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Law School Tips: Week 7

Briefing 101: Part 3

Preparing an Effective Written Case Brief (Continued)

Your brief should also contain these essential elements:

Procedural History

The procedural background of a case is often just as important as the substantive background. An appellate court can rule only on those issues brought before it on appeal. It cannot rule on an issue that has not been raised by the parties. (If it does, its decision will be labeled an “advisory opinion,” and it will be unenforceable.) A lower court, on the other hand, will decide a case for the first time, and it can make any ruling supported by the facts. You should be sure that your brief describes how the case got to this court, what issues are before the court, what the court is empowered to decide, and what disposition the court has made of the issues.

In Garratt v. Dailey, the trial court had found for the defendant, and the plaintiff appealed. The appellate court (the court that decided the case in the casebook) remanded the case to the trial court for clarification based on the rule of law stated by the court (see below).

Rule of the Case

Every case you read in law school illustrates a specific rule of law. For instance, Garratt v. Dailey  centers on the principle that “if an actor knows with substantial certainty that an act or occurrence will bring about a desired result, such act or occurrence is intentional.” One of the hardest tasks in briefing a case is to determine and state the correct rule of law for that case. The rule must be neither too vague nor too specific to the facts of that case.

For instance, if you stated the rule as “knowledge with substantial certainty is required for an intentional act,” your statement would be too vague; it doesn’t show that the knowledge required is knowledge that the act will bring about a desired result. On the other hand, if you stated the rule as “knowledge with substantial certainty that pulling the chair out would result in harmful or offensive contact,” your statement would be too specific and ostensibly limited to the facts cited; the principle involved—that “knowledge with substantial certainty” that an act committed by the actor will bring about a desired result makes the act an intentional act—has a more general application to acts in general and not just the act of pulling out a chair.

You should state the applicable rule of law in your brief twice—first in the issue-by-issue analysis of the case and again in a section called “concise statement of rule of law.” Why write it twice? The rule of law is the most important part of the case, and the one element you have to remember and carry with you. If you remember nothing else, you will at least have the one tool you need most in analyzing the facts and issues in your exam questions.

Extracted from Strategies & Tactics for the First Year Law Student (Maximize Your Grades) by Lazar Emanuel and Kimm Alayne Walton

Coming next week: Briefing 101 (part 4)