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Transcript 4.7 [4/1/8]
Prof.:
Does the court ever say- does the New Hampshire Supreme Court ever
say, “And then we know for a fact that Dr. McGee said, quote
[professor
writes quote on blackboard]
?” Does the court ever say that?
Student:
No.
Prof.:
No. What does the court say? How does the court characterize what the
doctor said? (.09 pause) What’s the best we can say about these
statements?
Student:
That there’s some likelihood that they had been spoken (.)
70
Similarity
Prof.:
Okay, that’s inferring from the fact that um we don’t have any
counterevidence, presented by the Supreme Court, but (). The court
says, specifically, something about these statements. The court doesn’t
say, “We know for a fact that these statements were made.” (.075 pause)
It’s a little less definitive than, “We know for a fact that-” (.10 pause)
Um, yes?
Student:
Um he says um, “There is evidence to the effect that the quoted
operation was performed on the plaintiff in ()--”
Prof.:
--Yes, several times, the
court says “There’s evidence to the effect,” or “Evidence was presented,”
or “There was evidence that.” We’re dealing with () appellate opinion,
which takes us back to the trial court. The trial court takes us back to
the witnesses’ documentary evidence, sometimes physical evidence.
(.065 pause) The facts as they actually happened and the facts as
reported in the appellate opinion, well, very often they’re two quite
different things.
The professor moves on to further discussion of how procedure affects the delinea-
tion of facts. Although the discourse structure here is somewhat different from that
in our earlier examples taken from a more strictly Socratic classroom, there is a very
similar focus on the role of procedure in shaping and limiting legal narratives and
epistemological validity. In both instances, we are dealing with classes early in the
semester; professors more commonly focus on these aspects when students are still
new to legal reading. As the semester moves on, these core underpinnings to the read-
ing of facts appear to become part of an understood background, mentioned if an
unusual wrinkle in the case—or a forgetful student—brings them back to the fore-
ground briefly.
59
Applying Law to Facts: Issues, Arguments,
Analogies, Holdings, Hypos
Transcript 4.8 [6/13/16]
Prof.:
All right, next.
Hamer v. Sidway
, we’re not done with that. What- where
is the consideration?
Student:
In that the nephew forebore, what he had a legal right to do. He didn’t
drink, he didn’t smoke, he // didn’t //
Prof.:
// Exactly // the consideration here was in the
detriment to the promisee.
[sequence followed by positive uptake, then by
further question as to what the benefit was to promisor]
Another key step in legal readings of cases is the application of general legal
categories to the particular facts involved in the case at hand. As we have seen, this
process has already begun implicitly whenever there is a recitation of facts, because
the very definition and selection of those facts is guided by legal categories and
issues. The backbone of legal doctrine comes more explicitly into view when stu-
dents are asked to match specific facts with relevant legal categories and to explain
the fit between them. In the excerpt above, the professor calls on the student for
Learning to Read Like a Lawyer
71
an explicit delineation of the facts in the case that would fit with the legal category
“consideration” (one of the requirements for contract formation).
This process may require excursions into other cases that the students have
read or into precedent cited by the court. These other cases provide analogical tem-
plates, because in them, the fit between specific fact and legal category has already
been established. Whether or not a legal claim can be established in the new case,
then, will depend in part on whether these facts are arguably similar to those in
previous cases where legal claims were upheld.
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