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The Gold Standard: Briefing a Case

SARAH STEWART WARE: I have a longer time to talk to you at this point. And what I'm going to talk to you about this afternoon is briefing cases. Now, on a simple level, a case brief is just a summary of a judicial opinion. That's it. It's a summary, in your own words, of a judicial opinion.

But it is a step beyond taking notes, which is something you know how to do, because a case brief is typically a little more structured. And we're looking to capture certain things about the case in this summary. So I'm going to recommend to you, and many people will probably recommend to you, that you brief all your cases that you're reading for all your classes this year as a 1.0.

And as you start to read for your classes, many of you will think, you are insane. I barely have time to read all this stuff, much less write a freestanding summary of each and every case. So I want to start off today, before we get into the nitty gritty of how to brief a case, I want to talk a little bit about why you might take the trouble to brief all your cases.

So people have done lots and lots of studies about how we learn information and how we retain information. And one of the worst things you can do if you're trying to learn something is reread. Reading something multiple times can create something called the illusion of competence. The illusion of competence, that's not good. And I'm sorry to tell you this, but highlighting is right down there at the bottom of things that are good for learning and retaining information.

I'm not saying don't highlight. I'm just going to suggest that you don't want to stop there, because rereading the bits you highlighted may have the same effect of giving you the feeling that you know something when in fact you don't. And the reason you develop that feeling is because you recognize it. But recognizing it on rereading it is not the same as really knowing it.

If you want to find a truer test of whether you really know something, you can try to explain it to someone else right. You've probably heard this before as well. If you can't explain it, then you don't really know it. And if you can put it in simple words and explain it to someone, then you've really taken ownership of it and you know the thing.

So you can think of your case brief as sort of a way in which you're explaining this case to someone else. The first opportunity you'll actually have to explain the case to someone else may happen in your class, if you're called on to talk about the case.

So an immediate benefit to a briefing is knocking out your moment in class. So you're writing up the summary, as if you were going to present it to somebody else. And you may in fact have the opportunity to do that if you're called on in class. Now, even if you don't get everything right in that conversation with your professor, your professor will be able to see that you prepared and that's a good thing in and of itself.

Now, in order to have that good conversation in class, where the professor's impressed and your classmates are going, hey, you need to write up the brief, that is to say summarize the case, in your own words. This is critical. If you just copy and paste a bunch of quotes into your notes, you haven't really taken ownership of the case. So you need to summarize this short brief in your own words.

So ownership of the case in this way means good class discussion. That's benefit number one. Benefit number two, as exams approach, you'll have these nice case summaries in your own words. And you can also think of this as explaining the case to someone else. This time, the someone else is you, because you read the case eight weeks ago and you don't remember it.

So you're reading your case brief and either you'll think, ah ha, oh yeah, OK. I remember this. And now, based on this little summary, I remember what the case is about. Or you'll look at the case brief and think, what? And that'll tell you you need to spend a little more time with this case.

Having these briefs prepared in advance will let you do the more important work for preparing for exams, which is figuring out how all these bits and pieces you've been reading all semester fit together into some sort of system of contracts or torts or whatever you were studying. So even if it's a very short brief, it'll have that benefit.

Those little briefs will form the basis of your outline or your flow chart or whatever tools you're going to use for exams. That's up to you. You'll do what works best for you. But having these little briefs will be beneficial there. And then, the third benefit is going to happen out there, outside of school.

To be a practicing lawyer, you're going to need this skill. You need to be able to make sense of the law and state it clearly and simply in your own words. The most brilliant legal minds in practice excel at this, taking a bunch of stuff and boiling it down and making it sound, simple, and clear. And then, writing it up so that it sings. That's something we'll talk about in my class.

So these case briefs that are so handy for class prep, when you write them, you're also honing one of most critical skills for law practice. You're exercising your brain in this process. And your brain's going to build up some strong muscles for doing this work.

In fact, I recently read an ethnographic account of what lawyers do all day. Yes, I did. I read an ethnographic account of what lawyers do all day. And the authors of this article determined that lawyers spend a huge amount of time reading, reading and reading and reading and reading and reading and reading, all kinds of things, not just cases. In fact, mostly not cases in some of the practice areas.

They read discovery materials and court filings and newspaper articles and books and all kinds of things. And what they all express, their most repeated wish and goal, was to read efficiently, so that they can find the stuff they really need as fast as possible and move on to the work they need to do. That's what case briefing teaches you to do, to read this case, read it efficiently, find the crux of the case, write it down, and then move on to the next thing.

Now, you won't be efficient in week one. And so it will take some time and practice to get good at this and to be able to do it quickly. So I encourage you not to just drop it after week one, this is too much time, I can't do it, and let it go. Instead, keep practicing it, because it does get faster.

Now, you may discover at some point, you may already you know, there are ready-made case briefs out there for you. They're in Horn books. They're in outlines from previous students at this law school. There on Lexis these days, I've just learned. And you might think, I don't need to do the briefing, because somebody has already done it for me. And efficiency is good.

But here's my warning to you about those. Using someone else's case brief is like watching someone else work out at the gym. It might teach you something about form. And that's a good thing. So you could use them for that. But you will not get any stronger. So this work of doing the case briefs yourself is very important.

With those goals in mind, I'm going to talk through how you might go about briefing a case. You've been given a case to read. Hopefully, you've had time to read it. It's Parker v. 20th Century Fox. And after this session, you're going to have a sort of model class conducted around about that case. So you'll see what that classroom discussion is going to look like.

So that's the case we're going to use for our sample brief today. But before we get into that case, I'm going to talk generally about the categories that are typically included in a case brief, because along the way, there's some vocabulary that you may not know that I want to get you familiar with.

So your brief is likely to include the following information. first the case name, the court it arose in, and the year. That's easy. It's going to be in your case book. You'll just copy it into your notes. Then, you're going to summarize the facts, but we don't want all the facts.

We only want the relevant facts. And here's an interesting thing about reading judicial opinions. You'll discover that many of them follow a fairly similar pattern. And included in that pattern is a summary of facts, usually at the beginning of the judicial opinion. And when you're reading that summary, you won't know yet which facts are important.

So in a little bit, I'm going to introduce a two-step process for creating these briefs, because as you're reading, you won't know which facts to pull out. And we don't want all the facts, we only want those facts that were significant in the court's decision making process. We'll call those the relevant facts. We only want those facts that really impacted how the court decided the case or serve as useful background.

So you've got your facts. Then, you have something called the, I think, procedural posture. This has stopped working. Oh, there it is. Procedural posture. What is the procedural posture? It doesn't mean stand up straight. The procedural posture is a fancy way of saying, what happened in the legal case before it got here?

So not facts in the outside world, like Parker had a contract and she thought she was doing this movie and then they tried to get her to do this other movie, but the facts in the lawsuit itself. So something like Parker sued. The trial court granted her summary judgment for $750,000. And 20th Century Fox appealed. That's the procedural posture that got us to this opinion that we're reading.

That'll get a lot easier to do when you're more familiar with court systems and with civil procedure. But it's just worth sort of paying attention to what it is you're reading and what stage of the litigation it represents. Then, you have the issue. And this is where putting things in your own words becomes really important.

The issue is the particular legal question that the court needs to answer in order to resolve the case. In Parker, the court calls it out for us. And I'll show you in a minute. But if you're struggling to figure out what the issue is, you have some help at hand. Look at your syllabus and/or the table of contents of your book.

Those may tell you why you're reading this case before you read a single word of it. And the syllabus may tell you exactly why your professor assigned this case. Wouldn't that be nice? And now, you can read it with that goal in mind. And that also is what you'll be doing out there in practice. You have a client. They have a problem. You're reading it for that reason. You're looking for the stuff related to your client's problem.

I didn't go to law school here. My professor's syllabus offered nothing more than a list of pages to read for each day. Not helpful. However, the Parker case was in a chapter in my textbook called "Remedies for Breach" and in a subsection called "Limitations on Damages."

And that would allow me, if somebody had given me this advice, which nobody did, that would allow me to read the case, knowing that I was looking for stuff about when damages might be limited after a contract's been breached. Now, I'm reading the case with a lot more focus.

I can't emphasize enough how helpful it is to have some idea, even a very vague idea, of what the case is for, as you're reading it. So before you read it, as you read it, after you read it, constantly think about where it fits. What is the point of this case? It's supposed to be teaching you something about contracts law. And if you have that point in mind or you're figuring it out along the way, that'll be a great benefit to you.

Out in practice, you'll be doing the same thing. As I said, you have something you're trying to do or a problem you're trying to solve. And you're reading materials with that goal in mind. So you have that dynamic between the thing you're looking for or the thing you know you're supposed to be looking for and the text before you and it's a very active form of reading. So again, this work of reading and briefing will help you build the mental muscles you need out there in practice.

So if the issue is the question that the court needs to answer, the answer is the holding. Now, this is a word you've encountered before, maybe holding hands or holding a grudge. But in law, hold and holding have a different and particular meaning. So when somebody says, what's the holding of the case, here's what you need to know.

The holding can mean slightly different things depending on who you're talking to that are closely enough related that it won't matter a whole lot. But some might think of it as the principle of law that you could pull from this case and apply to a future case. And some might think of it as something a little closer to the outcome of the case. Because of this law and these facts, this party wins.

And that information, the outcome, is something you could generalizing to that principle of law that could then be applied to a future similar case. Sometimes a court will announce in its opinion, we hold, blah, blah, blah, blah. And that's handy. That's nice. But they don't always do that.

So sometimes you have to kind of figure out what it is. And what you're looking for is the crux of why this case came out the way it did. What bit of law or certain facts drove the court to decide in Parker's favor? That's the holding. That's the thing you're trying to capture. That'll make more sense when I give you an example and you'll get used to identifying holdings with practice. So if it's a little murky at the outset, that's fine. You'll get there.

Now that you've got the court's reasoning, this is the last piece. The reasoning is where we really dig into the court's justifications for deciding the case the way it did. And you can have quite a bit of detail here. We might include something that-- I've written the word rule.

The rule would be the general law that the court is applying. So the rule it applies to the case to the facts of the case to figure out the outcome. You're familiar with the word rule. Sports have rules that impact how things turn out. Games have rules. We might say something like, as a rule, students admitted to UVA Law have strong academic credentials. Good job. Congratulations.

But there are some parts to that rule and factors and other considerations. And so in the admissions office, they have that general rule in mind. And then, there's a bunch of other things going on. And a lot of individualized reasoning for each case. So how do you distinguish holding from rule from reasoning. Don't sweat it. These categories are not crisp. You'll get used to them moving forward.

Right now, what you're trying to just figure out is why the court decided the case the way it did. What does this tell me about how the law of contracts works that I could pull out and perhaps apply to a future case, that future case being your exam? So remember, as you're looking at these categories, you're writing this case brief for you.

No one is going to collect it and look at it ever. So if you've got the rule and the holding or the holding and the rule or the issue in the facts, it's fine, as long as it makes sense to you and helps you understand the case and move forward in your class.

Now, related to that, these are the categories of information you're looking for. And you might have all of these in your brief. But if you look at how people brief and what a case brief looks like, here's a textbook that some of you will be using, The Lawyer's Craft.

It says a case brief should include the facts, including important procedural facts, the issues, the law, the holdings, and the reasoning. That's a workable form. Another textbook says, a brief should include facts, issues, holding, legal rule and reasoning policy, and evaluation. That evaluation is presumably your own thoughts that you put together before class, which is ambitious, if you ask me. But go for it. You should study the way that works for you. You got here for a reason.

And my briefs, when I was a 1L, lo these some number of years ago, were kind of condensed. I had sort of facts, including the procedural posture. Sometimes I combined the issue and holding, because they were kind of flip sides of the same coin. I might ask the question and the answer's yes. Sometimes I separated them. I then had the reasoning and I tended to pile a lot into that reasoning section. That's where I was understanding the details of the case.

And then, I would have my class notes that I would add later, where I would write down all the things that I got wrong and all the things that I didn't include that my professor thought was really important. And that's OK. I did well in the class. Life turned out great.

So these are the elements of a brief. And like I said, you've read this case. So we're going to talk a little bit about how you would brief Parker v. 20th Century Fox. Now, before I show you the process, the most critical bit of this, in whatever form it takes, is figuring out, and I've said this before, the principle of law that the case stands for, because that's the thing you're going to take forward into your outlines and onto your exam. As I said, the syllabus and book chapters may help you. Ask yourself over and over, what does this case add to my understanding of contracts law? And if you do nothing else, write that down in your own words.

So here we have this case, Parker v. 20th Century Fox. Step one for briefing your cases, make notes while you read, because as I mentioned, your first read through, you won't know exactly what to pull out of the opinion. And so you're going to make notes as you read.

And that could take a lot of different forms. It could be a draft of your brief. You could go ahead and start putting things into categories. It could be highlighting, if that's a practice that has worked for you. There's no reason to stop doing that now. It could be notes in the margin.

Now, just in case me mentioning reading an ethnographic study of what lawyers doing during the day didn't convince you that I'm a huge nerd, I still have my contracts book from 1L year it turns out. And I've taken this picture. This is my book. These are my notes. Sorry. This thing isn't working super well for me.

So I was a write in my book kind of student. And so here are my notes. And I'm just going to kind of walk you through my process a little bit. Your process might be a little bit different. So here's what I wrote, as I was reading the case for the first time. Maybe a little hard to read.

So I'll tell you, I wrote up top, "summary judgment for contract amount granted at trial." So I flagged the procedural posture there. And then, I identified this whole paragraph as the rule. And that's the part of the case that talks about the general law that's going to be applied to resolve this case.

And I've underlined some parts of it, "the measure of recovery by wrongfully discharged employees, the amount of salary agreed upon for the period of service less the amount, which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment." If you read that and you think, what, and then you have to read it six more times, promise yourself you won't do that as a writer. That's me putting on my writing teacher hat. You don't have to write like that.

Anyway, so that's some sort of general law that's going to be applied. And then, I underlined some more stuff down below. The employer must show that the other employment was comparable or substantially similar. The employee's rejection of or failure to seek other available employment of a different or inferior kind may not be resorted to in order to mitigate damages. Great.

And then, in the margin, I've got this note here, "reasonableness is not a factor." I've basically flagged that the court's not going to consider reasonableness. Great. Good to know. This is all very general, that is the general rule to be applied in the case, but the real action happens on the next page, because this general rule isn't really in dispute. What we really need to know is how it applies to Parker who is Shirley MacLaine, who may or may not be familiar with, depending on how much you like older movies.

So here, on this page, this is the next page of the opinion in my textbook. I've written a box around the words, "both different and inferior." And it's at this point, on this page, that I realize those words, which were also on the previous page, it turns out those words are the test the court's applying to figure out whether the movie being offered was substantially similar, such that it should be have been accepted in mitigation.

And then, I've got in the margin, "different role, inferior contract." So I flagged the two key reasons the court gave for why Parker should win this case. So step one, take notes. Like I said, you can draft a brief as your way of taking notes.

You might think that saves time. But you have to go back and edit the brief. The first time you draft it, it'll probably be too long, because you're including too many things that aren't important. And you haven't done that critical thinking where you take ownership of the case, if you're just taking notes as you read. So it's when you go back and trim it down and reword things that you're really doing that critical work of briefing the case.

So here's how my brief ended up looking. And then, this is my 1L brief. I did fine in the class. So it's not a bad example. And I want to emphasize, again, yours could look very different. And that would be OK. It's for you. It's your study tool. So here's where my brief is. And you want to summarize, in your own words. That's where you really understand the case. You summarize in your own words.

So first, I have the facts. And I tended to bullet point them. I have the setup of the case. Parker Shirley MacLaine had contract to perform in a musical production. Contract guaranteed minimum payment of $750,000. Studio canceled and offered this other film. MacLaine sues for some due under the contract. That bid is actually part of the procedural posture-- like I said, I tended to kind of lump them together-- and for damages of brief, studio manages to deny both.

Apparently, I had an opinion about this, on the grounds that Shirley failed to mitigate-- we were apparently on a first name basis-- because she turned down the Western. And then, I have this quoted contract provision, "we shall not be obligated to utilize your services in or in connection with the photo play," which is actually not that significant to how the court decided the case.

And looking back, one of two things happened. One, it wasn't something I originally included in my brief, but my contract professor had a very particular view of this case. I may have added it, because he said it was important. Or I may have known him well enough by this point in the semester that I put it in there, because I saw it and thought, oh my gosh. That's what Goldberg's going to want to talk about. So probably not relevant to you.

And then, summary judgment for MacLaine, that's your procedural posture. Right summary judgment from a client at trial. Then, we have the issue. And I framed the issue as how is similar employment to be interpreted when judging mitigation of duty of plaintiff in breach of contract case?

So that's a pretty broad way of framing what this case is about. That's a general legal question. It's not specific to MacLaine. But it probably was useful as a way of thinking about what this case was teaching me in my contracts class and how it was going to fit in with other cases about how you handle a breach of a contract.

I mentioned earlier, the court opinion calls out the issue. The court opinion says, "the sole issue is whether plaintiff's refusal of defendant substitute offer of Big Country may be used in mitigation. That's also a perfectly fine way to frame the issue. That way of framing it is focusing on this particular case. Is this refusal of the movie-- so that's the issue the court was trying to resolve in this particular case.

Then, when I wrote the holding, I got more specific about the case itself. I wrote "the alternative movie did not qualify as similar employment. MacLaine was not obligated to accept it. Summary judgment affirmed." That's very specific to the case. And that actually doesn't tell me anything about the law.

So somewhere between these two pieces, what you want to do is capture both things. You want to capture somewhere between these two pieces the nugget of law that, generally, you understand this case stands for and the specifics of why this particular case came out the way it did. So if you can capture those two things, whether you call it issue or holding, question and answer, you'll be in good shape.

Finally, we have all the courts' reasoning. And like I said, I tended to pile a lot in here. First, I have a quote. I actually typed in a quote of that rule. Again, putting things in your own words is generally better, but this wasn't really in dispute in the case. So maybe I felt because it wasn't really the crux of the case, I could just quote it.

And then, I have "court finds that the offer of the Western was different and inferior." See? I'm picking up those words and saying that those words are the magic words that the court is using as a standard to apply. Different because using different talents. It was a musical, instead of dancing versus drama. And inferior, because she had no say on the director and the script in the new deal.

Those were the critical facts that decided the case. I didn't have those in my fact section. I might should have. But it was OK. For some reason, I thought it was easier to have them here in the reasoning. And it worked for me. Again, don't get too hung up on these categories. You need the information presented in a way that works for you.

That's a pretty short reasoning section, because the court actually didn't say that much in this case. I mean, you've got the court saying, well, obviously, a musical's different than a Western I don't know. I don't know how obvious that is. Maybe it was back in the day, in 1970, when this case was decided. So we don't have a lot of reasoning from the court. And so this reasoning section is pretty short.

Finally, in my brief that I wrote as a 1L, I have the dissent. What? None of my categories were dissent. That was not on any of the versions of the brief I showed you. Again, don't worry about the list of topics too much. Do what works for you and add and subtract as needed.

A dissent is an opinion written by a judge who was outvoted on an appellate panel. It's not the law. It's just the opinion of that judge. The judge is basically saying, I think we got it wrong. Here's why. We'll talk, in my class, about when or why you might make use of a dissenting opinion as a lawyer.

But if your casebook includes one, I strongly urge you to read it. Same is true for a concurring opinion, where the judge says, I agree with the outcome, but I think the reasoning was wrong. Those opinions can be super helpful, because they clarify what the majority was doing.

I have read opinions where I read the majority and I thought, what? And then, I read the dissent saying, you got this and this wrong and I think, oh. That's what the majority was trying to say. So they can be very helpful. So you can read them, even if your professor isn't in the habit of calling on them. They'll help you understand the case. So I encourage you to read those.

After this, I had some class notes. I'm not sharing them with you. Like I said, my professor had a very idiosyncratic take on this case. He wrote a whole article about it. So those notes would only confuse you, because that was him, not everybody else. But you can add your notes in there.

So your class discussion, and you're about to see a mock class of this case presented, will likely cover a lot more than these details you included in your brief. The goal isn't to write down everything. The goal is to boil it down to its essence. And if you've done that work, which means you've really thought about the case, then you'll be ready to have that class discussion about many more things.

Case briefing is a powerful tool for thinking through what the case is about. You got to force yourself to do it, to really boil it down, to put it in your own words. And then, you'll be ready to explain it to someone else, in class or on the exam. And you'll be well on your way to building those mental muscles that will make you a superstar lawyer.

So final thoughts. This case brief is for you. It doesn't have to look like mine. Make it work for you. Don't stress over the particular format. You're going to figure it out. The first couple of weeks might be challenging. I don't know what goes in the facts section. I can't figure out this reasoning stuff. Just keep at it. It'll come.

Be curious. If you're sitting in class and you've got this beautiful case brief and the professor is talking about something entirely different and you're thinking, I got it all wrong, be curious. It's OK. You're not here because you already know how to do the stuff you're here to learn about it. So be curious. Ask your classmates. Go see your professor during their office hours. Figure out where you went wrong and learn.

And finally, you're going to be great. That's why we invited you here. Take a deep breath. I recommend you brief all of your cases. And we can't really do questions in this format. And I think my time is up. But if you do have questions, feel free to email me or come by my office, even if you aren't my student for Legal Research and Writing. I'm happy to answer questions about case briefing. Good luck to you all.