3 Preparing for Class

You have done a lot of studying in the past. After all, that’s how you got into law school! Still, nearly everyone finds that they have to step up their game for law school, since there is typically a lot more class preparation expected in law school. When you’re in your first year, be careful not to underestimate the amount of time and focus you need to study. The American Bar Association standards and rules for law schools state that for every in-class credit hour, there is a minimum of two hours of out-of-class work.1 Meaning that if your torts class is three credit hours, you should plan to spend six hours a week preparing for that class. Most first-year semesters have around 15 credit hours a week, meaning you should plan to work an additional 30 hours each week outside of class time.

That being said, remember that you are going into class to learn. This might seem obvious, but I meet with many students who suffer needless pre-class anxiety because they feel like they must know *everything* before going into class. The whole point of class is to help you learn, so of course you don’t need to know everything!

It’s important to be prepared—that is, at least have done your reading and briefed your assigned cases (more on briefing cases in the second half of this chapter). But if you did the reading, and made an effort to brief as I describe below, and you STILL don’t feel like you know what you read, that’s okay. That’s what class will be for!

I. Reading in Law School

As I mentioned in the first chapter, law school involves reading—lots of reading. I realize that if you are entering law school, you are probably good at reading. However, reading cases for class is different from other types of reading. Plan on carving out more time to read each case than you’d anticipate. This is because the most time-consuming part of studying, or preparing for class, will be the reading.

a. What Am I Reading?

In law school, most of your assigned reading during the semester will be out of a “casebook,” which is essentially your textbook. Casebooks contain excerpts from judicial opinions, which are the written statements of the court setting out its decision regarding a case and how it came to that decision. Casebook authors typically also include discussion, notes, and questions for the student.

Cases that appear in casebooks are primary sources. In the legal context, primary sources are “the actual laws and rules issued by governing bodies that tell us what we can and cannot do.”2 Constitutions, statutes, cases, and regulations are all considered primary sources. By comparison, secondary sources explain and interpret those original documents; in a secondary source, someone who is usually an expert in the area has read and condensed or translated the material for you.

This often presents a challenge for law students, since, and this largely depends on your background, up until now you have likely been reading only secondary sources. For example, a history textbook typically reads like a story; it will tell you about an event, giving you the dates, significant people, and essentially the story of what happened. However, this meant that the author went through primary documents (like journals, newspapers, and various records), and from that, tells the story that is in your book. Reading the primary sources may feel challenging at first and will likely frustrate you. I want you to know that’s normal. I still vividly remember reading my first ever case, which was an assignment for law school orientation. I have always thought of myself as a good reader and couldn’t understand why I had to read the same three pages about four times—and even then I still felt confused. It frustrated me to tears and made me question whether I was truly prepared for the rigor of law school. Sometimes the cases in a casebook are edited for clarity, but they are still a primary source and it’s up to you to figure out the story, so to speak. Don’t worry, this chapter will explain how to do that. Not only am I going to give you some tips on reading those cases, but I can promise you it gets easier and easier each time you read a case.

For more information about primary and secondary sources, see the CALI Lessons Legal Research Methodology and Introduction to Secondary Resources.

b. Appellate Opinions Explained

Most of the cases you will be reading during law school are appellate opinions. The federal judiciary, and most state judiciaries, have court systems that are organized into a three-tier system. At the state level, the lowest tiers are trial courts, where almost all cases begin. When a trial court makes a final decision, a losing party may appeal, which moves the case up to the middle tier, or the intermediate appellate court. Trial courts and appellate courts are called district courts and circuit courts, respectively, at the federal level. The role of appellate courts is to review the law and whether the judge in the trial court applied the correct law to the facts. “An appeal is not a retrial or a new trial of the case. The appeals courts do not usually consider new witnesses or new evidence. Appeals in either civil or criminal cases are usually based on arguments that there were errors in the trial’s procedure or errors in the judge’s interpretation of the law.”3 (You will learn more about this during legal research and civil procedure.) Some cases can then be appealed to the highest appellate court, which in most states is the state supreme court, and in the federal court system is the United States Supreme Court.

c. Why Do We Read Cases?

One of the defining principles of the common law system is the principle known as “stare decisis,” which is Latin for “let the decision stand.” A prior ruling or judgment is known as a precedent. The following excerpt explains how these two interrelated concepts define the common law system:

The doctrine of stare decisis means that courts look to past, similar issues to guide their decisions. The past decisions are known as precedent. Precedent is a legal principle or rule that is created by a court decision. This decision becomes an example, or authority, for judges deciding similar issues later. Stare decisis is the doctrine that obligates courts to look to precedent when making their decisions. These two principles allow American law to build case-by-case, and make our legal system a common law system.

So, stare decisis is essentially ‘the rule of precedent.’ Courts cite precedent when a court has already considered a particular legal issue and the court has already issued a ruling.

Under the doctrine of stare decisis, courts are expected to follow their own previous rulings and also the rulings from higher courts within the same court system. This means that the Texas state appellate courts will follow their own precedent, and that of the Texas Supreme Court, and also that of the United States Supreme Court. But the district courts in Texas are not obligated to follow rulings from the appellate courts of South Carolina.

All courts are obligated to follow the rulings of the United States Supreme Court, because this is the highest court in the nation, and it has the final say.4

Common law is an English tradition, and most countries that currently follow it were former English colonies. If you are practicing law in the United States, you will be practicing in the common law system.

So, in short, reading cases is one place where we get law: law comes from either a statute—a law written by the legislative branch—or a case, and often cases will explain a statute. Your job as a law student, and then a lawyer, will be to read cases to ascertain the applicable law.

d. Common Law vs. Civil Law

Common law is different from “civil law” systems that use code. Civil law systems rely only on statutes and not case law. In civil law systems, stare decisis or case precedent isn’t used. In the United States, Louisiana uses civil law. If you are attending law school in Louisiana, you will likely use both systems in your courses (and later in Louisiana practice) because while the state system uses civil law, the federal system uses common law.

e. Criminal Law vs. Civil Law

It is important to note that there are two types of law, even within our common law system. There is criminal law and there is civil law—not to be confused with Louisiana and places that rely on civil code. Civil law means that any person can bring a legal claim against another person, or in other words, “sue” that person. Areas of law such as tort law, property law, contract law, and more are “civil.” By contrast, with criminal law, the state by way of a district attorney or other state’s attorney, brings “charges” against a defendant. There are different standards and different procedures for criminal law than there are for civil law. This will be explained in greater detail in your various classes, so for now just note that there are two systems. Both criminal and civil law have trial and appellate courts, and in both instances, you are likely to be reading cases from the appellate level.

So, we read all of these appellate decisions to learn what the law is. You might be thinking, “Why doesn’t my professor just TELL me the law? That’s why I’m here.” Actually, it’s not. You are in law school to learn to be a lawyer, and lawyers need to research the law. The law continually changes and evolves. Sure, maybe you can memorize the law your first year of law school, but by the time you’ve practiced for about five years, it will have changed—so then what? We want to teach you how to find the law on your own and how to read those primary sources. My mentor and friend used to say that classes should not be called “contracts” but rather “how to be a lawyer using contract law” and so forth. She’s not wrong!

Let’s check our understanding of some of these concepts:

Interactive Questions: Cases

If you want to learn more about common law, here is a CALI Lesson that can help: Common Law Basics: What Faculty May Assume You Know. Similarly, if you want to learn more about sources of law, check out the CALI Lesson Where Does Law Come From?

II. Critical Reading and Reading Cases

In law school, critical reading is incredibly important. Critical reading means that you are doing more than a mere “skimming” of the text. Skimming the text only allows the reader to find superficial characteristics and information. However, critical reading results in enhanced clarity and comprehension, allowing a reader to get at the deeper aspects of the reading. You may have already had experience in this area as it’s likely that if you’ve read novels for an English class you likely took notes, or annotated, the texts.

Critical reading means that you are actively engaging in the reading. When you read cases, you must apply critical reading, or active reading—not passive reading. This is critical, pun intended, for both mastering reading cases and other areas of law school as well!

Critical reading means that you:

  • Survey before reading: think about what you are going to read.
  • Ask questions: what questions do you have about the reading before you start?
  • Read actively: highlight, ask questions, re-read passages.
  • Respond to your own questions: answer the questions you had and create follow-up questions.
  • Record key concepts: this will be your case briefing (which will be discussed later in this chapter).

You might need to read a case multiple times. I typically tell students to read it once through to get the “story”—the feel for the who, what, where, and when. In fact, some professors tell students to read the case once while “sitting on their hands,” meaning that they can’t take notes. Then, re-read the case and start actively engaging with the material. This also means that you can question the reading and question the judge’s decisions

Below, we will talk about how to apply these critical reading steps to cases.

a. Before You Begin Reading

First, what is the assignment? How long is the assignment? How many pages? Have you allotted enough time? How many cases? Do they all deal with the same topic, or does it vary? (Meaning, are they in the same chapter and section, or is it spread across different sections?) Do you need to read any statutes that go along with the reading? If so, pull them up and skim the statutes first. This gives you an idea of what you might be reading.

Before you even begin reading the first case assigned, think about the context of the case. This is your “survey before reading step.” Use the table of contents or syllabus to help you put the reading into context. For example, if you are reading a torts assignment, which tort are you reading about?

Ask yourself, “Is this a new section, or a subsection of material I already started?” For example, is it about battery, a new type of tort, or is it about an element of battery, such as intent?

Look at the case heading—what is the date and location of this case? Is the time period drastically different? Is this case from the Northeast, or the South? Or maybe even England? Which court is the case from? Is it state court, or federal court? An appellate court?

The professors that edit your casebooks choose certain cases for a reason. They are not random. I know this might seem obvious, but it’s easy to forget that as you read. Each case is chosen to teach you something new, so as you read, keep that in mind and ask yourself, “Why this case? Why did the casebook editor think this particular case was important?” They might even put notes or comments in between the cases—pay attention to these as they can be extremely helpful guidance!

Take a look at the casebook table of contents below. The table of contents is from Torts and Regulation: Cases, Principles, and Institutions by John Fabian Witt, published by CALI eLangdell® Press. Then answer the questions that follow.

 

image

 

Interactive Question: Reading a Casebook Table of Contents

Now take a look at the case heading below, what can you tell me about the case?

Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955)

You won’t know what all of the numbers mean, but you can still pull out some information.

Interactive Questions: Case Heading – Garratt v. Dailey

I realize that seems simple, but knowing where and when the case took place is incredibly helpful. It can also make reading a bit easier. Compare the above case with the below:

Regina v. Cunningham, 41 Crim.App. 155, 2 Q.B. 396, 2 All.Eng.Rep. 412 (1957)

What do you know about this case?

Interactive Questions: Case Heading – Regina v. Cunningham

So, going back to the first case to summarize, you are reading a case about tort law, specifically battery, that took place in Washington state in the 1950s. We also know that the case is specifically about intent, as it relates to battery. Do this for each case you read to “set the stage.”

Now, prepare to read actively. This is your “ask questions” stage of critical reading. Think about what you already know and what questions you have left. This will be more difficult for the first few cases, but as you get further along in your reading, will become easier. Here, we know this is a torts case that involves battery. Do you think you might know something about battery? Or, are you wondering what battery is? You might have heard the term on the news, or on tv, and so you might think you know what it is already. Therefore, your question might be whether you are correct about your assumptions. If it’s the third case you are reading on battery, you already know a little about battery! In this context, you would have already read some cases on battery and know something about the tort.

b. As You Read

Now it’s time for the “read actively” stage of critical reading. As you read, think of the “Factual 411.” Look at the case as a story, at least at first. You need to think about what happened to bring the parties to court. Essentially, what went wrong and why are people upset? Make sure you understand the underlying facts first before diving deeper:

You already essentially know the where and when from the case heading.

Who is suing whom for what? (Don’t just rely on the case heading; think about the original lawsuit as sometimes the case headings change.)

What happened?

Why are the parties upset?

Keep asking questions as you go. The questions might be about the facts of the case, or the reasoning, or something else entirely. If you can’t answer these questions, they are good to bring up in class.

Highlight or take notes as you go. A small caveat: this doesn’t mean highlighting everything, as then the point of highlighting becomes, well, pointless.

Interact with the case. I have a great colleague who tells his students to yell at and argue with the case. Fight with it if you need to. Now, you don’t need to go this far, especially if you are in the library, but you should still actively engage and not just passively read.

Now, let’s try to read the case. This is a common torts case that comes up in various casebooks. I’m going to take you through reading and briefing it, but it’s important to remember that every professor is a little bit different in how they might lecture and what questions they might ask. This means that the way you brief in one class might need to be changed a bit for a different class. However, the general principles are always the same.

Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955)

Hill, J.

Brian Dailey (age five years, nine months) was visiting with Naomi Garratt, an adult and a sister of the plaintiff, Ruth Garratt, likewise an adult, in the back yard of the plaintiff’s home, on July 16, 1951. It is plaintiff’s contention that she came out into the back yard to talk with Naomi and that, as she started to sit down in a wood and canvas lawn chair, Brian deliberately pulled it out from under her. The only one of the three persons present so testifying was Naomi Garratt. (Ruth Garratt, the plaintiff, did not testify as to how or why she fell.) The trial court, unwilling to accept this testimony, adopted instead Brian Dailey’s version of what happened, and made the following findings:

III. . . . [T]hat while Naomi Garratt and Brian Dailey were in the back yard the plaintiff, Ruth Garratt, came out of her house into the back yard. Some time subsequent thereto defendant, Brian Dailey, picked up a lightly built wood and canvas lawn chair which was then and there located in the back yard of the above described premises, moved it sideways a few feet and seated himself therein, at which time he discovered the plaintiff, Ruth Garratt, about to sit down at the place where the lawn chair had formerly been, at which time he hurriedly got up from the chair and attempted to move it toward Ruth Garratt to aid her in sitting down in the chair; that due to the defendant’s small size and lack of dexterity he was unable to get the lawn chair under the plaintiff in time to prevent her from falling to the ground. That plaintiff fell to the ground and sustained a fracture of her hip, and other injuries and damages as hereinafter set forth.

IV. That the preponderance of the evidence in this case establishes that when the defendant, Brian Dailey, moved the chair in question he did not have any willful or unlawful purpose in doing so; that he did not have any intent to injure the plaintiff, or any intent to bring about any unauthorized or offensive contact with her person or any objects appurtenant thereto; that the circumstances which immediately preceded the fall of the plaintiff established that the defendant, Brian Dailey, did not have purpose, intent or design to perform a prank or to effect an assault and battery upon the person of the plaintiff. (Italics ours, for a purpose hereinafter indicated.)

It is conceded that Ruth Garratt’s fall resulted in a fractured hip and other painful and serious injuries. To obviate the necessity of a retrial in the event this court determines that she was entitled to a judgment against Brian Dailey, the amount of her damage was found to be $11,000. Plaintiff appeals from a judgment dismissing the action and asks for the entry of a judgment in that amount or a new trial.

. . .

It is urged that Brian’s action in moving the chair constituted a battery. A definition (not all-inclusive but sufficient for our purpose) of a battery is the intentional infliction of a harmful bodily contact upon another. The rule that determines liability for battery is given in 1 Restatement, Torts, 29, § 13 [1934], as:

An act which, directly or indirectly, is the legal cause of a harmful contact with another’s person makes the actor liable to the other, if

(a) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and

(b) the contact is not consented to by the other or the other’s consent thereto is procured by fraud or duress, and

(c) the contact is not otherwise privileged.

We have in this case no question of consent or privilege. We therefore proceed to an immediate consideration of intent and its place in the law of battery. In the comment on clause (a), the Restatement says:

Character of actor’s intention. In order that an act may be done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to a particular person, either the other or a third person, the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced . . . .

We have here the conceded volitional act of Brian, i.e., the moving of a chair. Had the plaintiff proved to the satisfaction of the trial court that Brian moved the chair while she was in the act of sitting down, Brian’s action would patently have been for the purpose or with the intent of causing the plaintiff’s bodily contact with the ground, and she would be entitled to a judgment against him for the resulting damages. Vosburg v. Putney, supra.

The plaintiff based her case on that theory, and the trial court held that she failed in her proof and accepted Brian’s version of the facts rather than that given by the eyewitness who testified for the plaintiff. After the trial court determined that the plaintiff had not established her theory of a battery (i.e., that Brian had pulled the chair out from under the plaintiff while she was in the act of sitting down), it then became concerned with whether a battery was established under the facts as it found them to be.

In this connection, we quote another portion of the comment on the ‘Character of actor’s intention,’ relating to clause (a) of the rule from the Restatement heretofore set forth:

It is not enough that the act itself is intentionally done and this, even though the actor realizes or should realize that it contains a very grave risk of bringing about the contact or apprehension. Such realization may make the actor’s conduct negligent or even reckless but unless he realizes that to a substantial certainty, the contact or apprehension will result, the actor has not that intention which is necessary to make him liable under the rule stated in this section.

A battery would be established if, in addition to plaintiff’s fall, it was proved that, when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been. If Brian had any of the intents which the trial court found, in the italicized portions of the findings of fact quoted above, that he did not have, he would of course have had the knowledge to which we have referred. The mere absence of any intent to injure the plaintiff or to play a prank on her or to embarrass her, or to commit an assault and battery on her would not absolve him from liability if in fact he had such knowledge. . . . Without such knowledge, there would be nothing wrongful about Brian’s act in moving the chair and, there being no wrongful act, there would be no liability.

While a finding that Brian had no such knowledge can be inferred from the findings made, we believe that before the plaintiff’s action in such a case should be dismissed there should be no question but that the trial court had passed upon that issue; hence, the case should be remanded for clarification of the findings to specifically cover the question of Brian’s knowledge, because intent could be inferred therefrom. If the court finds that he had such knowledge the necessary intent will be established and the plaintiff will be entitled to recover, even though there was no purpose to injure or embarrass the plaintiff. Vosburg v. Putney, supra. If Brian did not have such knowledge, there was no wrongful act by him and the basic premise of liability on the theory of a battery was not established.

. . .

The cause is remanded for clarification, with instructions to make definite findings on the issue of whether Brian Dailey knew with substantial certainty that the plaintiff would attempt to sit down where the chair which he moved had been, and to change the judgment if the findings warrant it.

Now remember, for the first few weeks you might have to read a case a few times. In fact, many practicing attorneys still have to read cases multiple times. Reading cases is not easy reading, even as you get more practice. So prepare to read each case at least twice. Now, let’s take it bit by bit as we go through this case a second time.

Brian Dailey (age five years, nine months) was visiting with Naomi Garratt, an adult and a sister of the plaintiff, Ruth Garratt, likewise an adult, in the back yard of the plaintiff’s home, on July 16, 1951. It is plaintiff’s contention that she came out into the back yard to talk with Naomi and that, as she started to sit down in a wood and canvas lawn chair, Brian deliberately pulled it out from under her. The only one of the three persons present so testifying was Naomi Garratt. (Ruth Garratt, the plaintiff, did not testify as to how or why she fell.) The trial court, unwilling to accept this testimony, adopted instead Brian Dailey’s version of what happened, and made the following findings:

So, what do you already know? It seems that the plaintiff is Ruth, and a child pulled out a chair from under her. We still don’t have all the details, but it says the trial court adopted the findings immediately thereafter. So there you have the story, the basic idea of what happened.

It is conceded that Ruth Garratt’s fall resulted in a fractured hip and other painful and serious injuries. To obviate the necessity of a retrial in the event this court determines that she was entitled to a judgment against Brian Dailey, the amount of her damage was found to be $11,000. Plaintiff appeals from a judgment dismissing the action and asks for the entry of a judgment in that amount or a new trial.

Now we are told “it is conceded that”—what does that mean? Well, this phrase means that it is not contested, or rather, all parties agree that the fall resulted in painful injuries. That is not up for dispute.

So now we have a full view of the story: the who, what, where, when, and why. Plaintiff has a fractured hip, and it was the result of a fall from defendant pulling out a chair.

Now we get to the next part of the case:

It is urged that Brian’s action in moving the chair constituted a battery. A definition (not all-inclusive but sufficient for our purpose) of a battery is the intentional infliction of a harmful bodily contact upon another. The rule that determines liability for battery is given in 1 Restatement, Torts, 29, § 13 [1934], as:

An act which, directly or indirectly, is the legal cause of a harmful contact with another’s person makes the actor liable to the other, if

(a) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and

(b) the contact is not consented to by the other or the other’s consent thereto is procured by fraud or duress, and

(c) the contact is not otherwise privileged.

We have in this case no question of consent or privilege. We therefore proceed to an immediate consideration of intent and its place in the law of battery. In the comment on clause (a), the Restatement says:

We are seeing two important things here. First, we get a definition of battery. We know the court is using a definition of battery from the Restatements. This will likely be something important to add to your notes, and we will discuss that below. In addition, the court tells you the problem it’s trying to solve: We therefore proceed to an immediate consideration of intent and its place in the law of battery. This is the court telling you the legal issue, or legal problem, that it needs to solve.

I mentioned before that most cases you read will be appellate decisions. To recap, that means that there was a trial and the case was appealed to an appellate court, which is the current decision-maker. In this case, Plaintiff Ruth Garratt sued Brian Dailey because she alleges he committed a battery when he pulled out the chair from under her and she fractured her hip. The opinion tells you the facts that the court is using; they are not taking new witness statements or viewing evidence and have adopted a set of facts from the lower trial court. Their job, and the job of any appellate court, is to decide the law and how it was applied. In other words, they are not considering whether the facts were correct; we know that young Brian pulled out the chair, we know that the plaintiff was injured, and so forth. That is not up for debate. What is up for debate is the element of intent. In this case, the court is specifically telling you that it is going to determine the legal issue of intent, and how it applies to battery. So, in the context of this casebook and your torts class, you are reading this case to learn about an element of battery, specifically, intent. This is the “why” of your case.

The case also gives you the definition of intent:

Character of actor’s intention. In order that an act may be done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to a particular person, either the other or a third person, the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced.

The case then goes on to discuss whether Brian, the defendant, had intent, as described above. The case ends with this:

The cause is remanded for clarification, with instructions to make definite findings on the issue of whether Brian Dailey knew with substantial certainty that the plaintiff would attempt to sit down where the chair which he moved had been, and to change the judgment if the findings warrant it.

What does that mean? Essentially, the appellate court hasn’t decided whether Brian Dailey had intent, but rather, sent the case back to the original trial court for it to make more “definite findings” on whether Brian knew that the plaintiff would attempt to sit down.

Now that you have a rough idea of what happened in the case, and why it was assigned (to expand your understanding of the intent necessary to prove a battery), we can move on to briefing.

III. Briefing

Even before you get to orientation, you might hear people talk about “briefing” or “case briefs” or something similar. It’s a large part of the law school study process.

a. What is Case Briefing?

A case brief is a short, or “brief,” summary and analysis of a case. Briefs contain information like the facts of the case, the court’s analysis, and the decision it reached. There is no one “right” way to brief, and there are many different brief “templates.” It is important to brief EVERY case that you are assigned. This takes time, but you will find that you will be far more successful, and much more likely to understand each case, if you fully brief each one.

b. Why Do We Case Brief?

First and foremost, briefing helps you prepare for class discussion as it organizes your thoughts about a case and provides a tool to reference if you are called on to discuss the case in class. It is an expectation that when you show up for class, you will have read and hopefully understood the material. When you are called on, you will want to rely on your briefs to be prepared, so think of them like organized notes. Your briefs may be different from class to class, as they should be a tool that helps you participate in that particular class’s discussion. Briefing also helps you test your understanding of the case, serves as a helpful study aid down the road, and can serve as a template for additional class notes on that topic or case.

c. Before You Begin

Think about format. Determine the format that you prefer. This might change as you learn more about briefing and what works for you. Don’t hesitate to change the format you use from time to time, or from class to class. Briefs are personal; they need to make sense to you personally, which means case briefs may vary from student to student. In fact, an individual’s briefs may vary from subject to subject as you may find that you are briefing civil procedure cases using one format and torts cases using another. Not only is this normal, but I encourage you to do so. Each class is going to feel very different—because of the professor, but also because of the way the topic is structured. This means it is very likely your briefs will be different as well. Finally, your brief doesn’t have to look like anyone else’s brief! Use the format that works for you—a Word document, table, template, handwritten, Evernote, Onenote—it’s completely up to you! After you brief a few cases and sit through a few classes, you’ll have a better idea of what you need.

d. Always Remember Why You Are Briefing

As you brief, and determine your format and style, think about why you are briefing and what you hope to accomplish. Think about how class typically goes, and what information you might need from the case to be prepared for your professor’s questioning.

While this will be a bit difficult during your first couple of classes, after a while, you will find your professor’s rhythm: how they ask questions and what they expect you to know. For example, one professor might only want a vague recitation of facts from a case, while another might want far greater detail. Adjust your briefs accordingly, and keep this in mind as you brief.

e. Sections of a Brief

First, think about your case heading. Remember, it can tell you a great deal about the case. It will tell you the year, location, and court. No matter what, this should be at the top of your brief.

Next, while there are plenty of acceptable formats, the thing that all briefs have in common are as follows:

Fact Statement

Procedural Statement

Issue Statement

Rule Statement

Holding/Judgment

Analysis

Dissent (if applicable)

If your professor suggests that you use a particular format—listen to them! They are giving you insight into what they are looking for. You might also have professors refer to these sections with slightly different terms, and that’s okay. For example, fact statement might be “fact section,” procedural statement might be “procedural process,” and so forth.

So, what do each of these sections of a brief look like?

Sections of a Brief

Fact Statement: Include relevant facts. You don’t need to recite ALL the facts, but you want to have a good idea of the “story” of the case. This is mainly meant to help your memory. What was the Who/What/When/Why? Who was suing who, and for what? Remember to keep it short; it’s easy to get bogged down by too many facts. The number of facts you want to include may change based on the class and the subject.

Procedural Statement: How did the case get to where it is now? Who appealed and why? Map out the history if you need to. What standard of review is being used? (Just as an FYI, a standard of review is the standard the appellate court uses to examine the lower court rulings. You should hopefully learn more about this in civil procedure, as well as in other classes.)

Issue Statement: This is the legal question being asked. What problem is the court trying to solve? Keep a few things in mind:

A case can have more than one issue.

Consider phrasing your issue statement as a yes or no question.

Rule Statement: What rule did the court use? This is often what you might take away from the case to apply to other fact patterns. If the court uses or cites a statute, copy and paste that verbatim. If it’s not from a statute, it’s ok to paraphrase or put it in your own words.

See if you can deconstruct the rule into parts, or elements. An element is an essential part of a claim that must be proven for the claim to succeed. If a rule is a recipe, an element is an ingredient.

Identify the standard/test used for proving this rule (if applicable).

Holding/Judgment: This is the answer to the issue statement and only has to be one sentence, though some professors may vary in what they expect. Essentially, this is answering the question “How did the court rule?” In the most basic sense, who won the case? This might include language like “remanded” or “affirmed”—what impact does the holding have on the parties?

Analysis: This is the most important part of your brief because it answers the question of WHY a certain party won the case. This can sometimes be the argument of opposing parties, or it can be articulated in the judge’s opinion. Remember to note inferences—why does a particular result follow from this set of facts?

Dissent (if applicable): Most of what you will be reading are majority opinions: the opinion of more than half the judges which establishes the ultimate decision of the court. In some cases, there may also be a dissenting opinion. This is not always the case, but it is common in United States Supreme Court cases that you will read in classes like constitutional law. A dissenting opinion is the opinion of one or more judges who disagree with the majority opinion. If there is a dissent, you do want to make note of it and think about why the judge dissented. Why didn’t they agree with their fellow judges? You may also encounter a concurring opinion, which is the opinion of one or more judges who agree with the majority’s decision but reach that conclusion based on different reasoning.

f. General Tips on Briefing

  • This is called a “brief” for a reason. Try to keep your brief to one page, maybe a page and a half at the most.
  • If applicable to the subject and class, you may need to include other things such as concurrence or dissent.
  • Above all else, this is a tool to help you. Make it your own and include sections that help you. For example, it might help you to add a “Why” section to your brief to remember what this case added to your understanding of the topic.

g. After You Brief

  • Think about your “takeaway.” Think about all of the cases you’ve read, and summarize them in some way (charts, outlines, etc.).
  • What rules were covered? How do they relate to each other?
  • Are there exceptions to the rules?
  • How do the cases illustrate the rules?
  • What type of facts raise these issues? Can you create your own generalizations?
  • What policy issues were raised? Were there any policies that should have been raised? What are your thoughts on these policies?
  • Think about what questions you may have—what questions do you have about the case that you want to ask the professor?
  • What do you hope is answered or clarified in class?
  • How does this case fit in with the rest of your reading?
  • Most importantly, make sure you find answers to these questions. If not answered in class, meet with your professor or academic tutor as soon as possible to clear up your understanding. The law generally builds upon itself, so you want to clear up any questions quickly so you don’t fall behind.

h. Practice Briefing

We are now going to attempt to brief two cases together. First, we have a sort of fun and silly case, and then next, a slightly more typical case. Also, if you are feeling overwhelmed, it’s okay to take breaks.

Here is the fun one—read the excerpt and then answer the questions that follow.

United States ex rel. Gerald Mayo v. Satan and His Staff, 54 F.R.D. 282 (W.D.Pa. 1971)

Counsel: Gerald Mayo, pro se

WEBER, District Judge.

Plaintiff, alleging jurisdiction under 18 U.S.C. § 241, 28 U.S.C. § 1343, and 42 U.S.C. § 1983 prays for leave to file a complaint for violation of his civil rights in forma pauperis. He alleges that Satan has on numerous occasions caused plaintiff misery and unwarranted threats, against the will of plaintiff, that Satan has placed deliberate obstacles in his path and has caused plaintiff’s downfall.

Plaintiff alleges that by reason of these acts Satan has deprived him of his constitutional rights.

We feel that the application to file and proceed in forma pauperis must be denied. Even if plaintiff’s complaint reveals a prima facie recital of the infringement of the civil rights of a citizen of the United States, the Court has serious doubts that the complaint reveals a cause of action upon which relief can be granted by the court. We question whether plaintiff may obtain personal jurisdiction over the defendant in this judicial district. The complaint contains no allegation of residence in this district. While the official reports disclose no case where this defendant has appeared as defendant there is an unofficial account of a trial in New Hampshire where this defendant filed an action of mortgage foreclosure as plaintiff. The defendant in that action was represented by the preeminent advocate of that day, and raised the defense that the plaintiff was a foreign prince with no standing to sue in an American Court. This defense was overcome by overwhelming evidence to the contrary. Whether or not this would raise an estoppel in the present case we are unable to determine at this time.

If such action were to be allowed we would also face the question of whether it may be maintained as a class action. It appears to meet the requirements of Fed.R. of Civ.P. 23 that the

class is so numerous that joinder of all members is impracticable, there are questions of law and fact common to the class, and the claims of the representative party is typical of the claims of the class. We cannot now determine if the representative party will fairly protect the interests of the class.

We note that the plaintiff has failed to include with his complaint the required form of instructions for the United States Marshal for directions as to service of process.

For the foregoing reasons we must exercise our discretion to refuse the prayer of plaintiff to proceed in forma pauperis.

It is ordered that the complaint be given a miscellaneous docket number and leave to proceed in forma pauperis be denied.

Interactive Question: Case Heading – United States ex rel. Gerald Mayo v. Satan and His Staff 

Okay, now let’s take the first paragraph:

Plaintiff, alleging jurisdiction under 18 U.S.C. § 241, 28 U.S.C. § 1343, and 42 U.S.C. § 1983 prays for leave to file a complaint for violation of his civil rights in forma pauperis. He alleges that Satan has on numerous occasions caused plaintiff misery and unwarranted threats, against the will of plaintiff, that Satan has placed deliberate obstacles in his path and has caused plaintiff’s downfall.

So, despite this being what I consider a “fun” case, it starts with many numbers! What do they mean? Well, anything with “U.S.C.” in the middle stands for US Code. In time, you will start to recognize these things, but until you do, Google CAN be your friend. So, go ahead and Google what plaintiff is alleging. Also note that if you aren’t sure where to look, or if a law dictionary is not providing satisfactory answers, see a law librarian. They can often help point you in the right direction.

It turns out Plaintiff is alleging “conspiracy against rights,” which is § 241, something about civil rights, which is § 1343, and again, something about civil rights, which is § 1983. I say “something about civil rights” because you don’t have to understand the entire statute—that’s not the point. The point is that when you see a statute mentioned in a case that you’ve been assigned, look it up right away so you have some context as you read the case.

The paragraph also mentions “in forma pauperis” which, if I look it up in my Black’s Law Dictionary, is Latin for “in the form of a pauper” which allows someone to bring suit without the cost of a lawsuit.

We then find out that plaintiff is bringing a lawsuit because he thinks Satan is interfering with his life by placing obstacles in his way.

So far my brief might look like this:

image

Let’s take the next paragraph:

Plaintiff alleges that by reason of these acts Satan has deprived him of his constitutional rights.

We feel that the application to file and proceed in forma pauperis must be denied. Even if plaintiff’s complaint reveals a prima facie recital of the infringement of the civil rights of a citizen of the United States, the Court has serious doubts that the complaint reveals a cause of action upon which relief can be granted by the court. We question whether plaintiff may obtain personal jurisdiction over the defendant in this judicial district. The complaint contains no allegation of residence in this district. While the official reports disclose no case where this defendant has appeared as defendant there is an unofficial account of a trial in New Hampshire where this defendant filed an action of mortgage foreclosure as plaintiff. The defendant in that action was represented by the preeminent advocate of that day, and raised the defense that the plaintiff was a foreign prince with no standing to sue in an American Court. This defense was overcome by overwhelming evidence to the contrary. Whether or not this would raise an estoppel in the present case we are unable to determine at this time.

So, the judge sort of restates that plaintiff is alleging that Satan is depriving him of his constitutional rights. We also find out that the court has serious doubts that there is a cause of action. What does this mean? Well, it means that the plaintiff isn’t bringing a claim that the court recognizes, meaning, it’s likely too general. “The devil is causing me misery” isn’t something the court typically recognizes as a proper lawsuit. At this point, I might update my brief to reflect this:

 

image

 

I’m going to stop there for now, as the judge then goes on to talk about why he doesn’t think the court has jurisdiction over the devil. He references some fun folklore and songs about the devil, and ultimately decides that the court can’t exercise jurisdiction over the devil. This will make more sense once you take civil procedure.

I want to go back to the case you read earlier: Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955). Let’s try to brief that one. Start with a template—any format you like so long as it contains the necessary components. I might use the below template, but you can make it your own.

Heading:

Fact Statement

Procedural Statement

Issue Statement

Rule Statement

Holding/Judgement

Analysis

Fact Statement

Try your hand at briefing Garratt on your own. You can use your own template or use the space provided below.

Writing Exercise: Case Briefing

Now compare your brief with mine below.

Model Case Brief – Garratt v. Dailey

A few notes on my brief: You might notice that I did some copying and pasting from the case—which is fine! Just make sure you have a way to note that, like I did by using quotation marks in my brief so you know where it came from. I’ve also put some of it into my own words, so I could determine how well I understood the case. Finally, I had some “questions for class” at the end, things that maybe I didn’t understand right away.

If you were a bit lost on any of the cases we’ve read, that’s normal! It does get better with practice and it gets easier the more you know. This will start to feel more natural to you, I promise. If you feel frustrated, just remind yourself that everyone is feeling the same way, and all you need is a bit more practice.

In the next chapter, we will talk about what to do DURING class. And remember, I can’t stress this enough—ask questions!

“During my first week of law school I was terrified to ask questions. Having not known a single person in the law, I felt underprepared and, quite honestly, dumb. That weekend, as I stared at my casebooks, I decided that I was not going to let the fear of ‘sounding dumb’ keep me from being a great lawyer some day. Going forward I asked for clarification on the most minute of details, even if the professor made comments like ‘You all probably understand this.’ If I did not understand something I asked professors to explain, I visited them in office hours, and emailed them. This made my law school experience fruitful, engaging, and fun. We, as first-generation lawyers, cannot let the fear and shame of being systematically excluded from the legal profession keep us from becoming great lawyers.”

-Adrian Gonzalez Cerrillo, Class of 2021

This probably feels like a ton of information coming your way and might feel overwhelming. Have no fear! There are multiple CALI Lessons on briefing cases. Here is a general one called Case Briefing.

The CALI Lesson Finding the Rule isn’t specific to briefing, but it helps you find the rule.

The CALI Lesson Excavating Facts from Cases discusses separating relevant facts from irrelevant facts in cases.

And finally, here is a CALI Lesson on preparing for class: Preparing for Class 101: Preparing for Your First Day of Class.


1 Standard 310 (b). In 2021-2022 Standards and Rules of Procedure for Approval of Law Schools. American Bar Association Section of Legal Education and Admissions to the Bar. https://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/standards/2021-2022/2021-2022-aba-standards-and-rules-of-procedure.pdf.
2 “Basics of Legal Research: Primary Sources.” LibGuides. Law Library of Louisiana. Accessed May 17, 2022. https://lasc.libguides.com/c.php?g=436789&p=2980672#:~:text=What%20Are%20Primary%20Sources%3F,the%20three%20branches%20of%20government.
3“How Courts Work.” Americanbar.org. American Bar Association Division for Public Education, November 28, 2021. https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/appeals/.
4“Stare Decisis Doctrine: Definition & Example Cases.” Study.com. Working Scholars. Accessed June 7, 2022. https://study.com/academy/lesson/stare-decisis-doctrine-definition-example-cases.html#:~:text=The%20doctrine%20of%20stare%20decisis,judges%20deciding%20similar%20issues%20later.