Reading and briefing cases is an important part of the learning process in law school, as discussed in Part 1 of this blog series. In this blog, various Marquette legal writing faculty discuss some of their favorite tips for effective reading and briefing.
Professor Rebecca Blemberg
When you have finished reading a case, write down the question or questions the court answered. Then fill in the blanks in this sentence: The court held _______________ because ________________. Even if you’re not entirely sure what the court’s reasoning was, make an educated guess. Then consider the following. Was the court explicit in its reasoning? If so, mark or highlight the explicit rationale for the holding. Is the reasoning implicit? If so, mark or highlight the places where you find the court hinting at its rationale. Are you making an educated guess or “reading between the lines” to find the court’s reasoning? If so, make a list of a few reasons for your educated guess. The reasons can be related to the facts of the case, public policy, language choices by the court, the court’s use of authority, etc.
Look up every unfamiliar word you encounter in a case, especially legal terms. Read with access to a law dictionary. Eventually, you will look up terms far less often.
Professor Jacob Carpenter
One piece of advice I would consider is to read a case at least twice, briefing it only after you’ve fully read it at least once. This may not be as necessary for upper-level students, but for 1Ls, I think it is important. Otherwise, if a person briefs a case as she first reads it, the brief often ends up including extraneous facts and dicta that aren’t helpful to the brief. Once the reader finishes reading the case, the reader often has to go back and cross out chunks of information initially included in the brief. And, the brief often ends up being disorganized. This may be less of a problem now that most students brief cases with their laptops instead of by hand. But, I think it is still helpful.
Also, waiting to brief the case until you’ve already read it allows you to focus more on understanding the case itself during the first read, and then during the second read you can focus on getting the crucial information down into your brief in an organized, concise way. I also think it helps you remember the case better when called on in class or when revisiting the case as you prepare outlines later in the semester.
Professor Melissa Greipp
As noted in Ruth Ann McKinney’s Reading Like a Lawyer: Time-Saving Strategies for Reading Law Like an Expert, when you read, be an active reader. One way to be an active reader is to question the court’s holding and rationale. Would you rule the same way if you were the judge? Why or why not? Not all cases are put into a casebook because they represent “good” law. Some cases are there to show bad examples of the law, or at least how the law has evolved over time.
Sometimes you’ll see different “majority” or “minority” rules expressed in the selected cases. Think critically about the rules and why they work or don’t work. Did the court effectively explain their rationale? What other policy implications can you think of supporting the rule?
The more you can think actively by reading, the more engaged your brain will be, and your reading comprehension will increase.
Professor Alison Julien
Keep your purpose in mind as you read and brief cases. Are you briefing a case from one of your casebooks to prepare for a class? If so, you’re likely reading a case that has already been edited to focus on one particular point, and that point will be the focus of the class discussion.
If you are reading an unedited case, however, and your purpose is to answer a client’s question, you may read differently. An unedited case may address multiple points of law, and not all of those points may be relevant to your analysis. You need to focus on the parts of the case relevant to the client’s issue. Don’t waste time preparing a detailed brief about parts of the case that were relevant to the parties before the court but have no bearing on your client’s case. For example, my LAWR students are working on a memo about whether a doctor can prove that he was incompetent to contract under a standard the New York courts refer to as the “motivational test.” The cases they are reading do address that standard, but they also address a number of other issues. The challenge for students is to read carefully through the cases to pick out the rules, facts, reasoning, and holdings relevant to the motivational test. They need not waste time carefully briefing other issues raised in the cases, issues like the jurisdiction of the New York Surrogates’ Court, the elements of a constructive trust, or even the elements of the other test for incompetence.
Professor Lisa Mazzie
I would reiterate Prof. Blemberg’s suggestion to read with access to a legal dictionary. It’s far easier to skip over a word or to intuit its meaning from context, but this is a new language students must master and the best way to do that is to actually look up the exact definition of the word. And as Prof. Blemberg says, over time you have to look up fewer and fewer words.
When you read a case, it’s important to put the case into context. So spend a little time with the caption. Where did the case originate? When was it decided? What was happening in the world at that time? An award of damages of $1,000 may not seem like much today, but it was in, say, 1912.
I would also say that when briefing cases it is essential that each student do his or her own brief. It’s tempting to borrow a case brief from a friend or use one of the commercial case briefs, but that is a mistake. The real learning and understanding of a case is in your own working through it in order to brief it. Using a friend’s or a commercially produced brief saves you the time of having to do your own, but also deprives you of the opportunity to better understand the case yourself. Over time, this skill, too, becomes easier and takes less time.
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