Capricious Booting or Valuable Lesson?
The jury is still out on this one.
Prof. LARC: Mr. ____, what are the five types of legal argument?
Student: Um . . . I . . . I don’t know.
Prof. LARC: This wasn’t from last night’s reading, it was the first assignment.
Student: I guess I didn’t read it.
Prof. LARC: Alright, pack your stuff.
We have two books for LARC III, one is specifically titled, “The Five Types of Legal Argument.” It’s a small book of about 190 pages and there was no reading in it from the night before so I, like many others, hadn’t bothered to bring it.
Prof. LARC: Mr. ____, what are the five types of legal argument?
Student: Um . . . I . . . I don’t know. I guess I didn’t read either.
Prof. LARC: Alright, I hate to do this but pack your stuff.
By this point my ass was panicking. I’d done the reading but hadn’t bothered to memorize the five types of legal arguments, so after stumbling around my bag, waiting for the book to magically appear, I resorted to Google. Fortunately, three seconds after typing in “Five Types of Legal Arguments,” there they were. (I’m hoping not an honor code violation.)
Prof. LARC: Ms. _____, what are the five types of legal argument?
Student: Um . . .(flips open book) . . . Umm
Prof. LARC: I’ll give you a hint; it’s in the table of contents.
Student: Text, Intent, Precedent, Tradition, Policy.
Prof LARC: Thank you. I didn’t intend to make an example of those two but this course is about advocacy, and advocacy is about scrambling. As lawyers you aren’t paid to say I don’t know. You are paid to be prepared and if something catches you off guard, you scramble.
At first the move seemed capricious, but now, the more I think about it, the more I think I might have learned something. I haven’t really talked to anyone about it but I’m interested to hear others’ thoughts.
posted by Jon Swanburg @ 10:20 PM
24 comments
24 Comments:
So much for "honesty is the best policy." Apparently we are supposed to BS our way to the right answer now that we are in law school. I think I like it better this way.
Yeah, I'm with 11:39. Probably this strategy would get us booted out in other classes-- I specifically remember Prof. Civpro limiting a certain student's answers to like 7 words because he BS'ed too much. Would she have booted them if they had eloquently BS'ed around not reading? Who the hell knows...
I'm confused because I thought we were supposed to steer around BS. Was Prof LARC looking for the right answer or just looking for someone to make up a good argument.
you know, i've heard this is the same type of lesson they try to teach you in PC. i've heard people say that saying "I don't know," or "I didn't read" is the worst thing you can do.
Now, really -- there's no excuse for not knowing the five types of arguments. We all have had prof. larc 1 for a good semester. We know what she's like. Just because she was nice to us on the first day of class is no reason to let our guard down.
BUT if there is really something you don't know (and shouldn't have any reason to know) -- perhaps osler or someone else with more experience than I can clear this up for me -- is it really the best policy to bullshit the court? It seems to be that credibility is the most important you can have -- everytime you bullshit, you risk that credibility.
but then again, maybe i'm taking away the wrong lesson from yesterday.
I think prof. larc 3's message was not to BS your way though law school, but to not just give up when somebody throws a question at you thats just a little bit hard. Either of those students could have avoided having to be kicked out if they had done what she said: paused, scrambled, and opened up the book to its table of contents to find the answer. She wasnt telling us to BS our way though life, she was telling us to put up a fight if our backs against the wall.
-thomas
i think i share in 7:11's concern.
i believe in maintaining credibility. what if you get caught in your bs? where does your credibility go?
-arbitrary and capricious
-without rational basis
-no facts exist that would support this decision
"BS" was not somthing that prof simpson said. "BS" was not somthing Swanburg said. "BS" was somthing the first anonymous commenter took away from Swanburg's post. Dont "BS", work a little harder, and come up with a good answer.
Prof LARC is dishing it up, real world style...showing what it takes to handle just such a situation as this one, professionally...even when you are not 100% sure what the answer is...you better be able hang or your gonna look foolish. Capricious? I think not.
Plus....she's hot.
11:05 AM-
No matter whether Swanburg used the term BS or not-- if you haven't read, you won't be able to answer the question without some degree of BS (call it what you want.) No one is questioning the fact that they could have read and answered the question. BUT THEY DIDN'T. You missed the issue.
If you all haven't learned, at BLS, professor are jerks and then justify it with some bs stuff like that. Advocacy is about scrambling!!! Really!!! Tell Powell that and see what he says--tell him it is about being underprepared but able to pull it outta your a$$. It never ceases to amaze me that all the professors cant even keep their ridiculous justifications for everything they do in order. Some of my favorites:
Always be on time blah blah blah but tomorrow we are going to have a Serr-a-thon because I did not use my time wisely.
Advocacy is about scrambling/advocacy is about preparation. I am going to stick to the second one considering Prof. Evidence MIGHT have a little more experience in that area.
We do not give Gentleman C's here at Baylor. But... certain professors will give you are a cute girl A's.
The Grandaddy of them all "When you get in the real practice / real world..." This is best served from a professor who clerked and then maybe practiced law roughly for one year and obviously never first chaired anything but maybe a depo.
My advice is to take all the "real world" advice with a grain of salt and consider the source half the time.
Apparently, Comment 2:47pm hasn't grasped why hearsay is excluded from evidence.
12:35,
dictionary.com's defenition of bullshit. . .
bull·shit: noun, verb, -shit·ted or -shit, -shit·ting, interjection Slang: Vulgar.
–noun
1. nonsense, lies, or exaggeration.
–verb (used with object)
2. to lie or exaggerate to.
–verb (used without object)
3. to speak lies or nonsense.
I don't see how cracking open their books to find THE CORRECT ANSWER would constitute some manner of "nonsense, lies, or exaggeration". But perhaps I once again have missed the issue. Please enlighten me as to which "degree of BS" you are referring to in your post.
With much love,
11:05
P.S. You are a dumbass.
I think Prof. LARC's lesson was fairly valuable. "I didn't read," is something which will get you kicked out of Prof. CivPro's class. "I didn't prepare" is something which will get you disbarred.
There were no elements of BS here. BS, as 11:05/5:14 indicates, implies making up something on the fly to cover one's hindparts. If Prof. LARC wanted to fault someone for failing to memorize the 5 Types of Legal Argument, she could have easily done so by booting the individual who turned to the book's table of contents. In my opinion, however, flipping to the appropriate page in the text is no different from consulting a brief or referring to notes, whether taken in the book's margins or on a separate sheet of paper.
Scrambling, BSing, or otherwise - here, appropriate preparation would include a minimal familiarity with the material to know where to find the answer on the fly if you don't know it off the top of your head. As such, flipping to the appropriate page (or googling, I suppose) is appropriate.
Prof LARC was totally appropriate. Sometimes there is a fine line between honesty and stupidity (as in telling your boss he looks like an idiot in his new Hawaiian shirt). If you consistently BS your way around law school or the real world, you will lose all integrity and respect. However, if you consistently do not prepare and freely admit it, you lose the opportunity to redeem yourself. Of course, the primary goal is to prepare and present yourself competently. But when you've sabotaged yourself by not preparing (or you forget what you did read), you don't just give up. You should still attempt to present yourself competently. Even if it bombs, you tried. Once you publicly admit you're unprepared, you have admitted defeat, and even the prof can't save you from yourself.
Totally a capricious booting on Prof. LARC III's part. First of all, bullshitting the court just doesn't seem like a good idea, and 7:11 and 9:59 have a good point there. Chances are, even if you get away with it a few times, you'll get caught eventually, and your credibility will be destroyed. By the way, Alex (and no offense is intended here), misdirection can work the same way...it might work in the beginning, but after a while, everybody knows you're avoiding the question, and your credibility suffers as a result. Do you really want to blow credibility with a judge - especially one with life tenure with whom you're stuck?
Second of all, how much does it teach us about being honest, ethical, and professional when some of the people in authority who are supposed to be teaching us about those traits seem to revel in looking for any excuse whatsoever just to kick students out of class - students, I might add, who happen to be paying for that class and who have the right to waste their money by not preparing if they so choose?
Based on what I'm reading from Swanburg's post, it looks to me like the students who flat-out admitted they didn't read showed a lot more maturity and professionalism than their professor did.
Apparently this was a bigger to-do than I thought. I don't actually remember Prof LARC saying that we should BS or make stuff up. She DID say that we should scramble.
I don't think she actually has ESP and could tell who did and who did not read. She picked one person and he didn't. I felt for him. I did. But by 3rd quarter, I think we should all realize that not reading means getting kicked out. Since when did that become surprising? And when did it become an either/or of capriciousness or a lesson? It's simply Baylor policy - aside from more forgiving profs like Prof Torts and Contracts. (And they, as evidenced by a couple memorable instances, get equally annoyed, despite not actually booting the offenders.)
I don't know. I guess I just didn't this being a big deal. Or even a small deal. Eh.
shouldn't you guys be outlining the problem instead of whining about law school?
no
stop beating a dead horse
take a break...have a beer...you're giving me a headache
New Blog Please
11:05:
Poor thing, you missed it again. Cracking a book would NOT constitute BS-- that is exactly my point. However, here, the issue is which is worse: throwing out someone who truthfully admits "I didn't read" or trying to make up/BS/whatever an answer that is not based on the facts or reading, but whatever comes to your head. In other words, Yes, it is good to prepare. Opening a book is nice. But if you don't- THEN WHAT? Everyone agrees that preparing and knowing the CORRECT answer is best. What folks are disagreeing on here is whether it is better to be truthful and admit you don't know, or to try to bluff your way through a made up answer that is not based upon any reading or factual knowledge to try to save face.
Glad I could help explain it to youwithout resorting to namecalling-
12:35
There's a HUGE difference between BS and scrambling.
When you're making your argument, there will be times that the judge will ask you a question that you should know the answer to. You know you researched it, you know you found the right answer somewhere, and you've got it somewhere in your notes, but you don't remember it off the top of your head. That's when you scramble to find it, rather than just admitting defeat.
Other times, you might get asked a question that you really don't know the answer to, something you didn't even research because you really didn't anticipate the question. Assuming that it's not something you should have expected (because if you missed something obvious, you've probably committed malpractice), sometimes the best answer is, "Judge, I don't have those numbers/that statute in front of me right now, but I can look into it and prepare a supplemental brief," or something along those lines. If you've proven your knowledge of the case and the relevant case law in other areas, and you're only responding that way to one question that really came out of nowhere, you'll probably be fine (and you might even help your credibility) . . . but if you're doing it all the time, obviously, you've got a problem.
It's not always about knowing the right answer. Sometimes it's just knowing how to find it. But you DON'T want to lie, or BS. I don't care how good you are, a competent judge is going to see right through the BS and you're going to hurt your credibility (and your argument) by doing it.
As we did, the blizzard began to abate and the clouds lifted. There is also poison oak and ivy along the trails so be aware of where you are hiking. Ward believed that extremes of wealth and poverty were the Achilles' heel of U.S. I had just sat down on an old stump, when Sandy gaily perched on my lap much to Rick's dismay.
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