation.  Of course, this line of appropriate/reasonable expectations’ thinking does NOT mean you should not do your very best – you SHOULD do your very best.  The point is, if you set appropriate and reasonable expectations and if you exceed those expectations, you can be proud.  If you meet those expectations, you can be pleased.  Under these circumstances, if you do not meet those appropriate and reasonable expectations, the issue is not that you are stupid.  The logical conclusion is that you did not apply yourself well enough or you have not been successful at learning and/or applying the proper techniques and patterns to legal studies.  If this is the case, then you can focus on techniques and study habits for improvement.
3.      Let’s assume that you have established appropriate and reasonable expectations and you have not met those expectations.  If you have followed the first two steps, above, then you will need to work on techniques and study habits.  Of course, you may need to go back and modify steps one and/or two and try again.  You may need to give yourself a swift kick and quit messing around.

I would like to refer you back to the beginning of my blog under the topic of “Succeeding in Law School.”  There are some suggestions there for improving techniques and study habits.  If that is confusing, drop me an email and we’ll see what we can work out.

Most students have high aspirations for law school and the career that would follow.  I don’t doubt that.  Most students, in my opinion, can make it in law school, even if they never come close to the Dean’s List or Law Review.  There are many things that get in the way of a legal education.  You may have family, social or employment obligations.   You may have medical challenges.  You may have a whole host of these issues and you may have to make some difficult decisions.

I think you should sit down right now and list all of the obligations and challenges that you have – all of those things that take your time and energy (except don’t put law school on the list and don’t make any judgments – yet).  In fact, talk with family and friends and ask them what THEY think are your obligations and challenges.  Include all of these things to your list.  Then, you should prioritize everything on your list.  Take some time with this.  Review it every day for a brief time until you are comfortable with the list.  If you are having trouble with the list, make a copy of a professional calendar or make one yourself from scratch.  Use something that has fifteen minute (or shorter) intervals.  Keep track of everything you do.  Do that for a week and then you will be able to sit down and see on what it is that you spend your time.  You should be able to use that calendar to help form your list.

I used to do this for myself, though I don’t think I have to at this point.  I could see very clearly where I was losing valuable time on unimportant matters.  I have advised a lot of people over time to do this.  They have all told me how valuable was this exercise, and they were amazed at their wasted time. 

Don’t confuse rest time or time playing with the kids or talking with your spouse or friends with waste.  These things are perfectly valid use of time.  On the other hand, some or all of these things may be excessive.  For instance, I like watching TV.  It allows me to “veg out.”  I can shut down my mind for awhile, laugh or think about “who done it.”  I like to sleep a little more now days than I used to sleep.  But, if my time is limited, these are areas where I can save time.  You’ll have to use your best judgment to know where you can save some time.  Be careful with this.  Kids and spouses can be irrevocably broken if neglected.  Watching TV or talking on the phone tends not to hurt people.  However, keep in mind “moderation in all things.” 

At any rate, once you have determined your priorities from your list, now – not before this – you can place law school in the appropriate spot on your list.  Once you have done this, it is time to face the music.  The question is, “Based upon my priorities and the time involved for the main priorities, do I realistically have the time to make law school doable?”  If so, then “get crackin.”  If not, it may be time to bail.

Let me know where I am wrong and why.  Let me know what you would add or delete.  Perhaps I can use that to further help law students.

Good luck.


Professor Holden
© 2011.  Douglas S. Holden.  All Rights Reserved.

Wednesday, September 15, 2010

20 - Confusion About Succeeding in Law School – Where to Start When You Feel Overwhelmed

20 - Confusion About Succeeding in Law School – Where to Start
When You Feel Overwhelmed

When you are overwhelmed, always return to the basics. This approach is true for law school as well.

Start on the first day of law school. Yes, I know, you weren’t feeling overwhelmed on the first day of law school. This is why I have, for many years, started the first class of each year by telling my students how hard it is going to be. Then I try to give a variety of tools to help manage the difficulty. You might want to review my previous blog under this title, Succeeding in Law School. Many are already there.

One of the first things I tell students is that you must read with the purpose of understanding what you are reading rather than having the purpose of merely getting the reading assignment done. The easiest way to do this is to look at the table of contents of your book and look at the topic. You have to say to yourself, “When I am finished reading, what am I supposed to know?” Then, when you have finished, you must have an honest self-assessment. Do you really know it? If you can pick out a stranger and explain it so it is understandable, then you have accomplished the task. If not, then do it all over again.

I hear all of the time from students who say, “I don’t know why my grades are low. I really know the law.” Generally, I can ask a few questions to illustrate to the student that s/he really doesn’t know the law very well at all. Don’t kid yourself. I know from experience that most students who are receiving low grades really don’t know the law all that well.

I also hear a lot, “I know the law, but when the exam starts I just freeze and can’t think.” Again, don’t kid yourself.

You will be much better off admitting that you do not know the law very well and then resolving to know the law well enough to perform and score well on the exam.

How do you do this? That’s the next blog.

Professor Holden
© 2010. Douglas S. Holden. All Rights Reserved.

Monday, September 13, 2010

19 - Confusion About Succeeding in Law School – The Legend of Ron

19 - Confusion About Succeeding in Law School – The Legend of Ron

I think there is continuing confusion regarding succeeding in law school. See if the following helps:

Law school is hard. When my students ask me the famous Ed McMahon question to the late, Johnny Carson, “How hard is it?” I respond that it is dern hard.

When I went to law school, one of my best friends was a guy by the name of Ron. Ron was the smartest person I knew at the time and he was certainly the smartest person in all three sections with which I started at Pepperdine University School of Law. This guy was a former Jesuit (Catholic Seminary) candidate, but had dropped out to pursue law. He was raised in Catholic schools and took the full benefit of the rigors of the parochial school. Catholic schools were famous for being academically demanding. They read, read, read and memorized, memorized, memorized. Much was required of students, academically. To make things worse, for students like me, was that Ron had a photographic memory. I remember at the end of the first semester of my first year, I was sitting around with a group of students and we were discussing some particular legal issue. There were various positions taken with the gusto that only a first-year law student wanted to express and no one was backing down. Until –

Until Ron quietly stated that he remembered a case that was on point. Some of us thought to ourselves, “Yeah, right,” but Ron knew the name of the case as well as the holding of the case. That’s not so bad, you are probably saying, but listen to this: This was a case we had read for the first week of class! That’s not so bad, you are probably saying, but listen to this: Ron remembered the PAGE NUMBER of the case from our case book!

YOWZER!

I knew right then and there, I couldn’t compete with that. Now, I was an extremely competitive person; the type of competitiveness that comes from being one of five kids in a family; and the type of competitiveness that comes from years of competitive sports. But I instantaneously knew I could not compete with Ron. I was impressed as well as devastated. Ron went on to become the editor of the Law Review. Me? It took me a year and half to catch on in law school.

In my last year in law school, I was given a project by one of the attorneys I worked for. I had to write an extensive paper on a particular and unique legal issue. Having no clue, I went to Ron and asked if he had any thoughts. He politely refrained from saying, “DUH,” quoted me THE case AND the CITATION and took me to the library and pulled the book off the shelf!

The point is that not everyone is a person like Ron. Law school is hard and it is supposed to be hard. Here’s my advice: Get over yourself and “Suck it up, cupcake!” You don’t have to be like Ron. What you have to be is dedicated. You have to succeed – pass.

But, I did. And so can you.

Let’s take the next few posts to figure out how to succeed; how to pass.

Professor Holden
© 2010. Douglas S. Holden. All Rights Reserved.

Monday, September 6, 2010

16 – The Privilege of Being an Attorney - The Privileged Path and Sacrifice: Faith, Family and Football

16 – The Privilege of Being an Attorney - The Privileged Path and Sacrifice:
Faith, Family and Football

Years ago, I had the privilege of sitting in a small room with a limited number of people and listen to Tom Landry speak. For those who do not know who Tom Landry is, he is the late, legendary football coach of the Dallas Cowboys. I’m not sure this was the title of his talk, but he spoke of his priorities in life. He described them as “Faith, Family and Football.”

Coach Landry later died of cancer, but listening to him impacted me greatly. I knew these things, of course, but this “living legend” spoke with courage and conviction, but yet with grace and humility. He was soft-spoken, kind and friendly. Good characteristics for anyone.

Well, I’m not necessarily endorsing “Faith, Family and Football,” but what I took Coach Landry to be saying was that the priorities of life are most important. To this football coach, Tom Landry rated faith first, then family and finally his occupation and life-long pursuit, last. Do you find that interesting? I certainly understood it, but to see someone like Tom Landry advocate it was really something.

The pursuit of a legal career is demanding – emotionally demanding, time demanding, character-demanding. It starts in law school and virtually never ends. It will take its toll on one’s faith, family, health, friendships – pretty much everything. So what do you do about it? First and foremost, develop your priorities and visit that list often. Do you need more time to study? Work? This is YOUR career choice, so YOU should make the sacrifice. Don’t require that of others. Don’t steal from those things on the top of the list. Decide now how you will handle it. Put up signs all around you to look at – and remember. YOU can put up with a bit less sleep. You can take time from your hobby rather than from time with your spouse and children.

Law school lasts for three or four years. Life continues after that.

Think it through. Make good choices.

Professor Doug Holden
© 2010. Douglas S. Holden. All rights Reserved.

Friday, September 3, 2010

15 - The Privilege of Being an Attorney (Part 1)

15 – The Privilege of Being an Attorney

I began the practice of law in 1977 after graduating from Regis College (now, Regis University) in Denver, Colorado, and Pepperdine University School of Law in Malibu, California, (though when I attended Pepperdine, the law school was located in Anaheim, California).

Since reading my first Perry Mason novel and watching Raymond Burr play the part of Mason on television, I dreamed of being an attorney. I guess my first choice was to be a professional football or baseball player, but after high school, reality set in, and I realized that I was not big and fast and, compared to others athletes I encountered in college and in the military, lacked substantial talent.

It was a tough lesson, but one that was deserved and needed. I dropped out of college after a semester and faced with the draft during the Vietnam war (June of 1966), I enlisted in the Air Force. After finishing boot camp (Lackland Air Force base – San Antonio, TX) and technical school (Shepherd Air Force base – Wichita Falls, TX), I married in October 1966 to my high school sweetheart and promptly went to Fuchu AFB in Fuchu, Japan. Sandy joined me a few months later and our first (of two) son was born in neighboring Tachikawa AFB, Japan, in May of 1968. Our second son was born in Chicopee, MA (Westover AFB) in October 1969, where I spent my final two years before being honorably discharged after four years of service. Though I yearned to be an attorney or a professional athlete, as I review my life, the events in this paragraph are the most profound in my life – these and my Christian development.

Why comment on these matters? Because the path one takes, or is led and/or permitted to take, in life is generally neither a straight, wide path nor a path of green, lush grass strewn with bright, red and white rose petals. Rather it is, most often, ladened with twists and turns, thorns and thistles, hills and valleys, trouble and heartache – all of which, I am convinced, are not only necessary, but good for the heart and soul.

If you are a law student, especially a first year law student, the probability is that you are somewhere on this path and it has crossed your mind that maybe this is not the place for you to be and you should choose another path and profession. Since I have “been there, done that,” I felt I should talk to you about this path – The Privilege of Being an Attorney.

Let me fast forward to today, as I write this as an attorney since 1977 and a Professor of Law since 1999. How does that sound? Yes, I am privileged – not of my own making – but privileged nonetheless, because of the path.

Law school wasn’t easy and there was a time I didn’t think I would make it. Practicing law was hard and intense and there were times when I contemplated giving it up. Teaching law has been intellectually challenging and seemingly over my head from time to time. But perseverance produces maturity and rewards beyond what one can imagine.

Many people contemplate and pursue law school because they want to change the world or become rich or obtain fame and prestige. I suppose that is human nature, but I have come to understand that selfish motives almost always produce heartache. Been there, done that.

Along the way, I have made many mistakes. I have tried to correct them. But I have also been privileged to sit face to face with those who have no hope or those who just need help. I don’t think I have made a difference in the world, but one person at a time, yes, for the most part, I think that has happened. Not that I should take personal credit for any of that – that is a story for a different time and medium.

The point of all of this is that, as a law student, you are on the privileged path; one that not everyone is able or desires to take. I so trust that you will persevere. That you will “appropriately” sacrifice so as to reach the end of this law school path and then be able to make a difference – one person at a time. I wish you the very best in that endeavor.

I think what I may do for awhile, is revisit the topic of succeeding in law school, and try to delve more deeply in how to succeed. So this is the first step: It is a Privilege. But with privilege comes sacrifice. Next, I’ll make a few comments about what is an appropriate sacrifice and some things one should not sacrifice.

I hope these topics will be beneficial for you. I would be happy to hear from you.

Professor Doug Holden
© 2010. Douglas S. Holden. All Rights Reserved.

Monday, July 26, 2010

Clarification - Contracts - Statute of Frauds - Suretyships

I have recently been asked to clarify the issue of primary and secondary promises regarding suretyships in the statute of frauds. Please refer to the post: 11 – Contracts – Formation (Defenses – Statute of Frauds – Part Two). It was written on Tuesday, April 20, 2010. The question is from Jay:

Could you please try to clarify the primary vs. secondary promise. I was unable to follow your explanation.
What I gather:
C acting as surety for A.
a) If C acts substantially for their own benefit = Primary Promise. No need to be in writing, no need for consideration. Separate agreement, K formation rules apply including need for consideration?
b) If C acts primarily for A = Secondary Promise. Must be in writing, needs consideration. Attaches to existing debt agreement and doesn't need consideration??
Seems like I'm crossing up the two options somewhere.

Here is the Blog section in question:

Guarantee (Suretyship) Provision

The guarantee, or surety, provision covers a promise to answer for the debt of another (secondary promise). Keep in mind here, the situation is where person A enters into an agreement with person B, where B gives something of value, whether goods, services or other non-goods property, like real property, and A is supposed to pay a certain consideration to B. Person A can’t pay person B, so A goes to person C and asks C to agree with B to pay this debt agreement. C is acting as the surety/guarantor for A’s promise to pay B.

If the guarantor or surety is contracting for his own benefit/purpose, or at least, substantially for his own benefit/purpose, then it would not be a secondary promise as far as the surety is concerned. If the surety is contracting for the primary benefit/purpose of someone else, that’s what makes the agreement a secondary agreement. The purpose of the suretyship is not primary to the surety, but rather it is primary to the other person. All of this is called the “primary purpose” rule or the “leading object” rule. So ask the question “Is the “leading object” of the surety’s promise to benefit the surety or the other person?”

Why is this important? Two reasons: First, if it is a secondary promise, the agreement must be in writing. If it is a primary promise (as far as the surety is concerned), then it does not need to be in writing. Second, if it is a secondary promise, the agreement must be supported by consideration. If it is a primary promise, the Suretyship agreement does not need to be supported by consideration. The policy behind all of this is that an ordinary suretyship is not a separate contract – it is appended to the debt agreement and the consideration of the debt agreement is sufficient. If the suretyship promise is for the primary purpose of the surety, then it IS a separate agreement that must, under basic “formation of contracts” principles, be supported by a separate consideration.

Explanation: Remember that the statute of frauds (SoF) states that certain kinds of contracts must be in writing in order to be enforceable. One type of contract that must be in writing is the guaranty or suretyship contract – where one party agrees to pay the debt of another. Usually the whole question you are expected to address in an essay or other type of exam is whether or not the contract is, in fact, a suretyship contract. You make this determination by looking to see if it is a “primary” promise or a “secondary” promise. This portion of the SoF applies only to secondary promises. In other words, if, as between B and C, it is a primary promise, the SoF does not apply and the contract does not have to be in writing.

How do you tell if it is a primary or secondary promise? The example above is: A enters into an agreement with person B, where B gives something of value, whether goods, services or other non-goods property, like real property, and A is supposed to pay a certain consideration to B. Person A can’t pay person B, so A goes to person C and asks C to agree with B to pay this debt agreement. C is acting as the surety/guarantor for A’s promise to pay B.

The “primary purpose” rule or the “leading object” rule requires you to ask the question “Is the “leading object” of the promise to benefit the surety or the other person?” If the leading object or primary purpose of the contract is to benefit the original obligor or promisor (Person “A”), that contract must be in writing. Since the primary purpose of Person C is to benefit Person A, Person C is the surety or guarantor. If person A does not pay Person B, Person B can require Person C to pay the obligation IF the contract is in writing. Obviously the contract must be otherwise valid – mutual assent (offer and acceptance) and consideration.

On the other hand, if the primary purpose of the contract is to benefit Person C, then it is not a suretyship contract. It is primary between Person B and Person C. Again, the contract must be properly formed in order to be valid – mutual assent (offer and acceptance) and consideration. In this case, though there may be consideration between Persons A and B, there is NO CONSIDERATION between Persons B and C in our example. So, the contract does NOT have to be in writing (assuming other provisions of the SoF do not apply), but the agreement still requires consideration as between Persons B and C to be enforceable.

In our example: Contract between A and B (with C as the alleged guarantor) has mutual assent and consideration, but there is no consideration between C and B. B can enforce the contract he has with A. Can B enforce the contract against C as a guarantor? If C is, in fact, a guarantor, the answer is yes IF the contract is in writing – even though there is no consideration between B and C – since consideration is not necessary between B and C because it is a suretyship agreement. The consideration that validates the contract is between A and B. On the other hand, if C’s primary purpose is to benefit himself, B cannot enforce the contract against C AS THE GYARANTOR. B cannot enforce the contract against C by saying that he (B) has a stand-alone contract with C either. Why? The contract must have mutual assent (offer and acceptance) between B and C – let’s assume it does. It does not have to be in writing, but it still must have consideration between B and C. It does not, so B would lose this argument also.


A -> B with mutual assent and consideration. C is guarantor (primary purpose to benefit A). B can enforce against C even though no consideration between B and C IF the contract is in writing.

A -> B with mutual assent and consideration. C agrees to guaranty , but is not a guarantor (primary purpose to benefit C). B cannot enforce against C  as guarantor even though the contract is in writing, since C's primary purpose is to benefit himself.  If B sues C based upon a direct contract between B and C, , also loses since there is no consideration between B and C  - even if the contracts is in writing.

I hope this is helpful.

Professor Doug Holden
© 2010. Douglas S. Holden. All Rights Reserved.

Saturday, July 24, 2010

Some New Articles Coming

I have received a couple of comments about taking a hiatus from the blog until September.  Keep in mind, it is only temporary.  I need to recharge my batteries and contemplate some new topics.  Right now, I am working on some new articles about succeeding in law school.  In addition, I want to start writing articles for my other classes - Corporation and Business Organizations as well as Trial Advocacy.  I am also speaking to the Concord Law School Federalist Society student group on August 8, 2010.  There meetings are held in a "PalTalk" room.  If anyone is interested in attending that session to listen and participate, let me know and I will contact the president of that group to see how to get you access.  The topic will be "Originalism/Textualism."  I am the faculty sponsor of that group and it is an honor to be asked.

If you have any requests, now would be a good time to ask.

Professor Doug Holden