Chapter Two - Preparing for Class
Class preparation requires more than simply reading the material. You will need to re-read and work with the materials -- writing notes, re-writing notes, practicing applications and preparing outlines. In this chapter, we will review the critical thinking, reading and writing skills you will use as you prepare for class.
Critical, Active Reading Skills
Critical Writing Skills: An Introduction to Briefing
A Sample Briefing Format
Holdings and "What's the Answer"
The Importance of Vocabulary
Sample Cases to Brief
Reading the Law from a Series of Cases
Law school requires that you read large quantities of dense
material. You must have efficient reading habits to simply complete your
assignments. You must have critical, active reading habits to be
effective in learning from what you read. The following is a suggested
method for reading your assignments. It is an elaboration of the
classic SQ3R method developed by Professor Frank Robinson at The Ohio State
University in the 1940s. See, Robinson, Effective Study (4th ed. 1970).
1. Know your assignment and actually read it.
Before you can read efficiently or effectively, you have to know what to read. Check the syllabus and listen in class for instructor guidance on your reading assignment. If neither the syllabus nor the instructor provides guidance, adopt a rule of thumb that reflects the pace at which you actually cover materials in the class - 20 pages a class, for example - and read at least that much regardless of whether you are expressly assigned materials or not.
Do read what is assigned. Even if the instructor doesn't cover the material in class. Even if you won't get to the material in class for a week. Be sure to read everything you are assigned. If you are given an assignment to read pages 20-34 of your textbook, read the textbook. Some students read a lot of material, but never really read their assignments. They skim pages 20-34, or they read the cases contained on pages 20-25 and 29-33 but skip the notes, comments, problems, footnotes, or article excerpts in between. Other students actually move their eyes over all the pages, but mostly for the purposes of following their highlighter as they color their books. Students have been known to resort to simply "coloring" their texts rather than reading them. Then there are the students who read other materials instead of the assignment: canned briefs (the Cliff notes of law school) or outlines, or hornbooks. Sometimes extra reading is a good idea; but first, read your assignment.
2. Prepare to read.
Put yourself in the right place and time for reading. You know what works for you. If reading in your easy chair is really a signal for a nap, find less soporific surroundings. If reading in the library is really an opportunity for socializing, find some isolation. Set aside a place and time that works for you and stick to it.
Put yourself in the right frame of mind as well. Know that cases, in particular, are not easy readers. There is much you will need to learn in order to understand what you are reading and there is even more you will need to infer or interpret. Judges are not necessarily selected for the bench because they are clear writers. Even clear writers sometimes may prefer to create some ambiguity in their opinion. So be prepared.
3. Prepare to learn as you read.
Most law students know they need to have an outline for their exams. Successful law students know they need to start their assignments with an outline for their reading. The best sources for such an outline is the table of contents for the textbook or the course syllabus. Before you read any particular assignment or case, look over your reading outline, paying particular attention to the overall topics and "themes." Identify where, in this organization, the materials to be studied fit. Skim through the entire reading assignment (This is the first of several reads). How many pages? How many cases?
Begin to wonder about what you will be reading. Ask yourself some motivational questions about the material. For example, why might I want to know this material? Have I ever had experiences with this subject area? Ask some questions to help identify what you are looking for. For example, read some of the questions in the notes following cases or ask yourself what rules or concepts might you be exploring and guess what they might mean.
4. Read thoroughly.
Read the entire assignment, trying to get a sense of what's going on. This will take a long time at the beginning because you will likely have to stop often to look up unfamiliar words or to re-read confusing passages. Do be sure to use references as you read. Look up unfamiliar terms in the dictionary (standard and legal). Get background on concepts from secondary sources. Re-read each portion of the assignment (each case, for example) looking for key ideas and reasoning.
5. Read actively.
Engage your critical mind as you read. Be sure you are not just passively taking in the information, but are searching, questioning, comparing and otherwise thinking as you read. Some students do this by reading out loud if their mind wanders. Many students find it useful to highlight, underline and annotate the text as they read. Argue with the text as you read. Compare what you are reading to what you already know. Whatever technique you use -- keep thinking.
Once is rarely enough. On each subsequent read, have a different purpose and read for that purpose. You might want to re-read to understand simply what happened in the case, for example. Or you might want to re-read in order to compare how what you have read today fits with what you read yesterday.
Briefing the cases assigned is only one aspect of writing as you read. Take notes on other aspects of your reading. Keep a vocabulary list and write out definitions for yourself. If you read statutes or rules, diagram them or write them in your own words. If there are articles or commentary accompanying a case, be sure you summarize the main points in your notes. Absolutely if you have questions about your readings, write them down and look for answers.
Throughout the semester, you will need to review everything you have read. Review your readings after you have completed your notes, by comparing them with others or inventing and discussion problems raised by the readings. Review with a purpose of discovering what you know and -- perhaps even more important -- what you don't know. Generate more questions and then try to answer them.
As part of your review, go back to materials you have read for prior classes and review those materials in comparison to the materials you have most recently read. Look for connections and themes. Note these ideas down.
One of the most important aspects of writing as you read is "briefing" the cases in your text. It is the process of preparing the brief that provides the primary benefit, not the brief itself. The process of briefing helps you concentrate on key ideas, compare one case with another, organize your analysis, and review your materials. Remember that your purpose in reading cases is NOT TO LEARN ABOUT THE CASE -- the case is simply one fact situation to which one court has responded. MUCH OF WHAT YOU NEED TO GET OUT OF A CASE IS NOT TO BE FOUND IN THE EXPRESS WORDS OF THE CASE.
You study cases because they provide:
RULES & DOCTRINES -- You must learn to identify the legal concepts and rules that are applied in cases. Learning the rules is the easy part. Interpreting the rules is the difficulty. Remember that RULES ARE TOOLS to solve problems -- they are not formulae to provide answers. So identify and memorize the language of the rules, yes, but also work on identifying all the different uses that could be made of the rule.
ARGUMENTS -- Cases provide examples of techniques of argumentation that can be applied to all kinds of situation. They also provide fact situations to which you can apply your own argumentation skills, creating arguments that are different from or more carefully crafted than those provided by the court.
POLICIES -- Cases implicate public policy considerations that the judges may or may not expressly discuss but you need to explore.
STRATEGIES AND OUTCOMES -- Cases provide examples of choices and outcomes that affect clients. You need to think about whether the choices made were wise and about what options were available. These are matters rarely discussed explicitly in the case.
Especially during the first month of classes, you will need to read the cases several times before you can produce a final brief. The "policy analysis" and "personal analysis" sections may be rather thin as you concentrate on describing opinion itself. After several weeks, you will be able to brief the cases with less effort and fewer readings. Now, the time saved should be spent thinking about analysis. The focus of your study will shift from the top sections of the briefing format to the bottom.
Citation: Name of the case, date decided, court
Statement of the Case: "Who is suing whom for what remedy on what basis?" (from viewpoint of trial court)
Statement of Facts: Chronological summary of all relevant facts (sometimes drawing a diagram helps)
Procedure Below: What happened in the lower court? Who won?
Result on Appeal: Was the trial
court reversed or affirmed?
What is the issue?: There are usually two kinds of issues: "what is the law? (e.g., which rule should the court apply? or which interpretation of the rule should the court adopt?)" or "how does the law apply to these facts?(e.g., should these facts be characterized in such a way as to fit within the rule or outside the rule?)". A third issue: "what are the facts" is equally important in practice, but we will not usually be addressing those issues in this course. Note that one case may contain several issues.
Arguments and Analysis of Appellant: Why is the trial court wrong and what legal theory or interpretation should have been applied?
Arguments and Analysis of Appellee: What is the trial court's legal theory or application and why is that correct?
What is the holding?: One way to think of a holding is : "Under this doctrine of law, if these facts occur, then this condition of the law has been fulfilled."
Policy Analysis: What public policies or goals are furthered by the court's choice? What would be the effect if the court have chosen an alternative rule or application of the rule? How does this opinion fit in with others you have read on the same topic? How does the law applied in this case fit into the overall scheme?
Personal Analysis: Do you agree with the holding? How far do you think the next court would be willing to extend the holding? Do you agree with the results? Is it fair? With the analysis? Is it logical and consistent? What's likely to happen now to the people and the property involved? What would you have done differently if you had represented one of the parties or had been the judge? Why is this case in the book? Why did the professor assign it? How might it be tested?
Students often have the most difficulty in arriving at a 'holding' in their brief. This is often the point at which students approach their professors and ask "Did I get the holding right?" or "What's the answer?"
The "answer" to all legal questions is the same: IT DEPENDS. What the holding of a case is depends on how you interpret the result of the case in light of the facts and the court's reasoning. Students must understand that a holding is not the same as a 'rule', which is the law the court applies to the facts in the case to reach the holding. It is also different than the court's 'rationale' for why it chose to apply the rule in the way it did. Over time, a series of 'holdings' in related cases, crystallize into 'rules'. Even when the court says "We hold..." the statement they make may not be what develops into the "holding" of the case as other courts apply that case.
So there is no there is no "right or wrong" holding -- only interpretations of cases that are more strongly supported and better reasoned that others -- and when is a particular interpretation "better reasoned"? IT DEPENDS on the use you wish to make of the holding. If you are defending someone for whom the interpretation of a holding will be favorable precedent and you can make a good argument that interpretation is correct, that is the better holding. If you are trying to predict how a future court will apply a case, the interpretation that results in a holding that best predicts the future is the "better" holding --- at least until the future changes.
Here is one way of looking at a holding that can help to reflect the complexity of this concept.
Suppose a court has a case in which A discovers that B has a son who requires a special operation. Out of the goodness of A's heart, A pays for the operation. B discovers A's generosity and then promises to pay for A's education. B later reneges on the promise, just as A is about to finish the degree program and begin a teaching job. The court finds that B has no legal obligation to pay for A's education (the result). The holding might be phrased as follows:
The Court will not grant restitution to a Plaintiff who performs a Defendant's obligation...
Facts Tending to Lead to Result
AT LEAST IF:
1) Defendant has not requested Plaintiff to perform the obligation
2) Plaintiff and Defendant have not entered into a contract under which Defendant agreed to reimburse Plaintiff
3) There existed an alternative remedy through which someone could have required Defendant to perform its obligation itself
Facts Tending to Lead to Opposite Result
1) Defendant did have the obligation
2) Performance of the obligation was of great public importance
3) Plaintiff performed Defendant's obligation
4) Plaintiff's performance of the obligation conferred a benefit on Defendant.
5) Plaintiff had an obligation (e.g. teaching contract) which could not be performed unless Defendant's obligation was performed
Facts Tending to Mitigate the Effect of the "Even Though" Facts
AT LEAST SO LONG AS:
1) Plaintiff was not an intended beneficiary of the statute or contract (or other source) creating Defendant's obligation
2) Plaintiff has some other remedy for any damage Plaintiff suffered by reason of his inability to perform his obligation (e.g. teaching contract).
It is tempting for students to gloss over words they don't understand. Many professional schools students have developed their vocabulary to the point that, when faced with unfamiliar words, they simply guess meaning from context and let it go at that. They have gotten out of the dictionary habit. In law school, while guessing meaning from context is not a bad first step, the dictionary habit is critical. Every word you pass over (whether legal or not) creates a hole in your understanding that has a cumulative effect on your ability to master the material.
The study of law revolves around the learning of a whole new language. Some legal words are foreign looking and sounding (for example, "res judicata" "mens rea"); others look like words you think you know (judgment, reasonableness, intent) but have peculiar and complex legal meaning. Often the meaning of these terms is the critical issue in interpreting cases and statutes. The fact that separate (very voluminous) dictionaries exist for legal terms should indicate to you the importance of acquiring and mastering a legal vocabulary.
Thus, a critical part of your daily class preparation should include looking up and striving to understand the definitions for every and any unfamiliar word. At first, this will mean that you will be stopping to look up words nearly every other sentence. Take heart. As the semester progresses and your legal vocabulary expands, however, you will be find fewer and fewer unfamiliar words.
The task of becoming skillful in case analysis is indeed difficult and time consuming. It may take hours to comprehend a single opinion. If you apply yourself diligently, however, and if you have a realistic outlook of what must be done, you will find that the time needed to handle opinions will tend to decrease. What will increase from this approach will be your satisfaction in being able to use case law effectively in the resolution of legal problems.
Garratt v. Dailey
46 Wn. 197, 279 P.2d 1091
HILL, Justice. The liability of an infant for an alleged battery is presented to this court for the first time. Brian Dailey (age five years, nine months) was visiting with Naomi Garratt, an adult and a sister of the plaintiff, Ruth Garratt, likewise an adult, in the back yard of the plaintiff's home, on July 16, 1951. It is plaintiff's contention that she came out into the back yard to talk with Naomi and that, as she started to sit down in a wood and canvas lawn chair, Brian deliberately pulled it out from under her. The only one of the three persons present so testifying was Naomi Garratt. (Ruth Garratt, the plaintiff, did not testify as to how or why she fell.) The trial court, unwilling to accept this testimony, adopted instead Brian Dailey's version of what happened, and made the following findings:
"III. * * * that while Naomi Garratt and Brian Dailey were in the back yard the plaintiff, Ruth Garratt, came out of her house into the back yard. Some time subsequent thereto defendant, Brian Dailey, picked up a lightly built wood and canvas lawn chair which was then and there located in the back yard of the above described premises, moved it sideways a few feet and seated himself therein, at which time he discovered the plaintiff, Ruth Garratt, about to sit down at the place where the lawn chair had formerly been, at which time he hurriedly got up from the chair and attempted to move it toward Ruth Garratt to aid her in sitting down in the chair; that due to the defendant's small size and lack of dexterity he was unable to get the lawn chair under the plaintiff in time to prevent her from falling to the ground. That plaintiff fell to the ground and sustained a fracture of her hip, and other injuries and damages as hereinafter set forth.
"IV. That the preponderance of the evidence in this case establishes that when the defendant, Brian Dailey, moved the chair in question he did not have any willful or unlawful purpose in doing so; that he did not have any intent to injure the plaintiff, or any intent to bring about any unauthorized or offensive contact with her person or any objects appurtenant thereto; that the circumstances which immediately preceded the fall of the plaintiff establish that the defendant, Brian Dailey, did not have purpose, intent or design to perform a prank or to effect an assault and battery upon the person of the plaintiff."
(Italics ours, for a purpose hereinafter indicated.)
* * *
It is urged that Brian's action in moving the chair constituted a battery. A definition (not all-inclusive but sufficient for our purpose) of a battery is the intentional infliction of a harmful bodily contact upon another. The rule that determines liability for battery is given in 1 Restatement, Torts, 29 § 13, as:
An act which, directly or indirectly, is the legal cause of a harmful contact with another's person makes the actor liable to the other, if
(a) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person," * * *
* * *
In the comment on clause (a), the Restatement says:
"Character of actor's intention. In order that an act may be done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to a particular person * * * the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced." * * *
We have here the conceded volitional act of Brian, i.e., the moving of a chair. Had the plaintiff proved to the satisfaction of the trial court that Brian moved the chair while she was in the act of sitting down, Brian's action would patently have been for the purpose or with the intent of causing the plaintiff's bodily contact with the ground, and she would be entitled to a judgment against him for the resulting damages.
* * * After the trial court determined that plaintiff had not established her theory of a battery (i.e., that Brian had pulled the chair out from under the plaintiff while she was in the act of sitting down), it then became concerned with whether a battery was established under the facts as it found them to be.
In this connection, we quote another portion of the comment on the "character of actor's intention," relating to clause (a) of the rule from the Restatement heretofore set forth:
It is not enough that the act itself is intentionally done and this, even though the actor realizes or should realize that it contains a very grave risk of bringing about the contact or apprehension. Such realization may make the actor's conduct negligent or even reckless but unless he realizes that to a substantial certainty, the contact or apprehension will result, the actor has not that intention which is necessary to make him liable under the rule stated in this section.
A battery would be established if, in addition to plaintiff's fall, it was proved that, when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been. If Brian had any of the intents which the trial court found, in the italicized portions of the findings of fact quoted above, that he did not have, he would of course have had the knowledge to which we have referred. The mere absence of any intent to injure the plaintiff or to play a prank on her or to embarrass her, or to commit an assault and battery on her would not absolve him from liability if in fact he had such knowledge. * * * Without such knowledge there would be nothing wrongful about Brian's act in moving the chair and, there being no wrongful act, there would be no liability.
While a finding that Brian had no such knowledge can be inferred from the findings made, we believe that before the plaintiff's action in such a case should be dismissed there should be no question but that the trial court had passed upon that issue; hence, the case should be remanded for clarification of the findings to specifically cover the question of Brian's knowledge, because intent could be inferred therefrom. If the court finds that he had such knowledge the necessary intent will be established and the plaintiff will be entitled to recover, even though there was no purpose to injure or embarrass the plaintiff. * * * If Brian did not have such knowledge, there was no wrongful act by him and the basic premise of liability on the theory of a battery was not established.
Edward CONTI, Plaintiff, v. ASPCA and Diana Henley, Defendants.
Civil Court, City of
Jan. 30, 1974.
MARTIN RODELL, Judge.
On June 28, 1973, during an exhibition in
On July 5th, 1973 the plaintiff, who resides
The next day, the plaintiff phoned the defendant
ASPCA and requested advice as to the care of a parrot he had found. Thereupon the defendant sent two
representatives to the plaintiff's home.
Upon examination, they claimed that it was the missing parrot,
The issues presented to the Court are twofold:
One, is the parrot in question truly
plaintiff presented witnesses who testified that a parrot similar to the one in
question was seen in the neighborhood prior to July 5, 1973. He further contended that a parrot could not
fly the distance between Kings Point and
The representatives of the defendant ASPCA
were categorical in their testimony that the parrot was indeed
Upon all the credible evidence the Court does find as a fact that the parrot in question is indeed Chester and is the same parrot which escaped from the possession of the ASPCA on June 28, 1973.
The Court must now deal with the plaintiff's position, that the ownership of the defendant was a qualified one and upon the parrot's escape, ownership passed to the first individual who captured it and placed it under his control.
The law is well settled that the true owner of lost property is entitled to the return thereof as against any person finding same. (In re Wright's Estate, 15 Misc.2d 225, 177 N.Y.S.2d 410) (36A C.J.S. Finding Lost Goods s 3). This general rule is not applicable when the property lost is an animal. In such cases the Court must inquire as to whether the animal was domesticated or ferae naturae (wild).
animal is wild, its owner can only acquire a qualified right of property, which
is wholly lost when it escapes from its captor with no intention of returning.
Thus in Mullett v. Bradley, 24 Misc. 695, 53 N.Y.S. 781, an untrained and
undomesticated sea lion escaped after being shipped from the West to the East
Coast. The sea lion escaped and was
again captured in a fish pond off the
The Court finds that
The Court wishes to commend the plaintiff for his acts of kindness and compassion to the parrot during the period that it was lost and was gratified to receive the defendant's assurance that the first parrot available would be offered to the plaintiff for adoption.
Judgment for defendant dismissing the complaint without costs.
Not only do you need to be able to "brief" each case, you must be able to read the cases together. Sometimes casebooks provide two cases with very similar facts but opposite outcomes. Your task in preparing for class is to explain ("distinguish" or "reconcile") why each case came out the way it did. Sometimes the two cases simply represent majority and minority approaches to the same rule. Other times one case represents the general rule and subsequent cases represent extensions, modifications, exceptions, or reversals. You need to be able to read these cases together to identify what the law has become.
For example, assume that you have read two cases on products liability in your torts class. You have now been presented with a hypothetical and asked to predict or argue for a result. One way to learn to identify rules and analogize cases is to create a chart of the relevant cases and generalize the facts broadly or narrowly to fit your case. Complete the chart below to practice this skill.
Assume that you have a client, Alberts, who is suing Berg for injuries that
resulted when he ate some rat poison labelled aspirin. There are two
cases in your jurisdiction that you think might apply as precedent. As
you read those cases, you will be:
analogize the case (argue that your facts are the same) to your facts if the outcome is
the same as the outcome you desire OR
distinguish the case (your facts are different) from your facts if the outcome is not favorable
Bottle of pills
Rat poison marked "aspirin"
Barrel that could blow up
Valve that let explosive gas leak
Labeled by Alberts
A told B gun was safe
A said nothing about safety
Alberts not aware of poison
A knew of defect
A didn't know of defect
Berg took pill, became ill
Burns fired gun, hurt
How do you decide what facts are important to compare or what explanations can be used to justify your comparisons? The opinions themselves may provide some clues, but you need to learn to read beyond what the court says and look to what it does. By examining facts, and asking "So what" repeatedly about each difference and similarity in facts, you will soon discover several possible reasons beyond the court's reasons. This is the route to true understanding.
 Replevin is a legal action in which the court orders the sheriff to seize personal property that has been wrongfully held and return it to its owner.