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Frame of Mind Legal Reasoning 3 Class Time Create an Outline Pre-Write Your Exam Test Yourself! Sample Answers
Get Smart About the Case Method


Speed Reading a Case
Speed v. Comprehension
Pre-reading Strategy
Taking Notes While Reading
Cases and Casebooks - a Brief History
The Structure of a Casebook
Why Brief a Case?


How to Brief a Case
Sample Case and Brief
Beyond the Casebook: Study Tools
Legal Dictionary
Commercial Outlines
Hornbooks
Study Groups
2Ls and 3Ls
Practice Exams and Model Answers


Cases and Casebooks - a Brief History

Briefing a case is simply the act of creating a "brief" summary of the relevant facts, issues, rule and reasoning of a particular case you've read in class. However, to understand briefing, you must first understand the case method, which is how most law schools teach students. In 1870 at Harvard University Professor Christopher Columbus Langdell decided that the best way to teach law students was to have them read cases rather than textbooks. Textbooks explicitly state the rule of law and explain why it exists. Cases, however, are the stuff of real life. Cases contain the rule and also illustrate how the rule applies to different sets of facts.

After reading the cases, Langdell engaged his students in a Socratic dialogue where he grilled the students on what the cases meant. The idea behind the case method is that each case illustrates one tiny rule out of an entire body of law. By synthesizing each rule into a larger body of law, the student progressively learns not only the rules but also the process of legal reasoning. Law school hasn't changed much in 130 years.

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The Structure of a Casebook

Casebooks are unlike any other text you've encountered. Instead of explaining a legal principle, the casebook starts with an actual case and you have to figure out the legal principle based on a real court proceeding. Your job is to the extract the relevant principle and reasoning out of the case. That's where briefing comes in.

Chapters in a casebook are arranged according to broad topic areas that illustrate the general principles of the body of law. The first case in a chapter, also known as the "principal case," usually illustrates the broad rule for that section of the book. The principal case is then followed by a series of squib or note cases that show a refinement of the law, a different rule or a different interpretation of the rule.

Squib cases do one of the following:

Casebooks also pose questions at the end of a case that are meant to make you think about the principles. These questions typically are ambiguous and difficult to address given your present knowledge of the material. This can be extremely frustrating for the beginning law student. The most that an author does to answer the question is to cite a case that you then have to look up for the answer.

In between the cases, there might be commentary from law review articles or an illustration of a rule by citing a statute or the Restatement1 that covers that body of law. Don't overlook the footnotes. More often than not, a lot of key information is found in the footnotes.2

By briefing the case using the principles discussed below, you should be able to at least analyze the question. The upside to questions is that you get a clue about what the professor might ask in class.

1 The Restatements are an effort by scholars, judges and leading lawyers to state the principles of a body of common law.

2 Professors are fond of quoting that "the battle of law school is won in the footnotes."

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Why Brief a Case?

Cases are written by lawyers for lawyers. Consequently, there's a structure and method unlike any other type of writing that you've read. Once you know the structure and method, you'll be able to breeze through cases quickly. When the writing is brilliant - for example, cases written by Holmes, Cardozo and Learned Hand - the cases can be as enjoyable as a good piece of fiction. There's drama, conflict, resolution, humor and pathos. Other times, the writing is very non-linear and leaves out important elements, such as the facts of a case.

Briefing is the first step in learning how to outline. The brief should distill a case down to its elements, which allows you to immediately understand the principal legal issues at a glance. When you are under the pressure of the harsh glare of an aggressive professor, you want to be able to take one look at the brief and know the answer.

Case briefs are an important tool, but it's also important to keep briefs in perspective. Many students labor intensively over case briefs by creating forms and making sure that the wording is perfect. A brief is just a tool that helps you accomplish three things - build comprehension, answer questions in class and complete an outline. You'll never be graded on a brief. If you're spending time on stylistic niceties that don't accomplish one of the three goals then you're not spending time wisely.


Three Reasons to Brief a Case

  1. Rewriting the material leads to better comprehension.
  2. Creates a cheat sheet for questions in class.
  3. Serves as a starting point for outlining.


Briefing is a phase that you eventually grow out of. After the first semester, students tend to brief a lot less. Their briefs may just end up being the rule of law or they will write notes in the margin of the casebook, which highlight the different elements. While some complex cases in your second and third years demand briefing, you will probably pick up the skills you need in your first year to analyze cases on the fly.

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How to Brief a Case

Briefs should be a one-page summary of the case. Structure the summary according to the elements listed below. The structure adheres to the types of questions the professor asks in class and to the information you'll need for outlining. Not every case can be summed up in one page, but it's a good discipline to attempt to condense the material.


THE ELEMENTS OF BRIEFING

Procedural History
Legal Issue
Facts of Case
Statement of Rule
Policy

Dicta
Reasoning
Holding
Concurrence
Dissents


You might consider creating a standard form using a word processor, then fill in the blanks as you read the case. You may want to modify the form as you go along through the semester. Professors will differ as to what they like. At the end of this chapter is a sample brief.

Procedural History

How did this case get to this particular court? Typically, you will be reading case law from the appeals court. That means the case has already been decided at a lower court and the losing party has appealed to a higher court. Typically, the lower courts don't write opinions on their decisions, consequently, you'll almost always be reading appellate decisions.

The judge often starts the case with information on how the court below decided the case and which party is making the appeal. Often the cases will present a detailed history of the arguments presented by both parties in the court below as well.

At minimum, you should be able to answer the following two questions that your professor is likely to ask in class:

Who is appealing on what issues?

What happened in the lower court?

Legal Issue

A well-written opinion starts out by telling you the legal issue up-front. Language that the court uses might include such phrases as:

"The question before us is whether...."

"This case was brought before us to decide whether..."

Appellate courts hear a case on appeal when there has been a problem with the case in the court below. The problem could be an error that the court made or the appellate court may want to take the case because the lower courts in its jurisdiction are not consistent in their decisions. By taking this case, it gives the higher court a chance to give guidance and establish precedent for the lower courts to follow.

If you're having trouble spotting the issue, then try to key into the word "whether." It often signals what the turning point for a case.

Facts of Case

A well-written case gives the relevant facts that brought the parties to court. In a Torts case, for instance, the judge recites the facts of the accident or injury. In Contracts, the prior business relationship might be discussed. In Criminal law, the crime is described.

Case law is at its worst when the court leaves out the facts. Judges sometimes don't include facts because the question before the appellate court doesn't require all of the details to be resolved. The issue on appeal is so narrow, that the facts as determined by a jury are often no longer relevant to the issue at hand. However, it helps when the judges give you a context by outlining all of the facts.

You'll probably encounter such a case in Civil Procedure. Pennoyer v. Neff is one of those traditional law school cases that is extremely frustrating to understand because it lacks a background history of the facts. In situations like this, you want to revert to secondary sources such as hornbooks3, to pick up on the material.

3 Hornbooks are summaries of the law that can be found in your library.

Statement of Rule

The court should give a clear statement of the rule that controls the issue. The court often traces the development of the law within its own jurisdiction, starting with the common law rule. Since many of these bodies of law differ slightly between states, the court prefers to look within its own jurisdiction before it cites to a case from another state or country. The judge then either reaffirms a principle of law or fashions a new rule that evolves the law.

Policy

Rules don't stand by themselves without any sort of reason behind them. If there isn't a sound policy behind a rule, then the court tries to fashion a rule that serves the principles of equity or justice. Sometimes a statute that does not further the policies of equity or justice binds the judge. In those circumstances, the judge sometimes upholds the statute but writes the opinion in such a way to bring the injustice to the attention of the legislature in order to encourage them to change the law.

Dicta

Dicta refers to anything that isn't relevant to the case's holding. Often judges will use a case to expound upon their theories of the law. The theories may not be relevant to the case at hand, but it gives the judge a chance to give direction to the lower courts by putting the theory in writing. Dicta does not carry weight as a precedent. But it's useful to note how the court might have ruled given a different set of circumstances.

Reasoning

The reasoning is the Analysis arm of IRAC. This is how and why the court fits the particular facts and circumstances of this case into the rule. The courts often fashion tests or rely on precedent, which forms part of the reasoning. You should take special note of the reasoning and try to emulate it in your own writing.

Holding

The holding is the court's decision on the issue. Who wins? The holding may be narrowly construed to a particular issue or be very broad. Identifying the holding may merely consist of finding the words "We hold that..."

The holding should include the disposition of the case. Is the ruling of the lower court affirmed? Overturned? Remanded for retrial?

Concurrence

A Concurrence is a separate opinion in which one of the judges agrees with the result but has different reasoning. Like dissents, you will find that concurrences proliferate in Supreme Court cases. Look at the concurrence to see how the reasoning differs. Make a note of it in the brief.

Dissents

Typically, a panel of judges tries appellate cases. Not surprisingly, there is not always unanimous agreement. Consequently, a judge who is not in the majority will write a dissent. Dissents are ubiquitous in Supreme Court cases. Make sure that you pick up the major sticking points in the dissent. What principles does the dissenting judge disagree with the majority on? Dissents are sometimes indicators of a direction the court may eventually move towards.

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Sample Case and Brief

What follows are a sample case and a brief of that case. You'll notice that the elements of the brief scan very closely to the IRAC method with the additional elements of procedural history and the facts.


SAMPLE CASE

The following is a sample case that is commonly used in Contracts Cases to illustrate the idea of a "legal duty." Each element is identified.

STEPHEN GRAY, RESPONDENT, v. THERESA D. MARTINO, APPELLANT

Supreme Court of New Jersey
91 N.J.L. 462; 103 A. 24
February 2, 1918, Decided

Parties: These are the primary parties. Generally the case will be referred to only by the last names of the parties. E.g. Gray v. Martino.

MINTURN, J. The plaintiff occupied the position of a special police officer, in Atlantic City, and incidentally was identified with the work of the prosecutor of the pleas of the county. He possessed knowledge concerning the theft of certain diamonds and jewelry from the possession of the defendant, who had advertised a reward for the recovery of the property. In this situation he claims to have entered into a verbal contract with defendant, whereby she agreed to pay him $500 if he could procure for her the names and addresses of the thieves. As a result of his meditation with the police authorities the diamonds and jewelry were recovered, and plaintiff brought this suit to recover the promised reward.

Facts of the case: What happened that brought these parties to court?

The District Court, sitting without a jury, awarded plaintiff a judgment for the amount of the reward, and hence this appeal.

Procedural History: Who won in the court below?

Various points are discussed in the briefs, but to us the dominant and conspicuous inquiry in the case is, was the plaintiff, during the period of this transaction, a public officer, charged with the enforcement of the law?

Legal Issue: What fact or circumstance is at issue that will be the deciding factor in how the court rules on this case?

The testimony makes it manifest that he was a special police officer to some extent identified with the work of the prosecutor's office, and that position, upon well-settled grounds of public policy, required him to assist, at least, in the prosecution of offenders against the law.

The services he rendered, in this instance, must be presumed to have been rendered in pursuance of that public duty, and for its performance he was not entitled to receive a special quid pro quo.

Reasoning/Analysis: The court applies the facts to see whether they satisfy the elements of the rule.

The cases on the subject are collected in a footnote to Somerset Bank v. Edmund, 10 Am. & Eng. Ann. Cas. 726; 76 Ohio St. Rep. 396, the head-note to which reads: "Public policy and sound morals alike forbid that a public officer should demand or receive for services performed by him in the discharge of official duty any other or further remuneration or reward than that prescribed or allowed by law."

This rule of public policy has been relaxed only in those instances where the legislature for sufficient public reason has seen fit by statute to extend the stimulus of a reward to the public without distinction, as in the case of United States v. Matthews, 173 U.S. 381, where the attorney-general, under an act for "the detection and prosecution of crimes against the United States," made a public offer of reward sufficiently liberal and generic to comprehend the services of a federal deputy marshal. Exceptions of that character upon familiar principles serve to emphasize the correctness of the rule, as one based upon sound public policy.

Rule of Law: Under what rule of law does this issue fall?

The judgment below for that reason must be reversed.

Holding: What is the conclusion of the court?


SAMPLE BRIEF

Gray (cop) v. Martino (crime victim)

Procedural History

  • Cop sues for reward money.
  • District court awards money to the cop.
  • Defendant appeals.

Issue

At the time the contract was formed, was the plaintiff acting as a police officer charged with a legal duty to catch criminals without further reward?

Facts

  • Plaintiff makes a verbal contract with defendant. In return for $500, plaintiff will find defendant's stolen jewels.
  • Plaintiff had knowledge of whereabouts of jewels at contract formation.
  • Plaintiff is a special police officer and has dealings with prosecutor's office.
  • Defendant published advertisement for reward.
  • Plaintiff finds stolen goods and arranges return.

Rule of Law

  1. A public officer cannot demand or receive remuneration or a reward for carrying out the duty of his job as a matter of public policy and morality
  2. However, it is not against public policy for a police officer to receive a reward in performance of his legal duty if the legislature passes a statute giving the reward to the public at large in furtherance of some public policy - such as preventing treason against the US.

Reasoning

  • Court finds sufficient evidence to characterize this fellow as a public official.
  • His interaction with the prosecutor's office weighed in as a factor in suggesting he had a legal duty.
  • Since he is characterized within the rule as a public official, he cannot, as a matter of law, receive a reward for the performance of his duties.

Holding

Court reverses decision of lower court in favor of the plaintiff since he was characterized as a public official.


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