As you progress in class, you will find that the assignments that you have been asked to complete are actual court cases that have been edited and reprinted in your casebook. You will also realize that merely reading them is not enough and that must "brief," or digest, them as well. This will tell you how to do this.
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What then is the importance of briefing? The process of writing case briefs, which are nothing more than synopses of court decisions, does four vital things for you:
- Briefs teach you rules of law, because a decision is by definition a record of the process of applying a legal rule to a set of facts.
- Briefs familiarize you with the mechanism of how courts work (e.g., how trials are managed, what witnesses can say, which courts are more powerful than others, how evidence is used, how one complains about judges who make errors).
- Briefing cases in school builds skills in a technique that all lawyers must master for their practice. These court decisions are the weapons lawyers use, and they are helpful weapons only if they are boiled down to a brief format.
- The briefing process will allow you to endure Socratic sessions. Only by having the essence of the case before you, in a brief, can you recite the case in class and respond to the professor's questions about it.
It is very important to read the case thoroughly. Read each case twice? The first time through don't take any notes. Read it quickly and informally. Get a sense of what is going on. On the second reading, go more slowly Take notes in the margin, circle important points (don't hesitate to mark up your books; which lawyer would you rather go to-one whose books were filled with notes and underlining’s or one whose books looked pristine and untouched?). It is after this second reading that you'll write your brief.
The format of a brief
can be very individualized; there are probably as many different ways of writing an effective brief as there are students in your class. The following format is more comprehensive than some, less so than others, but it will give you everything that you need.
You might wish to read about the case in a hornbook or other commercially available study aid. This too should be a fast read. Read just enough to give you an idea of what the court writing the decision is getting at and to identify important (as the lawyers say, the "relevant") information as you read the text of the decision itself.
Here are the seven elements of the brief to be used in the Law School Success System, each of which will be discussed in depth below.
- Case name, court, date
Keeping this framework in mind, let's look at a fictitious decision (which does, however, contain a real rule of law). We'll analyze each of these seven items, and then present a sample brief.
Poole V. Doyle's Baking
Supreme Court of Vermont
234 N.E. 567 (1932)
This is an action for damages in negligence. On the morning of June 10, a truck driver for Defendant Doyle's Baking Company was delivering bread to various retail locations. After his last delivery he drove the truck to a tilling station, where it was gassed up. Having several hours to kill before he had to return the truck to Doyle's Baking, he then proceeded on to Smithtown to visit his girlfriend. On the way to Smithtown the driver of the truck had a sneezing fit and lost control of the vehicle. It ran off the road and struck and injured Plaintiff Poole. The driver fled the jurisdiction. Poole sued Doyle's Baking,
alleging that the company as his employer was responsible for the negligence of their driver.
The judge at trial instructed the jury that if the accident occurred during normal business hours, then the defendant should be liable for the acts of its employee. The jury found for the plaintiff and awarded damages of $5,000.00.
The defendant has appealed.
This court finds for the defendant.
It is well settled as law in this state that under the doctrine of respondeat superior, an employer will be liable for the negligent acts of its employees if those acts occur within the scope of employment. However, it is also an exception to the rule that employers will not be found liable if the employee is on a personal errand-what the law terms a "frolic"-at the time of the accident.
Here, evidence was submitted at trial to show that the driver had finished his work for the defendant and was on a personal errand (i.e., visiting his girlfriend) when the accident happened. Accordingly, we find that the trial judge erred in his instructions to the jury. The verdict of the lower court will be reversed.
Now let's look at each element In the LCM brief.
1. Case Name, Court, And Date
While these elements are self-explanatory, don't assume they are not important. Dates, locations, and level of courts are vitally significant. What's law today will be overturned tomorrow, and what is the rule in one state may not be in another.
In our example: Poole v. Doyle's Baking, Sup. Ct. Vt., 1932
The facts are simply the events that gave rise to the lawsuit. For instance: the car accident, the business deal that resulted in a contract, the robbery. In your brief, list the facts in chronological order. Include only the absolute minimum, only those facts that are significant. How do you know which are legally important and which are not? You probably won't know at first. You'll include too many facts. As you continue to brief cases and get a feel for the law, you will edit out what's unnecessary.
Present one fact per line. This will help you in reciting cases; most professors prefer spontaneous presentations rather than reading. In our Poole case:
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- Plaintiff pedestrian hit by truck.
- Truck driver was defendant's employee.
- Driver had been working for defendant.
- On personal business when accident happened (visiting girlfriend).
We should digress for a moment to look at how the courts refer to the parties in a lawsuit. Frequently, judges do not call them "plaintiff" and "defendant." Rather, they say, "appellant"(the one who is appealing, i.e., the loser in the trial court, who might, of course, be either the plaintiff or defendant) and "appellee" (the winner in the trial court). Since most of the decisions you read will be appellate and not trial court decisions. However this terminology is more convenient for the judges, who need to know which party, is seeking the appeal and which party is opposing it.
Thus, be on guard that the parties in your cases may be wearing different hats. You should identify them both ways-"Plaintiff/Appellant" and "Defendant/Appellee." Or use abbreviations: "Pl/Ant" and "D/A'ee." Many students and professors use the Greek letter tt (pi) to represent the plaintiff and the letter A (delta) to represent the defendant.
Be alert, too, to the fact that the parties named in the case (i.e., Poole v. Doyle's Baking) may appear in different order, depending on which court is rendering the decision. For instance, in the trial court, the plaintiff will always be named first. In the appellate courts
of some states and in the U.S. Supreme Court, the first party named will be the appellant, the one doing the appealing. As if this were not confusing enough, you might even come across some old cases in which the appellant is called the "plaintiff-in-error," meaning that he is the party instituting the appeal, irrespective of whether he was the plaintiff or defendant below. Obviously, the appellee would be called the defendant-in-error-bearing witness to the fact that although the law is often perverse, it is at least symmetrical.
- Pl/A'ee sues D/A'nt for personal injury.
- Trial court judge instructs jury that if accident occurred during normal business hours, then D/A'nt should be liable.
- Verdict for Pl/A'ee. Damages = $5,000.
- D/A'nt appealed.
In nearly all of your briefs, the procedural section will lead up to the appeal. An appeal is the process whereby the loser at trial goes to a higher court and asks that court to change the verdict, claiming that something went wrong in the court below. In our example, the baking company is claiming that the trial judge gave wrong information to the jury. Other examples of error would be allowing improper evidence into the case, not having the right number of jurors, or prejudicial testimony.
The appellate court then examines the transcript of the trial and lets the appellant tell why he thinks there was a mistake and the appellee tells why there wasn't. That court then decides and publishes its decision.
Ninety-nine percent of the cases you read in school will be appellate court decisions. Why? For one thing, trial court judges are essentially referees rather than creators and ex pounders of judicial opinions. Also, appellate courts have more authority than trial courts. Their decisions command more attention among lawyers and other judges.
Your procedure section ends with the appeal-the claim by the loser that some error occurred in the trial court and the plea to the appellate court to remedy it.
The issue is simply the legal question the appellate court is being asked to answer. In our example:
- Under Vermont law, is an employer liable for the negligence of its employee during business hours, even if that employee is engaged in personal business when the negligence occurs?
If you look at this question closely, you can see that there really are two issues. Although the above question is perfectly fine as a statement of the issue, it is less cumbersome to break the sentence down like this:
Generally, under Vermont law, is an employer liable for the negligence of its employees during business hours?
If so, does such liability still exist if the employee is on a personal errand when the accident occurs?
These two-issue cases are very common choices for case book editors because a single court decision can be used to teach both the general rule and an exception to that rule.
The decision portion of your brief will be quite short. It indicates which of the parties the appellate court has ruled in. Don't be confused if the court phrases the issue in a procedural way. For instance, another way of stating the issue in our Poole decision is to say:
"Was the trial judge in error by instructing the jury that an employer is liable for the negligence of its employees even if the employee was on a personal errand at the time the negligence occurred?" The specific mistake the baking company's lawyer was pointing his finger at in our case was the way the judge told the jury what the law was. In your torts class, however, you aren't really concerned about the mechanics by which a judge instructs the jury (which you'll learn in your upper-class courses); your concern is to learn the substantive rule of law: When is an employer going to take the heat for its employees' mistakes?
Appellate courts have broad powers to change the decisions rendered in the trial courts. The appellate court might say that the trial judge was completely wrong and reverse the entire decision below. Or the court might let stand certain portions of the lower court's holding while reversing other portions that it finds erroneous (this is because the appealing party often claims that a number of mistakes were made by the trial court). The appellate court might also "remand" the case, that is, send it back to the lower court with instructions to litigate the case again, this time ordering the trial judge to instruct the jury differently.
Another option of the appellate court is to modify the decision below, neither wholly affirming nor reversing, but altering the outcome in some other way For instance, had the facts been different in our decision, the Vermont high court might have held that the baking company was indeed liable but the damages were far too high for the plaintiff's injury. It would thus have affirmed the finding of liability but reversed on the issue of damages.
This section is the most important one in the brief. It consists of three parts:
- The rule of law
- The application of that rule to the facts
- The conclusion to be drawn from the logical reasoning process
The rule is a paraphrase of the principle the court has selected from a statute or from a prior decision. (In rare cases, if the issue has never been dealt with by the courts or legislatures before, the court may create an entirely new rule of law. 5)
Following the rule of law is a short statement applying that rule to the relevant facts, and then the conclusion:
Under the doctrine of respondeat superior, an employer will be liable for the negligent acts of its employees if those acts occur within the scope of employment. However, there's an exception to the rule: Employers will not be found liable if the employee is on a personal errand-what is called a "frolic"- at the time of the accident. Here, the driver was on a frolic. He was therefore acting outside the scope of his employment and the employee’s baking company should not be liable for his negligence.
The holding is a fusion of the facts and the rule of law-and often it's quite a mouthful. When a delivery man, who has completed his rounds and is enroute to visit his girlfriend during working hours negligently, injures someone, the man's employer will not be liable for his employee's negligence under the exception to the rule of respondeat superior, which holds that employers will not be liable for the frolics of their employees.
Beware, however: The court will be saying many things that appear to be rules and are not. For Instance, judges may state what they think the rule ought to be. Or they might state what are indeed proper rules of law but are simply not applicable to the case before the court. Such legal musings are called "dicta," and although they are of some supportive value, they do not represent the important and controlling rule of the decision you are studying.
Let's look at Poole for a moment. The court might well have said, "Of course, had the owner of Doyle's Baking been riding in the truck and given the driver permission to visit his girlfriend, the law would hold the company liable." Well, that's nice to know and vaguely interesting. But it isn't the rule of law deciding the case because the owner wasn't in the truck and he didn't give his permission. The statement by the court was thus dicta.
Why so specific? In the practice of law, it is vitally important to delineate the exact precedential value of a case (when the case can be cited as support for a subsequent case). This can be done only by examining the facts of the decision and com paring them to the facts in the case an attorney is presented with. For instance, if you represented a woman injured by a delivery man who was on company business, would you cite Poole v. Doyle's Baking to the court as support for your claim of liability against the driver's employer? After all, the court stated clearly that employers are liable for acts of employees within the scope of employment. No, you couldn't! It was the exception to that rule that decided the Poole case. All the Poole case ultimately stands for is the proposition that an employer won't be liable under circumstances identical to those described in the fact section. It is verbose holdings like this one that let attorneys know exactly what the case represents and how strong a weapon it can be.
For you as a student, the holding is important primarily as a summary of the case and, therefore, optional unless your professor indicates that you must recite holdings. It's always a good idea to write holdings, though, at least during your first year in school. It cements the case in your mind and will make outlining much easier. A typical holding should begin with "Where" or "When" (the adverbial clause will help you fit all the necessary information into a single sentence).
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