The Language of Law School This page intentionally left blank

Transcript 4.4 [3/3/7]
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Prof.:
Wait, wait, was there a contract for a delivery of wheat? No, for sale of
wheat, right? A contract for the sale of wheat?
Student: Right.
Prof.:
Okay, and so what was the price of wheat?
Student: Well, the delivery to- (price at the) time of delivery (.)
Prof.:
When was the time of delivery?
Student: Specifically? Ah (.03 pause)
Similarly, in the next example, a professor stops the student’s recitation of facts to
probe his understanding of what might appear to be a small detail—one which a
nonlegal reader could skip over with impunity.
Transcript 4.5 [5/34/4]
Prof.:
Now, tell me about this mortgage that the defendant held on the
plaintiff’s land. What kind of a mortgage was it? In a minute we’ll try to
figure out what the mortgage is.
Mr. K.:
Um (.07 pause) What do you mean what kind of mortgage?
Prof.:
What does it tell us in the case? What is it called?
Mr. K.:
Um (.14 pause) Well, it said that uh (.) it was a third mortgage ().
Prof.:
What does that mean?
Mr. K.:
I have no idea.
Prof.:
Third mortgage. That means there must have been three mortgages,
right?
Mr. K.:
Right.
Prof.:
What’s a first mortgage and what’s a second mortgage; what’s a third
mortgage? You’re lucky, Mr. K., you haven’t yet had to have first, second,
and third mortgages. [[laughter]] You haven’t yet had to face the
problem. Someday you may. Maybe you won’t. Maybe you’ll become a
high-priced lawyer and this will never bother you. But there are folks out
there dealing with third mortgages. (You) probably will never see a third
mortgage, but this person strangely enough did. What’s a third mortgage?
Let’s- uh, let’s ask around a little bit.
Note that here, as in many of the classes, the professor uses humor to soften the
effects of this detailed questioning. Thus, although the exchange in many ways
mirrors that with which we opened this chapter, taken from Scott Turow’s vivid
(and horrific) account of Socratic teaching at Harvard Law School, the overall tone
here is somewhat different. There is a similar attention to detail. There is also a
parallel, quite strong suggestion to be gleaned from this line of questioning: that a
good legal reading of facts might entail some background investigation of perti-
nent legally relevant features. It is not good enough to simply gloss over or guess at

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Learning to Read Like a Lawyer
69
the meaning of key features of important facts. The message is delivered with
humor, and the professor moves quickly off the student when it becomes appar-
ent that he has bogged down. However, a very similar message about the require-
ments of a good legal reading is conveyed. And though he is not grilled mercilessly,
the student is for a moment caught in a Socratic spotlight without all of the neces-
sary equipment, with almost one hundred fellow first-year students looking on.
The general message is succinctly expressed by another professor, when advising a
student who was unable to answer this kind of detailed background factual ques-
tion: “Look it up, and do some thinking” (1/4/10).
At the same time as they focus in on very detailed exegetical discussion of some
facts, professors also pass lightly over others. This again retrains students’ vision,
teaching them to hover carefully over some quite particular details while painting
large parts of the story with a very broad brush.
Transcript 4.6 [3/3/3]
Prof.:
Hi. Um, can you start developing for us the arguments for the plaintiff
and the defendant. (.) Um, Ms. N.?
Ms. N.:
Um, that the plaintiff was a young, youthful man // with //
Prof.:
// great // the plaintiff
was a beautiful man (). [[class laughter]] Is that what you said?
The professor breaks in on the student’s attempt to tell the story of the case in a
traditional narrative frame, directing her away from details of the plaintiff’s ap-
pearance that are legally irrelevant, but that might be of great interest in a popular
telling of the story. Rather than focus on detailed descriptions of the characters in
the drama, the professor urges the student to skip to a discussion of the two pos-
sible legal approaches that might apply to the facts in this case: “Okay, all right, so
there’s a lot at stake in the choice of which branch of this rule to apply in this par-
ticular fact situation. And all I’m interested in, Ms. N., is what the arguments are,
um, for cost of completion, which is what the plaintiff wants in both cases, and
what the arguments are for diminution in value, which is what the defendant wants
in both cases, all right? I want the argument, okay?” (3/3/4).
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As they urge students to focus on some details while ignoring others, profes-
sors also underscore the peculiarly circumscribed epistemological status of the facts
in legal texts: