- Feb 2014
What rationale is important to include in a brief? This is probably the most difficult aspect of the case to determine. Remember that everything that is discussed may have been relevant to the judge, but it is not necessarily relevant to the rationale of the decision. The goal is to remind yourself of the basic reasoning that the court used to come to its decision and the key factors that made the decision favor one side or the other.
Extraction. What rationale is important to include in a brief?
Why highlight? Like annotating, highlighting may seem unimportant if you create thorough, well-constructed briefs, but highlighting directly helps you to brief. It makes cases, especially the more complicated ones, easy to digest, review and use to extract information. Highlighting takes advantage of colors to provide a uniquely effective method for reviewing and referencing a case. If you prefer a visual approach to learning, you may find highlighting to be a very effective tool.
In addition to making it easier to review an original case, annotating cases during the first review of a case makes the briefing process easier. With adequate annotations, the important details needed for your brief will be much easier to retrieve. Without annotations, you will likely have difficulty locating the information you seek even in the short cases. It might seem strange that it would be hard to reference a short case, but even a short case will likely take you at least fifteen to twenty-five minutes to read, while longer cases may take as much as thirty minutes to an hour to complete. No matter how long it takes, the dense material of all cases makes it difficult to remember all your thoughts, and trying to locate specific sections of the analysis may feel like you are trying to locate a needle in a haystack. An annotation in the margin, however, will not only swiftly guide you to a pertinent section, but will also refresh the thoughts that you had while reading that section.
Why annotate a legal brief?
The judgment below for that reason must be reversed.
Court reverses decision of lower court in favor of the plaintiff since he was characterized as a public official.
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?
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.
dicta refers to anything that isn't relevant to the case's holding.
THE ELEMENTS OF BRIEFING Procedural History Legal Issue Facts of Case Statement of Rule Policy Dicta Reasoning Holding Concurrence Dissents
The Elements of Briefing
- Procedural History
- Legal Issue
- Facts of Case
- Statement of Rule
Reasoning The reasoning gives the reader insight into how the court arrived at its decision. It is instructive in nature. Courts often back their holdings with several lines of reasoning, each of which should be summarized in this section. Unnecessary repetition of facts or the issue should be avoided. A court�s rationale for its holding might be a simple explanation of its thought process. Alternatively, the reasoning might be based on the plain language of the statute, Congressional intent, the re-enactment doctrine, or other common means of resolving judicial disputes.
Several lines of reasoning may be used to back the Court's holdings and may be:
- a simple explanation of the Court's thought processes
- based on the plain language of the statute
- congressional intent
- re-enactment doctrine
- other common means of resolving judicial disputes (what are those?)
Holding As the issue�s complement, the holding consists of two parts: (1) a “yes” or “no” conclusion to the brief�s issue and (2) the rule of law the court establishes. The rule of law is a guidepost that courts use to decide future cases based on the legal concept of stare decisis (judicial tendency to follow prior decisions).
The holding has two parts:
1) A decision on the legal issue (yes/no)
2) The rule of law the court establishes
Beginning the issue with “are” or “is” often leads to a clearer and more concise expression of the issue than beginning it with “may,” “can,” “does,” or “should.” The latter beginnings may lead to vague or ambiguous versions of the issue. Examine the following alternative statements of the judicial issue from Aiken Industries, Inc. (TC, 1971), acq.: Issue 2 (Poor): Are the interest payments exempt from the withholding tax? Issue 2 (Poor): Should the taxpayer exempt the interest payments from withholding tax? In the first version of issue 2 above, to which interest payments and which withholding tax is the writer referring? The issue does not stand alone since it cannot be precisely understood apart from separately reading the brief�s facts. The extreme brevity leads to ambiguity. In the second version, the question can be interpreted as a moral or judgment issue rather than a legal one. Whether the taxpayer should do (or should not do) something may be a very different issue than the legal question of what the law requires. A legal brief, however, should focus on the latter. Rewriting issue 2 as follows leads to a clearer expression of the precise issue: Issue 2 (Better): Are interest payments exempt from the U.S. 30% withholding tax when paid to an entity established in a tax treaty country for no apparent purpose other than to escape taxation on the interest received?
Extreme brevity leads to ambiguity. The summary of the issue should be written to avoid opening the question to interpretation as a moral or judgment issue; instead focus on the legal question.
Issues should be stated so that they “stand alone.” That is, issues should be completely understandable without reference to the facts or other sections of the brief or judicial decision. Use of the definite article “the” indicates that the issue does not stand alone when it alludes to prior information.
The summary of the issue should "stand alone" or be self-contained such that enough context and background is included in the summary to not have to refer to the document it came from.
I think this is an important pattern to use elsewhere, as well.
dural issue : What is the appealing party claiming the lower court did wrong (e.g., ruling on evidence, jury instructions, granting of summary judgment, etc.)?
Procedural issue. What is the appealing party claimin ghte lower court did wrong:
- ruling on evidence
- jury instructions
- granting of summary judgment
b. Identify legally relevant facts, t hat is, those facts that tend to prove or disprove an issue before the court. The relevant facts tell what happened before the parties enter ed the judicial system. c. Identify procedurally significant facts. You should set out (1) the cause of action (C/A) (the law the plaintiff claimed was broken), (2) relief the plaintiff requested, (3) defenses, if any, the defendant raised.
Identify the relationship/status of the parties (Note: Do not merely refer to the parties as the plai ntiff/defendant or appellant/appellee; be sure to also include more descr iptive generic terms to identify the relationship/status at issue, e.g., buyer/seller, employer/employee, landlord/tenant, etc.)
Identify the factual relationship of the parties, not just the procedural relationship.
Examples of procedural:
Examples of factual:
Functions of case briefing A. Case briefing helps you acquire the skills of case analysis and legal reasoning. Briefing a case helps you understand it. B. Case briefing aids your memory. Briefs help you remember the cases you read (1) for class discussion, (2) fo r end-of-semester review for final examinations, and (3) for writing and analyzing legal problems.
Briefing a case helps you understand it and acquire skills of:
- case analysis
- legal reasoning
Case briefing is good for:
- aids memory
- class discussion
- end-of-semester review for final exams
- writing and analyzing legal problems
nctions A. A case brief is a dissection of a judici al opinion -- it contains a written summary of the basic components of that decision. B. Persuasive briefs (trial and appella te) are the formal documents a lawyer files with a court in support of his or her client’s position
- student brief
- procedurally significant
- legal brief
- procedural relationship
- case brief
- factual relationship
- persuasive brief
- judicial opinion
- statement of facts
- procedural issue
- legally relevant
A CAUTIONARY NOTE Don’t brief the case until you have read it through at least once. Don’t think that because you have found the judge’s best purple prose you have necessarily extracted the essence of the decision. Look for unarticulated premises, logical fallacies, manipulation of the factual record, or distortions of precedent. Then ask, How does this case relate to other cases in the same general area of law? What does it show about judicial policymaking? Does the result violate your sense of justice or fairness? How might it have been better decided?
Read the case to identify:
- unarticulated premises
- logical fallacies
- manipulation of the factual record
- distortions of precedent.
How does this case relate to other cases in the same general area of law?
What does it show about judicial policymaking?
Does the result violate your sense of justice or fairness?
How might it have been better decided?
- Jan 2014
the parties, the procedural posture, the facts, the issue , the h olding, and the analysis.
Parts of a judicial opinion identified in a student brief:
- procedural posture
When a law student briefs a case, he typically identifies several pieces of information: the parties, the procedural posture, the facts, the issue , the h olding, and the analysis. Although it seems foreign at first, identifying this information, understanding judicial opinions , and applying their reasoning to new cases becomes much easier with practice.
Student brief A student brief is a short summary and analysis of the case prepared for use in classroom discussion. It is a set of notes, presented in a systematic way, in order to sort out the parties, identify the issues, ascertain what was decided, and analyze the reasoning behind decisions made by the courts. Although student briefs always include the same items of information, the form in which these items are set out can vary. Before committing yourself to a particular form for briefing cases, check with your instructor to ensure that the form you have chosen is acceptable.
Appellate brief An appellate brief is a written legal argument presented to an appellate court. Its purpose is to persuade the higher court to uphold or reverse the trial court’s decision. Briefs of this kind are therefore geared to presenting the issues involved in the case from the perspective of one side only. Appellate briefs from both sides can be very valuable to anyone assessing the legal issues raised in a case. Unfortunately, they are rarely published. The U.S. Supreme Court is the only court for which briefs are regularly available in published form. The Landmark Briefs series (REF. LAW KF 101.9 .K8) includes the full texts of briefs relating to a very few of the many cases heard by this court. In addition, summaries of the briefs filed on behalf of the plaintiff or defendant for all cases reported are included in the U.S. Supreme Court Reports. Lawyer’s Ed., 2nd. series (REF. LAW KF 101 .A42).
Confusion often arises over the term “legal brief.” There are at least two different senses in which the term is used.
Two different sense of the term legal brief are described here: appellate brief and student brief.