February 5, 2007
The Power of the Brief
I have just finished reading Leah Chistensen's "The Psychology Behind Case Briefing: A Powerful Cognitive Schema," published at 29 Campbell L. Rev. 5, and it is a good read. She taps into cognitive theory to explain the importance of effective briefing as a means of understanding the law. She notes that
[e]xperts in rhetoric believe that thinking, speaking and writing are inseparable. Therefore, students can use case briefs to enhance their understanding of the law by writing their briefs by hand or by typing them into their computers in a way that allows them to be conscious of their own thinking. Contrary to simply highlighting, the process of writing allows students to more accurately assess what they do and do not understand about the case.
Professor Christensen is absolutely right; but unfortunately, many students never recognize that dynamic in the process of briefing. Instead, too many first-year students abandon case briefing and resort to “book briefing.” When they do so, they drop an important tool for processing the thinking of the court and the logic of the law.
One of my first questions for students who seek help from me is, “Tell me how you prepare for class.” More often than not, those who are struggling answer that they highlight passages in the casebook and make small notes to themselves in margins so that they can locate the facts, the rule, and the holding.
My response is always the same: “Start briefing every case again, focusing especially on the court’s reasoning. You have three years of reading and discussing cases to learn how courts and lawyers think. There is no better, more efficient way to master that kind of thinking than to force yourself every day to distill, process, and record the logic of opinions that make that thinking explicit.”
I go so far as to tell them to number the steps in the court’s explanation of the law and its application. By distilling the logical steps and laying them out in a brief, students are forced to engage the text on a much different level than highlighting or even summarizing can provide. Having engaged it at that higher level, they begin to transform their own thought processes and to hone and deepen their reasoning skills.
Other students will tell them briefing is a waste of time. Of course, those students are correct if the goal is simply to read a case and be able to recite the facts and the rule. If the goal is to learn how to reason as courts reason, mere highlighting is the real waste of time. (dbw)
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