THE LAW STUDENT

Character and Competence For a lawyer to achieve success at the bar just two things are necessary character and professional competence.

"The Law Student" is published faculty upon the character deduring the law school year at inter- velopment of students. That invals of six weeks from September tangible something in a lawyer 15th to May 1st. This is the first which marks him as a member of number for the school year 1927- a great and learned profession con1928. The next number will be sists in a certain attitude toward published November 1st. the courts, the public, and his brothers at the bar. Such attitude is most frequently first established in law school and later fortified and made permanent through professional contacts. The schools, however, should take care to initiate in each student the special process of character building necessary in the case of a lawyer, and should do all within their power to foster development of the best traits of their students, not only through giving courses in legal ethics, but also through invitations to distinguished lawyers to address students on the subject.

Both of these matters are within the individual's control. Any man can develop moral backbone, if he will make any real effort to that end, and any man, even though he may not be a legal genius, can at least make himself a competent lawyer, if he will but study his chosen science and familiarize himself with the proper use of the books which are the tools of his profession.

Character is the first essential for success at the bar. The second essential is professional compeCharacter building should begin tence, and here of course the abilfar in advance of legal training. ity of any law school to send out A properly disciplined home life, graduates really equipped for pracreligious affiliations, and early tice is much greater than its ability school life are enormously influen- to insure that each graduate is tial in shaping an individual's char- morally fit to meet his responsiacter and moral self. However, bilities at the bar. the special responsibilities of trust which rest upon a lawyer, the speEach law school can do two cial code of ethics of his profes- things. By a thorough course of sion, render necessary special instruction in the fundamental training of law students as respects principles of the common law it their responsibilities and duties as can implant a knowledge thereof officers of the courts and servants in each student and can also deof the public. This training, we velop in each student a legal mind believe, should be undertaken by and capacity for legal reasoning. every law school to the full limit These things are of course essenof its power. We are of course aware that many schools now give courses in legal ethics, and also, through the influence of faculty members with the students, foster in the latter a sense of the responsibilities they will have to undertake and meet as lawyers.

The more intimate the contact between any student body and the faculty of the particular school, the stronger the influence of such

THE HANDWRITING ON THE WALL
(Seven more states are about to adopt this plan.)

to do justice to his clients' cases him even in the simplest sort of without any thorough knowledge case, one on which he knows the of the use of law books-this for law perfectly well. He cannot go the very simple reason that there before a court merely upon his were so few books to be used. own assertions. Well as he knows Now, however, with the law devel the rule controlling the facts of his oped to a complex shape embodied case, and well as the court itself in thousands upon thousands of knows the rule, he must nevervolumes of statutes and reports, to theless cite by volume and page which are offered as a guide hun- authorities supporting his contendreds of volumes of digests, ency- tion. To do this even in the simclopedias, citators, and other in- plest case he must know how to dices, it is absolutely essential that use law books. the lawyer be able to use these It should not be forgotten that books if he is to be in position to the indexing and classification of advise his clients accurately as to law is a highly developed art, their rights, powers, privileges, largely the creation of the law pubduties and liabilities. The courts lishers of the country. The attiof our forty-eight states have de- tude of these publishers toward the veloped an enormously complex problem has been one of considsystem of American common law eration for the practicing lawyer, (leaving aside consideration of the the aim having been to make statute law). No school can pos- authorities readily accessible. In sibly impart knowledge of all this order to accomplish this it has been But beyond these things it is vast body of legal doctrine, nor necessary to classify the law under also necessary that the school in- could any human mind retain it several hundred specific titles. It struct its students in the use of the even in outline. should be noted that such titles and books which are the tools of the After his admission to the bar such classification do not follow legal profession. In the early post- the average young lawyer begins the lines of subjects taught as such colonial days, when an edition of to grapple with the problem of the in law schools. For instance, Blackstone's Commentaries consti- actual conduct of litigation in a under one standard classification tuted an adequate law library, and particular jurisdiction. With his system there are 169 specific titles when there were only a few vol- very first case he discovers that of contract law. Nevertheless in umes of printed reports in each law books and a knowledge of practically every law school curstate, it was possible for a lawyer their use are absolutely essential to riculum there is only one course

tial.

tions

to

on the general subject of study he cannot hope to In the third place, the mem-ily given, and one quite con- foundation for legal research contracts and a few on succeed. He should rememory test is intrinsically unre- clusive in its results. An ap- and the analysis and briefing of liable as a means by itself of plicant who cannot brief a cases, the bar examiners should other specific contract titles. ber that he must also know gauging an applicant's real simple question is incompe- retain a suitable test of such The law graduate who gets the use of the tools of his fitness to practice law. The tent to practice, and the ex- knowledge. But this test a case involving contract profession, if he is to do examination questions can aminers can refuse to admit should be supplemented and law readily recognizes it as justice to his clients and cover only a very minute frac- nim with a clear conscience, fortified by a test in research, tion of the whole body of the knowing that back of his fail- thorough enough to insure such, but he may waste a serve and not obstruct the fundamental principles of the ure there is no element of that no one be admitted to the great deal of time if he is courts of which he is an law, and, in many cases, they chance, as is quite frequently practice of law without real uninstructed in the proper officer. Character and com- happen to "suit" a particular the case with a memory test. qualification for performance of his duty to his clients and use of law books by exam- petence-character sound applicant and result in his passing without adequate In no single state where a to the courts in finding the law ining in the various search and sterling in itself, com- equipment, while, in other research examination has been and its applications in decided books the general title Con- petence both in point of cases, they happen not to suit given as part of the bar ex-cases. tracts without going to the knowledge and in point of 2 particular applicant, and amination have the examiners The major portion of a lawresult in his failing perhaps failed to recognize instantly particular specific title cov- use of tools are the only just because he was insuf- the great value of this plan of ver's work in the actual practice of the law before the courts ering the law of his case or sure foundation for a suc- ficiently prepared as regards examination. The busy and question. cessful career at the bar. a very small area of the law. successful lawyer-and most is in the application of prinYour school offers you applicant, properly or impropIn other words, whether an of the examiners are busy and ciples to the facts of cases, successful lawyers realizes or, to state it in other words, at once the utter uselessness in finding what principle fits every facility in legal train-erly equipped, can pass a his facts. This is or should ing and in character build- memory test bar examination, at the bar of one who cannot use law books. He may have be the chief work of law ing. It is most definitely is to a considerable extent a mere matter of chance as to the wisdom of Socrates, but, schools in the equipment of your duty and to your in- whether terest to take advantage of few questions touch the comparatively unless he can support his legal students practice law. them. upon knowledge in the conduct of No matter how expertly he matters he happens to know a case by citing authorities to is able to do this as a mator not to know. This defect the court in support of his ter of pure logic, it is imdoes not characterize the re- views, he is wholly unable to portant for him to see how the search test. It does not test serve his client and to per- courts have made such applicamemory, but rather ability and form his duty to the court of tions in similar cases. To get skill in the use of law books. which he is an officer. this information he must use A statement of facts or quessearch books. His ability to use The lawyer does not prac- such books is a necessary part tion for research is given, and tice on the resources of his of his equipment for the practhe particular subject matter of the question is wholly im- own knowledge. No school tice; and an examination of apmaterial. If the applicant can can possibly impart to him plicants for admission to the analyze that question to de- more than an outline of the bar to ascertain how far they termine the controlling prin- fundamental principles, and possess this ability is of deficiple of law, and then, through even were he capable of re-nite relevance to an examination taining in mind the law in de- into their fitness for the practail, he could not convince the tice. court thereof without citing page, showing the law and authorities by volume and its applications. Furthermore, whatever the knowledge brought by the applicant from school to the bar, such knowledge, gained As stated above, the subject through intensive study and of the law, and the particular preparation for the examinaprinciple of such subject with tion, rapidly loses shape in his which the applicant is con- mind and becomes rather a Any practi- Every lawyer in the couninvolving any subject and unsound it is, therefore, to ad- and every member of a board are immaterial. A question tioner will admit this. How try, every judge on the bench, principle may be given him, mit one to the bar only on a of bar examiners will realize, and if he is able to use the memory test of knowledge if the matter is given a mobooks in such respect, he has which, it is granted, he will ment's thought, that ability to demonstrated his ability to begin to forget the first day use law books expertly and use them in all other respects, after his admission! Skill in intelligently is a necessary legal research being an art research, however, is an abid-qualification for admission to and science of universal appli- ing acquirement-one neces- the practice of law. Neverthecation to the entire body of sary in the practice and one less, at the present time thouthat will endure throughout sands of young men are adprofessional life. mitted to the bar each year demonstrate their knowledge without being required to of the principles of legal research and the ability to apply such principles in briefing the law applicable to given states of fact.

There is nothing recondite or mysterious about the publishers' systems of classification. Nevertheless they do not and cannot possibly, in view of their purpose, run along the lines of law school curricula. The result is that special instruction in the use of law books Research in Bar Examinashould be offered by every school ambitious to send forth graduates actually competent to advise clients, The research type of bar to brief cases, and to fulfill examination, which requires the applicant to take a state their duties as officers of of facts presenting a question the courts and servants of of law, to analyze it in order the use of books, can discover the public. to discover the controlling and exhaust the law, its appliprinciple or rule of law, and cation and supporting authoriOnly a limited time, in of search works in order to must do in practice, and has then to go to various types ties, he has done just what he comparison with that spent discover the law and authorities demonstrated his fitness to adon other subjects, is neces- in support and to prepare a vise clients. skeleton brief on the question, sary to give a law student a is intrinsically superior to the firm grasp upon sound prin- memory test type of bar exciples of legal research and amination as now and previously an ability to use law books required by bar examiners in

expertly which will be of this country. A test of appli- cerned on the research test, hazy memory.

cants for admission to the bar,

once admitted to the bar does the law.

Legal Research, the
Courts, and the
Public

enormous advantage to him without recourse to a law lithroughout his professional brary, is a memory test. career. The young lawyer who can use law books ex- In the first place, the bar pertly will buy them wisely, examination, theoretically, is required in order to protect and through his knowledge the public against the admisof their use will inevitably sion of incompetents to the forge to the front among practice of law. But a lawyer his professional contempo- not practice alone on the basis of raries at the bar. In earlier what he knows and rememA lawyer is both an officer days success at the bar de- bers; rather, he practices on of the courts and a servant of The bar examiners in every pended more upon native the basis of what he finds by the public. He has sworn to state, in fulfillment of their ability and less upon train- way of law and authority in forward the administration of duty to protect the public support of any contention he justice, and he is unable to against the admission of ining, but today a lawyer may advance on behalf of a live up to his oath unless he competent lawyers, should inmust be something of a re- client. It follows inevitably can discover and arrange stitute, as an integral part of search expert if he is to from the facts just stated that authorities on any question the bar examination, a thorthe memory test is not a test presented to him. Likewise, ough test in legal research. It Some of the law publishers meet and overcome profes- of the qualities and abilities nec- unless he can use the books is not for a moment advocated of the country for years have sional competition. essary to the successful or even which are the tools of his pro- that the memory test be sup- been making efforts to induce the barely competent practice of fession, he cannot possibly planted by a research test, in-law schools to instruct in the The law student should law by a young lawyer or an serve his clients and do jus- asmuch as a knowledge of the use of law books. These efold one. remember that without a tice to their interests. law in its general outlines as forts have met with considertaught in law school is neces-able success, some schools acsound moral character careIn the second place, the The board of bar examiners sary if a lawyer is to do any cepting the material offered by fully created and fortified memory test, as contrasted in each state has been insti- independent legal thinking the publishers for the use of he cannot be a success at with the research test, favors tuted for one chief end- and be able to analyze a state instructors in research, and the bar. He should remem- too much the superficial and namely, the protection of the of facts presented to him so giving either elective or reber that without a knowl- rapid thinker-the man who public against the admission as to determine either the con- quired courses. can quickly get on paper the to the bar of men incompe- trolling principle or at least edge of the fundamental little he knows. The slower tent to practice law. The re- the subject of the law in principles of law and a ca- but more accurate and thor- search test is an ideal means pacity for legal reasoning ough thinker is handicapped whereby the board of examinacquired through law school by a large number of ques-ers can test the real fitness of tions and the nervous tension the applicants presenting training and independent of the examination. themselves. It is a test read

which he should look for the
controlling principle and its ap-
plications. Since a knowledge of
fundamental principles of law as
taught in schools is a necessary

However, a great deal still remains to be accomplished along the line of insuring that all men admitted to the bar are really equipped to practice, have not only a knowl(Continued page 4, col. 1)

(Continued from page 3) edge of the fundamental principles of the law, and the capacity to think and reason legally, but also expertness in using law books and exhausting the law and authorities on any given question.

Law schools in any jurisdiction certainly are entitled to plan their curricula to prepare their students to pass the bar examination. Until very recently the bar examination of no state in this country included a test in legal research, and accordingly the law schools gave scant attention to the subject. In the past two years, however, a number of states have begun to examine in legal research, and in such states the result has been that the schools have been led to offer courses of instruction in the science.

JUDICIAL AND OTHER COMMENT
ON LEGAL RESEARCH TEST

We submitted advance proofs of the two editorials on the third page of
this issue of THE LAW STUDENT to judges of State Supreme Courts,
members of Bar Examining Boards, and law school faculty members,
asking that they comment upon or criticize our views of the essential
character of a test in legal research in connection with the bar examination.
Herewith we print excerpts from letters received in reply to our request
strongly advocating adoption of a test in legal research by the Bar Exam-
ining Boards. We suggest that our readers examine the two editorials
referred to on page three of THE LAW STUDENT before reading
the comments that follow.

COMMENTS BY JUDGES

"I read, with interest, the material which you sent me on the subject of Legal Research. Your reasoning is perfectly valid. The longer I live the more

despair of ever knowing much law. Practicing law, and administering law from the Bench is very largely a matter of being able to find what the law is, by the quickest and easiest process. I find myself embarrassed every day by lack of skill and training in looking up law in the books. And 99 out of every 100 briefs that come to me convince me that most lawyers suffer the same embarrassment. I wish you success in your effort to secure training of lawyers in the use of law libraries."-Justice Harley N. Crosby, Supreme Court of State of New York.

method of examinations for the bar is merely a test of the memory of the student. No lawyer in actual practice depends upon his memory as to the law that is applicable to his case and in the preparation of a brief that lawyer is most helpful to the Court to which it is to be submitted, who has the ability to appreciate the points of law involved and find in the books the authorities which substantiate his contention."-Jerome L. Cheney, Justice of Supreme Court of N. Y.

"As you probably know the Bar Examiners of this State now make a test of the research ability of the applicant for admission to the bar an important part It is excellent and I hope to of the examination and regard it as a see this suggestion generally adopted." very important part thereof."-H. L. Bick-J. P. Hobson, Commissioner of Ap-ley, Justice of Supreme Court of N. M. peals, Court of Appeals of Kentucky.

aminers.

"Your favor of the 6th inst. was duly received, enclosing advance proof of editorial and other matters, to be printed in THE LAW STUDENT for September 15th. I have carefully gone over this matter and I can see no flaw whatever in its soundness, and while I have not given an analytical study of it with a view of making suggestions for improvement, I feel on a cursory reading of same that it is not subject to any particular criticism and that no improvements are really necessary."-C. T. Marshall, Chief Justice, Supreme Court of Ohio.

"Your views are essentially sound.
There is no alternative today."-T. Scott
Offutt, Judge Circuit Court of Appeals,
Md.

Let us consider for a mo-
ment the bar examination it-
self, as it has been until the
present. Theoretically it is re-
quired in order to protect the
public against the admission of
incompetents to the practice of
law, but it does not actually
protect the public unless it in-
cludes a test in legal research
as well as investigates an ap-
plicant's knowledge of funda-
mental principles and h's
ability to think and reason
legally. A lawyer once ad-
mitted to the bar does not
practice on the basis of what
he knows and remembers of
fundamental principles; rather
he practices on the basis of
what he finds in the books by
way of authority in support of
any contention he may ad-
vance on behalf of a client.
Therefore a memory test-and
a bar examination without a "I think your suggestions are well
research test is in essence worthy of serious consideration by the
largely a memory test-is not law schools of the country. Every law-
a test of the qualities and yer of even limited experience knows
abilities necessary to the suc- that one of the most difficult problems
cessful or
the barely in the practice of law is to locate the
authorities his particular case requires.
competent practice of law.
Cases vary so in their facts and sur-
Furthermore, any bar ex-roundings; they present problems in
such different form and shape from the
moot cases presented to the law student
that the authorities directly in point are
oftentimes hard to find. The application
of the law is so varied that an experi-
enced lawyer is often puzzled about the
ties."-Oliver P. Coshow, Associate
Justice, Supreme Court, Or.

"I quite agree with you as to the im-
portance of a course in Legal Research.
As to the style of bar examination, I
"I believe the more preferable ex-
think the memory test, as you call it,
presenting questions based mostly on amination, both from the standpoint of
statements of facts, and also the research the student and the standpoint of the
feature, should be combined."-Oscar Examining Board, should combine a
Hallam, former Justice Supreme Court, memory test, a research test, and a rea-
Minn., member council of Section on Le-soning test."-B. Rey Schauer, Judge
gal Education and Admission to the Bar of the Superior Court, Cal.
of Am. Bar Ass'n.

even

amination, in so far as it is a

"During the time that it has been my pleasure to occupy a position on the Supreme Bench (covering a period of some thirteen years) I have had in my office at different times young men who have graduated from various law schools. Some of these young men had taken a course in research work. I have found them to be much more efficient than young men who have not availed them selves of the opportunity to take research work." Alfred Budge, Justice of Supreme Court, Ida.

"I have read the foregoing with inclosure carefully. In my opinion your views on Legal Research (as a part of bar examinations) are unquestionably sound and unanswerable. In view of the large amount of statute and case law being daily passed into the lawyers' equipment I consider his ability and training to seek out and find the last word on the point involved the most indispensable part of his qualification for the practice of law. Too much cannot be said in its favor."-Glenn Terrell, Justice Supreme Court, Fla.

"There is no question in my mind that it is most important that a lawyer should be taught where and how to find the law under our system of stare decisis (which has been much abused in its application by our courts). No one knows the law, the best he can do is to find out what the Courts may have written on any particular question, and to reconcile the opinions. Quite a job, believe me. teach this is most important."-Edward G. Whitaker, Official Referee Supreme

Court, State of New York.

Το

"I have always believed that a portion of an examination for admission to practice in any State, might well be devoted to the subject covered by research work. I do not care at this time to venture an opinion as to what portion of the examination should be devoted to that branch. However, if it was known by the student that some portion of the examination would be devoted to research work, it would compel attention to and preparation upon that work. This in my judgment would have a tendency

to require more studious application and

memory, test, is intrinsically unreliable as a means of gauging an applicant's real fitness to practice law, quite apart from the fact that it does not purport to test his skill in re- right way to find the reliable authori- the lawyers' profession, and to train the stand the application of precedents to

search.

few

a

The comparatively "I agree with you entirely as to the questions submitted to appli- importance of law students taking a specants cannot begin to cover cial course in the use of law books, or the whole body of the funda- Legal Research. If all lawyers knew how to use the tools which are being furnished to them by modern law publishers, we would hear less talk about the evil from which the profession suffers owing to the great number of law reports published in our country. There never was a time when it was quite so easy to get at the law as the present day, if the lawyers would take the pains to learn how to use the tools which are being furnished to them."-Robert Von Moschzisker, Chief Justice Supreme Court of Pennsylvania.

mental principles of the law.
In many
cases, purely by
chance, the questions happen
to "suit" a particular appli-
cant, happen to include
number to which he happens
to know the answers; the re-
sult is that he passes without
adequate equipment. In other
the questions happen
not to suit a particular appli-
cant, and result in his failing
just because he was insuf-
ficiently prepared as regards
the small area of the law
touched upon by them.
(Continued page 5, col. 4)

cases

"I have read the article with pleasure and will hand it to Mr. T. B. MacGregor, the Chairman of our Board of Ex

"I have your recent and timely article on Legal Research. Legal research is student in legal research, is to train and equip him for the practice of his profession. No lawyer knows all the law, nor has the capacity to learn and retain it, but every lawyer can learn how, and where to find it, and the lawyer who finds it, is the successful lawyer."-John Burke, Associate Justice of Supreme Court, N. D.

"I have been convinced for a consider

able period that greater attention should
be given to the preparation of law stu-
dents in the handling of the tools of the
lawyer's craft and have been particularly
interested in the effort that you have
been making to interest the Bar Ex-
aminers in the various jurisdictions to
include in their examinations tests of
the ability of the candidates to appreciate
the legal questions presented by a given
statement of facts and to get from the
books the law applicable thereto. As
you say in the editorial, the present

training by the student in the use of law plicable to the subject matter suggested, books, and the finding of authorities apand to interpret more clearly and underAlso, it would require the student to new questions that might be submitted. thoroughly familiarize himself with newer and more improved publications which are constantly being prepared and furnished for the benefit of the bar in general and their clients."-Almon W. Lytle, Justice Supreme Court, State of

New York.

"I am greatly impressed with the effort being made by your company to stamp upon the courts of the nation and those who examine the applicants for law license the necessity of training and guidance in legal research. I think this is of great importance to the young lawyer. The training and guidance where to find the law on certain subjects is all important. The research test is so important that it should be taught in the law schools."-Heriot Clarkson, Associate Justice of Supreme Courf of North Carolina.

THE LAW STUDENT

of the law. I have conducted a course stated."-W. N. Falconer, University of
of instruction on that subject in the Arkansas, Department of Law, Fayette-
School of Law of the University of Den-ville, Ark.

ver for some years, and am convinced "I have given this editorial careful acterize a research test. Such
of its practical importance. There is no consideration, and it occurs to me that a test does not test memory,
single thing a young lawyer can do the reasoning advanced and the argu- but rather ability and skill in
which so quickly recommends him to ments presented are invincible. It is a the use of law books. A state-
his employers than to demonstrate his very short time, in my opinion, before ment of facts or question for
ability to handle the 'working tools of this method will be used by most law research is given, and the par-
the profession' skillfully, rapidly, and examining boards."-R. H. Chapman, ticular subject matter of the
If the applicant can analyze
effectively in making a complete and Vice-Chairman, Florida Bar Board, Lake question is wholly immaterial.
logical assembly of the authorities on a City, Fla.
given point."-George C. Manly, Dean
Emeritus, School of Law, University of
Denver, Colo.

"The law schools I think should have a course on legal research."-Hollis R. Bailey, Chairman Board of Bar Examiners of Massachusetts.

"I would be willing to make use of research problems in the examination along with the other tests we are giving, and I trust that before long we may add this additional feature to our examinations."-C. L. Young, Chairman State Bar Board of North Dakota, Bismarck, N. D.

"I have read these and regard the subject as fully treated and in a most excellent manner."-S. S. Willis, Chairman of Board of Bar Examiners of Kentucky, Ashland, Ky.

"It was my experience, as a young lawyer, and my observation of other lawyers confirms it, that most young lawyers when licensed to practice law are about as well fitted to begin an active practice as an architect who can plan a building but who never handled a tool is fitted to build a house."-Neill C. Marsh, member of Board of Law Examiners, 13th District, El Dorado, Ark. "I may state that personally I believe a bar examination should include a research test, in addition to the usual examinations which are now given. I personally believe that it is very important for a student to understand thoroughly the question of Legal Research, and to be a leader of the Bar he must be able to find the recent cases."-Neville Miller, Louisville, Ky.

which I am connected for a number of Faculty of University of Louisville, place in every law school. I frequently taught adequately in school at

"A comprehensive research cannot be
made unless one has thorough ground-
work in legal principles and theory."-
Edward J. O'Toole, Professor of Law,
John's College, School of Law,
St.
Brooklyn, N. Y.

"I have no criticism to offer to your advocacy of a requirement that examinations for admission to the Bar include a test in legal research. In fact, I endorse what you say in your proposed article as being very convincingly