A. DECIDE ON A FORMAT AND STICK TO IT
Structure is essential to a good brief. It enables you to arrange systematically the related parts that are scattered throughout most cases, thus making manageable and understandable what might otherwise seem to be an endless and unfathomable sea of information. There are, of course, an unlimited number of formats that can be utilized. However, it is best to find one that suits your needs and stick to it. Consistency breeds both efficiency and the security that when called upon you will know where to look in your brief for the information you are asked to give.
Any format, as long as it presents the essential elements of a case in an organized fashion, can be used. Experience, however, has led Casenotes to develop and utilize the following format because of its logical flow and universal applicability.
NATURE OF CASE: This is a brief statement of the legal character and procedural status of the case (e.g., "Appeal of a burglary conviction").
There are many different alternatives open to a litigant dissatisfied with a court ruling. The key to determining which one has been used is to discover who is asking this court for what.
This first entry in the brief should be kept as short as possible. The student should use the court's terminology if the student understands it. But since jurisdictions vary as to the titles of pleadings, the best entry is the one that apprises the student of who wants what in this proceeding, not the one that sounds most like the court's language.
CONCISE RULE OF LAW: A statement of the general principle of law that the case illustrates (e.g., "An acceptance that varies any term of the offer is considered a rejection and counteroffer").
Determining the rule of law of a case is a procedure similar to determining the issue of the case. Avoid being fooled by red herrings; there may be a few rules of law mentioned in the case excerpt, but usually only one is the rule with which the casebook editor is concerned. The techniques used to locate the issue, described below, may also be utilized to find the rule of law. Generally, your best guide is simply the chapter heading. It is a clue to the point the casebook editor seeks to make and should be kept in mind when reading every case in the respective section.
FACTS: A synopsis of only the essential facts of the case, i.e., those bearing upon or leading up to the issue.
The facts entry should be a short statement of the events and transactions that led one party to initiate legal proceedings against another in the first place. While some cases conveniently state the salient facts at the beginning of the decision, in other instances they will have to be culled from hiding places throughout the text, even from concurring and dissenting opinions. Some of the "facts" will often be in dispute and should be so noted. Conflicting evidence may be briefly pointed up. "Hard" facts must be included. Both must be relevant in order to be listed in the facts entry. It is impossible to tell what is relevant until the entire case is read, as the ultimate determination of the rights and liabilities of the parties may turn on something buried deep in the opinion.
The facts entry should never be longer than one to three short sentences.
It is often helpful to identify the role played by a party in a given context. For example, in a construction contract case the identification of a party as the "contractor" or "builder" alleviates the need to tell that that party was the one who was supposed to have built the house.
It is always helpful, and a good general practice, to identify the "plaintiff" and the "defendant." This may seem elementary and uncomplicated, but, especially in view of the creative editing practiced by some casebook editors, it is sometimes a difficult or even impossible task. Bear in mind that the party presently seeking something from this court may not be the plaintiff, and that sometimes only the cross-claim of a defendant is treated in the excerpt. Confusing or misaligning the parties can ruin your analysis and understanding of the case.
ISSUE: A statement of the general legal question answered by or illustrated in the case. For clarity, the issue is best put in the form of a question capable of a "yes" or "no" answer. In reality, the issue is simply the Concise Rule of Law put in the form of a question (e.g., "May an offer be accepted by performance?").
The major problem presented in discerning what is the issue in the case is that an opinion usually purports to raise and answer several questions. However, except for rare cases, only one such question is really the issue in the case. Collateral issues not necessary to the resolution of the matter in controversy are handled by the court by language known as "obiter dictum" or merely "dictum." While dicta may be included later in the brief, it has no place under the issue heading.
To find the issue, the student again asks who wants what and then goes on to ask why did that party succeed or fail in getting it. Once this is determined, the "why" should be turned into a question.
The complexity of the issues in the cases will vary, but in all cases a single-sentence question should sum up the issue. In a few cases, there will be two, or even more rarely, three issues of equal importance to the resolution of the case. Each should be expressed in a single-sentence question.
Since many issues are resolved by a court in coming to a final disposition of a case, the casebook editor will reproduce the portion of the opinion containing the issue or issues most relevant to the area of law under scrutiny. A noted law professor gave this advice: "Close the book; look at the title on the cover." Chances are, if it is Property, the student need not concern himself with whether, for example, the federal government's treatment of the plaintiff's land really raises a federal question sufficient to support jurisdiction on this ground in federal court.
The same rule applies to chapter headings designating sub-areas within the subjects. They tip the student off as to what the text is designed to teach. The cases are arranged in a casebook to show a progression or development of the law, so that the preceding cases may also help.
It is also most important to remember to read the notes and questions at the end of a case to determine what the editors wanted the student to have gleaned from it.
HOLDING AND DECISION: This section should succinctly explain the rationale of the court in arriving at its decision. In capsulizing the "reasoning" of the court, it should always include an application of the general rule or rules of law to the specific facts of the case. Hidden justifications come to light in this entry; the reasons for the state of the law, the public policies, the biases and prejudices, those considerations that influence the justices' thinking and, ultimately, the outcome of the case. At the end, there should be a short indication of the disposition or procedural resolution of the case (e.g., "Decision of the trial court for Mr. Smith (P) reversed").
The foregoing format is designed to help you "digest" the reams of case material with which you will be faced in your law school career. Once mastered by practice, it will place at your fingertips the information the authors of your casebooks have sought to impart to you in case-by-case illustration and analysis.
Once armed with a format that encourages succinctness, it is as important to be economical with regard to the time spent on the actual reading of the case as it is to be economical in the writing of the brief itself. This does not mean "skimming" a case. Rather, it means reading the case with an "eye" trained to recognize into which "section" of your brief a particular passage or line fits and having a system for quickly and precisely marking the case so that the passages fitting any one particular part of the brief can be easily identified and brought together in a concise and accurate manner when the brief is actually written.
It is of no use to simply repeat everything in the opinion of the court; the student should only record enough information to trigger his or her recollection of what the court said. Nevertheless, an accurate statement of the "law of the case," i.e., the legal principle applied to the facts, is absolutely essential to class preparation and to learning the law under the case method.
To that end, it is important to develop a "shorthand" that you can use to make margin notations. These notations will tell you at a glance in which section of the brief you will be placing that particular passage or portion of the opinion.
Other Resources on Briefing Cases