Thursday, January 4, 2018
Otto Stockmeyer is correct to question the quality of commercial canned briefs. However, the accuracy of canned briefs is not the biggest problem with them. The biggest problem is that they do for students what students need to do for themselves to become competent lawyers. Analyzing cases (I prefer this to briefing cases) is part of learning how to think like a lawyer. The importance of studying cases is not in memorizing the issue, the facts, and the holding; it is understanding how the judge came to her decision. In other words, understanding the reasoning of the case.
To become a competent lawyer, a law student needs to do this again and again and again. There are no shortcuts. Bobby Fischer did not become a chess grand master by memorizing a few moves. He did it through hours and hours of concentrated work.
As I have written in my book, Think Like A Lawyer: Legal Reasoning for Law Students and Legal Professionals (2013), I would go even further. Students also need to understand what kind of reasoning the judge used--rule-based reasoning (deductive reasoning), reasoning by analogy, distinguishing, synthesis, or policy-based reasoning. Moreover, students should put the case into context, criticize the case, reflect on what the case means, come up with alternatives to the judge's reasoning, and consider the implications of the case. In other words, law students should engage with the case.
In sum, canned briefs are the worst things law students can buy. They steal from students thinking processes they will need to learn and understand the law.