Can We Teach Students to Read Cases?

July 24th, 2018 / By Deborah J. Merritt

I suggested in my last three posts that law students don’t learn how to read judicial opinions as carefully and thoughtfully as they should. Can we fix this? Can we modify legal education so that JD’s develop stronger case-reading skills? Solving this problem is important in itself: most lawyers interpret appellate opinions at least some of the time. Considering how to fix this problem, furthermore, can shed light on other pedagogical challenges.

Test the Skill

Students learn what we test; that’s rational human behavior. Yet few professors ask students to analyze an unfamiliar judicial opinion on the final exam. We try to build case-reading skills throughout the semester, but we rarely ask students to demonstrate those skills for a grade.

It would be easy to ask students to interpret a new case as part of a final exam. We could give the students a new, cutting-edge case and ask them to explain how the case changes (or builds upon) the law they learned during the semester. We could give them a case from a particular jurisdiction and ask them to compare that case to the majority/minority rules studied during the semester.

It’s even possible to test case-reading skills with multiple choice questions. Simply give students a new case to read and then ask them to answer multiple choice questions identifying the rule in the case, applying the case to new facts, or contrasting the case to other cases studied during the semester.

However we test case-reading skills, it’s essential to do so. If we don’t evaluate students on important skills, they won’t learn those skills.

Dial Back Memorization

One of the most disturbing findings in the Evensen study is that students failed to check key language in a judicial opinion even when the opinion was right in front of them. Students responded based on memory, rather than re-reading the case.

We should consider whether our classes cultivate this attitude. When we call on students in a case-method class, for example, do we give the students time to identify key language? Or do we expect that the language will already be stored in memory? The latter may be unrealistic, especially if we’ve assigned three opinions for a class–and the students have classes in two or three other subjects the same day.

Our classroom methods, in other words, may unwittingly push students to memorize answers–or to draw them from canned briefs–rather than to do the hard work of analyzing judicial opinions and referring back to those opinions in class. Closed-book final exams underscore that message. If we reward quick canned responses, then that’s what we’ll get.

Memorization is dangerous for lawyers: it produces glib–or downright wrong–answers. Classes that stress quick responses and canned answers cultivate the attitude that “it is better to say something quickly, even if it’s wrong, than to take time to look for the right answer.” If we want students to read cases carefully, we should make sure that our classroom questioning respects careful reflection and analysis–rather than memorized quick answers.

Adapt Classroom Methods

There are other ways to push students to read cases rather than rely upon canned briefs. Assign some cases that are not in any casebook. These might be cases addressing a complementary point of law, ones resolving new issues, or ones from different jurisdictions. Students will have to read these opinions, even if they use canned briefs for other cases.

You can also approach casebook opinions from new angles. Rather than ask a student for “the facts of the case,” which a student can read directly from a canned brief, ask the student to explain how the dispute arose. In addition to forcing students to look beyond the case brief, this question will push them out of the appellate zone–requiring them to think about the parties’ original interests. Ask what facts each of the parties tried to prove in the trial court, then focus on the facts that the court assumes on appeal. Students may have to speculate to answer some of these questions, but that’s a useful exercise in itself: it reveals how facts and arguments narrow during appeals.

Similarly, you could ask students how they might have settled the case rather than appealing. This question also requires students to look at the case from a lawyering angle that canned case briefs omit. Alternatively, ask students to identify the single most important word or sentence in the case. Answers may differ for the plaintiff and defendant; there may also be more than one “best” sentence for each party. But this is another question that promotes understanding and incidentally takes students away from case briefs.

Technology offers yet another way to bring more case analysis into the classroom. Even if you forbid laptops generally, allow students who are reciting to use their laptops. Tell the student to display the case on her screen and share that screen with the one at the front of the classroom. You can then ask her to highlight language revealing critical facts, procedural status, holding, and other aspects of the case. Requiring students to show you–and their classmates–specific language requires them to focus on the case rather than a case brief.

Add Variety to the Curriculum

The case method is our default pedagogy in law school, but it’s a bad method for some subjects. Years ago, Ric Simmons and I concluded that we could teach the federal rules of evidence more effectively without appellate cases. We wrote a book in which we focus on rules, exposition of those rules, and lots of real-world examples. The text frees us to explore more hypotheticals in class, conduct simulations, and foster small group discussion.

We need to teach case-reading skills in some law school courses, but not in every course. It’s time to be more thoughtful about our curriculum, identifying courses in which students will learn case-reading–as well as those in which they will focus on doctrine or other skills.

Change the Bar Exam

The bar exam drives pedagogy at many law schools today, and it bears some of the blame for students’ poor case-reading skills. Only one-fifth of the Uniform Bar Exam (the portion devoted to performance test questions) requires students to interpret cases. Four-fifths of the exam tests application of legal principles that exam-takers must memorize. The stress on memorization, combined with the scant attention paid to case-reading and other skills, gives students the wrong message. They readily conclude that the best way to become a lawyer is to memorize a lot of legal rules, rather than to read the cases and statutes giving birth to those rules.

Conclusion

Reading cases is a foundational skill for lawyers; it’s one of the ways we distinguish ourselves from other professionals. Legal educators assume that, if we do nothing else well, we teach this skill effectively. Evidence, however, suggests that students are not as accomplished in case-reading as they should be. We need to take the lead in addressing that learning gap. If we can close this gap, we may be able to use some of the same techniques to enhance learning of other critical thinking skills.