Why shouldn't cases be briefed?

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A. Nony Mouse

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Re: Why shouldn't cases be briefed?

Post by A. Nony Mouse » Thu Sep 11, 2014 11:40 pm

Scotusnerd wrote:I had this problem my first year, but then I figured out how to fix it. I hate when professors burble about the case history, so I put a stop to it as soon as I can. Why? Because they're talking out of their asses and don't really know shit about how the case plays out.

Whenever I get a professor that wants to go off the deep end with procedural history, I start asking them harder questions about the disposition of the case, party cross appeals, and other such nonsense. Oftentimes (especially in the earlier confusing cases) the high courts mess up their procedures pretty badly, so it's fertile ground for calling a professor on their bullshit.

Since the douchebags only bother reading that one case, not the appeals below nor the procedural history after, they don't really know what's actually going on. When I ask these questions, I generally get a mumbling response that sounds vaguely like "well, it seems to be a local state procedural law" I have yet to find one who can answer these questions confidently.

I repeat this process with other cases until they figure out that they need to shut the hell up about procedural history.
Scotusnerd wrote:I ain't flipping out over anything. It just bothers me when professors try to bullshit. The professor in question was known for wanting to reenact the paper chase and had just cold-called a bunch of 3Ls before I started asking the questions. I got thanked for it afterwards. He was trying to be an asshat, so I was a bigger asshat back. And yes you're right in that it's generally an asshole thing to do, but the circumstances warranted it. But hey, if you still want to think I'm an asshole, go for it. OP wanted advice and I shared some experience. If you don't like it, deal with it.
So rather than this actually being some kind of general practice you employ regularly to take those hack profs down a peg, this is something you did once in one class? Cool.


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Re: Why shouldn't cases be briefed?

Post by NotMyRealName09 » Fri Sep 12, 2014 6:12 am

Scotusnerd wrote:Image

I'm a 3L. I momentarily forgot I was talking to hysterical 1Ls and thought I could share a war story. Let me break my alleged asshattery down for you so you can understand my viewpoint instead of shaking your fist at me.

For 2Ls/3Ls, procedural history is mostly boring and a waste of time. I don't care about whether a state court has collateral appeals that coincide with the normal appellate process or a separate post-conviction relief, or that they had to remand the case for further factual findings. I also don't care about concurrences/dissents from over 30 years ago. I can read. Exceptions to this policy include taking a class in an area you're unfamilliar with, such as the first time you deal with tax matters or bankruptcy. They also include classes on appellate law.

For 1Ls, procedural history is useful. Right now you should learn how to do it so you can sort out the crap from the good stuff. There's a lot going on in these cases, more than you realize. Any case you read is going to involve at least three discrete sets of rules: appellate rules, rules of evidence, and the substantive law. They may also include multiple levels of substantive law from differing jurisdictions with differing effects on the outcome. Your job as a law student is to figure out how to distinguish them from each other so you can pick out the parts of the case you need and effectively use them. And make no mistake, this is a tough skill to learn. It takes about a year and a bit of real world experience to start getting decent at it, and it will be horribly frustrating at first. Man up and learn it. It's the number one thing that separates lawyers from nonlawyers.

Oh, and just to be clear, there's a legitimate reason I hate professors burbling on about that besides what I outlined above. I've worked in appellate law. Your professors may be highly paid, but they are not appellate lawyers, and they don't know appellate law.* They're basically the equivalent of four-year-olds with crayons in a room full of art students. Appellate law has a lot of procedural aspects to it that don't fit this bright lines professors give you. Each type of appeal has a different manner for raising the claim that affects the eventual outcome, and at least two different bodies of law surrounding it. There is an entire field of landmines for unwary wanderers in appellate law. Professors goof these up a lot, and that bothers me because we're training to be lawyers, not theorists. If I goofed a procedural rule like some of my professors have done,** someone's life could have been destroyed.

Hopefully that'll makes some sense. Any questions?

*The professors that do teach appellate law will agree with me about this, as they've spent time in the field and know this stuff and how dangerous it is.
**And my bosses don't catch it, which happens more often than you'd guess.
It's called shepardizing. It's this amazing icon that, if needed, can trace procedural posture back to the first denial of a motion for a temporary injunction. But that shits irrelevant for teaching the rule that appears in headnote six. It's ok to make on-the-spot declarations of suddenly-realized procedural nuance while engaged in Socratic discourse with a professor, but Jesus Christ do you present as an asshole in the way you write. Your bosses catch that I bet, more often than you realize.

You know the difference between trial and appellate law? Limits of discretion and maliability of facts. More trial lawyers have procedurally or factually doomed their clients than appellate lawyers have rescued, ever. And I love appellate work.

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Post by BVest » Fri Sep 12, 2014 6:42 am

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