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Christensen, L M --- "Unmasking the Cognitive Mysteries of Case Analysis" [2006] LegEdDig 45; (2006) 14(Spec Ed) Legal Education Digest 22

Unmasking the Cognitive Mysteries of Case Analysis

L M Christensen

(2006) 14(Spec Ed) Legal Education Digest 22

U St T Minn L Sch, Legal Studies Research Paper No. 06–10, pp 1–28

Students understand that law school will involve a great deal of reading, studying, and an exam at the end of the semester. Therefore, even though law school is a new experience, incoming students begin with some ‘schemata’ (associations or expectations) to help them put the study of law in a rational context. Cognitive and educational psychologists often discuss the importance of having a ‘schema’ or framework that allows us to think about and categorise information. ‘A schema is a cluster of information that we hold in our mind about a subject. It informs our perceptions, our assumptions and our processing of information.’

Why do new law students struggle with what seems to be a simple task? The answer lies in the field of ‘cognition.’ If we think about ‘how’ law students learn, we can unmask the mysteries of why case analysis is so difficult for beginning students. Legal educators need to consider the current research on cognition and how it impacts their teaching of the most basic legal concepts, including case analysis. The purpose of this article is to provide a better understanding of how law students learn in the context of case analysis.

To understand how to read a case well requires knowledge of case law, jurisprudence, legal theory, and so forth. Text structure knowledge is the knowledge a reader possesses about the overall organisation of a text. The more a reader knows about the structure or organisation of a text the more smoothly comprehension can proceed. Research suggests that we can improve our students’ comprehension of legal texts if we teach them more directly about the structure of these texts. Quite simply, legal ‘experts’ or lawyers possess a great deal of information about a case even before they begin to read it. Someone who has gone through law school knows the language of the law, the procedures, how to make analogies, understands historical contexts — all of which give them a ‘schema’ from which to approach a problem, processing information in ways a novice cannot. Teaching case analysis through case briefing is one of these ‘tricks’ of the legal trade. Although law professors often give students an example or format for a case brief, we rarely explain why case briefing is important to a new law student’s success. Schemas are critical building blocks of the human cognitive process. ‘They allow humans to process or at least cope with the infinite amount of information in their environs.’

Schemas have powerful effects. ‘They help us organise, find meaning in, and make predictions about our environs including the actions and behaviors of others.’ In doing so, schemas ‘influence the encoding of new information, memory for old information, and inferences where information is missing’. Without experience in the law, beginning law students have no schemata and the processing of information about the new ‘topic’ of law is inefficient and sometimes overwhelming. Students first must develop substantive schemata. It is true that all beginning law students arrive with some schemata (contexts) based on their past experience, i.e., movies, televisions shows, summer jobs, etc. These past schema are helpful. As beginning law students receive new information, they give it meaning according to how it fits into their existing schema. As they refine their understanding of new information, the students identify the connections between the concepts. This enables them to expand or modify existing schemata or create new ones. Further, there is a difference between how novices (beginning law students) and experts (law professors or practicing attorneys) process legal information. The fact that we read text as legal ‘experts’ impacts how we read the law and, therefore, how we teach the law. Beginning law students need to develop a schema for the legal system, the structure of the discourse, and the conventions of that discourse in order to analyse legal problems accurately and efficiently.

The case brief gives the beginning law student an initial schema so that novice readers can organise their thoughts when they read. Without that schema, a new legal reader has to confront each sentence, each paragraph, and each stylistic difference in every opinion without a framework to help them make sense of it. In order to handle and comprehend the large of amount of text required to be read in the first year of law school, beginning law students need a schema to dissect and understand the complexities of case analysis.

Placing the analytical components of legal opinions into the different elements of a case brief is a good start, but it is rarely enough for a beginning law student. Further, shortly after students become comfortable with the format of the case brief, they stop writing separate briefs altogether. Instead, they opt for the ‘highlighting’ technique. However, using the highlighter to simply move through the assigned reading does not accomplish what the novice legal reader needs at this point in their law school career. We need to remind students that effective case analysis requires more than simply highlighting the author’s language. One of the most important functions of a good case brief schema is to force students to consider their own thoughts and reactions to the case. Similarly, typing up a summary of a case after the student reads it does not promote effective case analysis. While typing up a summary does organise or ‘chunk’ information, a student does not maximise his understanding of the case.

The most effective way for law students to use case briefs to enhance their understanding of the law is to either write it out by hand or type it in a way that allows the student to be conscious of his or her own thinking. Not only does writing a case brief help a student’s understanding of the case, it is a way of ‘chunking’ information to free up working memory so the student can think about the main idea of a case (or group of cases). It is not an end in itself. We want students to think about the ‘chunks’ of information they have written in their briefs so they can analyse the case on their own and see how it fits into the context of the course. This is where a student’s learning truly occurs. In addition, this is a key facet of case analysis that both professors and beginning law students often misunderstand. Once clumped in a rational group, the same amount of information takes up less storage space in working memory, thus freeing more space in working memory for the challenging task of actually thinking about the material. The ability to recall more information is thus a function of the size and information content of the individual chunks.

As novice law students evolve into more expert legal readers, they too will be able to detect and remember patterns in cases that were largely invisible when they first began case reading. Case briefing is the beginning of a law student’s journey toward a fuller understanding of the nuances and flexibility of legal text. Accordingly, when law professors introduce case analysis to their students during the first semester of law school, professors must do more than simply provide an example of the case brief format. We need to teach law students ‘how’ to teach themselves. They should not read or brief cases passively, thinking only about the text in terms of what they will be asked to regurgitate in class. Students need to explore and evaluate the cases they read. Creative case analysis is one way to introduce the idea that law students have control over what they learn and how they learn. One of the initial hurdles a beginning law student faces when reading a judicial opinion is a lack of background knowledge. Knowing that law students need background information, professors must provide this information. Ideally, provide the background information before you assign the case. Introduce the new legal concepts. Preview the case with your students and its importance within the larger structure of the course. Highlight and define new terms.

Experts and novices also differ in the analytical strategies they use while reading legal text. We can teach case analysis by modeling how we read a case. The professor can ‘think aloud’ in front of the class. Professor Peter Dewitz provides an excellent template for a comprehensive case brief that asks students to answer the questions that legal experts pose instinctively. The questions under each heading provide the student with an opportunity to engage in more fruitful case analysis. Choose a case from your reading and ‘show’ your students how to read and analyse a legal case.

(1) Put the case in context: Examine the chapter and section title of your casebook; Examine the case citation

(2) Preview the opinion: Briefly skim the case

(3) Read the case: Pay attention to structure; Understand the legal proceeding; Picture the facts; Identify the issue; Find the result of the case and determine the rule of law applied by the courts

(4) Reread the case analytically: Notice and make sure you understand the legal terms; Distinguish relevant from irrelevant facts; Study the rationale; Synthesise and evaluate the case.

(5) Make notes: Summarise the case in your own words

When students use this formula, they begin to understand the many facets of case analysis. Further, when a law professor uses this format in front of the class, it is even more beneficial.

The research has shown that novices in a field show greater growth in learning when knowledge and strategies are directly taught rather than when students are encouraged to discover them on their own. If we work to make our cognitive processes more visible, we can enhance the learning of our students, eliminate some frustration, and perhaps enable all of our students to achieve more.

Case briefing is an effective tool for new law students to use in case analysis because the brief focuses their thinking and streamlines their reading. A good case brief can provide the new law student with a schema or framework for understanding the complexities of a judicial opinion. However, case briefing is not productive when it becomes an end in and unto itself, serving as a substitute for reading actively and creatively, or for thinking independently. As legal educators, we have the power to dramatically change how our students learn. By understanding the cognitive processes behind case analysis, we can unmask the cognitive mysteries of how we learn the law.


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