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If you cannot obtain these schedules by the time you want to start studying, assume that the professors will cover every case in the order the cases appear in the casebook. Should some cases you have covered be skipped, your work will not have been wasted. You will have at least given yourself a little background in the subject which may make it easier for you to understand what is to come. And as soon as you know the actual assignments, you can shift over to that material and still have time to get ahead before school starts.
Before each lecture period, all students in the class are expected to study the same designated cases and be ready to orally report on and discuss fully each issue raised in the opinions. Instead of actually lecturing to the students, the professor uses the Socratic method of interrogation to probe the students' understanding of the material.
First, one of the students is called upon to give a synopsis ("give the brief of the case"). Then the professor questions that student and others, beginning with what the case at hand actually holds, to ensure that everyone understands what the court is saying. This is then superimposed on what has already been studied in previous lectures, and through various "what if questions the students are exposed to whatever legal principles can be squeezed out of the case. After several cases have been covered in this manner, the probing moves on to possibilities that may be uncovered in the next few cases, and finally, at the end of the subsection, to how the law in this area is likely to change in the future. Generally whatever lecturing is done comes during these summations and discussions of trends.
What is the professor looking for when the student is called on to "give the brief of the case?" Essentially: What court wrote the opinion? When was it written? How did the case get to that court? (Did it come up on direct appeal, procedural matter, or by some other means?) What are the facts? What legal issue are the parties arguing about? What is the holding of the case? (What legal rule did the court apply to the facts in order to reach its decision?)
Most beginning students will prepare for class by carefully and intensively reading each assigned opinion fully only once, perhaps twice, diligently highlighting what looks important, and then writing some summary in a bound notebook in the event, as they see it, they are unlucky enough to be called upon to enlighten the class. They do not have time to read each case more than once or twice because ever since childhood they have been taught that the only way to prove they have done an assignment is to have something in writing to show the teacher. So most of their energy goes into writing their brief of the case instead of learning what the case is all about. As a result, they find that they have spent an hour or more on each case and have only a hazy conception of what they have read. In order to finish the assignment, they then move along to the next case, with the same result. Students using this kind of preparation often get the point of the case wrong, fail to see the pattern developing through the progression of the assigned cases, and fail to retain the new material presented.
There is a way to get greater depth out of the same amount of study time. It is based on a lot more reading and a lot less writing.
When you finish a case you will have it all in your head instead of your notebook. When you get to class you will not be worried about getting called on; you will be able to constructively criticize the other students' presentations; you will be able to intelligently discuss the case, and you will not readily forget either the facts or the holding. At exam time you will have a strong understanding of the course and will have the confidence you need to do well.
As you get into the briefing of these cases, keep in mind that they are the appellate decisions of trial court cases that have been appealed by the losing party. The trial court has determined the facts. The appellate court is generally limited to those facts and does not reach an independent conclusion as to what they are. It assumes the facts, as found; to be true, and then goes on to apply the law as it perceives it to that specific set of facts. Compare an appeal to a box with items in it. If the facts are not in the box, the appellate court cannot get to them. It does not hear any witnesses; it is bound by the written record sent up to it by the court below.
Frequently, law students are troubled because they refuse to accept this convention; they are concerned about how the appellate court knows these are the true facts. For example, when the crucial point is a dispute about what one person said to another when they were alone together, students will wonder how the appellate court knows who is telling the truth. They fail to realize that the lower court has already decided that issue, and that the appellate court has to respect that finding when it prepares its opinion.
When you begin to read an assigned opinion, close your yellow marking pencil and your notebook, and put your pen down. About the only time you will need to write anything as you work over the case is on the first reading, when you write the definitions of any new words or phrases you have looked up in your legal dictionary, right between the lines over the printed words in the casebook.
Start out reading as fast as you can. Go through the case five or six times, fast. Get the feel of it. Who is fighting? What are the facts? What is the argument all about? Try to visualize the incident so you can describe it to someone else in simple terms: Mrs. O'Leary's cow kicked over a lantern in the shed that started a fire which spread and burned down Mr. Jones's house eight blocks away. Now Jones is suing her for damages and she's arguing that (1) she's not responsible for something that all cows do, and (2) even if she is, if the fire were next door, O.K., but eight blocks is too far away to make her pay, in any event.
Now, begin reading more slowly. Look at the rule of the case, written over the citation heading in the casebook, which you mechanically copied from the textbook before school started. As you intensely read the case five or six more times, you will begin to get a full understanding of the legal reasoning the court used to apply this rule to the facts of this case. Notice how the application of the rule is based on the previous cases you have studied in this subsection of the casebook. Think up some hypothetical situations to test the application of the rule: Suppose Mrs. O'Leary's next door neighbor was illegally keeping explosives in his barn and that is why the fire spread so fast; suppose Jones's neighbor had maliciously damaged the volunteer fire department pumper so water could not get to the roof. Try to predict what kind of factual situation may show up in the next case that could extend the application of the rule even further. Once you feel you understand the case and know why it is there and how it illustrates the development of the law up to that point, quickly read it over again a few more times to solidify your conception.
As you do this repetitive reading, you will find that the points in the case start jumping off the page at you. You will see things you did not notice on the first or second slow time around that suddenly make whole sentences in the opinion extremely clear. By the time you come to class you will be almost as familiar with the case as the professor. At the very least, you will be one of the few students in the class who can carry on an intelligent discussion about it.
By this time, you are probably wondering when you are supposed to start writing something down so you can remember all the material you have just gone over so intensely right now. But you do not have to put anything in a notebook.
Use the margin of the case book as a memo pad. That way everything will be close together when you review. Most of the time you will not need to write any words. Instead, all you need use are simple kindergarten stick figures to draw something to represent the facts. (The rule of the case is already written at the top of the page.)
For the cow-fire case, you might want to draw a circle with two horns on top, a couple of dots for eyes and a curved line inside for a smile to represent the cow's face, perhaps a straight line with a tail, a half-circle underneath with some lines for udders, and four legs for the rest of the body. Have one of the legs kicking over something that looks like it has fire coming out of it. Then put a string of dots over to a stick representation of a house that also looks like it is on fire. If you feel it will help, write "O'Leary" on the cow, "Jones" on the house, and "8 Blocks" on the dots. The rule of the case and this simple picture, coupled with your repeated readings, will give you almost total recall for class or future review.
Do not shortchange yourself on the number of times you read the case. You must spend as much time doing this as you would if you were briefing the case in the customary way.
Try it both ways and you will see how much more you understand and remember through this method. As you gain more experience, you will discover that you absorb the material much faster by reading many times, and that you take longer if you read the case only one or two times, highlighting with your yellow pen and trying to write something meaningful in your bound notebook.
Under the study system, you do not read the opinion to find out what the rule of the case is (it is already written at the top of the page); rather, you read it to determine how the court logically reached the rule, how it applied it to the facts of the case, and why it is the next step in the development of the law in this area. As you gain more experience reading the cases, you will soon be able to figure the rule out yourself. You will be using the textbook solution primarily as a check against your conclusion. With this in mind, you should nevertheless still do this preliminary rule writing in the upper margin for every case in the book. It will remain valuable as a quick entry into the case and, when coupled with the stick picture, as a mnemonic aid in reviewing the course.
Under this method of study, you remember the work because you get a full understanding of each case as you are doing it; you see how it fits in with the cases before and after it; you understand why it represents a particular stage in the development of the law; you have tested it against your own hypothetical examples; you have explored how it might be applied in the future; and you have even done your own little bit of artwork to give you an additional memory jog- Do not take notes on what the students say in class. Much of it will probably be wrong anyway, and it may mislead you if you refer to it in your review. Always, however, take down what the professor says. Frequently, during the course of the period, the professor will cite some other case that is not in the casebook. Copy the citation down and read the case. Do not forget that your casebook contains only the cases the editor found and decided to use. Also, any cases that came down after the book was published could not possibly be in it. Be careful to get everything relating to explanations of principles, summations of subtopics, and predictions of trends. The outside case references and these observations frequently show up on exams.
Many students have problems during the first few months of law school because they do not fully comprehend what either the judges or the professors are saying. Much of the difficulty comes because they assume they know what each of the words in the cases means, without stopping to consider that a number of them may be used in an unfamiliar way. Part of learning the law is learning its language. Words are the tools of the lawyer. Until you really learn how to use them in legal context, you will only be a mediocre laborer in the vineyard of the law.
Get yourself a good legal dictionary as early as possible. This is a must. Several standard one-volume works are available. Look at each of them and choose the one that seems easiest to use. Purchase one with a durable binding; you will use this book often in your professional career.
The legal dictionary differs from the regular dictionary in that it gives the meaning of words and phrases cited to cases where they were defined—where appellate courts have said that is what the words connote in a given legal context. You do not have to worry if you have never studied Latin, as everything you might come across in a case will be clearly translated and explained in the dictionary. If you are in court and the judge uses some phraseology which is unfamiliar to you, do not hide your ignorance; ask for its meaning, and undoubtedly it will readily be given.
If you have a question in class, no matter how elementary or stupid you might think it sounds, do not hesitate to ask it. Many times some small misconception may prevent understanding, but when it is removed everything suddenly becomes meaningful. If you are afraid the other students will laugh at your ignorance, remember that many of them do not understand what is going on either, but do not have the fortitude to get answers to their questions. You are in law school to learn. If it gives them pleasure to laugh at you, your better final grades will give you the last laugh.
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