Tuesday, September 15, 2015
Reading and analyzing cases are mainstays of daily life as a lawyer. Competence in these areas is critical. Law school is the place to learn these skills well. Students who only read when they will be called on or depend on canned briefs are short-changing themselves as lawyers and their clients.
Here are some tips for getting more out of cases:
- Before you begin reading the entire case, build a framework of knowledge within which to read. Do not skim the entire case, but instead ascertain key information quickly. By knowing these items, you will avoid confusion as the court lays out its reasoning.
- What court are you in? Federal/state and what level.
- What are the categories of the parties? Buyer and seller or landlord and tenant.
- What is the basic dispute? Widgets never delivered.
- What legal authorities will you be dealing with? Cases or statutes or both.
- What is the holding? Drop to the bottom of the case and find the holding which gives you the answer to the issue - the whodunit for the case.
- What is the judgment? Affirmed, reversed, etc.
- Chunk the case into natural pieces and deal with one chunk thoroughly before moving on. Read actively by focusing on a chunk and asking yourself questions about it after you read. Then write margin notes that capture the most important points for that chunk. Some of the natural chunks in a case are:
- Fact paragraphs
- Procedural history paragraphs
- Paragraphs about the same precedent
- Paragraphs about the same statutory language
- Paragraphs about the same policy
- Paragraphs giving the holding
- Judgment paragraph or sentence
- A separate concurrence
- A separate dissent
- At the end of reading the entire case, review all of your margin notes and synthesize them into the points that are most important about the case. Include the most important points in your brief.
- Some margin notes will "fall out" because of the court's preference for later discussion in the opinion.
- Or the court may have introduced a change in policy that affects the importance of earlier discussion in the opinion.
- Always think beyond the individual case that you read.
- Why did I have to read this case?
- How does this case interrelate with the other cases that I read for today?
- What does this case tell me about the subtopic/topic I am studying?
- Remember that judicial opinions are written for lawyers and casebook opinions are often edited. Lawyers read opinions with a great deal of legal knowledge and experience that you have not yet gained. The editor of the casebook may have edited out something that would help you in understanding.
- Give a paragraph three good-faith reads. If you still cannot understand it, put a question mark in the margin and move on.
- Something later in the case may help you understand the confusing paragraph. If so, go back and re-read the paragraph again.
- If you still do not understand the paragraph at the end, make a note to chat with a classmate about it. Listen carefully to class discussion for clarification. Ask the professor about it if you still do not understand and think it is an important part of the case.
- Realize that not all cases are created equal. Some cases are very dense and contain multiple issues, rules, definitions of elements, statutory interpretation, policy and more. Other cases are very narrow and contain just one brief point for you to take away.
- Editors may focus on just one aspect that they want you to pull from the case and edit out other material extraneous to that focus.
- Cases often build on one another. A series of cases may give the common law rule, definitions of several elements, exceptions to the main rule, etc. The cases work together to explain an area of law.
- Cases may build on one another to show the historical evolution of the law. If you know how the law changes over time, you learn how to argue for modifications and use policy arguments to support change.
By learning to analyze cases on two levels, you become more adept in the skills you need as a lawyer. Read for depth of understanding of the individual case. Then think about how that case can be used more broadly for understanding the legal specialty and to solve new legal problems. (Amy Jarmon)
Monday, October 6, 2014
Recent studies show that reading is good for us and that reading in print is, well, even better.
To quote a recent, ahem – online publication – “reading in print helps with comprehension.”
So, what do these studies mean for law students? Law students might consider the following:
- In your Legal Research and Writing class, print out the sources, e.g., the cases and statutes, that are relevant to your assignments and that you will use to write those memos.
- Print out your notes and outlines – if you have typed them. Put these materials in binders and read them from the printed page – not on the screen.
- Reconsider using textbooks in e-book format and favor print books.
- Build in time to read for relaxation – a print book, short story, or magazine – of course.
Wednesday, October 1, 2014
Multitasking is a way of life for those who’ve grown up in the digital era. You might be talking face-to-face with a friend but you are also texting or checking social media. Even those of us who grew up “b.c.” (before computers) now consider multitasking an essential skill. Why simply drive somewhere when you can drive and talk to someone on the phone? We are busy. We need to multitask. We are good at it. Well, we might not be as good as we think. Research shows that when people do several things at once, they do all of them worse than those who focus on one thing at a time. Multitaskers take longer to complete tasks, make more mistakes, and remember less. In addition, research into multitasking while learning shows that learners have gaps in knowledge, more shallow understanding of the material, and more difficulty transferring the learning to new contexts.
For many, multitasking has become such the norm that you don’t even think about it, you just do it. That’s the problem—you don’t think. However, take a minute to consider why you multitask. Is there an actual need for it? No. You do it because technology has made it possible, because you want to, because meetings/classes are boring, because you don’t want to wait. This is not to say that you shouldn’t watch tv while getting dressed in the morning. But do think twice before multitasking while preparing for and during class. You don’t need to check social media while reading cases. You don’t have to check fantasy football stats during class discussion. Although switching between these tasks may only add a time cost of less than a second, this adds up as you do it over and over again. Class requires focus and multitasking distracts your brain from fully engaging with the material.
The next time you go to class, put the phone on silent and put it away, turn off the internet or shut your lap top. Then focus on the professor and what is going on in the class. The first few minutes will be tough because your brain isn’t used to focusing on one task at a time. However, it won’t take long before your brain realizes it only has to do one thing. You will concentrate more deeply and learn so much more than your classmates who are busy tweeting how bored they are, checking fantasy football stats, and not picking up the exam tip the professor just gave. (KSK)
This idea for this post came from Sara Sampson, OSU Moritz College of Law’s Assistant Dean for Information Services. She made a short presentation on this topic at orientation and was so kind to share her notes and research. Thank you!
Thursday, August 22, 2013
Students often ask how to determine which concepts in a case should end up as part of the case brief’s reasoning section. Because judges do not simply ramble in their opinions, every sentence is an important part of the reasoning that drives the opinion. Therefore, what should students capture in their case briefs?
The answer lies in one of the key purposes of briefing cases: identifying the legal principles and the logical steps that will be necessary for resolving similar issues on an exam. In other words, students should learn to brief cases the way lawyers brief them – to draw out the analytical templates courts use when addressing particular issues. In doing so, students will not only begin preparing themselves for their exams, they will accomplish the most important purpose of briefing cases: training themselves to think like lawyers and judges.
They should focus the reasoning portion of their briefs on the future. They should ask themselves which concepts will be useful to them when they are answering an exam question; those are the ones they want to capture and later put into an outline that will guide their analyses on the exams.
Below is a list of the types of concepts students should watch for, not only in the cases but also in class discussions. In fact, if they print off this list and keep it next to them when they are in class and when they are reading and briefing for class, they may find it easier to separate the important concepts from the background and case-specific concepts that will not likely drive a future analysis.
WHAT SHOULD YOU BE GETTING FROM READINGS AND CLASS DISCUSSIONS?
Key themes running through the course
Accurately stated rules
Precise understanding of the logic underlying the rules, tests, definitions, and their
corollaries and exceptions
Key policy aims underlying each rule, etc.
Essential steps in the logic of applying each rule, etc.
Critical similarities and differences among rules, among tests, etc.
Critical attributes of facts that satisfy or do not satisfy the rules, definitions, etc.
Archetypal fact patterns that implicate each rule
i.e., what dynamics are always present when a particular rule is implicated?
E.g., transferred intent in battery: one person always propels something toward another and hits a third person instead. The means could be throwing, driving, mailing, pushing, or any of a thousand other means. The dynamics always boil down to the same thing.
Tuesday, April 2, 2013
Global processors are always looking for the big picture, the overview, or the roadmap in learning - they want to know the essentials and the end result. Intuitive processors are curioius about concepts, abstractions, theories, and policies and seek out relationships among ideas - they are synthesis peole. When these two breadth-processing styles combine as strong preferences, the learners can sometimes assume they know a course when they only know the gist of a course.
These processors are more tempted to take shortcuts in learning: skim a case, read the canned brief, produce a cursory outline, and write conclusory memos. They often come out of exams with comments like "I guess I didn't know Torts as well as I thought." They are shocked when reviewing an exam to see that they never analyzed element three even though they knew the analysis. The analysis stayed in their heads instead of making it to the paper for the professor to grade.
Global-intuitive students tend to make mistakes on exams that stem from their breadth of learning without sufficient depth of learning, thinking, and organizing. For example, on fact-pattern essay exams, they leave out the steps of their analysis because they think the professor will know how they got from point A to point D without having to lay it out. It is true that the professor knows how to get there, but the professor needs to know that the student knows how to get there (rather than a lucky guess) to give points on the exam. On multiple-choice exams, they tend to pick by gut rather than carefully consider every answer option. Consequently, they look at the options that match their conclusion (guilty, admissible, liable) and miss the best answer that is not guilty unless, inadmissible unless, or liable only if. Alternatively, they may not know which of two better answers is best because they do not know the nuances of the law on which the question turns.
There are several ways that global-intuitive students can help themselves to develop more in-depth understanding of the law and gain more points on exams:
- Avoid shortcuts that tempt one to only know the gist of a course: canned briefs, scripts, outlines of other students.
- Spend time memorizing the precise wording of the rules, definitions of elements, and other law so that one is not fuzzy on elements, factors, variations. or other items.
- For essay exams: Write out fact-pattern essay answers instead of just thinking about them; get feedback from professors, teaching assistants, or classmates on the depth of analysis.
- For multiple-choice exams: Complete lots of practice questions and read the answer explanations in the book to learn the nuances of the law rather than just the gist of the law.
- Take the time to read, analyze, and organize an essay answer. The rule of thumb is to use 1/3 of the time for a question to do these steps and then 2/3 of the time to write the answer.
- Use a chart to organize the essay answer rather than hold information in one's head. Rows can indicate the parties to the dispute. Columns can indicate the elements or factors that need to be discussed. One can enter facts, cases to be mentioned, and policy arguments in the appropriate cells as a careful read of the fact pattern is completed.
- When writing the essay answer, change the audience one writes to - instead of writing to the professor, write the answer as though explaining the law to a non-lawyer (your cousin, grandmother, little brother). Connecting the dots is easier when writing to a lay audience.
- When writing the essay answer, ask "why?" at the end of each sentence. If an explanation for the statement is not there, keep writing and add the "because" to the sentence.
- Carefully weigh each answer choice on multiple-choice tests; look for the best answer rather than the superficially right answer.
- Slow down in exams and use all of the time given. Global-intuitives tend to finish early which often indicates that they missed smaller issues, did not fully analyze the arguments, or did not read the questions carefully enough.
Monday, April 1, 2013
Sequential processors focus on the individual units before them (cases, subtopics, topics) rather than look at the bigger picture (how these units combine into a whole). Sensing processors focus on details, facts, and practicalities rather than look at ideas or synthesis (the inter-relationships of concepts, subtopics, etc.). When these two depth-processing styles are combined in a student as strong preferences, the students can become too focused on pieces and detail and miss the broader view, inter-relationships, and policy arguments.
Several strong sequential-sensing learners have mentioned to me in the last few weeks that they feel that the only time they are focused on what really matters is when they are reading and briefing for class. When they are outlining, reviewing their outlines, or doing practice questions (all of these steps are in their weekly schedules), they fear that they are not expending their energies on what really counts.
After several of these comments came close together, I decided to step back and analyze why these issues were surfacing after I thought we had discussed what one is trying to accomplish in law school courses. I realized that for these individuals we had not yet fully formulated what one does in law school versus what one will do in one's specialty in practice.
These students saw their job in law school as learning all the law in a course so that they were ready to practice that legal area later. They had missed the fact that they are learning topics for a course (but not all of the law for that specialty) to gain critical thinking and writing skills and general knowledge to solve new legal problems (for exams). Once they are in practice, they will focus on learning all they can about their own practice area(s). However, law school does not expect that level of in-depth study; it expects familarity with a variety of areas of law and application of the concepts to new legal scenarios.
Sequential-sensing students feel more secure in preparing for class because they mistakenly think that memorizing everything about individual cases is the most important task. Because synthesis and big-picture thinking are more uncomfortable for them (especially if policy is involved), they feel less convinced that outlines, review, and practice questions are full-fledged studying.
Once these students realize that class preparation is important but not the be-all and end-all, the light-bulb comes on for them. They are still less comfortable with the synthesis and big-picture thinking that lead to application, but they can see those broader study tasks as legitimate. By releasing themselves mentally from having to know every minute detail in each case and each sub-topic and each legal area, they begin to make the transition to the additional levels of learning that will allow them to succeed on exams. They push themselves to synthsize the material and fit it into the bigger picture. They realize that practice questions assist them in this process and help them to apply the law on exams. (Amy Jarmon)
Saturday, September 8, 2012
Reading cases takes up major blocks of time in a student's schedule. Students want to become more efficient and effective in their reading, but often do not know how because they are missing some important bits of information about the task. Here are some things that I try to point out:
- Initially as 1Ls, students will take forever to read cases - even relatively short ones - because they do not have legal context, vocabulary, and awareness of what is important. By the end of the first month of law school, however, they should see their reading times begin to come down. By second semester, they should be faster still.
- There are two reasons for reading cases. One reason is to gain an in-depth understanding of the case itself. The second is to understand how the case relates to the topic and to other cases within the topic. Both aspects need to be completed if the reading time is going to be worthwhile.
- Cases are often edited for a specific use in a casebook. At times what is edited out may cause confusion for the student reader because they do not readily understand the remaining material because of a lack of context and legal experience. Consequently, three good reads should be the limit. Then put a question mark in the margin next to the confusing section and continue reading.
- Cases are written for legal professionals and not for law students. Attorneys have experience and legal context that make cases easier to understand. Some things will not make sense to the student reader until class discussion.
- Not all cases are equal in density or importance. One case may contain multiple rules plus definitions of elements plus policy arguments. Another case may contain an exception to a rule. Yet another case may contain a definition of an element. Although length often relates to complexity, even short cases can contain a great deal of law.
- Older cases may still be good law. Some older cases are assigned - even if the law is now outdated - to show how the law evolves over time. A law student has to learn how courts reason over time, how policy may change the law over time, and how the law today may be different in a few years.
Paying attention to class discussion and the professor's observations about cases helps the student learn what that professor considers important about cases. By being patient with themselves and not expecting competence immediately, new law students can improve their case understanding and decrease reading time over several weeks. (Amy Jarmon)
Friday, August 3, 2012
A persistent problem with some of my law students is that they do not read carefully. It troubles me that this problem seems to cut across class years and class ranks and appears to be getting more wide-spread.
So much of our lives as attorneys revolves around tasks that call for precision. If our students do not learn to be more precise during law school, how are they going to excell in their work?
I am not talking about common first-year mistakes in understanding cases. I am talking about students who simply never learned to read with care. Here are some examples:
- Students regularly ask professors questions that were covered in detail in class syllabi.
- Students do not follow instructions on an assignment or exam even when clearly provided.
- Students are asked to read a document carefully, but come to class with only a gist of that document.
- Students do not read a complete e-mail or the attachments provided - even when they know that deadlines and task completions are required.
- Students fail to read law school announcements, Orientation packets, registration instructions, Student Handbooks, and other items that they told are important.
When I have talked to colleagues about this problem, the following thoughts have been shared:
- The Internet, e-mail, and text messages have turned students into grazers who never read for depth.
- The parents of this generation of students kept track of everything for them so they are unaccustomed to being responsible for reading carefully and retaining information.
- Students these days do not know how to read because they do not read books in their leisure time; they watch video clips on YouTube, watch TV, play video games, but rarely sit down to read books that are not assigned.
- Undergraduate professors told them exactly what they needed for the exams so they did not have to read carefully - in some cases did not read at all for most classes.
- They think they can look everything up on the Internet later, so why worry about boring text.
- They got As and Bs without having to work very hard because of grade inflation in lower education, so they do not know that precision might be important for graduate-level academics (and life).
So, what can we do to get our students ready for the careful reading, thinking, and writing that they will have to accomplish successfully in law practice? Below are a few things that I have become more conscious about doing with my students. I am sure that my colleagues can provide other thoughts and techniques.
- Discuss professionalism in one's work as a law student and how that becomes professionalism in one's work product as an attorney.
- Go over a case or fact pattern in great detail so they begin to see the information that they missed with only a cursory reading.
- Parse a complex statute so that they see why every word and punctuation mark matters.
- Ask questions that go to the legal nuances of the material they have read so that they begin to see the depth of understanding needed.
- Resist telling them the answer. At times I have to bite my tongue and reply along the lines of "turn to page 3 in your syllabus and read point 8 on the format for your presentation" or "read the facts paragraph again and tell me what the court said about the defendant's acts."
- Encourage them to review exams with C+ or lower grades with their professors to see how they could have improved the grade (more careful reading of the fact pattern, more care in the organization, more precise rule statements, more depth in analysis).
- Give examples of where a lack of careful reading or precision would cause problems for an attorney in practice - real-life examples are best.
- Allow them to experience consequences for missed assignment deadlines, incorrect format, lack of proof-reading, or misread instructions. Consequences learned in the law school environment will usually be less dire than than consequences learned later in practice. (Of course, there are times when a student's circumstances warrant an exception to this suggestion.)
Part of being a professional is being conscious of one's responsibility for a high quality work product. By mastering care in their everyday reading and class work, our students will learn to turn out work products that are professional. (Amy Jarmon)
Tuesday, January 24, 2012
One of the more depressing statistics I have come across is the rate of depression among lawyers and law students. I am further depressed when I see the random studies linking depression with heightened analytical ability. The theory (and it is only a theory) is that there is a connection between high-achieving lawyers and depression, because a good lawyer will see the flaw, the catch, or the error in any argument, and thereby save his or her client dollars. Someone who is depressed is more likely to see the downside, and therefore, be a better lawyer or law student. This theory ignores the enormous social and emotional toll of depression. It impacts not just the person suffering, but the people who care about the person suffering from depression.
I don't like this theory. I think it gives another excuse for maintaining the status quo. Depression should not be a way of life, for any reason. There is an excellent piece in the NYT's this week on sadness and depression, and the drive to find evolutionary justifications for depression. I found the arguments for an evolutionary explanation for depression similar to the rationalizations explaining why lawyers tend to be more depressed than people in other careers. And like the author, I am disheartened when the drive for explanations leads to a justification for an unhealthy way of life.
Larry Krieger has done amazing work on law students and depression; most of us in ASP are quite familiar with his work. In ASP, we need to recognize the difference between sadness and depression. Sadness is a temporary state all of us experience; depression should not be a common experience. Due to the populations so many of us work with in ASP, we should be trained to see the differences between ordinary sadness over an unfortunate event, and depression, which as Dr. Friedman explains in the NYT article, "a failure to adapt to stress or loss, because it impairs a person’s ability to solve the very dilemmas that triggered it." Depression, unlike sadness, causes memory problems and issues with learning, which cause additional academic problems, and causes depression to snowball. (RCF)
More information on lawyers and law students and depression:
WSJ: Why are so many lawyers depressed? http://blogs.wsj.com/law/2007/12/13/why-are-so-many-lawyers-so-depressed/
Lawyers With Depression: http://www.lawyerswithdepression.com/depressionstatistics.asp
Psychology Today: The Depressed Lawyer: http://www.psychologytoday.com/blog/therapy-matters/201105/the-depressed-lawyer?page=2
New York Times: Depression Defies the Rush to Find an Evolutionary Upside: http://www.nytimes.com/2012/01/17/health/depression-defies-rush-to-find-evolutionary-upside.html
Saturday, October 8, 2011
I just received a review copy of Barry Friedman and John CP Goldberg's Open Book, Succeeding on Exams from the First Day of Law School. While I have not had the chance to read the book closely, my first impression is that this is a book we will be seeing a lot in ASP. It is relatively short (180 pages) and uses cartoons and humor throughout. The structure of the book is clear; I can flip to the table of contents to find chapters on specific topics (IRACing, outlining, etc) without having to search. It starts with an introduction on how to use the book, which is especially useful, since most students do not know how to use exam skills books.
There are many good ASP books out there, but I think this one will get added to the pile I use and recommend to students. (RCF)
Saturday, August 20, 2011
There is a very interesting discussion at the Freakonomics blog (same authors as the book) about how to incentivize class attendance. I think this dovetails nicely with a question posted yesterday on the ASP listserv about laptops in class. Both attendance policies and laptops bans get at the same fundamental issue: how do professors keep students in class and engaged? I don't think there is one answer to this question, but a theme seems to run through both issues. The theme is lecture-only or lecture-from-the-book courses bore students, encourage students to miss class, and increase the use of distractions in class. I have heard over and over from doctrinal professors that the Socratic Method is not lecture-only, but as the Socratic Method is employed in many classes, students can't see the difference. This is especially true when the Socratic Method is used to question only a tiny number of students in a large class; I have heard students complain they would rather lecture-only, because questioning only a few students, who may or may not have done the reading, just increases confusion.
The comments below the post in Freaknomics make sense and pose the same questions law schools are struggling to answer.
Monday, September 20, 2010
I have been doing a brisk business in appointments with 1L students who are overwhelmed by how long it is taking them to read/brief cases for class. In talking with them, it is apparent that some of their difficulties are linked to not understanding why we read cases and how they fit into overall learning and skills development.
They make better decisions about their reading strategies once they realize the significance of reading cases. Here are some tips that we discuss:
All cases are not equal in importance. Some cases are read for historical background only - the law will change by the last case on a sub-topic. Some cases are packed full of important essentials such as rules, policies, jurisdictional differences, important points of reasoning. Some cases are included for just one smaller essential: a definition or an exception.
Cases need to be read at two levels. What are the important aspects to understand about the individual case itself? This level of reading focuses on the parts within a case and the specifics one needs to understand the case. How does the case fit into a series of cases, into the sub-topic, and into the topic? This level of reading focuses on the synthesis of the case into the larger body of law that one is learning.
Cases are a starting point in the study of law rather than an ending point. Cases show us how judges think about the law. Cases teach us how to extrapolate the most important aspects from the full opinion. Cases provide us with "tools" for our toolkit so we can solve new legal problems. Cases become illustrations in outlines rather than the basis of outlines. Professors will not ask one to "recite everything you know about Case X" on their exams.
Cases are essential to the practice of law. Lawyers read and analyze cases every day. They are constantly searching for precedents that relate to their clients' cases. Thus, the time spent in law school on reading and briefing is not merely an "ivory tower" exercise. Students who become skilled at these tasks are making an investment in their future expertise. Students who use canned briefs or headnotes as substitutes for these tasks ultimately shortchange their professional growth.
Case reading and case briefing are important legal skills that take time to learn. The process becomes faster as the law student becomes more expert at analysis. It also becomes faster once the law student understands why we read cases. (Amy Jarmon)
Sunday, August 22, 2010
Wednesday, April 21, 2010
Some interesting science to report...at least one presenter at every ASP conference mentions that students feel that red pen makes it look as if the paper is "bleeding" negative comments. A new spin: teachers actually grade more harshly when using red pen. Another reason why green, pink, purple might be better bets when giving student feedback.
(I realize this link doesn't look like it fits with my post...it does.)
And a link to the full study is here:
The pen is mightier than the word: Object priming of evaluative standards
by Rutchick, Slepian, and Ferris
Thursday, January 21, 2010
Here is a list of non-traditional (i.e., "ASP") books that I would recommend ASP professionals check out. These are books that you might find helpful when planning for classes and learning a bit more about teaching and learning.
What Best College Teachers Do by Ken Bain
Read this in anticipation of Mike Schwartz's upcoming book, What Best Law Professors Do. I think we will see considerable overlap between what good teachers of any discipline do in the classroom.
Teaching Law By Design by Schwartz, Hess, and Sparrow
By three of the great thinkers in humanizing legal education and ASP.
Talent is Overrated by Geoff Colvin
I often start spring semester ASP classes with some of the science behind great achievement. The truly fantastic--Michael Jordan, Steve Jobs--have more than talent. The start with some talent, but they use deliberate practice to hone their skills. Great achievement is more about intense, correct study and practice in a discipline than some amorphous, intangible "thing" only some people have. This puts students back in control of their education, and helps move them past some of the self-pity that accompanies less-than-stellar grades. For most struggling students, they can change if they use the right study habits, and giving them some science to back up that assertion gives it more weight.
Changing Minds by Howard Gardner (yes, the same one behind Multiple Intelligences)
This is a book that is about changing established patterns of thought, entrenched beliefs, and attitudes.Inflexible beliefs are the downfall of many during their first year; breaking them of emotional, illogical thought patterns and teaching them dispassionate analysis without breaking their spirit and motivation in the process is one of the toughest parts of ASP. Law school is about learning how to think in a new way; this puts educational theory behind what we are supposed to be facilitating.
Friday, February 27, 2009
The typical law school class is heavily focused on cases. Consequently, to 1L law students, the cases often seem to be the essentials rather than mere vehicles for bringing them the essentials they will need for developing a bigger picture of the course. Part of their misunderstanding of how to use cases is caused by our teaching methods and part may be because of their learning styles.
Some law professors expect their students to know every detail of every case for class recitation. Others just touch on a few points from the case. The former style suggests to some students that they need to know every detail for the exam. The latter style may leave some students wondering which details tie to those points or which details were important.
Professors will often throw out a series of hypotheticals to get their students to understand nuances of the application of a legal rule. And, professors may give no answers to those hypotheticals and leave the ultimate task of getting from the cases to the big picture for students to discover in their studying outside of class. Some students will walk away not knowing how the class discussion of cases related to the hypotheticals and what they were supposed to learn.
Does this mean that these professors are bad teachers or bad people? No. It does mean that some 1L students struggle with determining what is ultimately important in the course.
Because of their learning styles, some students will struggle more than other students in making sense of law school classes and cases. Global-intuitive learners will tend to have less problem than the sequential-sensing learners in the class.
Global-intuitive learners naturally process everything looking for the bigger picture and the inter-relationship of ideas. They prefer essentials because details are not particularly attrative to them. The highly detailed professor will have them wondering why they have to sit through all of the trivia. The professor who touches on a few points, throws out unanswered hypotheticals, and expects the students to pull it all together is more understandable to these learners. However, if these learners are high scorers on their learning styles, they may miss important details, organization, and nuances of analysis.
Sequential-sensing learners naturally process each case and each sub-topic as discrete individual parts. They think about units and the facts and details of those units. They naturally gain security from knowing everything there is to know about a case. They only look for the bigger picture later. The stronger their preference for "bottom up" learning, the harder it will be for them to see the bigger picture. It is these learners who sometimes get "left in the dust" of our typical law school case approach. Without help, they may get to the bigger picture too late to do well on the exam. (By the way, these students actually know more law usually than any of their global-intuitive friends.)
(In the "old days" of law school teaching, global-intutitive professors probably predominated and may have thought that the sequential-sensing student was not made of the "right stuff" to be a good lawyer. Fortunately, more awareness of learning styles means that both processing types are seen to have advantages and disadvantages in the study of law because all four processing steps are needed for the best essay answers or memos. And, in practice, the client benefits most if both types of learners are on a team for the case.)
My sequential-sensing learners struggle in deciding what can be discarded for their outlines. They are concerned that they will leave out something important. They are concerned that they need to know it all - every minute detail and every tiny fact.
Over the years, I have tried to find ways to help these sequential-sensing learners get a different perspective on cases. They will still read in more detail and still have separate units initially, but they can get to the bigger picture more quickly with some help. I talk a great deal with them about synthesis of cases, of sub-topics, etc.
By chance I came up with a basic analogy to help sequential-sensors understand the relevance of cases to the overall course. We talk about cases being like motor vehicles that may drive into your driveway but are ultimately owned by someone else and just "visiting."
The shiny little sports car: These zippy little cases pull into your driveway with little cargo capacity. As a result, there is less of importance to unload. Perhaps, you will find a definition of an element or an exception to a rule.
The family sedan: These sedate cases pull into your driveway with large trunks of essentials. One may find a substantial rule discussion, a sizeable interpretation of a statute, and/or a well-reasoned opinion with steps of analysis.
The family station wagon: These workhorse cases will be loaded down with many essentials (using even the roof rack). In addition to the type of cargo found in a family sedan, they often come loaded with extra policy discussion, additional variations on rules (minority and majority rules, restatement rules, model code rules), discussions of ambiguous or vague statutes, and/or discussion of multliple issues.
The U-Haul rental truck: These vehicles are the really major cases driving into your driveway. Think U.S. Supreme Court and state court of last resort. These major cases are packed with important essentials: doctrines of epic proportion, significant policy discussion perhaps, methodologies or bright-line tests, involved discussions of multiple precedents, complex issues and points of law, and/or possibly dissents and concurrences.
Whatever the motor vehicle size of a case, however, you let it drive away. You do not park it permanently in your driveway. You unload the essentials for your outline and wave goodbye to the driver with a thank you.
My sequential-sensing learners suddenly understand that it is okay to let go of the myriad of details once the essentials are spotted for their outlines. They begin to see that their task is to find only the most important cargo. They begin to see how cases are mere vehicles that fit together into a bigger picture of sub-topics and topics and applying that law to new fact scenarios. (Amy Jarmon)
Wednesday, February 25, 2009
I'd like to thank Ruth Ann McKinney of Carolina Law and give her credit for conceptualizing this metaphor and introducing me to it while I was a law student.
One of the concepts my students have struggled with this semester is the importance of what is left out of the court's opinion. For students with a background in the arts, an apt metaphor is to space in a sculpture. When looking at a great sculpture, it's not just what the artist does with the clay, steel, or marble that is significant. The beauty and meaning of the sculpture is also shaped by the space in and around the sculpture, where the artist has chosen to remove, carve, or shape the sculpture. Similarly, the court's opinion is shaped not just by what facts they choose to include in their rationale, but the facts they choose to ignore, the facts they find irrelevant, and the thinking they choose not to explain in the holding. What is left out of an opinion is the space in the sculpture; it is what shapes the decision as much as the material used to create the sculpture.
My favorite example is Robert Indiana's Love sculpture. It is ubiquitous, so most students know it if I reference it as an example. Without space in the sculpture, the places where the artist choose to remove steel, it would be a giant block of metal, not one of the most important pieces of pop art of our time. An opinion that includes all facts, policy, and thinking about the case would be a giant stack of paper without any direction or meaning. (RCF)
Tuesday, October 28, 2008
Dennis Tonsing e-mailed me with a revised link for a column that he had published in April 2005 regarding non-traditional students. In fixing the link, I read through the journal entry from Alice Marie Beard that was referenced.
Two thoughts came to mind. First, the column reminds us of the struggles for non-traditional students. Although written after Ms. Beard's first semester in law school in 2001, it is apropos to non-traditional students who are struggling this semester. Second, we are fortunate that Ruth Ann McKinney has published her wonderful book Reading Like a Lawyer since this column and Ms. Beard's experience in 2001.
Rather than just fix the link, I decided to re-publish the column that Dennis wrote. It appears below with the corrected link to Ms. Beard's diary entry/essay. (Amy Jarmon)
April 1, 2005: One Hell: February Thoughts on Law School
Alice Marie Beard, a recent graduate of George Mason University School of Law, wrote this essay during her first year of law school, while attending The Catholic University of America Columbus School of Law.
Although this particular essay (diary entry)was written in February 2001, it is still instructive to those of us who deal with students, especially with "non-traditional" students. Are we, too often, out of touch with what is going on with our students?
This morning, I worked with a non-traditional student who was about to "jump out of her skin" with anxiety. She hails from another state. She has a husband, lots of bills, and an extremely annoying landlord. She is in her first year of law school. Her husband is still job hunting. Her first semester grades are lower than she anticipated. She never saw a "C" in college, was accustomed to nearly all A's. She did the right thing: she asked for help. (Academic support often includes more than an IRAC rehash - I referred her to professionals who will be of great and immediate assistance to her.) In order to comprehend the profundity of the emotional impact of law school on ALL of our students, we need to become familiar with what they are going through.
Alice Marie Beard has graduated from law school, and (in more recent essays linked to her web site) looks back on her years at "Catholic." (djt)
Sunday, July 15, 2007
Tuesday, September 5, 2006
A important new working paper by Leah M. Christensen, a professor at the University of St. Thomas School of Law, examines the differences in the way high performing and low performing law students read legal texts. The article, "Legal Reading and Success in Law School: An Empirical Study," will be published in the Seattle University Law Review this spring. Below is an abstract of the article, and you can click on its title above to access the paper itself in the SSRN Electronic Paper Collection. This paper is a must read for those of us in Academic Support. (dbw)
Abstract: Does the way in which law students read legal text impact their success? This
article describes important new research on how law students read legal text. This study
examined the way in which first year law students in the top and bottom 50% of their
class read a judicial opinion and whether their use of particular reading strategies
impacts their law school grades. The results were significant: even when students had
gone through the same first-semester classes, the more successful law students read a
judicial opinion differently than those students who were less successful. In addition,
there is a correlation between the reading strategies of the top law students and their
first-semester grades. This article describes the results of the study using both empirical
data and actual student transcripts to show how the most successful law students read
legal text. This article also offers practical suggestions for legal educators to help
students learn to internalize the most useful and efficient reading strategies.
Abstract: Does the way in which law students read legal text impact their success? This