- Sep 2018
Sometimes called "forensic" oratory, judical oratory originally had to do exclusively with the law courts and was oriented around the purposes of defending or accusing. The judicial orator made arguments about past events, and did so with respect to the two special topics of invention described by Aristotle as appropriate for this branch of oratory, the just and the injust (or the right and the wrong).
Sample Rhetorical Analysis: JUDICIAL ORATORY In his famous speeches against Catiline, Cicero blatantly and forcefully accused Catiline of forming a conspiracy that would undermine republican Rome. Although speaking to the senate, he might as well have been speaking in a legal court, for he employed the methods and topics of judicial oratory, as though he were the prosecutor and Catiline the hapless defendant. Although Cicero lacked the solid evidence we would expect in today's courtroom, his dynamic summoning of witnesses (including the personified Rome herself!) secured popular sentiment against Catiline, and the conspirator fled the city.
- Jan 2017
- 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 cases on the subject are collected in a footnote to Somerset Bank v. Edmund, 10 Am. & Eng. Ann. Cas. 726; 76 Ohio St. Rep. 396, the head-note to which reads: "Public policy and sound morals alike forbid that a public officer should demand or receive for services performed by him in the discharge of official duty any other or further remuneration or reward than that prescribed or allowed by law." This rule of public policy has been relaxed only in those instances where the legislature for sufficient public reason has seen fit by statute to extend the stimulus of a reward to the public without distinction, as in the case of United States v. Matthews, 173 U.S. 381, where the attorney-general, under an act for "the detection and prosecution of crimes against the United States," made a public offer of reward sufficiently liberal and generic to comprehend the services of a federal deputy marshal. Exceptions of that character upon familiar principles serve to emphasize the correctness of the rule, as one based upon sound public policy.
1) A public officer cannot demand or receive remuneration or a reward for carrying out the duty of his job as a matter of public policy and morality
2) However, it is not against public policy for a police officer to receive a reward in performance of his legal duty if the legislature passes a statute giving the reward to the public at large in furtherance of some public policy - such as preventing treason against the US.
MINTURN, J. The plaintiff occupied the position of a special police officer, in Atlantic City, and incidentally was identified with the work of the prosecutor of the pleas of the county. He possessed knowledge concerning the theft of certain diamonds and jewelry from the possession of the defendant, who had advertised a reward for the recovery of the property. In this situation he claims to have entered into a verbal contract with defendant, whereby she agreed to pay him $500 if he could procure for her the names and addresses of the thieves. As a result of his meditation with the police authorities the diamonds and jewelry were recovered, and plaintiff brought this suit to recover the promised reward.
- Plaintiff makes a verbal contract with defendant. In return for $500, plaintiff will find defendant's stolen jewels.
- Plaintiff had knowledge of whereabouts of jewels at contract formation.
- Plaintiff is a special police officer and has dealings with prosecutor's office.
- Defendant published advertisement for reward.
- Plaintiff finds stolen goods and arranges return.
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.
The testimony makes it manifest that he was a special police officer to some extent identified with the work of the prosecutor's office, and that position, upon well-settled grounds of public policy, required him to assist, at least, in the prosecution of offenders against the law. The services he rendered, in this instance, must be presumed to have been rendered in pursuance of that public duty, and for its performance he was not entitled to receive a special quid pro quo.
Court finds sufficient evidence to characterize this fellow as a public official.
His interaction with the prosecutor's office weighed in as a factor in suggesting he had a legal duty.
Since he is characterized within the rule as a public official, he cannot, as a matter of law, receive a reward for the performance of his duties.
The District Court, sitting without a jury, awarded plaintiff a judgment for the amount of the reward, and hence this appeal.
- Cop sues for reward money.
- District court awards money to the cop.
- Defendant appeals.
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?
STEPHEN GRAY, RESPONDENT, v. THERESA D. MARTINO, APPELLANT Supreme Court of New Jersey 91 N.J.L. 462; 103 A. 24 February 2, 1918, Decided
Gray (cop) v. Martino (crime victim)
- role: cop
- abbrev: Gray
- name: Stephen Gray
- role: crime victim
- abbrev: Martino
- name: Theresa D. Martino
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
- rule of law
- judicial opinion
- public officer
- legal issue
- sample brief
- public official
- student brief
- police officer
- procedural history
- legal brief
- stolen goods
- contract formation
- verbal contract
- facts of the case
- prosecutors office
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
antive issue : A substantive statement of the issue consists of two parts -- i. the point of law in dispute ii. the key facts of the case re lating to that point of law in dispute (legally relevant facts) You must include the key facts from the case so that the issue is specific to that case. Typically, the disputed issue involves how the court applied some element of the pertinent rule to the facts of the specific case. Resolving the issue will determine the court’s disposition of the case.
- the point of law in dispute
- the key facts of the case relating to that point of law in dispute (legally relevant facts)
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
- procedural relationship
- legally relevant
- judicial opinion
- procedural issue
- case brief
- procedurally significant
- student brief
- legal brief
- point of law in dispute
- factual relationship
- persuasive brief
- statement of facts
- substantive issue
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.
the judge will state the legal issue(s) involved, her decision about the issue s (the holding) , and her reasoning.
the holding is a part of a judicial opinion that states the decision about the legal issues involved in a case.
H o w t o R e a d O p i n i o n s
This section on how to read judicial opinions helpfully describes the components of what an opinion contains and some discussion of the challenges in identifying those components within the structure of the opinion.
The components identified here are:
- caption/name of parties
- name of the court
- date of the opinion
- date of oral arguments in appellate cases
- citation information
- name of judge(s) who wrote the opinion
- case history
- procedural posture (stage at which opinion was issued)
- information about facts of the case (especially for trial court opinions)
- statement of legal issues involved
- the holding (decision about the issues)
- the judge's reasoning
The opinion will also typically give the name of the judge or justice who wrote it. In some cases, judges sitting together will decide not to reveal wh o wrote an opinion. In that situation, it will say p e r c u r i a m /DWLQIRU³E\WKHFRXUW ́ ) i QSODFHRIDMXGJH¶VQDPH
The garbled text quoted here should be:
it will say per curiam (Latin for "by the court") in place of a judge's name.
In a judicial opinion, the judge explains her ruling and the reasoning behind it. At its heart, an opinion is similar to a scholarly essay or even a short story. However, like any genre, the judicial opinion has some unique and unusual characteristics.
The purpose of a judicial opinion is to explain the ruling and the reasoning behind it.
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.
- Sep 2013
The only question with which these writers here deal is how to put the judge into a given frame of mind. About the orator's proper modes of persuasion they have nothing to tell us; nothing, that is, about how to gain skill in enthymemes.
Written description to date deals with the structure of judicial process and is not instructive of modes of persuasion.
Now, it is of great moment that well-drawn laws should themselves define all the points they possibly can and leave as few as may be to the decision of the judges; and this for several reasons.
Designing judicial process.