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Another Dirty Little Secret: Briefing Cases is Overrated

John Boy Law Student spends one hour a night reading his cases for the next day, and three hours briefing them. He briefs every one start to finish in a beautiful Microsoft Word template he has made for every class. He closes the library every night, all semester long. “Good John,” his mother says. “What a serious boy,” says Dad. And every day John goes to class, full of enthusiasm. He thinks: “I’ll be ready if I get called on today, yes sir!” And sure enough, the one day in the semester he gets called on to explain a case, he is spot on. “How proud we all are of John.”

Trouble is, the Professor does not spend most of every class on the cases John has read. Instead, the focus is on some portion of the cases, or even only a detail. Or, the professor camps on a concept that he is uncovering from a synthesis of the group of cases John has read. The purpose of the class is to reveal the rule that appears from that soup.

The principles that emerge from a synthesis of case involving related subject matter are sometimes called the “black letter law.” And the professor—if he or she is doing the job—will get the black letter law for the day to the class one way or another. Sometimes its through the Socratic discussion with a student, but other times the professor will just lay it all out lecture style.

From the general group of cases the professor has focused on a specific point. So too, from the details of the cases, the Professor has synthesized a general point. At the end of the class each day, everyone has been sharply focused by the professor on what matters most.

So now what does John do with this information? Well, nothing, actually. Why? Because tonight John goes back to the library and prepares for class for the next day. There is no way John is going to be caught unprepared for class. He reads his cases for tomorrow and then briefs them closely as he always does. John sleeps well knowing he has done his best.

By now you can probably guess what I think of John Boy’s approach to daily study: it’s idiotic, it’s moronic. It is also an incredible waste of time.

The problem with John is that almost all his study is focused on the wrong things. He is faithful to the work, no doubt. He is to be commended for that. He can sit down for more than five minutes. Good for him. If someday he was going to be reciting facts of cases and their holdings his briefing might be the perfect preparation for such a test. But what exactly is he accomplishing towards his goal of preparing for actual law school exams?

Boil it all down, and John is spending four hours preparing to go to class, where he finds out what he should have been studying with those four hours. Then, after the professor tells him the key points he should have been studying, John goes home that night and spends the next four hours studying something else. Do you see the problem? If John continues this pattern all year, John will never study what he needs to understand. John is always—good law student that he is—studying stuff that in the end matters very little on an exam.

Now, this is a totally unorthodox way of thinking, I know, but consider for a moment whether a different approach would have made more sense for John. Let’s say John doesn’t study the first day. He goes to his classes and lucky guy that he is, he does not get called on. In each class he focuses on what the Professor is synthesizing from the cases that are being discussed, the “black letter.” He puts those items in his notes.

That night at the library, then, he spends his time studying the black letter law, i.e., the important concepts from class that he attended that day. Perhaps he reads a section in a hornbook on each of these concepts to enrich the professor’s explanation. He spends a half an hour on the black letter presented in each class, considering how it might apply in various situations, and how it might not in others.

Tell me, do you think that maybe his time in the library would be better spent that way after that first day of class than if he had spent three hours briefing the cases for the next day’s classes? You can bet your casebooks it would have been. And, as John continues to do this through the semester, he begins to understand how one important concept systematically connects to the whole in a way that actually prepares him for his exams.

I do not want to be misunderstood. You need to read your cases each day. I agree with the conventional wisdom that far. But where I disagree with the middle way is with briefing. I simply don’t see the point. Reading cases introduces you to the concepts that are important. It baptizes you in the language of our discipline as well. That is helpful. You need that to understand the professor.

But briefing cases is counterproductive. On the one hand, it misleads you into thinking that knowledge of the particulars of cases is useful knowledge, as though you are going to be tested on your pure knowledge of the details of those cases in some sort of cruel trivia game. And, more importantly, briefing cases soaks up all your time on a task that has almost no payoff at the time of your exam.

3 Comments

  1. Jimmy
    Posted July 5, 2011 at 6:33 am | Permalink

    How much notes should I make on each case? Do you recommend reading all the concurrences and dissents(which is a big ask)?

  2. Gary Young
    Posted July 5, 2011 at 9:39 am | Permalink

    Well, in the beginning — until you have your legs under you about prep for class — I would make enough notes about the case to give you the issue and the holding. But I don’t mean put together one of those long case briefs that we were all taught to do. I mean the absolute minimum — you ought to be able to identify the one or two sentences that immediately summarizes the point of the case. Write that down. That is really the only point you will need when you outline the class later. What is the point of the case? That is what you want to know.

  3. Gary Young
    Posted July 5, 2011 at 9:45 am | Permalink

    IF you are in Con Law and there is a need to understand the concurrences and dissents to count the votes and understand the ultimate holding of SCOTUS, then yes. Otherwise, NO. Leave them alone unless you have the 1 out of 100 professor that takes joy in focusing on what does not ultimately matter. And even then, my advice would be to ignore them as well, because concurrences and dissents don’t test well, and unless you are in Con Law, they almost never show up on a One L exam.

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