Monday, August 16, 2021

Be In Your Bag (of Questions) as a 1L Reader

As highlighted by last week's post from Scott Johns, critical legal reading is a skill that you can develop with practice and intentionality. To become an expert reader, however, you will need to model what expert readers do when reading a legal opinion. This means moving beyond default reading strategies, such as highlighting and underlining, and reaching into your bag of questions to situate the case, identify its most important parts, and understand the opinion and its relevance to various hypothetical situations. Here are a few tips for reading and examples of the kinds of questions you should ask while reading . . . 

  • Situate yourself. Consider why your professor assigned the case and how/where the case fits with other cases you have read thus far. For instance, if this is the fourth case you have read regarding duty, what does this case tell you about the concept of duty that the first three cases did not? Also, use the information contained in the case caption:
    • Is this a state or federal case?
    • Where in the judicial hierarchy does the deciding court fit (e.g., trial court)?
    • Who are the parties?
    • What year was the case decided (and how might that affect the weight you should assign to the decision)?
    • What was the disposition (e.g., affirmed, reversed)? Knowing this information at the outset informs your reading of the case. 
  • Read with purpose and a critical eye. Wear multiple hats as you are reading and consider what you might argue and how you would respond to any counterarguments. What is the plaintiff/appellant/appellee’s position? As that party’s counsel, would you have set forth the same arguments? Why or why not? How would you counter the other party’s legal position? Ask yourself the same questions as counsel for the defendant/appellant/appellee. In addition, put yourself in the decision maker’s shoes. If you were the decision maker in the case, would you have taken the same pathway to reach a decision? What, if anything, might you have done differently (e.g., assigned more/less weight to an argument by one of the parties)? Would you have decided the case the same way? Why or why not? As you look at the case from these varying perspectives, be sure to define any unknown legal terms, phrases, and/or abbreviations along the way—learn to speak the language!
  • Identify and have a strong command of the relevant facts. There are two types of facts: procedural and substantive. Take note of how the case arrived at the court now charged with rendering a decision. Slow down and digest the substantive facts of the case. As you read the opinion, sift through the facts for those that are relevant (i.e., identify the facts that trigger application of the rule and are relied upon by the court in its reasoning). How will your professor test your knowledge of the course at the end of the semester? Likely via a series of fact patterns. Thus, you must be skilled at recognizing the kinds of facts that trigger a given issue and, thereby, the application of a specific rule or set of rules. Close reading of the facts will also help you synthesize the course material and reconcile cases with different outcomes. NOTE: this does not mean that you need a long factual narrative in your case briefs (you need only the relevant facts).
  • Identify the issues before the court. What question (or questions) is the court trying to answer? Are the issues before the court substantive, procedural, or both?
  • Pay close attention to the court’s reasoning. How did the court reach its decision? Did it rely on the Constitution, a statute, a rule, case law, the language of an agreement between the parties, etc.? How did the court use/interpret them (e.g., analogical reasoning, rule-based reasoning, plain meaning, legislative history)? If the court relied on cases, how did the court distinguish any relevant cases with different outcomes? Did the court explicitly discuss policy considerations (for the existence of the rule, the functioning of the rule, the outcome of the case, etc.)?
  • Identify the relevant rule of law. What rule do you get from the case? Is the case providing the rule/rule elements? Is it explaining one or more rule elements? Does it illustrate an exception to the rule? Consider how/where the rule from the case would fit into your legal analysis in a question testing the relevant issue (e.g., duty).
  • Consider the breadth of the court's holding. How broad or narrow is the court's holding? How might the holding be applied more broadly? How might the holding be applied more narrowly? 

(Victoria McCoy Dunkley)

https://lawprofessors.typepad.com/academic_support/2021/08/be-in-your-bag-of-questions-as-a-1l-reader.html

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