Ins and Outs of the Case
Method
I. INTRODUCTION
It is no secret that law school is about reading cases. The
law is revealed to students through cases which either first
announced a particular rule or simply applied an already-established
one. It is a process designed to prepare you for life as a
lawyer – when you will spend much of your time reading
and interpreting cases in order to make arguments for your
clients. The problem with teaching the law to students by
having them read real cases is that cases are not designed
for law students. Judges write their opinions in response
to the (sometime complicated) legal issues before the courts,
not as teaching materials for first year law students. Learning
the law is difficult enough, and the proposition becomes even
more problematic when all you have to go by is a judge’s
legalese and an overzealous professor drilling you under the
guise of the “Socratic” method. Rest assured,
however, because we will give you some insider tips on how
to brief cases, prepare for class, and make the best out of
this “case method” we all have to go through.
II. TO BRIEF OR NOT TO BRIEF
Law students frequently ask us whether they should brief
cases. The answer, emphatically, is yes. There is simply no
better way to prepare for class – and ultimately to
prepare for exams – than to dissect a case yourself
and reconstruct it into a plain-English brief. Briefing cases
will train your mind to break cases down into their logical
components (facts, procedure, rule, and rationale), and indirectly
teach you to become a better legal writer yourself. Of course,
we understand that you simply do not always have the time
to read and brief cases. Indeed, it can become a time-consuming
endeavor, with some cases taking a full hour to complete.
That is why we have created mycasebriefs.com, to cover your
back when you can’t read and brief the case yourself.
For the first time ever, you can now download audio and printable
briefs of individual cases. We understand that you want to
read and brief all of the cases yourself – that is why
you went to law school – but your high aspirations are
certain to waiver given the incredibly demanding first year
workload. And even if you do brief the case yourself, you
should at least from time-to-time pick up one an audio brief
to make sure that you are catching all of the key points.
Eventually, sometime in your first year of law school, you
will find yourself briefing cases a lot less. And by the time
you are in your second or third year you probably won’t
brief cases at all, instead writing notes in the margins or
using the multi-color highlighting method described below.
It is to be expected that you will stop briefing cases at
some point in your legal career (could you imagine a lawyer
reading and briefing cases to prepare for a client?). However,
YOU SHOULD BRIEF CASES AS MUCH AS POSSIBLE IN YOUR FIRST SEMESTER.
There is simply no alternative to the rich understanding of
the law and thorough preparedness for class that you gain
by briefing cases yourself. Do not let anyone else tell you
otherwise.
III. SIFTING THROUGH THE CONFUSION – HOW TO BRIEF
A CASE
Briefing is somewhat of an acquired art. Depending on how
much experience you’ve had with reading cases, you will
either acquire the art immediately or pick it up only through
time. Learning a few essentials, however, will get you off
to a good start.
Before beginning to brief your case, you should read it once
quickly, making notes in the margins or highlighting key elements.
Then go back and read the case more thoroughly, briefing as
you go. Your brief should run no more than one page and should
break the case down into its essential elements. Following
this pattern will give you a sort of cheat sheet for the questions
your professor is likely to ask in class. The headings of
your brief should be as follows:
- Fact Pattern
- Procedural Posture
- Issue
- Ruling
- Rationale
- Dissents or Concurrences
For your convenience we have created an aesthetically-pleasing
form in which you can simply fill in the blanks. This will
enable you to focus on the essentials of good briefing without
getting caught up in formatting issues. To download the free
sample case brief template click here.
A. Fact Pattern
1. Identify the Parties and the Action
Professor Ray Rabalais of Loyola Law School New Orleans begins
every case by asking a student “who are the parties
and what relief are they seeking.” This straightforward
question forces the student to identify the essential facts
of the case. And you would be surprised how often students
get the names of the plaintiff and the defendant confused.
When you are focusing intently on understanding the sometimes
complicated legal issues involved in the case, the names of
the parties can become an afterthought. In your first semester
of law school, however, you will be repeatedly asked to identify
the parties and the basic legal theory (i.e., cause of action)
on which they are proceeding. Therefore, we suggest that at
the top of your page you write the case name (Bush v. Osama),
underneath which you put whether the party is the plaintiff
or the defendant (plaintiff v. defendant). This will save
your tail when your teacher is staring down his or her nose
at you, causing your mind to suddenly go blank. Click here
to see a sample case brief using this method.
2. Identify the Basic Fact Pattern
Next, your case brief should identify the basic fact pattern
which gave rise to the plaintiff’s cause of action.
In creating your “Fact Pattern” section you will
likely come across one of two problems: either the court included
too many facts or it hastily brushed over them. Some cases
that seem to throw the parties’ life stories at you
just to see what will stick; you want to distill the facts
down to everything relevant to the final disposition of the
case. That is, if a fact could potentially affect the outcome
of the court’s decision, it should be in your brief.
However, it is probably better to leave out facts than to
include too many; you don’t want to simply re-write
the court’s fact section in your brief. Identifying
what is important and what is not is something you will become
better at with experience. At first, comparing commercial
case briefs to the briefs you have prepared will speed along
your ability to identify relevant facts. After a while, it
will become second nature to you.
On the other hand, some cases leave out key facts, causing
law students to become doubtful about their ability to succeed
in law school. First, you should understand that this type
of omission often occurs on appeal, when a court is addressing
a very narrow legal issue which doesn’t concern the
factual background of the case. Again, cases are not written
for law students, so you shouldn’t be surprised by how
many cases at first seem incomprehensible (like the dreaded
Pennoyer v. Neff, one of the first cases you will read in
Civil Procedure). And some cases are flat out poorly written.
In these situations, you simply have to take more time reading
and re-reading the case until you are able to understand what
is going on. Sometimes the court puts key facts towards the
end of the case, sometimes key facts are in the dissent, and
sometimes they are not there at all. The good news is that
your professor does not expect you to go beyond your casebook
to understand a case. If you are able to explain that is appears
that something was left out, your professor will be satisfied.
However, for your own understanding it is sometimes advisable
for you to use one of the many available supplements. Commercial
case briefs, hornbooks, and commercial outlines can simplify
even the most complicated cases and legal issues – giving
you the ultimate advantage in class and on your exam.
B. Procedural Posture
In your first semester, professors will be interested in
the procedural background of the case. You will have to explain
how this case got to the particular court writing the opinion
in your casebook. Answer the following questions:
What court wrote the opinion? Is it a trial court, court
of appeals, or a supreme court? Is this a state or federal
court?
Did the trial court hold for the plaintiff or for the defendant?
Who appealed? If applicable, did the court of appeals affirm
or deny the appeal? On what grounds?
Who ultimately won, the plaintiff or the defendant? (This
is known as the “holding” of the case.)
C. Issue
Concisely stating the issue is the most important part of
briefing a case. Doing so forces you to extract and clearly
articulate the legal issue(s) facing the court. If you don’t
understand the basic issue of the case, you will have a hard
time answering your professor’s questions in class.
The issue usually will involve either how to apply an already-existing
rule or whether a court (usually a supreme court) will adopt
new rule or overrule an outdated one. Well-written opinions
will state the issue up-front, leaving nothing to the imagination.
(Count your blessings when the court starts an opinion by
stating something like “the issue before us is whether…”
or “we must decide whether…”). More often,
however, you will be required to glean the issue from the
case based on the court’s ruling and analysis. “Spotting
the issue” is a skill that will become essential for
you to succeed on your exam and in legal practice. Studying
a few examples from foundational Civil Procedure cases will
help to raise your issue-spotting I.Q:
Pennoyer v. Neff, on which the entire notion of personal
jurisdiction rests, involved an extremely broad issue: Does
the United States Constitution permit a state to exercise
jurisdiction over a person who does not live within that state
and has not been personally served with process?
International Shoe Co. v. Washington, another foundational
personal jurisdiction case, addressing a narrower issue: Whether
a corporation is subject to the jurisdiction of a state if
it maintains certain “minimum contacts” there.
The road to personal jurisdiction as we know it continued
with McGee v. International Life Insurance Co., when the Court
asked: May a single contract ever constitute the “minimum
contacts” necessary for a state to exercise jurisdiction
over a party?
D. Rule
Although it will not always seem like it in class, the rule
of the case is the most important thing to remember for your
exam. In fact, almost everything else is irrelevant. You will
have around thirty cases to read for each class per semester.
Given an average of five substantive classes (plus Legal Research
and Writing), you will have around 150 cases to read. For
most of us, it would be impossible to memorize the case names,
procedural postures, and fact patterns of all of these cases.
But you better well know the basic rules!
Begin your “Rule” section with a basic “yes”
or “no” answer. Therefore, in Pennoyer v. Neff
(discussed above) you would answer, “No, the United
States Constitution does not permit a state to exercise jurisdiction
over a person who does not live within the state and has not
personally been served with process.” Then, state the
rule. For example, what does the Constitution require for
personal jurisdiction to exist? The Pennoyer Court held that
the defendant must be present in the forum state when served
with process for jurisdiction to be proper. Try to state the
basic rule as concisely as possible.
E. Rationale
Your “Rationale” section will answer the question,
why? Why did the court rule the way it did? In Pennoyer, for
example, the Court based its holding on the Due Process Clause
of the Fourteenth Amendment. The Court concluded that it would
be fundamentally unfair, and thus would offend notions of
due process, to enter judgment against a defendant who didn’t
have a reasonable opportunity to learn that he was being sued.
Often, the court will list several rationales for its conclusion.
If this is the case, you may find it helpful to create a numbered
list. This way, when your professor asks you to explain why
the court held the way it did, you can reply, in a cool and
organized fashion, that first . . . and second . . . and so
forth. For exam purposes, identifying the rationale behind
the rules you are applying is often the difference between
an “A” and a “B.” For more general
tips on law school exam success, click here.
F. Dissents or Concurrences
In cases before appellate or supreme courts, a panel of judges
decides the outcome. In the U.S. Supreme Court, for instance,
nine Justices try all of the cases. Whatever a majority of
the judges agrees on is how the Court will rule (hence the
term “majority” opinion). More often than not,
one of the Justices disagrees with the majority or “dissents.”
The dissenting Justice has the option to write a separate
opinion explaining why he or she disagrees with the Court
and how he or she would have ruled. Dissenting opinions are
important, especially in constitutional law, because they
often form the basis of future opinions of the Court. However,
for the purposes of your first semester in law school, most
dissents you read are of very little relevance in class and
on your exam. So budget your case-briefing time accordingly
– briefly mentioning how the dissenter would have ruled
and why.
A concurrence, unlike a dissent, agrees with the ultimate
outcome of the case (i.e., the plaintiff loses or wins) but
disagrees on why. For your purposes, concurrences are even
less relevant than dissents. Therefore, simply write a one
or two line description of how the concurring judge’s
rationale differs from that of the majority.
IV. BRIEFING SHORTCUTS
You should strive to read and brief as many cases as possible
in your first semester of law school. Take a poll of any law
school class receiving their first-semester grades and you
will find that most of students who got “As” read
and briefed most of the cases. Not to mention that briefing
cases prepares you for class like no other way can. However,
even the best students inevitably have times when they cannot
brief a case or read it at all. Using an old law school insider’s
tips will make the best out of these situations.
A. Multi-Color Highlighter Briefing
If you have enough time and energy to read your assignments,
but not enough time to brief all of your cases, then here
is what to do. Get five different-colored fluorescent highlighters.
Designate certain highlighters for the essential elements
of your brief. For example, you could make green for facts,
pink for the procedural posture, orange for the issue, blue
for the rule, and yellow for the rationale. As you read the
case, highlight all relevant information in the appropriate
color. In the margins of each important section, write a quick
description of what the court said to jog your memory in class.
At the top of the case, above the case name, indicate which
party is the plaintiff and which party is the defendant.
The most common problem students have with this method is
highlighting too much. Everything you read will seem relevant
at first, but you have to force yourself to distill only essential
information from the case. Something that seems interesting
or is only tangentially important should not be highlighted.
Try to stick to information that is potentially relevant in
class or on your exam. When your professor calls on you, you
will be able to answer according to the highlighted sections
in your book. Although this method may seem cumbersome at
first, learning it is well worth your effort. Many second
and third year law students brief all of their cases this
way – and never skip a beat in class!
B. Commercial Assistance – Getting the Help you
Need
Often, you will find yourself in one of two situations: either
you do not have time to read your assigned cases at all or
you have read (and even briefed) particular case and you still
can’t grasp what the heck the court is talking about.
Not to fear, there is a lot of great help available for you
from a variety of sources. Look around your law school bookstore
and you will be astounded at the sheer volume of commercial
legal study aids. There are printable case briefs, audio case
briefs, hornbooks, outlines, flash cards, and sample answers.
Knowing what sources will help you most is often difficult.
It helps if you think of law school supplements as addressing
one of two needs: exam preparation and class preparation.
Commercial outlines, hornbooks, and flashcards are designed
to summarize the law which you have learned in class in a
neat and organized manner for you to review for your exam.
These materials refer to cases to the extent that they are
relevant in forming rules or serve as good examples of how
to apply them.
Printable and audio case briefs, on the other hand, explain
the ins and outs of a case in order to completely prepare
you for the questions your professor is likely to ask in class.
Much of the information included in case briefs will not be
important for your exam, but will be essential knowledge for
class. These materials will be a bit more detailed than the
briefs you would prepare yourself in order to give you the
full picture of a case which you presumably have not read.
Audio briefs are good for those who learn through listening
or as a way to review your cases on your way to class. To
listen to a sample audio brief, click here. If you do not
have time to read your assigned cases, the best way to prepare
for class is to listen to an expert description of the case
and then print out a brief to bring along with you to class.
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