On Teaching From Badly Written Cases

[Occasionally I resurrect a draft blog post that somehow never made it to publication when I first wrote it. This is one of them.]

C.E. Petit, he of Scrivner's Error, pens (?) a rant about the poor state of legal writing amidst law graduates:

Yet another set of law school deans wrings its collective hands over law schools' failure to teach writing skills sufficient for lawyers to survive in practice. The problem is that it really is the deans' fault…

Among his targets, Mr. Petit would blame the judiciary, for writing so poorly, and the legal academy for inflicting generations of judicial butchery of the English language upon the poor unsuspecting 1Ls, 2Ls, and 3Ls.

While admitting there is a legal writing problem, as a law professor engaged, so it seems, in corrupting the keyboards of the young, I would like to plead justification (necessity).

Mr. Petit proffers a solution to the bad-legal-writing problem:

Perhaps most important of all, the deans need to trash virtually every casebook currently in use. The biggest problem with legal writing is that law students see mostly examples of bad (or worse) legal writing in the bulk of their classwork, particularly in the common law courses. In Contracts, students study Sherwood v. Walker exhaustively, and still can't figure out what the holding is because the judge couldn't bloody write (even by nineteenth century standards in Michigan); in Property, even the casebooks try (ineptly, with one exception) to make head or tail of the actual ruling in Shelley's Case; in Torts, the string of double negatives (which can be helpful rhetorical devices when used sparingly, but not in a string) in the leading cases on product/strict liability causes more confusion than anything in the discussion over comparative/contributory negligence; and in Criminal Law, just try reading M'Naghten's Case. More casebooks need to follow the path that Professor LaFave did in Criminal Procedure: Clear, concise summaries, supplemented by extended quotations where helpful… and that California's Justice Mosk did in establishing the concept of comparative negligence by writing more simply and more clearly than did the advocates of the contributory negligence system.

I think this is mostly wrong. There is real value in teaching from real cases, without potted summaries, even (especially?) the badly written ones. This is the reality of law practice: Judges often write badly. (I have said this for years: see my Legal Writing Tips.) Lawyers need to know how to decipher bad judicial prose. Meaning-extraction (or even and especially meaning-creation) is an important legal skill we work hard to impart to our students. How will they learn whether to appeal a badly written case except by struggling with its ancestors?

In addition, students need to know the big cases. Even if they are badly written, that doesn't detract from the leading cases' importance. A student who knows her way around the original has an advantage over someone who just learned from a summary.

I agree that it is hard to first show students precedents — some eloquent and many ham-handed — tell them the cases matter, sometimes matter a great deal, and then in the next breath ask students not to write as badly as those very judges whose torturous prose we've force-fed them, but those are the cards lawyers are dealt. Those cases are real. They have authority. They must be confronted and dissected, even if that carries risk of their being emulated.

[Original draft, Sept. 2010]

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7 Responses to On Teaching From Badly Written Cases

  1. Chris says:

    I remember having some heated discussions with my LRW instructor at UM, an attorney with about 20 years of experience at the time. I had come to law school with degrees in journalism and creative writing, and absolutely resented the attempts by an attorney to force an entirely new “structure” on me. Aside from the sheer terribleness of the old cases that you mentioned, some of the other cardinal sins of legal writing are just infuriating.

    For one, the adherence to the by-now-ancient rule that one must put two spaces after every period. That rule was long ago abandoned by the APA and the MLA, yet many attorneys still insist on it. All it does is create pages with odd looking blank spots everywhere and add length to documents.

    Second, and much worse, is the sheer repetitiveness of legal writing. Whether reading an opinion, a brief or even some law review articles, one gets the sense that the writer is just playing a game – how many times can I say the same thing, only slightly differently?

    I won’t even attempt to address some of the ridiculous Blue Book technical and punctuation requirements (I might get physically ill thinking about them).

    Great post professor! Reminded me of my first time actually having a full-blown argument with an instructor/professor, who happened to be lawyer on top of it :)

  2. I am currently a 2L at Pace Law School, and I think I see the practical benefit of reading poorly-written judicial opinions, as well as judicial opinions in general. Although finding the holding in the opinion can resemble finding a needle in a haystack, judicial opinions offer great insight into how those judges approach problems and the reasoning they use to solve them. Through countless hours of reading judicial opinions, I believe that my ability to structure sound arguments has grown significantly.
    There is little excuse for poor, incoherent writing at the judicial level, but it exists, and as lawyers and future lawyers, we have to live with it. If the information you need is buried in a mess of prose, you cannot faithfully represent a client by not being able to find applicable law. Law schools have been trying to make their students more practice-ready, and sanitizing course readings would be a step in the wrong direction.
    I also swear never to double space after a period for as long as I live. We use computers, not typewriters.

  3. Vic says:

    What law school fails to teach future attorneys has little to do with understanding bad judicial prose. Once you start practice and get some experience, you discover that many JUDGES apparently can’t properly understand prior decisions either. That’s not the issue with new attorneys. The issue is that new attorneys are utterly bereft of the basic skills of being an actual lawyer. This is not helped by those firms which purposely lure in new attorneys to do only dirty work at high pay until they burn out in a couple of years and have to learn two years late.

    If law school wants to reform itself, it must start being a professional school in every sense of the word, and stop being little more than an academic exercise for people bucking to be future federal judges.

    • Practitioners always say stuff like that — and they’re always both right and wrong.

      They’re right that newly minted graduates are not fit for much in the trenches. They’re right that there are a lot of things it would be possible to do to reconfigure law school to fit graduates for the trench in which the practitioner finds himself/herself in. But they are (in the main) wrong that this would be a good idea for legal education. The problem is that if we optimize law school for what YOU do — and we could — it would not work at all well for what most lawyers do, because they don’t do the same thing as you.

      • Vic says:

        Yes, that is true. What’s good for litigating is not necessarily good for contract work.

        What I’d like to see is a point at which actual law is taught (as it is in a bar review class) so that while students are still in law school, everyone who didn’t manage to pick it up for themselves during their (for example) Torts class, could finally be TOLD the elements of various kinds of Torts. The case law method is valuable, but it can’t be the only thing. It should not be the student study group leaders outside of class (whatever they are called) that explain what a Tort actually is, while the professor is content to just keep asking confusing questions about [name you favorite confusing Torts case). I think a LOT more could be gotten from the case law method if students, who’ve never even seen a case before, had some idea what they were looking for.

        And I do think there would be some value in having some third year electives that were profession related. i.e. if you are planning to be a litigator, you might want to take X, or a contract lawyer, take Y. Maybe three or four very generalized practitioner classes. A potential solo practitioner is completely on his or her own when it comes to leaving law school with the ability to start a practice.

        • Just me says:

          eh…there is so much to being a lawyer that I cannot see any changes to law school short of instituting a medical school style residency or doubling the number of years of school that would prepare freshly minted lawyers to be solo practitioners. Heck, I was scared stiff of going solo after 3.5 years of churn and burn’em big(ish) law experience and another year in a two man law firm with at least my partner to fall back on.

          I used to complain more about the law school system, but now I see that law school is pretty well thought out for what it is. It is a broad brush basic preparation for “thinking like a lawyer,” not for actually being one. You learn to be a lawyer on your feet under the guidance of a seasoned mentor.

  4. MD says:

    Stambovsky v. Ackley is my favorite case to read just for the ghost related puns.

    S/he even got away with “Who you gonna call”.

    Not to incite controversy, but the famous Justice Cardozo’s writing makes me crazy… I have to constantly reread sentences and often miss completely miss the holdings (this is where case brief websites come in handy).

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