Thursday, August 22, 2019

The "Unexamined Case" Might Not Be Worth Reading

I hear voices.  Not all of the time, mind you.  But, definitely at the most inconvenient of times...like when I'm trying to read!  [I think this is called sub-vocalization.]  You see, I can only read as fast as I speak (and I don't tend to speak very fast unless I'm excited or nervous, which I often am, particularly when I'm trying to digest dense legal materials).  

Indeed, when a student asks me to work with them through any reading passage (whether a case, a statute, or a multiple-choice problem or essay prompt), I really want to go in hiding, into a "sound chamber" so to speak, so that I can read slowly and not so-silently, as I work out the meaning of the text through hearing - in my mind - the words as they become alive, the punctuation marks as they spring up from the page into my voice, and the paragraph breaks as they give me time to catch my breath.  

In short, if you haven't caught the gist of what I am saying, I feel like I am a poor reader because I am a slow reader.

Now, I suspect that most students don't sub-vocalize when they read, i.e., they don't hear voices when they read.  Nevertheless, I gather that most first-year law students (and perhaps most law students in general) feel like they read too slow.  If so, then you're exactly like me (and I'm supposed to be an expert at critical reading, particularly in reading legal texts, etc.).  

But, before I get too far, in my opinion, rushed reading is not reading.  To paraphrase Socrate's famous line that the "unexamined life is not worth living," an "unexamined case" is not worth reading.  In other words, in law school, it's not how fast you read but what your learning about the law and legal problem-solving as you read.  To cut to the chase, reading is about examining the cases and the statutes and the legal texts assigned in law school.  And that takes time, lots of time. Or, to put it more bluntly, reading is really about "cross-examining" those legal materials, evaluating the strengths and weaknesses of the arguments and  analysis, and then forming your own opinion about the merits of those arguments (and how you might use those arguments in the future to solve hypothetical problems posed on mid-term exams and final exams).

That gets me to the next question.  How might I teach reading?  

When I first started in academic support, I taught case briefing but not case reading, most likely, because it seemed to me that by briefing a case I had read the case.  I'm not so sure now.  That's because most case briefs (at least most of my case briefs) are composed of just bits of quotes and paraphrases of what the court said...rather than my evaluation of what the court said (or didn't say).  Indeed, as Professor Jane Grisé writes, "critical reading is about 'learning to evaluate, draw inferences, and arrive at conclusions.'" J. Grisé, Critical Reading Instruction: The Road to Successful Legal Writing Skills, 18 W. Mich. Univ. Cooley J. of Prac. & Clinical L. (2017) (quoting L. Christensen, Legal Reading and Success in Law School: An Empirical Study, 30 Seattle U.L. Rev. 603, 603 (2007).  Thus, because critical reading is about learning, it is something that can be taught.  Id. Consequently, based on Professor Grisé research, let me offer the following suggestions on how one might teach critical reading, particularly reading cases that are jam-packed into the massive casebooks that comprise the bulk of reading in law school.

  1. First, confess.  Set the stage for learning by sharing the worries and frustrations that you had (and perhaps still have) as a legal reader.  Let students know that it wasn't a natural skill for you (or for anyone for that matter).  Rather, critical legal reading is a skill that is developed, like muscles through exercise, bit by bit, in which we can all learn.
  2. Second, model pre-reading strategies.   Share with students some of the ways that you engage in reading, even before you begin to read, by, for example, figuring out the purpose of the case by placing it in context with the prior and later assignments based on the case's position in table of contents and it's placement in the course syllabus.  Then, get to know the players.  Learn something about the case from the case caption, figure out the stage or setting for the case by talking through the information gleaned from the citation, etc., picture yourself as another judge or advocate for one of the parties, hypothesize how you might use this case in the future when it comes to exam time, skim through the case to capture the sorts of sections of the case and its organization (either by looking at headings or by skimming the paragraphs), and then poke around at the very end of the case to see what the court decided.  Indeed, that's my favorite pre-reading strategy: Peeking at the end before I begin. That gets my focus jumpstarted! 
  3. Third, read with gusto.  Reading takes energy and focus, so if the time doesn't feel quite right, wait.  But then, when you are reading to go, read the case facts - not as fiction - but recognizing rather that the facts involve real people and entities with real struggles.  After all, cases often come to the court because people couldn't resolve hard-felt (and heart-felt) disputes on their own. As you read, look up words that you don't know.  Write the meaning of those words, in your own words, in the margins of the text.  Rather than highlighting lots of phrases that you think are important, make a notation on the text as to why you think that phrase or sentence might be important.  Feel free to draw pictures or make paraphrases to help you capture the meanings of the words.  If something seems unclear, it probably is, to you and to most of us.  So, go back to those sections, in which the court often times doesn't explain its analysis, and make inferences (guesses) as to what is going on.  Realize that the most (and perhaps all) cases are subject to different interpretations.  Be creative to scope out connections with previous readings.  Look for patterns.  Dialogue with the materials.  Question them, indeed, interrogate the court.  Don't let the court baffle you.  Instead, be on the lookout for mistakes that the court might have made in its analysis.  In sum, talk back to the court and with the court as you read.
  4. Fourth, reading doesn't stop after you read.  Instead, after reading, be an explorer to construct your own meaning of the case.  As a suggestion, compile a list of questions that you would like to have asked the court or the advocates.  Summarize in your own words what you think the case stands for (and why it was assigned for your course).  Evaluate the case as to whether its reasoning was puzzling, or startling, or settling (and why).  Conjure up different facts to test how the decision might have been impacted in different circumstances.  Finally, synthesis a one sentence or phrase statement for what you've learned from the case, such as: "Vosburg (involving a schoolhouse kick) stands for the proposition that people are liable for battery even when they don't intend to harm anyone as long as they intended the contact because the purpose of battery is to protect people from - not just harmful contacts - but from all contacts that interfere with another's bodily integrity as a co-human being."

Now, before I let you go, just one more word about speed.  You don't get faster at reading cases by trying to read fast.  Rather, over time, much like water as it heats slowly on the oven range, using these strategies won't feel like an improvement...at all.  Instead, if  you're like me, you feel like its taking lots more of your time, energy, and perspiration to learn to be a critical legal reader.   And, it is!  But, by going slow, conversationally with the text, through practice in pre-reading strategies, then reading the text with robust gusto, and finally polishing off the reading by making sense and connections with the text for future use, you'll end up becoming a faster reader without even trying.  

Much like learning to ride a bike, if you are like me, you fall lots and get lots of bruises along the way.  That's because learning is hard difficult work.  But, just like learning to ride a bike, once you get the hang of it, you'll be well on your way to being a better legal reader (and a better advocate on behalf of your clients in the future).  (Scott Johns).

 

https://lawprofessors.typepad.com/academic_support/2019/08/the-unexamined-case-is-not-worth-reading.html

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