20th September 2021
From time to time lawyers in the media (including social media) are asked for advice by those about to study law.
There is lots of good advice to be had – for the study and the practice of law is hard, and is with most hard endeavours there will be useful tips from those of us who have gone before.
For what it is worth, I have one piece of advice.
(This is not, of course, the only useful advice – but it is the only advice I have to give.)
And this one piece of advice is simple: read the cases.
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Reading a case can be hard.
Working out why a case was decided in one way – and not another way – is often not easy.
Working out the extent to which anything in a case is an authoritative proposition that can apply to other cases is hard.
Working out whether the [x + y =+ z] that led to a decision in a certain case would also apply when there is only [x + y but no z] is hard.
But to really understand law – at least the law of England and Wales – there is no good substitute for the slog.
And the reward from this slog is profound.
For once you know how a case was decided (and how it was not decided) you have that knowledge for yourself.
Nobody can take it from you.
And so you will have the intellectual tools to answer any essay or examination question.
The alternative is not to read the cases – to rely on, say, lecture notes or what textbooks (or ‘nutshell’ guides) tell you what that case says.
But to rely on such secondary (sometimes tertiary) sources is like directing somebody to a destination based on overhearing someone else’s directions, rather than actually knowing the way yourself.
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Of course: this is an ideal.
Sometimes limits to time or access to resources will mean that you cannot read the cases for yourself.
Sometimes you will have to rely on what somebody else is telling you what the case means and when it will apply.
Sometimes you cannot (reasonably) be expected to have read the relevant cases.
But you should be conscious that this is not as good as reading the cases for yourself.
And if you read the cases, you will engage differently with textbooks and lecture notes.
Rather than relying on such sources for what the cases say, they become more useful for understanding how cases hang together.
You may find you do not even need some textbooks at all.
You may find that you spot possible errors or misconceptions or oversights in textbooks.
You may even find you spot possible errors or misconceptions or oversights in the judgments themselves.
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Once you have gutted a case and mastered that case you are in at least the same position as any other lawyer with a view on that case.
A lawyer who has access to a case, and has the time to understand the case, and has taken that time to do so, will be the equal of any other lawyer on that case.
Knowing the case law can thereby be a great equalising – even democratic – force.
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Other lawyers will give you advice on how to study law – advice you may find more useful than the advice in this post.
Some lawyers will even disdain my advice – often because their previous educations allow them to wing exams confidently.
And some lawyers – me included – will say that the actual practice of law requires many other attributes than the ability and willingness to read a case.
But taking all these counterpoints at their highest, my advice for anyone about to study law remains simple.
Read the ******* cases.
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I did a Computer Science degree, and a Law Degree. And so I learned a key difference between the two:
Arguing with the Computer Science lecturer is bad (even when they are wrong).
Arguing with the Law lecturer is good (even when they are right).
And this advice might helpfully apply to journalists too!
In these straitened times, legally-literate journalists are increasingly thin on the ground.
One or two general news journalists assigned to cover a legal case might speed-read the judgment when it appears, but most will jump straight to the headline decision, and skip much of the argument – or just quote press releases, or the statements by the parties concerned. In the rush to get “the story” out, qualifiers and fine distinctions may get lost along the way.
Others will simply reproduce the “lead” decided by the first big media to publish (often news agencies, if the case is considered important enough). This in turn can determine – in the public mind – what the case is “about” and, in quite a crude form, what the judges are supposed to have said. With speed and guile, spin-doctors (and, indeed, the lawyers involved) can make use of these techniques to “tilt” the public perception of a big ruling quite effectively.
It’s a recipe for misunderstanding – or, more maliciously, misinformation. And serious media should do much better at countering all this.
Seasoned legal commentators such as yourself, Joshua Rozenberg and others can try to undo some of the damage but “the first rough draft of history” – even when it is so rough as to be woefully distorted – often sticks.
There are doubtless media-savvy lawyers and judges who know a few tricks to counter these tendencies – crisply-written (yet still accurate) summaries; giving experienced and trusted legal journalists an early peek at embargoed rulings; swift and robust rebuttal when inaccuracies begin to proliferate, and so on.
But there is plenty to be said about how legal rulings enter the public sphere – which, ultimately, can have a huge influence on their impact, whether on politics or public perceptions of the law.
This. Read the cases.
You could add, read the legislation. And any official guidance (albeit with a modicum of suspicion that the guidance will say what the officials think the law should be, rather than what it actually is; but at the very least you might hope the guidance will be followed by most of the officials most of the time).
But this is still a common law country. Read the cases. Not just a summary or a precis or the headnote: the whole thing, from beginning to end.
Read them, and understand them.
I almost added ‘statutes’ – as I agree with your sentiment – but I chose not to do so. Statute books are allowed in exams, and it is crucial you know your way around them. Perhaps in an extended version of this post I would have covered statutes as well.
It is one of the delights of the modern age that (most of the time) one no longer needs to delve along dusty bookshelves, but we have websites like https://www.bailii.org/ and https://www.legislation.gov.uk that make much of the original materials freely accessible to all.
Soundly put – and, in essence, echoing David Green’s message to peel back the veneer, and see what really lies beneath.
Misrepresentation and misunderstanding are self-motivating, in which the truth is lost. (Though, of course, this suits some very well!)
Useful to know but, if memory serves correctly, I think I have been involved in at least one case where it was decided by the court (and opposition counsel (UK)) NOT to ‘report’ the case/judgment.
Would you know if this means it would not appear in Bailii (or any other recording medium)?
As a non lawyer I find that full judgments can be a joy to read. They are the fruits of powerful intellects and are leagues ahead of the sometimes mangled law reports that appear in the national press.
Noted, but in order to get a truly educated and impartial perspective of a case, one needs to read and understand the full history of a case, and not just rely on a judgment.
In one case that I was involved with I discovered that the ‘judgement’ was written by the legal representative of the opposing party – with all the bias, half-truths (and in fact absolute lies) that one might expect from such, to ‘win’ the case.
This ‘judgement’ was then ‘rubber-stamped’ by the court.
Whilst I appealed, the judgement is the predominant document relied on by the appeal court. You can, therefore, guess the outcome. Serious injustice.
It is well to remember that not all ‘powerful intellects’ are designed for good.
Very interesting, thank you. And there I was thinking that judgments are written by the judges.
I made that mistake too (Propaganda -v- Reality)
It’s clearly a common misconception (some courts/some judges anyway)
In case, as you may be, being cynical and sarcastic, the telling sign was that the clown barrister put his name at the end of the ‘judgement’, as the author (Not looking so silly now, is it)
This applies to non-lawyers as well.
As a civil servant I once tried to make it easier to report road traffic accidents to the police. Summaries of the case law said reports have to be made in person, but with no explanation of why.
My government legal advisor could not explain the rationale and didn’t seem to care.
They also could not actually get hold of a copy of the case. In the end, I had to ask my judge father in law to photocopy it from chambers in the RCJ, demonstrating how inequitable access is to case law!
Anyway, sadly reading the case showed me my only option was to change primary legislation, far too big a task for a minor administrative improvement.
If we’re continuing the computer science theme from your previous post, the analogy here would be “Do not read comments, read only the code”.
I remember being very surprised when R v McNally was announced how many of those with law degrees completely missed the point, because they had a very limited ability to read and understand cases. And that was well before I was a law student.
My wife lectures in creative writing. Every year she is confronted by students who won’t read books.
Of course, in _my_ day students were all hard working…
There are even cases you should read just for fun – a lot of them American (Stambovsky v Ackley, Commonwealth v Gosselin) but not all – Smedleys v Breed is my personal favourite but some of Lord Denning’s are classics – Hinz v Berry in particular. Once you spot that judges may be trying to deliver humour as well as a ratio, you may find a certain dry wit is surprisingly widespread (and a useful aide-memoire). The same is true of the Law Commission. I once disgraced myself in a hushed library by guffawing over a footnote in a report.
David,
another (as always) balanced, rational and logical view; this time on the process of educating would-be lawyers.
The ‘grass-roots’, ‘think for yourself’ approach is a very valuable lesson.
The operation of the legal and judicial system is an (enforced) matter close to my heart. (I am UK based)
It would do well for all to remember that most (if not all) judges derive from the legal profession (UK).
(I would gladly submit a couple of cases, with which I was personally involved, as examples of how cases should NOT be dealt with, and which would give significant insight to those both learning their craft and others with a general interest in such matters.)
Knowing why, and how, something was wrong can sometimes be more enlightening than knowing why it was right.
And – to digress a little from the article – let us also not forget, that there are sometimes driving forces within both the legal and judicial professions (or at least some members of it), other than the pursuit of justice!
From experience, it is these (usually hidden) forces that stifle true justice.
“You may find that you spot possible errors or misconceptions or oversights in textbooks.”
Hear, hear! Very true. However, one minor caveat – do not overdo it. I read perhaps too widely; and generally did rather worse in undergrad law exams than those of my more cynical peers who only ever read the head notes – I spent too much time delving into dissenting judgments and obscure Commonwealth, US and EU etc cases. The snag is that undergrad exams do not reward discursion …