The Case for Cases: A Guest Post by Kevin Lapp

I’ve previously stated myenthusiasm for the problem-based approach to teaching evidence. Embracing theuse of problems necessarily means that my students are not reading a lot ofcases. Indeed, the textbook that I use has only a few case excerpts that arelonger than a paragraph, and does not contain a single case that is reproducedin its entirety. Despite my preference for using problems, I recognize thatthere are drawbacks to not assigning cases for reading. In this post,therefore, I want to push back against myself a bit and make the case for usingjudicial opinions in Evidence class.

First, though, a fewbrief thoughts on what I like about problems. One distinct advantage is thatproblems are shorter than judicial opinions. Instead of procedural history, orfactual recitations, or statements of the governing law, problems get right towork, providing students with all the information that I want them to have inorder to focus their attention on the things I want them to focus on (andnothing more). It’s much cleaner to have a crafted problem that is oneparagraph long than it is to have a 2 page case that includes facts that aren’trelevant or important to the rule that the case discusses. Another advantage isthat I craft problems that allow me to change the facts very easily toillustrate the critical elements and nuances of a particular rule’sapplication. With cases, the fact set-up is often messier, and it can be harderto offer simple factual adjustments that might change the result or bring intoplay a particular foundational element of hearsay exception. Finally,presenting the students with problems, instead of cases, allows me to treat thematerial as a puzzle to be solved (as compared to judicial opinions, which arepuzzles already solved).

But there are downsidesto teaching by problems. Perhaps the biggest one I’ve identified thus far isthat my students do not get the benefit of reading a judge’s organized analysisof a particular legal issue. For all their warts (which themselves can beteaching tools), judicial opinions provide models for legal analysis. Theytypically start with the facts, outline the relevant law (including itsrationale), and then apply the specific words of the law and the underlying rationalesto the facts. It’s often exactly what I want my students to learn how to do.And while our class discussions about problems involve the students identifyingthe relevant rule and its elements, and then making arguments about the properapplication of the law to the facts, the result is rarely so clean. A studentmay jump right to the conclusion without explaining how she got there, astudent may begin with a justification (I think it should be kept out becauseit’s not reliable) without deciding whether it was even admissible, or astudent may fumble with the specifics of the applicable rule. There are, ofcourse, teaching techniques to deal with these situations, if not reduce theiroccurrence. But the legal analysis we conduct in class for a problem is rarelyas organized as a judicial opinion. 

And that’s the biggestadvantage I’m discovering to using judicial opinions. Having the students stateand apply the law without reading cases leaves students without models for goodlegal analysis. Because good legal reasoning (be it writing or oral advocacy)comes not just from practice with problems, but also from reading and hearinggood examples of legal analysis, one big benefit of assigning judicial opinionsis that the students are able to see an organized application of a given ruleto a set of facts. That this is done as the students are first getting to knowthe terms of a particular rule and its rationale has me convinced that readingcases is even more valuable.

There are plenty ofothers benefits to using cases, such as allowing me to introduce the studentsto individual judges (and thus remind them that the law is applied by humanswho had prior experiences before they came to the bench, and who decided othercases, etc., etc.) and giving them authority that they can reference throughoutthe semester.

The upshot of this isthat I’ve found myself slowly gathering case excerpts and assigning them assupplemental reading, not because I think the factual scenarios of the casesprovide particularly excellent starting points for learning the rules (I almostuniversally think that my problems are more finely tuned as instruments ofteaching the content of the law) but because I am recognizing the benefit thatmy students get from the example of the judge’s analysis.

One question that lingers– is it better to have the students read 3-4 short cases, or 1 case with aricher discussion/analysis? Would it be better to find cases that I can assignin their entirety, or are case excerpts acceptable? As always, your insightsare welcome.