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)

The Nuts and Bolts of The Nuts and Bolts of Case Briefing Case Briefing

Ruth Ann McKinneyRuth Ann McKinneyReading Like A LawyerReading Like A Lawyer, ,

© 2005© 2005

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

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.

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.

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 briefThe parts of a briefThe parts of a briefThe parts of a brief


• Heading

• Parties

• Procedural History

• Facts

• Question Presented

• Holding

• Rule (Principle/Reasoning)

• Your ideas

• 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 . . .


• 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 . . .


• 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 . . .

• Your ideas

―What did you think about as you read this case?


Let’s look at each part of your brief in detail . . .

Start with the HeadingStart with the HeadingStart with the HeadingStart with the Heading

Start with the HeadingStart 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 HeadingStart with the Heading

Start with the Heading Start with the Heading -- An Example-- An ExampleStart with the Heading Start with the Heading -- An Example-- An Example

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

Volume

First page of the caseYear of decision

Reporter(U.S. Supreme Court)

Case Name(Parties to the suit)

Start with the Heading Start with the Heading -- A Second Example-- A Second ExampleStart with the Heading Start with the Heading -- A Second Example-- A Second Example

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

(1994).Volum

e First page

Year of decision

Reporter(Published opinion of

the Ohio Court of Appeals)


Start with the Heading Start with the Heading -- A Third Example-- A Third ExampleStart with the Heading Start with the Heading -- A Third Example-- A Third Example

Ray v. Young,

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

Volume

First page

Year of decision

Reporter(Southeast

Regional Reporter)


Deciding Court

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.

Start with the Heading Start with the Heading -- A Tip-- A TipStart with the Heading Start with the Heading -- A Tip-- A Tip

Name the PartiesName the PartiesName the PartiesName 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.”


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


Gideon v. Wainwright

Name the Parties Name the Parties -- An Example of a Civil Case-- An Example of a Civil CaseName the Parties Name the Parties -- An Example of a Civil Case-- An Example of a Civil Case

Petitioner (∏) Respondent (∆)

United States v. Nixon

Name the Parties Name the Parties -- -- An Example of a Criminal An Example of a Criminal CaseCaseName the Parties Name the Parties -- An Example of a Criminal -- An Example of a Criminal CaseCase

Government bringing the

charge

Criminal Defendant (∆)

• 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.


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).


Gideon v. Wainwright:

Gideon (∏) = a Florida prisoner

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

Name the Parties Name the Parties -- An Example-- An ExampleName the Parties Name the Parties -- An Example-- An Example

Identify the Identify the Procedural HistoryProcedural History

Identify the Identify the Procedural HistoryProcedural 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 HistoryIdentify the Procedural HistoryIdentify the Procedural HistoryIdentify 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.



1. Criminal trial in Florida state court for felony breaking and entering – guilty

2. Habeus corpus petition filed by Gideon with Florida Supreme Court – denied

3. 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 History Identify the Procedural History -- An Example-- An ExampleIdentify the Procedural HistoryIdentify the Procedural History -- An Example -- An Example

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.





3. 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

Identify the Procedural History Identify the Procedural History -- An Example-- An ExampleIdentify the Procedural HistoryIdentify the Procedural History -- An Example -- An Example

Facts: Spotting the Facts: Spotting the actionaction

Facts: Spotting the Facts: Spotting the actionaction

Facts: Spotting the actionFacts: 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 actionFacts: 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 actionFacts: Spotting the actionFacts: Spotting the actionFacts: 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.

Facts: Spotting the actionFacts: Spotting the actionFacts: Spotting the actionFacts: Spotting the action

Pinpoint the Pinpoint the Question PresentedQuestion Presented

Pinpoint the Pinpoint the Question Presented Question Presented

Pinpoint the Question PresentedPinpoint the Question PresentedPinpoint the Question PresentedPinpoint 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 Pinpoint the Question Presented -- A Reading -- A Reading TipTipPinpoint the Question PresentedPinpoint the Question Presented -- A Reading -- A Reading TipTip

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 Pinpoint the Question Presented -- An -- An ExampleExamplePinpoint the Question PresentedPinpoint the Question Presented -- An -- An ExampleExample


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 Pinpoint the Question Presented -- Another -- Another ExampleExamplePinpoint the Question PresentedPinpoint the Question Presented -- Another -- Another ExampleExample


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

Pinpoint the Question Presented Pinpoint the Question Presented -- A Thinking -- A Thinking TipTipPinpoint the Question PresentedPinpoint the Question Presented -- A Thinking -- A Thinking TipTip

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 Pinpoint the Question Presented -- A Reading -- A Reading TipTipPinpoint the Question PresentedPinpoint the Question Presented -- A Reading -- A Reading TipTip

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 Pinpoint the Question Presented -- A Briefing -- A Briefing TipTipPinpoint the Question PresentedPinpoint the Question Presented -- A Briefing -- A Briefing TipTip

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 HoldingHighlight the HoldingHighlight the HoldingHighlight the Holding


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


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.


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 Highlight the Holding -- An Example-- An ExampleHighlight the HoldingHighlight the Holding -- An Example -- 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 Highlight the Holding -- An Example-- An ExampleHighlight the Holding Highlight the Holding -- An Example-- 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 Highlight the Holding -- An Example-- An ExampleHighlight the Holding Highlight the Holding -- An Example-- An Example

Broadest holding:

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

Highlight the Holding Highlight the Holding -- A Reading Tip-- A Reading TipHighlight the HoldingHighlight the Holding -- A Reading Tip -- 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: Broaden Your Thinking: Articulate the Articulate the

Rule & ReasoningRule & Reasoning

Broaden Your Thinking: Broaden Your Thinking: Articulate the Articulate the

Rule & Reasoning Rule & Reasoning

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

Articulate the Rule & ReasoningArticulate the Rule & ReasoningArticulate the Rule & ReasoningArticulate the Rule & Reasoning

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


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


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.


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:Articulate the Rule & Reasoning: Real-Life Real-Life ExampleExampleArticulate the Rule & Reasoning:Articulate the Rule & Reasoning: Real-Life Real-Life ExampleExample

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.


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.”


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.

Articulate the Rule & Reasoning: Articulate the Rule & Reasoning: Another Another ExampleExampleArticulate the Rule & Reasoning: Articulate the Rule & Reasoning: Another Another ExampleExample

Owning Your Own IdeasOwning Your Own IdeasOwning Your Own IdeasOwning 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.


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 . . .

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

―helps you stay involved in class discussions

―aids memory


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 IdeasOwning Your Own Ideas -- An Example -- An ExampleOwning Your Own Ideas Owning Your Own Ideas -- An Example-- An 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.

Owning Your Own Ideas Owning Your Own Ideas -- Another Example-- Another ExampleOwning Your Own IdeasOwning Your Own Ideas -- Another Example -- Another Example

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

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

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 togetherPutting it all togetherPutting it all togetherPutting it all together

Procedural History:



3. 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 togetherPutting 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.

Putting it all togetherPutting it all together

continued . . .

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 . . .

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.


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.


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.


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 . . .

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 . . .

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 . . .

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 . . .

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.”


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 FutureMoving into the FutureMoving into the FutureMoving 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.


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.


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


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.


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 . . .

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 ThoughtOne Final ThoughtOne Final ThoughtOne 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

One Final ThoughtOne Final ThoughtOne Final ThoughtOne Final Thought

Documents

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)