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How to Read a Case -- A Law Student's Guide:
Classes will be starting up soon at law schools around the country. Incoming first-year law students might be interested to know that I have just posted a substantially revised version of my essay, "How to Read a Judicial Opinion: A Guide for New Law Students." (.pdf, 7 pages) The purpose of the essay is to help entering law students understand how to read a legal opinion. It covers what's in a legal opinion, common terms, what to look for, and the role of the case method.

  I'm happy to report that the essay will be published in a few months in my favorite legal journal, The Green Bag. Plus, it will be published under a Creative Commons license that will allow the essay to be distributed for non-commercial uses. That means that if you're a professor and you want to assign the essay or just make it available to your students, please feel free to do so.
BruceM (mail) (www):
Orin, one thing I don't see mentioned, which I find is really important to understand before reading one's first legal opinion, is that these written opinions are solely the product of appeals. The vast majority of cases are not appealed and as such, do not produce legal opinions. A lot of people think judicial opinions are the result of trials. No, a jury verdict (or bench verdict) is the result of a trial. A judicial opinion is the result of an appeal. This seems very common sense to lawyers, but it's actually a profound realization to one who knows nothing about how the process works. Law school is spent reading nothing but appellate opinions. State trial judges never write opinions, and while federal district judges occassionally do write opinions, they're never studied during law school nor put in casebooks.
8.13.2007 5:34am
b.:
prof.,

at page seven: "case *or* controversy" requirement, or "case *and* controversy"?

you can also google "case *in* controversy" and find no shortage of otherwise sound article iii references.
8.13.2007 7:46am
Duncan Frissell (mail):
It's sad that non readers can make it as far as law school in this era.

I started reading cases in high school. Wrote a paper on Worcester v. Georgia and Cherokee Nation v. Georgia as well as the Japanese Internment cases.

Any reader can easily figure out what the parts of a case report mean without assistance.

I knew Rex in the UK cases meant King ever since I figured out what the name Tyrannosaurus Rex meant.

Wouldn't it make more sense to require law students to be able to read before you admit them?
8.13.2007 8:08am
anonVCfan:
Wouldn't it make more sense to require law students to be able to read before you admit them?

Of course it would, but once they're in, lawprofs are supposed to "teach" them. To that end, this essay is a good idea.
8.13.2007 8:27am
James Grimmelmann (mail) (www):
Only non-commercial use? According to Michael Froomkin's Copyright Experiences wiki, the Green Bag allows authors to retain the copyright, which would allow you to use any Creative Commons license you choose. Since it was, presumably, your free choice, why did you choose NonCommercial? (And not, it appears, ShareAlike?) I'm always interested in the thought process that leads people to select the CC license they do.
8.13.2007 8:43am
A Northwestern Law Student:

[A]t page seven: "case *or* controversy" requirement, or "case *and* controversy"?

I would think "case or controversy" is clearer, because a suit need only be a case or a controversy to be justiciable; it need not be both at the same time. Art. III s 2, incidentally, does not use either phrase.
8.13.2007 9:04am
Tracy Johnson (www):
One of the legalese secrets I'd be interested in knowing is: "who won the case." As a non-lawyer, there are many times I just can't tell even after I'm finished reading them.
8.13.2007 9:10am
percuriam:
Orin,
I skimmed the article but did you mention the "standard of review"? I think that is pretty important and often times determinative of the outcome (but edited cases in law books leave this part out generally)
8.13.2007 11:24am
OrinKerr:
Thanks for the helpful comments, all. A few responses:

Bruce M, not every opinion is the product of an appeal. There are indeed some trial level opinions in casebooks. I do explain that most opinions students will read are appellate opinions, but that not all are.

Duncan Frissell, I remember having no idea what I was doing when I started reading cases as a 1L I guess this essay is for those remedial students such as I was who are smart enough to be okay lawyers someday but not in the mental category of the Duncan Frissells of the world.

James, I picked that one because there are some commercial uses that would annoy me. For example, imagine if someone wanted to sell the essay as a short booklet for law students. With a broader license, they would be free to sell the essay and keep the profits. I would rather that not happen, so I limited the use to noncommercial use such as free distribution in class.

percuriam, I didn't include standards of review precisely because many 1L casebooks leave these concepts out.
8.13.2007 11:44am
Dave N (mail):
Another quibbling comment. While you are, of course, quite correct that criminal cases are captioned United States v. Smith or People v. Smith or State v. Smith, in habeas corpus cases the fiction is that the Warden is being sued because of an unlawful confinement--and not the State directly. As a result, we have cases like Stickland v. Washington or Roe v. Flores-Ortega. These cases also discuss issues of criminal law and procedure.

As an aside, my Criminal Procedure professor once joked that if you wanted true immortaility, become the warden of a maximum security prison. Do a Westlaw search looking for cases with "Wainwright", "Schriro", or "Estelle" in the caption (in the AllFeds database) and you will see what I mean.
8.13.2007 12:23pm
OrinKerr:
Dave N,

In an early draft I went into detail on this: I covered habeas, writs of mandamus, and the like. But I decided to take it out as it was too confusing; most students don't care, and it's really not that important.
8.13.2007 12:27pm
Dave N (mail):
Orin:

I agree it is not particularly important for your essay. I was thinking of helpful sentences like "Sometimes cases discussing criminal issues have a caption with two last names listed as parties. Don't be too concerned about why this happens; just be aware that it does."
8.13.2007 12:42pm
Hattio (mail):
Best advice I got was from a Junior partner at the firm I summered at after my second year. He said if you can't figure it out from the book, go get the whole case from Westlaw or Lexis. I don't know why that hadn't occured to me before.
8.13.2007 3:29pm
r78:
If it's not too late for suggestions . . .

I agree with the commenter above - the section stating:

When 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

is a bit misleading. I would suggest:

When two people disagree and that disagreement leads to a civil (as opposed to criminal) lawsuit, if the lawsuit does not settle and goes to trial, there will be a jury verdict or, sometimes, a decision by the trial judge. If the losing party believes the verdict or decision is wrong, they may appeal and the appellate court, usually made up of 3 judges, will read briefs and listen to oral argument from the parties and then issue a written ruling, called 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 . . .

Finally, at the end when you discuss why we read opinions, you mention the historical reason and the client counseling reason. I think there is a third, more important reason to practicing attorneys: They will need to frame their arguments in motions in terms of precedent. To me, that is at least as important as being able to explain the law to clients.
8.13.2007 3:30pm
OrinKerr:
r78,

I thought about something like that. The problem is that the reader probably doesn't now yet what a "trial" is, what it means to "settle" a case, what a "verdict" is, what "oral argument" is, what an "appeal" is, or what "briefs" are. In fact, if you know what these terms mean, you probably know perfectly well what an opinion is. Given that, I decided to be very simple in the beginning to make sure I wouldn't lose the readers who need the essay the most.
8.13.2007 4:08pm
Sean21 (mail):
Thanks for the guide! It should prove to be a very helpful reference in these upcoming weeks. Should the last sentence in Know the Disposition read thought, instead of though?
8.13.2007 4:34pm
KeithK (mail):
Nice essay, clear and straight forward.


Duncan Frissell, I remember having no idea what I was doing when I started reading cases as a 1L I guess this essay is for those remedial students such as I was who are smart enough to be okay lawyers someday but not in the mental category of the Duncan Frissells of the world.


But you see Orin you didn't have the opportunity to be an avid reader of legal blogs like the Volokh Conspiracy when you were but an engineer aspiring to the study of law. Thanks to several years here (and at other legal blogs) I pretty much knew everything you laid out in the essay even though I am but an engineer myself.

Of course, maybe I'm just one of the Duncan Frissell's of the world. I'll leave that up to the reader to decide. :-P
8.13.2007 5:57pm
Lev:
two vagrant comments


The Caption: The first part of the case is the title of the case, known as the "caption."


In some areas of the country that is referred to as "the style of the case."


The Historical Reason:


While what you describe is kind of true, the true historical reason is that Harvard started doing it that way a long time ago, when there was a whole lot more common law and a whole lot less statutory law than there is now.
8.14.2007 1:02am
theobromophile (www):
Orin,

Not to confuse the issue more, but could you add in a short sentence about plurality opinions? You suggest their presence by:

Most of the opinions you read as a law student are "majority" opinions. 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 rationale 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 "dissenting opinions," and they appear after the majority opinion.

but omit plurarity opinions. You could say that some opinons have no clear majority (ex. 4-4-1) and that Civ Pro will teach the students about how to deal with them. A few old English cases require this type of head-counting as well.

On pg. 2, you discuss the importance (or lack thereof) of the procedural history, but, on page 5, discuss how students should look for the holding (which depends, of course, on the procedural history!). How about a note on pg. 2 that a student ought to be sure what happened at the lower court level so that the appellate decision will make sense?

That all said, I shall pass this along to my 1L advisees.
8.14.2007 2:49am