Learning caselaw?

Wednesday 2 September 2015, 8.24pm HKT


THIS is relevant only to some guys I know who are studying law, and this is just for the record.

Question is, how do we learn anything? There no real ‘trick’ to learning caselaw. The challenge of reading legal text, journal articles, cases and statutes can seem overwhelming in the beginning.

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THE BIGGEST FEAR

One of the biggest fears of law students worldwide is this:— Every single case will evaporate from memory come exam time.

london police stop and search 1984

(via Friends United)

The larger problem is actually getting them into our heads in the first place.

Some cases stick to the mind because of some striking or unusual facts:— the snail in ginger beer of Donoghue v. Stevenson (1892) comes to mind immediately.

Another is the complete farce of Adams v. Lindsell (1818), which gave us the ‘postal acceptance rule.’

Yet the majority of cases are not striking or unusual. Indeed, they are BORING as hell. How does one recall 20 or 30 cases for each exam question?

If knowing the legal principle behind the case is bad enough, how much more is it to remember the case names too?

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EVERYONE FORGETS

i dont remember asking anything wrs88ko

(via c4c)

I’m flattered that I do get asked stuff like this:—

What’s your best method or techniques for remembering cases? What are your ‘tricks of the trade’ There are too many cases. I can remember the well-emphasised cases from lectures and textbooks, but my memory fails on the other important ones.

LOL, I don’t know. I’ve forgotten tons of cases since I stopped being in the world of law.

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TIPS FROM EXPERIENCE

tips receipt

(via The Independent)

There are some ways that seem reasonably usable by my legal friends and myself over the years. They may or may not work for you:—

doorstop2

1. Leave your preconceived ideas at the front door

Self-explanatory, really, but I’ll still explain it. We can’t get a handle on the ultimate principle or meaning of the case unless and until we drop our pre-formed ideas about ‘justice,’ ‘fairness,’ etc, when we’re approaching the case. When we’re trying to study the case, we have to take it on its own terms. Simple as that.

Remark:—

I once got into a discussion about presumption of innocence and possible compensation for the criminal defendant if the prosecution went down the drain. The general truth is the law, the courts, the prosecution, etc, have no obligation to provide compensation for the defendant’s heartache and time experienced in a failed court action. The recompense is to mount a civil action against the prosecution for negligence, wrongful prosecution, etc. If we took the attitude that it’s unfair, vicious, inaccurate and inexcusable not to provide compensation, and it’s biased against the defendant, then very sorry it can’t be explained further.

(image above via c4c)

swordstick umbrella

2. Forget your lecturer’s words; actually engage the material

No, not saying you forget listening to your lecturer. Just listening to your lecturer without engaging the material is one of the weakest ways of storing facts for long-term recall.

(This is proven in many years of psychological studies: don’t ask me, I can’t remember them anymore).

We’re not thoroughly understanding the stuff if we’re just from repeating the analysis of others. You need to ‘deep-process’ the stuff yourself. Don’t read your friends’ notes on the matter; make your own. Explain the concept to a friend like you were the lecturer. Do more practice questions (they exist for a reason).

(image above in my collection)

cant write

3. Relate everything back to your established knowledge

This is in fact the whole idea behind the existence of caselaw in the common-law system in the first place. Coupling new pieces of information (e.g. elements of a contract) to something you are quite familiar with in real life (buying stuff), then that increases your understanding and recall. Just memorising information decouples that link. You don’t have the imagery in the head about the situation.

In short, you visualise the legal situation you’re learning about. You relate the case names back to things or people you know.

(image above via mauradat)

Read this and the earth spins

4. Less is more — all readings are optional

This should be the default way. You don’t have to read the whole thing. Life is too short for that. Search for the case summary on Westlaw or Wikipedia so that you have a general roadmap first. Legal research is more like Ctrl+F, to be honest. Search the material for keywords and you’ll be done in minutes.

Most important cases are old cases, and if you’re not high in English proficiency or reading competence, you’re going to get lost with the language. So a preliminary idea gets your bearings in order.

In exams, we’re not expected to delve into the finer points of the judge’s reasoning. A simple legal principle is enough for most practical situations. Why waste time learning what you already know? Sometimes less really is more.

Remark:—

However, I always recommend reading the whole case (but at high speed!) if there is time so we can actually have a general sense of what the report of the case is like.

Remark 2:—

Having remarked the above, I also think every single case in the whole world should come with the additional citation “1 TL;DR 86″ — the “Too Long; Don’t Read” law reports. Chances are, after reading 130 pages, you’ll be none the wiser — and frustrated at having wasted hours of reading a case you still didn’t understand.

(image above via imgur)

demotiv isolation

5. Don’t view anything in isolation

This contradicts point 1 above, but not really. Even if we have a good strategy for remembering cases, we can’t view anything in isolation (like many things in law). We need to go back to point 2 — how each case related to each other too.

Plan out the cases that you might have to use for different kinds of questions or problems. Get used to thinking like this.

(image above via eBaum’s World)

recycle bin

6. Over bloody citation

I’ll just leave you with a judge’s obiter dictum from a recent case:—

One of the curses of the common law method in the 21st century is unlimited accessibility to authorities, reported and unreported, and apparently unlimited resources for copying them. (See the Practice Direction on Citation of Authorities [2001] 1 WLR 194.) On the other hand, one of the blessings is the availability of up to date and authoritative textbooks on almost every relevant subject, in which the material cases have been sorted out and digested. For my part, at least where I am concerned with common law rather than statute, I find it most helpful to start by looking for a succinct statement of the relevant principle: either in a recent binding decision of the higher courts, if there is one; or, if not, in a leading textbook (or, where available, a Law Commission report). Of course, that is only the starting point. Authorities may be needed to qualify, expand, or merely illustrate the basic principle. However, it is important to be clear for which of those purposes any case is being advanced. Furthermore, where the purpose is to qualify or expand, it is not enough simply to cite an authority, without being able to articulate with reasonable precision the proposition which it is said to support.”

Lord Justice Carnwath, Deutsche Bank AG v. Highland Crusader Partners LP [2009] EWCA Civ 725; [2010] Bus LR 515, para 124

In a way, overcitation is made worse by over-reporting of cases. In my opinion, a much greater problem is the tendency to make unselective use of unreported cases, especially now that they are so easy to find and access online.

(image above via eHow)

Hypodermic needle wikimedia

7. Common sense

Don’t bother printing out full case reports (you’ll never read them). Buy law books secondhand (because they’re old cases anyway). Learn to ‘question-spot’ for exams (you don’t have to learn the whole syllabus). Sift through past papers to see which topics are likely to come up. We’ve been doing this since junior secondary school, please.

(image above via Wikimedia)

i dont remember asking anything wrs88ko

(via c4c)

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