Second Series • Autumn 2007 Volume 11 • Number 1

Published by The Green Bag, Inc., in cooperation with the George Mason University School of Law.

HOW TO READ A LEGAL OPINIONA GUIDE FOR NEW LAW STUDENTS

Orin S. Kerr

Copyright © 2007 Orin S. Kerr

 

 

 

11 GREEN BAG 2D 51 

 

  

HOW TO READ A LEGAL OPINION 

A GUIDE FOR NEW LAW STUDENTS 

Orin S. Kerr†

This essay is designed to help new law students prepare for the first few weeks of class. It explains what judicial opinions are, how they are structured, and what law students should look for when reading them.

I. WHAT’S IN A LEGAL OPINION? hen two people disagree and that disagreement leads to a lawsuit, the lawsuit will sometimes end with a ruling by a

judge in favor of one side. The judge will explain the ruling in a written document referred to as an “opinion.” The opinion explains what the case is about, discusses the relevant legal principles, and then applies the law to the facts to reach a ruling in favor of one side and against the other.

Modern judicial opinions reflect hundreds of years of history and practice. They usually follow a simple and predictable formula. This

† Orin Kerr is a professor of law at the George Washington University Law School. This essay can be freely distributed for non-commercial uses under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported license. For the terms of the license, visit creative-commons.org/licenses/by-nc-nd/3.0/legalcode.

W

Orin S. Kerr 

52  11 GREEN BAG 2D 

section takes you through the basic formula. It starts with the intro-ductory materials at the top of an opinion and then moves on to the body of the opinion.

The Caption The first part of the case is the title of the case, known as the “cap-tion.” Examples include Brown v. Board of Education and Miranda v. Arizona. The caption usually tells you the last names of the person who brought the lawsuit and the person who is being sued. These two sides are often referred to as the “parties” or as the “litigants” in the case. For example, if Ms. Smith sues Mr. Jones, the case caption may be Smith v. Jones (or, depending on the court, Jones v. Smith).

In criminal law, cases are brought by government prosecutors on behalf of the government itself. This means that the government is the named party. For example, if the federal government charges John Doe with a crime, the case caption will be United States v. Doe. If a state brings the charges instead, the caption will be State v. Doe, People v. Doe, or Commonwealth v. Doe, depending on the practices of that state.1

The Case Citation Below the case name you will find some letters and numbers. These letters and numbers are the legal citation for the case. A citation tells you the name of the court that decided the case, the law book in which the opinion was published, and the year in which the court decided the case. For example, “U.S. Supreme Court, 485 U.S. 759 (1988)” refers to a U.S. Supreme Court case decided in 1988 that appears in Volume 485 of the United States Reports starting at page 759.

The Author of the Opinion The next information is the name of the judge who wrote the opin-ion. Most opinions assigned in law school were issued by courts

1 English criminal cases normally will be Rex v. Doe or Regina v. Doe. Rex and

Regina aren’t the victims: the words are Latin for “King” and “Queen.” During the reign of a King, English courts use “Rex”; during the reign of a Queen, they switch to “Regina.”

How to Read a Legal Opinion 

AUTUMN 2007  53 

with multiple judges. The name tells you which judge wrote that particular opinion. In older cases, the opinion often simply states a last name followed by the initial “J.” No, judges don’t all have the first initial “J.” The letter stands for “Judge” or “Justice,” depending on the court. On occasion, the opinion will use the Latin phrase “per curiam” instead of a judge’s name. Per curiam means “by the court.” It signals that the opinion reflects a common view among all the judges rather than the writings of a specific judge.

The Facts of the Case Now let’s move on to the opinion itself. The first part of the body of the opinion presents the facts of the case. In other words, what happened? The facts might be that Andy pulled out a gun and shot Bob. Or maybe Fred agreed to give Sally $100 and then changed his mind. Surprisingly, there are no particular rules for what facts a judge must include in the fact section of an opinion. Sometimes the fact sections are long, and sometimes they are short. Sometimes they are clear and accurate, and other times they are vague or in-complete.

Most discussions of the facts also cover the “procedural history” of the case. The procedural history explains how the legal dispute worked its way through the legal system to the court that is issuing the opinion. It will include various motions, hearings, and trials that occurred after the case was initially filed. Your civil procedure class is all about that kind of stuff; you should pay very close attention to the procedural history of cases when you read assignments for your civil procedure class. The procedural history of cases usually will be less important when you read a case for your other classes.

The Law of the Case After the opinion presents the facts, it will then discuss the law. Many opinions present the law in two stages. The first stage dis-cusses the general principles of law that are relevant to cases such as the one the court is deciding. This section might explore the history of a particular field of law or may include a discussion of past cases (known as “precedents”) that are related to the case the court is de-

Orin S. Kerr 

54  11 GREEN BAG 2D 

ciding. This part of the opinion gives the reader background to help understand the context and significance of the court’s decision. The second stage of the legal section applies the general legal principles to the particular facts of the dispute. As you might guess, this part is in many ways the heart of the opinion: It gets to the bottom line of why the court is ruling for one side and against the other.

Concurring and/or Dissenting Opinions Most of the opinions you read as a law student are “majority” opin-ions. When a group of judges get together to decide a case, they vote on which side should win and also try to agree on a legal ra-tionale to explain why that side has won. A majority opinion is an opinion joined by the majority of judges on that court. Although most decisions are unanimous, some cases are not. Some judges may disagree and will write a separate opinion offering a different approach. Those opinions are called “concurring opinions” or “dis-senting opinions,” and they appear after the majority opinion. A “concurring opinion” (sometimes just called a “concurrence”) ex-plains a vote in favor of the winning side but based on a different legal rationale. A “dissenting opinion” (sometimes just called a “dis-sent”) explains a vote in favor of the losing side.

II. COMMON LEGAL TERMS FOUND IN OPINIONS 

ow that you know what’s in a legal opinion, it’s time to learn some of the common words you’ll find inside them. But first a

history lesson, for reasons that should be clear in a minute. In 1066, William the Conqueror came across the English Chan-

nel from what is now France and conquered the land that is today called England. The conquering Normans spoke French and the de-feated Saxons spoke Old English. The Normans took over the court system, and their language became the language of the law. For sev-eral centuries after the French-speaking Normans took over Eng-land, lawyers and judges in English courts spoke in French. When English courts eventually returned to using English, they continued to use many French words.

N

How to Read a Legal Opinion 

AUTUMN 2007  55 

Why should you care about this ancient history? The American colonists considered themselves Englishmen, so they used the Eng-lish legal system and adopted its language. This means that Ameri-can legal opinions today are littered with weird French terms. Ex-amples include plaintiff, defendant, tort, contract, crime, judge, attorney, counsel, court, verdict, party, appeal, evidence, and jury. These words are the everyday language of the American legal sys-tem. And they’re all from the French, brought to you by William the Conqueror in 1066.

This means that when you read a legal opinion, you’ll come across a lot of foreign-sounding words to describe the court system. You need to learn all of these words eventually; you should read cases with a legal dictionary nearby and should look up every word you don’t know. But this section will give you a head start by intro-ducing you to some of the most common words, many of which (but not all) are French in origin.

Types of Disputes and the Names of Participants There are two basic kinds of legal disputes: civil and criminal. In a civil case, one person files a lawsuit against another asking the court to order the other side to pay him money or to do or stop doing something. An award of money is called “damages” and an order to do something or to refrain from doing something is called an “in-junction.” The person bringing the lawsuit is known as the “plaintiff” and the person sued is called the “defendant.”

In criminal cases, there is no plaintiff and no lawsuit. The role of a plaintiff is occupied by a government prosecutor. Instead of filing a lawsuit (or equivalently, “suing” someone), the prosecutor files criminal “charges.” Instead of asking for damages or an injunction, the prosecutor asks the court to punish the individual through either jail time or a fine. The government prosecutor is often referred to as “the state,” “the prosecution,” or simply “the government.” The person charged is called the defendant, just like the person sued in a civil case.

In legal disputes, each party ordinarily is represented by a law-yer. Legal opinions use several different words for lawyers, includ-

Orin S. Kerr 

56  11 GREEN BAG 2D 

ing “attorney” and “counsel.” There are some historical differences among these terms, but for the last century or so they have all meant the same thing. When a lawyer addresses a judge in court, she will always address the judge as “your honor,” just like lawyers do in the movies. In legal opinions, however, judges will usually refer to themselves as “the Court.”

Terms in Appellate Litigation Most opinions that you read in law school are appellate opinions, which means that they decide the outcome of appeals. An “appeal” is a legal proceeding that considers whether another court’s legal deci-sion was right or wrong. After a court has ruled for one side, the losing side may seek review of that decision by filing an appeal be-fore a higher court. The original court is usually known as the trial court, because that’s where the trial occurs if there is one. The higher court is known as the appellate or appeals court, as it is the court that hears the appeal.

A single judge presides over trial court proceedings, but appel-late cases are decided by panels of several judges. For example, in the federal court system, run by the United States government, a single trial judge known as a District Court judge oversees the trial stage. Cases can be appealed to the next higher court, the Court of Appeals, where cases are decided by panels of three judges known as Circuit Court judges. A side that loses before the Circuit Court can seek review of that decision at the United States Supreme Court. Supreme Court cases are decided by all nine judges. Su-preme Court judges are called Justices instead of judges; there is one “Chief Justice” and the other eight are just plain “Justices” (technically they are “Associate Justices,” but everyone just calls them “Justices”).

During the proceedings before the higher court, the party that lost at the original court and is therefore filing the appeal is usually known as the “appellant.” The party that won in the lower court and must defend the lower court’s decision is known as the “appellee” (accent on the last syllable). Some older opinions may refer to the appellant as the “plaintiff in error” and the appellee as the “defendant

How to Read a Legal Opinion 

AUTUMN 2007  57 

in error.” Finally, some courts label an appeal as a “petition,” and require the losing party to petition the higher court for relief. In these cases, the party that lost before the lower court and is filing the petition for review is called the “petitioner.” The party that won before the lower court and is responding to the petition in the higher court is called the “respondent.”

Confused yet? You probably are, but don’t worry. You’ll read so many cases in the next few weeks that you’ll get used to all of this very soon.

III. WHAT YOU NEED TO LEARN FROM READING A CASE 

kay, so you’ve just read a case for class. You think you under-stand it, but you’re not sure if you learned what your profes-

sor wanted you to learn. Here is what professors want students to know after reading a case assigned for class:

Know the Facts Law professors love the facts. When they call on students in class, they typically begin by asking students to state the facts of a particu-lar case. Facts are important because law is often highly fact-sensitive, which is a fancy way of saying that the proper legal out-come depends on the exact details of what happened. If you don’t know the facts, you can’t really understand the case and can’t un-derstand the law.

Most law students don’t appreciate the importance of the facts when they read a case. Students think, “I’m in law school, not fact school; I want to know what the law is, not just what happened in this one case.” But trust me: the facts are really important.2

2 If you don’t believe me, you should take a look at a few law school exams. It

turns out that the most common form of law school exam question presents a long description of a very particular set of facts. It then asks the student to “spot” and analyze the legal issues presented by those facts. These exam questions are known as “issue-spotters,” as they test the student’s ability to understand the facts and spot the legal issues they raise. As you might imagine, doing well on an issue-

O

Orin S. Kerr 

58  11 GREEN BAG 2D 

Know the Specific Legal Arguments Made by the Parties Lawsuits are disputes, and judges only issue opinions when two par-ties to a dispute disagree on a particular legal question. This means that legal opinions focus on resolving the parties’ very specific dis-agreement. The lawyers, not the judges, take the lead role in fram-ing the issues raised by a case.

In an appeal, for example, the lawyer for the appellant will ar-ticulate specific ways in which the lower court was wrong. The ap-pellate court will then look at those arguments and either agree or disagree. (Now you can understand why people pay big bucks for top lawyers; the best lawyers are highly skilled at identifying and articulating their arguments to the court.) Because the lawyers take the lead role in framing the issues, you need to understand exactly what arguments the two sides were making.

Know the Disposition The “disposition” of a case is the action the court took. It is often announced at the very end of the opinion. For example, an appeals court might “affirm” a lower court decision, upholding it, or it might “reverse” the decision, ruling for the other side. Alterna-tively, an appeals court might “vacate” the lower court decision, wiping the lower-court decision off the books, and then “remand” the case, sending it back to the lower court for further proceedings. For now, you should keep in mind that when a higher court “af-firms” it means that the lower court had it right (in result, if not in reasoning). Words like “reverse,” “remand,” and “vacate” means that the higher court though the lower court had it wrong.

Understand the Reasoning of the Majority Opinion To understand the reasoning of an opinion, you should first identify the source of the law the judge applied. Some opinions interpret the Constitution, the founding charter of the government. Other cases

spotter requires developing a careful and nuanced understanding of the impor-tance of the facts. The best way to prepare for that is to read the fact sections of your cases very carefully.

How to Read a Legal Opinion 

AUTUMN 2007  59 

interpret “statutes,” which is a fancy name for written laws passed by legislative bodies such as Congress. Still other cases interpret “the common law,” which is a term that usually refers to the body of prior case decisions that derive ultimately from pre-1776 English law that the Colonists brought over from England.3

In your first year, the opinions that you read in your Torts, Con-tracts, and Property classes will mostly interpret the common law. Opinions in Criminal Law mostly interpret either the common law or statutes. Finally, opinions in your Civil Procedure casebook will mostly interpret statutory law or the Constitution. The source of law is very important because American law follows a clear hierar-chy. Constitutional rules trump statutory (statute-based) rules, and statutory rules trump common law rules.

After you have identified the source of law, you should next identify the method of reasoning that the court used to justify its decision. When a case is governed by a statute, for example, the court usually will simply follow what the statute says. The court’s role is narrow in such settings because the legislature has settled the law. Similarly, when past courts have already answered similar questions before, a court may conclude that it is required to reach a particular result because it is bound by the past precedents. This is an application of the judicial practice of “stare decisis,” an abbrevia-tion of a Latin phrase meaning “That which has been already decided should remain settled.”

In other settings, courts may justify their decisions on public pol-icy grounds. That is, they may pick the rule that they think is the best rule, and they may explain in the opinion why they think that rule is best. This is particularly likely in common law cases where judges are not bound by a statute or constitutional rule. Other courts will rely on morality, fairness, or notions of justice to justify

3 The phrase “common law” started being used about a thousand years ago to refer

to laws that were common to all English citizens. Thus, the word “common” in the phrase “common law” means common in the sense of “shared by all,” not common in the sense of “not very special.” The “common law” was announced in judicial opinions. As a result, you will sometimes hear the phrase “common law” used to refer to areas of judge-made law as opposed to legislatively-made law.

Orin S. Kerr 

60  11 GREEN BAG 2D 

their decisions. Many courts will mix and match, relying on several or even all of these justifications.

Understand the Significance of the Majority Opinion Some opinions resolve the parties’ legal dispute by announcing and applying a clear rule of law that is new to that particular case. That rule is known as the “holding” of the case. Holdings are often con-trasted with “dicta” found in an opinion. Dicta refers to legal state-ments in the opinion not needed to resolve the dispute of the par-ties; the word is a pluralized abbreviation of the Latin phrase “obiter dictum,” which means “a remark by the way.”

When a court announces a clear holding, you should take a min-ute to think about how the court’s rule would apply in other situa-tions. During class, professors like to pose “hypotheticals,” new sets of facts that are different from those found in the cases you have read. They do this for two reasons. First, it’s hard to understand the significance of a legal rule unless you think about how it might apply to lots of different situations. A rule might look good in one setting, but another set of facts might reveal a major problem or ambiguity. Second, judges often reason by “analogy,” which means a new case may be governed by an older case when the facts of the new case are similar to those of the older one. This raises the question, which are the legally relevant facts for this particular rule? The best way to evaluate this is to consider new sets of facts. You’ll spend a lot of time doing this in class, and you can get a head start on your class discussions by asking the hypotheticals on your own before class begins.

Finally, you should accept that some opinions are vague. Some-times a court won’t explain its reasoning very well, and that forces us to try to figure out what the opinion means. You’ll look for the holding of the case but become frustrated because you can’t find one. It’s not your fault; some opinions are written in a narrow way so that there is no clear holding, and others are just poorly reasoned or written. Rather than trying to fill in the ambiguity with false cer-tainty, try embracing the ambiguity instead. One of the skills of top-flight lawyers is that they know what they don’t know: they know

How to Read a Legal Opinion 

AUTUMN 2007  61 

when the law is unclear. Indeed, this skill of identifying when a problem is easy and when it is hard (in the sense of being unsettled or unresolved by the courts) is one of the keys to doing very well in law school. The best law students are the ones who recognize and identify these unsettled issues without pretending that they are easy.

Understand Any Concurring and/or Dissenting Opinions You probably won’t believe me at first, but concurrences and dis-sents are very important. You need to read them carefully. To un-derstand why, you need to appreciate that law is man-made, and Anglo-American law has often been judge-made. Learning to “think like a lawyer” often means learning to think like a judge, which means learning how to evaluate which rules and explanations are strong and which are weak. Courts occasionally say things that are silly, wrongheaded, or confused, and you need to think independ-ently about what judges say.

Concurring and dissenting opinions often do this work for you. Casebook authors edit out any unimportant concurrences and dis-sents to keep the opinions short. When concurrences and dissents appear in a casebook, it signals that they offer some valuable insights and raise important arguments. Disagreement between the majority opinion and concurring or dissenting opinions often frames the key issue raised by the case; to understand the case, you need to under-stand the arguments offered in concurring and dissenting opinions.

IV. WHY DO LAW PROFESSORS USE THE CASE METHOD? 

’ll conclude by stepping back and explaining why law professors bother with the case method. Every law student quickly realizes

that law school classes are very different from college classes. Your college professors probably stood at the podium and droned on while you sat back in your chair, safe in your cocoon. You’re now starting law school, and it’s very different. You’re reading about actual cases, real-life disputes, and you’re trying to learn about the law by picking up bits and pieces of it from what the opinions tell

I

Orin S. Kerr 

62  11 GREEN BAG 2D 

you. Even weirder, your professors are asking you questions about those opinions, getting everyone to join in a discussion about them. Why the difference?, you may be wondering. Why do law schools use the case method at all?

I think there are two major reasons, one historical and the other practical.

The Historical Reason The legal system that we have inherited from England is largely judge-focused. The judges have made the law what it is through their written opinions. To understand that law, we need to study the actual decisions that the judges have written. Further, we need to learn to look at law the way that judges look at law. In our sys-tem of government, judges can only announce the law when decid-ing real disputes: they can’t just have a press conference and an-nounce a set of legal rules. (This is sometimes referred to as the “case or controversy” requirement; a court has no power to decide an issue unless it is presented by an actual case or controversy be-fore the court.) To look at the law the way that judges do, we need to study actual cases and controversies, just like the judges. In short, we study real cases and disputes because real cases and disputes his-torically have been the primary source of law.

The Practical Reason A second reason professors use the case method is that it teaches an essential skill for practicing lawyers. Lawyers represent clients, and clients will want to know how laws apply to them. To advise a cli-ent, a lawyer needs to understand exactly how an abstract rule of law will apply to the very specific situations a client might encoun-ter. This is more difficult than you might think, in part because a legal rule that sounds definite and clear in the abstract may prove murky in application. (For example, imagine you go to a public park and see a sign that says “No vehicles in the park.” That plainly for-bids an automobile, but what about bicycles, wheelchairs, toy automobiles? What about airplanes? Ambulances? Are these “vehi-cles” for the purpose of the rule or not?) As a result, good lawyers

How to Read a Legal Opinion 

AUTUMN 2007  63 

need a vivid imagination; they need to imagine how rules might ap-ply, where they might be unclear, and where they might lead to unexpected outcomes. The case method and the frequent use of hypotheticals will help train your brain to think this way. Learning the law in light of concrete situations will help you deal with par-ticular facts you’ll encounter as a practicing lawyer.

Good luck!

Copyright © 2007 The Green Bag, Inc. “The Green Bag” and the logo are our registered trademarks.

How to write a case brief for law school: Excerpt reproduced from Introduc�on to the Study of Law: Cases and Materials,

Third Edi�on (LexisNexis 2009) by Michael Makdisi & John Makdisi

C. HOW TO BRIEF

The previous sec�on described the parts of a case in order to make it easier to read and iden�fy the per�nent informa�on that you will use

to create your briefs. This sec�on will describe the parts of a brief in order to give you an idea about what a brief is, what is helpful to

include in a brief, and what purpose it serves. Case briefs are a necessary study aid in law school that helps to encapsulate and analyze the

mountainous mass of material that law students must digest. The case brief represents a final product a�er reading a case, rereading it,

taking it apart, and pu�ng it back together again. In addi�on to its func�on as a tool for self-instruc�on and referencing, the case brief also

provides a valuable “cheat sheet” for class par�cipa�on.

Who will read your brief? Most professors will espouse the value of briefing but will never ask to see that you have, in fact, briefed. As a

prac�cing lawyer, your client doesn’t care if you brief, so long as you win the case. The judges certainly don’t care if you brief, so long as you

competently prac�ce the law. You are the person that the brief will serve! Keep this in mind when deciding what elements to include as

part of your brief and when deciding what informa�on to include under those elements.

What are the elements of a brief? Different people will tell you to include different things in your brief. Most likely, upon entering law

school, this will happen with one or more of your instructors. While opinions may vary, four elements that are essen�al to any useful brief

are the following:

(a) Facts (name of the case and its par�es, what happened factually and procedurally, and the judgment)

(b) Issues (what is in dispute)

(c) Holding (the applied rule of law)

(d) Ra�onale (reasons for the holding)

If you include nothing but these four elements, you should have everything you need in order to recall effec�vely the informa�on from the

case during class or several months later when studying for exams.

Because briefs are made for yourself, you may want to include other elements that expand the four elements listed above. Depending on

the case, the inclusion of addi�onal elements may be useful. For example, a case that has a long and important sec�on expounding dicta

might call for a separate sec�on in your brief labeled: Dicta. Whatever elements you decide to include, however, remember that the brief is

a tool intended for personal use. To the extent that more elements will help with organiza�on and use of the brief, include them. On the

other hand, if you find that having more elements makes your brief cumbersome and hard to use, cut back on the number of elements. At a

minimum, however, make sure you include the four elements listed above.

Elements that you may want to consider including in addi�on to the four basic elements are:

(e) Dicta (commentary about the decision that was not the basis for the decision)

(f) Dissent (if a valuable dissen�ng opinion exits, the dissent’s opinion)

(g) Party’s Arguments (each party’s opposing argument concerning the ul�mate issue)

(h) Comments (personal commentary)

Personal comments can be useful if you have a thought that does not fit elsewhere. In the personal experience of one of the authors, this

element was used to label cases as specific kinds (e.g., as a case of vicarious liability) or make mental notes about what he found peculiar or

puzzling about cases. This element allowed him to release his thoughts (without losing them) so that he could move on to other cases.

Legal & Professional

In addi�on to these elements, it may help you to organize your thoughts, as some people do, by dividing Facts into separate elements:

(1) Facts of the case (what actually happened, the controversy)

(2) Procedural History (what events within the court system led to the present case)

(3) Judgment (what the court actually decided)

Procedural History is usually minimal and most of the �me irrelevant to the ul�mate importance of a case; however, this is not always true.

One subject in which Procedure History is virtually always relevant is Civil Procedure.

When describing the Judgment of the case, dis�nguish it from the Holding. The Judgment is the factual determina�on by the court, in favor

of one party, such as “affirmed,” “reversed,” or “remanded.” In contrast, the Holding is the applied rule of law that serves as the basis for

the ul�mate judgment.

Remember that the purpose of a brief is to remind you of the important details that make the case significant in terms of the law. It will be

a reference tool when you are drilled by a professor and will be a study aid when you prepare for exams. A brief is also like a puzzle piece.

The elements of the brief create the unique shape and colors of the piece, and, when combined with other pieces, the picture of the

common law takes form. A well-constructed brief will save you lots of �me by removing the need to return to the case to remember the

important details and also by making it easier to put together the pieces of the common law puzzle.

D. EXTRACTING THE RELEVANT INFORMATION: ANNOTATING AND HIGHLIGHTING

So now that you know the basic elements of a brief, what informa�on is important to include under each element? The simple answer is:

whatever is relevant. But what parts of a case are relevant? When you read your first few cases, you may think that everything that the

judge said was relevant to his ul�mate conclusion. Even if this were true, what is relevant for the judge to make his decision is not always

relevant for you to include in your brief. Remember, the reason to make a brief is not to persuade the world that the ul�mate decision in

the case is a sound one, but rather to aid in refreshing your memory concerning the most important parts of the case.

What facts are relevant to include in a brief? You should include the facts that are necessary to remind you of the story. If you forget the

story, you will not remember how the law in the case was applied. You should also include the facts that are disposi�ve to the decision in

the case. For instance, if the fact that a car is white is a determining factor in the case, the brief should note that the case involves a white

car and not simply a car. To the extent that the procedural history either helps you to remember the case or plays an important role in the

ul�mate outcome, you should include these facts as well.

What issues and conclusions are relevant to include in a brief? There is usually one main issue on which the court rests its decision. This

may seem simple, but the court may talk about mul�ple issues, and may discuss mul�ple arguments from both sides of the case. Be sure to

dis�nguish the issues from the arguments made by the par�es. The relevant issue or issues, and corresponding conclusions, are the ones

for which the court made a final decision and which are binding. The court may discuss intermediate conclusions or issues, but stay focused

on the main issue and conclusion which binds future courts.

What ra�onale is important to include in a brief? This is probably the most difficult aspect of the case to determine. Remember that

everything that is discussed may have been relevant to the judge, but it is not necessarily relevant to the ra�onale of the decision. The goal

is to remind yourself of the basic reasoning that the court used to come to its decision and the key factors that made the decision favor one

side or the other.

A brief should be brief! Overly long or cumbersome briefs are not very helpful because you will not be able to skim them easily when you

review your notes or when the professor drills you. On the other hand, a brief that is too short will be equally unhelpful because it lacks

sufficient informa�on to refresh your memory. Try to keep your briefs to one page in length. This will make it easy for you to organize and

reference them.

Do not get discouraged. Learning to brief and figuring out exactly what to include will take �me and prac�ce. The more you brief, the easier

it will become to extract the relevant informa�on.

While a brief is an extremely helpful and important study aid, annota�ng and highligh�ng are other tools for breaking down the mass of

material in your casebook. The remainder of this sec�on will discuss these different techniques and show how they complement and

enhance the briefing process.

Annota�ng Cases

Many of you probably already read with a pencil or pen, but if you do not, now is the �me to get in the habit. Cases are so dense and full of

informa�on that you will find yourself spending considerable amounts of �me rereading cases to find what you need. An effec�ve way to

reduce this �me is to annotate the margins of the casebook. Your pencil (or pen) will be one of your best friends while reading a case. It will

allow you to mark off the different sec�ons (such as facts, procedural history, or conclusions), thus allowing you to clear your mind of

thoughts and providing an invaluable resource when briefing and reviewing.

You might be wondering why annota�ng is important if you make an adequate, well-constructed brief. By their very nature briefs cannot

cover everything in a case. Even with a thorough, well-constructed brief you may want to reference the original case in order to reread dicta

that might not have seemed important at the �me, to review the complete procedural history or set of facts, or to scour the ra�onale for a

be�er understanding of the case; annota�ng makes these tasks easier. Whether you return to a case a�er a few hours or a few months,

annota�ons will swi�ly guide you to the per�nent parts of the case by providing a roadmap of the important sec�ons. Your textual

markings and margin notes will refresh your memory and restore specific thoughts you might have had about either the case in general or

an individual passage.

Annota�ons will also remind you of forgo�en thoughts and random ideas by providing a medium for personal comments.

In addi�on to making it easier to review an original case, annota�ng cases during the first review of a case makes the briefing process

easier. With adequate annota�ons, the important details needed for your brief will be much easier to retrieve. Without annota�ons, you

will likely have difficulty loca�ng the informa�on you seek even in the short cases. It might seem strange that it would be hard to reference

a short case, but even a short case will likely take you at least fi�een to twenty-five minutes to read, while longer cases may take as much as

thirty minutes to an hour to complete. No ma�er how long it takes, the dense material of all cases makes it difficult to remember all your

thoughts, and trying to locate specific sec�ons of the analysis may feel like you are trying to locate a needle in a haystack. An annota�on in

the margin, however, will not only swi�ly guide you to a per�nent sec�on, but will also refresh the thoughts that you had while reading that

sec�on.

When you read a case for the first �me, read for the story and for a basic understanding of the dispute, the issues, the ra�onale, and the

decision. As you hit these elements (or what you think are these elements) make a mark in the margins. Your markings can be as simple as

“facts” (with a bracket that indicates the relevant part of the paragraph). When you spot an issue, you may simply mark “issue” or instead

provide a synopsis in your own words. When a case sparks an idea — write that idea in the margin as well — you never know when a

seemingly irrelevant idea might turn into something more.

Finally, when you spot a par�cularly important part of the text, underline it (or highlight it as described below).

With a basic understanding of the case, and with annota�ons in the margin, the second read-through of the case should be much easier.

You can direct your reading to the most important sec�ons and will have an easier �me iden�fying what is and is not important. Con�nue

rereading the case un�l you have iden�fied all the relevant informa�on that you need to make your brief, including the issue(s), the facts,

the holding, and the relevant parts of the analysis.

Pencil or pen — which is be�er to use when annota�ng? Our recommenda�on is a mechanical pencil. Mechanical pencils make finer

markings than regular pencils, and also than ballpoint pens. Although you might think a pencil might smear more than a pen, with its sharp

point a mechanical pencil uses very li�le excess lead and will not smear as much as you might imagine. A mechanical pencil will also give

you the freedom to make mistakes without consequences. When you first start annota�ng, you may think that some passages are more

important than they really are, and therefore you may resist the urge to make a mark in order to preserve your book and prevent false

guideposts. With a pencil, however, the ability to erase and rewrite removes this problem.

Highligh�ng

Why highlight? Like annota�ng, highligh�ng may seem unimportant if you create thorough, well-constructed briefs, but highligh�ng directly

helps you to brief. It makes cases, especially the more complicated ones, easy to digest, review and use to extract informa�on.

Highligh�ng takes advantage of colors to provide a uniquely effec�ve method for reviewing and referencing a case. If you prefer a visual

approach to learning, you may find highligh�ng to be a very effec�ve tool.

If annota�ng and highligh�ng are so effec�ve, why brief? Because the process of summarizing a case and pu�ng it into your own words

within a brief provides an understanding of the law and of the case that you cannot gain through the process of highligh�ng or annota�ng.

The process of pu�ng the case into your own words forces you to digest the material, while annota�ng and highligh�ng can be

accomplished in a much more passive manner.

What should you highlight? Similar to annota�ng, the best parts of the case to highlight are those that represent the needed informa�on

for your brief such as the facts, the issue, the holding and the ra�onale.

Unlike annota�ng, highligh�ng provides an effec�ve way to color code, which makes referring to the case even easier. In addi�on,

Highlighters are par�cularly useful in marking off en�re sec�ons by using brackets. These brackets will allow you to color-code the case

without highligh�ng all the text, leaving the most important phrases untouched for a more detailed highlight marking or underlining.

Highligh�ng is a personal tool, and therefore should be used to the extent that highligh�ng helps, but should be modified in a way that

makes it personally �me efficient and beneficial. For instance, you might combine the use of annota�ons in the margins with the visual

benefit of highligh�ng the relevant text. You may prefer to underline the relevant text with a pencil, but to use a highlighter to bracket off

the different sec�ons of a case. Whatever you choose to do, make sure that it works for you, regardless of what others recommend. The

techniques in the remainder of this sec�on will describe ways to make full use of your highlighters.

First, buy yourself a set of mul�-colored highlighters, with at least four, or perhaps five or six different colors. Yellow, pink, and orange are

usually the brightest. Depending on the brand, purple and green can be dark, but s�ll work well. Although blue is a beau�ful color, it tends

to darken and hide the text.

Therefore we recommend that you save blue for the elements that you rarely highlight.

For each different sec�on of the case, choose a color, and use that color only when highligh�ng the sec�on of the case designated for that

color. Consider using yellow for the text that you tend to highlight most frequently. Because yellow is the brightest, you may be inclined to

use yellow for the Conclusions in order to make them stand out the most. If you do this, however, you will exhaust your other colors much

faster than yellow and this will require that you purchase an en�re set of new highlighters when a single color runs out because colors such

as green are not sold separately. If instead you choose to use yellow on a more frequently highlighted sec�on such as the Analysis, when it

comes �me to replace your yellow marker, you will need only to replace your yellow highlighter individually. In the personal experience on

one of the authors, the sec�ons of cases that seemed to demand the most highlighter a�en�on were the

Facts and the Analysis, while the Issues and Holdings demanded the least. Other Considera�ons and

Procedural History required lots of highligh�ng in par�cular cases although not in every case.

Experiment if you must, but try to choose a color scheme early on in the semester and s�ck with it. That way, when you come back to the

first cases of the semester, you will not be confused with mul�ple color schemes. The basic sec�ons of a case for which you should consider

giving a different color are:

� Facts

� Procedural History

� Issue (and ques�ons presented)

� Holding (and conclusions)

� Analysis (ra�onale)

� Other Considera�ons (such as dicta)

Not all of these sec�ons demand a separate color. You may find that combining Facts and Procedural History or Issues and Holdings works

best. Furthermore, as men�oned above, some sec�ons may not warrant highligh�ng in every case (e.g., dicta probably do not need to be

highlighted unless they are par�cularly important). If you decide that a single color is all that you need, then s�ck to one, but if you find

yourself highligh�ng lots of text from many different sec�ons, reconsider the use of at least a few different colors. Highlighters make text

stand out, but only when used appropriately. The use of many colors enables you to highlight more text without reducing the highlighter’s

effec�veness. Three to four colors provides decent color varia�on without the cumbersomeness of handling too many markers.

Once you are comfortable with your color scheme, determining exactly what to highlight s�ll may be difficult. Similar to knowing what to

annotate, experience will perfect your highligh�ng skills. Be careful not to highlight everything, thus ruining your highlighters’ effec�veness;

at the same �me, do not be afraid to make mistakes.

Now that we have covered the basics of reading, annota�ng, highligh�ng, and briefing a case, you are ready to start prac�cing. Keep the

�ps and techniques men�oned in this chapter in mind when you tackle the four topics in the remainder of this book. If you have difficultly,

refer back to this chapter to help guide you as you master the case method of study and the art of using the common law.

Have ques�ons about law school? Check out our Facebook page , follow us on Twi�er or start networking with law students and

lawyers on LexTalk.

Law School Success

AUGUST 25, 2014 · 9:00 AM

What to Include in Your Law School Notes

Yesterday, we explored some basic strategies to taking effective notes in law school. Sometimes law students have a hard time determining what

they should include in their class notes. Today, I will focus specifically on what good notes include. Although what you should take notes of can

differ depending on the subject and the professor, here are some good general strategies for taking notes in your law school classes.

First, pay attention to what the professor says in class. If a professor says that something is important, you want to make a note of that. If the

professor states that there is a 3-part test for some legal concept, make sure that you write down what those 3 steps are. If the professor talks

about overarching themes or compares two cases to each other, note that as well. In other words, your best guide for what you should be taking

notes about, what is important from assigned readings, and what might be tested on the exam is your professor. This is one reason why taking

good notes in law school is so important. Students who take few if any notes won’t have this important information later when they start

synthesizing course materials and studying for exams. In contrast, students who create a transcript of what happens in class won’t be able to

differentiate between important information and unimportant information.

Second, remember that in the long term what the professor says in class is much more important than what your fellow students say. Sometimes

students struggle with how to take notes when the professor uses Socratic Method. When taking notes in this situation, focus your notes on what

the professor has asked and what the hypotheticals are about. Keep in mind that student answers may not always be accurate and on-point.

Depending on what is going on in class, the professor may not take the time to point out a student’s inaccurate statements and provide the correct

answer. There is also another benefit to this approach—rather than transcribing the student’s response to the professor’s questions, you can be

engaged in that discussion yourself. Follow along mentally with the discussion, answering the questions in your head and comparing your

answers to the other student’s answers. Make note of things that you can’t answer on your own, so that you can go back and review that material

later.

Third, make careful note of any hypotheticals. Professors use hypotheticals as a way of helping students learn the nuances of the law. Maybe you

have read two cases that illustrate differences in how courts resolve a legal issue. The professor may use additional hypotheticals, involving the

same legal issue but different facts, to help the class better understand how courts apply the law to resolve that particular legal issue. Law school

exams are based around hypothetical situations, and the more practice you have with them, the more comfortable you will be in applying law

from cases to new hypotheticals when it’s time to take your exams.

Finally, sometimes professors begin class by summarizing what was covered in previous class sessions, or they may spend a little time creating a

context for the current day’s reading assignment. Professors also may summarize important points from class materials at the end of class. Make

sure that you take notes from these summaries, as they provide additional insight into what your professor views as important.

Share this:

Like

One blogger likes this.

Related

6 Ways that Law School is Differentthan Undergrad

7 Steps to Building Strong LawSchool Outlines

Introduction to Socratic Method forNew Law Students

In "General"

In "General"

In "General"

Law School Success

AUGUST 24, 2014 · 9:25 AM

Taking Effective Notes in Law School

When most people think of taking notes, they think of sitting in a classroom and taking notes while the professor lectures. In undergrad, note-

taking is often a pretty passive task—students write down what the professor is saying without really processing what is going on in class. Once

class has ended, the note-taking process has ended. Some students don’t take notes in class at all, instead relying upon other course materials

when they study for exams.

Your approach to taking notes in law school should be very different. The first thing that new law students need to understand is that effective

note-taking is a cyclical process. Your case briefs are the foundation for your class notes—by creating case briefs, you are creating a set of notes

that you can rely upon in class. Then, when you go into class, you should take additional notes about what happens during class. Many law

students stop at this point, but there is still a third step to creating good notes. After class is over, you should spend a little time reviewing your

notes from class, elaborating upon things you didn’t have enough time to jot down during class and correcting any errors in your notes. You

should also use your class notes to clarify your case briefs. Complete this review of your class notes as soon as possible after class has ended

because your memory of what happened in class will still be fresh.

Should you take notes by hand or on your computer? There’s an ongoing debate over whether law students should take notes by hand or on their

computers. Some professors don’t allow computers in the classroom, and in those circumstances your decision is simple—you will take notes by

hand. Most professors do allow computers in the classroom, however, and that means you will have to make the choice about what is right for

you.

There are studies that have found that students who take notes by hand are able to remember lectures better than those who type their notes. One

of the reasons for this phenomenon is that, when you handwrite notes, you are required to think more about what you are going to write—the

cognitive process is different. Because most people cannot write as fast as they type, it isn’t possible to create a transcript of everything that is said

during class. Instead, someone who handwrites has to process information differently so that they can write down the important things that were

said in class.

Students who take notes on their computers have a tendency to try to write down every word. When you create a literal transcript of what

happens in class, you are not really processing that information. Thus, if you choose to take notes on your computer, you will need to take a

disciplined approach to your note-taking. Students who use computers also have to resist the urge to be distracted, as there is always the

temptation to check social media sites, surf the internet, and message friends.

Check back in tomorrow for another blog post on this topic—I will be talking about what law students should include in their course notes!

Share this:

Like

Be the first to like this.

Related

6 Ways that Law School is Differentthan Undergrad

What to Include in Your Law SchoolNotes

Case Briefing Shortcuts

In "General"

In "General"

In "Bar Exam"

5 THINGS TO INCLUDE IN YOUR LAW SCHOOL

CLASS NOTESMARCH 25, 2012 BY ALISON MONAHAN — 2 COMMENTS

We’ve gotten several questions recently about a very important topic: What should

go into your law school class notes?

It’s a great question, for a couple of reasons:

1. Thinking about how to structure your class notes can help you make sense of the sometimes unfocused Socratic

method.

2. Your class notes are very useful in understanding how your professor thinks about the law (and how he wants you to

analyze an exam question).

WHAT GOES IN YOUR CLASS NOTES?

There are Ðve critical things to include in your class notes:

1. Black-letter law: Whenever there’s a clear statement of law, it needs to be in your notes. “The elements of assault

are…” One drawback of the Socratic method is that it can convince you that everything is up for debate. That’s not the

case! There are rules, and it’s crucial that you know what they are when it’s time for an exam. When one arises in the

course of class discussion, write it down.

2. Areas of ambiguity: Equally important, however, are the areas of ambiguity. It’s rare that the law is totally

straightforward. What if there’s a traditional rule, and a modern rule, and they lead to different outcomes? In that case,

write them both down, with a big note saying: *** Ambiguity! *** (If you’re not clear on what we mean by ambiguity, here

are some details on legal and factual ambiguity.)

3. Notes on how to apply the law: Once you’ve got the black-letter law and the areas of ambiguity, you’ve made

progress. But you’re not Ðnished yet. Be sure to write down how to apply the law to a particular factual scenario. This is

where you capture all of those crazy hypos that your professor is fond of. They’re designed to teach you how to deal

with the ambiguity — an important skillset indeed when exam time roles around.

TUTORING COURSES- JOB HELP- LAW SCHOOL 101- BLOG- PODCAST- ABOUT-

SEARCH THIS WEBSITE …

Tweet Share0

4. Policy arguments: Sticking with our example of a modern rule and traditional rule, it’s useful to know what policy

considerations drove the rule change. Why did the rule evolve? Has every jurisdiction adopted the new rule? If not, why

not? Having a clear list of the policies behind each version of the rule will prove invaluable at exam time, when you can

get extra points by discussing the pros and cons of adopting a particular version of the legal rule at issue.

5. Your professor’s quirks: Finally, it’s useful to make note of your professor’s particular quirks or areas of interest. Are

there certain topics, or phrases, that seem to come up every class? Write these down, even if you think they’re silly or

off-topic. There’s a very good chance they’ll show up on the exam, one way or another. Also be sure you’re recording

any multi-part tests, or particular turns of phrase, that come up repeatedly. Using these in your analysis on an exam can

only help!

HOW TO ORGANIZE THINGS

When you’re thinking about how to organize your class notes, consider having a thematic section at the top for each day (or

down the side, if you’re handwriting, and that makes more sense to you), where you make a note of anything that falls into one

of the Ðve topics above.

This approach avoids the usual temptation, which is to simply record whatever’s said, in a linear fashion. The danger with this

approach is that important nuggets of information are buried in the midst of a bunch of junk that you never want to read again.

Instead, try a small section at the top that says:

Black-letter law:

Factual or legal ambiguity:

How to apply the law:

Policy arguments:

Professor obsessions:

This way, you’ll have all the important stuff at the top, and you can write your linear notes below if you still want to do that.

And, just the act of trying to pull out each of these pieces of information will focus your attention nicely, so you pay better

attention and get more out of class.

Win-win!

— – —

What notetaking techniques work best for you? Do you handwrite, or type?

Once you’ve got your class notes, what’s next? Find out how to turn your class notes into an outline.

If you found this article helpful, why not sign up for our mailing list? Lots of great stuff (and exclusive content) sent right to your

inbox, for free!

You might like to read these similar posts:

Pay Attention in Class—It Can Save You Time!

Cornell Note-Taking CUES: NOTE-TAKINGCOLUMN:

SUMMARYSECTION:

HOW TO TURN YOUR CLASS NOTES INTO AN

OUTLINEMARCH 27, 2012 BY ALISON MONAHAN — 2 COMMENTS

Someone asked a very good question about our last post: 5 Things to Include in Your Law School Class

Notes — What do you do with your class notes when it’s time to outline? If you’ve taken useful notes, and broken them into

usable chunks, do you even still need an outline?

WHY YOU STILL NEED AN OUTLINE

So, here’s the deal. Even if your class notes are really good, you still need to condense them. Why? Because you can’t possibly

memorize and use 100+ pages of information.

The goal of your “outline” (which might not be a traditional outline at all, and could be a collection of related study materials) is

to consolidate everything.

Ideally, you want to move from 100+ pages of class notes –> to an outline of around 30 pages –> and then to a 1-2

page “cheat sheet” of some sort, which you can easily memorize (for open and closed book exams) and reference

(if you have open book exams).

Why? Because you can’t apply 100 pages of information! No one can. It’s got to be simpliÐed.

HOW TO GO FROM CLASS NOTES TO AN OUTLINE

If you’ve organized your class notes as suggested (with Ðve topic headers at the top collecting all the useful information),

starting an outline should be pretty easy.

Just identify “topic areas” in the law, and pull all the key elements from your notes together under these topics.

WHAT’S A TOPIC?

TUTORING COURSES- JOB HELP- LAW SCHOOL 101- BLOG- PODCAST- ABOUT-

SEARCH THIS WEBSITE …

Tweet Share0

A topic is a broad area like Intentional Torts, or Negligence. Within each area you’ll have subtopics, of course (all the speciÐc

Intentional Torts, or Duty, Breach, Causation, and Harm, for example), and you might even have subtopics within the subtopics.

If you’re not sure where to start, check your course syllabus. It’s probably divided into topics and subtopics.

Once you’ve got your topics, Ðnd the relevant days of class notes, and start combining all the useful info you highlighted into a

more consolidated version. Having a good commercial outline, or an old outline, on hand can help you double-check your

work. (But make sure the basic structure follows your course — over-reliance on a commercial outline can waste valuable time

if you try to learn things your class didn’t cover.)

When your outline is Ðnished, look it over. What are the two or three most important lines on each page? These become your

“mini-outline” — the one you’ll actually have to memorize.

Or, if you prefer, make a Ñowchart! Either way, keep it to a couple of pages, and you’ll be good to go.

— – —

Any questions?

If you missed 5 Things to Include in Your Law School Class Notes, check it out!

If you’re not on our mailing list, why not sign up now? Lots of great stuff (and exclusive content) sent right to your inbox, for

free!

Other similar posts you might like:

Law School Outlining: What’s the Point?

Law School Outlining: Can Your Outline Be Too Long?

How Are Those Outlines Coming?

Image by aperfect1 via stock.xchng.

Looking for some help to do your best in law school? Find out about our law school tutoring options.

ABOUT ALISON MONAHAN

Alison Monahan is the founder of The Girl's Guide to Law School, which helps law students and prospective law

students get in to law school, get through, and stay true to themselves. Alison is a graduate of Columbia Law

School, where she was a member of the Columbia Law Review and served as a Civ Pro teaching assistant. You can Ðnd her on

Twitter at @GirlsGuideToLS.

YOU MIGHT ALSO LIKE:

Tweet Share0

HOW TO WRITE A LAW SCHOOL EXAM: DEAL

WITH THE AMBIGUITYMARCH 5, 2012 BY ALISON MONAHAN — LEAVE A COMMENT

To write a great law school exam answer, you’ve got to do one critical thing: Deal

with the ambiguity.

WHY IS AMBIGUITY IMPORTANT?

I know, you want there to be one “right” answer. Time to get over that. Why? Because the points are in the close questions.

If you were a professor, which student would you give more points to?

Student One: The defendant is clearly not liable for assault, because he didn’t mean to scare the plaintiff and he never

touched her.

Student Two: It’s a close question whether the defendant is liable for assault. He testiÐed that he didn’t intend to scare

the plaintiff, but the relevant legal standard is an objective one. His subjective intent is irrelevant. Therefore, the

question is whether plaintiff’s fear of a battery was objectively reasonable. In this situation, where the plaintiff was

alone in a dark alley when defendant approached her yelling “I’m a fallen angel come to save you!,” plaintiff has a fairly

strong argument that her fear was reasonable. Defendant will argue that he never touched her, or came close to

touching her, but a reasonable person in those circumstances would have been in fear of imminent bodily harm.

I’m going to go with number two.

WHERE DOES AMBIGUITY COME FROM?

In a nutshell, there are two primary types of ambiguity:

1. Factual ambiguity: Just what it sounds like. The facts are ambiguous. In our example above, would a reasonable

person in this scenario have felt threatened? If you interpret the facts one way, yes. If you look at them somewhat

TUTORING COURSES- JOB HELP- LAW SCHOOL 101- BLOG- PODCAST- ABOUT-

SEARCH THIS WEBSITE …

Tweet Share0

differently, no. In the end, it doesn’t really matter which way your answer comes out — what matters is that you

recognize, and discuss, the issue. (An even better answer than the ones above would analogize to similar cases and

explain WHY it was reasonable for our plaintiff to feel threatened by the defendant’s behavior that night.)

2. Legal ambiguity: This one’s a little more subtle. It’s when the outcome would be different, depending on which legal

rule applies. So, in Contracts, for example, you might have a situation where the case comes out one way under the

common law, and the other way under the U.C.C. Here, the point isn’t to say “Oh, I’ll apply the U.C.C. so the answer is

X.” It’s to think about whether you could make an argument for using the common law, and also make an argument for

applying the U.C.C. That’s probably why your professor set up the question the way she did! If you simply pick one,

you’re going to leave most of the available points on the table.

RESIST THE URGE TO BE RIGHT

The next time you approach an exam question, resist the urge to get to “The Answer.”

Instead, explore the ambiguity, showing your work along the way. You’ll probably end up with a lot better grades, even if the

process is uncomfortable!

— – —

Want more?

Sign up for the Law School Toolbox mailing list, and we’ll send you tons of fresh content to help you succeed in law school. As

an added bonus, and only because you’re so awesome, when you join we’ll send our Top 10 Tips for Law School Success, right

to your inbox. What a deal!

Similar posts you might like

What Makes a Law School Exam Answer “Good”?

A Handy Template For Answering “Hard” Law School Exam Questions

The Key to Law School Exam Success? Think Like Your Professor

— – —

Got questions? Leave them in the comments and we’ll answer them for you!

Image by protego via stock.xchng.

Looking for some help to do your best in law school? Find out about our law school tutoring options.

ABOUT ALISON MONAHAN

Alison Monahan is the founder of The Girl's Guide to Law School, which helps law students and prospective law

students get in to law school, get through, and stay true to themselves. Alison is a graduate of Columbia Law

School, where she was a member of the Columbia Law Review and served as a Civ Pro teaching assistant. You can Ðnd her on

Twitter at @GirlsGuideToLS.

Tweet Share0

AHEAD OF THE CURVE: FROM UNDERGRAD TO

LAW SCHOOL – MAKING THE TRANSITION, PART

ONEAUGUST 24, 2017 BY KERI BISCHOFF CLAPP — LEAVE A COMMENT

Welcome to Ahead of the Curve, our new series for incoming 1Ls. We’re getting lots

of questions about what law school to attend, how to pay for it, and what people can be doing now to set themselves up for

success in law school. Stay tuned, and be sure to sign up for our free mailing list and check out the Start Law School Right

course to ensure you’re ready to go on Day One!

On a recent Law School Toolbox podcast, Lee and I talked about the transition from undergrad to law school. For those of you

who didn’t catch the podcast (perhaps you prefer to get your information from reading), here is a synopsis of some of the

observations and tips that we discussed.

I come at this subject as a professor who teaches both undergrads and law students; as I prepare for class and interact with my

students, I think a lot about how different these learning environments and expectations can be. Giving some thought to what

skills you may need to add to your toolbox will help you gain conÐdence more quickly as you start law school.

PREPARING FOR CLASS

One of the main differences in law school is that your grade is often determined by a single exam at the end of the semester;

you’ll have three to four hours to show what you have learned during the entire semester. This is a lot of pressure on a single

day and, to perform successfully, you have to really take ownership of your own learning throughout the semester. What does

this mean?

First, you will probably have to do much more preparation before class than you did for many of your college courses. Some

undergraduate courses have very user-friendly textbooks that provide deÐnitions, objectives, review questions, and visuals. In

contrast, the typical casebook that you will use for your law school classes looks pretty much the same as it did 50 years ago.

It’s a big, thick book with hundreds of pages with tiny type and thin pages.

TUTORING COURSES- JOB HELP- LAW SCHOOL 101- BLOG- PODCAST- ABOUT-

SEARCH THIS WEBSITE …

Tweet Share0

Reading 30 pages in that casebook can take hours — one rule of thumb is to plan on a pace of ten pages an hour to work

through the material enough to be prepared for class! If you are used to being able to skim and understand material, this may

come as a shock, but rest assured that it isn’t a reÑection on your competence; in fact, the casebook method of teaching is

actually intended to force you to spend time weeding through material so that you can think critically about what is important

and what is not.

Sifting through relevant and irrelevant material sharpens your analytic skills; as you gain practice, you will be able to hone in on

the legal rules more quickly and consistently. Think of this as building muscle.

LEARNING IN AND AFTER CLASS

Even after you spend that hour-per-10-pages, you may still be confused. Again, this is part of the design of legal education and

does not mean that you don’t have what it takes to make it through law school successfully. Class won’t always clear up your

confusion. Sometimes, you’ll show up at class only to Ðnd that all the professor seems to do is ask more questions from a

student who is just as confused as you. Questions will follow questions, and there will be times when everyone feels

inadequate.

How do you navigate these challenges? Prepare to invest a lot of time learning what is akin to a foreign language. If you are

savvy, you’ll review your notes after class to try to cement what you learned and clarify remaining questions. Even those of you

who learned completely independently in college will probably try out a study group; you’ll consult “supplements” to help

clarify an area of law; and you’ll start “outlining,” which is law-school-speak for synthesizing the material at the end of every

unit. Some undergrads never have to devote such consistent and independent effort to a course.

From this struggle to Ðnd clarity in confusion, you’ll start seeing how law is developed and how cases Ðt together to create

rules of law that are Ñexible and can apply to a variety of different situations. This intentionally messy process teaches you how

to “think like a lawyer.”

EMBRACING AMBIGUITY

Another challenge for many students is accepting that sometimes (often) their goal is not to Ðnd the “right” answer. Law school

exams assume you know the rules – the key to success is reasoning, not concluding. Coming up with an answer isn’t enough;

the bulk of points come from showing how and why you applied the law to a particular problem and convincing the reader that

your conclusion is correct by walking them step-by-step through an analysis. This involves looking for similarities and

distinctions, and thorough discussion of counterargument.

Law school exams are not so much about understanding the material as they are about analyzing and applying it to teach you

to do what lawyers do – use law to take solve problems.

Think of law school as a chance to build upon and sharpen your undergraduate skills. You’ll need to work hard but also to work

smart, and that means being open to new ways of learning.

In Part Two of this article, we will discuss writing in law school and how may differ from the writing you did in undergrad. Until

then, take a look at our Ahead of the Curve series and a listen to our podcasts to get you ready for law school.

https://lawschooltoolbox.com/law-school-prep-how-to-prepare-for-law-school-as-a-0l/

https://lawschooltoolbox.com/podcast-episode-89-the-leap-from-undergrad-to-law-school-with-keri-clapp/

Looking for some help to do your best in law school? Find out about our law school tutoring options.

AHEAD OF THE CURVE: FROM UNDERGRAD TO

LAW SCHOOL – MAKING THE TRANSITION, PART

TWOAUGUST 31, 2017 BY KERI BISCHOFF CLAPP — LEAVE A COMMENT

Welcome to Ahead of the Curve, our new series for incoming 1Ls. We’re getting lots

of questions about what law school to attend, how to pay for it, and what people can be doing now to set themselves up for

success in law school. Stay tuned, and be sure to sign up for our free mailing list and check out the Start Law School Right

course to ensure you’re ready to go on Day One!

On a recent Law School Toolbox podcast, Lee and I talked about the transition from undergrad to law school. This is Part Two

of my synopsis of some of the observations and tips that we discussed.

As I said in Part One, I teach both undergrads and law students; as I prepare for class and interact with my students, I think a lot

about how different these learning environments and expectations can be. Giving some thought to what skills you may need to

add to your toolbox will help you gain conÐdence more quickly as you start law school.

Writing in law school can pose big challenges to both students who spent a lot of time writing papers in undergrad and to

those who did not.

IMPROVE YOUR BASIC WRITING SKILLS

Do you know what it means to write in the “active voice”? If you are writing something other than a text message, do you

automatically check to see that every paragraph begins with a topic sentence? Do you know when to use a semi-colon?

If the answer to these questions is, “Um, not really,” you aren’t alone. You may not have done a lot of writing in undergrad, or

you may not have had someone rigorously edit your writing. Your bank of experience doesn’t include going through rewrites

and drafts to improve the structure and clarity of what you are trying to convey.

TUTORING COURSES- JOB HELP- LAW SCHOOL 101- BLOG- PODCAST- ABOUT-

SEARCH THIS WEBSITE …

Tweet Share0

This is not a surprise. Many disciplines in undergrad have scaled back the amount of writing that they expect from students; in

part this is due to the fact that many students come to college without good writing skills. There are many explanations offered

for this decline (from K-12 curriculum to email/texting habits), but there is pretty solid consensus that many of today’s college

graduates do not have high level written communication skills.

Take some time now to think honestly about your writing skills. If you aren’t sure that they are up to par, consider brushing up

your skills before you start law school. Google “writing skills for law students” and you will Ðnd lots of options to consider.

Check out our Start Law School Right course, where you will get written feedback on several law-school-type assignments.

Consider investing time in an online course such as Core Grammar for Lawyers (which is required at some schools).

As a law student, you will be graded on your ability to communicate effectively in writing and minimum competency in

grammar, structure, and clarity will be threshold requirements for success. Build a strong foundation before you start.

ADOPT AND EMBRACE A NEW WRITING STYLE

Some of you have earned praise for your ability to communicate through the written word. It is an advantage to have a Ðrm

foundation, but being a good writer does not always translate automatically to being a good legal writer.

In your Ðrst days of law school orientation, you’ll learn about IRAC (or CREAC), which is the format for organization in legal

writing. It’s easy to learn that R stands for rule, E for explanation, etc., but it isn’t always easy to learn how to write in a way that

follows this paradigm. The sooner you master this transition, the better because this is what legally trained readers (e.g., your

professors) expect.

Following a formula sounds easy, but many good writers really struggle against what seems like a rigid structure. For instance,

English and history majors are used to spending a lot of time crafting language, but legal writing is best when it is clear and

concise. Setting aside old habits can be hard, but you may need to abandon some of the signature parts of your writing until

you master the new style. In contrast, some students with science or technical backgrounds worry that they don’t have enough

writing experience to succeed in law school, but many of them more readily lean into the organization of legal writing.

All students who adopt IRAC or CREAC as their own language have a much easier time with legal writing in all its forms. Work

to develop this skill by looking for the parts of IRAC in well-written case opinions; note how the formula follows a logical

progression. Also, really use the sample documents in your legal writing textbook; model each part of your memoranda on the

corresponding example. This will save you time and give you valuable practice.

Your take-away: don’t struggle against the new formula. You are mastering new skills in persuasion that will make your writing

stronger. Once you get comfortable with the structure of legal writing, you will have plenty of room to blend your skills into your

unique, new “lawyer voice.”

Good legal writing is a craft that practicing attorneys and judges work very hard at practicing and perfecting. Work hard at your

writing and you will get results.

https://lawschooltoolbox.com/podcast-episode-89-the-leap-from-undergrad-to-law-school-with-keri-clapp/

https://lawschooltoolbox.com/formula-rule-analysis-success/

Looking for some help to do your best in law school? Find out about our law school tutoring options.

Tweet Share0