Research methodology for
case law analysis
HOW TO BRIEF
The previous section
described the parts of a case in order to make it easier to read and identify
the pertinent information that you will use to create your briefs. This section
will describe the parts of a brief in order to give you an idea about what a
brief is, what is helpful to include in a brief, and what purpose it serves.
Case briefs are a necessary study aid in law school that helps to encapsulate
and analyze the mountainous mass of material that law students must digest. The
case brief represents a final product after reading a case, rereading it,
taking it apart, and putting it back together again. In addition to its
function as a tool for self-instruction and referencing, the case brief also
provides a valuable “cheat sheet” for class participation.
Most professors will espouse
the value of briefing but will never ask to see that you have, in fact,
briefed. As a practicing lawyer, your client doesn’t care if you brief, so long
as you win the case. The judges certainly don’t care if you brief, so long as
you competently practice the law. You are the person that the brief will serve.
Keep this in mind when deciding what elements to include as part of your brief
and when deciding what information to include under those elements.
Different people will tell
you to include different things in your brief. Most likely, upon entering law
school, this will happen with one or more of your instructors. While opinions
may vary, four elements that are essential to any useful brief are the
following:
(a) Facts (name of the case
and its parties, what happened factually and procedurally, and the judgment)
(b) Issues (what is in
dispute)
(c) Holding (the applied
rule of law)
(d) Rationale (reasons for
the holding)
If you include nothing but
these four elements, you should have everything you need in order to recall
effectively the information from the case during class or several months later
when studying for exams.
Because briefs are made for
yourself, you may want to include other elements that expand the four elements
listed above. Depending on the case, the inclusion of additional elements may
be useful. For example, a case that has a long and important section expounding
dicta might call for a separate section in your brief label: Dicta. Whatever
elements you decide to include, however, remember that the brief is a tool
intended for personal use. To the extent that more elements will help with
organization and use of the brief, include them. On the other hand, if you find
that having more elements makes your brief cumbersome and hard to use, cut back
on the number of elements. At a minimum, however, make sure you include the
four elements listed above.
Elements that you may want
to consider including in addition to the four basic elements are:
(e) Dicta (commentary about
the decision that was not the basis for the decision)
(f) Dissent (if a valuable
dissenting opinion exits, the dissent’s opinion)
(g) Party’s Arguments (each
party’s opposing argument concerning the ultimate issue)
(h) Comments (personal
commentary)
Personal comments can be
useful if you have a thought that does not fit elsewhere. In the personal
experience of one of the authors, this element was used to label cases as
specific kinds (e.g., as a case of vicarious liability) or make mental notes
about what he found peculiar or puzzling about cases. This element allowed him
to release his thoughts (without losing them) so that he could move on to other
cases.
In addition to these
elements, it may help you to organize your thoughts, as some people do, by
dividing Facts into separate elements:
(1) Facts of the case (what
actually happened, the controversy)
(2) Procedural History (what
events within the court system led to the present case)
(3) Judgment (what the court
actually decided)
Procedural History is
usually minimal and most of the time irrelevant to the ultimate importance of a
case; however, this is not always true. One subject in which Procedure History
is virtually always relevant is Civil Procedure.
When describing the Judgment
of the case, distinguish it from the Holding. The Judgment is the factual
determination by the court, in favour of one party, such as “affirmed,”
“reversed,” or “remanded.” In contrast, the Holding is the applied rule of law
that serves as the basis for the ultimate judgment.
Remember that the purpose of
a brief is to remind you of the important details that make the case
significant in terms of the law. It will be a reference tool when you are
drilled by a professor and will be a study aid when you prepare for exams. A
brief is also like a puzzle piece.
The elements of the brief
create the unique shape and colours of the piece, and, when combined with other
pieces, the picture of the common law takes form. A well-constructed brief will
save you lots of time by removing the need to return to the case to remember
the important details and also by making it easier to put together the pieces
of the common law puzzle.
D. EXTRACTING THE RELEVANT INFORMATION: ANNOTATING AND
HIGHLIGHTING
The simple answer is:
whatever is relevant. But what parts of a case are relevant? When you read your
first few cases, you may think that everything that the judge said was relevant
to his ultimate conclusion. Even if this were true, what is relevant for the
judge to make his decision is not always relevant for you to include in your
brief. Remember, the reason to make a brief is not to persuade the world that
the ultimate decision in the case is a sound one, but rather to aid in refreshing
your memory concerning the most important parts of the case.
You should include the facts
that are necessary to remind you of the story. If you forget the story, you
will not remember how the law in the case was applied. You should also include
the facts that are dispositive to the decision in the case. For instance, if
the fact that a car is white is a determining factor in the case, the brief
should note that the case involves a white car and not simply a car. To the
extent that the procedural history either helps you to remember the case or
plays an important role in the ultimate outcome, you should include these facts
as well.
There is usually one main
issue on which the court rests its decision. This may seem simple, but the
court may talk about multiple issues, and may discuss multiple arguments from
both sides of the case. Be sure to distinguish the issues from the arguments
made by the parties. The relevant issue or issues, and corresponding
conclusions, are the ones for which the court made a final decision and which
are binding. The court may discuss intermediate conclusions or issues, but stay
focused on the main issue and conclusion which binds future courts.
This is probably the most
difficult aspect of the case to determine. Remember that everything that is
discussed may have been relevant to the judge, but it is not necessarily
relevant to the rationale of the decision. The goal is to remind yourself of
the basic reasoning that the court used to come to its decision and the key
factors that made the decision favour one side or the other.
A brief should be brief.
Overly long or cumbersome briefs are not very helpful because you will not be
able to skim them easily when you review your notes or when the professor
drills you. On the other hand, a brief that is too short will be equally
unhelpful because it lacks sufficient information to refresh your memory. Try
to keep your briefs to one page in length. This will make it easy for you to
organize and reference them.
Do not get discouraged.
Learning to brief and figuring out exactly what to include will take time and practice.
The more you brief, the easier it will become to extract the relevant
information.
While a brief is an
extremely helpful and important study aid, annotating and highlighting are
other tools for breaking down the mass of material in your casebook. The
remainder of this section will discuss these different techniques and show how
they complement and enhance the briefing process.
Annotating Cases
Many of you probably already
read with a pencil or pen, but if you do not, now is the time to get in the habit.
Cases are so dense and full of information that you will find yourself spending
considerable amounts of time rereading cases to find what you need. An
effective way to reduce this time is to annotate the margins of the casebook.
Your pencil (or pen) will be one of your best friends while reading a case. It
will allow you to mark off the different sections (such as facts, procedural
history, or conclusions), thus allowing you to clear your mind of thoughts and
providing an invaluable resource when briefing and reviewing.
You might be wondering why
annotating is important if you make an adequate, well-constructed brief. By
their very nature briefs cannot cover everything in a case. Even with a
thorough, well-constructed brief you may want to reference the original case in
order to reread dicta that might not have seemed important at the time, to
review the complete procedural history or set of facts, or to scour the
rationale for a better understanding of the case; annotating makes these tasks
easier. Whether you return to a case after a few hours or a few months,
annotations will swiftly guide you to the pertinent parts of the case by
providing a roadmap of the important sections. Your textual markings and margin
notes will refresh your memory and restore specific thoughts you might have had
about either the case in general or an individual passage.
Annotations will also remind
you of forgotten thoughts and random ideas by providing a medium for personal
comments.
In addition to making it
easier to review an original case, annotating cases during the first review of
a case makes the briefing process easier. With adequate annotations, the
important details needed for your brief will be much easier to retrieve.
Without annotations, you will likely have difficulty locating the information
you seek even in the short cases. It might seem strange that it would be hard
to reference a short case, but even a short case will likely take you at least
fifteen to twenty-five minutes to read, while longer cases may take as much as
thirty minutes to an hour to complete. No matter how long it takes, the dense
material of all cases makes it difficult to remember all your thoughts, and
trying to locate specific sections of the analysis may feel like you are trying
to locate a needle in a haystack. An annotation in the margin, however, will
not only swiftly guide you to a pertinent section, but will also refresh the
thoughts that you had while reading that section.
When you read a case for the
first time, read for the story and for a basic understanding of the dispute,
the issues, the rationale, and the decision. As you hit these elements (or what
you think are these elements) make a mark in the margins. Your markings can be
as simple as “facts” (with a bracket that indicates the relevant part of the
paragraph). When you spot an issue, you may simply mark “issue” or instead
provide a synopsis in your own words. When a case sparks an idea — write that
idea in the margin as well — you never know when a seemingly irrelevant idea might
turn into something more.
Finally, when you spot a
particularly important part of the text, underline it (or highlight it as
described below).
With a basic understanding
of the case, and with annotations in the margin, the second read-through of the
case should be much easier. You can direct your reading to the most important
sections and will have an easier time identifying what is and is not important.
Continue rereading the case until you have identified all the relevant
information that you need to make your brief, including the issue(s), the
facts, the holding, and the relevant parts of the analysis.
Pencil or pen — which is
better to use when annotating? Our recommendation is a mechanical pencil.
Mechanical pencils make finer markings than regular pencils, and also than
ballpoint pens. Although you might think a pencil might smear more than a pen,
with its sharp point a mechanical pencil uses very little excess lead and will
not smear as much as you might imagine. A mechanical pencil will also give you
the freedom to make mistakes without consequences. When you first start
annotating, you may think that some passages are more important than they
really are, and therefore you may resist the urge to make a mark in order to
preserve your book and prevent false guideposts. With a pencil, however, the
ability to erase and rewrite removes this problem.
Highlighting
Like annotating,
highlighting may seem unimportant if you create thorough, well-constructed
briefs, but highlighting directly helps you to brief. It makes cases,
especially the more complicated ones, easy to digest, review and use to extract
information.
Highlighting takes advantage
of colours to provide a uniquely effective method for reviewing and referencing
a case. If you prefer a visual approach to learning, you may find highlighting
to be a very effective tool.
If annotating and
highlighting are so effective, why brief? Because the process of summarizing a
case and putting it into your own words within a brief provides an
understanding of the law and of the case that you cannot gain through the
process of highlighting or annotating.
The process of putting the
case into your own words forces you to digest the material, while annotating
and highlighting can be accomplished in a much more passive manner.
Similar to annotating, the
best parts of the case to highlight are those that represent the needed
information for your brief such as the facts, the issue, the holding and the
rationale.
Unlike annotating,
highlighting provides an effective way to colour code, which makes referring to
the case even easier. In addition, Highlighters are particularly useful in
marking off entire sections by using brackets. These brackets will allow you to
colour-code the case without highlighting all the text, leaving the most
important phrases untouched for a more detailed highlight marking or
underlining.
Highlighting is a personal
tool, and therefore should be used to the extent that highlighting helps, but
should be modified in a way that makes it personally time efficient and
beneficial. For instance, you might combine the use of annotations in the
margins with the visual benefit of highlighting the relevant text. You may
prefer to underline the relevant text with a pencil, but to use a highlighter
to bracket off the different sections of a case. Whatever you choose to do,
make sure that it works for you, regardless of what others recommend. The
techniques in the remainder of this section will describe ways to make full use
of your highlighters.
First, buy yourself a set of
multi-coloured highlighters, with at least four, or perhaps five or six
different colours. Yellow, pink, and orange are usually the brightest.
Depending on the brand, purple and green can be dark, but still work well.
Although blue is a beautiful colour, it tends to darken and hide the text.
Therefore we recommend that
you save blue for the elements that you rarely highlight.
For each different section
of the case, choose a colour, and use that colour only when highlighting the
section of the case designated for that colour. Consider using yellow for the
text that you tend to highlight most frequently. Because yellow is the
brightest, you may be inclined to use yellow for the Conclusions in order to
make them stand out the most. If you do this, however, you will exhaust your
other colours much faster than yellow and this will require that you purchase
an entire set of new highlighters when a single colour runs out because colours
such as green are not sold separately. If instead you choose to use yellow on a
more frequently highlighted section such as the Analysis, when it comes time to
replace your yellow marker, you will need only to replace your yellow
highlighter individually. In the personal experience on one of the authors, the
sections of cases that seemed to demand the most highlighter attention were the
Facts and the Analysis,
while the Issues and Holdings demanded the least. Other Considerations and
Procedural History required
lots of highlighting in particular cases although not in every case.
Experiment if you must, but
try to choose a colour scheme early on in the semester and stick with it. That
way, when you come back to the first cases of the semester, you will not be
confused with multiple colour schemes. The basic sections of a case for which
you should consider giving a different colour are:
• Facts
• Procedural History
• Issue (and questions
presented)
• Holding (and conclusions)
• Analysis (rationale)
• Other Considerations (such
as dicta)
Not all of these sections
demand a separate colour. You may find that combining Facts and Procedural
History or Issues and Holdings works best. Furthermore, as mentioned above,
some sections may not warrant highlighting in every case (e.g., dicta probably
do not need to be highlighted unless they are particularly important). If you
decide that a single colour is all that you need, then stick to one, but if you
find yourself highlighting lots of text from many different sections,
reconsider the use of at least a few different colours. Highlighters make text
stand out, but only when used appropriately. The use of many colours enables
you to highlight more text without reducing the highlighter’s effectiveness.
Three to four colours provides decent colour variation without the
cumbersomeness of handling too many markers.
Once you are comfortable
with your colour scheme, determining exactly what to highlight still may be
difficult. Similar to knowing what to annotate, experience will perfect your
highlighting skills. Be careful not to highlight everything, thus ruining your
highlighters’ effectiveness; at the same time, do not be afraid to make
mistakes.
