Substance versus Procedure

The distinction between substance and procedure is a theme that comes up time and time again in the study of law. In addition to the subtle distinctions that we are all familiar with via Erie and its progeny, (if you don’t know, don’t ask,) the study of law itself involves both substantive and procedural aspects. One of the biggest challenges for me was recognizing that the procedural aspects of lawschool deserve as much if not more time than the substantive ones…

The substantive aspects of the law are easy to grasp. What is the definition of a promise? What are the elements of a mistake-of-law defense? These are the things that I thought lawschool was about. Substantive knowledge of the law is undoubtedly a critical aspect of becoming a lawyer, but without the procedural knowledge to use your facts you’re in big trouble. There are a lot of very, very smart people who get burned on their first round of finals because of lack of attention to procedural preparation.

Being procedurally prepared means knowing how to approach the law with a mind for how you are ultimately going to use it. When prepping for finals this means being ready to write. The only way to be ready to write is to practice. Take advantage of the past exams that are available through the library. Read over them and get a sense for how the substantive issues are presented. Then, and here’s the big secret, practice writing answers to these questions under test conditions. Take some time and go over exams with a study group, get feedback and practice some more. The people most prepared for the procedural aspects of lawschool will have a distinct advantage.