Torts Evening - Fall 2007
Professor Ralph Brill
Course Information
Course Information

 

PREPARING FOR CLASS

The first thing the student must do is read the cases and other materials assigned. But this is not an easy task. The law is a technical subject. It has a language all its own. It uses Latin phrases and Norman French phrases, and English in ways quite different than usual. You need a good legal dictionary with you.

Especially in the first year, cases must be read very slowly. Judges don't write for humble law students. Sometimes legal opinions are not well written and are obtuse. One must read closely to try to understand the meaning. Every word is important. One cannot read judicial opinions like one reads People Magazine. It takes about one hour for every 12 pages -- more like Shakespeare, (or Hustler or Playgirl. :)

The cases should be read with some questions in mind. One of the most important often is "Who were these guys?" That is, what were the parties' roles -- not just plaintiff and defendant, but buyer and seller, owner and trespasser, landlord and tenant. Quite often these labels will prove to be an important factor in the ultimate determination of the dispute.

And exactly what was in dispute? The cases in the book almost always are appellate decisions, and one party is claiming that the lower court committed some error -- in directing or not directing a verdict, in instructing the jury, in allowing certain evidence in, and, less often, in weighing the evidence. Exactly what was the claimed error committed by the lower court. Don't ignore the procedure. The place where the arguments of the parties cross is usually the question presented for the court to resolve, and the answer given is the holding of the case.

You should be critical in your reading. Don't accept everything just because it's in an opinion in the book. Was the judge's analysis sound? What ramifications can be envisioned from the decision for others in similar situations, or for society as a whole? What will be the impact upon industry? Does the case give sufficient weight to human rights and values? Will it serve as an effective deterrent? If there is a dissent, or concurring opinion, do you think it is better reasoned? What would you have argued if you had been counsel in the case?

The cases in each section of the casebook are usually related to one another in some fashion. The author may be trying to show an historical development of a doctrine .....e.g. privity as a requirement, to the courts' carving away at the requirement with exceptions, to the doctrine's complete abolition, to going all the way in the other direction and imposing strict liability, and then to the current restrictions. Or, the author may be breaking some larger doctrine down into component parts, with each case illustrating one of the components .... for example, in Torts, the battery cases, where each case or note illustrates one element of the prima facie case. Or the author may put cases together to enable the reader to get an exactness of the rule ... starting with a case that adopts a proposition of law, and later cases narrowing, or enlarging the principle, or extending it to new facts.

For example, many Property casebooks begin with Pierson v. Post, an old English case involving a dispute over the ownership of a fox. In Post, a hunter shot a wild fox, but before he could pick up the dead animal another hunter took it. The first hunter sued the second for possession. The highest court ruled that wild animals normally belong to no one; they are free in nature. They therefore belong to the first person to take possession, in this case the second hunter, as rude as he was for taking the fox mortally wounded by the first. ("possession is 9/10ths of the law.") In the next case in the book, the facts were virtually identical; a hunter, the owner of the property on which the fox was running, shot the fox; the second hunter took possession before the first could. However, the court distinguished Pierson v. Post because the plaintiff owned the property on which the second hunter was trespassing. The court agreed that ordinarily ownership of wild animals, free in nature (ferae naturae) belonged to the first to possess it, but said as between the two litigants the owner of the property on which the animal was running had a better right. The final case involved the owner of one plot of land suing the owner of the adjoining property. The second owner had drilled a slant well, which many feet under the ground had crossed the boundaries of the first owner's land to extract oil beneath the surface. The oil was in a large pool, under many different plots of land. Now, what did the fox cases have to do with this case? Well, the court applied the same principles. Oil is also a thing free in nature, (ferae naturae), and ordinarily would belong to the first to take possession of it, unless that person commits a trespass to do so. In this case, there was a trespass, even at the depth of one mile below the surface, so the oil belonged to the first owner.

Students will normally want to Brief the cases read and analyzed. A brief is a summary of the case, in student's own words.

It first should be made clear that law students are not required to brief cases. No one will ask you to turn in a set of briefs for grading or review. They are solely for the student's benefit.

There are several important reasons why you should do it:

(1) Preparing a brief, in your own words, makes you read and understand the case better. If you have to communicate to yourself what a case is about, and what the court held and why ... and you have to do it in your own words and not just by copying from the case .... that means you really have to understand it. There is a tendency for beginning students to just copy from the book; I always suggest that after you read the case, you explain it to yourself, orally, and then write it out, like you were explaining it to your mother..

(2) The mechanical act of writing out the brief helps some people remember it better and longer - "through the pen into the brain." Of course, you will probably be using a computer instead of a pen, but the same phenomenon is true; one usually will remember better what one has to physically write out, as opposed to just reading it, or just copying it with a scanner.

(3) Student may have three or four classes in the same day. It is pretty hard to remember all of the cases you have read for that day. Having an accurate and complete brief helps one refresh recollection of each case in class, when you or someone else is reciting on the case. Should you be called on to "recite" about a case, while you will not be able to simply read your brief, you can look at it to refresh your recollection and then orally explain it.

(4) An accurate and complete brief is an extremely valuable aid and time-saver, when you are reviewing. It is unlikely that you will be able to remember all the cases you've read, especially weeks or months later. If you have prepared a complete and accurate summary of each case, or if you have corrected any errors or omissions in your initial draft, you will not have to reread the cases later, when you are reviewing. The brief of the case should be sufficient to remind you of the important facts, the issues before the court, the court's holding, and its reasoning, plus any additional information elicited from the case or its discussion.