Christensen, L M --- "The Paradox of Legal Expertise: A Study of Experts and Novices Reading the Law" [2007] LegEdDig 30; (2007) 15(2) Legal Education Digest 33

The Paradox of Legal Expertise: A Study of Experts and Novices Reading the Law

L M Christensen

[2007] LegEdDig 30; (2007) 15(2) Legal Education Digest 33

U St Thom Legal Studies Research Paper No. 07–05, 2007, pp 1–29

Most of us are interested in how students learn and how we can make the learning process easier for both the student and the teacher. The major finding in expert-novice research is that ‘expertise consists mainly of the acquisition of a large repertoire of knowledge in schematic form.’ As the novice becomes the expert, the novice gains both knowledge and experience, and develops patterns or frameworks (called schemas) ‘to integrate and structure that knowledge more effectively.’ For those of us who have practiced law, we know instinctively that lawyers read differently than law students. Yet what is it that lawyers do differently?

This article adds to the research on legal reading by describing an empirical study on how experts read the law.

There have been only two empirical studies describing expert/novice reading in the legal domain. In 1987, Mary Lundeberg completed a study that examined the way in which experts and novices read judicial opinions. Lundeberg used 10 expert and 10 novice volunteers. The experts were 8 law professors and 2 attorneys who had practiced law or taught law for at least two years. The novices were 5 women and 5 men with at least a master’s degree in their various fields but they had not studied law.

Lundeberg found significant differences between the two groups. In particular, the expert and novice readers differed substantially in two categories: context and evaluation.

The experts were more likely than the novices to preview the opinion and to reread it analytically. Similarly, the experts were more likely to engage in synthesis within the case, i.e., to merge the facts, rules and the rationale. Lundeberg’s study concluded that experts and novices read the law differently.

In 1997, Oates published a study in which she analysed the reading strategies of first-year law students who were part of an alternative admissions program at a regional law school. The participants in Oates’ study included four law students and a law professor as the ‘expert’ legal reader.

Oates’ results suggested that those students who did better on their first-semester exams read differently than those who did not do as well. The data showed that those students who were more successful used more of the strategies adopted by expert legal readers than did the students with weaker performances. The expert, the law professor, used Lundeberg’s six strategies more frequently than the novices. The data also suggested another hypothesis: students who did better than their LSAT scores predicted may have exceeded expectations because they used strategies like those used by expert legal readers.

The study of experts in any field is difficult. Experts engage in a process automatically and likely ‘do not know how they know what they know.’ Lundeberg described this ‘loss of awareness’ phenomenon as the ‘paradox of expertise,’ which refers to the experts’ inability to describe a process in which they engage without conscious thought. Therefore, Lundeberg came to the conclusion that interviewing experts would not tell us as much as asking experts to engage in a task, observing them, and asking specific questions about what they are doing while they are doing it.

The participants in this study included 10 experts and 10 novices. The experts were 8 practicing attorneys and 2 judges who had previously practiced law. Between them, they averaged 16 years in public sector or private practice experience, with the overall range being between 3 and 36 years. The lawyers represented the following practice areas: (1) intellectual property; (2) appellate practice; (3) public defense; (4) general civil litigation; and (5) complex litigation. One of the judges had been a bankruptcy judge for more than 12 years; the other was a tax court judge with over 8 years of experience on the bench. The students were 10 law students in a private urban law school in the top 50 per cent of their law school class (after the first semester of law school). All of the students took the same classes during their first semester of law school. All of the study participants (expert and novice) volunteered for the study.

Because lawyers spend a significant amount of their time reading cases, I chose a single judicial opinion as the reading text for this study. The case, In Re Thonert, was a three page, per curiam decision by the Indiana Supreme Court. In the decision, the court reviewed a disciplinary proceeding against an attorney.

I gave each of the participants the following purpose for which to read: Read the following legal text assuming that you are a practicing attorney and that you are reading the opinion to prepare for a meeting with a client who has a case that is similar to the facts of the case you are reading.

The protocols and interviews were transcribed and each statement coded. For each statement a reader made, I used a code to describe the particular ‘move’ made by the reader at that point in the text, i.e., underlining, paraphrasing, evaluating, hypothesising, questioning, etc. I placed each of the reader’s moves into one of three larger categories: (1) problematising reading strategies; (2) default reading strategies; or (3) rhetorical reading strategies. Moves that fell within the problematising category were purposeful or ‘strategic.’ The participants actively engaged in the text and responded to the text by ‘drawing a tentative conclusion,’ ‘hypothesising,’ ‘planning,’ ‘synthesising’ or ‘predicting.’ I categorised these types of actions as problematising.

In contrast to problematising strategies, the second category was default strategies. Readers used default reading strategies when they moved through the text in a linear progression which included ‘paraphrasing’ or ‘underlining’ text. Default strategies also included ‘margin notes,’ ‘noting aspects of structure’ and ‘highlighting’ text. Default strategies were different from problematising strategies because of the unproblematic nature of the process. In other words, verbal responses in the default category were not ‘tied to explicit questions or hypotheses.’ Instead, the reader usually noted something about the structure of the case and/or paraphrased or recited the text.

The third category was rhetorical reading strategies. Moves were rhetorical when readers examined the text in an evaluative way or when readers moved outside the text ‘into the realm of [...] personal knowledge.’ In the present study, I categorised the following moves as rhetorical: ‘evaluating,’ ‘connecting with prior experience,’ ‘contextualising’ and ‘connecting with purpose.’

The last category was the ‘other’ category. Many of the readers spent some time commenting on their ‘typical processes,’ such as the following: ‘Usually, I just skip over the headnotes and go right to the opinion.’ These moves were placed in the ‘other’ category.

The percentage of time each group (expert and novice) spent using each reading strategy was then compared.

Significant differences existed between the expert and novice readers with regard to the percentage of time each group spent engaging in the various reading strategies. The experts as a group spent significantly more time engaging in rhetorical strategies and significantly less time engaging in default reading strategies as compared to the novices. The experts and novices spent a similar amount of time engaging in problematising strategies.

Specifically, the experts spent a mean time of 10.09 per cent of their time engaged in default reading strategies; 32.73 per cent of their time in problematising strategies, and 53.13 per cent in rhetorical strategies. In contrast, the novices spent 18.91 per cent of their time engaged in default reading strategies; 34.58 per cent of their time in problematising strategies, and 28.5 per cent of their time in rhetorical strategies.

In summary, the results of this study support the conclusion that expert readers do read differently than novice readers. Experts in the domain of law spend more time using rhetorical reading strategies, i.e., reading with a purpose, contextualising, and connecting with their prior experience with the law. Experts spend less time than novices using default strategies, i.e., marking the text, paraphrasing and highlighting the text. Both legal experts and successful law students use problematising reading strategies to a similar extent, including questioning the text, posing hypotheticals and working to resolve questions or problems.

In addition to the results described above, there were also qualitative patterns within the expert protocols which provide some insight into how legal experts read differently than novices.

After reviewing the protocols, I noted the following patterns about how legal experts read the judicial opinion: (1) the experts used the purpose of the reading to read more effectively and efficiently; (2) the experts used their prior experience to enhance their understanding of the case; (3) the experts situated themselves within the context of the case; (4) the experts evaluated the opinion; and (5) the experts read flexibly.

If we want our students to adopt the reading strategies of legal experts, we should encourage them to read with a purpose whenever possible. Consider giving your students the purpose of being an attorney or a judge when assigning a case for class. There is evidence that law students who read with a purpose do better in law school. Minimally, novices who read with a purpose read the facts more closely, are more engaged with the text, and may understand the case more accurately. Like legal experts, novices can use their connection to a purpose (something other than reading to prepare for class) to make their legal reading more effective.

In this study, background knowledge and experience appeared to help the experts place the case in a personal context thereby increasing the effectiveness of their reading. Without basic background knowledge, novice readers cannot comprehend legal text efficiently. Whereas the new reader struggles with new terms and definitions, legal experts use background knowledge to their benefit. Background knowledge ‘acts as a screen or filter’ for what the expert reads.

As a law professor, you can provide your students with helpful background information about any case you may be introducing for the first time. What is the opinion’s social and political context? What is the case’s significance within that particular section of the casebook? You can give your students the knowledge and experience you already have to help them read like legal experts.

Novices can benefit from the simple reminder to preview the opinion before they begin to read. We want our students to note the context of the case. Was the case brought in state or federal court? Is the decision published or unpublished? The type of court, the date of the decision, and the particular judge may affect the weight of the opinion’s authority, the credibility of the decision or the quality of the writing. Expert readers use these details to situate the case in a legal context. Using the context of the case enhances the effectiveness and efficiency of a legal expert’s reading.

Expert readers evaluate what they read. They don’t assume the author is an authority whose written contributions are beyond reach. Rather, to ‘make meaning’ of text, expert readers make judgments about the content of what they’re reading as they read, learning from the author but also forming opinions about the content, style, validity, and power of what they are reading.

Novices can benefit from adopting the reading strategy of evaluation. Although many novices may want to automatically agree with the result of the case, we want our students to go further into the text. Like experts, we want novices to assume the role of a judge and assess the credibility of the parties and their arguments. We want students to do more than simply gather the information they need to complete their case briefs. Using the strategy of ‘evaluating’ brings the novice readers one step closer to reading like legal experts.

Experts appear to develop their own way of approaching or organising the information they read. ‘To be an expert in a field, it is not enough to possess a large body of factual information; an organisational system with structure and procedural knowledge is necessary to apply the relevant factual information to the problem to be solved.’ In essence, experts have a cataloguing system for their knowledge which they use to read more efficiently and effectively.

Without a question, the legal experts in this study possessed more factual and background knowledge about the law than the novice readers. But the experts also appeared to read flexibly which helped them move through text quickly while comprehending more along the way.

If our goal as legal educators is to prepare our students to practice law, we want to teach them the reading strategies used by legal experts. Remind students that expertise is made and not born. Expertise is something gained by practice and repetition. As students read more cases, they will gain important structural and textual knowledge that will enhance their legal reading.

Finally, consider that motivation may be the most important factor in the development of expertise. In the legal academy, we often assume that innate intelligence counts more than hard work or effortful study. Yet consider how one becomes an expert. In any field, one gains expertise by work and repetition. Most of us strive to be experts in our field. Yet the distance between novice and expert, although seemingly great at times, is surmountable. The legal expert reads differently than the legal novice. But we can teach students the way in which a legal expert reads the law. The earlier they achieve these skills, the better for the individual students and the better for the legal profession as a whole.