Issue Spotting: A Response to a Comment
Howard Law’s Matthew Bruckner has posed some challenging questions for me in the comments to the second post in this series. He writes:
To the point raised in your post though, even experienced lawyers benefit from headnotes on cases, reading treatises, learning to pick up on contextual clues, etc. And your casebook likely has a table of contents that situates the case you’re reading in class within a range of issues and sub-issues. I suppose that if you situate the case for the students, there is a risk that students will stop trying to pick up these contextual clues for themselves. But if you don’t, there is also a risk that students won’t ever appreciate why you read a case in the first instance, etc.
But that is just the beginning of an issue-spotting exercise, because as we progress through the semester, I also use issue-spotting as a mechanism of review. So, for example, when we get to affirmative defenses, we may have cases in which extrinsic evidence, the statute of frauds and interpretive issues also arise. In discussing damages, in addition to those issues, there might also be questions of affirmative defenses or even problems in formation. I use Socratic questioning to see if students can find those issues as well. And I really do aspire to treat the Socratic questions as means of reminding them, through step-by-step questioning, of things they knew in their past life (that is, three weeks ago, when the relevant doctrine was still stored in short-term memory). For me the Socratic method is, in this instance, both about teaching them the right questions to ask of a case and about reminding them that they can do this on their own.
Matthew Bruckner’s comment continues:
We definitely practice reading cases, extracting relevant facts and issues, understanding a case’ procedural history in my 1L contracts class. But by second semester, I’m giving them the issue flat out and then we spend the whole class working on legal analysis trying to understand why the court reached the conclusion that it did.
I never give up on issue spotting. It is not only relevant in the litigation context. But as I’m sure Professor Bruckner knows, it is also the best mechanism for helping transactional lawyers prevent the contract they are drafting from becoming Exhibit A to the complaint. Issue spotting is relevant whether the client is coming to you with a transaction gone wrong or a contemplated transaction. The challenge facing transactional attorneys is all the harder because they have to entertain ideas of what might go wrong and figure out the best way to insulate the client from liability if what might happen does happen.
I am near the end of teaching a bar prep course for the first time. I had my 3L students write about twenty practice bar exam essays, and at the end of the semester, I am still reminding them: IRAC, IRAC, IRAC.