Critical Writing Skills: An Introduction to Briefing

One of the most important aspects of writing as you read is "briefing" the cases in your text. It is the process of preparing the brief that provides the primary benefit, not the brief itself. The process of briefing helps you concentrate on key ideas, compare one case with another, organize your analysis, and review your materials.
Remember that your purpose in reading cases is NOT TO LEARN ABOUT THE CASE -- the case is simply one fact situation to which one court has responded.
MUCH OF WHAT YOU NEED TO GET OUT OF A CASE IS NOT TO BE FOUND IN THE EXPRESS WORDS OF THE CASE.

You study cases because they provide:

RULES & DOCTRINES -- You must learn to identify the legal concepts and rules that are applied in cases. Learning the rules is the easy part. Interpreting the rules is the difficulty. Remember that RULES ARE TOOLS to solve problems -- they are not formulae to provide answers. So identify and memorize the language of the rules, yes, but also work on identifying all the different uses that could be made of the rule.

ARGUMENTS -- Cases provide examples of techniques of argumentation that can be applied to all kinds of situation. They also provide fact situations to which you can apply your own argumentation skills, creating arguments that are different from or more carefully crafted than those provided by the court.

POLICIES -- Cases implicate public policy considerations that the judges may or may not expressly discuss but you need to explore.

STRATEGIES AND OUTCOMES -- Cases provide examples of choices and outcomes that affect clients. You need to think about whether the choices made were wise and about what options were available. These are matters rarely discussed explicitly in the case.

Especially during the first month of classes, you will need to read the cases several times before you can produce a final brief. The "policy analysis" and "personal analysis" sections may be rather thin as you concentrate on describing opinion itself. After several weeks, you will be able to brief the cases with less effort and fewer readings. Now, the time saved should be spent thinking about analysis. The focus of your study will shift from the top sections of the briefing format to the bottom.


A Sample Briefing Format

1. Citation: Name of the case, date decided, court
2. Statement of the Case: "Who is suing whom for what remedy on what basis?" (from viewpoint of trial court)
3. Statement of Facts: Chronological summary of all relevant facts (sometimes drawing a diagram helps)
4. Procedure Below: What happened in the lower court? Who won?
5. Result on Appeal: Was the trial court reversed or affirmed?
6. What is the issue?: There are usually two kinds of issues: "what is the law? (e.g., which rule should the court apply? or which interpretation of the rule should the court adopt?)" or "how does the law apply to these facts?(e.g., should these facts be characterized in such a way as to fit within the rule or outside the rule?)". A third issue: "what are the facts" is equally important in practice, but we will not usually be addressing those issues in this course. Note that one case may contain several issues.
7. Arguments and Analysis of Appellant: Why is the trial court wrong and what legal theory or interpretation should have been applied?
8. Arguments and Analysis of Appellee: What is the trial court's legal theory or application and why is that correct?
9. What is the holding?: One way to think of a holding is : "Under this doctrine of law, if these facts occur, then this condition of the law has been fulfilled."
10. Policy Analysis: What public policies or goals are furthered by the court's choice? What would be the effect if the court have chosen an alternative rule or application of the rule? How does this opinion fit in with others you have read on the same topic? How does the law applied in this case fit into the overall scheme?
11. Personal Analysis: Do you agree with the holding? How far do you think the next court would be willing to extend the holding? Do you agree with the results? Is it fair? With the analysis? Is it logical and consistent? What's likely to happen now to the people and the property involved? What would you have done differently if you had represented one of the parties or had been the judge? Why is this case in the book? Why did the professor assign it? How might it be tested?