In the first chapter, I talked about rules, and in particular, about getting used to the way that lawyers use rules as the starting place for an argument. In passing, I mentioned “cases.” I said that arguments were presented in cases, but I didn't explain what a case was. However there are some things that need to be explained; let me start with the most obvious and simplistic facts. In law school, law students study from casebooks.
There are textbooks for most courses; these textbooks are useful; for example, they are a convenient reference when one starts a research project. However, we don’t usually deal with the textbooks in class; instead, in class we deal with casebooks, and the cases. Consequently, beginning law students must learn a new skill, how to read cases. The art, or skill, of reading a case well is less difficult than is the skill of reading well when one reads a poem or a mathematical proof. However, there are difficulties, many of which rest on the fact that the beginner lacks knowledge of many of the relevant background facts that those who are more experienced take for granted.
In the chapter on rules, I have already given some advice that is useful in reading cases, namely, that one must be alert to the possibility that there will be some unusual and perhaps even startling “moves” in the arguments that are presented. The judicial opinion goes along routinely, and then there are some surprises. The argument takes a turn that can surprise one who is new to the game. One must be alert for such twists and turns. In addition, there are some other things that are good to know: first, there is some useful information about courts; and second, there is some advice about technique. Picking up the relevant background information is rather easy, but learning good technique is harder.
§ 2.01 Background Information
One should start by asking: What is a case?, and how is it produced? The word “case” is a shorthand expression, and like all shorthand expressions it can be misleading.
When we refer to a “case,” we are speaking of the “opinion” written by the judges of an appellate court. (By the way, there are some interesting historical questions about the judicial practice of writing opinions. Why did it develop? How has it changed? What differences in this judicial practice can one discover? Are the differences important?)
This phrase, “appellate court,” is a technical phrase among lawyers. Like most technical phrases, it is meant to mark off a distinction, and in this case the distinction is the contrast between a trial court and an appellate court. When people go to court and fight for their rights, they go to a trial court. Appellate courts don't try cases; they hear appeals from the trial courts.
It follows that three things have to happen before we ever get an appellate opinion. First, someone must take a problem to court, and this problem, this dispute, must go all the way through the trial process. Second, the outcome of this trial process must be unsatisfactory to at least one of the participants in the trial, and this lack of satisfaction must be intense enough to lead to an appeal. And finally, the appellate court must take the case, decide it, and write an opinion. In other words, an appellate opinion is a rare event in the totality of legal events. Rare is perhaps not the best word, but I want to emphasize that appellate courts and their opinions are a small part of the world of the law. The rarity of the appellate opinion can be illustrated, although not explained, by statistics.
Of course, statistics won't show the number of times people do not take disputes to court, and so any statistical analysis must begin a few steps too late in the overall process of law. We have no statistics on the number of times people go to a lawyer’s office and are told not to sue.
Furthermore, we have no statistics on the number of times people have disputes and do not even consult with a lawyer. However, let us ignore these limitations and summarize the statistics that we do have, using the information for a recent year.
The statistics for the courts of the United States, the national or “federal” courts, are set forth in the Statistical Abstract of the U.S., which is published by the Bureau of the Census. In the 1999 volume, the most recent set of numbers cover the year 1997. (Tables 370, 371, and 372.) There are three levels of courts in the national system: the District Courts, which is the place one goes to start a lawsuit; the Courts of Appeals, which review the work of the District Courts; and the Supreme Court, which reviews the work of the Courts of Appeals and of the Supreme Courts of the several states. As one goes from the bottom to the top, the number of cases filed drops dramatically. Rounding off the numbers, one goes from 300,000 to 50,000 to 2,500. (Actually, the Supreme Court has a total of 7,500 cases filed, but about 5,000 of those are pauper cases, filed by prisoners who lack money, and these cases get only cursory review, so I have subtracted them from the total.) And if one looks at the numbers for the state systems, the numbers are even more dramatic. In other words, when we look at the cases decided by the United States Supreme Court, or by the Supreme Court of one of the States, we are looking at the tip of the iceberg.
Furthermore, the statistics understate what a rare event a Supreme Court case (national or state) really is. Consider the beginning of the whole process, the act of taking a problem, a dispute, to court. This is a rare event. People do not generally take their legal problems to court. (I know that we Americans have the reputation for being litigious, and compared to the rest of the world, we are. But even so, most disputes are not taken to court.) People sometimes fail to sue because they are afraid to sue, or they just do not want to cause trouble, or maybe they can’t afford to sue, or it could be that they are ignorant about what one needs to do to take a lawsuit to court. It may be unjust that this is so, but failing to sue because of inertia, poverty, or ignorance is common.
However, sometimes the failure to go to court is based on better reasons. For example, there may have been negotiation and compromise, and if the process of negotiation was fair and accompanied by good faith, then the out of court settlement is probably just.
At any rate, whatever the explanation, most legal disputes are not taken to a court of law.
Even if a dispute is taken to a court, it is not likely that it will be appealed. Once it gets to court, the parties may decide that it is in their interest to forgo the trial and settle. Alternatively, the judge may give a decision that is satisfactory. And of course, an appeal costs money, so even those who are unsatisfied may not appeal. In short, there are good reasons why a case may not be tried and then, even if it is tried, there may be good reasons why it is not appealed.
Finally, if it gets to the appellate court, we still may not get an opinion. The appellate judges may give the case a rather summary treatment: they may decide that the appeal is frivolous and so they might refuse to look at the case; or if they look at it, they may dispose of it by way of a simple order, and they may publish no more than two or three lines of explanation about what they are doing. Consequently, a full dress opinion, the sort of thing that one reads in casebooks, is not routine, even if the case gets to the appellate level. For example, consider the 2,500 cases in the United States Supreme Court; in only 100 of those will there be a full oral argument by counsel and formal written opinions by the court.
If I could use a metaphor, I would say that the appellate opinion stands to the world of the law as the autopsy report stands to the world of medicine. So long as one is alive and well, and indeed, even if one is sick, there is no autopsy report. If there is a death, it is still not likely that there will be an autopsy report; the percentage of deaths in which there is an autopsy report is rather small. And finally, even if we get an autopsy, it may be rather summary, and the report may be highly abbreviated.
Since the appellate opinion is such a small slice of the law, there is a sense in which the study of the appellate opinion is not the study of the law in any simple (or simplistic) sense of that phrase, “the study of law.” Instead, one uses the appellate opinion as a lens through which to look at the larger world of the law. Like any lens, it distorts, but sometimes it can focus events and put them into an interesting perspective. Looking through this lens, one can see lawyers and judges at work, although one can only see part of their work; furthermore, we can focus the lens on different slices of the part.
Consequently, different professors are able to use cases to focus on different aspects of the law. Some of us are interested in the logic of the ideas and concepts that are used in legal rhetoric. Others of us are interested in the political agenda of those who try to use the law for social purposes. Some of us are interested in the historical developments of the law; others in its current consequences. One can use the lens of the appellate opinion to focus on any of these things, and indeed, on many other things.
However, regardless of these differences, the case is the starting place, and there are difficulties that arise for most students because of certain features of an appellate opinion.
§ 2.02 The Fundamental Difficulty in Reading Opinions
The main problem that a beginner has arises from the following fact: the opinions were not written with the law student in mind. The opinions were written by judges for other judges, and for lawyers. For example, a lawyer will take a case on appeal and will argue that the judge made a mistake at trial. In the appellate opinion, this question of the alleged mistake will be the focus of the discussion, and the appellate judge is not going to spend very much time talking about the undisputed matters. However, law students routinely have trouble understanding the importance of the disputed question unless they also understand the background of undisputed questions of law that are not being discussed. The beginner is thrown into the world of the law, and quite often, into the deep end of the pool.
I can put the problem by way of a hyperbole: law students study law by reading opinions that are written on the assumption that they already know law. It's sort of like learning to ride a bicycle by jumping on and starting to ride. There is no way to start except by starting; a legal dictionary will help; it will also help if one can tolerate ambiguity and uncertainty. It may also help if one remembers that dealing with unstated assumptions is something that one has done rather often in life. In any conversation, people say things that make sense only against a background of common understandings, which are unstated. When one reads historical documents, such a speeches, letters, and diaries from time past, one often has to do a little digging to discover those things which are taken for granted and left unsaid, but which are also essential to understanding the words that have come down to us.
Perhaps I can illustrate this phenomenon by going back to the burglary example of Chapter One. Imagine a case in which the facts are clear that the defendant broke into the victim’s dwelling, in which the facts are also clear that the defendant stole something while in the dwelling, but in which the facts are not at all clear, indeed, highly ambiguous, about when the defendant informed the intent to steal. If the defendant were to be convicted, we can imagine an appeal in which the defendant's lawyer would argue that the jury's resolution of the ambiguity was unreasonable. Since I have discussed this hypothetical already, one who has read Chapter One will understand why the issue of timing, of when the intent was formed, is so crucial. But imagine someone coming to the appellate opinion without the background of reading Chapter One. Unless one knows that the actus reus and the mens rea must happen at the same time, then any discussion of when the defendant formed the intent to steal will seem bizarre (we do not normally discuss the timing of an intent), and yet the author-judge of the opinion might fail to spell out the assumption that compels a discussion of “the when” of an intent. To an insider, the assumption is obvious and need not be stated; to the beginner, who is an outsider scrambling to get in, the assumption will not be obvious.
There is no easy way to deal with unstated assumptions, and so I have no simplistic recommendation. Sometimes one must “wing it.” Sometimes the only thing to do is to just read the material and hope that all will become clear in class. A more promising strategy is to ask others. Perhaps a classmate knows the crucial unstated assumption; discussion of the material, both before and after class is quite likely to improve ones understanding. Perhaps a second or third year student will help. Furthermore, the instructor and the editors of the casebook may have recommended collateral reading; sometimes these materials have the missing key. Sometimes all that one needs to do is to re-read the case. Perhaps one read too quickly and did not notice a crucial detail. But by far the most important thing is not to panic. Everyone who has ever gone to law school has had the same problem; we all got through it. I can guarantee that the problem of unstated assumptions will become less severe as time passes.
§ 2.03 Breaking a Case into its Elements
Given the difficulty of teasing out the unstated assumptions, one needs a good technique for reading the cases and preparing for class. Since one is being thrown into the deep end of the pool, it is prudent to wear a “life preserver.” Thrashing about aimlessly is both tiring and dangerous; it is better to have a good strategy. As a general rule, the best strategy is “divide and conquer.” The big problem, as I have just stated, is to learn the assumptions that underlie legal argument, but attacking this problem head on can be frustrating; the problem is too big. So one should break the problem down into pieces that are small enough to be within one's grasp. The immediate problem is reading cases in order to prepare for class, and so one needs to break down the big problem into a series of smaller problems by having a disciplined technique for dissecting cases. The time honored technique is called “briefing a case;” one writes a short, that is, brief, outline of the salient features of the case. However, there is more than one way to brief a case; what follows is my advice, not everyone’s advice.
I recommend that one begin by focusing on the overall structure of the case; one should try to understand the overall picture of: (1) what has happened that has provoked someone to take this case to court; (2) what happened at the trial court that has provoked someone to appeal; (3) what did the higher court do with this case. (By the way, there are manuals that describe a more complicated way of briefing a case. I think that the customary advice of these standard manuals is too complicated for the beginner, and so I have an alternative proposal. However, caveat emptor: the reader should be warned that my advice is somewhat non-standard.)
In other words, one should understand the history of the case. There are three stages: (1) from the world to the lower court; (2) from the lower court to the higher court; (3) from the higher court to a disposition. One should break down the opinion and identify which parts of it talk about each of these three stages of the case.
When one writes up a brief, one should be brief; don't try to write down everything; write down the essence of the matter. My advice is to concentrate on the movement, the “from-to” of a move. (1) From the world to the court: not everything that has happened in the world, but the things that have happened that have led someone to go to court. (2) From lower to higher: not everything that the trial judge did, but the things done that are the basis for the appeal. (3) From higher to disposition: not everything that is said, but the core of it, the key move in the argument that yields the result.
§ 2.04 From the World to the Trial Court
Breaking the opinion down in the way that I have just suggested is not too hard. At first, it is confusing, but anything that is new will normally require some experience before one becomes handy at it. However, there is a subtlety here that is tricky, and experience alone will not make it easy. The tricky and difficult aspect of briefing a case is something that a beginner is not likely to appreciate, that is, the technical vocabulary. Since this is so important, I wish to emphasize its importance.
Consider the first stage, the movement from the world to the trial court. My advice, as set forth above, was that one should ask: what happened that led someone to take this case to court? The problem here is: how do we describe what happened? Do we describe the “what happened” using the ordinary colloquial vocabulary of the average speaker of English? Or do we use the technical vocabulary of the law? The best answer is – both. But the minimum answer is – use the technical vocabulary. Let me explain what is at stake in answering this question, since the answer that I have just given may seem rather confusing.
Suppose that a Good Guy says that a Bad Guy ran into him with an automobile. We can describe this event in many different ways. An automotive engineer would probably describe it rather differently than would the average person. However, if we take this case to court, it will be described in both the ordinary idiom of the witnesses and in the language of the law. For example, are we to say that the Bad Guy committed a crime, for which he may be fined or imprisoned? If so, then we must use the technical vocabulary of the criminal law. (What are the elements of the offense for which the Bad Guy has been charged? What sort of proof must the prosecutor introduce to prove these elements?) On the other hand, we might be saying that the Bad Guy committed a civil wrong for which he might have to pay damages, and then we would have to use the vocabulary of the law of torts. (The plaintiff’s lawyer must prove the elements of the claim? What are they?) In this lecture, I cannot even begin to introduce the complexity of this vocabulary. But I do wish to insist upon its importance.
Perhaps the metaphor of “translation” will be helpful. When things that happen in the world are taken into court, they are “translated” in several senses of that useful word. In the physical sense (“to translate” is “to carry across”), we take the witnesses and documents into the courtroom and present them to the judge and the jury. And in the linguistic sense, which is the sense that I wish to emphasize, we substitute legal language for colloquial language. Of course, people do speak colloquial English in courtrooms; indeed, on a percentage basis, colloquial phrases outnumber technical ones. However, those sentences that are strategically and tactically crucial are technical.
Recall that in the last lecture I discussed a hypothetical in which someone sawed the lock off a garage door, opened it, and walked in. When the case like this is presented in court, we say that the defendant is charged with “burglary” and that the act that I have just mentioned – sawing through the lock, etc. – is described as “breaking and entering.” In the context of this lecture, I would like to emphasize that one must master this technical vocabulary. We translate the events into the technical language of the criminal law.
There are two mistakes that a beginner can make: ignoring the technical jargon; becoming seduced by it. One can't ignore it. When cases are presented in court, lawyers do not present them as generalized grievances. The plaintiff in a civil case, and the prosecution in a criminal case, do not present a generalized argument that the defendant is a bad guy who has done bad things. Instead, specific legal claims are presented, and there is no way that one can assert a specific legal claim without using the language of the law.
However, one must not be seduced by this language; one must not fall into the trap of supposing that this legal jargon can be taken at face value. Consider again the phrase “breaking and entering.” It has some meanings in the law that will surprise you and that are completely unpredictable. The colloquial sense of the word “breaking” connotes some violence and force; however, when you study criminal law, you will find out that entries that seem quite peaceful, to the ordinary eye, are classified as a “breaking.” This phenomenon of unanticipated meanings is routine, but if you have studied a foreign language and considered problems of translation, it should not be a total surprise to you. Perfectly ordinary words, such as “carry” or “work,” can have radically different connotations in different languages.
I wish that I could say more about the process of “translation,” but I cannot do so unless I exceed the scope of an introduction. The techniques for translating ordinary grievances into legal claims are the core of the lawyer’s art, and indeed, the study of this art will be one of your principal tasks. However, I cannot anticipate here the full range of what you will study in law school, so let me move to the next step in briefing, about which it is possible to be more specific.
§ 2.05 From the Trial Court to the Appellate Court
The next stage in a case, the next step toward having an appellate opinion, is the trip from the lower court to the higher court, from the trial court to the appellate court. The historical explanation is simple enough; those who have lost think that they should have won, and they can afford to appeal. But there is a problem here. One can’t go to the appellate court and say that the trial judge was a jerk and an idiot, and then argue that the appellate court ought to go through the case all over again and do justice.
The simplest reason that one can't make such a straightforward plea is a reason of time and other resources. If the higher court judges were to make a practice of re-trying the cases that lower court judges have already tried, then we would need as many appellate judges as we have trial judges. But we have far fewer. Given the statistics, one can't ask the appellate courts to redo what has already been done, which is try the case. Instead, one does something that has a more limited scope; the lawyer who manages the appeal must point out some particular error that the trial judge has made. It is not enough to complain about the result generally. One must be particular; one must point to some particular act that the trial judge did in the course of the trial and say that this particular act was an error.
Of course, as a practical matter, the only reason for caring about an error is that one cares about the result. The result is what counts. However, the lawyer must “translate” the client’s displeasure with the result into more formal terms. Just as lawyers take generalized complaints about what happened in the world and translate the complaints into legal claims, so too lawyers take a generalized disappointment with the results in trials and translate them into assignments of error. To be sure, one must complain about the result; however, one does not complain about it directly. One complains about the result via an error. One tries to identify an error that has led to a bad result, i.e., to an error that has harmed the client.
This limitation, i.e., that one must specify a particular error, is not a logical requirement; it is a practical requirement. But at any rate, for a lawyer, it is a requirement, it is one of the facts of life. Since it is a requirement, the law student must read cases with this particular fact, this fact of life, in mind. As you read the case, ask yourself: what is the error about which the lawyer is complaining? As to this, I can offer specific advice, since the errors which one may allege, the so-called assignments of error, are limited in number. My advice is to think about the case in terms of the sequence of its drama; the progress of a case is highly stylized; the drama varies from case to case, but the sequence is always the same. Let me now describe this sequence; I shall describe a civil case with a jury, ignoring non-jury trials and criminal trials.
The case always starts with the plaintiff filing a pleading. At this point, the defendant can object. The defendant can say: “Why that’s the silliest piece of paper that I have ever seen; even if you believe everything in it, I still haven’t done anything wrong.” Of course, it will be said more formally, and some special jargon will be used; however, that is the gist of what might be said. At this point, the judge must rule; the judge must say whether this assertion is well founded. The judge can rule in favor of either side; whichever way the judge rules, someone will be unhappy, and it may be that this ruling about the pleadings is the error that is assigned on the appeal.
But then again, maybe it isn't; it may be that the next stage of the trial is the problem.
The next stage of the proceedings are called the “pre-trial.” We call everything that follows the pleadings but precedes the actual trial, the part where the witnesses get up and tell their story, by the name “pre-trial.” Lots of things happen at pre-trial; we decide what the issues are going to be, gather evidence, and so forth. Needless to say, something can go wrong at this stage, and the assignment of error may relate to this. For example, one might ask for the right to inspect an opponent’s records, and inspection might have been denied.
The next stage is the trial itself. At this point, each side will put forth its witnesses, its documents, and so forth. And of course, there can be lots of complaints about this process. As for the evidence that is let in, there will be arguments that it should have been kept out. As for the evidence that was kept out, it can be argued that it should have been let in.
After the evidence is in, we can get another round of assertions that the case should be ended. The defendant can say: “Well, now that you have seen the evidence, you can see that I was right; there is nothing to this case.” The plaintiff will argue in response to this that the case must go to the jury. Alternatively, the plaintiff might say: “The evidence is overwhelming; you ought to give me a victory right now.” And defendant can counter that it must go to the jury.
The trial judge will have to rule on these assertions, and the assignment of error might be about these rulings. In other words, the trial judge may rule that the case overwhelmingly favors either the plaintiff or the defendant, or alternatively, the judge may rule that the case should go to the jury. No matter which of these three possibilities is chosen, someone may assign it as error.
If the judge lets the case go to the jury, then there must be what we call “instructions.”
The judge has to tell the jury what the law is; we call this, giving instructions to the jury, or instructing the jury. By now, you know how my story goes; one can object to these instructions, claiming that they are erroneous.
All of this may sound very complicated, but it only sounds complicated because it is new.
Furthermore, it must seem as though a lawsuit is like a minefield; there are too many ways to make an error. True enough, but there is a redeeming fact; most errors don’t make any difference to the way that things come out, and one does not have to worry about harmless errors. (In your courses, you will learn the details about the “harmless error” principle.)
The most important thing for a law student to know is that the trial goes through its stages, and that lawyers who take cases to an appellate court are arguing that the trial judge made a mistake at one of these stages. Furthermore, I can simplify the possibilities: very few civil cases involve an appeal on the grounds of the pleadings or the pre-trial. Most appeals are about the trial itself.
As for the trial, one can ask three questions, and these will suffice for most of the cases in the casebooks. The judge made decisions about whether to admit or exclude evidence: Is the appeal on these evidentiary decisions? The judge made a decision about whether to let the case go to the jury: Is the appeal about this? The judge made decisions about how to instruct the jury: Is the appeal about these instructions?
If one breaks it down in this way — Was the right sort of evidence admitted?, Did the evidence create a jury question?, How should the jury be instructed? — then one will be able to sort through the technicalities of most cases. I am frank to admit that these technicalities sometimes get in the way of doing justice; one must read with this in mind. However, you must master these technicalities; the question is whether you master them, or let them master you.
§ 2.06 The Appellate Court Reaches a Result
The third stage of the process is the appellate court and its opinion. What did they do with the case? There is not much that they can do, so this is a fairly straightforward question; they can approve or disapprove of what was done. If they approve, then they can let stand what was done. If they disapprove, then they can send it back and tell the trial court to do something different.
Recall what was said about the comparison in numbers between trial judges and appellate judges: appellate judges do not re-try the case. When I made this point before, I was emphasizing the relevance of these statistics to the practice of appeals; I said then that one couldn't get the appellate judges to look at the whole case; one had to point out some error.
These statistics are still relevant, but now in a different context. Suppose one has convinced the appellate judges that an error was made. Will they step in and try to correct the error themselves? No. They will send it back to the trial judge and have that judge do something. For example, suppose that the appellate judges think that the case should have been dismissed. They will not dismiss it. They will send it back to the trial judge with instructions for the trial judge, telling that judge to dismiss the case.
Once one understands what the appellate judges have done, then the next task is understanding why they did it. They will give many reasons; sometimes they write long opinions that have all sorts of reasons. The student's job is to pick out which of these are most important. Of course, this may require that one “read between the lines.” Sometimes judges are reluctant to be frank about how they have decided a case. Another possibility is that the judges were willing to be frank, but that they have not expressed what they are doing with clarity. A good deal of class discussion will be about this problem of the “real” reason.
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