What part of the case brief?

The other day in class, working with another one of the Lefkowitz v. Great Minneapolis Surplus Store, Inc. case briefs, I again asked the students what tense they noticed in the Issue section. The students pointed to past tense in the two questions conveniently labeled (1) and (2). But then there was an additional sentence that followed on the next line:

Defendant contends that it was a “unilateral offer” which could be withdrawn at any time without notice.

 A student correctly pointed out that present tense was being used. But then I asked, “Where’s the question in this statement?” The students talked for a minute and quickly concluded that that statement really didn’t belong in the Issue section.

Next question: So where does it belong? And more importantly, how do you know?

One student suggested the Facts section since it seemed to be providing information about one of the parties to the case. So I then asked, what tense do we generally find in the Facts? Past tense, yet this is present.

Also: When do the facts happen? In the past, before the trial starts. What does “contend” mean? Argue. When do you argue? During the trial. Hence, this sentence should not be in the Facts section.

The legal “Issue” of present tense vs. past tense

Facts: Earlier today, I was teaching LLM students about reading and briefing cases. The previous week they had examined a number of case briefs and noticed various features and characteristics. For example, after reviewing the Facts section of several case briefs, they were able to confidently conclude that nearly all verbs were in the past tense. This will help them be cognizant of tense when they write the Facts sections of their own briefs, and it will also give them a grammar-based strategy to help them more successfully identify what the facts are and are not when they read a court opinion and attempt to write a case brief.

The previous week the students also came to notice characteristics of the Issue section of the briefs. They noticed that sometimes the Issue was written in present tense and sometimes in past tense.

Today I gave them two different case briefs of the well-known Contract law case Lefkowitz v. Great Minneapolis Surplus Store, Inc. and, among other tasks, asked them to analyze and compare the Issue section of the briefs. They quickly noticed that one was past and the other was in the present.

• Past: Did Defendant’s advertisement constitute an offer?
• Present: Under what circumstances does an advertisement for the sale of goods constitute an offer?

Issue:

1. How do you decide if the Issue section of your brief should be in present tense or past tense?
2. What are the implications in terms of meaning and in terms of grammar and syntax?

Rule: Past tense is used to indicate events that already happened and are completed. Present tense is used to indicate something that is generally or always true.

Introducing Writing Critique

One challenge of introducing international LL.M. students to legal writing is coaxing them to evaluate and comment on examples of English writing. This is a necessary practice in my writing course; students look at model answers for format and organization, notice cohesive devices and subject headings, and read examples of strong and weak analysis to compare to their own work. Students also conduct peer reviews, and revise and resubmit drafts of their work, incorporating comments from the professor and their
teaching assistants. So, students should start learning to critique, and to respond to critique, early in the course.

Critique is often daunting to international students, I think for two reasons. First, they do not have enough confidence in their English writing and reading skills to believe they can improve upon any example. Second, they  might feel uncomfortable finding fault with a classmate’s work, particularly if that classmate is a lawyer, judge, or other professional in their home country.

So a few weeks ago, I decided I’d have my new class start with me.  

Noticing: A subtle yet powerful tool for teaching LL.M. students

“Didja ever notice…?”

Just like with self-improvement, you can’t change something about yourself unless you first notice and are aware of it. The same is true for learning language skills as well as skills for law school.

Law school is notoriously sink-or-swim. And the teaching approach tends to be very top-down with students expected to intuitively know how to absorb, analyze, and synthesize large amounts of information and then figure out how to present it in ways that match professors’ expectations.

This carries over into teaching international students who need language support.
They are frequently asked to do things like read cases, write case briefs and IRAC memos, and understand and recognize plagiarism. We ask them to take notes, summarize, paraphrase. But we don’t always recognize that these are in many ways actually vaguely defined tasks.