Why lawyers read cases: law made in decisions, the courts and their ranks, the parts of an opinion and reading actively

In a common-law system, which includes England and Wales, most of the United States, India, Canada, Australia and many other countries, courts do more than apply law that someone else wrote. Over time their decisions build up a body of law of their own. When a court decides a dispute, it states a rule, explains why the rule applies and gives a result. Later courts treat that explanation as a reason to decide similar disputes in the same way. This habit is called precedent, and the Latin phrase stare decisis, ‘to stand by things decided’, is its usual name.

Precedent matters to a lawyer for a practical reason. Clients ask what will happen if they go to court, and the honest answer comes from the way courts have decided like disputes before. It matters to a student for another reason: a decision shows the law at work. A rule in a textbook says what the law is; a case shows how a judge chose between two reasonable readings of a rule, what facts tipped the balance, and what the judge thought would go wrong if the other side won.

Not every legal system works this way, and even in common-law systems statutes and constitutions now supply much of the law. Courts still interpret them, and the interpretation is found in decisions. Module 5 compares the style of civil-law judgments, and module 6 shows how to read a statute together with the cases that apply it. For now, keep one idea: a decision is a reasoned answer to a specific dispute, and what makes it useful later is the reasoning, not the result alone.

Decisions are published in law reports and, increasingly, on court and database websites. Each has a citation, a short code that tells you the parties’ names, the year, the series of reports and the page or paragraph number, so that anyone can find it. Many courts now give decisions a neutral citation that does not depend on a particular publisher. The form differs by country; learn the form your own courts use, because you will be asked to write it correctly.

Most courts fall into layers. A court of first instance, often called a trial court, hears the evidence, decides what happened and applies the law to it. One or more appellate courts sit above it. They do not usually hear witnesses again. They ask whether the court below made a mistake, most often a mistake about the law, and they write the opinions that fill casebooks. Almost every case you read in a law course is an appellate decision for this reason: the question was one of law, and the judges explained their answer.

The names change from place to place. In one country the highest court is called a supreme court, in another a court of cassation or a high court, and the same word may mean a trial court in one place and an appellate court in another. Do not rely on the label. Ask what this court was doing: finding facts, or reviewing a decision?

Binding and persuasive authority follow from this ranking. A decision is binding when a court is required to follow it: usually a decision of a higher court in the same system, on the same question. A decision is persuasive when a court may choose to follow it because the reasoning is good, such as a decision of a court in another state or country, a lower court or a court at the same level. A judge who is not bound will often give a persuasive decision real weight, especially from a respected court. A lawyer should always say which kind of authority she is citing.

A last point of reading. Because most opinions are written on appeal, you will meet procedural words you have not seen before: the court ‘affirms’, ‘reverses’, ‘remands’, ‘vacates’ or ‘dismisses’ the appeal. Module 2 explains them. Until then, remember that a decision always sits in a story of earlier decisions, and the court’s first duty is to say how the case got to it.

Opinions vary with the judge, the court and the country, but most contain the same elements. You will read faster once you know what to expect and in what order.

The headnote deserves a warning because students trust it. In many report series a short paragraph in front of the decision summarises it. It is written by an editor and may be wrong or incomplete. Courts have said so in plain terms. Use it as a map, read the opinion, and form your own view of what was decided. The same goes for the catchwords or keywords that sit at the top of a decision, and for the notes and questions a casebook editor adds after it.

Casebooks also edit opinions. Passages are cut with a row of dots or a note in brackets, and footnotes are often dropped. The editor has chosen what you will read, and that is also a reason to look at the full decision for any case you will rely on in an essay, a brief to a court or a client letter.

A case is not a novel. Read it in passes, each with its own job, and with questions in your head.

1. First pass: the shape. Read the caption, any headnote, the first and last paragraphs and the headings. Find out who is appealing, what the court decided and who won. Knowing the end makes the middle easier to follow, which is the reverse of a novel.
2. Second pass: the reading. Read from the start with a pencil. Mark the facts that seem to matter, the question, the rule the court states and each step of its reasoning. Write short notes in the margin in your own words.
3. Third pass: the use. Close the book and say aloud what the court decided, on what facts and why. Then write the brief (module 4). If you cannot say it aloud, you have not understood it yet.

Look up words. Law has its own vocabulary, and a word you skip may be the point of the case. Keep a legal dictionary open, and write the meaning in the margin. Do not highlight everything. A page that is yellow from top to bottom has told you nothing; a page with five marks tells you what you thought mattered. Keep the parties straight. Write who is who on the first page, because opinions switch between names, roles and labels such as appellant and respondent.

Finally, read slowly enough to understand and quickly enough to finish. A common pattern is to spend two hours on the first case of the evening and rush the rest. Decide beforehand how long each case deserves, begin with the one the class will discuss longest, and use the tool at the end of this module to plan the evening. The aim is not to have read every word; it is to be able to explain each case to someone else.