Reading and Briefing Cases Part 2

Reading and briefing cases is an important part of the learning process in law school, as discussed in Part 1 of this blog series. In this blog, various Marquette legal writing faculty discuss some of their favorite tips for effective reading and briefing.

Professor Rebecca Blemberg

When you have finished reading a case, write down the question or questions the court answered. Then fill in the blanks in this sentence: The court held _______________ because ________________. Even if you’re not entirely sure what the court’s reasoning was, make an educated guess. Then consider the following. Was the court explicit in its reasoning? If so, mark or highlight the explicit rationale for the holding. Is the reasoning implicit? If so, mark or highlight the places where you find the court hinting at its rationale. Are you making an educated guess or “reading between the lines” to find the court’s reasoning? If so, make a list of a few reasons for your educated guess. The reasons can be related to the facts of the case, public policy, language choices by the court, the court’s use of authority, etc.

Look up every unfamiliar word you encounter in a case, especially legal terms. Read with access to a law dictionary. Eventually, you will look up terms far less often.

Professor Jacob Carpenter

One piece of advice I would consider is to read a case at least twice, briefing it only after you’ve fully read it at least once. This may not be as necessary for upper-level students, but for 1Ls, I think it is important. Otherwise, if a person briefs a case as she first reads it, the brief often ends up including extraneous facts and dicta that aren’t helpful to the brief. Once the reader finishes reading the case, the reader often has to go back and cross out chunks of information initially included in the brief. And, the brief often ends up being disorganized. This may be less of a problem now that most students brief cases with their laptops instead of by hand. But, I think it is still helpful.

Also, waiting to brief the case until you’ve already read it allows you to focus more on understanding the case itself during the first read, and then during the second read you can focus on getting the crucial information down into your brief in an organized, concise way. I also think it helps you remember the case better when called on in class or when revisiting the case as you prepare outlines later in the semester.

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Skills Gap Holds Back Wisconsin’s Economy, Sullivan Says

Tim Sullivan has a simple definition of the skills gap in Wisconsin. “We have jobs available but no workers qualified to fill those jobs,” Sullivan told Mike Gousha, Marquette Law School’s Distinguished Fellow in Law and Public Policy, during an “On the Issues” session on Thursday. “Quite frankly, it stifles economic development.” Sullivan called the gap “probably the most important thing to kill economic development” in Wisconsin.

When Bucyrus International was sold in 2011 to Caterpillar, Sullivan, who had been CEO and president of the South Milwaukee-based industrial giant, came away in a good personal position. He could have chosen to leave the spotlight. He decided not to seek public office, despite encouragement to do so. But he did not walk away from his willingness to be involved in trying to close that skills gap and change other things that are hurting economic development in Milwaukee and Wisconsin.

Now an unpaid special consultant to Gov. Scott Walker on workforce development and education issues, Sullivan recently issued a report, “The Road Ahead: Restoring Wisconsin’s Workforce Development” that is likely to spur legislative proposals and changes on other fronts in coming months.

Describing what he found in compiling the report, Sullivan told the audience in Eckstein Hall’s Appellate Courtroom that there are more than 600 agencies in the state working on economic development which ought to be reduced to nine and that there is no one with a handle on reliable, up-to-the-minute data on available jobs in the state when software systems that can provide such information are being used elsewhere and can have large benefits.

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From the Inside Out—a Law Student’s Perspective

“The Law is full of phraseology drawn from morals, and by mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds.” 

 –Oliver Wendell Holmes Jr., The Path of the Law

While writing my Honors Scholar Thesis my senior year at DePauw University, Justice Holmes’ words became the perfect frame for my interdisciplinary study of legal ethics. This quote was taken from an address from an 1897 Harvard Law Review, The Path of the Law, 10 Harv. L. Rev. 457, (1897), in which Holmes offers a piece of pragmatic wisdom to the practicing lawyer. In essence, the lawyer should assume the role of “the bad man” who is not concerned with principles of ethics, axioms and systematic reasoning. Instead, the lawyer should be concerned with self-interest, preservation, and the immediate consequences influencing one’s actions. From this perspective, the lawyer better positions himself to protect those interests that “the bad man” might have in predicting how the court will respond, given the facts and circumstances that surround a particular case. As a somewhat critical undergraduate student, I noted that this perspective makes broad, “questionable” assumptions about the client while offering a somewhat cynical philosophy for the role that the lawyer must play for a successful study and practice of law. The emphasis on practice and prediction is a hallmark of Holmes’ pragmatic view of the law with experience at the foundation.

Holmes represented a critical juncture in the theory and practice of law, drawing attention to the intellectual content of the law, reviving historical relationships between law, ethics, and practical wisdom. Holmes believed in demystifying the law, removing notions of omnipresent knowledge and appeals to “the infinite” in order to focus on practical application and reasonable prediction. As a philosophy student, with a focus in ethics and morality, I was never a fan of pragmatism. In fact, I was rather perturbed by Holmes’ candid admission. Nonetheless, I found Holmes’ position to be “reasonable” and incredibly helpful as I embarked on my interdisciplinary study of legal ethics, specifically focusing on the duty to protect client confidences.

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