Preparing for Class

Chapter Two: Preparing for Class


Class preparation requires more than simply reading the material. You will need to re-read and work with the materials — writing notes, re-writing notes, practicing applications and preparing outlines. In this chapter, we will review the critical thinking, reading and writing skills you will use as you prepare for class.


Critical, Active Reading Skills


Law school requires that you read large quantities of dense material. You must have efficient reading habits to simply complete your assignments. You must have critical, active reading habits to be effective in learning from what you read. The following is a suggested method for reading your assignments. It is an elaboration of the classic SQ3R method developed by Professor Frank Robinson at The Ohio State University in the 1940s.[2] That method suggested that you approach each assignment by


·         Surveying


·         Questioning


·         Reading


·         Reciting


·         Reviewing


This text suggests three more “R”s – Reflecting, Writing, and Research. The SQ3R method is sufficient if what you are trying to learn is rote knowledge. But in law school, you are learning to develop the skills of written and oral analysis. This requires a critical engagement with the ideas you encounter when you read, not merely memorization of those rules. Reflection is central to this critical engagement – stopping and thinking about what you are learning, its possible applications, and the limits of your learning.


Writing makes your critical reflection very precise. Moreover, writing is a key legal skill. The best way to improve your writing is to write a lot. Thus, your note-taking and case-briefing are not only important to your learning legal doctrine, but are important to mastering the skills of written legal analysis. In addition, written summaries of your learning enables your review. The review you must conduct in learning law is an iterative review: that is, you review today’s assignment today; then you review this same material again at the end of the chapter or unit, when you have learned more context that deepens your understanding; then you review again at the end of the course, when you must integrate all of your understanding of course doctrine in a manner that you can apply to new problems. If you have written notes to review, you will be able to improve this review each iteration.


Finally, there is a role for research in your law study. At a minimum, you will need to research vocabulary by regularly using a legal dictionary to decipher the language of the law. At times, you may wish to research concepts or cases to clarify or extend your understanding. You will soon learn that there is rarely time for elaborate research of each class assignment; however, you must not overlook the essential research called for to engage your understanding.


With this modified SQ6R method in mind, consider the following guidelines for reading for class.


1. Know your assignment and actually read it.


Before you can read efficiently or effectively, you have to know what to read. Check the syllabus and listen in class for instructor guidance on your reading assignment. If neither the syllabus nor the instructor provides guidance, adopt a rule of thumb that reflects the pace at which you actually cover materials in the class – 20 pages a class, for example – and read at least that much, regardless of whether you are expressly assigned materials or not.


Do read what is assigned. Even if the instructor doesn’t cover the material in class. Even if you won’t get to the material in class for a week. Be sure to read everything that you are assigned. If you are given an assignment to read pages 20-34 of your textbook, read those pages of the textbook. Some students read a lot of material, but never really read their assignments. They skim pages 20-34, or they read the cases contained on pages 20-25 and 29-33 but skip the notes, comments, problems, footnotes, or article excerpts in between. Other students actually move their eyes over all the pages, but mostly for the purposes of following their highlighter as they color their books. Then there are the students who read other materials instead of the assignment: canned briefs (the Cliff notes of law school) or outlines, or hornbooks. Sometimes extra reading is a good idea (remember the “Research” R); but first, read your assignment.


2. Prepare to read.


Put yourself in the right place and time for reading. You know what works for you. If reading in your easy chair is really a signal for a nap, find less soporific surroundings. If reading in the library is really an opportunity for socializing, find some isolation. Set aside a place and time that works for you and stick to it.


Put yourself in the right frame of mind as well. Know that cases, in particular, are not easy readers. There is much you will need to learn in order to understand what you are reading and there is even more you will need to infer or interpret. Judges are not necessarily selected for the bench because they are clear writers. Even clear writers sometimes may prefer to create some ambiguity in their opinion. So be prepared.


3. Prepare to learn as you read.


Most law students know that they need to have an outline for their exams. Successful law students know that they need to start their assignments with an outline for their reading. The best sources for such an outline are the table of contents for the textbook or the course syllabus. Before you read any particular assignment or case, look over your reading outline, paying particular attention to the overall topics and “themes.” Identify where, in this organization, the materials to be studied fit. Skim through the entire reading assignment (This is the first of several reads). How many pages? How many cases?


Begin to wonder about what you will be reading. Ask yourself some motivational questions about the material. For example, why might I want to know this material? Have I ever had experiences with this subject area? Ask some questions to help identify what you are looking for. For example, read some of the questions in the notes following cases or ask yourself what rules or concepts might you be exploring and guess what they might mean.


4. Read thoroughly.


Read the entire assignment, trying to get a sense of what’s going on. This will take a long time at the beginning because you will likely have to stop often to look up unfamiliar words or to re-read confusing passages. Do be sure to use references as you read. Look up unfamiliar terms in the dictionary (standard and legal). Get background on concepts from secondary sources. Re-read each portion of the assignment (each case, for example) looking for key ideas and reasoning.


5. Reflect as you Read.


Engage your critical mind as you read. Be sure that you are not just passively taking in the information, but are searching, questioning, comparing and otherwise thinking as you read. Some students do this by reading out loud if their mind wanders. Many students find it useful to highlight, underline and annotate the text as they read. Argue with the text as you read. Compare what you are reading to what you already know. Whatever technique you use — keep thinking.


and Re-read.


Once is rarely enough. On each subsequent read, have a different purpose and read for that purpose. You might want to re-read to understand simply what happened in the case, for example. Or you might want to re-read in order to compare how what you have read today fits with what you read yesterday.


6. Write.


Briefing the cases assigned is only one aspect of writing as you read. Take notes on other aspects of your reading. Keep a vocabulary list and write out definitions for yourself. If you read statutes or rules, diagram them or write them in your own words. If there are articles or commentary accompanying a case, be sure you summarize the main points in your notes. If you have questions about your readings, write them down and look for answers.


7. Review.


Throughout the semester, you will need to review everything you have read. Review your readings after you have completed your notes, by comparing them with others or inventing and discussing problems raised by the readings. Review with a purpose of discovering what you know and — perhaps even more important — what you don’t know. Generate more questions and then try to answer them.


As part of your review, go back to materials that you have read for prior classes and review those materials in comparison to the materials that you have most recently read. Look for connections and themes. Write these ideas down. Review all your notes immediately before class, skimming through the textbook to be sure that you are familiar with where to find important points.


Critical Writing Skills: An Introduction to Briefing


One of the most important aspects of writing as you read is “briefing” the cases in your text. It is the process of preparing the brief that provides the primary benefit, not the brief itself. The process of briefing helps you concentrate on key ideas, compare one case with another, organize your analysis, and review your materials. Remember that your purpose in reading cases is NOT TO LEARN ABOUT THE CASE — the case is simply one fact situation to which one court has responded. MUCH OF WHAT YOU NEED TO GET OUT OF A CASE IS NOT TO BE FOUND IN THE EXPRESS WORDS OF THE CASE.


You study cases because they provide:


RULES & DOCTRINES — You must learn to identify the legal concepts and rules that are applied in cases. Learning the rules is the easy part. Interpreting the rules is the difficulty. Remember that RULES ARE TOOLS to solve problems –they are not formulae to provide answers. So identify and memorize the language of the rules, yes, but also work on identifying all the different uses that could be made of the rule.


ARGUMENTS — Cases provide examples of techniques of argumentation that can be applied to all kinds of situations. They also provide fact situations to which you can apply your own argumentation skills, creating arguments that are different from or more carefully crafted than those provided by the court.


POLICIES — Cases implicate public policy considerations that the judges may or may not expressly discuss but which you need to explore.


STRATEGIES AND OUTCOMES — Cases provide examples of choices and outcomes that affect clients. You need to think about whether the choices made were wise and about what options were available. These are matters rarely discussed explicitly in the case.


Especially during the first month of classes, you will need to read the cases several times before you can produce a final brief. The “policy analysis” and “personal analysis” sections may be rather thin as you concentrate on describing opinion itself. After several weeks, you will be able to brief the cases with less effort and fewer readings. Now, the time saved should be spent thinking about analysis. The focus of your study will shift from the top sections of the briefing format to the bottom.


A Sample Briefing Format


Citation: Name of the case, date decided, court


Statement of the Case: “Who is suing whom for what remedy on what basis?” (from viewpoint of trial court)


Statement of Facts: Chronological summary of all relevant facts (sometimes drawing a diagram helps)


Procedure Below: What happened in the lower court? Who won?


Result on Appeal: Was the trial court reversed or affirmed?


What is the issue? There are usually two kinds of issues: “what is the law? (e.g., which rule should the court apply? or which interpretation of the rule should the court adopt?)” or “how does the law apply to these facts? (e.g., should these facts be characterized in such a way as to fit within the rule or outside the rule?)”. A third issue: “what are the facts” is equally important in practice, but we will not usually be addressing those issues in this course. Note that one case may contain several issues.


Arguments and Analysis of Appellant: Why is the trial court wrong and what legal theory or interpretation should have been applied?


Arguments and Analysis of Appellee: What is the trial court’s legal theory or application and why is that correct?


What is the Holding? One way to think of a holding is: “Under this doctrine of law, if these facts occur, then this condition of the law has been fulfilled.”


Policy Analysis: What public policies or goals are furthered by the court’s choice? What would be the effect if the court has chosen an alternative rule or application of the rule? How does this opinion fit in with others you have read on the same topic? How does the law applied in this case fit into the overall scheme?


Personal Analysis: Do you agree with the holding? How far do you think the next court would be willing to extend the holding? Do you agree with the results? Is it fair? Do you agree with the analysis? Is it logical and consistent? What’s likely to happen now to the people and the property involved? What would you have done differently if you had represented one of the parties or had been the judge? Why is this case in the book? Why did the professor assign it? How might it be tested?


Holdings and “What’s the Answer”


Students often have the most difficulty in arriving at a ‘holding’ in their brief. This is often the point at which students approach their professors and ask “Did I get the holding right?” or “What’s the answer?” The “answer” to all legal questions is the same: IT DEPENDS. What the holding of a case is depends on how you interpret the result of the case in light of the facts and the court’s reasoning. Students must understand that a holding is not the same as a ‘rule’, which is the law the court applies to the facts in the case to reach the holding. It is also different than the court’s ‘rationale’ for why it chose to apply the rule in the way it did. Over time, a series of ‘holdings’ in related cases, crystallize into ‘rules’. Even when the court says “We hold…” the statement they make may not be what develops into the “holding” of the case as other courts apply that case.


So, there is no “right or wrong” holding — only interpretations of cases that are more strongly supported and better reasoned that others — and when is a particular interpretation “better reasoned”? IT DEPENDS on the use you wish to make of the holding. If you are defending someone for whom the interpretation of a holding will be favorable precedent and you can make a good argument that that interpretation is correct, then that is the better holding. If you are trying to predict how a future court will apply a case, the interpretation that results in a holding that best predicts the future is the “better” holding — at least until the future changes.


Here is one way of looking at a holding that can help to reflect the complexity of this concept.


Suppose a court has a case in which A discovers that B has a son who requires a special operation. Out of the goodness of A’s heart, A pays for the operation. B discovers A’s generosity and then promises to pay for A’s education. B later reneges on the promise, just as A is about to finish the degree program and begin a teaching job. The court finds that B has no legal obligation to pay for A’s education (the result). The holding might be phrased as follows:


Functional Result:


The Court will not grant restitution to a Plaintiff who performs a Defendant’s obligation…


Facts Tending to Lead to Result




1)      Defendant has not requested Plaintiff to perform the obligation


2)      Plaintiff and Defendant have not entered into a contract under which Defendant agreed to reimburse Plaintiff


3)      There existed an alternative remedy through which someone could have required Defendant to perform its obligation itself


Facts Tending to Lead to Opposite Result




1)      Defendant did have the obligation


2)      Performance of the obligation was of great public importance


3)      Plaintiff performed Defendant’s obligation


4)      Plaintiff’s performance of the obligation conferred a benefit on Defendant.


5)      Plaintiff had an obligation (e.g. teaching contract) which could not be performed unless Defendant’s obligation was performed


Facts Tending to Mitigate the Effect of the “Even Though” Facts




1)      Plaintiff was not an intended beneficiary of the statute or contract (or other source) creating Defendant’s obligation


2)      Plaintiff has some other remedy for any damage Plaintiff suffered by reason of his inability to perform his obligation (e.g. teaching contract)


The Importance of Vocabulary


It is tempting for students to gloss over words that they don’t understand. Many professional schools’ students have developed their vocabulary to the point that, when faced with unfamiliar words, they simply guess their meanings from context and let it go at that. They have gotten out of the dictionary habit. In law school, while guessing meaning from context is not a bad first step, the dictionary habit is critical. Every word that you pass over (whether legal or not) creates a hole in your understanding that has a cumulative effect on your ability to master the material.


The study of law revolves around the learning of a whole new language. Some legal words are foreign looking and sounding (for example, “res judicata” “mens rea”); others look like words that you think you know (judgment, reasonableness, intent) but have peculiar and complex legal meaning. Often, the meaning of these terms is the key issue in interpreting cases and statutes. Having the vocabulary of the law at hand is essential to being able to research the law. The fact that separate (very voluminous) dictionaries exist for legal terms should indicate to you the importance of acquiring and mastering a legal vocabulary.


Thus, part of your daily class preparation should include looking up and striving to understand the definitions for every unfamiliar word. At first, this will mean that you will be stopping to look up words nearly every other sentence. Take heart. As the semester progresses and your legal vocabulary expands, however, you will be find fewer and fewer unfamiliar words. You can use a classic legal dictionary such as Black’s or Ballentine’s, which courts cite as authoritative sources of legal definitions; however, if you find online legal dictionaries more convenient, these are fine for class preparation. Just be sure that your online sources are from a reliable source – learning your vocabulary from the notes of another 1L student posted to the web is not necessarily the best route to accurate understanding.


The task of becoming skillful in case analysis is indeed difficult and time consuming. It may take hours to comprehend a single opinion. If you apply yourself diligently, however, and if you have a realistic outlook of what must be done, you will find that the time needed to handle opinions will tend to decrease. What will increase from this approach will be your satisfaction in being able to use case law effectively in the resolution of legal problems and effectively research law in order to learn more.


Guided Reading of a Case


Let’s try applying the SQ6R principles with a simple case involving a lost animal. On the left side of the page is an opinion in an actual case. On the right side of the page is a guide to what you should be getting out of the case as you read it. Remember, it may take more than one reading.


What you read….


Property: Cases & Materials


What you may think… I am studying Property


What you should do… RESEARCH the term: “n. anything that is owned by a person or entity.”


What you Read (Table of Contents)


I. Basic Concepts of Ownership


A. Acquisition


1. Discovery, Capture


What you may think… The point of my study is to learn about how a person acquires ownership rights to property.


What you should do… REFLECT “what do I know about how I acquire ownership?” “What is the significance of discovering property? “Capturing property? When I my practice might I encounter these ideas?”


What you Read…


Edward CONTI, Plaintiff, v. ASPCA and Diana Henley, Defendants


What you may think… Who is suing whom? This looks like a civil lawsuit because it is between private individuals rather than the state prosecuting a criminal case.


What should you do… READ: learn who the persons are involved in the dispute.


WRITE: “who is suing whom” in terms of their status in the lawsuit (here, e.g., “A person who found a parrot is suing the organization that claims that they were the true owners of the parrot”)


What you read…


Civil Court, City of New York, Queens County, Part 10.


What you may think… This is a trial-level court, not the typical appellate opinion. I wonder why a trial court opinion is included in the textbook?


What you should do…  READ the opinion recognizing that the trial court has to find both facts and law.


What you read….


Jan. 30, 1974.




What you may think…Is there anything particularly significant about this year? Have I heard of this judge before?


What you should do… READ and keep your eyes and ears open for any information that makes it particularly important when and by whom the opinion was written.


What you read…


Chester is a parrot. He is fourteen inches tall, with a green coat, yellow head and an orange streak on his wings. Red splashes cover his left shoulder. Chester is a show parrot, used by the defendant ASPCA in various educational exhibitions presented to groups of children.


On July 5th, 1973, the plaintiff, who resides in Belle Harbor, Queens County, had the occasion to see a green-hued parrot with a yellow head and red splashes seated in his backyard. His offer of food was eagerly accepted by the bird. This was repeated on three occasions each day for a period of two weeks. This display of human kindness was rewarded by the parrot’s finally entering the plaintiff’s home, where he was placed in a cage.


What you may think… These are facts. For class, I need to be able to explain what happened. For the final exam, I may have to be able to compare these facts and the outcome to a different set of facts.


What you should do… READ: Get the story clear in your mind.


WRITE or diagram that story. For example, ASPCA has a parrot that is trains. Parrot flies away and ASPCA tries to recover all day. Conti finds the bird, lures it into a cage after a lot of effort and wants to keep it. He contacts the ASPCA for advice about keeping it. The ASPCA claims that the parrot is theirs and takes it. Conti files this suit to get back the parrot.


RECITE the story to someone else.


What you read…


The next day, the plaintiff phoned the defendant, ASPCA, and requested advice as to the care of a parrot he had found. Thereupon the defendant sent two representatives to the plaintiff’s home. Upon examination, they claimed that it was the missing parrot, Chester, and removed it from the plaintiff’s home. Upon refusal of the defendant, ASPCA, to return the bird, the plaintiff now brings this action in replevin.


What you may think… I need to pay attention to which of these facts were especially important to the outcome of the case. Conti sues in “replevin” – I wonder what that means? I wonder what he wants?


What you should do… RESEARCH – look up Replevin in the dictionary: “An action in which the owner or one who has a general or special property in a thing taken or detained by another seeks to recover possession in specie, and sometimes the recovery of damages as an incident of the cause.” Look up words in the definition: “in specie” = the thing itself


REFLECT – What difference does it make that Conti wants the parrot returned rather than money damages?


WRITE the definition in your own words.


What you read…


The issues presented to the Court are twofold: One, is the parrot in question truly Chester, the missing bird? Two, if it is in fact Chester, who is entitled to its ownership?


What you may think… Great! The court identifies the issues for me! {BEWARE! What the court says the issue is and how your professor wants you to recite the issue or what your analysis may require as the issue to be framed can be quite different. So don’t stop thinking for yourself!}


What you should do… WRITE a list of the issues: Is this Chester? (fact issue) Who owns Chester? (mixed issue of fact and law).


Re-READ the facts


REFLECT – try to decide for yourself what the resolution of these issues should be.


What you read…


The plaintiff presented witnesses who testified that a parrot similar to the one in question was seen in the neighborhood prior to July 5, 1973. He further contended that a parrot could not fly the distance between Kings Point and Belle Harbor in so short a period of time, and therefore the bird in question was not in fact Chester.


The representatives of the defendant, ASPCA, were categorical in their testimony that the parrot was indeed Chester, that he was unique because of his size, color and habits. They claimed that Chester said ‘hello’ and could dangle by his legs. During the entire trial the Court had the parrot under close scrutiny, but at no time did it exhibit any of these characteristics. The Court called upon the parrot to indicate by name or other mannerism an affinity to either of the claimed owners. Alas, the parrot stood mute.


Upon all the credible evidence the Court does find as a fact that the parrot in question is indeed Chester and is the same parrot which escaped from the possession of the ASPCA on June 28, 1973.


What you may think… This is the court’s analysis of the fact issue. Do I agree? How might I have represented Conti differently?


What you should do… READ and note what the court decided. Factual issues are rarely important in most 1L classes. Rather, because cases are on appeal, the factual issues have been resolved. If the court recites the factual dispute, the important thing to note is what the court is required to believe and not argue with that conclusion.


What you read…


The Court must now deal with the plaintiff’s position, that the ownership of the defendant was a qualified one and upon the parrot’s escape, ownership passed to the first individual who captured it and placed it under his control.


What you may think… What does it mean that the ownership was “qualified”?


What you should do… RESEARCH – Look up “Qualified” – find a definition that has to do with Qualification (as in fitness). (You will likely decide that can’t be the meaning the court has in mind here). Look at all the definitions of terms with “qualified” for one that seems relevant.


RESEARCH the definition of “qualified owner” = “The owner of a qualified interest in a thing.” Read the definition of “Qualified interest” = “An interest in property under which control falls short of the absolute, the property not being objectively and lawfully appropriated to one’s use in exclusion of all other persons.”


REFLECT – Does this definition help you understand the concept? If you still feel like you don’t understand, mark your notes for later REVIEW to see if you understand it better later.


What you read…


The law is well settled that the true owner of lost property is entitled to the return thereof as against any person finding same. (In re Wright’s Estate, 15 Misc.2d 225, 177 N.Y.S.2d 410 (1958) (36A C.J.S. Finding Lost Goods s 3). This general rule is not applicable when the property lost is an animal. In such cases, the Court must inquire as to whether the animal was domesticated or ferae naturae (wild). Where an animal is wild, its owner can only acquire a qualified right of property, which is wholly lost when it escapes from its captor with no intention of returning.


What you may think… Ok, now we’re getting to some LAW – and it’s written in a really old-fashioned style. And animals have their own rule and it’s in Latin much less! This must be how lawyers are supposed to write.


{BEWARE! This is the kind of thinking that gets you into trouble – many opinions are written very badly and opinions that were written decades ago, even by as famous a legal writer as Judge Rodell, reflect a style of their time, not current best legal usage. The broader point here – be CRITICAL in your reading!}


What you should do… READ the statement of the rules that the court may apply in this case.


REFLECT on where the rule comes from (e.g., here, a prior case and a C.J.S. article – you will learn that C.J.S. is the abbreviation for a legal encyclopedia. If you are reading a case and see an unfamiliar source, stop and ask what that source might be and why the court uses it).


RESEARCH Latin terms (even when the text defines them as it does here), not only so you can better understand the term, but so you are comfortable being able to pronounce the term.


RECITE – Explain the rule(s) in your own words.


REFLECT – What parts of the rule are clear? What parts seem subject to some differing interpretations?


What you read…


Thus, in Mullett v. Bradley, 24 Misc. 695, 53 N.Y.S. 781 (1898), an untrained and undomesticated sea lion escaped after being shipped from the West to the East Coast. The sea lion escaped and was again captured in a fish pond off the New Jersey Coast. The original owner sued the finder for its return. The court held that the sea lion was a wild animal (ferae naturae), and when it returned to its wild state, the original owner’s property rights were extinguished. In Amory v. Flyn, 10 Johns. (N.Y.) 102 (1813), plaintiff sought to recover geese of the wild variety which had strayed from the owner. In granting judgment to the plaintiff, the court pointed out that the geese had been tamed by the plaintiff and therefore were unable to regain their natural liberty. This important distinction was also demonstrated in Manning v. Mitcherson, 69 Ga. 447, 450–451, 52 A.L.R. 1063 (1882), where the plaintiff sought the return of a pet canary. In holding for the plaintiff, the court stated, ‘To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept, and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner is wholly at variance with all our views of right and justice.’


What you may think… The court is explaining the rule with examples.


What you should do… READ and REFLECT – Identify the elements or factors to consider in learning the rules. First, read what the court says is important: Here for example, the court says that being “unable to regain their natural liberty” is an “important distinction” between tame and wild animals. (Think: the sea lion returned to its natural state but the geese and the canary didn’t). Second, try to identify other differences and similarities from the language of the case that explains the difference in category: Here, for example, the court calls the sea lion “untrained and undomesticated” but points out that the geese were “tamed” and the canary was a “pet”


WRITE – list the key factors or elements you have identified


REFLECT – Think of these differences and try to explain the differences in your own words – what makes an animal “tame”? “domesticated”? a “pet”? What is an animal’s “natural liberty”?


What you read…


The Court finds that Chester was a domesticated animal, subject to training and discipline. Thus the rule of ferae naturae does not prevail and the defendant, as true owner, is entitled to regain possession.


What you may think… This is the court’s decision –but it doesn’t really explain its decision much. This isn’t the court’s holding because it isn’t stated as a rule for future cases, using the facts and law of this case.


What you should do… READ the court’s reasoning.


REFLECT – If the court’s reasoning is conclusory (as this is) or confused or simply unsatisfactory, try to explain how the court could have reasoned its way to this conclusion.


WRITE out or RECITE to someone else that reasoning.


What you read…


The Court wishes to commend the plaintiff for his acts of kindness and compassion to the parrot during the period that it was lost and was gratified to receive the defendant’s assurance that the first parrot available would be offered to the plaintiff for adoption.


What you may think… Isn’t that nice? I wonder if it is legally significant.


What you should do… REFLECT on some of the ways in which the dispute may have been resolved without trial? Why do you suppose this case didn’t settle? Consider the practical aspects of the type of dispute you are reading about.


What you read…


Judgment for defendant dismissing the complaint without costs.


What you may think… So this means ASPCA wins.


What you should do… REFLECT – does the outcome surprise you?


Case #2


Here is a more typical law school case. Footnotes point out how you should be reading this case.


Thomas and wife v. Winchester[3]


Court of Appeals of New York [4]


Decided July 1852 [5]


6 NY 397


RUGGLES, Ch. J.[6] delivered the opinion of the court.


This is an action brought to recover damages from the defendant for negligently[7] putting up, labeling and selling as and for the extract of dandelion, which is a simple and harmless medicine, a jar of the extract of belladonna[8], which is a deadly poison; by means of which the plaintiff Mary Ann Thomas, to whom, being sick, a dose of dandelion was prescribed by a physician, and a portion of the contents of the jar, was administered as and for the extract of dandelion, was greatly injured.


The facts proved were briefly these: Mrs. Thomas being in ill health, her physician prescribed for her a dose of dandelion. Her husband purchased what was believed to be the medicine prescribed, at the store of Dr. Foord, a physician and druggist in Cazenovia, Madison county, where the plaintiffs reside.


A small quantity of the medicine thus purchased was administered to Mrs. Thomas, on whom it produced very alarming effects; such as coldness of the surface and extremities, feebleness of circulation, spasms of the muscles, giddiness of the head, dilation of the pupils of the eyes, and derangement of mind. She recovered however, after some time, from its effects, although for a short time her life was thought to be in great danger. The medicine administered was belladonna, and not dandelion. The jar from which it was taken was labeled “1/2 lb. dandelion, prepared by A. Gilbert, No. 108, John-street, N. Y. Jar 8 oz.” It was sold for and believed by Dr. Foord to be the extract of dandelion as labeled. Dr. Foord purchased the article as the extract of dandelion from Jas. S. Aspinwall, a druggist at New-York. Aspinwall bought it of the defendant as extract of dandelion, believing it to be such. The defendant was engaged at No. 108 John-street, New-York, in the manufacture and sale of certain vegetable extracts for medicinal purposes, and in the purchase and sale of others. The extracts manufactured by him were put up in jars for sale, and those which he purchased were put up by him in like manner. The jars containing extracts manufactured by himself and those containing extracts purchased by him from others, were labeled alike. Both were labeled like the jar in question, as “prepared by A. Gilbert.” Gilbert was a person employed by the defendant at a salary, as an assistant in his business. The jars were labeled in Gilbert’s name because he had been previously engaged in the same business on his own account at No. 108 John-street, and probably because Gilbert’s labels rendered the articles more salable. The extract contained in the jar sold to Aspinwall, and by him to Foord, was not manufactured by the defendant, but was purchased by him from another manufacturer or dealer. The extract of dandelion and the extract of belladonna resemble each other in color, consistence, smell and taste; but may on careful examination be distinguished the one from the other by those who are well acquainted with these articles. Gilbert’s labels were paid for by Winchester and used in his business with his knowledge and assent. [9]


The defendants’ counsel moved for a nonsuit[10] on the following grounds:


That the action could not be sustained, as the defendant was the remote vendor of the article in question: and there was no connection, transaction or privity[11] between him and the plaintiffs, or either of them.


* * * *[12]


The judge overruled the motion for a nonsuit, and the defendant’s counsel excepted.


The case depends on the first point taken by the defendant on his motion for a nonsuit; and the question is, whether the defendant, being a remote vendor of the medicine, and there being no privity or connection between him and the plaintiffs, the action can be maintained.[13]


If, in labeling a poisonous drug with the name of a harmless medicine, for public market, no duty was violated by the defendant, excepting that which he owed to Aspinwall, his immediate vendee, in virtue of his contract of sale, this action cannot be maintained.[14] If A build a wagon and sell it to B, who sells it to C, and C hires it to D, who in consequence of the gross negligence of A in building the wagon is overturned and injured, D cannot recover damages against A, the builder. A’s obligation to build the wagon faithfully, arises solely out of his contract with B. The public have nothing to do with it. Misfortune to third persons, not parties to the contract, would not be a natural and necessary consequence of the builder’s negligence; and such negligence is not an act imminently dangerous to human life.


So, for the same reason, if a horse be defectively shod by a smith, and a person hiring the horse from the owner is thrown and injured in consequence of the smith’s negligence in shoeing; the smith is not liable for the injury. The smith’s duty in such case grows exclusively out of his contract with the owner of the horse; it was a duty which the smith owed to him alone, and to no one else. And although the injury to the rider may have happened in consequence of the negligence of the smith, the latter was not bound, either by his contract or by any considerations of public policy or safety, to respond for his breach of duty to any one except the person he contracted with.


This was the ground on which the case of Winterbottom v. Wright, (10 Mees. & Welsb. 109,) was decided. A contracted with the postmaster general to provide a coach to convey the mail bags along a certain line of road, and B. and others, also contracted to horse the coach along the same line. B and his co-contractors hired C, who was the plaintiff, to drive the coach. The coach, in consequence of some latent defect, broke down; the plaintiff was thrown from his seat and lamed. It was held that C could not maintain an action against A for the injury thus sustained. The reason of the decision is best stated by Baron Rolfe. A’s duty to keep the coach in good condition, was a duty to the postmaster general, with whom he made his contract, and not a duty to the driver employed by the owners of the horses. [15]


But the case in hand stands on a different ground. The defendant was a dealer in poisonous drugs. Gilbert was his agent in preparing them for market. The death or great bodily harm of some person was the natural and almost inevitable consequence of the sale of belladonna by means of the false label. [16]


Gilbert, the defendant’s agent[17], would have been punishable for manslaughter[18] if Mrs. Thomas had died in consequence of taking the falsely labeled medicine. Every man who, by his culpable negligence, causes the death of another, although without intent to kill, is guilty of manslaughter. (2 R. S. 662, § 19.) A chemist who negligently sells laudanum in a phial labeled as paregoric, and thereby causes the death of a person to whom it is administered, is guilty of manslaughter. (Tessymond’s case, 1 Lewin’s Crown Cases, 169.) “So highly does the law value human life, that it admits of no justification wherever life has been lost and the carelessness or negligence of one person has contributed to the death of another. (Regina v. Swindall, 2 Car. & Kir. 232-3.) And this rule applies not only where the death of one is occasioned by the negligent act of another, but where it is caused by the negligent omission of a duty of that other. (2 Car. & Kir. 368, 371.) Although the defendant Winchester may not be answerable criminally for the negligence of his agent, there can be no doubt of his liability in a civil action, in which the act of the agent is to be regarded as the act of the principal.


In respect to the wrongful and criminal character of the negligence complained of, this case differs widely from those put by the defendant’s counsel. No such imminent danger existed in those cases. In the present case the sale of the poisonous article was made to a dealer in drugs, and not to a consumer. The injury therefore was not likely to fall on him, or on his vendee who was also a dealer; but much more likely to be visited on a remote purchaser, as actually happened.[19] The defendant’s negligence put human life in imminent danger. Can it be said that there was no duty on the part of the defendant, to avoid the creation of that danger by the exercise of greater caution?[20] or that the exercise of that caution was a duty only to his immediate vendee, whose life was not endangered? The defendant’s duty arose out of the nature of his business and the danger to others incident to its mismanagement. Nothing but mischief like that which actually happened could have been expected from sending the poison falsely labeled into the market; and the defendant is justly responsible for the probable consequences of the act. The duty of exercising caution in this respect did not arise out of the defendant’s contract of sale to Aspinwall. The wrong done by the defendant was in putting the poison, mislabeled, into the hands of Aspinwall as an article of merchandise to be sold and afterwards used as the extract of dandelion, by some person then unknown. The owner of a horse and cart who leaves them unattended in the street is liable for any damage which may result from his negligence. (Lynch v. Nurdin, 1 Ad. & Ellis, N. S. 29; Illidge v. Goodwin, 5 Car. & Payne, 190.) The owner of a loaded gun who puts it into the hands of a child by whose indiscretion it is discharged, is liable for the damage occasioned by the discharge. (5 Maule & Sel. 198.)[21] The defendant’s contract of sale to Aspinwall does not excuse the wrong done to the plaintiffs. It was a part of the means by which the wrong was effected. The plaintiffs’ injury and their remedy would have stood on the same principle, if the defendant had given the belladonna to Dr. Foord without price, or if he had put it in his shop without his knowledge, under circumstances which would probably have led to its sale on the faith of the label.


In Longmeid v. Holliday, (6 Law and Eq. Rep. 562,) the distinction is recognized between an act of negligence imminently dangerous to the lives of others, and one that is not so. In the former case, the party guilty of the negligence is liable to the party injured, whether there be a contract between them or not; [22]in the latter, the negligent party is liable only to the party with whom he contracted, and on the ground that negligence is a breach of the contract.


Judgment affirmed.


Reading the Law from a Series of Cases


Not only do you need to be able to “brief” each case, you must be able to read the cases together. Sometimes casebooks provide two cases with very similar facts but opposite outcomes. Your task in preparing for class is to explain (“distinguish” or “reconcile”) why each case came out the way it did. Sometimes, the two cases simply represent majority and minority approaches to the same rule. Other times, one case represents the general rule and subsequent cases represent extensions, modifications, exceptions, or reversals. You need to be able to read these cases together to identify what the law has become.


For example, assume that you have read two cases on products liability, similar to Thomas v. Winchester, in your torts class: Adams v. Burns involving a gun and Appleton v. Butler involving a kerosene lamp. The plaintiff won in one case and lost in the other. You have now been presented with a hypothetical and asked to predict or argue for a result. One way to learn to identify rules and analogize cases is to create a chart of the relevant cases and generalize the facts broadly or narrowly to fit your case. Complete the chart below to practice this skill.


Assume that you have a client, Alberts, who is suing Berg for injuries that resulted when he ate some rat poison labeled aspirin. There are two cases in your jurisdiction that you think might apply as precedent. As you read those cases, you will be:


·         choosing facts that are important to the outcome


·         characterizing those facts in a generic way that allows …


·         comparing the facts of those cases to the facts of your case to either


o   making analogies from the case (argue that your facts are the same) to your facts if the outcome is the same as the outcome you desire OR


o   distinguishing the case (your facts are different) from your facts if the outcome is not favorable


·         explaining WHY the similarities or differences you have identified are important (this requires some rule and theory building).


Fact Characterization        


Client Situation: Alberts Seller


Case #1: Adams Seller- Manufacturer


Case #2: Appleton Seller-Manufacturer


Fact Characterization


Client Situation: Bottle of pills


Case #1: Gun


Case #2: Kerosene Lamp


Fact Characterization


Client Situation: Labeled by Alberts


Case #1: A told B gun was safe


Case #2: A said nothing about safety


Fact Characterization


Client Situation: Alberts not aware of poison


Case #1: A knew of defect


Case #2: A didn’t know of defect


Fact Characterization


Client Situation: Berg took pill, became ill


Case #1: Burns fired gun, hurt


Case #2: Butler lit lantern, hurt




Client Situation: ???


Case #1: Adams liable


Case #2: Appleton not liable


How do you decide what facts are important to compare or what explanations can be used to justify your comparisons? The opinions themselves may provide some clues, but you need to learn to read beyond what the court says and look to what it does. By examining facts, and asking “So what” repeatedly about each difference and similarity in facts, you will soon discover several possible reasons beyond the court’s reasons. This is the route to true understanding.




Visit for the podcast related to this chapter: Exam Writing and Briefing Cases.



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