THAT

HAT there is much to be said in favor of the case-book method of teaching law is unquestionable. That the prevalent application of that method. in the schools where the case-book is used exclusively, and other text-books are practically eliminated, is, under all conditions, ideal, seems not equally beyond a reasonable doubt. On the contrary, it would seem unreasonable to conclude that methods which are applicable at the larger law schools, whose scope is practically national, are necessarily the most ideal for application in schools whose students are drawn almost entirely from a particular state, or from a locality of states, and who are preparing to engage in the practice of law within a somewhat restricted territory.

It seems very probable that the ordinary case-book now in use is admirably adapted to the needs of schools whose course must needs be extensive and comprehensive enough to cover the laws and practice of practically the whole country. So what is intended by this article is by no means a criticism of case-books generally, as they are now used in the larger universities, but merely a suggestion as to something which may be adapted somewhat better to the needs of schools of a more purely local character and without attempting to suggest that the idea might be adaptable to any wider or more general application.

In the May-June (1908) number of the American Law School Review there

appeared an article by Professor Henry W. Ballantine, of the University of California (now Dean of the Law School of the University of Montana), entitled: "Adapting the Case-Book to the Needs of Professional Training." Among the adverse comments upon the modern case-book as employed in the larger law schools, as well as many lesser schools, the able writer above referred to adverted somewhat in detail to the lack of practical training in the use of the authorities at first hand afforded by the schools which have carried the use of case-books to the extreme. This defect, to which Professor Ballantine has referred and for which some remedies were suggested and discussed, has suggested to the author a somewhat more radical solution to the problem, which seems practicable, at least with certain limitations, and which may, perhaps, prove of interest.

Certainly one of the most glaring defects in the equipment of the average law school graduate as he leaves the classic halls of his Alma Mater is that he is utterly inexperienced in applying the law to any given statement of facts. During his law course, this has practically all been done for him, either by the compiler of his case-book, by the author of his text-book, or by his instructor; the situation in this regard, ordinarily, being about the same, whether the method of instruction employed has been the case-book method or one involving more or less the use of texts. But the case

book method renders such a result inevitable, inasmuch as, every point being covered by a multiplicity of cases, in order to cover any given subject within the time allotted to it in the ordinary law course, little opportunity could be given the student to become familiar with the authorities as reported, in the way they must be met in actual practice. The average member of a law class is or should be a person of a fairly mature mind, somewhat above the average maturity of mind of college undergraduates. If this latter statement be not literally true, he ought at least to be by so far the better material for the instructor that he is shaping his education toward the attainment of a definite end. For this reason it seems reasonable to believe that less rather than more detail is requisite in instructing a body of law students than is the case with college undergraduates, and that more rather than less might reasonably be intrusted to them by way of original research, with a minimum likelihood of the abuse of such a freedom from the restraint of absolutely beaten paths.

All of which leads up to the result of my observation, which is that the modern case-book, because of the voluminous nature of its contents, the vast number of similar cases cited and presented, the great detail with which every point is developed, leaves too little to be worked out by the student along lines which will confront him in his first case, and every succeeding case, in actual practice. It is doubtless impossible, under the best possible conditions, to make full-fledged lawyers in any law school; but it seems that every means which might tend toward that end should be carefully looked into.

The suggestion tending in that direction is briefly this: Let the case-book

(intended to be supplemented by standard text-books) be in the form of a notebook, with blank pages between the statements of the problem cases. On the first page let the problem case be stated as briefly and concisely as consistent with a complete and comprehensive statement of the operative or ultimate facts. The case should be a supposititious one, so that the student may not, perchance, find it reported somewhere, and thus lose the benefit of working out its solution for himself. After the statement of the case, such space as may be deemed necessary would be left blank, upon which the student will write the decision, stating the point of law involved and the reasons and citations of authorities. This, however, he will not write in until he has read and abstracted such cases as the instructor may choose from the authorities cited. Following the blank page or pages, left for the student to use in writing his decision, will be given a comprehensive collection of the authorities, followed by blank. pages upon which the student will write abstracts of the cases assigned by the instructor from those cited, as many as the instructor may deem necessary to cover the point involved, and which are to be read and abstracted before writing the opinion in the problem case, and which are to form his basis therefor.

In order to make the suggestion more graphic, the following specimen case is submitted, which involves the matter of express warranty, and which is not given here as a model of its kind, nor as suitable for use in a case-book such as here. suggested, but merely as an illustration. of the idea intended to be conveyed:

"A., a railroad contractor, goes to B., a dealer in mules, and asks him if he has any mules suitable for his work of railroad grading. B. replies that he has. A. asks him if they are well-broken and good draught ani

mals, and B. says that they are. Thereupon A. buys certain mules and pays for them. The mules prove balky and entirely worthless for the purpose for which A. bought them. What is A.'s remedy? What difference would it make if B. knew of the defects? What would be A.'s measure of damages, if he is entitled to any?"

(Blank space, of such extent as deemed necessary to the particular case, for statement of the principle of law involved, and the decision on the point, with reasoning and statement of authorities.)

(Thereafter the authorities, of which one or more will be designated by the instructor to be read by the student and abstracted on the following blank pages, preparatory to writing the decision in the problem case above.)

Authorities for above:

38 N. J. Law (9 Vroom) 496, 20 Am. Rep. 425.

58 Ky. 444, 71 Am. Dec. 489.

43 Me. 226, 69 Am. Dec. 56.

60 Vt. 401, 15 Atl. 100, 6 Am. St. Rep. 122.

18 Wis. 196, 86 Am. Dec. 757.

9 Mont. 191, 23 Pac. 74, 7 L. R. A. 471, 18 Am. St. Rep. 731.

45 Cal. 473.

80 Ga. 150, 4 S. E. 877.

86 Iowa, 543, 53 N. W. 342.

89 Iowa, 513, 56 N. W. 652.

118 N. Y. 260, 23 N. E. 372, 16 Am. St. Rep. 753.

145 N. Y. 414, 40 N. E. 228.

13 Wis. 600.

41 Wis. 360..

78 N. C. 323.

6 Daly (N. Y.) 376.

57 N. Y. 16.

3 Ky. Law Rep. 526.

114 Mo. 38, 88 S. W. 1126. 127 Iowa, 696, 164 N. W. 286. 52 Neb. 617, 72 N. W. 1058.

It would seem advisable that the student should write abstracts of three or four of the leading cases on the average problem case, and the citations should refer to a number of the leading reporter systems, if possible, so that the average law school library would furnish facilities sufficient to enable a number of students to work at the same time. The instructor could easily supplement the list of cases cited in almost any instance by referring to cases reported in the state reports of the jurisdiction in which the school is located, or by referring to any

other authorities to which the student might have access; but the main point. is that the student would in any event be getting his experience in going to the reports directly, in separating the wheat from the chaff by his own efforts, instead of reading the pertinent portion of the report which some one else had carefully dissected for him.

A summary of the advantages of such a presentation of a point of law would seem in part to be: First. The student would be obliged to go to the authorities, and learn to analyze them in their original and unabridged form, to get at the pertinent facts, which the case-book presents with many of their knotty. points and difficulties eliminated. Second. The cost of such a case-book, which would be published in a notebook form, would be comparatively low, and this fact would enable the student to buy standard texts and other books of reference in addition to the case-books at little or perhaps no greater expense than is ordinarily involved in the purchase of the Harvard case-book; thus the student would be accumulating books of value to his future library, which is certainly not a quality appertaining to the ordinary case-book. Third. The instructor could make his instruction local, so far as he may find desirable and practicable, by substituting for the cases cited, either in whole or in part, cases from the local jurisdiction, or from jurisdictions considered as most authoritative by the local courts. Fourth. Each generation of students would be required to do its own work independently of the preceding classes, as the instructor could assign different cases each year, so far as he should see fit, and thus the abstracts and other work of one class would be unavailable for use by succeeding classes. Fifth. More ground would be covered,

as a great deal of the work could, if desired, be covered by the use of the texts, and only such points covered by the case-book as seemed to present unusual interest or importance.

While it does not seem by any means desirable that case-books should be discarded, it does seem that such a skeleton case-book as has been suggested above would involve a more valuable and practicable method of reading cases. The combined use of case-books and textbooks has always seemed to the author the most rational method of teaching law, and the suggestions here offered seem to provide one way of effecting such a combination. The author does not assume to be qualified to assert that the suggestion above is adaptable to all

subjects of the law. He rather leans to the negative of that proposition; but it is believed that a conservative application of the general idea suggested, in certain instances and in teaching certain subjects, will tend toward the development of greater individuality, originality, and efficiency, and toward the removal of one of the greatest disadvantages against which the law school graduate has to struggle. He is, at best, not a lawyer when he graduates, and he will never become one until actual contact with the procedure and application of the law to the facts has made him one in the arena of the courts; but the less he is handicapped at the outset, the greater has been the efficiency of the law school, and vice versa.

M

ENTAL attitude is a great matter. The late Mary Baker Eddy said that it is everything. Elbert Hubbardthat thinker and book-binder to the leisure class says that mental attitude is nearly everything. Doctor Dowie and Madam Tingley, indeed all the impresarios of the great cults, say that mental attitude is genius, power, success, and as essential to a St. Saëns concerto as to a well-digested meal.

Now surely all these high appraisals will sustain for mental attitude the general average statement that it is a number one concern and well worth considering for an evening or two.

Heretofore we have shown that dining, reputable and conspicuous dining, occupies a leading place as an impression maker for the young lawyer. And we have touched up Clothes and the Green Bag as next in prominence, though no law professor has taken time to say one word about these things. Mental attitude now completes a triumvirate of aids to legal life untouched by legal pens, and into this virgin land I now propose to timidly blaze a way for some legal genius with a gang plow.

I am not now speaking of mental attitude as affecting health or nervous power. Its effect upon fees and rela

tions with clients is my subject—so let's at it.

The lawyer's static mental condition. is of no importance-what he thinks in the undisclosed recesses of his soul matters not, (though it might be shocking to his client). It is his dynamic mental state that counts-the state manifested in his conversation with his client. My theme, then, might more properly be called Legal Conversation, and its feegetting and client-keeping power.

My observation is that to the lawyer there is nothing so valuable, so potent in his dealing with clients, as a conversational attitude of contempt for judges and courts. At once the untutored legal yearling interrupts with a ponderous "why?" Well, such an attitude, taken with a client whose case is pending, convinces him in advance of your prowess, and dauntlessness, your ability to bear his cause through fiery perils, even "as Æneas through the flames of Troy the old Anchises bore." And you shortly find that your client believes in you, that your make-believe opinion of yourself has become his opinion. You have moved him from the miasmatic fogs of doubt, and he now lives in an atmosphere of victory. He sniffs the battle from afar, sees himself upon the heights, under the protecting ægis of your intrepid genius, and anon, in the calm, he counts the swag of victory, apprehensive of nothing but your bill.

Yea, the results are even more. He thereafter entereth your office deferentially; he speaketh quietly, and with no assurance; he ventureth no opinions on his own account, and troubleth you no more with the haphazard opinions of friendly lawyers who hand him their un-feed views at club and church; he tarrieth not long in your office, seeing that you are a man of visible impor

tance; and he boweth himself out as he would from the chambers of a Supreme Court Justice. You are to him a Jeremiah Mason, a Rufus Choate, an undiscovered Webster-for the case has not been tried. His deferential visits are oases in your businessless Saharah, and you are radiant in the contemplation of yourself, fearing only the disillusioning day of trial.

This attitude, always decorously observed by the best lawyers (for the habit formed in youth clings to them through life, and long after there is any necessity for it), expresses itself on this wise: "Mr. Bellicose, our case unfortunately must be tried before Judge Way Up, an arrogant political accident. However, I have reversed him several times in the Supreme Court, and he has considerable respect for me." Or in this fashion: "Judge Baloon, I regret to say, is not dirigible. He is a man of unbending prejudices. His decisions are about as clear as a time-table to a woman. But my experience is that when the essential X-rays of a proposition are liberated from the incumbering data, and are set to vibrating, they generally penetrate the opaque headpiece of Judge Baloon."

These identical observations, vigorously announced, produce, as I can solemnly attest, the most profound results. Nothing short of the day of trial will efface them. They may be taken by the young lawyers as models and moulded to fit the local situation.

Should the case in hand be one fraught with grave danger, there is another remark that will act as a saline injection to your depressed client. You may say: "My great fear in this case is due to the fact that Judge Blunderbuss is likely to try it. He could not comprehend the law, were it hypodermically administered. It takes a grape