First, a distinction. When lawyers and law professors talk about "a brief," they usually mean two separate things. For practicing attorneys, "brief" is short for "appellate brief" or that 30-plus page bound document presented to an appellate court advocating the attorney's client's position on appeal. But what we're talking about in this article is the law professor's usage, the so-called "law student brief," also known as "case brief." This is a single-paged document that analyzes one particular case opinion in a formulaic way.
So why write case briefs at all? It's a fair question. Most law professors do not require their students to turn in formal case briefs, and after all, preparation for a law school class is tough enough, what with the 200-page reading assignments every other day. Why make it harder on yourself? The truth is, taking the time to write a good case brief will aid you immensely, both in and out of class.
First, it helps you cut to the heart of the opinion--the so-called black letter law we tease out of the reported decisions of a jurisdiction's courts. Second, it will serve as a starting point for preparing for class discussions; a well-written brief will foster thinking about questions such as "How does this case fit in with this other case we studied last week?" and "Could this decision have been improved by another holding?" That, in turn, helps you articulate your responses when called upon by a professor who uses the Socratic method of instruction (as the vast majority of law profs do). Finally, it's well-established with learning experts that the mere act of writing something down aids greatly in retention of the material. Written briefs, therefore, help you recall the holding and reasoning of the case, which is why you're in law school to begin with!
Now that we have the "why" out of the way, let's move on to the real question--the "how." Briefs can follow any one of a number of formats, so the first step is always ask your professor if she has a preferred case brief format. Why take the trouble of doing this if the professors don't require them in the first place? Because most professors do have opinions on the subject, and conforming your brief style to the professor's preferences will both aid you in responding to the professor's queries in class, and nab a positive appraisal from the professor in the process.
If the professor doesn't have any preferences as to format, here's an easy one that's usually well-received:
- Procedural Posture
- Concurring/Dissenting Opinion (may be optional)
Let's learn how to write a case brief with a closer look at each part:
- FACTS: This initial portion of your case brief will set forth the determinative facts of a case. What's a determinative fact? It's a fact that affects the outcome, to put it rather simplistically. It may not matter that the paint trim color was red, but if it does matter to the holding of the case, then you should include it. The goal is to be able to recite the facts in class, using your brief as backup. Aim for a middle road when trying to decide whether to leave a fact in or edit it out; you don't want your statement of the facts to be overly long, but you don't want it so short that you'll get questions from the professor to "plug in the holes" after recitation! Try to tell a story that makes sense with your fact statement, but don't veer too far afield into creative nonfiction. Include party names, and refer to them thereafter by the traditional "Plaintiff" and "Defendant." While it's helpful to note which of these parties is the appellant (the one pressing the appeal) and which one the appellee (the party defending the lower court's holding), you'll probably prefer referring to them throughout the brief as "Plaintiff/Defendant" (or P/D) as opposed to "Appellant/Appellee"--it just scans better.
- PROCEDURAL POSTURE: This is just a very brief recitation of the case's journey through the court system. Repeated remands and appeals on preliminary questions don't need to be recounted step-by-step (unless it's one of those jaunts back and forth that's at issue in the present case), but you may simply want to note that such appeals took place (they're called "interlocutory appeals" when they're taken before a final judgment is entered). Significant steps in the procedural posture (or history, as some prefer to call it) include case filing, major motions (such as summary judgment), disposition of major motions (i.e. "trial court granted D's motion for summary judgment"), trial, entry of verdict/judgment, appeal. This part of your brief need not take up major space; one to three lines should suffice.
- ISSUE(S) PRESENTED: Next, you must state the question that's being decided on appeal. What is the court being asked to decide or rule on? Examples: "Did the trial court err in admitting hearsay evidence where the declarant is unavailable to testify due to intervening death when the deposition was taken prior to the case's filing?" or "Was the prosecutor obligated to disclose evidence that could be potentially exculpatory when it merely supported other evidence already disclosed?" Note that both these examples are essentially "yes/no" questions. You should aim to phrase the issues this way, because it helps you nail down the holding, which will start off with "YES, it was error where...." or "NO, the prosecution was not obligated as long as...."
- HOLDING: As stated above, the holding should start with "yes" or "no," and should answer the question you asked previously in the "Issue Presented" section. Finding the holding of a case can be difficult, depending on the writing style of the justice in question. If you're not fortunate enough to be dealing with a justice who recites, quite clearly, "We hold that...," then you're going to have to tease it out for yourself. Be especially careful to distinguish the holding from dicta, which is merely prose that doesn't reflect the holding of a case, but is extraneous. The value of dicta is restricted to that of a clue as to how that justice might view a slightly different case, and has no precedential value whatsoever. Be warned: Some professors love to try to trip up unwary law students with dicta.
- RATIONALE: This is the part of the opinion that explains why the court held the way it did. It will likely include a discussion of any precedent, and possibly cases from other jurisdictions that dealt with the same or very similar issues. If a statute's interpretation is at issue, the court will undoubtedly cite the statute, and discuss any maxims of statutory interpretation that may come into play. It may also include some policy discussions, particularly if the case is novel or of significant import. This is the key part of your brief, as it serves to elucidate the holding, and thus will be extremely valuable to you in participating in classroom discussion. Make sure you've recited the rationale in a clear, cogent, and organized manner. Don't jump from one source to another without giving some thought to how the different sources of law are used within the text of the opinion itself.
- CONCURRING/DISSENTING OPINION: It may not be necessary to fully brief the concurring or dissenting opinions, but making some quick notes about such opinions can add value to your classroom input, especially when the professor utilizes the Socratic method. You'll be able to respond to the prof's question with--"Well, that's what the dissenter thought, too, Professor Smith. Justice Jones said....--and that is very impressive (particularly when you can counter it with the majority's reasoning).
How long does a case brief need to be? It's really up to you. The short answer is "as long as you need for it to be to understand it and be able to discuss it." The practical answer is "anything more than a page or two is wasted space." Get used to being succinct and getting to the point early in your law school career. Remember the purpose of your law education and the brief--to help you learn the law--and let that purpose guide your draft.