skepticlawyer

I’ve just marked a bunch of essays. One thing that made me particularly liable to get out the red pen with a vengeance was if the student cited an extract of the case from the casebook, rather than going to read the original case. You see, we are a common law country in Australia (although statute law is ever expanding). Nonetheless, reading cases (what the judge/s actually say) is an integral part of working out what the law is.

Luckily, I learned my lesson in first year, through mooting. For the non-lawyer, a moot is like a mock legal argument. You have a hypothetical scenario, and you are acting for one party or the other. You have to go and research the law by yourself, then argue it orally before a “judge”, arguing for the particular party for whom you are acting. It’s scary; because the judge can stop you and question you, you really have to know your stuff. In early law school, the “judge” is typically a later year law student.

It was a tort law moot, and I found a nice little quote in a text book from Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 about negligence law. But I didn’t go and read the actual case, I just copied down the quote and put it in my argument at an appropriate juncture. When I read out the quote proudly, the judge stopped me and said, “So, counsel, what impact does that case have on the rule in Rylands v Fletcher?” Um. The what? I was left stumped, mouth hanging open. There’s nothing I hate more than looking like a fool in public. If I had actually read the case, I would have known immediately that Burnie Port Authority absorbed the rule of strict liability in Rylands v Fletcher into general negligence law. I learned my lesson well. Henceforth, if I used a case to argue anything, I made sure I knew exactly what it said - whether I was using it for an essay, an exam or a moot. And I went to the original case and checked it.

Thus, I was really interested to read this great post at The Volokh Conspiracy, in which a law lecturer outlines his policy of forcing students to read entire cases rather than to read extracts from casebooks. David Post explains:

My idea was pretty simple. Being able to read a judicial opinion from start to finish and to figure out what it means, or even what it might mean, even though there’s a lot of confusing junk in it, is an indispensable skill for any lawyer. If you are unable to do it – and I recognize that there are lots of lawyers out there who really are unable to do it – you are at an immense disadvantage in the practice of law (at least, in any practice that requires making legal arguments on behalf of clients); among other things, you will always be dependent on others who can do it (e.g., the authors of the treatises or hornbooks or articles or other secondary material on which you will necessarily have to rely) to do it for you, to tell you what the cases and the statutes mean. It is also very, very difficult; I have read a number of the cases that I include in my coursepack literally dozens of times, and there are still parts of them that remain inscrutable to me. Like most difficult things – playing the piano, reading and understanding 17th century poetry, surfing – it requires practice, and lots of it; the more you do it, the better you get at doing it.

You’d think, then, that we’d give our students lots and lots of practice, and lots and lots of help and guidance while they’re practicing, to help them master this critically important skill. But we don’t. In fact, we give them hardly any practice, and hardly any help and guidance, at all. All throughout law school we feed them a steady diet of edited, pre-digested cases, with all the “confusing stuff” – the stuff that just “gets in the way” of their learning the work-for-hire doctrine, or the elements of the patent infringement claim, or whatever it is we’re trying to teach them – taken out. All of the stuff that makes it hard to figure out what’s going on. But that’s precisely the point: it is hard. So how in God’s name are they ever going to learn how to do it if they never do it?

If you’re not familiar with legal education, you might think I was exaggerating, or even joking – but I’m not. It’s as though we were teaching graduate students in, say, 17th century English literature, and we had them read only edited, “bowdlerized” versions of Milton’s work – hey, you don’t really need to read Book II of Paradise Lost to get the “important stuff,” and it’ll just confuse you if you do.

Students do, it’s true, get exposure to complete, unedited opinions when they’re doing research – for papers, or for law review-type assignments, or the like. But except for one class (typically) on “Research & Writing,” they are expected to do that work entirely on their own, without any real help from people (like their professors) who actually know how to do it. Sink, or swim. Many sink.

I agree that it is extremely difficult to read cases. There are some cases where even experts in the field just can’t agree on what the judges are saying. (That suggests to me that it’s a bad decision if no one knows exactly what it says, but anyway…) There are some cases where a dissenting or minority judgment has been picked up by later courts as the authoritative statement of the law, even though that judge was not in the majority (Mason J’s “undertaking” test regarding fiduciary duties in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 42, contained in his dissenting judgment, is one such example in Australian law). There are some cases where you think you know what has been said, but then a later court comes along with a totally different interpretation (which may be more or less convincing than your own). There are some cases which go on for 50 pages, and the pivotal bit is in the last paragraph (I’m not kidding here - one is left with the desire to strangle the judge responsible for it). You need to know how to negotiate all these things, especially how to pick out the important bits and how to skim over less relevant parts.

I think I might have a bit of a rant to my students. I’ll point out that watching the preview for a movie is totally different from watching the whole movie (and may leave one with a totally different impression). If you’d watched a preview of a movie, would you equate it with watching the whole movie? Of course not. Therefore, why equate an extract with a whole case? Or even worse, what if you don’t read the case at all - that’s like reading someone’s review of a film, and pretending that you actually watched it!

Furthermore, why trust someone else’s judgement as to what is important in a case? You may find upon reading it that a pivotal part was left out of the extract. And sometimes casebooks are wrong. About two days before an exam last year, I got a panicked e-mail from a student. “You told us such-and-such a case involved a property dispute between a lesbian couple, but the casebook says it’s a man and a woman.” I was able to write back and say, “I promise you, I am right and the casebook is wrong. I can tell you this because I have a print-out of the entire case in my notes, and I’m looking at it right now.”

So, law students out there, reading a case can be dreary and difficult, but with practice, it gets a lot easier. It will certainly increase your depth of knowledge of the law, and it will be invaluable when you have to complete research as a young lawyer.