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Defendant contends that it was a “unilateral offer” which could be withdrawn at any time without notice.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

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

case-briefFacts: 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?


  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. Continue reading

Listening to Lefkowitz: Using recordings of actual lectures to help LLM students improve listening and note taking

law_17_460x305_1As I’ve mentioned in a previous post, the two best predictors of success for non-native English speakers in American graduate programs are reading comprehension and listening comprehension–both input-related. Speaking and writing ability (both output-related) often get a lot of the attention since it is through these that deficiencies can be noticed and evaluated. However, the reality is that it’s extremely difficult to speak and write well about a topic if it is not first well understood.

Between reading and listening, reading is the skill that is taught and practiced most explicitly. There are tons of materials to read. And it’s a static form, so it can be used at any speed, and it’s easy to analyze, deconstruct, look at each piece, look at patterns, etc.

Listening, on the other hand, is more elusive. Once you hear something, it goes away. And even if you have a recording, you can listen until you’re blue in the face and you still may not understand parts of what’s being said, especially given factors such as connected speech, homonyms, and variations in pronunciation. Also, similar to reading, listening is highly dependent on background knowledge. If you know something about a topic, you’re much more likely to be able to understand it as opposed to something new or unfamiliar.

One of the primary listening activities for law students is listening to lectures and class discussions coupled with taking notes. How are students supposed to practice this other than just sitting in class each time and hopefully understanding more each time? Is there any way to actually practice and prepare for the listening that’s done in lectures? Continue reading

Creative use of the law school as a resource

Friendly faces for sure. But also a great resource for building legal background knowledge and English language communication skills.

One of the great things about running and teaching the American Law: Discourse & Analysis (ALDA) Program is that it operates completely within St. John’s Law School. And working within the law school means access to resources that can be used creatively to enhance legal learning and also build important background knowledge in engaging ways while developing a strong sense of connection with the school.

Here are a few examples I’ve used. It would be great to hear of examples from other law schools.

The Issue of Questions


hercules and hydra“Professor, for question number one, I actually see two questions here!”  My student leans over my desk and frowns over his writing prompt, seemingly worried he is hallucinating.

Later, during an in-class critical thinking exercise, there is a kerfuffle about framing the issue presented: “Professor, the question on the paper asks whether the cyclist broke the park’s rule, but she [another student] says that the issue is whether her [hybrid] bicycle was a motor vehicle.  Which one of us is right?”

The object of this week’s lessons was supposed to be about using the facts: weeding out irrelevant information, and using relevant information in support of a legal conclusion. But the conversation has evolved into the issue of questions. They are grappling with the idea that one question can yield one or more sub-questions, and they wonder whether to choose one or harmonize both.  In return they get more questions from me: “How did you see that second question? Do you need to answer it to get an answer to the original question? How does your answer to that second question help you to answer the original question? OK, so now that you have an answer to the first question, and an answer to the second question, can you write a two-sentence conclusion that answers both? How about a one-sentence conclusion?”  Some chuckle, as though this is a game we’re playing. Others wrinkle their brows, looking very unsatisfied. I think this is a struggle worth having. Continue reading

Reading is not a skill: Helping LLM students comprehend law school texts


An ad published by the Great Minneapolis Surplus Store

The Challenge: Helping international students to better read and comprehend law school texts.

Solution #1: Recognize that successful reading is highly dependent on background information.

Take the sentence: “A-Rod hit into a 6-4-3 double-play to end the game.” If a baseball fan reads that, they know exactly what it means as well as what it implies. They can even picture Rodriguez’s head hung low as fans boo the highly paid star of the most famous baseball team who has been tainted by steroids allegations. If you’re an American non-baseball fan, perhaps you can figure out it’s about the final play by a well-known baseball player. And if you come from another country and have no exposure to baseball, then all you likely know is that some sort of game ended.

For all three people, grammar is not the issue. And vocabulary is only part of the issue, as a dictionary would only provide limited assistance in comprehending this sentence. The greatest impediment to understanding is “domain knowledge,” also known as background information.

For international students studying law in the U.S., Continue reading