How To Brief a Case

HOW TO BRIEF A CASE [OR–WHY DIDN’T I CHOOSE TO GO TO MEDICAL SCHOOL] By Dana L. Blatt, Esq. You are just about to start law school. You buy all of your required casebooks [they are about two feet thick–only “slightly” intimidating], and you receive your first assignment. You are simply told, “read the first 100 pages in each book and BRIEF all of the cases!” O.K., you know how to read [hopefully], but what does it mean to “brief” a case? You have heard of “briefcases,” but that is something that you carry around. The last time you sang at a karaoke bar someone may have asked you to be “brief,” but instinctively you know that that is not the kind of brief that is being discussed here. And you may even be wearing “briefs.” But, what is a brief of a case? For that matter, what is a case? The purpose of this article is to teach exactly what briefs are, why they are important, and how to draft them. You will learn most of the various ways to brief a case, the basic elements of each brief, and how briefs are used in various contexts. Additionally, you will read sample cases and briefs of those cases in every format. By the time you finish reading this, you will be so sick of briefs, that you will wish this writing were much briefer! So, now let’s get down to business. What is a case? A “case” starts out as a lawsuit between two or more people. The parties to the lawsuit have a trial and one party wins while the other loses (or possibly there is no trial but one of the parties wins because of a decision based on legal procedure). Next, the party who lost the case gets angry and bitter. So, he or she decides to file an appeal. An appeal is a request that a “higher court” [“”] examine what was done in the trial court to make sure that no legal errors were committed. (The “higher court” is usually referred to as an appellate court. The “highest” appellate court is the Supreme Court.) Generally, there are no trials in appellate courts. Rather, an appeal is strictly a review by a panel of judges of what transpired in the trial court. The appeals courts usually make their decisions in writing. The written decision is called an opinion. It is called an opinion because it reflects the opinion of the justices as to what the law is for that particular factual situation. Since the decision is in writing, it is saved. [Not only is it saved, but it is cataloged and indexed ad nauseam.] Since the opinion has been saved, it can be located in the future whenever it is needed. Opinions have been saved and catalogued for hundreds of years. It is the fundamental theory of our entire legal system that once a case is decided, if there should ever be another case in the future that is the same as the decided case, that future case should be decided exactly the same way as the first case was decided. This is called stare decisis. In other words, the opinion effectively establishes a rule that is to be followed in the future for all similar cases. Moreover, since all of the opinions over the past hundreds of years have been saved, they can always be located and used as a basis to resolve a current legal dispute. The Common Law is the result of the collection of hundreds of years of written decisions by appellate courts in England before the United States was formed. The United States adopted the Common Law and it is the basis of our legal system. Thus, [to answer the question] a case, for purposes of this definition, is a written appellate court opinion which reviews the decision of a lower court and is, accordingly, now the “Law of the Land” according to the doctrine of stare decisis. In law school, what you will study is the aforementioned collection of appellate court opinions because they are “the law.” What is a brief? A brief is nothing more than a summary of an appellate court opinion. That’s it–nothing more! [Now that you know, there is no reason to read the rest of this article.] A brief is a written synopsis or digest. It is just a concise rendering or explanation of the opinion. Your primary job as a law student (even your job as a lawyer) is to brief (i.e., summarize) cases. Why bother summarizing cases? Suppose that you asked a friend if she had seen that old classic movie, “Green Aliens of Reptar?” Your friend frankly concedes that she doesn’t remember that movie and asks, “What was it about?” You could insist that she go see the movie. Better yet, you could “briefly” explain what the film was about (that would surely refresh her memory), and then the two of you could discuss the importance of the flick to your conversation. In law school, you will be asked to read hundreds of cases. Most of the cases are NOT particularly memorable. In class, when it comes time to discuss a particular case, it is “best” if all students are thinking about and discussing the same case at the same time. The professor will select a student (usually at random) to “brief” the case for the entire class. If you are called upon, then [after you catch your breath], you must summarize the case at issue, on the spot, before the entire class. In this manner, the entire class can be reminded of what the case is about before it is discussed. If you are called upon and cannot brief the case, you will be told to stand in the corner. You will be graded by how well you brief a case and by how prepared you are to discuss the ramifications of the case in class. Accordingly, it is essential and fundamental that you read every case and brief every case. You absolutely must be prepared, in every class that you attend, to thoroughly discuss every case; that means that you must be able to recite a brief of every case in every class, every time! With so many unmemorable cases to remember, the only way that one can be prepared to brief every case every time, is to write out a summary of every case in advance of class. To put it another way, it is the job of every law student to read all of the cases and to summarize (i.e., brief) every case. It is extremely time-consuming to write briefs. Thus, study time must be budgeted accordingly. Here we will explain the long, hard, tried and true methods of briefing a case. Later we will show you some short cuts. Are there other kinds of legal briefs? Yes. [You can skip this section if you only want the “beef”!] Throughout your career as a lawyer you will be required to prepare various kinds of writings, all of which are referred to as “briefs.” A trial brief or appellate brief is simply a summary of your legal argument or a collection of “briefs of cases” organized in such a manner and interspersed with legal contentions in such a way as to persuade a trial or appellate court that a particular legal position that is being advocated is correct. The trial or appellate brief is usually “brief” (i.e., only as long as necessary) and rarely, if ever, contains the full text of any case. Rather, such a brief refers the court to the full text of a case by summarizing the important points of the case and providing the citation [a book volume and page number where the case can be found]. If the court needs more information from a case than what is provided by the excerpt, the judge can read the entire opinion by reference to the citation. In one form or another, briefs of cases are used in every kind of legal activity that exists whether it be a trial brief, writing a law review article, drafting an inter-office memo in a law firm, studying for a law school examination, conducting legal research, or making an argument to the United States Supreme Court. In other words, briefing is WHAT YOU DO in law school and a major part of WHAT YOU WILL do as a lawyer. Thus, learning how to brief a case is an essential skill that must be mastered and will be used throughout every person’s legal career. [By now you ought to be really scared!] Briefs can be many pages long or they can be as short as a single sentence. The length of the brief depends on the purpose for which it is going to be used. In this discussion we will focus on briefs for use in the law school classroom. However, we will also provide examples of other types of briefs. Rest assured, however, if one can brief a case for classroom purposes, all other types of briefs will fall naturally into place. Are there different kinds of briefs intended for classroom purposes? Yes; and we will learn about all types in this article. The types are: (1) Standard Classroom Format, (2) Bullet Point Briefs (3) Book Briefs, (4) Professional Briefs, and (6) “Jockey. ” How To Brief A Case. [Finally, at last, thought we would never get there!] There are certain elements which are found in every brief. They are found in every brief because they are the fundamental elements of every case. They are: CASE NAME FACTS ISSUE DECISION Briefly, the Facts are the circumstances which occurred between the parties that resulted in a lawsuit. The Issue is the legal question to be answered by the court. And, the Decision is what was decided by the court. Many commentators advocate the use of a system called “IRAC” for the taking of law school examinations. “IRAC” stands for Issue, Rule, Application, Conclusion. The IRAC elements can also be found in every brief. They represent a basic method of analyzing any legal problem. Actually, “IRAC” is a sub-part of the above basic brief elements. The only reason that the word “facts” does not appear in “IRAC” (i.e., FIRAC) is that the facts are always supplied in a law school examination and “IRAC” is usually thought of as a test-taking tool. We will incorporate “IRAC” into our brief format as follows: CASE NAME FACTS ISSUE ISSUE DECISION RULE APPLICATION CONCLUSION For purposes of understanding a case, we will add one more element, the rational. Thus, our basic approach to a brief is as follows: (1) CASE NAME (2) FACTS (3) ISSUE ISSUE (4) DECISION (4a) RULE (4b) APPLICATION RATIONALE (4c) CONCLUSION Each of the foregoing elements will now be explained in detail [this is referred to as “spoon feeding”]. The very first thing you must do before you brief a case is read it [Duh!]. However, don’t just read it, study it. Read it twice if you have time. Obviously, you cannot do a good job of summarizing something that you do not understand. Legal opinions are full of words that you have never seen before including legal words, Latin expressions, trade terms and rarely used English vocabulary. Look up every word that you do not thoroughly understand. In the first few months of law school, the foregoing task could interrupt your reading many, many times per case, but it will be worth it for improved general understanding. So, let’s get on with it: (1) CASE NAME. Every case has a title. For example, Smith v. Jones. This title contains the names of the parties that are suing each other. Always reproduce the title above each brief. Under the title, include the name of the court rendering the opinion. For example, “United States Supreme Court.” Under the court, indicate the year that the decision was rendered (e.g., 1998). The foregoing information is always reproduced at the top of every opinion. If you have difficulty locating the name, we are in trouble! There is one point that may assist you in understanding the case name. Even if the case is entitled “Smith v. Jones,” this does not necessarily mean that “Smith” is the plaintiff and “Jones” is the defendant. It may be that “Smith” was, in fact, the plaintiff in the trial court. Or, maybe “Smith” was the defendant. However, most appellate courts list the name of the party that filed the appeal first, regardless of their status as plaintiff or defendant in the trial court. Thus, if “Smith” was the defendant in the trial court, but lost the case at trial, “Smith” is listed first in the title of the case because he filed the appeal. Moreover, now “Smith is called the Appellant or Petitioner and “Jones” is called either the Appellee or Respondent. (2) FACTS. After you have thoroughly read and understood the opinion, you should be ready to write the facts. But, you may be asking yourself, what are the facts and how many of the facts should be included in a brief? The facts are nothing more than the story of what happened to the parties. Clearly, at a minimum, your facts must include what transpired between the parties that resulted in a lawsuit. You should attempt to determine the basic operative facts that drive the case. In selecting facts, always keep in mind the ultimate point made by the court. If you understand why the court reached the conclusion that it did reach, you will understand which facts are most important. Only the essential facts should be include in your brief. Remember, you are charged with writing a summary [i.e., just the facts, ma’am!]. A summary necessarily implies that you will leave out some of the details. In order to determine which facts to use in your summary, you must understand which facts are important. If you are unclear as to exactly which of the various points being made by the court is the most important, simply look at the section of your casebook where the case has been reproduced. Be sure you are clear as to the topic being discussed in the chapter under review. The most important part of the case relates to that topic. Next, look at the reasons why the court reached its decision. The facts which support the reasoning of the court are the most important. Don’t be afraid of the facts. There is nothing magical, mystical or mysterious about them. Generally, facts are relatively straight-forward and can be understood by a layperson. This is so because the facts merely relay a short story. You may ask, how long should the facts be? There must be at least enough facts so that one can understand the problem being resolved by the court. The next section of the brief will be the issue. There should be enough facts (enough of the story) that the issue is raised or becomes apparent from a reading of the story. Sometimes, the facts can be clarified and the issue can be raised merely by summarizing the contentions (or arguments) of the parties. Sometimes it helps to state how the trial court ruled. But, when you have completed writing the facts, there should be no surprise as to what the problem is that is being solved by the court. Usually, rules of law are not discussed in the facts. However, sometimes a statute is the subject of a controversy, or a line of decisions are at issue. Under such circumstances, it is acceptable to include rules in the facts. Otherwise, you can probably exclude the legalese from any discussion of the facts. You will decide whether to include legal matters in the facts as you become more experienced. The goal is to write a clear statement of only the essential facts, sufficient to raise the issue, yet long enough to understand the basis for the court’s decision. The best way to understand what is being explained in this article is to examine some sample briefs. Later, we will present a sample case and multiple sample briefs of that case. Moreover, this entire booklet contains over a hundred sample briefs from all of the first year law school courses. According, you should be able to learn a great deal by studying examples. (3) ISSUE. The facts must be long enough to tell the story. The issue, on the other hand, is simply one single sentence. As short as the issue is, in the beginning it will be very difficult to draft. The issue is always in the form of a question. And, the question can usually be answered with a simple “yes” or “no.” If the parties to the lawsuit could not settle their case in the trial court, that means that they must still be arguing over some point. Maybe they are arguing about whether the sky is blue or grey. If the foregoing is the question, the issue is, “Is the sky blue?” or conversely, “Is the sky grey?” [The answer, of course, may depend on the weather.] But, note that the question is capable of a yes or no answer. Usually, the question is not confined to the facts of the case as in the above example (i.e., the question of the color of the sky should have been resolved by a factual finding in the trial court). Instead, the issue should be phrased as a legal question. The question describes the legal problem that the court must solve. Stated otherwise, assuming the scenario described in the facts, and considering the various contentions of the parties, what must the court decide (what question must the court answer)? For example, do you remember the case of Roe v. Wade? The question in that case was NOT, “Should abortion be legalized?” (The foregoing is not the issue because it is too confined to the facts and does not state a legal principle.) [Even if you didn’t remember Roe v. Wade from the name, you now know the primary principle for which it is most often cited. Moreover, you should also have learned something about how a question can set up a problem to be solved--even if it is the wrong question.] A more correct and legalistic description of the issue in Roe v. Wade is as follows [of course, you would have no means of knowing this issue unless you read the case], “Is there an implied right of privacy in the United States Constitution which limits the power of states to regulate abortion in the first trimester of pregnancy?” Note that there are no facts stated in the issue (although you can certainly glean a great deal about the facts from reading the issue alone). Note also that after the question asked by the issue is answered (i.e., yes or no), we are left with a rule of law: “There is an implied right of privacy in the United States Constitution which limits the power of states to regulate abortion in the first trimester of pregnancy.” The foregoing observation should also help you to formulate an issue. That is, once you have determined what the rule of law is, you can convert that rule into a question and you will have the ISSUE! There is usually only one main issue per case. Your challenge, [should you decide to accept it], is to select the single most important question presented by the opinion. If you feel that there is more than one issue, write out each version of the issue that you feel is appropriate. Then, attempt to combine all of your versions into a single question. Sometimes the issue is easy because it is specifically articulated by the court in the opinion. But, be careful. Even if the court has expressed an issue, it may not be the most important issue. As suggested earlier, to get help in determining the most important issue, refer to the subject being discussed in the casebook chapter. For example, if the course is Torts, the subject being studied is negligence, and the topic under discussion is the element of “duty,” the issue should be one involving “duty” and not, for example, “breach of duty.” This is so even if the subject of “breach of duty” is discussed in the case. There are some statements of the issue, however, which are NEVER correct. The reason they are never correct is that they generally apply to most or many cases, and teach us nothing about the legal problem to be solved. Examples of incorrect issues are as follows: “Is the defendant liable?” “Should the trial court judgment be affirmed on appeal?” “Should the evidence be excluded?” “When one person drives her vehicle into the rear end of another person’s automobile, is the driver of the car in the rear liable for negligence?” [This issue is incorrect because it is too confined to the facts of the case and does not articulate a legal principle.] Instinctively you will always know and understand the issue after you have finished reading the facts. You will not need to be told what the issue is. The only difficult p