Briefing Cases

Your legal skills professor, and potentially some of your other professors as well, will teach you a lot about briefing as soon as you begin classes, but I figured I’d give you a really basic idea of what to do so that you’re not going into your first assignments blind.

Some professors say that briefs should be written a certain way, but briefing is really about what helps YOU the most because briefing is used to aid your recollection of the case. Your professors will most likely NEVER check your briefs; in fact, the only professor that's likely to check your briefs is your legal skills professor... and even then, he or she is most likely only going to have a quick assignment on it. Law school is very different than college in that way - in MOST classes, you won't have homework to turn in, and you won't have anyone to say "hey, you're doing this completely wrong." So, since no one will see your briefs but you,it’s important to format them to suit your needs.

Briefing is exactly what it sounds like: reducing the case to its SIMPLEST and most ESSENTIAL ELEMENTS. When you first begin reading cases, it’s easy to see how every single piece of the case could be seen as essential… after all, if the court is talking about it, it’s probably really important! However, what you have to keep in mind is that these cases weren’t decided so that they could be placed in a specific section of a law school casebook. They were decided because the court needed to work out a dispute between the parties, and they’re put in law school casebooks because the case happened to be a fitting example of one or two elements of a specific subject. Take one of the first contracts cases you’ll get as an example: Lucy v. Zehmer, 84 S.E. 2d 516 (1954).

In its most essential form, this case is fairly simple: The Plaintiff (W. Lucy) has been trying to get the Defendant (A. Zehmner) to sell his farm to him for quite some time now. Every time Zehmer gets close to selling his farm to Lucy, Zehmer backs out at the last minute and doesn’t go through with the deal. Zehmer is in the local bar one night, and Lucy walks in. Lucy sits down at Zehmer’s table and tries to get him to sell his farm yet again. This time, Zehmer seems a little more willing, and again agrees to sell the farm. Lucy, being skeptical, throws a piece of scrap paper on the table and asks Zehmer to write out a contract. Zehmer does, and both he and his wife sign it. Lucy grabs the piece of paper off the table as soon as Zehmer finishes signing it, and tells Zehmer that he’ll pay him tomorrow. This time when Zehmer tries to back out of the deal, he’s not so lucky! Zehmer tries to argue that he was merely joking when he offered to sell his farm and that even if he did sign it, he was drunk (not true) and that Lucy was trying to get him drunk to sign the contract.

Well the court actually finds for Lucy on this one, finding that Zehmer wasn’t so drunk as to be unable to enter into a voidable contract, and even if he was joking, the court will not look at a party’s subjective intent in entering into a contract so long as the other party is reasonable in believing that the party he is contracting with has objectively manifested assent to the sell their property.

So what should you take out of all that? As sad as it may sound, even that much information is too much for a brief (although I did leave some other elements out). Once you get into contracts, you’ll begin to learn the essential elements of forming a contract. This case falls under the “Offer” section, and it’s really only used for what I wrapped up with (objective manifestation of assent). As you go through the year, you’ll have to dissect more and more in each case… offer, acceptance, consideration, statute of frauds, parol evidence… and on and on! But while you’re in each section of the textbook, make sure you’re looking for the issue that pertains to whatever part of the casebook you’re in. For example, you might think that there is a problem with writing something on a piece of scrap paper you found in a bar, or maybe you think that there’s a problem with the buyer paying for the farm the next day. Either way, these problems don’t relate to the offer (again, this is the section you should be paying attention to).

Now let’s get down to HOW TO BRIEF. There is no "one and only" way to brief, but this is the most widely used version. Each of the bold headings should be a separate section of your brief, but here is a quick list so you get the big picture first:

1) Facts
2) Procedural History
3) Issue
4) Holding / Rule
5) Reasoning
6) Decision
7) Opinion(s)
8) Notes / Problems

One trick that I found quite helpful throughout the year is to make a blank case brief template with all of these elements, saving it on my desktop so that I can open it up, insert the specific case name and casebook page number, and then save it under a different name that corresponds to the case. Here’s an example of what the blank template looks like:



To begin, start by putting the Title of the case at the top of the page (where I have the word “case” underlined at the top). In the example case above, this would be: Lucy v. Zehmer, 84 S.E. 2d 516 (1954). Without getting into too much detail (mainly because your Legal Skills professor will do a much better job at this than I will), the names are the last names of the parties, usually with the plaintiff’s name being first (although this changes depending on the court that you’re in and what level you’re at (appellate court, trial court…etc). The numbers that follow the names are the citation for the case. This case would be found in VOLUME 84 of the South East REPORTER, PAGE 516. You’ll learn all about this soon enough, so don’t worry too much about it just yet.

Next, make sure you note the casebook page (this will be invaluable later on in the semester).

Facts:

This is where you should put in the facts of what happens between the parties, but try to leave out things that aren’t essential (again, you’ll get better at this as the semester rolls on). One trick that will come in quite handy is to insert a SYMBOL instead of the parties’ names. For example, instead of saying “Lucy” or “Zehmer” every single time, you can insert Π (the pie symbol) for the plaintiff, Lucy, and ∆ (the delta symbol) for the defendant (Zehmer). These are two symbols that are most commonly used for plaintiff and defendant (mainly because P and D can easily get lost as they are letters themselves). The best way to do this is to create a SHORTCUT KEY for each. My shortcut key for Π is Alt + P. Just go into your symbols menu in your word processing program and set the shortcuts. If you don’t know how to do that, there are tons of well organized how-to articles on line… I won’t provide a walk-through here because, well, I’m not that tech savvy!

Here are a few symbols and abbreviations that I have come to widely use or create shortcut keys for:

Plaintiff = Π – Alt + P
Defendant = ∆ - Alt + D
Contract - ₭ - Alt + K
Subsection - § - Alt + S
Trial Court - TC
Court of Appeal – CoA
Supreme Court – SC
Jurisdiction – Jx

Procedural History:

This is where you will explain what has happened as soon as the case is filed with the court. This section is especially important in Civil Procedure, but is of little importance in other subjects. Start this section with the complaint (why the plaintiff filed the case). This can be as simple as “plaintiff sues defendant seeking specific performance of the contract”. Next, state where the case is filed. For example: “Plaintiff filed suit in a Connecticut Trial Court”. Then say what happened in that court (if it went further): “Trial Court found for the Defendant, plaintiff appealed”. Wrap it up with the level of court that you’re in now: “the Connecticut Supreme Court is now hearing the case”. You get the idea.

If you are doing a brief for Civ Pro, you should also note why the district court has jurisdiction… you’ll learn a lot about this soon enough! For example: Plaintiff filed suit in Federal District Court in TX under diversity jurisdiction (U.S.C. §1332). In addition, what MOTIONS are being filed will be important in Civ Pro, but not so much in others.

Issue:

This is where things get tricky. If you’re lucky, some cases will literally point out what the issue is. However, this is pretty rare. The best way to pick out the issue is, yet again, best done by keeping in mind the section of the casebook you’re in. For example, the issue in Lucy v. Zehmer is a simple one:  did the words/actions on the part of the Defendant (Zehmer) create a valid offer which the Plaintiff (Lucy) could accept? The issue always comes in the form of a QUESTION.

One trick that I've always used to spot the issue is to GO RIGHT TO THE HOLDING/RULE... if you simply reverse the wording of the holding or rule, the issue appears right in front of your eyes!

Holding / Rule:

This is where you will answer the question that you just posed in the "Issue" section. Sometimes the question you will ask will just be a yes / no in response to the issue that you just stated, which is why it’s easier to join the holding and rule in my opinion.  Thus in Lucy v. Zehmer, the holding/rule would look like this:  "Yes, the Defendant's words and actions created a valid offer which the Plaintiff could accept.  In determining whether a party has made a valid offer, the words and actions of the party are interpreted according to a reasonable person standard. If the words or other acts of one of the parties have but one reasonable meaning, his undisclosed intention is immaterial except when an unreasonable meaning which he attaches to his manifestations is known to the other party." 

The rule is actually what will be applied to cases that you’ll have in the future. Most rules are what the majority of jurisdictions will follow, but some are more of a minority view (yet still worth pointing out). If you’re in Civ Pro, you’re actually dealing with the Federal Court system, and all rules will be applied to all federal cases. If you’re in Constitutional Law, obviously all Supreme Court decisions are mandatory law and must be applied in all cases (federal or state).

If you are having difficulty spotting the issue, holding, or rule, the best thing you can do is to LOOK AT THE HEADNOTES ON WESTLAW OR LEXIS. The headnotes are basically an outline of the major rules used in each case. If you click on the number next to the headnote, it will bring you directly to the section in the case where that rule appears. **CAUTION** Some people get LAZY and only look at the headnotes for all of their classes... this is an INCREDIBLY BAD IDEA, and you shouldn't do it because your 1st year professors will kill you when you get called on. Well maybe they won't kill you, but you'll want to die when you don't know a specific fact because you skimped on the reading!

Reasoning:

This is the section that you will insert the Judge’s reasoning, which is the bulk of almost every court opinion. You’ll probably only have a page or two of facts, maybe a page of procedural history, the issue will be a quick blurb, and then the court will give their reasoning for 5 or 6 pages.  Be sure to take at least one point out of each paragraph (usually each paragraph is a certain point that the judge wants to make). This should also be the bulk of your brief (maybe 1/3 of a page… more if it’s necessary).

In addition, some professors will ask you what one of the parties' arguments was. You may find it helpful to quickly point out "Defendant was arguing that no one could find that he manifested an intent to enter into the contract," and then put a bullet under that explaining how the court accepts/rejects that argument.

Decision:

This is the court’s disposition… usually fairly straightforward and looks like this: “the case is reversed and remanded, finding in favor of the plaintiff.” Usually I just write down who wins/loses and what happens now, but the court does this by saying “reversed and remanded in favor of the plaintiff/defendant” or “reversed in favor of defendant/plaintiff”. Either way, it’s also good to put in what happens because of the decision: “defendant has to pay for plaintiff’s injury,” “defendant’s promissory estoppel defense worked, he wins”… etc.

Opinion(s):

This section is really only necessary for certain classes, but you will want to include it in EVERY CONSTITUTIONAL LAW BRIEF, specifically naming each justice that joins the majority, concurrence, dissent, or dissenting in part / concurring in part. Although this might sound too technical for you this early on, I'll explain a bit. In Con Law, certain constitutional decisions are formed by what's called a "plurality opinion" where there's no clear "majority" on an issue. By looking at all the opinions, you can discern which issues each of the justices agree on and which ones they don't. If you see that 5/9 justices agree on one of the issues (despite the fact that they disagree on all others), you get a plurality opinion.

In other classes, the opinion(s) section will come in handy to see what the minority (or majority) of states would do, and possibly the policy reasons for the rule set forth.

Notes / Problems:

The next part that I would highly advise putting in is a notes/problems section. This is where you can actually take notes that come from the notes or problems sections of your casebook, or even notes that come from lecture. Either way, they should be directly related to that case. Some professors will also point out that you should put in your own personal notes (what you think should have happened in the case or why you think the outcome is right/wrong), but I’ve honestly never found that to be helpful.

Although it's not necessary, and quite honestly might be overkill, I've always put in the citations for certain cases in the notes sections after the highlight case. Normally, I only put in citations for cases that come out of Connecticut or Maine, mainly because these are the only two states that I might practice in.

So what’s the final product?

Your final product, believe it or not, should be NO MORE THAN 2 PAGES LONG! Think of it this way, if you can’t explain the case in a page or two, how are you going to be able to condense it even more for your outline? Essentially, what you’re doing is reading the long version of the case, highlighting and then condensing. Then when you brief the case, you’re only taking down the highlights and making the case as simple as possible. When you have to outline (which is another topic in itself… it’s going to take me a while to get that one down), you’re taking the condensed material and condensing it even further. You’ll turn a page or two into a few sentences! That’s why I point out the fact that it’s hard to see the forest for the trees through the semester. It’s easy to get caught up thinking about one particular case as it stands alone… but you have to think of the big picture the whole time, otherwise you’ll lose sight of why that case is important in the first place!

If you’re concerned that you don’t know how to brief or that the professor keeps pointing out things that you didn’t pick up when you read the case, DON’T WORRY! It takes months to finally learn what each particular class/professor hones in on, and it takes a lot of time to be able to spot issues. This, however, is what lawyers get paid to do… spot issues! You’ll be able to do it in everyday life soon enough, and it’ll start getting easier and easier as time goes by. If you want to compare your briefs to what other students or professionals come up with, look at the posts below regarding class-specific briefing sites. In addition, you can always buy books that have nothing but briefs in them (they’re usually “keyed to” specific casebooks… again, you’ll find more information in the following posts).

If you get through a couple of weeks and still don’t think you’ve got the hang of how to brief, my advice is to talk to the professor in the class that you’re having trouble with. If it’s briefing in general that you’re having trouble with, talk to our writing specialist (I forget her name at the moment, but you will most definitely hear her name mentioned on more than one occasion in your orientation and in the first couple of weeks of classes). She’s there to help you understand this stuff because let’s face it, not everyone comes from an Ivy League school with a great writing background! Don’t be ashamed to ask for help when you need it. That being said, upperclassmen are always there to help you as well (myself included). We’ve been through it, we know what frustrates students and how we overcame the confusion… seek us out!