Wednesday, August 12, 2009

Reading and Briefing Cases

Judicial opinions are not written to teach students the law. Therefore, you cannot read a case as if it explains what you need to know as a law student the way your college textbooks were written to explain what you needed to know as college students. Judicial opinions are written for a number of purposes and audiences. Primarily they are written to justify the result of the case for the parties to the case. They are also written with an eye toward any court that might hear an appeal of the decision to defend and justify the decision so that the appellate court will uphold the decision. To some degree (far more so in U.S. Supreme Court decisions than in any other court), the decisions are are also written to the profession in general to justify the result and influence future decisions. But judicial opinions are not written so that you as law students can understand the law.

Thus,
judicial opinions tend to be poor explanations of the results they announce. Courts are good at reaching the right results. They tend to be terrible at explaining those results that are convincing or compelling to law students. There are a number of reasons for this defect. The principal one is that courts are overburdened institutions primarily concerned with doing justice, not explaining justice. Another is, as explained above, that the writing is not directed at lay people or beginning law students. Finally, one should never underestimate the difficulty of writing well. The vast majority of legal writing you will read in your case books is poor writing. Do not use judicial opinions as models of good legal writing except to the extent you find those opinions clear and convincing. If you find a particular piece of writing difficult to understand, why in the world would you consider it good writing? In essence, therefore, judicial opinions are puzzles -- usually very difficult puzzles -- for you to figure out. So what can you do? First, understand that courts are very good at reaching the "right" results. Courts are part of a justice system, and most (at least those that wrote the cases we read) are good at achieving just results. Thus, the vast majority of the cases you read in our casebook are correctly decided. So your job is to figure out why the result in the case is the right result. Doing so requires paying attention primarily to these elements:
  1. What is the story that gave rise to the lawsuit? In other words, what does the evidence show? Remember, we never have "God's video tape" of the story. All we have is the evidence -- typically testimony of witnesses and documentary evidence. We also have the reasonable inferences we can draw from that evidence. A student one year complained to me that I was asking her not just to learn contract law but to learn "everything." I nodded in agreement. The only way to understand a story is to begin to apply your own common sense and experience. Unfortunately, most beginning law students have very little experience with the commercial world and therefore have a difficult time filling in the "background" that makes sense of the evidence. Much of this difficulty, though, is the result of being intimidated by the commercial world. The commercial world is not like sub-nuclear physics. It is a world in which regular people like you engage in transactions in which they try to spend as little as they need to in the hope of gaining as much value as they can. They typically too want to maintain their good reputations. Every day you go into a store or make an online purchase you engage in a contractual transaction. So don't be intimidated. Try to figure out what and why people are doing what they are doing in the cases we are discussing. Since we are talking about contract law there are two sets of facts that are indispensible to an understanding of the cases: (a) the expressed intentions of the parties (which may be written, oral, and or implied by conduct), and (b) the price.
  2. What is the procedural history of the case? What constitutes a legal "fact" (as opposed to evidence) often turns on the procedural posture of the ruling. Was the case decided on summary judgment in the trial court? Was it decided after a trial (by the judge or by a jury)? Was it decided on appeal? What did the appeal decide? Did it affirm a jury verdict? Did it affirm an order dismissing a case on a motion to dismiss "for failure to state a claim" (f/k/a a "demurrer")? Did it reverse the trial court's ruling and remand for a trial? Did it reverse the trial court's ruling and order final judgment?
  3. What rules did the court apply?
  4. What was the result of the lawsuit? Who won, and what was the remedy? The remedy is crucial. Winning a case and getting less money in damages than it cost you to bring the lawsuit is hardly a win. And often the result is not the end of the case. If an appellate court remands a case for trial, no one has yet "won."
After determining all of these things, can you make sense of the result? Can you make sense of it in a way that makes sense in your gut as a human being? Can you sensibly apply the vague and amorphous rules the court applies? If so, you have achieved one (among probably many) good explanation of the case.

That's how I make sense of case law. Then again, there is a very conventional way to "brief" a case that everyone in law school is taught.

You should note a few things about briefing cases:
  1. A case brief is for you and for you only. In essence, a case brief is a set of notes on a case you are reading for class. Any writing you do is for the audience for whom you are writing. If you are writing for yourself, write in a way that you find useful. You will not hand in your case briefs (except, perhaps, in one or two classes in which your professors want to make sure at the beginning of the year that you are getting it). You will not be graded on your case briefs. By the time you have experience as a lawyer the notes you take on a given case you are reading (which will serve the same purposes a case brief is supposed to serve you as a beginning law student) may consist of a single phrase.
  2. As noted, case briefs can be very useful in organizing your thoughts about the case law you are going to be discussing in class and in putting together your notes for studying for exams.
  3. There is no single way to brief a case. There is no right way to brief a case. There are only ways people brief cases. The typical way (as explained in the link above) exists, I believe, primarily because it's the way law students (and thus lawyers, judges, and law professors) have briefed cases for generations.
  4. Briefing a case will not explain why the case makes sense. It will begin to, but only you can make sense of the cases for yourself. I have tried above to explain how I find it useful to make sense of cases.

3 comments:

  1. Anjela Freeman8/18/09, 11:06 PM

    I am reassured to read here that there is no one particular way for a student to brief a case. In my prep work I came across sample briefs that varied in form and complexity, so I was beginning to wonder exactly what would be expected. Thanks for the link to the Lloyd Sealy Library. That information, plus the samples received today at orientation should help tremendously.

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