Often the difference between higher- and lower-achieving law students isn’t simply a matter of how much students work, but also how students work. There are many students with average grades who work just as hard – or even harder – than their peers who are achieving top marks. The difference is in their approach.
There are a handful of studies analysing how the ways in which “experts” read cases. These studies analysed how judges, practicing lawyers, and top law students approach case reading by asking them to verbalise their thinking as they read cases. These studies have identified a number of strategies that improve students’ understanding and analysis of cases. These strategies have been detailed by Lundeberg, Oates, and Christensen.
As students progress through law school, they often become very good at analysing cases based on “internal” aspects of the decision, such as the reasoning, the (dis)agreements between judgments and so on. Experts tend to think outside the pages of the decision and spend a significant amount of time connecting the case to “external” factors, such as the context in which the case was decided, the purpose for which the case is being read, and the reader’s own evaluation of the judgment. The most important strategies involve:
- Applying your pre-existing knowledge. Always try to connect the facts of the case to your own knowledge. Knowing the places, institutions and people involved can help you to situate the case and understand what is happening. If you don’t recognise particular, words, names or places in the judgment, it is often worth looking them up – they may turn out to be significant.
- Contextualising the case. The relevant context includes dates, parties, courts, and the judges deciding the case. These are all significant, and should be considered in light of your pre-existing knowledge of the world. For example, if the parties are a man and a woman, and the case was decided in the 1920s, you might be able to guess at what kind of prevailing attitudes could have affected the outcome of the case. You should also consider how the context in which the case was decided relates to your own context – is the case binding authority, or merely persuasive? How persuasive? How does the context in which this case was decided differ from your own, and how would that affect how you might use this case?
- Getting an overview of the case before reading it in detail. This typically includes reading the disposition and conclusion, headnotes and catch-words. This often also involves summarising the facts of the case.
- Reading as a legal expert. Interestingly, the experts in both Oates’ and Christensen’s studies put themselves in the shoes of a legal expert – either a judge deciding the case, or a lawyer advocating for one of the parties. This process is a useful way of priming your mind for the evaluative processes described below.
- Reading the case analytically. This means ensuring that you have a complete understanding of the case, and typically involves moving back and forth between different parts of the case, as well as other materials. This may involve continuously asking yourself questions about the judgment to ensure that you are following it. It may also involve using a legal dictionary such as this one, finding the key legislation using AustLII or a similar service, or opening a casebook or alternative textbook to clarify certain aspects of the decision.
- Hypothesising about what the judge is going to argue. As you progress, you should monitor whether what you are currently reading matches your hypothesis – if it does not, determine why, and if necessary alter your hypothesis.
- Reading with a purpose. Expert readers always have a goal in mind. Many legal experts are not able to read a case at all unless given a reason to do so. If they are not given a purpose, they create one for themselves. In law school, your purpose can typically be determined in one of two ways. If your professor set the case, use the questions and commentary in your reading guide and casebook to determine why the case was set. Otherwise, you can decide for yourself why you should be reading a particular case. For example, if you have selected the reading yourself as part of your own research, then you will probably intend to use it to develop a better understanding of a particular point of law, or to provide an example of a form of judicial reasoning.
- Reading flexibly. Expert readers tend to spend a reasonable amount of time acquainting themselves with the context and facts of the decision, before reading the text flexibly in light of their purpose. This enables them to determine which parts of the judgment will be relevant and which irrelevant. Flexible reading involves skimming over parts that are not relevant to your purpose or the outcome of the case, and reading significant or complicated parts in detail, sometimes more than once.
- Synthesising the facts, reasoning and outcome of the decision. At its most basic, this involves understanding how the facts were used by the judge(s) in coming to their decision. In addition, you should synthesise the decision with the other cases that you have been prescribed. This will involve attempting to determine how they all ‘fit’ together. If decisions differ, you will need to determine what principle is causing the different outcomes.
- Evaluating the decision. Less advanced readers tend to avoid this step, however, it is one of the most important skills for developing sophisticated legal reasoning. Experts are conscious of the fact that law is not fixed – it is a social process. This means that the meaning of law is partly created by the reader. This is why there can be multiple different interpretations of the same case. Fajans and Falk suggest a useful process for evaluating legal decisions, involving reflecting on your feelings about the case and then connecting those feelings to concrete aspects of the decision.
- Reflection involves recording your personal reactions to the case.
- Connection requires you to establish which aspects of the case caused those reactions. Once you have highlighted these aspects, you will be able to critique them.
Applying these strategies will become faster and more natural as you improve your understanding of the law. Some of them, such as reading flexibly and reading with a purpose, will instantly make your reading more efficient. Although these strategies have been applied to case law, they are often equally applicable to other texts.
- For more on advanced reading, click here.
- Berger, Linda L, ‘Applying New Rhetoric to Legal Discourse: The Ebb and Flow of Reader and Writer, Text and Context’ (1999) 49 Journal of Legal Education 155
- Christensen, Leah M, ‘The Paradox of Legal Expertise: A Study of Experts and Novices Reading the Law’  Brigham Young University Education and Law Journal 53
- Fajans, Elizabeth and Mary R Falk, ‘Against the Tyranny of the Paraphrase: Talking Back to Texts’ (1993) 78 Cornell Law Review 163
- Lundeberg, Mary A, ‘Metacognitive Aspects of Reading Comprehension: Studying Understanding in Legal Case Analysis’ (1987) 22 Reading Research Quarterly 407
- McKinney, Ruth Ann, Reading Like a Lawyer: Time-Saving Strategies for Reading Law like an Expert (Carolina Academic Press, 2005)
- Oates, Laurel Currie, ‘Beating the Odds: Reading Strategies of Law Students Admitted Through Alternative Admissions Programs’ (1997) 83 Iowa Law Review 139
- Oates, Laurel Currie, ‘Leveling the Playing Field: Helping Students Succeed by Helping Them Learn to Read as Expert Lawyers’ (2006) 80 St Johns Law Review 227