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The Nuts and Bolts of Case Briefing . Ruth Ann McKinney Reading Like A Lawyer , © 2005 (PowerPoint developed by Tracy Nayer, UNC School of Law, Class of 2007). A brief is NOT a “graded” exercise. It is a way of taking notes as you form opinions about a case you are reading. .

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the nuts and bolts of case briefing

The Nuts and Bolts of Case Briefing

Ruth Ann McKinney

Reading Like A Lawyer,

© 2005

(PowerPoint developed by Tracy Nayer, UNC School of Law, Class of 2007)

slide2
A brief is NOT a “graded” exercise.

It is a way of taking notes as you form opinions about a case you are reading.

slide3
In law school, different professors may want you to brief slightly differently than do others.

A good rule of thumb: always brief the way your professor wants you to and use terms in each class the way that professor uses them.

slide4
When professors talk about a case in class, they may or may not talk directly about the traditional parts of a brief.

Rest assured, however, that the professor will be thinking in terms of these chunks of information.

slide5
What are the parts (“chunks”) of information classically contained in a law student’s brief (and classically thought about by legally trained readers)?
the parts of a brief

The parts of a brief

The parts of a brief

the parts of a brief7
The parts of a brief

The parts of a brief

  • Heading
  • Parties
  • Procedural History
  • Facts
  • Question Presented
  • Holding
  • Rule (Principle/Reasoning)
  • Your ideas
the parts of a brief8
The parts of a brief

The parts of a brief

  • Heading
    • Where can I find this case again?
  • Parties
    • Who is involved with this conflict?
  • Procedural History
    • What happened legally to this case before it got to this court?

continued . . .

the parts of a brief9
The parts of a brief

The parts of a brief

  • Facts
    • What happened between the parties that created this conflict, and (sometimes) what happened in the courts below with this conflict?
  • Question Presented
    • What is the legal question relevant to this part of our casebook that has been raised on this appeal?

continued . . .

the parts of a brief10
The parts of a brief

The parts of a brief

  • Holding
    • How did this court answer that question?
  • Rule (Principle/Reasoning)
    • What was the court’s train of thought as it reached this result? Sometimes this section requires an analysis of policy issues that influenced the court.

continued . . .

the parts of a brief11
The parts of a brief

The parts of a brief

  • Your ideas
    • What did you think about as you read this case?
start with the heading

Start with the Heading

Start with the Heading

start with the heading14
Start with the Heading

Start with the Heading

You will find an opinion published in a “reporter” by its “citation.”

The “citation” also tells a legally trained reader the place and year of decision – as well as the level of court that decided the case.

start with the heading an example
Start with the Heading -- An Example

Start with the Heading -- An Example

Case Name

(Parties to the suit)

Reporter

(U.S. Supreme Court)

Gideon v. Wainwright, 372 U.S. 335 (1963).

Volume

First page of the case

Year of decision

start with the heading a second example
Start with the Heading -- A Second Example

Start with the Heading -- A Second Example

Case Name

(Parties to the suit)

Leichtman v. WLW Jacor Communications, 92 Ohio App. 3d 232 (1994).

Volume

First page

Reporter

(Published opinion of the Ohio Court of Appeals)

Year of decision

start with the heading a third example
Start with the Heading -- A Third Example

Start with the Heading -- A Third Example

Case Name

(Parties to the suit)

Year of decision

Ray v. Young,

572 S.E.2d 216 (N.C. Ct. App.) (2002).

Volume

First page

Reporter

(Southeast

Regional Reporter)

Deciding Court

start with the heading a tip
Start with the Heading -- A Tip

Start with the Heading -- A Tip

It also helps to include the casebook page number at the top of your brief.

Including the page number helps you find the case quickly in class.

name the parties

Name the Parties

Name the Parties

name the parties20
Name the Parties

Name the Parties

Who is involved in this conflict?

If it’s a civil case, there will be a “Plaintiff” ()* and a “Defendant” ()*.

*In some instances, the Plaintiff is called the “Petitioner” and the Defendant is called the “Respondent.”

name the parties21
Name the Parties

Name the Parties

If it’s a criminal case, there will be the name of the jurisdiction bringing the charge and the name of the defendant.

name the parties an example of a civil case
Name the Parties -- An Example of a Civil Case

Name the Parties -- An Example of a Civil Case

Gideon v. Wainwright

Petitioner (∏)

Respondent (∆)

name the parties an example of a criminal case
Name the Parties -- An Example of a Criminal Case

Name the Parties -- An Example of a Criminal Case

United States v. Nixon

Government bringing the charge

Criminal Defendant (∆)

name the parties24
Name the Parties

Name the Parties

  • In a civil case, the Plaintiff is usually (but not always!!) listed in the heading first.
    • Read the case to make sure you’re right about the parties’ names.
  • Also, where there’s more than one party, only the first party named in the suit is listed in the heading.
    • Read the case to find out if there were others involved in the suit or charge.
name the parties25
Name the Parties

Name the Parties

It also helps to make a short-hand notation to yourself of what “category” each party can fall into (because lawyers think of cases as representative of similar situations).

name the parties an example
Name the Parties -- An Example

Name the Parties -- An Example

Gideon v. Wainwright:

Gideon (∏) = a Florida prisoner

Wainwright (∆) = Corrections Director for the State of Florida

identify the procedural history

Identify the Procedural History

Identify the Procedural History

identify the procedural history28
Identify the Procedural History

Identify the Procedural History

By the time an opinion is written on a case, a lot of water has gone over the dam.

In order to understand the case, you have to be able to accurately visualize (imagine) what the lawyers and judges did with this case before it got to the present court.

identify the procedural history29
Identify the Procedural History

Identify the Procedural History

In the weeks ahead, you’ll learn that how a case gets to the present (deciding) court has a lot to do with how much power the present court can exercise in deciding the question in front of it.

For now, learn to identify accurately what happened as this case got to this court.

identify the procedural history an example
Identify the Procedural History -- An Example

Identify the Procedural History -- An Example

Gideon v. Wainwright:

  • Criminal trial in Florida state court for felony breaking and entering – guilty
  • Habeus corpus petition filed by Gideon with Florida Supreme Court – denied
  • Petition for certiorari granted by the U.S. Supreme Court (i.e., the U.S. Supreme Court agreed to hear the case)
identify the procedural history31
Identify the Procedural History

Identify the Procedural History

Many experienced law students add the decision of THIS court (the decision in the case you’re reading) as the final step in the Procedural History so they have a quick way to see the map of the whole case, from beginning to end.

identify the procedural history an example32
Identify the Procedural History -- An Example

Identify the Procedural History -- An Example

Gideon v. Wainwright:

  • Criminal trial in Florida state court for felony breaking and entering – guilty
  • Habeus corpus petition filed by Gideon with Florida Supreme Court – denied
  • Petition for certiorari granted by the U.S. Supreme Court (i.e., the U.S. Supreme Court agreed to hear the case)

– reversed the Florida conviction

facts spotting the action

Facts: Spotting the action

Facts: Spotting the action

facts spotting the action34
Facts: Spotting the action

Facts: Spotting the action

Exceptional legal readers have great imaginations.

As they read, they get a clear and accurate picture of what happened (often casting the characters and setting the scene in their minds as they would if reading a short story or a novel).

facts spotting the action35
Facts: Spotting the action

Facts: Spotting the action

To get a clear and accurate picture, keep an open mind and stay within the context (historical, geographical, social) of the case.

facts spotting the action36
Facts: Spotting the action

Facts: Spotting the action

Once you have a vivid image of what happened in a case, take notes in your brief to remind yourself of the important facts of the case.

pinpoint the question presented

Pinpoint the Question Presented

Pinpoint the Question Presented

pinpoint the question presented38
Pinpoint the Question Presented

Pinpoint the Question Presented

In this part of the brief, try to state, succinctly and accurately, the legally significant question raised in the case.

pinpoint the question presented a reading tip
Pinpoint the Question Presented-- A Reading Tip

Pinpoint the Question Presented -- A Reading Tip

As you search for the legally significant question, consider the sub-topic heading of your casebook.

(In other words, why has your casebook author included this case in your assigned reading? What legal question is the case raising that you should think about in the context of this book and this class?)

pinpoint the question presented an example
Pinpoint the Question Presented-- An Example

Pinpoint the Question Presented -- An Example

Gideon v. Wainwright:

Is a criminal defendant who cannot afford an attorney entitled to have one appointed for him or her in a state court?

pinpoint the question presented another example
Pinpoint the Question Presented-- Another Example

Pinpoint the Question Presented -- Another Example

Gideon v. Wainwright:

Were the constitutional rights of Gideon, a Florida state prisoner, violated because he could not afford to hire an attorney?

pinpoint the question presented a thinking tip
Pinpoint the Question Presented-- A Thinking Tip

Pinpoint the Question Presented -- A Thinking Tip

Note that the Question Presented can be viewed (and stated) broadly or narrowly.

Example (broad): Are criminal defendants entitled to counsel?

Example (narrow): Was Mr. Gideon constitutionally entitled to have counsel appointed for him in state court on a charge of breaking and entering with intent to commit a misdemeanor?

pinpoint the question presented a reading tip43
Pinpoint the Question Presented-- A Reading Tip

Pinpoint the Question Presented -- A Reading Tip

When we read in law school, we develop a working hypothesis about the point of our reading in the context of the course as a whole.

As you frame out your “question presented” you will begin to figure out a “working hypothesis” (your best guess) as to what this case will add to your understanding of the areas of law covered in this part of your casebook.

pinpoint the question presented a briefing tip
Pinpoint the Question Presented-- A Briefing Tip

Pinpoint the Question Presented -- A Briefing Tip

As you brief the case, it won’t hurt to set out a couple of versions of the Question Presented (one broad, one narrow), and then see what happens in class.

highlight the holding

Highlight the Holding

Highlight the Holding

highlight the holding46
Highlight the Holding

Highlight the Holding

In every case, the court will reach a decision about the legal issue(s) raised.

highlight the holding47
Highlight the Holding

Highlight the Holding

The exact decision that resolves the question for the parties named in the suit is often called a “holding.”

This type of “holding” usually parallels a narrowly stated Question Presented.

highlight the holding48
Highlight the Holding

Highlight the Holding

The rule(general principle)that the court adopts to reach the exact decision in a case is also sometimes called a “holding.”

A more broadly stated “holding” (more of a “rule”) usually parallels a more broadly stated Question Presented.

highlight the holding an example
Highlight the Holding -- An Example

Highlight the Holding -- An Example

Narrow holding:

Mr. Gideon was entitled to have counsel appointed for him since he could not afford one, and his conviction is reversed and remanded for a new trial with counsel.

highlight the holding an example50
Highlight the Holding -- An Example

Highlight the Holding -- An Example

Broad holding:

Conviction on a criminal charge, even in state court, without adequate legal representation is a violation of a criminal defendant’s federal constitutional rights to representation.

highlight the holding an example51
Highlight the Holding -- An Example

Highlight the Holding -- An Example

Broadest holding:

Poverty does not diminish a criminal defendant’s constitutional rights.

highlight the holding a reading tip
Highlight the Holding -- A Reading Tip

Highlight the Holding -- A Reading Tip

As you seek to identify the holding and rule, consider the topic being covered in the casebook and what you should take to class and from class as a result of reading this case.

broaden your thinking articulate the rule reasoning

Broaden Your Thinking: Articulate the Rule & Reasoning

Broaden Your Thinking: Articulate the Rule & Reasoning

articulate the rule reasoning
Articulate the Rule & Reasoning

Articulate the Rule & Reasoning

As you’ve learned, the “rule” of a case is often the same as a broad holding.

articulate the rule reasoning55
Articulate the Rule & Reasoning

Articulate the Rule & Reasoning

The “rule” is the consistent standard that the court applied to reach this result.

articulate the rule reasoning56
Articulate the Rule & Reasoning

Articulate the Rule & Reasoning

A “rule” rests on identifiable principles and can be carried forward to resolve similar conflicts to reach similar results in the future.

articulate the rule reasoning57
Articulate the Rule & Reasoning

Articulate the Rule & Reasoning

Understanding the “reasoning” behind the rule (i.e., the court’s thinking) is an important part of understanding whether it is appropriate to apply a rule to a new situation in the future.

articulate the rule reasoning real life example
Articulate the Rule & Reasoning:Real-Life Example

Articulate the Rule & Reasoning:Real-Life Example

Let’s say my family holds to the following “rule”: school-aged children should never miss class.

The reason behind the rule is that my family believes that children who attend class are better educated and will be given leadership positions as they mature.

articulate the rule reasoning real life example59
Articulate the Rule & Reasoning:Real-Life Example

Articulate the Rule & Reasoning:Real-Life Example

If one of my children gets a chance to represent his or her class at a Governor’s Conference, but must miss class to do so, it might not make sense to apply the “never miss class” rule in that situation.

articulate the rule reasoning real life example60
Articulate the Rule & Reasoning:Real-Life Example

Articulate the Rule & Reasoning:Real-Life Example

The reason for the rule (“steady attendees are better educated and will get leadership opportunities”) would dictate that an exception be made or that the rule be rephrased: “School-aged children in our family don’t miss class unless there’s a good educational reason to do so.”

articulate the rule reasoning another example
Articulate the Rule & Reasoning: Another Example

Articulate the Rule & Reasoning: Another Example

From a case brief:

The guarantee of right to counsel found in the 6th Amendment of the U.S. Constitution is sufficiently fundamental to warrant its imposition on all the states through the 14th Amendment, which obligates all states to recognize and protect any “fundamental” rights guaranteed in the original Bill of Rights.

owning your own ideas

Owning Your Own Ideas

Owning Your Own Ideas

owning your own ideas63
Owning Your Own Ideas

Owning Your Own Ideas

To succeed in law school, you have to evaluate (think about the value of) what you read.

“Owning” (staying in touch with) your own thoughts and reactions as you read a case is a critical part of evaluating what you read.

owning your own ideas64
Owning Your Own Ideas

Owning Your Own Ideas

Keeping notes on the thoughts that emerge as you read a case:

  • helps you focus as you read
  • keeps you invested in what you read
  • clarifies your thinking as you read
  • encourages you to find patterns in your reading

continued . . .

owning your own ideas65
Owning Your Own Ideas

Owning Your Own Ideas

Keeping notes on the thoughts that emerge as you read a case:

  • helps you stay involved in class discussions
  • aids memory
owning your own ideas an example
Owning Your Own Ideas -- An Example

Owning Your Own Ideas -- An Example

What one student might have thought when reading Gideon v. Wainwright:

Own Ideas: It was pretty gutsy of this prisoner to continue to insist on his right to counsel, and impressive that the U.S. Supreme Court took it up and reversed its prior decisions on the fundamental nature of the right to counsel.

owning your own ideas another example
Owning Your Own Ideas -- Another Example

Owning Your Own Ideas -- Another Example

What another student might have thought:

Own Ideas: How could the Court completely reverse its own prior decision in Betts (holding specifically that the right to counsel is NOT a fundamental right worthy of 14th Amendment protection)? This is a real example of how the ideology of the judges on the bench makes it hard to rely on prior opinions as binding precedent.

putting it all together a look at a brief for gideon v wainwright

Putting it All Together: A Look at a Brief forGideon v. Wainwright

Putting it All Together: A Look at a Brief for Gideon v. Wainwright

putting it all together
Putting it all together

Putting it all together

Heading:

Gideon v. Wainwright, 372 U.S. 335 (1963).

Parties:

Petitioner: Mr. Gideon (a Florida prisoner)

Respondent: Mr. Wainwright (Corrections Director for the State of Florida)

putting it all together70
Putting it all together

Putting it all together

Procedural History:

  • Criminal trial in Florida state court for felony breaking and entering – guilty
  • Habeus corpus petition filed by Gideon with Florida Supreme Court – denied
  • Petition for certiorari granted by the U.S. Supreme Court (i.e., the U.S. Supreme Court agreed to hear the case) – reversed the Florida conviction
putting it all together71
Putting it all together

Putting it all together

Facts:

Petitioner (∆ Gideon) was charged in Florida with breaking and entering a poolroom with the intent to commit a misdemeanor (which is a felony offense in Florida) and was tried in Florida state court without an attorney.

At that trial, he asked to be provided with an attorney because he could not afford one.

continued . . .

putting it all together72
Putting it all together

Putting it all together

Facts:

He was told it was not the policy of the State of Florida to appoint counsel to represent him.

He replied, “The United States Supreme Court says I’m entitled to be represented.”

He conducted his own defense, was found guilty, and was sentenced to five years in prison.

continued . . .

putting it all together73
Putting it all together

Putting it all together

Facts:

Again representing himself, he appealed his conviction to the Florida Supreme Court and lost.

He then wrote the U.S. Supreme Court which heard his case.

putting it all together74
Putting it all together

Putting it all together

Question Presented:

Is a criminal defendant who cannot afford an attorney entitled to have one appointed for him or her in a state court?

Holding:

Yes – an indigent criminal defendant is entitled to have counsel appointed for him or her in both state and federal criminal trials.

putting it all together75
Putting it all together

Putting it all together

Rule:

The United States Constitution guarantees that all criminal defendants are entitled to be represented by counsel, whether they stand accused in a state or a federal court, and where they cannot afford to hire an attorney, one must be appointed for them.

putting it all together76
Putting it all together

Putting it all together

Reasoning:

Relying on a long line of cases, the Court reasoned that the 14th Amendment of the U.S. Constitution obligates all states to recognize and protect any “fundamental” rights guaranteed in the original Bill of Rights.

continued . . .

putting it all together77
Putting it all together

Putting it all together

Reasoning:

Although the U.S. Supreme Court has long recognized that appointment of counsel for indigent criminals in federal cases was constitutionally mandated, it originally determined that the representation by counsel guarantee of the 6th Amendment was not sufficiently fundamental to warrant its imposition on the states through the 14th

. . .

continued . . .

putting it all together78
Putting it all together

Putting it all together

Reasoning:

(see Betts v. Brady, decided in 1942, where the court determined that an indigent criminal defendant in state court was NOT entitled to be represented by appointed counsel).

This Court now believes that decision was incorrect and is abandoning that precedent.

continued . . .

putting it all together79
Putting it all together

Putting it all together

Reasoning:

Upon reconsideration of the question of whether indigent criminal defendants are entitled to have counsel appointed to represent them, this court determined that the guarantee of right to counsel found in the 6th Amendment of the U.S. Constitution is sufficiently fundamental to warrant its imposition on all the states.

continued . . .

putting it all together80
Putting it all together

Putting it all together

Reasoning:

As Justice Black, writing for the Court, stated, “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”

putting it all together81
Putting it all together

Putting it all together

Your Ideas:

It was pretty gutsy of this prisoner to continue to insist on his right to counsel, and impressive that the U.S. Supreme Court took it up and reversed its prior decisions on the fundamental nature of the right to counsel.

moving into the future

Moving into the Future

Moving into the Future

moving into the future83
Moving into the Future

Moving into the Future

As you gain experience in reading and briefing cases, your case briefs may start to look different than they do in the first weeks of law school.

moving into the future84
Moving into the Future

Moving into the Future

Some upperclass law students will tell you they no longer “brief” cases --

-- but if you talk with them long enough, you’ll find they are “briefing” (chunking information) in an altered (often shorter) form, or they are “chunking” automatically in their heads.

moving into the future85
Moving into the Future

Moving into the Future

As you start to be able to “chunk” information from cases automatically as you read, you may (or may not) consider alternative briefing systems.

moving into the future86
Moving into the Future

Moving into the Future

Some students:

  • use magic markers of different colors to “book brief”;
  • take notes in the margins of their casebooks instead of on a separate piece of paper;
  • make flow charts; or
  • write very short briefs, with only one or two words in each section to remind them of the case.
moving into the future87
Moving into the Future

Moving into the Future

To check to make sure your brief is doing what it should for you, ask yourself:

  • Does it help me focus on the case as I read?
  • Does it encourage me to vividly visualize the case and form an accurate image of the legal facts and the conflict facts in the case?

continued . . .

moving into the future88
Moving into the Future

Moving into the Future

Ask yourself:

  • Does it help me bring a valid working hypothesis to class?
  • Does it help me get through class if I’m called on?
  • Will it help me remember the case later, as I’m considering the “big picture” in this section of the course?
one final thought

One Final Thought

One Final Thought

one final thought90
One Final Thought

One Final Thought

“The ability to meet [the awesome responsibility placed on lawyers as protectors of people, institutions, and governments] begins for each of us as we read law with our hearts as well as our minds, with thoughts anchored in the past as well as thoughts reaching forward to the future, and – above all – with a humble awareness that the development of just and fair results begins with careful, close, and critical reading.”

-- Reading Like a Lawyer, pp. 264-65

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