Case-briefing is a specialized form of note-taking for law students and lawyers. There is no ONE correct way to brief a case (aka a judicial opinion or legal opinion), and as mentioned in the previous post, “Reading strategies for law students” some people are able to do the work needed entirely in their heads. But, until you are secure in your fundamentals and the necessary domain-specific knowledge, and have gained enough expertise to discern what is relevant and irrelevant, I urge you to start off law school creating written case briefs for at least the “head” or “main” cases in your reading assignments.
Case briefs are summaries that lawyers and law students create when reading published judicial opinions. There is technical information about the publication process that you will have to learn which is beyond the scope of this post. However, if a court “publishes” a judicial opinion, it is generally because there is something about the case that may be useful to future judges and lawyers about resolving those kinds of disputes that arise in the future.
Because case briefs are self-created tools to help manage an immense amount of information there is no single “correct” way to brief a case. But good case briefs do have a few attributes in common and answer most of the questions below with an appropriate degree of specificity.
- Identify the case that is being briefed. This is usually called the caption, or case name & citation, and including it in your brief makes it easier if you need to relocate your brief two or three months down the road.
- What happened between the parties before the lawyers got involved? This is frequently referred to as a “facts” section.
- What has happened since the lawyers got involved? This section is dealing with the progress of the case as it has gone through the judicial system from trial, to appeal, to possibly a 2nd appeal at the court of last resort for the jurisdiction, so it is called the “procedural history.”
- What piece of the dispute is the court responsible for resolving? There is a winnowing effect as a case advances from trial court to appellate court and from appellate court to court of last resort, so the published opinion is usually focusing on how the law suggests one, or a few, small piece(s) of the dispute should be decided. These questions are the issues or the questions the court is trying to resolve.
- What material does the court rely on to structure its answer? Once school begins, you’ll learn a lot more about how to answer this question. The short version for today is, Courts have to see how similar disputes were resolved in the past, and explain why the current dispute is like or different from the resolved dispute (the technical name for the concept is stare decisis). This section of the brief is the sources of authority.
- Did the court rely on primary sources such as the constitution, jurisdictional statutes, or binding cases? Did the court rely on secondary sources such as treatises, restatements and model laws, or nonbinding cases?
- What rule(s) does the court articulate as being “the” rule(s) that applies to the dispute? A trick that may help you find the rules is to scan the judicial opinion for the presence of citations. If a court is saying something is a rule, they ought to be providing a citation to a constitution, statute, ordinance, or another judicial opinion, to “prove” that they are relying on something already established in the law. Scan for the citations, see what the sentence(s) immediately preceding the citation say. If the sentence is defining something, or prescribing or proscribing some kind of behavior, there’s a good chance that is one of the rules.
- How does the court settle the dispute? What does the court say that can be relied upon by future lawyers and judges as expanding, abridging, or clarifying the rules that the court used for the dispute. This is one of the things in reading law that gets called a holding.
- How did the court get from the problem to that result? Law is a profession of reason and so there are certain patterns of reasoning that are habitually followed in resolving a dispute. Until you have internalized and become fluent in these patterns, it can be helpful to analyze what different courts do and see how they do it.
- Did the court review a bunch of cases and inductively ascertain a guiding principle that could be reduced to a rule?
- Did the court apply a statute deductively as a major premise and then use the case facts as a minor premise to reach a conclusion?
- Is the court have to analogize facts to justify application of an old rule to a new scenario, or is the court distinguishing facts to justify NOT applying an old rule to a new scenario?
- Who won, and what do they get for their “prize?” The disposition of the case is what matters to the client.
Cross-referencing & contextualizing
Once you begin reading cases within the context of a particular class or representation it may be beneficial to add the following sections to your case briefs.
- How does this case relate to the others I have read on this [legal concept]? (See reading strategies post for explanation of [legal concept])
- What lingering questions do I have about the case?
- What “policy” does the court rely on to justify its decision? Sometimes, the law evolves in a manner where both parties have equally plausible claims for relief. In these cases, a court may use public policy to justify its final decision. How would you encapsulate the why of the “greater good” that is served by a court’s decision?
- This is really for my history majors and detail-oriented folks. There is a lot of information that you should quit worrying about between the initial reading and class discussion of a case and the final exam. This section gives you a place to put information that is personally meaningful and helps you consolidate knowledge, but will not provide a directly measurable benefit to your grade.
Additionally, some classes won’t focus on some pieces of this list of questions so you’ll drop them from the template after a couple of weeks in that class. Your civil procedure class will place a lot more emphasis on the procedural posture than other classes will. Your remedies class, should you have one, will place a lot more emphasis on the “prizes” that are won than other classes. So as you go through the semester, you’ll not only be adapting your briefing strategies to those that best serve you as an individual learner, but you’ll also be adapting to the specific needs and knowledge you are acquiring within a course.
Some people will be best served by cutting & pasting the questions above into a document template that they can copy and plug in appropriate verbiage to answer. (Or a spreadsheet/database, mwahahaha, but that’s a far future post my friends). Other people will be best served by printing off one copy of the above list and designating what color highlighters represent the answers to the different questions. Yet other people will use pencils and two or three highlighters and develop a custom system of annotation within their casebooks.
All of these are valid and acceptable ways of case briefing. Pick the one that gets you the most return in growth of your knowledge and expertise for the exchange of your time and energy.
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[…] the next post, I’ll share some information about creating case briefs to help distill the essential pieces of information you need to retain from the judicial opinions […]