The Legal Writing
Institute
Eleventh Biennial Conference
July 22, 2004
In a Case, In a Book, They Will
Not Take a Second Look!
Critical Reading in the Legal Writing Classroom
Nova Southeastern University
Shepard Broad Law Center
I. What is Critical Reading?




Creating “meaning within the text”
Making analytical judgments about reading
Determine additional information needed
for informed understanding (not just
memorization) of written text
Relating written text to post-reading
exercises, both objective and subjective
II. Why Teach Critical Reading
in LRW?
Core Lawyering Skills:

Critical reading skills

Analytic, critical
thinking and problem
solving skills

Writing skills

Verbal communication
skills

Listening skills
Correlation to Student Performance
Correlation between poor critical reading skills and:
 Poor performance on legal writing assignments – critical
reading ability influences analytic, critical thinking,
problem solving, and writing skills

Poor performance on traditional multiple choice
questions

Poor performance on analytical examination questions
III. Critical Reading Process:
Four steps to read efficiently and proficiently
A.
Place material to be read into context.
•
•
B.
C.
D.
Determine why material is being read -What is the purpose of
the material within the class or subject being approached?
Use other parts of reading material to determine context (table
of contents, chapter headings, definitions for unknown words)
Skim material
Actively read material, taking notes, looking up words
and concepts for basic understanding
Complete post-reading exercise to confirm
understanding
IV. Classroom Strategies
Teaching students to read efficiently and proficiently
A.
Pre-reading Techniques: Context
1. Discuss the reason that the material exists, the
source and who created it
2. Discuss different ways information could
have been presented or is available to reader
3. Understand where reading materials fits
with course or subject matter objectives
4. Gather information to prepare for active reading
IV. Classroom Strategies
Teaching students to read efficiently and proficiently
B.
Reading Techniques: Skimming
1. Students skim material to get
overview/overall sense of material
2. Encourage multiple reviews of material at different depths
C.
Reading Techniques: Active Reading
1. Students read and annotate material
2. Focus on content and language of text
3. Students clarify unknown meanings with resources
4. Students annotate by underlining, questioning and outlining
material, including briefing
IV. Classroom Strategies
Teaching students to read efficiently and proficiently
D.
Post Reading Techniques
Reinforce understanding through objective
examination and subjective written exercises
a.
b.
c.
d.
Summarize
Evaluate
Synthesize
Hypothesize
Goal of critical reading is to make material
CLEAR
 Claims:

 Logic:

What are the claims and
issues?
Is presentation/organization
logical?
 Evidence:

Do facts support the
argument?
 Analysis:

Is analysis sound and based
on legal reasoning?

Are there counter-arguments
and counter-evidence?
 Rebuttal:
THE ZAX By Dr. Seuss
A. Place material to be read into
context.
A.
Goal of reading: Learning
critical reading techniques by
reading 1961 Dr. Seuss story
B. Skim passage to be read.
B.
Skim story
C. Actively read passage, taking
notes, looking up words and
concepts for basic
understanding.
C.
Define – What is a Zax?
D. Post-reading exercise.
D.
Objectively—what happened?
Subjectively—what if??????
What is “north going” and
“south going?”
Look for theme of story, key
facts, reason for outcome

Question:
Does the world stand still when Zax(es?) refuse to move
out of each other’s way?

Answer:
No. The world did not stand still when the Zax refused to
move.

Analysis: Rules

Facts:

Objective and Subjective Evaluation:
North going Zax travel north
South going Zax travel south
Zax will not move when asked
Zax will not step to the side east or west and will
stand in a spot for 59 years rather than move in a
different direction
Zax will not budge when path is obstructed
North going Zax and South going Zax came face to face
. Neither would move out of each other’s way so the
other could pass. A road was built over them
Objective: WHAT HAPPENED (here)
Subjective: What happens when the north
going Zax reaches the North Pole and the
south going Zax reaches the South Pole?
Dowdell v. Bloomquist
A. Place material to be read into context.
A.
Learning critical reading
techniques by reading case.
Complete remaining critical
reading steps in groups.
B. Skim passage to be read.
B.
Skim case.
C. Actively read passage, taking notes,
looking up words and concepts for
basic understanding.
C.
Define – unknown terms (such
as “private nuisance”) Annotate
key facts, rules, outcome. Case
briefing is also actively reading.
D. Post-reading exercise.
D.
Objective: Evaluate what
happened? (through objective
measures)
Subjective: Hypotheticals—
expository writing
Objective Post-Reading Exercise:
Dowdell
1. How did the appellate court treat the trial court’s version of the facts?
a. In making its decision, the appellate court did not use the trial judge’s version
of the facts because an appellate court always takes a new look at the facts and
determines the credibility of witnesses who testified.
b. In making its decision, the appellate court did not use the trial judge’s version of
the facts because there was proof that the trial court overlooked material evidence.
c. In making its decision, the appellate court used the trial judge’s version of the
facts because there was no proof that the trial judge misconceived or overlooked
evidence and the appellate court deferred to the trial judge’s determination of the
credibility of witnesses who testified.
d. In making its decision, the appellate court accepted the trial judge’s version of
the facts because an appellate court always accepts a trial judge’s factual findings.
Objective Post-Reading Exercise:
Dowdell
1.
How did the appellate court treat the trial court’s version of the facts?
a. In making its decision, the appellate court did not use the trial judge’s version of the
facts because an appellate court always takes a new look at the facts and determines the
credibility of witnesses who testified.
b. In making its decision, the appellate court did not use the trial judge’s version of the facts
because there was proof that the trial court overlooked material evidence.
c. In making its decision, the appellate court used the trial judge’s version of the facts
because there was no proof that the trial judge misconceived or overlooked evidence
and the appellate court deferred to the trial judge’s determination of the credibility of
witnesses who testified.
d. In making its decision, the appellate court accepted the trial judge’s version of the facts
because an appellate court always accepts a trial judge’s factual findings.
This question is procedural in nature and tests the student reader’s understanding
of the appellate court’s role as reviewer.
It provides a basis for an in-class discussion on the relationship between trial courts and appellate courts.
Objective Post-Reading Exercise:
Dowdell
2. What question was the appellate court asked to
decide?
a. Did the row of trees block the property
owner’s view of the ocean?
b. Could the row of trees constitute a “spite
fence” or structure?
c. Was the value of the property decreased by
the row of trees?
d. Was the property owner entitled to a zoning
variance to build a second story addition to his
home?
Objective Post-Reading Exercise:
Dowdell
2. What question was the appellate court asked to decide?
a.
Did the row of trees block the property owner’s view of the ocean?
b.
Could the row of trees constitute a “spite fence” or structure?
c.
Was the value of the property decreased by the row of trees?
d. Was the property owner entitled to a zoning variance to build a
second story addition to his home?
This question tests the student reader’s ability to
pick out the issue in the case.
Objective Post-Reading Exercise:
Dowdell
3. Which of the following is correct?
a. The appellate court disapproved of the outcome of the case at
the trial court level and disagreed with the trial court’s reasoning.
b. The appellate court disapproved of the outcome of the case at
the trial court level but agreed with the trial court’s reasoning.
c. The appellate court approved of the outcome of the case at
the trial court level but disagreed with the trial court’s reasoning.
d. The appellate court approved of the outcome of the case at the
trial court level and agreed with the trial court’s reasoning.
Objective Post-Reading Exercise:
Dowdell
3. Which of the following is correct?
a.
The appellate court disapproved of the outcome of the case at the trial court
level and disagreed with the trial court’s reasoning.
b. The appellate court disapproved of the outcome of the case at the trial court
level but agreed with the trial court’s reasoning.
c. The appellate court approved of the outcome of the case at the trial court level
but disagreed with the trial court’s reasoning.
d. The appellate court approved of the outcome of the case at the trial court
level and agreed with the trial court’s reasoning.
This question is procedural in nature and tests the student reader’s understanding of the result of
the case. It provides a basis for an in-class discussion about court decisions.
Objective Post-Reading Exercise:
Dowdell
4. Which of the following is not a true statement?
a.
The statutory definition of a lawful fence includes a hedge.
b. A fence that is maliciously erected to annoy an adjoining landowner
may be enjoined as a private nuisance under the “spite fence” statute even
though it only interferes with a property owner’s light and view.
c. A fence that is maliciously erected to annoy an adjoining landowner
will not be enjoined as a private nuisance under the “spite fence” statute if it
is erected in part for a useful purpose.
d. A four foot fence that is maliciously erected to annoy an adjoining
landowner can be enjoined as a private nuisance under the “spite-fence”
statute.
Objective Post-Reading Exercise:
Dowdell
4.
Which of the following is not a true statement?
a.
The statutory definition of a lawful fence includes a hedge.
b. A fence that is maliciously erected to annoy an adjoining landowner may be
enjoined as a private nuisance under the “spite fence” statute even though it only
interferes with a property owner’s light and view.
c. A fence that is maliciously erected to annoy an adjoining landowner will not be
enjoined as a private nuisance under the “spite fence” statute if it is erected in part
for a useful purpose.
d. A four foot fence that is maliciously erected to annoy an adjoining
landowner can be enjoined as a private nuisance under the “spite-fence”
statute.
This question tests the student reader’s ability to carefully read
text and the rules of law.
Objective Post-Reading Exercise:
Dowdell
5. On which of the following facts did the appellate court rely to support its ruling?
I.
Defendant applied to the zoning board for approval to build a second-story addition
to his house and Plaintiff voiced her objection to the addition.
II. Western arborvitae is not a hedge plant.
III. Defendant planted trees on the property line a day after the zoning board heard
arguments on his request for zoning approval to build a second story addition to
his home.
IV. The trees Defendant planted on the property line grew 45 feet tall and 60 feet
across.
V. The trees Defendant planted on the property line provided his home with privacy.
a.
b.
c.
d.
III only
II and V
I, III, and IV
All of the above
Objective Post-Reading Exercise:
Dowdell
5. On which of the following facts did the appellate court rely to support its ruling?
I.
Defendant applied to the zoning board for approval to build a second-story addition to his
house and Plaintiff voiced her objection to the addition.
II.
Western arborvitae is not a hedge plant.
III.
Defendant planted trees on the property line a day after the zoning board heard
arguments on his request for zoning approval to build a second story addition to his
home.
IV.
The trees Defendant planted on the property line grew 45 feet tall and 60 feet across.
V.
The trees Defendant planted on the property line provided his home with privacy.
a.
b.
c.
d.
III only
II and V
I, III, and IV
All of the above
This question tests the student reader’s ability to connect the facts to the court’s reasoning. It
provides a basis for an in-class discussion on the relationship between facts and law.
Subjective Post-Reading Exercise:
Dowdell
Use the case of Dowdell v. Bloomquist and the rules of law discussed in that case to answer the
following question: Limit your discussion to one page.

If a landowner connected a ten-foot rope to two seven foot
poles, to erect a clothesline on his property line, could the
clothesline be enjoined as a private nuisance under the
Rhode Island “spite-fence” statute if an adjoining
homeowner’s view of the mountains was obstructed
whenever clothes were hung on the line to dry?
This is an example of a follow-up exercise which tests the
student reader’s ability to apply what he/she has read to
a different set of circumstances.
V. Summary: Classroom Methodologies
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Practice, Practice, Practice - Critical reading
opportunities in every class
Variety of sources – books, stories,
newspaper and magazine articles, poems,
cases, statutes
Use short passages
Group work/interactive cooperative learning
Teacher as facilitator
VI. Bibliography

Lorraine K. Bannai and Marie Eaton, Fostering Diversity in the Legal Profession: A Model for Preparing Minority and Other Non-Traditional Students for
Law School, 31 U. S. F. L. Rev. 821 (1997)

Paul Beneke, Start with Enacted Law, Not Common Law, 10 Persp. 76 (Spring 2002)

Richard Cabrera, Essay: Working to Improve: A Plan of Action for Improving the Bar Exam Pass Rate, 27 Wm. Mitchell L. Rev. 1169 (2000)

Peter Dewitz, Reading Law: Three Suggestions for Legal Education, 27 U.Tol.L. Rev. 657 (1996)
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Peter Dewitz, Legal Education: A Problem of Learning from Text, 23 N.Y.U. Rev. L. & Soc. Change 225, 230 (1997)

Barbara Glesner Fines, Preparing for Class, available at http://www.law.umkc.edu/faculty/profiles/glesnerfines/Success2.html (visited
June 1, 2004)
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Keith Kemper, Freedom of Religion vs. Public School Reading Curriculum, 12 Seattle U. L. Rev. 405 (1989)

Critical Reading Skills Sheet, compiled by Craig M. Klugman, www.unr.edu/homepage/cmk/cread.htm (visited June 1, 2004)
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Inservice Activities, available at http://www.msit.gsu.edu/balancedinstruction (visited July 18, 2003)
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Greg Sergienko, New Modes of Assessment, 38 San Diego L. Rev. 463 (2001)

Nirvi Sha, Revised SAT to Have New Writing Section, Palm Beach Post, May 31, 2004, at C1.

Chitra Varaprasad, Some Classroom Strategies: Developing Critical Literacy Awareness, 35 Eng. Teaching Forum Online 24 (July-Sept. 1997)