With the beginning of law school just a few weeks away, I thought this might be a good time mention my essay, How to Read a Judicial Opinion: A Guide for New Law Students, which I wrote last year to help incoming students with reading for class.
I am happy to report that a number of legal writing programs assign the essay to incoming students; if you’re a professor or instructor and want to assign it, please feel free. Also, if you’re a law student and you have ideas for how to impove the essay, please consider leaving a comment with your suggestions.
I think this is a good essay. Let me offer you some constructive criticism.
I disagree with you on two points. First, dissents are almost never useful on exams; concurrences are only useful when they represent the fifth vote. I wouldn’t stress the importance of concurrences and dissents too much. There are a few important concurrences (like Youngstown), and Profs will highlight these to students. Most of the rest aren’t too important.
Second, understanding the argument that lawyers made to the court is almost never important. This information is rarely included in law school text books anyway (except to the extent that you can figure out what the lawyers argued from the judge’s opinion). Also, it simply does not help you on an exam.
I would add two things: (1) a short case, with commentary that shows the reader the holding, dicta, etc., (2) some guidelines for notetaking and outlining.
[OK Comments: Jeff, to be clear, this essay is for incoming students on how to read a case to be prepared for and to participate in class, not how to read a case to help you write an issue-spotter.]
Orin:
I’m 24 years removed from my first law-school assignment — and 23 years, 10 months removed from when I first “got it.” Those first two months of reading cases in four different subjects seemed like driving with one eye closed through a brutal, nighttime fog.
But the memories of my brain being “mush” (as that famous fictitious law prof says) remain vivid. That’s why I found your essay great for a couple of reasons.
First, at a purely functional level, it’s a wonderful roadmap for understanding those hundreds of pages per week new students have to digest. The essay really helps the process of just plain understanding.
Second, and far more important to me, your essay has a wonderfully reassuring tone that new students in a really crazy world of writing will be okay.
Great stuff.
Orin,
I would add a section on the procedural history. Law school cases are almost always appellate cases, and it can be very confusing at first to figure out what went on below or why the opinion is talking about various motions and briefs filed below. It’s particularly important to distinguish the procedural history from the question presented and what you term the law of the case’.
Incidentally, this could fairly easily be converted into an essay on how to brief a case, which to a first year law student sounds ominous and confusing at first.
Professor Kerr,
Thanks for posting the essay – I plan to assign it in my undergrad Con Law class. The only area that I thought could be expanded upon would be an emphasis on the test (or, as you say, the rule) of the case, which of course will be useful to them on their issue-spotter exams. Thanks again.
Thanks, Ted. When you suggest adding a section on procedural history, I gather that you mean I should add a section explaining what the different procedures are? (What pleadings are, what summary judgment is, what a verdict is, sentencing, etc.) That’s a very interesting idea.
I’ll disagree with Ted on the procedural history point. Based on the level of detail that the essay seems to be shooting for, I think the “Facts of the Case,” “Law of the Case,” and “Disposition” contain all that is necessary on that score for first-year students to be able to navigate their case books.
My suggestion is to consider adding a bit more detail about precedent, possibly in the paragraph on p. 4 about “stare decisis,” or in the “possible effect and scope of the court’s decision.” I think that one thing that confuses law students at the outset is how law is made or interpreted through cases. Some cases are in the case books because they provide useful a exposition and application of the rules already out there. Others are there because they make new rules or limit old rules. Some are in there for other reasons….
The essay is a good thing, and explains a few things better than my legal writing instructor and professors did during my first year of law school.
Ted’s suggestion would undoubtably be immensly helpful. I went through my entire first year without any real clue about HOW law was practiced or what civil procedure really meant. It was all just so abstract.
Then, I showed up as a summer clerk for DOJ and on my first day was told to draft a complaint. Took me 6 hours to do, but by the end I knew (and understood) more about the rules of Civil Procedure than I had learned in 2 full semesters.
Orin:
I enjoyed your guide. On page 3 you wrote:
“Finally, for historical reasons, some courts– including the
U.S. Supreme Court– label an appeal as a “petition,” and require the losing party to petition the
higher court for relief. In these cases, the party that lost before the lower court is called the
petitioner, and the party that won before the lower court is called the respondent (that is, the one
who appears before the higher court to respond to the losing party’s petition).”
Doesn’t the Supreme Court call the appealing party a “petitioner” for those cases where the decision to grant cert. is discretionary? For the few cases where the Congress has directed that the Court must take an appeal (such as an appeal from a 3-judge Court ruling on the McCain-Feingold Act), the Supreme Court labels the appealing party the appellant.
Orin,
This is a great essay. I think it’s more useful than the millions of “how to brief a case” instructions that are out there. A couple of suggestions:
First, you do a little bit of this already, but I think you should add a whole section on archaisms. Several of my 1L classes, especially Property and Contracts, started out with a bunch of really old cases. I got very confused about terms like “plaintiff in error” and “assumpsit.” Figuring out (a) what these mean, and (b) that they are no longer used, took rather longer than it should have.
Second, I often skimmed over the procedural history section for classes other than CivPro, but then I would get to the end and see “affirmed” or “reversed” and realize that I didn’t actually know how the case came out because I’d skipped over what the lower court said. Sometimes the disposition is obvious from the court’s strong language in favor of one side, but often it’s not. I would suggest to new law students that they take particular note of which side won in the last round.
I agree with Ted that procedural language about demurrers, cross-claims, summary judgment, JNOV, etc., can be confusing to brand-new 1Ls, but I don’t know if these students will be helped by having a bunch of CivPro dumped on them in an otherwise concise how-to. They’ll get to that in a few weeks.
This is excellent. The only thing I would add is a caveat that this method of reading cases is one of many, and while it’s probably the most natural and straightforward, it won’t be the best for everyone. When I was in law school, I found that going to the disposition first sometimes clarified the rest of the opinion.
Incidentally, this practice carried over into my clerkship. I always put the disposition in the opening paragraph: “Defendant Jones has asked the Court to exclude from evidence fifty grams of cocaine seized by police from his automobile during a vaild traffic stop. Because the cocaine was in plain view, the motion is denied.”
I would point out that, for the most part, only appellate opinions are published. (As Prof. Engfelt at USD said, we are teaching law students not to be lawyers, but to be appellate court judges.) Then point out that appellate courts are often present “facts” which do not reflect real life, such as stipulated facts, or deal with presumed facts, such as when deciding a demurrer. Thus, the new law student should resist the urge to point out that the facts are incredable. This ties into the procedural history section Ted M. suggested.
I would also encourage the student (again borrowing from Prof. Engfelt) to ask him or herself why the casebook author included that case. Sometimes it is because it is such an aweful opinion. By aweful, I mean, sometimes, incoherent and poorly written, or, more often, a bad outcome.
I do some appellate work (working on one now), and one thing judges look for in any brief is an explication of the standard of review. I remember in law school getting asked as much about the standard of review, and why that standard was applicable and appropriate in a particular case, as about the law applicable to the controversy itself. I know you have covered that generally, but a short section of “abuse of discretion” and summary judgment/demurrer/motion to dismiss standards and the like might be helpful. Otherwise, I think that essay would be valuable to any first year.
One thing you may want to add (from a GW alum who is a practicing trial lawyer) that will help those who view the changing hypotheticals, and case analysis, as purely a theoretical exercise.
Students need to look at the facts in cases and understand which were the critical facts or issues that helped or hurt a given party’s position, so that when they become trial lawyers, they understand how to develop their own evidentiary record.
It is also essential to read cases to learn what the elements of every claim are, because if you don’t start your complaint off knowing that you have the facts needed to allege that claim, you run the risk of a procedural loss, rather than a merits loss.
As a practicing attorney, I always try to identify the key cases I would want to cite in a brief to support a motion for summary judgment, or at trial, or on appeal. The fact patterns in those cases become critical to how I start my case and gather and present my evidence from the get-go.
What is hard in law school is that the facts are handed to you in cases; as a practicing lawyer, one must develop the evidence required to make a case seem more similar to the facts in X (where you win) instead of Y (where you lose).
In my cases, I always try (particularly in deposition contexts) to get fact admissions that are as close to facts in previously-decided cases that I think are winners for me; the closer I can make my facts (or legal theory) match those of a prevailing party in a prior decision, the more likely I am to prevail.
Judges generally try to get things right, and if you can say my case is like precedent X, you are always better off.
Cheers!
Dear Professor,
I am not a lawyer (nor do I play one on TV), however, quite a while back I did spend four torturous years as a paralegal at Messrs. Cravath, Swaine & Moore in New York City. Among the many soul-satisfying activities I engaged in there was proofreading. I can thus confidently aver that in the first complete paragraph of the fourth page of your fine essay, a comma is required following “for example” and not a period (“When a case is governed by a statute, for example. courts may conclude that a result
is required because that is what the legislature’s statute says, no matter what the court thinks
would be the best rule.”).
Orin,
I am not a lawyer or law student, but I occasionally read opinions in areas that interest me, so I found your essay interesting.
Erratum: Page 4, 9th line from the bottom.
…the higher court though the lower court…
–> … the higer court *thought* the lower count…
As a student who read your first version, I would consider adding a paragraph the generally describes the different levels of deference which the reviewing court affords the lower court’s opinion.
You wouldn’t have to parse the nuances of “clearly erronous” versus “substantial evidence,” but telling students generally about the spectrum of review might be helpful.
One thing I found helpful was when someone explained that, with certain issues, an appellate court might not necessarily agree with the trial court but nevertheless will affirm the trial court’s decision.
Orin — I agree with Ted — it’s not that difficult to explain the different ways in which a case can get to an intersection requiring a judicial opinion, and I think many students find the procedural history (frequently left in casebooks despite its general irrelevance to doctrinal analysis) mystifying and arcane. At least I did. Also, I find that most law students and young lawyers struggle mightily to understand that procedural context matters in the real world — an opinion reversing a 12(b)(6) dismissal is often quite a bit different from an opinion rendered after jury verdict.
Personally, I’d also consider reworking your “understand the facts of the case” argument a bit. In my (very limited) teaching experience and substantial practice experience, the law students for whom this essay is likely to be most useful are those who will automatically tend to overstudy the facts of each case.
Folks for whom case interpretation comes relatively easily do tend to undervalue the factual portions of judicial opinions; they tend instead to gravitate to the “meat” of the opinion without realizing that the factual context is often critical to the analysis in subtle ways.
By contrast, I think law students who find case interpretation to be somewhat tougher sledding tend to focus on the facts, often allowing the irrelevant to distract them from the important. These are the folks most often caught out by the issue spotter on exams — they tend to see legal relevance in every factual aside.
I don’t know how I would write the essay to account for my concerns, because the fact section is obviously important, too. But I think most students would be better served to split their time 70/30 or maybe 65/35 on reasoning/facts, rather than the 50/50 your essay seems to imply.
Actually, I meant that where you have described different parts of the case you skip (it seems to me) from the facts to the law. Most cases discuss how the case came to the court, and this is one of the most confusing parts (or it was to me in my first year).
Second, understanding the argument that lawyers made to the court is almost never important. This information is rarely included in law school text books anyway (except to the extent that you can figure out what the lawyers argued from the judge’s opinion). Also, it simply does not help you on an exam.
Yeah, but it helps you in the practice of law. I thought that law students were supposed to learn how to be lawyers in law school. Perhaps not. That explains why B students make more money than A students. Acing an issue-spotter is not the same as learning to be a good lawyer. Writing and “good lawyer’s” answer on an issue spotter will, generally, get you a B.
Pingback: CALI's Pre-Law Blog
Pingback: TylerLaw.Net Blog » Blog Archives » How to read a case?