Week Eleven, Part 5 - CivPro: Let’s Party

We have a party on Wednesday in Civil Procedure, although the class doesn’t begin that way. Professor Joseph Bauer starts the hour by reviewing subject matter jurisdiction. For our purposes, this doctrine concerns a federal court's ability to hear a case on a specific subject.

We first look at cases which raise a federal question, that is, there's “a dimension of Constitutional law to the claim.” For example, Bauer says, the plaintiff alleges his 14th Amendment right to due process was violated.

The second type of case in federal court arises via diversity jurisdiction. "DJ" occurs if the parties come from different states and the amount in controversy exceeds $50,000.

Bauer asks, “Now suppose A is from Indiana and B is from New York. A has two claims in her complaint. Count One is for $30,000; Count Two is for $40,000. Is it permissible for A to add up her claims to reach the minimum?” He calls on Rafi Sherwin, an elite weightlifter and PolySci major from Ohio State University.

“Yes,” says Rafi.

Bauer agrees. “A single plaintiff may aggregate all her claims. But suppose A has a claim against X for $30,000, and B has one for $40,000. Does this meet the amount in controversy requirement?”

“No,” says Rafi. He’s quick with his answer, like there’s no doubt.

Bauer tests him further. “Suppose we have common facts. Let’s say A is the wife and B is her husband. While riding in a car, they’re hit by X. Wife's injury is $30,000. Husband is asking for $40,000. May they aggregate?”

Rafi waivers. “No?”

“Are you asking or telling me?”

“Telling.”

Before Bauer can respond, an upperclassman with a sheet cake is standing at the doorway. A few students start in with Happy Birthday.

Bauer ignores them. “You’re correct, Mr. Sherwin. Even though there are common facts, A and B may not aggregate since their claims are separate and distinct.”

We all begin to sing, drowning Bauer out.

He smiles and waits for us to finish. “I sense you don’t want to talk about amount in controversy.”

We clap, and start eating the cake that’s been passed down the row.

A student raises his hand and asks Bauer how old he is.

“When you get my age, you’d rather not say.”

“So it’s an amount in controversy?”

Bauer laughs. “Getting older isn’t much fun, but it beats the alternative.”

Several gifts get passed forward from the middle of the room. The first gift is a blue polo shirt. To the right of the buttons is “95 U.S. 714 (1877).”

“Ah, yes, Pennoyer.” Bauer reflects on his favorite case. “Food for the soul.”

He opens another gift: a pair of red underwear. Bauer holds them up. Stitched on the fly are the words “Personal Jurisdiction.”

Students laugh and cheer. “Woo-woo.”

“The best brief I’ve seen all year,” he says.

More applause.

Before class ends Bauer thanks us for our diligence and attentiveness this semester. He points to the underwear. “I know I'm a pain in the ass,” he says, “but it's intentional.”

* * *

Week Eleven, Part 4 - Safe At Home

Halloween is dark and overcast, and I’m worried about Terri, who’s due to fly in from Florida via Detroit. She has scheduled an early flight in order to go trick-or-treating with Stephanie and Lauren, ages 7 and 5.

About 5:00 p.m. the phone rings. Terri says her flight to Detroit was fine, but then she transferred to a prop plane with 20 seats. It traveled all the way to South Bend, but couldn’t land because of the fog. “So the stupid plane turned around and flew back to Detroit!”

I tell Terri not to worry. It’s cold and rainy. As for trick-or-treating, the girls won’t stay out long anyway.

At 9:00 p.m. Terri finally arrives home. She sits with the girls in front of the fireplace and helps them count their candy. Then she tucks them in bed.

I pause at Lauren’s door and watch as Terri tucks her in. Then I go in to say our bedtime prayer. “Now I lay me down to sleep...”

I stand up to leave.

Lauren asks, “You know what I want?”

“Tell me.”

“A p-u-p for Stephie and me.”

“Why’s that?”

“Because they're so playful.”

“Blue’s a fun dog,” I say, referring to our aging golden retriever.

“Yeah, but pups are more hyper.”

“Harder to take care of.”

“I’d still like one.”

“We’ll see.”

Lauren changes topics. “Before you're born, you're up in heaven, but you can't remember it.”

“Then what happens?” I ask.

“You come down to earth.”

“Wow, you’re smart.” I kiss her goodnight, then go to my bedroom.

Terri chuckles about Lauren’s penchant for spelling words out loud. “Looks like I’m M-o-m until further notice.”

We talk about getting a puppy. I object. Terri’s ambivalent.

“Mark, do you had any idea how much guilt I feel for not getting back?”

“Shikata ga nai. It couldn’t be helped.”

“I should be the one getting the girls dressed up and taking them from house to house. Stephanie and Lauren need me!”

“They’re doing fine.”

I tell Terri about Lauren’s philosophy of where our spirits come from, and her mood lightens.

“It’s like Notre Dame Law School,” I say. “Before I got accepted, it was heaven. But I can’t remember it. And now I’m being born as an attorney.”

Terri laughs. “Let’s hope there are no complications.”

* * *

Week Eleven, Part 3 - Legal Ethics: Supreme Being

In Ethics, Dean David Link introduces the major approaches to right and wrong. He lists them as utility theory, rights theory, and justice theory.

“You may have a feeling of ‘this is the right thing to do’ or ‘it's wrong to lie,” Link says. “But you can also reason to what is right and wrong.”

We look first at utilitarianism, defined as “the greatest good for the greatest number.” Link says, “You evaluate actions by balancing the benefits and costs. Therefore, you might label utility as ‘net benefit theory.’”

He adds, “Aside from being intuitive, it’s an efficient system. Just line everything up and subtract. And utility conforms to political theory. As a general rule, government ought to produce the greatest good for the greatest number of people.”

We discuss the obvious problems of utility theory. “Some costs or benefits are impossible to measure,” Link says. “In fact, sometimes it’s even hard to decide whether something is a cost or benefit.”

The second approach to ethics is justice theory. Distributive justice. Capitalist justice. Socialist justice. Libertarian justice. Compensatory justice. Retributive justice. Link says a few words about each, a Cliff Notes overview.

Link says there are moral conditions put on whether someone may administer retributive justice. “You can't be punished for ignorance or inability. There must be a certainty that the person has done wrong. And any punishments imposed must be consistent and proportionate.”

Hmmm. “You can’t be punished for ignorance.” I’m going to make sure my answer on the final exam includes this phrase, underlined.

The final theory of ethics is rights theory. This rubric includes legal, moral, human rights. Under moral rights, we examine Immanuel Kant’s categorical imperative. “An action is morally right in a situation if the reason for carrying it out is such that you would want every other person to act in the same way with the same reason.” It’s analogous to the golden rule: “do unto others as you would have them do unto you.”

As to human rights, Link says the best listing is the Universal Declaration by the United Nations. On the board Link catalogs the basics: the right to life, self-determination, freedom of movement, food, shelter, clothing.

There are economic rights as well: property, work, just remuneration, even a right to rest and leisure.

“Of course,” Link says, “this final right does not attach during your first year at Notre Dame Law School.”

Link closes. “Beyond the reasoning of philosophy is theology. It provides another way to decide whether an action is right or wrong. Theology is based on the idea of a Supreme Being who cares whether we do right or wrong. Now, various religions have different moral traditions. Judaism is rules orientated; Christianity talks of love. But both these theologies give a prioritization. Utility is down here. Above that justice theory. Then moral rights. This is the order based upon reasoning and belief in God.”

As class ends, I shut down my computer. It was a good lecture, I think. Link cares about the topic and has given it some thought. I like that we started out with the big picture instead of simply looking at the Model Rules of Professional Conduct.

What I’m most concerned with is whether becoming a lawyer will change my approach to right, wrong, and the gray area in between. The temptations are great, I’m sure, given the money and power that accompany the legal profession. I don’t want to become skilled in double-talk, capable of a tax dodge, or inclined to pad my billables. It seems far off, but someday I’ll be an attorney looking in the mirror. I hope I won’t regret what I see.

* * *

Week Eleven, Part 2 - Repeated Questions

The best part of our non-substantive classes – Legal Writing, Ethics, Research – is that there’s no Socratic method. Knowing I won’t face a hostile Q&A relaxes me.

Perhaps I’m not alone in my feelings.

On the 1L board in the basement, someone has taped a photocopy of a pharmaceutical ad. It pictures an old lady with a narrow face, white hair, glasses.

“How do you know if a loved one has Alzheimer’s?” the heading asks.

There’s a list of symptoms below the picture. The first one, “Asks repeated questions,” is highlighted in yellow marker.

In the margin a wag has written: “cf Socratic method.”

* * *

Week Eleven, Part 1 - Legal Writing: How To Manipulate A Judge

In Legal Writing, we finish our opinion letter and turn it in to be reviewed. Our new task will be to write a memo to the court. Ever the non-lawyer, Professor Teresa Phelps tells us that the court memo “occurs around the trial stage somewhere.”

The court memo is a type of persuasive writing. It works to justify a claim.

“Legal argumentation is not formal argumentation,” Phelps says. “There are no syllogisms. We’re not talking about truth. If it were, we wouldn't have two people in front of the judge. It's about justification. It's about who wins.”

Not talking about truth? Any second I expect to hear the sound of Sir Thomas Moore tumbling off his niche on the south wall of Notre Dame Law School.

We review Aristotle’s three sources of persuasion: pathos, ethos, logos. “Pathos is working on the judge’s emotions,” Phelps says. “Put the judge in the proper frame of mind. She wants to make a sound decisions and feel good about the outcome. We do this by characterizing the facts to create a picture. Ethos is giving the judge the right impression of you the writer. You want to be perceived as thorough, accurate, and fair. This extends to proper citation forms, even though they can be a pain. Logos is proving the truth of the matter. Work to make probabilities look like syllogisms.”

Phelps says, “I'm going to teach you how to control reader-response to text. Said differently, what choices can we make to influence a judge’s reaction to the language in a memo?”

Phelps tells us that the number one priority of the legal memo is to persuade the reader. “Clarity and directness may work against us, so the typical strategies of active voice and subject-verb-object syntax become optional.”

In any legal situation, the legal writer must rate the facts: good for the client, neutral, bad. Phelps tells us we have an ethical obligation to bring all relevant facts before the court. “But in doing so, seek to avoid cognitive dissonance. You don’t want the language to rub up against what you’re asking the court to believe.”

She lowers her voice like Smaug about to show his armor to Bilbo Baggins. “Put your bad facts in the middle of a paragraph, syntactically the weakest place. Subordinate the bad facts in a dependent clause. If it’s your client, use a pronoun with bad facts.”

Another persuasive technique is the use active and passive voice. “If you want your client to be passive, you keep him out of the subject position.”

The third technique is to use storytelling to present the case. “If the client is admirable, tell her story,” Phelps says. “If your client isn’t, present the law as hero.”

Then she plays her trump card. “This was my approach when I was working on legal brief for the Supreme Court.”

We look up in surprise. Is this the unauthorized practice of law?

Phelps continues. “The case had to do with an interstate agreement on detainers. In our client's case, all the procedures hadn't been followed. And after culling through boxes of trial transcripts, I had to tell the story of the interstate agreement on detainers. ‘If this law isn't properly used, the federal government is going to have take over the transporting of prisoners between states.’ The prisoner himself became incidental.”

She winds down. “Voice, fact placement, storytelling. All these are functions of Aristotle’s ethos and pathos.”

I notice she’s abandoned logos.

Phelps concludes: “I want you to eschew totally, absolutely, any loaded language. That’s a red flag. Sophisticated readers never respond the way you tell them to. And a legal memo will automatically be read in bad faith because you're writing as an advocate. Our techniques, while shockingly manipulative, are subtle.”

* * *

Week Ten, Part 7 - Holy War

At the start of Criminal Procedure, Professor Dutile holds up an Observer with the headline: "Making of a 'friendly' rivalry." A color picture shows the new trophy that will go the winner of the football game between Boston College and the University of Notre Dame. It’s a green plate of leaded crystal cut in the shape of Ireland. Engraved on the front are a shamrock and the names of each school.

"Talk about shoddy journalism,” Dutile says. “This rivalry isn't friendly!"

We laugh and Dutile waits. "Usually I'm concerned when a team runs up the score. But tomorrow against Boston College, I won’t mind if we put 100 points on the board!”

The class erupts – hoots and hollers, laughin' and clapping. Beside me, a Domer shouts, “Holy war.”

In each of the last two years, the Screaming Eagles have upset Notre Dame. Last October in Chestnut Hill, the BC students stormed the field and tore down their goal posts to celebrate the win. The Observer quotes a Notre Dame player who complains about being spit on. He adds, “Their fans are not the classiest around.”

Dutile says, “Tomorrow we will prove that there's only one Catholic football powerhouse."

His wish is granted as Notre Dame beats BC, 20-10. The Irish are now 7-2 and may go to a bowl if they win against Navy and Air Force. It would be a nice ending to a season that started with a painful loss.

After the game, Terri and I hurry home. I spend the evening immersed in appellate decisions; she packs for a business trip to Florida. AT&T is hosting a “User’s Group” in Orlando, the mecca for business conventions. Terri and a client, the telecom manager from Biomet, will be among the 7,000 participants learning about 800-number portability and call center management.

Since I’ll be taking care of Steph and Lauren, I try to read enough cases to last me through Friday. I’m drowning. Glub. Glub. Glub. My briefs are cursory, and before going to sleep, I pray again that this won’t be the week for Socratic water-torture.

* * *

Week Ten, Part 6 - Contracts & CivPro: A Speed-Typin’ Genius

The results of my last two mock mid-terms, Contracts and Civil Procedure are on polar ends of the spectrum.

In Contracts, Professor Kaveny gives me a “check-plus.” It looks to be the equivalent of an A- or high B. From my perch in the back row, it seems most of the class got something less, checks or the dreaded check-minus. I’m happy with the mark, but know the answer was all cut-and-paste from my notes.

Kaveny says, “You need to be concerned with the fine art of taking law school exams. What do you need to stick in this bluebook to make us happy? First, know the theory. Second, be able to manipulate facts. Tie everything you say into a fact. Third, aim for a total integration of fact and law. Fourth, argue the other side.”

In CivPro, we start a new section of the syllabus. Federal subject matter jurisdiction.

Professor Bauer introduces the subject. “We’ve spent eight weeks on personal jurisdiction. It determines in which state can an action be brought. Let’s assume, ‘Wyoming.’ Now we need to decide in which Wyoming court can the action be brought. Federal court. State court. Or both. The answer will be the same whether we’re in Wyoming or New York because the scope of federal subject matter jurisdiction is the same for every state.”

Bauer stops, waiting for us to catch up. “Within every system there may be a series of courts. Small claims court. Federal tax court. Military court. Don’t worry, we’re not going to talk about those. Our focus is limited to what actions can be brought in federal court. Second, what actions must be brought in federal court.”

We move into case law, Louisville & Nashville Railroad v Mottley, and learn our “smj mantra.” It’s never consented to, it’s never waived, it can be raised the first time on appeal, it can be raised by the court on its own.

As for my CivPro mid-term, I get the expected bad news from Professor Bauer: a zero. On the night of the exam, I’d run out of time and not attempted an answer.

Instead of reviewing the mid-term in class, however, Bauer simply gives everyone a two-paged, single-spaced, “sample answer.” He jokes, “This is not what I expected anyone to have done in 45 minutes, unless you're a speed typist in addition to being a genius.”

We laugh.

All told, I figure I earned an F, D-, B+, and A- on the mock mid-terms. Even though the scores aren’t recorded, they scare me. And I promise myself that by the end of the semester, I’ll have learned the fine art of law school exams.

* * *

Week Ten, Part 5 - Observing Notre Dame

In the student lounge, I grab an Observer off the rack and sit on a step underneath the Pillsbury pennant. Instead of studying, I indulge the urge to see what’s happening around campus.

The lead story reports that a Notre Dame senior, age 21, was killed in a one-car accident. According to the police, Robert Adams lost control of his vehicle and crashed into a tree at a high rate of speed. “Alcohol may have played a role in the accident,” the paper notes. “A blood alcohol test revealed that Adams had a blood alcohol content (BAC) of 0.18 percent. Under Indiana law a person is considered intoxicated with a BAC of 0.10 percent or more.”

Adam’s death is sad and reminiscent of another accident two years earlier. After drinking with friends, law student John Rita drove back to Notre Dame at night. His car struck and killed undergrad Mara Fox who was walking along Douglas Road in South Bend. Instead of stopping, Rita drove back to his apartment and fell asleep. He later told police he thought he had hit a deer. St. Joseph County Prosecutor Michael Barnes, a ‘73 NDLS grad, had Rita arrested and charged him with two felonies: causing death while driving intoxicated and leaving the scene of a fatal accident. At trial last year, Barnes struck out. A Superior Court jury acquitted Rita of the first charge and hung on the second, unable to arrive at a unanimous conclusion.

During supper I tell Terri about the Adams accident. “What amazes me most,” I say, “is the lack of public condemnation at Notre Dame about alcohol abuse.”

Terri smiles at me, like I’m naive. “That’s part of being Irish Catholic. You can drink to your heart’s desire.”

I then share the other big news on campus. At their fall meeting, the Notre Dame Board of Trustees elected Nathan Hatch, an evangelical Protestant, as provost. According to the Observer, the provost is “the University’s second ranking officer” and exercises “overall responsibility for the academic enterprise.” Hatch earned his undergraduate decree from Wheaton College in Illinois and his Ph.D. from Washington University in St. Louis. For twenty years he’s been a professor of history and member of the Notre Dame faculty. His book, The Democratization of American Christianity, won the John Hope Franklin Prize as the best book in American studies.

I say to Terri, “Doesn’t it surprise you that such a Catholic university would hire a Protestant for the number two spot?”

“I don’t see Notre Dame like that,” she says. “It’s more open-minded and committed to hiring the best person for the job. Wheaton College has a great reputation and so does Hatch.”

I blink several times, like I’m still unable to comprehend.

“Honey,” she says. “Notre Dame’s not like our circles. At Pillsbury, we make sure a candidate matches every doctrinal jot and tittle, then hope he meets the job description. That’s why Notre Dame’s a national university and Pillsbury’s an unaccredited Bible college. Do I think there’s a place for both in higher education? Yes. Do I wish I’d planned my educational path better? Yes, again. You’re blessed to have experienced them both. Some of us will never be able to make that jump.”

* * *

Week Ten, Part 4 - Torts: Revenge Of The Classroom Gods

As Professor Charles Rice hands back our mid-terms in Torts, I expect a grade no higher than a D. To me, the test was overwhelming.

The Woodenism about “failing to prepare is preparing to fail” runs through my head. To get ready for the exam, all I did was memorize the elements of each intentional tort: battery, assault, false imprisonment, trespass to land, trespass to chattels, infliction of emotional distress, conversion.

I open my bluebook. At the top of the first page I see a B+.

Yeah, baby! Move over, Justice Scalia! I've never been so happy with a grade less than A .

Rice gives us feedback. “I saw very few problems with the law,” he says, “though everybody made the basic mistake of concluding that Nemo was a bailee of the gas can.”

That’s strange, I think. I didn’t deal at all with bailments, the law of obligations arising when one person leaves personal property in the possession of another.

“And when Able runs out of gas and rolls his car into the private drive, that’s necessity.”

Missed that issue too.

Rice talks about statutory negligence and the question of causation. “All I wanted you to do was play with it,” he says. “Max out the issue.”

Bailments. Necessity. Statutory negligence. Causation. Hmmm. Either Rice is the incarnation of generosity or my grade should have much lower.

I reopen my exam. Not a mark on it. I suspect Rice skimmed my answer or gave me a grade based on the first paragraph.

His statement of “I saw very few problems with the law” is true, only because he didn’t look.

The revenge of the classroom gods is swift.

As part of our continuing discussion of negligence, Rice brings us to the topic of res ipsa loquitur, Latin for “the thing speaks for itself.” This doctrine allows plaintiffs to infer negligence by the mere fact that an accident happened.

“For example,” Rice explains, “suppose you’re walking on a sidewalk near the St. Francis Hotel in San Francisco. It is not V-J Day. Suddenly, a large overstuffed armchair hits you in the head, although no one saw where it came from.”

Rice lists the elements of res ipsa on the board. Using the Socratic method, he questions a student over Holmes v. Gamble, a 1982 case from Colorado. The judge in Holmes had used a “preponderance of the evidence” standard and granted the defendant’s motion for a directed verdict. A higher court overturned the decision. It said the trial court should have applied a “probability of the evidence” standard.

“The point,” Rice says, “is that probability is higher than preponderance.”

Deirdre “Dee” Grant raises her hand. She’s a waif-like student from Ireland with an undergraduate law degree. “Are you sure?” she asks. Dee tugs on the bill of her baseball cap, then reads aloud from a section of Holmes. It seems to indicate that “probability” is a quantum of evidence below “preponderance.”

Wow! A student challenging a prof on a legal issue. The class is quiet. We’ve never seen this before.

Rice looks down for about 15 seconds, reading the paragraph in question.

“Mea culpa,” he says. “It’s the first time, but I goofed.”

Ha! Back at ya! After eight weeks of terrorizing us, albeit in a humorous fashion, Rice has gotten a little comeuppance.

* * *

Week Ten, Part 3 - Criminal Aftermath

Once I'm safe at a back-corner carrel in the law library, I put my head down, using American Criminal Procedure as a pillow. I’m in deeeep trouble. Crim got the bulk of my mid-term study time and an extra 45 minutes during the mock exam. If that effort equals F, then Torts and Contracts will destroy me.

There’s a knock on my cube. I open my eyes and see Anthony Wisniewski, my study partner from Contracts. He’s wearing jeans and a plaid button-down.

“Hey, man. That bad?”

“I plead the Fifth.”

“Come on, tell me! It was a mock exam.” Anthony talks like a New York cabbie, which makes me smile.

“D is for Dutile,” I say, giving myself a grade bump. “How ‘bout you?”

“Got schooled,” Anthony says. “That’s why they call flippin’ Dutile the ‘Smiling Assassin.’” He slaps the carrel wall. “But you know what? I’m gonna turn all this negative energy into something positive. If I need to, I'm willing to study 20 hours a day. Capisci?!”

I nod. “The mid-term was like finding out you’re Rudy instead of Joe Montana.”

“No!” Anthony says, “it’s like John Wayne Bobbit waking up without his dick.”

“Ouch.”

“And today!” Anthony flips open his notebook. “Take Spinelli and fast-forward to Gates. Does Spinelli the day after Gates, get decided any differently than Spinelli the day after Leon?” he reads.

“I thought Hansen gave a good answer.”

“That’s just it! I can't keep up with these guys who pull crap out of thin air!”

I cross my arms and lean back in my chair.

“And do you want more bad news?” Anthony asks.

“No.”

“A 2L told me that the final for Legal Research is a real ball-buster. You gotta know citation format for every kind of case and statute. Even weird stuff like subsequent histories. Updating. Indexes. Shepardizing.”

“Brutal.”

“We’re climbing a mountain,” Anthony says, “and we’ve got to help each other. It's in all our best interest.”

“We’ll see.”

Anthony keeps talking until I beg off to brief my cases for tomorrow. I’m not sure what type of help he’s thinking about. What I’d really like is a brain transplant from some great legal mind.

* * *

Week Ten, Part 2 - Crim: Plead the Fifth

The class grows quiet as Professor Tex Dutile walks into Criminal Law with a stack of mid-term bluebooks.

“After teaching for over a hundred years,” he says, “I'm convinced of only one thing: there's no good way to distribute these.”

In keeping with the Notre Dame approach of “blind grading,” the test booklets do not list our names, only the the last four digits of a student's Social Security number.

Dutile arranges the bluebooks in five numerical piles at the front. Row by row we walk forward, docile, like sheep to the slaughter.

On the way back to my seat, I flip through the pages. There’s a “5” written after the last paragraph.

Dutile says he didn’t compute letter grades. Rather, he gave us points based on how well we detected and discussed the issues.

We review the exam. There were five major issues, Dutile says, each worth four points.

Five out of 20! That’s terrible – an F by percentage, maybe a D- on a don't-flunk-anyone curve! It hits me gobsmack in the face. Wow! In 18 years of full-time schooling, I’ve never gotten a grade this low.

Dutile lists the issues:

1. The quantum of evidence on which Officer Foley based his search of banker Bill Brown.
2. The three intrusions by Officer Foley: the stop, the request to exit the car, the pat-down.
3. Officer Foley’s search of the trunk and the metal container.
4. The consent given by Brown’s wife for Officer Foley to search the suspect’s home.
5. Whether that evidence derived from Officer Foley’s search was tainted and therefore inadmissible in court.

I came to the wrong conclusion on the first three issues and completely ignored the last two. Ye gads! I feel nauseous.

Dutile doesn't linger. We finish the last three cases on search-and-seizure, then begin a new section on the Fifth Amendment privilege against self-incrimination: “No person... shall be compelled in any criminal case to be a witness against himself.”

Dutiel says the principle often runs counter to our instincts. “If I ask whether you cheated on the examination, and you say, ‘I refuse to answer on grounds that it may incriminate me....’” He shakes his head. “That wouldn't be the kind of relationship I'd expect between instructor and student.”

Dutile gives another example. “Suppose when my children were younger, I asked, ‘Dan, did you slap Patty?’ He said, ‘Hey, Dad, read the Constitution. I don't have to answer that!" We laugh and Dutile waits us to quiet down. “Normally what I'd do in a situation like that is grant immunity and jail him for contempt.”

Dutile explains the Fifth’s origins in ecclesiastical courts. He says that a person’s viewpoint of this legal privilege depends on the type of government. “If you live in a jurisdiction that’s fair and unoppressive, the less you think you need the Fifth. But if you live in an inquisitorial state, the more you think, ‘this Fifth Amendment works out pretty well!’”

We learn that it’s unconstitutional for a prosecutor to make adverse comments about the defendant’s use of privilege.

According to Dutile, there’s no telling a jury, ‘And if Mr. Charles Manson were actually not guilty, why doesn’t he tell his whereabouts during the night in question!”

However, the issue may be skirted, Dutile says. “If I were a prosecutor, I might say, ‘Now you can’t hold it against Mr. Manson for not testifying.’ Then I’d wait. ‘But you can look at the evidence presented. And even though Mr. Manson didn’t tell us where he was on during the murders...’ Dutile pauses, “it’s clear from the forensics that he was there.’”

Duties closes with a final thought on the Fifth Amendment. “Consider that the protection against self-incrimination may be more important in the long haul than over this weekend. As rights erode, they become much more difficult to re-institute.”

Class ends and, head down, I hurry back to the library. If anyone asks about my grade, I will plead the Fifth.

* * *

Week Ten, Part 1 - Notre Dame Haters

Fall break ends too soon and it’s back to class on Monday. I walk in from the parking lot with Dan Gag, a fellow Minnesotan. The air is cold and a north wind whips around us.

“Damn, it feels good to be sober,” he says.

During break, Dan stayed in the Twin Cities and hung out with Hamline friends, now 1L’s at the U of M. He asks what kept me busy.

“Reviewing questions from the mock mid-term.”

Dan laughs. “That’s as believable as the O.J. verdict.”

We talk football as we hurry past DeBartolo Hall toward Notre Dame Law School. After a win over Southern Cal, the Irish have jumped to number 12 in the AP poll.

Dan says he watched the game at a sports bar in Minneapolis. “Almost got myself punched.”

“How’s that?”

“Well, when USC fumbled, I yelled at some dipstick: ‘Hey, asshole, God’s on our side!’”

“Then you probably deserved it.” I shake my head.

“There’s a lot of Nordame haters out there,” Dan says.

I laugh. “Used to be one myself. Then I got accepted.”

* * *

Week Nine - Go Irish, Beat Trojans

Fall break is as beautiful as I imagined. Sleep. Get reacquainted with Terri. Sleep. No Professor Rice put-downs (“What! Did you read this case in high school?”). Sleep.

On Saturday I take Lauren, age five, to Notre Dame’s game against the University of Southern Cal. After wins against Washington and Army, the Irish are now 5-2. USC, however, is undefeated and ranked fifth in the country.

Lauren and I park about a mile away from the campus stadium. On the way in, we practice our cheer: "Go-o-o-o Irish. Be-e-e-eat Trojans."

I tell her all about Notre Dame football. Paul Hornung. Joe Montana. The Four Horsemen. Win one for the Gipper. Touchdown Jesus.

USC is the 3½ point pick, but the weather favors Notre Dame. It’s cold, about 40 degrees with a windchill of 25. Lauren and I are bundled up like Minnesotans: sweat pants, turtlenecks, winter coats. I sport a blue and green cap with a gold monogram. Lauren has on a headband of the same colors.

We enter campus at Notre Dame Avenue. The branches of the roadside elms form a red and yellow archway.

"You see that building straight ahead with the round top?" I ask.

Lauren nods, and the leprechaun painted on her cheek jumps up and down.

"That's the Golden Dome. The Irish helmets look just about like that."

"Go-o-o-o Irish. Be-e-e-eat... what's the other name?" Lauren asks.

We stop at Notre Dame Law School and warm up. Then in the short walk to the brown-brick stadium, the rain starts. We find our wet bench in the student section. ND's color guard and marching band highstep onto the field. The blue raincoats of the band are shiny with droplets. With them comes the leprechaun, natty in a emerald suit, tie, and hat. He dances around the end zone and mimics the band's march steps.

Lauren points at him. "Why's he so short?"

"Leprechauns are supposed to be tiny."

"Where's the leprechaun for the other team?"

"They're the Trojans."

Lauren tightens her pink glove into a fist and bounces it to the beat. "Go-o-o-o Irish. Be-e-e-eat Trojans."

We’re surrounded by chanting students. Some have clovers painted over their entire faces. Others wear Golden Dome helmets with tiny Virgin Mary’s attached on top.

Notre Dame scores first after a 14-play drive to our end of the field. Fullback Marc Edwards runs nine yards for a touchdown. Lauren and I whoop and holler, then clap along to the “Victory March.”

"I'm hungry," Lauren says.

"Here, have a Twix bar."

"I'm cold."

"Here, sit on my lap."

"I can't see."

"Here, use the binoculars."

This toy occupies Lauren until the fullback scores again. Notre Dame now leads 14-7, and the fans sense upset.

Lauren points to the letters on the back of a nearby yellow jacket. "What does u-s-h-e-r spell?"

“Usher.”

"Oh, does he take money?" Lauren asks.

I explain that he’s a football usher, not a church one. Notre Dame scores again: 21-7.

"I can spell 'dad.' D-a-d. I can spell 'mom.' M-o-m. I can spell 'off.' Is that o-f-f or f-f-o?"

By now I’m cold too. It’s almost halftime. Lauren says she’s ready to go.

Back home I watch the second half on NBC, as the Irish win 38-10. Lauren sleeps, then shows Terri how a leprechaun highsteps around the coffee table. Next she teaches Stephie how to cheer.

"Go-o-o-o Irish. Be-e-e-at Trojans."

* * *

Week Eight, Part 8 - Mock Mid-terms

Five minutes before the start of mock mid-terms at Notre Dame Law School, I’m still in the Kresge Library, cramming for Criminal Procedure. I’ve half-way memorized the holding for each major case, but can’t seem to get all the phrases right. It would be wiser to work through my notes doctrine-by-doctrine, I know, but there isn't time!

Some of the holdings are basic, like Acevedo: “Police may search a closed container located in a car, without a warrant, if probable cause exists to believe it contains contraband.”

Others legal principles are long and meaty. For Terry I memorize: “Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.”

At 5:59 p.m., I sprint down the stairs to Room 121. The lecture hall is packed. From the podium at the front, I grab four blue books and a packet labeled “Practice Exams.”

Anthony Wisniewski and Todd Wesseler, my study-buddies from Contracts, wave me over. I squeeze into the chair between them.

“You’re late,” Anthony growls. His forehead is moist and both pupils dilated. He mutters profanities under his breath and something about being “intellectually strip-searched for three hours.”

“No reasonable expectation of privacy,” I joke, citing Katz.

“Begin!” calls the proctor.

I read the instructions. We must complete four exams in three hours. That gives us 45 minutes apiece. When we take the graded exam in December, the length of each test will be extended to three hours.

Next I skim the questions from Professors Dutile, Kaveny, Bauer, and Rice. Each is a long fact-pattern full of multiple characters and unusual events.

The Torts exam begins: “Able, a student at Baker Storm Door Company and Dental School, drives from his apartment to the school on October 15th. The school was located on the main street of Carriesville, of which city Delta was the mayor. Delta’s uncle, Easy, had been a dentist until his sudden death.”

I search out the intentional torts as best I can and match the facts to the legal elements. Milk it! Rice requires that we limit our answers to three pages. “Any excess will not be read and will not count in your favor.”

After 45 minutes, I move on to Crim. The question is a 4th Amendment search-and-seizure issue. “On July 1 in Sanford, Maine, Police Officer Fred Foley received an anonymous telephone call. The caller alleged that Bill Brown, a local banker, always carried a concealed and illegal gun.”

On a scratch sheet, I jot down my 17 case names and holdings. I search for legal issues in the fact pattern. For each one I spot, I give a short context, state the rule of law, apply it, then draw a conclusion. As the Irish say, it's great CRAC.

Crim takes me an hour and a half before I finish – twice the allotted time. Still I’m pleased. In front of me is a bluebook full of 4th Amendment law, a subject about which I knew nothing eight weeks ago.

For the last 45 minutes I work on Contracts. Open book, open note. It’s beautiful.

The first graph of the mock exam reads: “George had roto-tilled his lawn, readying it for some sorely needed seeding. Unfortunately, he injured his back and was not able to seed the lawn himself. Time was of the essence because it was getting hot. George asked his neighbor, Gracie, for help. She agreed to help, worked for three days, and completed the job. Nothing was said at the time about payment. Months later, while admiring the lawn, George told Gracie that it was time for him to ‘settle up’ with her. He asked her how much he owed her and, after protestations, she replied that $250 would be fine. Later, George refused to pay anything.”

I hone in on the “functional reasons for legal formalities.” A written contract in this situation, I write, would have provided evidence of the agreement between George and Gracie. It would have acted as a deterrent against inconsiderate action. And it would have channeled economic or sentimental objectives into defined and recognizable channels.

Wonder what that means, I think to myself.

At 9:00 p.m., I put down my pen. Whew! I turn in bluebooks for Torts, Crim, and Contracts.

Downstairs to the student lounge, 1Ls are grinning and giving each other high fives. Guys and girls who for eight weeks barely made eye contact are huggin’ like long-lost relatives. Fall break starts tomorrow! No Socratic. No fact patterns. No casebooks.

I see Anthony by the door. He wonders whether I’m going to Senior Bar.

“Naw.”

“Come on! Everyone’s going. It’s the great law school hook-up.”

“Nope. Gotta get home,” I say. “Haven’t seen my wife since the week started.”

He asks what I thought about the test.

“Didn’t get to CivPro, but other than that, okay.

He nods. “Three out of four isn't bad. Some people just did one and left.”

I ask how he found the exams.

“Not as hard as I expected,” he says. “Mostly it feels good to know I won't flunk out.”

* * *

Week Eight, Part 7 - Study Group

At 5:30 p.m. on Wednesday, I stop by the main office of the Kresge Law Library and chat with Ken Kinslow, the evening supervisor. He’s the friendliest guy on campus and can talk with knowledge on any subject from Russian literature to Cajun cuisine. Sometimes I call him “Comrade,” as we both taught English in China.

Ken hands me the key to a second-floor study room. Yesterday I reserved it for this evening. Even though the law library is open 24 hours a day, the front desk and study rooms lock at 10:00 p.m. Ken tells me to bring the key back by 9:30.

Upstairs I meet with two other 1L’s, Todd Wesseler from Bowling Green and Anthony Wisniewski from “The Catholic University of America” in D.C. As undergrads, they both studied political science, by far the most popular major at Notre Dame Law School.

Our little band is not a study group per se with weekly meetings and regular note-sharing. Rather, it’s more like an ad hoc committee with one goal: to hammer out a Contracts outline for tomorrow's mock mid-term.

Anthony’s notes are minimalist, mine the exact opposite, and Todd’s somewhere in between. We start with the first case, White v. Benkowski, a lawsuit involving neighbors who shared water from the same well.

Complaint. Discovery. Consideration. Affidavit. Compensatory damages. Summary judgment. Prayer for relief. All the legalese that seemed so foreign on Week One now rings more familiar.

The biggest problem we have is deciding what’s important enough to include in our outline. In class, Professor Kaveny told us that perhaps the plaintiff’s lawyer in White misstated the cause of action. It could have been a tort claim instead of breach of contract. I believe this point is key. On the test, we should look for facts that raise the issue of a potential tort. Anthony and Todd think it’s irrelevant. They argue that the significance of the case is the difference between compensatory and punitive damages.

I want to include Kaveny’s pithy sayings, like “Being a good lawyer is noticing the elephant in the middle of living room!” Teachers love to hear students echo their wisdom, I argue.

Once again, Anthony and Todd vote me down. They think an outline should be spare, limited to the legal doctrines of greatest significance.

“But this exam is open note,” I say. “It’s not like we have to memorize anything!”

As the evening wears on, Anthony gets louder and more East Coast Rude. Good thing our study room is soundproof. It’s annoying because Anthony’s notes are terrible and his memory worse. Todd, on the other hand, is so meek that I can’t even picture him as an attorney.

By 9:30 we have two-thirds of an outline. We call it a night and make no plans to meet again. Our personalities and study styles don't mesh.

Downstairs I ring the bell at the front desk. Ken’s around the corner reading a classical Chinese novel. I give the key back and he asks how the session went.

“Well... made me wish I were still teaching freshman comp.” I sign my name in a blue notebook to verify we’ve cleaned out the study room and locked the door.

“Oh, I think you’re doing the right thing, gettin’ a law degree. With English, if you don’t get on that three-year tenure track right off, you’re left to wander. And after a while you get tired of all the drifting, although sometimes one does wonder if it could’ve been different.”

I laugh and ask Ken about his degree.

Ken says he has a Ph.D. in English.

“Wow! That’s impressive.”

“Nah. It’s not worth shit.”

I laugh, not sure whether or not he's kidding.

Nevertheless, instead of going home, I trudge back up to the third floor atrium and find an open carrel. There’s no backtracking to the world of English. Even though it’s late, I'm not leaving until my Contracts outline is done.

* * *

Week Eight, Part 6 - Contracts: The Game of Law School

Professor Cathy Kaveny starts class by propping our supplementary text, “Contract Law: Selected Source Materials,” on the podium. A mere 312 pages, the purple paperback contains the Restatement Second of Contracts and Articles 1, 2, and 9 of the Uniform Commercial Code (“UCC”).

The book’s editor is Steven J. Burton, a professor at the University of Iowa College of Law. He writes in the first paragraph, “The law of contracts originated as common law – the law made by judges on a case-by-case basis. Increasingly, however, statutes and regulations – laws enacted by legislatures and administrative agencies – govern contractual transactions.”

Adjusting her neck scarf, Kaveny echoes the same theme. The Restatement is the general common law, she says; the UCC is statutory. It's a distinction I feel like I should have learned long ago, perhaps in a government or history class.

Kaveny suggests we highlight the provisions of the UCC that we review in class. “This will help you distinguish the common law and get it to gel better in your brain.”

We discuss how the UCC was designed to bring uniformity to commercial transactions. Kaveny says it has been adopted with modifications in all fifty states. There’s a touch of awe in her voice, as if this event were a miracle.

“Remember, the UCC applies to sale of goods,” Kaveny says. "If you have services, you're in the realm of common law.”

We open our casebooks to Keith v. Buchanan, a 1985 case from the California Court of Appeals. Kaveny says we will use it to explore the concept of “obligation arising from statutory warranty.” Briefless, I follow along.

The plaintiff, actor Brian Keith, bought a ocean-going sailboat for $75,000. Though a sales brochure described the it as “a picture of sure-footed seaworthiness,” Keith found the boat unfit for sailing. He sued, alleging breach of warranty.

I remember watching Keith on the TV series Family Affair. Uncle Bill was always so nice to Buffy and Jody. And Mr. French too. I can’t imagine him suing anyone.

Kaveny asks, “Should Mr. Keith have been able to rely on the statements in the literature as to the boat’s seaworthiness?”

“Yes!” someone in the back calls out.

Kaveny glances toward me and I nod, as if the answer were in my head as well.

We look at section 2-313 of the UCC: “Express Warranties by Affirmation, Promise, Description, Sample.” According to Kaveny, a statement by a seller of “this car has been driven less than 10,00 miles” creates an express warranty. However, “this is a wonderful car” does not. It’s mere puffing, a statement of opinion not meant as a factual representation.

Kaveny sums up. “A description of goods is likely to create a warranty. Advertising, however, is closer to puffery.”

At the end of class, Kaveny talks to us about the upcoming mock mid-term. “You need a little bit of ironic distance from the self-imposed pressure,” she says. “And work to still stay yourself – kind and friendly – even when you're under stress. You wouldn't believe the number of attorneys who snap at their secretary when under duress.”

As we close our books, there’s one more bit of wisdom. “How well you play the game of law school is not necessarily how good a lawyer you'll be.”

I find her statement strangely comforting.

* * *

Week Eight, Part 5 - Honor Code

After class I walk to the student lounge and find a seat in the corner. To my left is a fellow 1L, Bryan Lord, typing away on a laptop. There’s a green apple wedged in his mouth, like a roasted pig.

Byran grew up in Minnesota and attended college there, just as I did. He graduated from Concordia College in St. Paul with a degree in poly-sci and business administration.

To my right, two upperclassman discuss life after Notre Dame Law School. I overhear the first one say, “It’s like autopilot. Corporate law requires no ability to research or think. ”

His friend answers, “But you pay for it by having to sit on airplanes with some jackass CEO who’s all about how-good-do-I-look.”

After only eight weeks of law school, Bryan and I have a more immediate concern: the mock mid-term. Between bites of food and glances at the Observer, we rant about how little time there is to prepare. I tell Byran my game plan is simple. A quick-and-dirty outline in Contracts, since the test is open-book. In Torts, I’m gonna ignore negligence and simply memorize the elements of each intentional tort. Crim will get the longest look. I plan to learn the major, legal principle for each significant case. As for Civil Procedure, a disaster from Day One, I’m not sure what to do. The subject matter has me flat on my back.

Our teaching assistant from Legal Writing, a 3L named Rosi Lozada, stops by to tell us she sent our memos back via campus mail. Rosi is considered by all to be a higher order being. She’s not only brilliant and beautiful, but kind as well. Last year Rosi declined an invitation to join Law Review, Notre Dame’s most prestigious journal, so she could devote sufficient time to the Legal Aid Clinic.

We ask her about the mock mid-terms.

She says, “Let me warn you, exams are nothing like class prep. That's just the way it is. Don't rely on hand-me-down outlines. Do your own by reducing everything to a form you can study. Look at old exams to find out what your prof wants. For Rice, ‘the law’s the law,’ so make flashcards and memorize it.”

Bryan asks Rosi why we can’t use laptops to type our answers. He argues we’d be able to give more information in a better, more readable form.

I nod.

Rosi says the administration is afraid students would access their notes during the exam. “There’s not enough control over the process,” she says. “And not everyone has computers.”

Brian seems a little peeved. “We’re supposed to be on an honor code, but there's a limit to how much they trust us.”

I pack up to leave. Beside me, the upperclassmen are still deliberating.

“Even in a corporate setting, law means you are good,” says one.

“But also that you’re somebody’s bitch,” answers the other.

“Know what?” the first one says, “That’s a very Christian thing to do: to give of yourself.”

* * *

Week Eight, Part 4 - Torts: How To Take A Fact-pattern Exam

In Torts, Professor Charles Rice says that the mock mid-term will only have one section: a long fact-pattern. Unlike the final exam, there will be no objective questions or short essay.

“What do you do with a fact-pattern?” Rice asks. He answers it himself: “You find the issue, milk it, and move on! How? First you read straight through the fact-pattern. Second, you read the thing again and mark it up. Now you’re ready to write an answer.”

Rice runs his hand over the top of his crew cut, waiting for us to stop writing and look up. “The fact-pattern will have a lot of issues, and you get points for each one you spot. Tell me the issues and who wins. Anything that's in your fevered little brain, put on the paper! As long as you find the issue, decide it, and don't make an error of law, you can't be wrong.

“Don't give me a big lecture,” Rice adds. “Don’t tell me, ‘This is very interesting.’ Don't talk about conversion like it's trespass. Be careful with transferred intent.”

Rice glares at us like an angry drill sergeant. “We’ll find out if some of you are treating this subject like a tourist.”

I’m not sure exactly what that means, but assume it implies lack of diligence. Guilty as charged. After eight weeks, my torts notes are still a tangled mess. Instead of writing my own case briefs, I been copying them out of the study guide. I’ve yet to start memorizing even the elements of each intentional tort.

In short order, Rice reviews the basics of negligence: “DTY, BRCH, CSTN, DMGS.” Then he quizzes us on six cases dealing with negligence per se. This doctrine “refers to acts which implicitly involve a breach of duty, obviating the need to expressly allege the existence of a duty.”

I write down “automatic negligence” in my notes.

Rice says, “Statutes are a shorthand way to define duty. For example, if you speed, have you breached the duty of care. However, issue of causation is still determined by jury unless it's so obvious that a reasonable person could not disagree.”

We discuss whether a statute can have more than one purpose. Rice says, “Yes, unless it's written in stone on Mt. Sinai.”

After class, about fifteen or so “gunners” congregate at the front around Rice. They pepper him with questions about the mock mid-term. I follow them down, just to make sure I’m not missing the secret of law school success.

To my surprise, Rice is not helpful. He steers away from specifics and dismisses some questions with the wave of his hand.

He ends the Q&A by raising his voice slightly so we can all hear. “Remember, a D or an F doesn't mean you should head for the 13th floor of Hesburgh.”

It’s a joke, but on my way to lunch, I wonder whether the pressure of Notre Dame Law School has ever driven a student to suicide.

Like they say, “D is for die."

* * *

Week Eight, Part 3 - Curse And Beat The Ground

It’s time for my annual physical, so I leave Notre Dame Law School early and drive a half mile to the South Bend Clinic. As I wait in the examination room, I read the diploma on the wall. The random doctor they’ve assigned me is Michael A. Strzelecki, Indiana University School of Medicine.

Good Polish name, I think. In South Bend, the Dyngus Day capital of the world, the -cki or -ski suffix is a professional advantage.

Beside the diploma hangs a framed poster. At the bottom it reads: “In prehistoric times when men cursed and beat the ground with sticks, they called it... witchcraft. In modern times when men curse and beat the ground with sticks, they call it... golf.”

I laugh to myself.

The doc comes in and introduces himself. He’s medium height, dark hair, maybe ten years older than I am. To my relief, he appears competent and professional. While he pokes and prods me, I ask about medical school.

Strzelecki tells me it’s four years plus another three to five as a resident. “Sure am glad to be done,” he says. “So much of what you learn is just rote memory. And 90 percent of that I never use. It might be different in law school, but I doubt it.”

“You’re a cruel man,” I say.

After Strzelecki’s done with me, I drive home and prepare supper.

Terri makes it back from Chicago at 6:00 p.m. Her business trip was mini-disaster, she says. AT&T’s regional office in Indianapolis didn’t get her the pricing information on time, so her bid was incomplete. And the person responsible for compensation questioned whether Terri’s biggest customer, an infomercial marketer, is meeting its billing requirements.

“So what’d you say?” I ask.

“I pointed out that the figures we agreed to were gross, not net. It’s right in the contract! In fact, our client is billing way over its commitment levels!!” Terri slaps the kitchen counter.

“So what’s the problem?” I ask.

"The problem is that with AT&T, you have to do everything three times! And it’s still not right!! I’ve never seen such a screwed-up company."

After supper I retreat to the basement. I need to review my CivPro notes for the mock mid-term. All told, I have 92 pages of word-processed text from the first 21 classes. Pennoyer v. Neff, our first case, seems like years ago. Unfortunately, I don’t feel like I understand it much better now than the first time through.

After two hours of working through my notes, I’m exasperated. Instead of a clear outline, I have pages and pages of undigested legalese. Unbelievable! The subject matter is too extensive to grasp it all. And I can’t even seem to figure out the must-know material. Worse, if Strzelecki is right, most of what I eventually memorize will be worthless to me as a lawyer.

In post-modern times, when men curse and beat the ground with sticks, they call it... law school.

* * *

Week Eight, Part 2 - CivPro: Motion To Dismiss

In Civil Procedure, Professor Joseph Bauer discusses the mock mid-term scheduled for Thursday night. With a slight smile and his chin cocked up, he seems to enjoy our anxiety.

“There will be an extended fact pattern dealing with a court’s attempt to exercise personal jurisdiction over a non-resident defendant,” Bauer says. “You’ll need to recognize the issues and identify the applicable rules.”

He strokes his beard, as if deep in thought. “Two suggestions. First, your answer isn't as important as how you got there. Second, simply repeating the facts is not a good way to start. Facts only become relevant as you integrate them into your analysis.”

Bauer will mark our tests over fall break, the one-week vacation starting Friday at noon. “Teaching is like heaven,” he says, “except for faculty meetings and grading papers.”

We laugh, more nervous than amused.

Bauer waits for us to quiet down, then begins the regular class work. “For the last seven weeks, we’ve learned what constitutes sufficient personal jurisdiction. Today we begin a new section – challenges to jurisdiction. We’ll also look at the Federal Rules of Civil Procedure.”

Bauer questions a student about the facts and procedural history in Harkness v. Hyde, a case from 1878. I expect the Socratic dialogue to resolve the legal question of “whether an American Indian on the Shoshonee reservation is subject to the personal jurisdiction of an Idaho court.”

No! After noting the court’s reference to his favorite case, Pennoyer v. Neff, Bauer primarily wants to discuss whether the defendant could on appeal object to jurisdiction. Put in compound-complex Bauer-talk, “If a party a) makes an objection to jurisdiction, here by special appearance, and b) if that objection to jurisdiction is overruled or rejected, and c) and the case is then litigated on the merits, has the party waived its objection to jurisdiction on appeal?”

In my brief, I’ve totally missed Bauer’s main point. I’m ice-cold at the thought that Bauer could have drilled me. Gotta do better, I think. No more book briefs while watching cartoons!

Bauer holds up our supplementary text, the Federal Rules of Civil Procedure. It’s a green paperback, about 700 pages long. On the cover is a black and white picture of the Supreme Court building.

“For the bulk of the history of the federal courts, there were no special rules of procedure,” he says. Bauer’s in lecture mode and everyone relaxes. “Each court used the rules of the state in which it was situated.”

Bauer summarizes the 1934 Rules Enabling Act. It authorized the Supreme Court to promulgate uniform rules for federal courts.

“Since 1938, over half the states have rules modeled closely on these,” Bauer says. As is the norm, he mentions nothing about Indiana in particular.

Bauer reads aloud Rule 12(b) and explains the subsections which deal with lack of jurisdiction. We then turn to “Form 19,” titled “Motion To Dismiss, Presenting Defenses Of Failure To State A Claim, Or Lack Of Service Of Process, Or Improper Venue, And Or Lack Of Jurisdiction Under Rule 12(B).” It’s the first legal form we’ve seen all year.

Bauer reads the first sentence: “The defendant moves the court as follows:” He looks up and waits for eye contact. “A party moves, it doesn't motion.”

I’m hungry and tired of thinking. It’s almost time to go. Students begin to shift in their chairs and click their pen caps shut.

A student in the fourth row, Scott Delaney, raises his hand. He’s a former disc jockey with no fear of expressing himself. “Motion to dismiss?”

The class laughs at this challenge to jurisdiction. Students behind Delaney clap their hands.

Bauer thinks for a second, then smirks. “Granted.”

* * *

Week Eight, Part 1 - Lawstudent Man

It's 6:40 a.m. on Monday and I’m watching cartoons in the family room with Stephie, age seven. Garfield finished up ten minutes ago. Now it’s the Super Friends with all the heroes I loved as a boy. Superman. Batman and Robin. Aquaman. Wonder Woman. I'm surprised the show is still on TV.

Terri (a/k/a "Telecom Woman") left at 6:00 this morning for Chicago. She’ll be taking her biggest customer, an infomercial marketer, on a tour through an AT&T call center.

So I’m on kid patrol.

Stephie ("Eggshell Girl") is already dressed for school, white sweater and blue skirt. She burrows into her favorite corner of the leather couch. In lieu of breakfast, she sips a Capri Sun, six ounces of over-packaged fruit juice.

I'm on the middle cushion. Between gulps of apple cider, I book-brief my cases for CivPro. I mark the major facts and issues in Harkness v. Hyde, an 1878 Supreme Court decision regarding personal jurisdiction. My only weapon against The Dastardly Professor Bauer and his fiendish questions is a large-barreled, chisel-tipped, sky-blue highlighter.

I tell Stephie that when I was her age I used to watch the Super Friends.

She arches an eyebrow. “Garfield too?”

“Nope. The Original Eating Machine had yet to be created.”

Stephie stares at me like I’m ancient.

Several minutes later I reach over and tap her foot. “In three years I’ll have the ‘power of attorney.’ Maybe they’ll create an MPT character.”

No response.

We watch a commercial for Reese's Peanut Butter Puffs, a new breakfast cereal.

“Those look good,” I say, thinking about a childhood limited to Corn Flakes and Wheaties.

Stephie nods. Either she’s not much for morning chit-chat or I’m to be disregarded, like Jonathan Q. Arbuckle, Garfield’s owner.

Lauren ("Sleeping Girl"), age five, is still in bed. After she gets ready, I’ll drop her and Steph at school, then drive up to Notre Dame.

As of Friday, first semester will be half over. Professor Bauer still hasn’t called on me. "Please, Lord, don’t let it be today. From now on, I promise, no more book-briefs."

I look around the room. Entertainment center. Fireplace and mantel. Wall-to-wall carpeting. Breakfast bar. Bay window. French doors. I grew up poor and our old house didn’t have any of these features.

How’d I wind up here!? I wonder. A year ago I was an English teacher, single, living in Minnesota. Now I’m a Notre Dame lawyer-to-be, married with kids, and the Original Studying Machine.

It still feels like make believe.

* * *

Week Seven, Part 7 - Legal Writing: Distant Thunder

As we wait for Legal Writing to begin, the buzz is all about the First Couple of Notre Dame.

It’s only hearsay, but sources say Professor Teresa Godwin Phelps is getting divorced from husband Digger, now a basketball analyst for ESPN. Comments range from “ain’t no fun being married to a feminist” to “he says she hit him with a fry pan.”

Too bad, I think. Perhaps the break-up is why Professor Phelps neglected to mention Digger in her self-introduction on the first day of class.

There’s no official comment on the dissolution action. I do notice that Phelps’s memoir, The Coach’s Wife, has disappeared from the display case on the first floor.

Perhaps she’s writing a sequel: The Coach’s Ex-Wife.

In class, Phelps begins a new section: “opinion letters.” This phrase is a term of art. It refers to written correspondence by the lawyer to a client answering specific legal questions.

“Be careful,” Phelps says. “There are some cover-your-butt things in case this letter is entered as evidence.”

The opinion letter has four elements. First is context. “Let the client know what you're talking about,” Phelps says. Second is a recitation of operative facts. “If there’s been a misunderstanding, you'll need to know right now rather than at trial.” Third is an explanation of the law in terms the client can understand. “Here you’ve changed roles, from legal analyst to counsel.” The fourth element is “a list of anything the lawyer needs from his or her client.”

Phelps adds, “If your office memo is well done, you can just translate it into an opinion letter.”

I smile. It’s the first time all semester that a prof has indicated something might be easier than we expect.

At the end of class, Phelps mentions that next week there will be mock mid-terms in Torts, CivPro, Crim, and Contracts.

Normally in Legal Writing lectures, there’s a handful of students reading the Observer or dozing off. At the mention of exams, though, we all perk up.

Phelps encourages us to use CRAC (Context-Rule-Application-Conclusion) on any legal issues we spot. It’s the same approach we employed on our office memo.

“What’s different about law school exams is the fact patterns,” Phelps says. “It’s not like undergrad where you only have to state the elements of battery. Answering a fact pattern goes far beyond grocery lists. And well it should. I don't want to hire a lawyer who has memorized the laws but can’t apply them.”

Phelps tells us that her colleagues will give too many facts on the mock exams, and we should be suspicious. “Separate the material from the immaterial. ‘It was a blue truck’ is probably a red herring. But for the most part, a professor puts a fact in the pattern because there's some weird little rule out there.”

She adds. “Now what I’ve just told you is deceptive – because there is a boatload to memorize. The difference is, rote memory is only half the battle. And finally, because of the time constraints, there’s a huge chasm between knowing the material and getting it down on paper.”

Phelps smiles at us like we're all freshman point guards about to face a full-court press. “Law school exams are unto themselves,” she says. “There's nothing else like ‘em.”

* * *

Week Seven, Part 6 - Aspirations

After Torts, I introduce myself to Dr. Thomas L. Hauck, M.D., and ask what other classes he has. I’m curious because I’ve never seen him around Notre Dame Law School, either in the library or student lounge.

“Just Torts,” he says. “The last two years I’ve been taking one class per semester. Plus some correspondence work.”

“Interesting,” I say. "But I thought part-timers were verboten at Notre Dame!”

Tom nods. “I’m in the slow learner section... move my lips when I read.” It’s a favorite line of Professor Rice.

“No, really,” I press him, “how’d you get in?”

Tom says ND Law made an exception for him. "I’m buddies with Dean Link's best friend – who happened to give the school eleven million dollars."

"No way! What's his name?"

"Art Decio."

I smile. Decio is chairman of the board and CEO of Skyline Corporation in nearby Elkhart. In the telecom wars for AT&T, Terri has spent months trying to win Skyline’s long-distance traffic of $1.2 million a year.

Changing the subject, Tom asks what kind of law I want to practice.

I joke, “Dunno, maybe hairdresser law.”

He laughs. “At a boutique firm?”

Tom says that if he finishes his J.D., he'd like to retire early and do consulting.

Wouldn’t we all, I think. Wouldn’t we all.

* * *

Week Seven, Part 5 - Torts: Sue All The Lawyers

In Torts, Professor Rice is pounding us on the topic of negligence. After reviewing the elements generally, we turn to the cases grouped “Standard of Care (Professional).”

“Malpractice applies to all kinds of professionals,” Rice says, “not just lawyers.”

Oooh, our introduction into malpractice, broadly defined as "injurious conduct by an person acting in a professional capacity." Rice has everyone’s attention.

The issue in the first case, Heath v. Swift Wings, is whether a pilot was negligent in a small plane crash which killed two persons. The holding from the case emphasizes that the standard of care is not a subjective one, but objective.

Rice applies it to lawyers. “When you get out of here and pass the bar, you’ll immediately be held to a standard of the knowledge, training, and skill of the ordinary lawyer. Legally, as soon as you’re sworn in, you can undertake a forty-million-dollar leveraged buyout.” With the palm of his left hand, Rice taps on the whiteboard marker held in his right fist. “But be careful or you'll also be a defendant.”

In the next case, Hodges v. Carter, a drugstore owner sued his lawyers for negligence. The court held that the attorneys were not liable. Their mistake was over an unsettled point of law. And the lawyers had acted in good faith and the honest belief that their advice was well-founded and in the client’s best interest.

Everyone in class concurs. Just as doctors are given discretion in making a diagnosis, Rice notes, lawyers may make reasonable errors in interpretation.

We move on to medical malpractice. Rice says that although med-mal is a major body of law, we won’t spend long on it. “This course is just a flyby look at the issues,” he says.

Rice then announces that we have a “real doctor” in class, Tom Hauck, a local ophthalmologist. We turn to gawk. Hauck is sitting in the back row. He looks to be in his mid-40's, blonde hair a little longer than expected.

The student beside me rubs his thumb against his first two fingers: money.

Morrison v. MacNamara, our first med-mal case, revisits the issue of objectivity. The court held that varying geographical standards of care are no longer valid.

Rice asks Hauck. “Would you rather have an aneurysm outside Northwestern Medical Center or Dr. Thumb's office in Osceola?”

“Chicago, of course.”

“Are the docs out in the sticks supposed to be current with all the literature?”

“Absolutely,” says Hauck.

“Let’s apply this holding to the legal environ. Can an attorney in South Bend handle a complex transaction case?” Rice asks.

“I wouldn’t want him doing it for me, but yes,” Hauck says. “As long as he has the books and knows when he’s over his head.”

“Good. Remember, if you undertake to do something, you're bound to perform at an objective level. You can't say, ‘I’m just an eye doc dabbling in law.’"

We laugh, and Tom squirms a bit.

Rice steps to the side of the podium. “The malpractice business is essentially negligence, but there’s a little bit of class warfare here. Doctors and lawyers are professionals. We have an advantage over the hairdresser who is strictly liable if the client walks outside and her hair goes up in flames.”

We laugh in disbelief.

“No, it’s true," Rice says. "Happened to a woman in California.”

We laugh again and close our casebooks.

“Finally, if you sue a physician, you must follow all the malpractice procedures of the state. And be sure to check the local statute on malicious prosecution.”

* * *