October 24, 2014
Since many of you are taking midterms and practice exams, I wanted to share a crucial tip. There’s one thing you should always do when taking notes, on-call in class, or in any other legal argument: Think how this case would play out with different facts.
Hypotheticals prepare you for the exam and for practice by applying everything you’re learning in class. Hypos ask you to spot issues, apply them to facts, and adopt new reasoning without giving your case away.
When addressing a hypo, first ask are the new facts relevant? Second, how would they affect my case?
I wanted to highlight two WestlawNext resources that provide you with good hypos and the reasoning of similar cases – the Headnotes and Notes of Decisions.
From Headnotes to Hypos
Attorney-editors summarize the points of law in a case to create the Headnotes, which are located at the start of most reported cases on WestlawNext. Headnotes usually come in pairs. The first headnote applies the law to the facts of the case and the second is a general statement of the rule. Use both to create great hypos.
For the specific headnote, ask how the existing facts help one side or the other. Take the famous contracts case of Lucy v. Zehmer. Was there a contract or not? One headnote begins, “where circumstances surrounding making of land purchase contract showed some drinking by two parties involved…”
Stop there. The fact of “some drinking” helps the side trying to avoid the contract. Why? Those facts sound more like partying, and less like business. Now argue the other side. If you continue reading the headnote, it explains they were not drinking “to [the] extent they were unable to understand fully what they were doing.” So there are two possible hypos about that point of law.
But there’s another headnote that giving you the general rule. Here, ask what other rules of law you could use to avoid the same outcome here. Even if there was an agreement, what form was it in? Does it matter that it’s a “land purchase contract?” Is there a Statute of Frauds issue, for example?
Now you have hypos and your reasoning. So take it one step further, and find real cases that decide your question!
From Hypos to Holdings
The Notes of Decisions are the body of common law decisions interpreting a statute. Going back to the contracts example, there are plenty of cases about the effect of drinking on a valid contract. Our attorney editors keep track of similar cases in the Notes of Decisions. Find the statute and the Notes of Decisions tab. Then see how your hypos played out in real life!
There are two ways to use the Notes of Decisions. First, click on the headings to see the short list of cases on point. Or use the search box, typing in a few of the facts from your hypothetical.
How do you find the right statute? Some cases include citations to the statute in the text of the decision. In those cases, simply click on the link to the statute. In other cases, like Lucy, no statute is referenced. In those cases, use the Key Numbers to find similar cases on that point of law, along with the headnotes that will help build your hypothetical questions.
By doing this in law school, you prepare yourself for practice. Imagine yourself on the phone with clients adding new details about their case. Or maybe you’re arguing to a judge who asks a strange what-if question. Or your opposing counsel floats a strange idea. Turn to WestlawNext, and make our attorney editors part of your study group!