Brief – the noun, the verb, the adjective.
Reviewing and analysing a compilation of actual past legal cases and judicial opinions, or case law, is the primary manner of studying and learning law in U.S. law schools. This method of studying actual judicial opinions to learn legal rules and develop the ability to think like a lawyer is called the Case Method.
The actual compilation of past legal cases and opinions that you will use for a law school class is called a casebook. For many courses in law school, your casebook will be your only textbook. Case Briefs are simply a set of notes comprised of important points on each assigned case that you’ll use for class discussions.
After you properly read a case,
then you can brief (the verb),
to create a brief (the noun),
which is appropriately brief (the adjective).
A case brief is the end result of reading a case, re-reading it, taking it apart, and putting it back together again. In addition to being a useful tool for self-instruction and referencing, the case brief also provides a valuable “cheat sheet” for class participation. With a few techniques in hand, you will be able to master the art of briefing cases to be well on your way to owning class discussions.
You’ll also pull some information from your case briefs into outlines you’ll use to ultimately prepare for mid-terms and finals.
Briefs are the subject of more discussion, debate and dispute than can be imagined and certainly more than is appropriate. Some people swear by them and brief every case. Others say that they are a time consuming, out of date, pointless exercise that is continued long after the lesson that they teach has been taught. Most people are in the middle somewhere taking a “brief if necessary, but don’t necessarily brief” approach, finding a balance that works for them. You will as well. But first you have to learn to brief (v) a brief (adj) brief (n).
Despite the almost mythical stature importance which briefs have been given, at its most basic, a brief is a summary of the most significant portions of a court’s legal decision.
What that summary includes and how it treats those significant portions makes briefs relevant and useful. A good brief captures and condenses relevant information and places it in a format that makes it easy to understand and simple to recall. Most importantly, a good brief identifies the operative legal rule that a court applies (or even creates) and analyses how that court applied the law to the facts in the case.
Why should you write case briefs?
In brief, case briefs are useful because they Identify the most important aspects of a case, making it easier to synthesize the information, outline the legal principles and rules that were established in a case, put cases in context with other material learned in a course and are a great study tool.
Briefs help you to learn and understand important and complex issues of law.
Cases are not written as teaching documents for law students, they are written for the lawyers who presented their arguments in support of the positions of their clients to explain what that court decided and why. The cases you will be asked to read will help you understand how the law in that area has evolved and how that case should be thought about and understood in the context of other cases in the same area of law.
Briefing a case helps you understand dense and confusing language in the case to create a short summary of the legal principle or statement of law which is easier to understand.
Briefs help you learn how to read a legal opinion.
Briefing cases is an active study technique that helps you learn how to read a legal opinion. Specifically, you learn—among other things—how to spot the legal issue, recognize legally significant facts, identify the rule of law, and understand the court’s reasoning. In the future, when a client’s case requires legal research, you’ll be able to quickly examine dozens of cases to locate and document what you need in an organized and efficient manner. Case briefing is a skill worth honing.
Case briefs refresh your memory before class and are study-aids for exams.
A case brief serves as a way to refresh your memory on key information from a case that you may have read several days before class, or many weeks before an exam. Good case briefs also serve as study aids when preparing for final exams. Instead of returning to your casebooks and reading entire cases, students often refer to their case briefs instead.
What information does a case brief usually include?
Typically, case briefs are no more than one page in length and will follow template. That template will probably start with one that is suggested to you but will evolve into a style that you find helps you with the quickest recall of important information. Although case briefs often differ in style, the information contained within a complete brief will not vary from student to student.
Remember that the only person who will be reading your briefs is you. They won’t be submitted for marks, so you are writing briefs for the sole purpose of helping you to understand the assigned cases and material. A brief will usually include the following sections which are described below: title, facts, issues, holdings (decisions), reasoning (rationale) and judgment. However, different professors might suggest other elements which are also described below as optional.
Title and Citation
The title will be the parties in the case (John v. Smith). As well as including a title, it’s helpful to cite the case and include the page of the casebook so you can reference it if needed.
Facts of the Case
Briefly summarize the relevant facts of the case to tell you what happened. The keyword here is relevant. An opinion will often include many facts that are not directly relevant to the court’s analysis. You might add some irrelevant facts if they are necessary to understand what happened, but don’t get too carried away. You should also include the parties involved, what happened procedurally in the lower courts, and the trial court’s judgment.
Issue
Identify the legal issue that the opinion is addressing which is the question of law the appellate court is being asked to decide.? It is often helpful to word your “issue” as a question that can be answered with “yes” or “no.”
Often, the cases assigned in a casebook are shorter excerpts of a much longer opinion, so the issue will be apparent. Be mindful of where in the casebook a particular case is being presented—i.e., if the case appears in a section on negligence in tort law, even if the court also mentions causation or damages, there’s a good chance the main issue will be negligence.
Rule
Identify the rule of law that the court applied. The rule is what drives the opinion towards its outcome. This may be straightforward when, for example, the court applies a well-established negligence rule such as the reasonable person standard. On the other hand, this may be a bit more complex when the court fashions a new rule. Very often, you can simply copy the court’s rule statement directly from the casebook into your brief.
Holding (Decision)
Be careful not to confuse the holding with the court’s judgment. The holding is the court’s decision or legal conclusion after applying the rule. For example, did the court hold that the defendant was negligent under a particular set of facts? Did they decide to uphold the lower court’s decision? Did they reverse and remand the case? The holding can be thought of as the product of the rule of law and the analysis.
Reasoning (Rationale)
Sometimes called “legal analysis,” this section describes why the court ruled the way it did. You’ll want to make sure you’re outlining the parties’ arguments and explaining the steps the court took when reaching its decision. If the court applied a well-established rule, explain how the court applied that rule to the facts. Which facts were most relevant? Which were insignificant? If the court fashioned a new rule, explain how the court developed the rule and why it chose to do so.
Judgment
This the court’s ultimate disposition of the case. Did the court grant or deny a motion? Affirm or reverse a lower court? The judgment can usually be just a few words at the end of your case brief.
Policy (optional)
If the court provides any public policy reasons for its adoption of a new rule—or, its application of an old rule to a new situation, you may want to briefly note those reasons here. Policy usually consists of the court explaining the purpose of a rule and its application to a particular factual situation.
Dicta (optional)
Sometimes the court provides “dicta” which is an extended discussion of an issue that is not necessary to reach the holding. This is known as “dicta.” Although it might provide insight into how the court will address similar situations in the future, it is not considered essential to the court’s holding and thus is not binding law. There can be disagreement about just what constitutes dicta and what doesn’t, but, if you think the court provides useful dicta, it may be worth jotting down a brief sentence or two.
Dissent (optional)
Not every case has a dissenting opinion, but there are decisions in which the dissent can be just as important as the majority opinion, such as when it highlights a major disagreement in the law or points out significant gaps in the majority’s reasoning. If your casebook includes a dissent, it’s not an accident, so there’s a good chance that your professor will want to discuss it. By including one or two sentences about the dissent’s point of view this will get you thinking about the case from a different perspective and will make you even more prepared for class discussions and exam questions.
The Do's of Case Briefing
Remember the issue before you brief a case.
Before you start reading assigned cases, look at the chapter headings and the table of contents in the casebook. These will tell you the topic to which the assigned cases relate, and where this topic fits in the overall course.
Keep your law dictionary close.
Legal terminology is a technical language with technical meanings. When a word is used that you don’t understand, or when a word is used in some unusual sense, stop, and look it up. Try to use that word in your case briefs so you’ll better recall the context and its meaning later.
Develop a way of briefing which works for you.
Briefing cases is core to learning to “think like a lawyer”. Once you have become comfortable with briefing a case, you will be able to efficiently distil facts and reasoning of a case. Develop a format of breaking down the essential elements that works best for you.
Keep your briefs brief.
Your case briefs are there to help you quickly recall the case in sufficient detail during class discussion and to integrate into your class notes and outlines later. Regurgitating the entire case is not helpful. Avoid copying citations. Simply try to capture the gist of the facts and the court’s reasoning in just a few words.
The Don'ts of Case Briefing
Writing long briefs that include large sections copied right out of the case.
Briefing is really just note-taking so you can recall what you read in order to be prepared if you get called on in class and to refresh your memory while studying for exams. If your brief is five pages long or copies out huge paragraphs of the case you won’t understand it.
A brief is just that—something that is brief. It consists of your notes on the case. Those notes should be in your own words so you can think through and understand the material.
Copying holdings verbatim from the case.
It’s important to state the holding (judgement in a case) in your own words as you brief. By doing so, you are more apt to fully understand the legal principles better and memorize them more easily.
Briefing while you are reading.
Instead of briefing while you are reading, if you brief as soon as you have finished reading, it will make it much easier to decide what you need to remember about the case and include in the brief. This will help you to remember what the case is about, help you decide what is important and remember the case better when it comes time for class and for the exam.
Skipping out on reading the actual case.
You will be tempted to try to save time by reading only a third-party case brief or another student’s hand-me-down outlines. While these can be helpful supplements, reading and analysing the case is key to truly understanding and applying the information you are learning to other situations. This is what it means to think like a lawyer. Your professor also knows this is occurring and will change the question to things he or she knows are not in the case briefs.
Relying solely on book briefing.
Book briefing, or simply highlighting information in different colours in your casebook, will not hardwire the material into your mind. Case briefs will. When you are just starting out, it will be difficult to understand and remember what you previously read without taking notes in some organized fashion — the final step of writing out a brief.
Worrying if your case briefs aren’t perfect.
Remember, your briefs are only for you, you are the person that the brief will serve, and briefing is a skill you will develop as you become more comfortable reading cases. Most professors will promote the value of briefing but will never actually ask to see that you have, in fact, briefed.
And now, the other side of the issue:
What is wrong with law school case briefs and Why you shouldn’t write them.
As with so many issues that will come up while at law school, there will be two sides to every issue (even those that might seem to quite one-sided, as law school is just like life in so many ways). This includes about the issue of writing case briefs.
The position against writing case briefs is basically that while is an initially helpful training to help the new law student develop the essential skill of reading legal cases and picking out the critical parts of them, it should be considered to be only that: initial training for a new student on how to do one fundamental thing. Once that fundamental thing has been properly learned, the law student should not continue to do what will become an exercise which is no longer teaching anything useful. Instead, the law student’s time is better spent on learning and developing other skills.
Proponents of the “anti-brief” position take the fairly rigid position that you should only write law school case briefs for the first week, and then never, ever do it again. In taking this position, they note that you never stop using the skill of reading cases and finding the issue, the holding, and the reasoning. It will become second nature, and you will do it unthinkingly and without writing everything down. If you want, you can just write notes or underline things in your case book after that identifying key parts of the cases you read.
The main point which is raised by those who argue against continuing to write case briefs for every single case is how much work this requires and how much time it takes. For any given class, you might read 3-5 cases for each hour you spend in class. You've got anywhere from 12 to 15 class hours per week, meaning that on top of doing the reading (which itself takes a while), you're going to write (let's be conservative) 36 case briefs per week? And let's say you just take 15 minutes on each case brief this can require 9 extra hours of work every week.
This can become a problem when you spend so much time on case briefs that you don’t have time to do two absolutely critical things in order to properly prepare for and take your final exams: outlining courses and taking practice exams.
So, the answer is: Brief? or Don’t Brief?
When deciding whether or not you should keep briefing all of the assigned cases, you should ask yourself if you’re doing so because you heard from someone that you had to do them to get good grades, or because your classmates are writing them, or because it makes you feel like you're working hard.
None of these are good reasons to keep briefing all cases.
There will come a time where you have to balance the time it takes to do case briefs and also prepare and learn your outlines and take practice exams for each of your classes. You won’t have time to do it all.
You will have to, and you will, reach the point when you have learned the fundamental skill that briefing cases will teach you and continuing to brief cases does not leave with sufficient time to learn and master new skills and properly prepare to do your best in your final exams. At that point, you may need to do what those on the “anti-brief” side suggest: work smarter and skip doing briefs: you will already work hard enough.
If (or when) you decide to take this position at some point during your first year take some comfort with the knowledge that you probably aren’t going to use most of the information you put in your law case briefs and it’s very unlikely that any exam will test you on the procedural posture or dissenting opinions of a particular case.
So, are case briefs necessary? Absolutely yes. It will teach you a critical skill which is fundamental to succeeding at law school and being a good lawyer.
Should you keep doing them throughout first year law? Probably not, as once you have mastered that critical skill your time may be better spent on learning all of the other skills you will need and preparing to demonstrate in your final exams that you have done so.
It will be up to you to exercise the judgment of knowing when that time has come. It will be one of the many times in law school and while being a lawyer that your own judgment will be a critical factor in your success.
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