Reading Like a Lawyer

Reading Like a Lawyer

Reading Like a Lawyer Time-Saving Strategies for Reading Law Like an Expert Ruth Ann McKinney Carolina Academic Press Durham, North Carolina

Copyright 2005 Ruth Ann McKinney All Rights Reserved Library of Congress Cataloging-in-Publication Data McKinney, Ruth Ann, 1951 Reading like a lawyer : time-saving strategies for reading law like an expert / by Ruth Ann McKinney. p. cm. ISBN 1-59460-032-5 (alk. paper) 1. Law students United States Study guides. 2. Law Study and teaching United States. 3. Reading comprehension. I. Title. KF283.M398 2005 340'.071'173 dc22 2005003374 Carolina Academic Press 700 Kent Street Durham, NC 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.cap-press.com Printed in the United States of America

To my parents, who taught me to love reading; To the students, faculty, and staff of the University of North Carolina School of Law, where I learned to love reading law; and To Ray, who reminds me to play.

Contents Part I Acknowledgments Introduction Building a Strong Foundation Chapter 1 Reading in Law School 3 Chapter 2 Basic Briefing: Developing an Initial Strategy for Managing Cases 17 Chapter 3 Advanced Thinking Leads to Advanced Reading 33 Chapter 4 Expert Reading: A New Take on a Familiar Skill 51 Part II Mastering Reading in a Law School Casebook Chapter 5 Engage with Energy 59 Chapter 6 Monitor Your Reading and Read for the Main Idea 71 Chapter 7 Always (Always!) Read with a Clear Purpose 97 Chapter 8 Chapter 9 Get Oriented and Own Your Prior Knowledge and Experience 105 There s More to the Five Ws (Who,What,When, Where, and Why) Than Meets the Eye 133 Chapter 10 Evaluate What You re Reading Your Ideas Matter 153 Chapter 11 Review, Rephrase, Record 171 Chapter 12 Casebook Reading: A Summary 211 Part III Moving Beyond the Casebook Reading Law in the Real World Chapter 13 Reading Statutes 219 c on t en t s vii

Chapter 14 Reading Cases Outside of Casebooks 239 Chapter 15 Conclusion 263 Appendix A Test Your Reading Speed 267 Appendix B Getting in a Good Reading Groove 271 Appendix C Advanced Reading Checklist (Focus & Enjoy) 279 Appendix D Resources for Further Reading 283 viii c o n t en t s

Acknowledgments Writing this book has reminded me that writing, thinking, and reading are integrated, collaborative activities. Without the substantial help of many colleagues, students, friends, and family members, I would not h ave devel oped my initial ideas abo ut re ading and law into this tex t. I h ope all those who to u ch ed this proj ect know how gra teful I am for thei r thoughts and encouragement. At the risk of l e aving som eone important out, I d like to first thank the stu dents at the Un ivers i ty of North Ca rolina Sch ool of L aw for sharing their re ading ex peri en ces with me over many ye a rs and also for sharing concrete suggestions as I worked my way through this book. Specifically, I d like to thank Atinuke Akintola (Class of 2006), Tamika Jenkins ( Class of 2 0 0 5 ), and Jen n i fer Neu h a u s er (Class of 2005) for their concrete writing and content suggestions, and the members of my fall 2004 wri ting secti on as well as the en ti re LEAP class of 2007 for their input and en co u ra gem en t. I would like to espec i a lly ack n owl ed ge the irrep l ace a ble help of my Re s e a rch As s i s t a n t s, Ch rystal Lee (Class of 2 0 0 5 ) and Ed Eldred (Class of 2 0 0 6 ), for their back ground re s e a rch, ed i ti n g suggestions, and collaborative support. Finally, a heartfelt thanks to my Re s e a rch As s i s t a n t, Ca rm en Hoyme (Class of 2 0 0 5 ), for her initial res e a rch, t h o u gh tful ed i ting com m en t s, and unerring atten ti on to the many details involved in the final production of this book. One of the joys of teaching in a law school is having the privilege of maintaining on going con t act with high ly com petent alu m n i. I gra tef u lly acknowledge the significant assistance of our alumni, Mr. Jeff W. Hudson and Mr. Neal Ramee, who generously shared their areas of expertise with me as I thought through the content of this book. ack n owl e d gm e n t s ix

x ack n owl e d gm e n t s Numerous colleagues from the University of North Carolina School of Law helped identify illustrative cases and shared thoughts about the re ading proce s s, i n cluding Profe s s or Scott Ba ker, Profe s s or Jack Boger, Profe s s or Ken Bro u n, Profe s s or Ch a rles Daye, Profe s s or Maxine Ei ch n er, Professor Joe Kalo, Professor Eric Muller, and Visiting Professor Wilson Freyermuth. Professor Bobbi Boyd, Deputy Director of the Writing and Le a rning Re s o u rces Cen ter, gave inva lu a ble advi ce con cerning both content and ed i ti n g, and of fered an abu n d a n ce of m oral su pport as well. M s. Patty Frey, our program administrator, offered critical support services and creative ideas throughout the writing process. I am indebted to the Law School s Information Technology Department, which does a masterful job supporting the website that accompanies this book. Finally, I am particularly grateful for the consistent encouragement of Senior Ass oc i a te Dean and Profe s s or Gail B. Agrawal and Dean and Profe s s or Gene R. Nichol. Co lleagues out s i de of the law sch ool shared their thoughts and offered input from ac ross disciplines. D r. John Edgerly, D r. G l en Ma rti n, and Dr. Dan Darn ell of the Un ivers i ty of North Ca ro l i n a s of f i ce of Co u n s eling and Ps ych o l ogical Servi ce s, D r. Rod Dishman and Dr. Pa tri ck O Con n or of the Un ivers i ty of G eor gi a, and Dr. Amy Ro u n tree shared ideas and statistics from their respective professions about healthy student beh avi or. I am also gra teful to Dr. Dorie Even s en of Penn State Un i- vers i ty for her sign i ficant insights abo ut re ading and theories of adu l t edu c a ti on. I am indebted to my lon g - term fri en d, M s. Po lly Hochw a l t Wo l fe, for sharing her unders t a n d i n g, gl e a n ed from many ye a rs as a te ach er, of h ow the use of think-aloud re ading pro tocols can improve re ading skill s. M r. Frank Ke s s l er of the Un ivers i ty of North Ca ro l i n a s Le a rning Cen ter has given his time gen ero u s ly and ef fectively over many years to help me and to help our students develop an understanding of reading in the legal context. I am gra teful for the su pport and en co u ra gem ent of co ll e a g u e s t h ro u gh o ut the legal ac ademy, i n cluding Dr. Ma rty Peters of the Un i-

versity of Iowa College of Law, Professor Suzanne Rowe of the University of Oregon School of Law, Professor Ian Gallacher of Syracuse University College of Law, Ms. Cathaleen Roach of DePaul University Coll ege of L aw, Profe s s or Laurel Cu rrie Oates of the Seattle Un ivers i ty S ch ool of L aw, and Profe s s or Nancy A. Wa n derer of the Un ivers i ty of Maine Sch ool of L aw. Profe s s ors Elizabeth Fa jans and Ma ry R. Fa l k, t h ro u gh their fo u n d a ti onal work in this are a, h ave had an en ormous impact on my ideas about reading and law. I also offer my heartfelt thanks to the folks at Ca rolina Ac ademic Pre s s, e s pec i a lly Bob Con row and Ti m Co l ton for their en t hu s i a s m, en co u ra gem en t, and cre a tivi ty, and my pers onal gra ti tu de to our co lleagues at Th om s on - West Pu blishing Com p a ny for their generous copyright assistance. No wri ting proj ect can go forw a rd wi t h o ut the explicit su pport of family and friends, and I am especially grateful to my husband, Ray E. We s t, my paren t s, G eor ge and Lucy Mc Ki n n ey, my sister, D r. Ma ry S chwei t zer, and my bro t h er, D r. G eor ge Mc Ki n n ey III. I apprec i a te the a s s i s t a n ce of my adult of fs pri n g, Bret Gerbe, Lynda Gerbe, Matt We s t, and Ashlie We s t, who of fered their usual insights and en co u ra gem en t along the way. F i n a lly, I would like to thank Dr. Ma ry Lu n deber g, Profe s s or and Chair of the Department of Teacher Education at Michigan State University, whose seminal dissertation work in the area of case law reading and whose thoughtful sharing of her reading expertise motivated me to p u rsue my interest in re ading and my convi cti on that re ading well is the key to success in the study and practice of law. ack n owl e d gm e n t s xi

Introduction Excepti onal law stu den t s, and excepti onal law yers, a re ex pert re aders. From the first semester of law school, fledgling lawyers commonly read hu n d reds of p a ges of den s e, ch a ll en ging law in a wee k, and thousands of p a ges in a sem e s ter. L a ter, in practi ce, l aw yers re ad statute s, c a s e s, a n d ad m i n i s tra tive reg u l a ti ons every day, decoding the words in the texts and re aching behind the words to the many po s s i ble meanings that could be attributed to the law they re reading. L aw stu dents and law yers who re ad law well are get ting som et h i n g f rom their re ading that is not shared by those who re ad law less profic i en t ly. S t a rting with the first days of cl a s s, what law stu dents unders t a n d a bo ut the re ading process itsel f has a major impact on how they re ad t h eir assign m en t s. How they re ad their assign m ents determines wh a t they are able to get from those cases and statutes, what they are able to bring to class discussions and take from class discussion s, and ultim a tely what they are able to learn for ex a m s. How they re ad in law school, in turn, directs the path of their reading in the profession. Practicing law yers who have devel oped sound re ading practi ces in law sch oo l a pproach their analytical work with con fiden ce, s ec u re in the knowl ed ge that they can re ad the law powerf u lly, p a s s i on a tely, and acc u ra tely. Put succinctly, these lawyers read with conviction, knowing they are reading like an expert. The good news is that the abi l i ty to re ad law like an ex pert is not a gift that you re either born with or lack from birth. Students and practitioners have not been separated into the sheep and the goats prior to en tering law sch oo l, rel ega ted forever to green pastu res or rocky cl i f fs. Ra t h er, re ading law like an ex pert is a skill that can be acqu i red by everyi n t rodu c ti o n xiii

xiv i n t rodu c ti o n one with the curi o s i ty, determ i n a ti on, and flex i bi l i ty to ad a pt their pri or re ading skills to this new set ting and these skills can be acqu i red at any time. Once acquired and whenever acquired, the skill of reading law like an expert brings cascading rewards, enriching the reader s understanding of ex i s ting law and enhancing the re ader s abi l i ty to cre a te new paths to the law of the future. The purpose of this book is to te ach you what the ex perts alre ady k n ow: h ow to re ad law - rel a ted material as ef f i c i en t ly, ef fectively, a n d powerfully as possible. There are three sections to the book: Part I introduces you to background information you need to know a bo ut the stu dy and practi ce of l aw to get in the re ading ga m e. If yo u are already familiar with the structure of law school and the fundamentals of legal logic, you may choose to go directly to Part II. Part II focuses on casebook reading, the kind of reading that dominates the first years of law school. This second section introduces seven s pec i fic re ading stra tegi e s, c a ptu red in the ac ronym E.M.P. O. W. E. R., t h a t a re com m on to all ex pert re ad i n g, and ex p l ores how law stu dents can apply these strategies in the context of their casebook reading. Pa rt III of the book moves out s i de of the casebook con tex t, ex p l oring how students and practitioners can read statutes and unedited cases accurately, confidently, and efficiently. Th ere is a secti on of Appen d i ce s : Appendix A gives you a ch a n ce to test your baseline re ading speed ; Appendix B introdu ces a case-re ad i n g ch ecklist that beginning stu dents can use to devel op healthy caseboo k re ading habi t s ; Appendix C introdu ces an adva n ced case-re ading ch ecklist to help su ccessful stu dents speed up their re ading on ce they ve developed sound habi t s. Appendix D of fers a re ading list for those who wo u l d l i ke to ex p l ore the topic of l egal re ading in gre a ter dept h. Finally, there is a website at http://www.unc.edu/~ramckinn that accompanies this boo k. You wi ll find useful su pp l em en t a ry material on that web s i te, i n cluding some of the re s ponses I thought abo ut as I wro te the Practi ce Exercises at the end of e ach ch a pter. Com p a ring my re-

sponses to your own may help you gain confidence as you develop your legal reading skills. At their core, both law stu dy and law practi ce are depen dent on re adi n g. If you learn to re ad law ef fic i en t ly and ef fectively, you wi ll be well on your way to achieving excellence in the study and practice of law. It is my hope that what you learn from this book will help get you started on the right page. i n t ro du c ti o n xv