Dear Student,
Welcome to The Law School Playbook! I’m Halle Hara, a professor of academic success and personal skills coach to law students and attorneys. I’m glad you’re here! So today, our work of reading and interpreting statutes continues. After the first step—slowing down—the next step is to determine how the statute fits into the big picture. As you learned with case reading, background knowledge, even if acquired just prior to reading the text, makes you a better, more efficient reader. To put the statute in context, take the time to look at the table of contents. Look at the surrounding sections to see how the statute fits into the big picture.
You should also examine whether there is a section defining key terms. Definitions are often in a separate section, so you want to be sure to look for those. If those definitions do exist, you must use them, as opposed to using your own understanding about what a given term means. In certain instances, the legislature even provides specific interpretive instructions, so it’s important that you find those too if they exist.
Now that you have the lay of the land and are equipped with helpful background knowledge, your next step is to look at the language of the statute itself. As we’ve discussed, you must read the language of the statute like you’d barbeque a brisket: slowly and with care. Here’s where students, and sometimes careless lawyers, tend to make a critical mistake—they view the statutory language as a whole and get an overall impression of what it means, rather than engaging in the required critical thinking.
This is a really important point, so I’m going to explain it another way. The worst thing you can do when reading and interpreting a statute is to paint with a broad brush. Statutory language is replete with nuance. It’s complicated. Taking a high-level approach to statutory language and deriving just a general overview or sense of what it means before applying it to your facts is a recipe for disaster. If you are taking the multistate performance test, for example, and you have the “gist” of the statute but fail to examine the key words in an intentional way before applying it to the facts in the file, you will not get the score you are seeking.
I’m realizing that this may be beginning to sound like an unnecessarily slow and methodical process. And that feeling is understandable. Often times you’re doing a treasure hunt in your cases, looking for information to include in your briefs, such as the rule, the holding, and so on. And as we know, what drives a good deal of case briefing is a student’s fear of being called on in class. But my hope is that you’ve past that mindset now and instead are focused on obtaining the skills of a practicing lawyer. In other words, you engage in this slow and methodical process not because you have to for class, but because you want to for your chosen profession. Not a day went by during my years in practice where I wasn’t examining some type of statute, be it the FMLA, the ADA, the FDCPA, or another. It is essential that you learn this skill.
Okay, so at this point the next step, and it is a very important one, is to look at the overall structure of the language and methodically break it down.
One of the ways to do this is to break the statute into elements, or component parts, and then analyze each one separately
Another approach is to use an “if / then” structure, with the “if” being the elements, and the “then” being the consequences set forth in the text
A final way is to create a diagram or flow chart identifying the parts of speech and punctuation
Whatever approach you choose, you’ll need to pay particular attention to the use of specific words. For example, pay particular attention to:
conjunctions, such as and / or
words signaling an exception, such as unless / but / if / except / not / however
mandatory words, such as shall / must / will
and permissive words, such as may
Punctuation is also important. Indeed, a recent lawsuit arose concerning whether the phrase in a Maine law “packing for shipment or distribution,” which did not have a comma, was one activity or two, and how that impacted overtime pay. The New York Times headline that followed read, “Oxford Comma Dispute Is Settled as Maine Drivers Get $5 Million.” The lesson here: punctuation matters.
We are stopping at this step to pause, although we have a good deal more to discuss about reading and interpreting statutes. I know this process is laborious, but, as acclaimed coach Vince Lombardi said:
The price of success is hard work, dedication to the job at hand, and the determination that whether we win or lose, we have applied the best of ourselves to the task at hand.
I know you can do this.
If would you like to read this episode, get suggestions for further reading, or to request individual coaching with me, please visit my website at www.lawschoolplaybook.com.
As always, do your best, and I’ll be rooting for you!
References and Further Reading
Christine Coughlin, et al., A Lawyer Writes: A Practical Guide to Legal Analysis 34–35 (2d ed. 2013).
Forbes Quotes, Thoughts on the Business of Life. https://www.forbes.com/quotes/8757/ (accessed June 29, 2019).
Georgetown University Law Center: A Guide to Reading, Interpreting and Applying Statutes (2017). https://www.law.georgetown.edu/wp-content/uploads/2018/12/A-Guide-to-Reading-Interpreting-and-Applying-Statutes-1.pdf.
Jane Bloom Grisé, Critical Reading for Success in Law School and Beyond 243–251 (2017).
Sarah Landrum, Law School Success: Tips for Reading Statutes (Feb. 13, 2015). https://lawschoolacademicsuccess.com/2015/02/03/statutory-interpretation/.
Ruth Ann McKinney, Reading Like a Lawyer: Time-Saving Strategies for Reading Law Like an Expert 220–224, 230–233 (2d ed. 2012).
Deborah Maranville, Teaching Statute Reading Basics in a First Year Doctrinal Course: A “Handout” and Suggested Exercises, Law Teacher, Inst. For Law. Sch. Teaching 18–20 (Spring 2013).
Ira Nathenson, How to Read a Rule or Statute (Sept. 12, 2014). https://www.nathenson.org/courses/civpro/resources/how-to-read-a-rule-or-statute/.
Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning 151–158 (2009).
Chomwa Shikati, The Price You Will Have To Pay For Your Success, Medium (Nov. 28, 2017). https://medium.com/w-i-t/the-price-you-will-have-to-pay-for-your-success-7b0bd97e378f.
Daniel Victor, “Oxford Comma Dispute Is Settled as Maine Drivers Get $5 Million,” New York Times (Feb. 9, 2018). https://www.nytimes.com/2018/02/09/us/oxford-comma-maine.html.