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Defendant contends that it was a “unilateral offer” which could be withdrawn at any time without notice.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.
Another student suggested the Procedural History, because it was about the trial. What tense is the Procedural History usually? Past tense. Hence, it’s probably not the Procedural History. Also, the students realized that the Procedural history focuses on procedure, not substance. Procedural History phrases are generally in the category of courts ordering and granting or parties making motions. Not contending. When a defendant contends something, they are putting forth the substance of their argument.
Another student suggested the Holding. Why not the Holding? Because the Holding gives the court’s opinion, not the defendant’s opinion, another student correctly pointed out.
That left the Reasoning/Analysis/Discussion section. This, I explained, is where the he said/she said statements fit in.
Native English speaking JD students generally don’t require this level of analysis and detail. They can often intuit the appropriate categories without having to think about why. But for non-native English speaking LLM students, these types of concrete language and grammar clues and strategies give them something they can hang their hat on, even in situations where they might not fully comprehend what they’re reading. And in turn, knowing how to categorize the statement–e.g., seeing past tense and knowing on that information alone that it’s likely to be Facts or Procedural History–may provide them with additional context that gives them a better shot at then inferring meaning.
This awareness also provides them with better tense awareness in their own writing. I can correct their tense in the briefs they submit to me over and over with no improvement. But when they can connect tense with purpose and function, they are more likely to improve in their own use of tense.
This also gives the students strategies for figuring out where they are in a case brief, and more importantly, in a court opinion. I like to give them an analogy based on a comment made to me many years ago by a friend in medical school. He noted that in images of the body in his textbook, all the internal parts of the body are neatly colored with clear lines. But when you cut open a body, it’s a lot of pink mush. I maintain that reading a court opinion often feels similar, especially to LLM students. A case brief looks neat and orderly. But when you look at the case, there’s no clear pattern or formula, and it’s often hard to distinguish one section from another.
However, there are some rules and clues and strategies related to word choice and grammar that you can hang a hat on that can help orient you–if you know what to look for. Conversely, awareness of these also contributes to better grammar and word choice in writing as well. The key is knowing what to look for and then helping students learn about and notice these clues as well.