M.D. Murray & C.H.

De Sanctis, Objective Legal Writing and Analysis Appendix A: Preparing a Case Brief or Case Analysis for Class PREPARING A CASE BRIEF OR CASE ANALYSIS FOR CLASS The decades-old tradition of teaching first year classes of torts, contracts, property, civil procedure, and criminal law by examining reported judicial opinions ("cases"), one after the other, will continue for the foreseeable future. Therefore, in order to attempt to prepare yourself for class and especially for the bombardment of questions that is part and parcel of the Socratic Method (so named because it can drive you to a point where drinking poison is a more acceptable alternative than continuing with the class), you should try to brief the cases you are assigned to read. Hopefully, then you will have something to refer to when the professor turns her sights on you and starts firing. Why do we care so much about cases? The Common Law tradition in the United States and other British-influenced countries allows the courts to make binding law through a process of interpreting, and sometimes modifying or reversing legal rules from earlier sources (cases, statutes, rules and commentary), and applying the newly crafted rule to the case at hand (the parties and their situation) so as to create a precedent that future lawyers and judges can use to evaluate and determine the cases before them. Throughout much of the history of England, this process of developing and advancing the law was more important than the passage of laws by Parliament or by royal decree. Thus, in the ancient bedrock areas of the law (torts, contracts, property, etc.), we still discuss the law and its development by reference to cases. What kinds of things are we looking for in the cases we read? A precedent can be binding (also referred to as controlling) on future courts, or it can merely be persuasive. A binding or controlling cases is supposed to dictate the action of the court bound by the case--the court must handle the legal matter at hand in the same way as was done in the precedential case. A persuasive opinion only is used to try to persuade the court that it should do things the same way. If an opinion is binding, it still is only binding on cases that involve the same type of situation and similar facts as those of the precedential case. Therefore, the facts (what happened in the case that led up to a lawsuit being filed--the who, what, when, where, and how of the case) and the issues involved (the individual legal questions that the court addresses and usually answers) in the cases that you read are very important. Everyone wants to know who won, so the judgment rendered in the case is very important. In addition, only the holding of the court in the case is deemed to be controlling on future cases. The holding is a sentence or a short discussion (no more than a paragraph), which explains in legal terms the rule of law that ultimately applied to resolve the legal issue in the case, and how it was applied, so as to explain why the prevailing party won. If the discussion in part of the case has no bearing on the outcome of the case, or is a discussion of what would be or should be the law, or discusses what the result would be in different situations or on different facts, then all of this discussion is called dicta and it is not binding on future courts in future cases. Although it is not binding, it is important to lawyers and judges in predicting how a court would handle a future case where the facts and issues were as discussed in the dicta, and thus dicta should be considered valuable and persuasive authority. Accordingly, you should lay out the holding of the case in your brief, but also make note of the dicta.

M.D. Murray & C.H. De Sanctis, Objective Legal Writing and Analysis Appendix A: Preparing a Case Brief or Case Analysis for Class The procedural history of the case discusses the things that happened in the case after it was filed, and in particular, it identifies the stage of the case in the litigation process when the opinion was issued. For instance, was the opinion issued from a trial court or an appellate court? At what stage of the case did the court issue the opinion--before a trial or after? Was it an intermediate level appellate court or the court of last resort in the jurisdiction? This often can be important, because a ruling in a case from the trial court issued before trial will have a much different effect on future cases than a ruling from the state supreme court (court of last resort) on appeal from the intermediate level appellate court in the state which handled the first appeal after a full jury trial in the case. The level of the court matters--is it a trial court or an intermediate level appellate court or a court of last resort? The jurisdiction of the court matters--is it a state court or federal court or court from a foreign country? (Tip: a federal court is a court that has "United States" in its title). Is it a special court, such as a chancery court, that only handles cases of a specific kind? The name of the judge matters--he or she may have a great reputation, so the opinion will command a lot of respect. All of these factors are worthy of attention in a case brief. (Note: you may not think these are important right now, but trust us--your professors will.) What does it look like? The case brief should include the name of the case, called the style of the case, the court, the judge, the facts (also known as historical facts), the procedural history, the issues in the case, the judgment (who won and what they won), the holding, and any dicta that sounds important. You may also write up a brief discussion of the rationale employed by the court beyond what you wrote in the holding part. As for organization, that is up to you, but it seems logical to organize these topics into an outline. For example: CASE BRIEF Style of the Case: Court: Judge: Facts and Procedural History: Issues: Judgment: Holding: Discussion (and Dicta):

M.D. Murray & C.H. De Sanctis, Objective Legal Writing and Analysis Appendix A: Preparing a Case Brief or Case Analysis for Class How long should a case analysis be? At first, your analysis of each case probably will be a full page and often longer. You soon will tire of preparing that much, and after a few weeks of Socratic examination from your professors, you hopefully will learn what you should focus on with each professor, and you probably will winnow down the briefs to two thirds of a page or less. For example, a civil procedure professor will be very interested in the procedures employed in the case--how it got into the court, why were the defendants able to be sued there, how did the plaintiff's claim get dismissed. In contrast, a contracts professor will be very interested in any agreements discussed in the case-the discussions that led up to the agreements, the form and meaning of the agreements, and how the parties performed or did not perform their agreements. You still don't understand holding vs dicta?! Holding and dicta not easy concepts, and they will cause you a lot of trouble in your first year classes.