By this time you are well into the briefing process, have begun to focus on the "legal" aspects of the cases, and have already begun that nebulous process of thinking like a law student. You "speak" in terms of "legal obligations," "promises," "subjective and objective manifestations of intent." And, if you are blessed, your friends, parents and significant others are still speaking to you despite your odd and sometimes annoying behavior. To assist in continued communication between you and the rest of the non-law school world AND to continue your development as a lawyer (v. law student), consider adding these additional comments to your briefs.
Contextual Summarizing Paragraph
This paragraph is best drafted after you have briefed the case. It should include:
Identify the Party Relationships:
The plaintiff and defendant had a relationship before they became "parties." That relationship could have had several components to it, could have existed apart from the transaction at issue, or could have arisen solely as a result of the transaction. Often aspects of this relationship affect the court's analysis in implicit or explicit ways. Examples of party relationships include:
- neighbor/neighbor employer/employee
- father/daughter adult/child
- lender/borrower seller/buyer
- buyer/seller (w/history of prior dealings)
- buyer/seller (w/o history of prior dealings)
Identify the Party Objectives:
Before arriving in court, the parties obtained lawyers. Identify what the party hoped to accomplish by obtaining a lawyer. In most opinions this question can be answered by viewing the party's objectives from the point at which the litigation began. Do not confuse these objectives (to collect/avoid paying money) with procedural objectives (proving error/seeking to have document admitted) or legal objectives (proving a promise/duress).
The information describing the parties' objectives is often found within the first few paragraphs of the opinion. If the opinion describes the plaintiff's objective but does not indicate the defendant's objective, assume the defendant's only objective is to prevent the plaintiff from obtaining his or her objective. If there is no clear indication in the opinion of the parties' objectives, infer the objectives from the nature of the dispute and from any other clues you find in the opinion. Examples of party objectives might include:
- Plaintiff wants to recover $ for services. Defendant wants to avoid paying for performed services.
- Plaintiff wants to recover $ for damaged goods. Defendant wants to avoid paying for damaged goods.
- Plaintiff wants to pay less than Defendant. Defendant wants to be paid what the work demands are worth.
- Plaintiff wants to be paid more. The Defendant wants to pay only what parties originally agreed.
- Plaintiff wants to avoid performing. Defendant wants to force Plaintiff to perform.
- Plaintiff wants to perform. Defendant wants to prevent Plaintiff from performing.
Identify the Legal Theory advanced (by the lawyer) to obtain the party's objectives:
The lawyer "translated" the party's objective into a legal theory. A legal theory for obtaining relief is based on a legal principle that would entitle the aggrieved party to the relief s/he seeks. A legal theory for defeating the request for relief is called the defense. At the trial level the legal theories become the "substantive" issues. At the appellate level the legal theories become the "procedural" issues.
A theory must be based on one or more legal principles. ie., there was no contract because the plaintiff did not promise to do anything. In many cases, the defense's theory is simply the opposite of the plaintiff's theory. I.e., Plaintiff did promise to do something. However, sometimes the case indicates the Defendant advanced more than one defensive theory.
In addition to being based on a rule of law, the legal theory or defense could also involve reference to a precedent case. i.e., These facts are the same as the facts in X, therefore the court should apply the rule the same way in this case.
This paragraph is best drafted after you have briefed and studied the case. However, to help you "generate" reflections, consider the following:
- After reading the facts and before reading the opinion, ask yourself who should win. In your gut, which party is in the right? If you were the lawyer listening to the story, which party would you rather represent? (This is the "visceral" response).
- After reading the court's opinion, ask yourself if you agree with the legal outcome. Is it well-reasoned? Does it make unwarranted assumptions? Did the opinion persuade you? (This is the "intellectual" response).
- Finally, include any further reflections you might generate based on the comparison of your visceral and intellectual responses? If they do not coincide, does this make you look at the court's opinion differently? More closely? More critically? Where is the point/statement that you disagree with and why? If they coincide, does it make you look at the court's opinion differently?
Socratic note taking is an art that most first year law students find difficult to master. Unlike general note taking from undergraduate and high school days, the professors do not generally "follow the book," spell out the important highlights, or even, necessarily, fully discuss the cases. Instead, the professor endeavors to use the modern Socratic method to help law students determine the relevant rules, policies and underlying legal themes.
A true Socratic method is based upon a small group concept in which students are encouraged to ask and answer questions while guided to the truth by the teacher. The emphasis is on oral discussions, not taking notes. In law school, practicality dictates that students answer rather than ask questions. Here, notes can play a vital role in the learning process.
First, it's important to understand the difference between undergraduate and law school expectations. Typically, undergraduate professors tended guide the discussion by "laying it out" by lecture or study notes or powerpoint. Law schools professors question, question, question, question, so you may need to decide the answer for yourself. This involves some self-teaching and at times you might feel overwhelmed by the professor's expectation. However, you need to adjust to the reality and give the professors what they want in terms of understanding material and being able to use the law to answer further questions. So, it's your job to deliver!
Taking notes is an integral part of the learning process. You need to determine if you are "getting" the point of the discussion and if you have zeroed in on the rationale and reasoning of the cases. Finally, notes are a great way to track the professor's progress through the course, both as to the subject matter and as to how the professor got there. You can also use your notes to pinpoint where you got lost.
In another section, pre-class preparation was discussed (See, Preparing for Class - In Praise of the Brief). Suffice to say, you need to get ready for class because the professor will generate many questions - and you need to be prepared to explain.
One way you can help yourself is by trying to read the particular professor in your class. Notice her lecture style, whether she "briefs" the case during the lecture, and how she uses hypotheticals. Note also if she uses policy besides the black letter law, and if she eventually provides an analytic approach to apply the rules. Obviously, you will need to determine this as the course goes along, but this can be an invaluable tool to deciding how to respond to exam questions. For example, once you have decided that a particular property professor uses public policy, you can develop a code system to designate any policy argument that were (or could have been) used in a particular case. This can help you anticipate the professor's questions. All this can then be incorporated into your pre-class preparation.
Notes During Class:
One way to maximize the class experience is to try to take meaningful notes that tell you something when you reread them. If, however, you are lost and confused and don't know what is significant - get as much as you can - and review later to keep the important and dump the unnecessary. This is particularly useful in the beginning of the course before you have learned the professor's style of teaching. Start with your prepared notes, and using some way to distinguish, add your class notes. You might wish to literally divide your notes in half - with the prepared information on one side, class notes on the other. This can help you quickly highlight information that the professor found pertinent and note the additional information that you missed. This process can assist you in learning to spot issues and finding the rationale and reasoning in the cases.
One point should be clarified regarding note taking. When you were an undergraduate - what techniques worked for you? Law students sometimes thing they need to reinvent the wheel and do everything in a certain manner. In reality, if you found typing on your laptop helpful and a way to keep you focused - great! If you find making flowcharts and charts by hand more helpful - do that! Work with what has worked in the past - and add new methods as needed.
Beyond simply taking down facts of the case, rules and analysis, you also need to remember where all these notes are going to ultimately lead you - the exam. And the exam questions will use different factual situations to determine if you can make a leap from these case facts to some other factual situations. In exams, you generally find that the "answer" is not obvious - you will have to explain why the rule does/does not apply. Moreover, you will notice that the exam facts are generally more complex than the case facts. So make sure you add all hypotheticals so that you have even more situations to add to your collection of information (So, for example, you might learn that under the case facts AND this hypo's facts, this rule applied. Or, you might discover that the rule does apply under that case facts, but not under the facts of the hypo.) Hypothetical situations then allow you to practice on a mini-scale how to apply the rules to a new set of facts. So don't forget them in your notes.
Similarly be aware of policy questions, and any other question that the professor considers significant. Highlight these clues to the professor's approach to the topic. Try to particularly indicate the "why" questions - they give the best hints.
Using Notes after Class: the Postmortem
Beyond the obvious ability to answer questions regarding the who, what, where, why of the case, your brief can also serve to critique your legal analysis. After class, take a few minutes to review your brief: did the professor agree regarding the facts? Holding? Did the professor make the same assessment regarding the case and its application of the law? As you move through the semester, these review session should provide more positive feedback as you get better at briefing.
In addition, consider any hypothetical that the professor discussed in class. Would these new facts change the application of the legal theory? Did the hypothetical facts demonstrate that the policy arguments don't make sense? Think about how these new facts apply and incorporate them into any final conclusions you have.
Finally, ask yourself if you have a concept of how the law and theories fit together: can you see the "forest for the trees." Think about referring back to your table of contents, syllabus, or if necessary, an outline to provide context for the new information you have learned from class. You will then be better equipped to brief for the next class' assignment. This process of reduction is vital because it helps you select the important ideas and key concepts.
You may also want to periodically test yourself by reciting from memory some of these key concepts. Law examinations presume you have memorized the law. Help yourself by gradually learning the topics after you have finished a particular section.
Finally, don't be afraid to go back and review and integrate your old notes with new information. Often new material may refer back to prior analysis. You need to be able to make these connections in order to write a good outline and, ultimately, a good examination answer.
To Summarize - the 5 R's of Note taking:
- Record: the information in class in the method that works for you.
- Reduce: after class to decide the good from the junk - selecting important ideas, key words and concepts.
- Reflect: Look at the unified whole of the section of the course and decide what you learned. This is the process of synthesis.
- Recite: Try to recall what you learned.
- Review: by integrating new notes into old, making connections that will help you as you outline.
Developing good legal analysis in persuasive writing may be as simple as going out for an ice cream cone and wanting to eat it NOW. On the way home today a young daughter wanted to get some ice cream. Her mother agreed, but stipulated that the cone would have to be put into the freezer until after dinner. Obviously, the daughter did not agree with this plan. So, she made the following argument:
[Mommy] It's really messy when ice cream falls over in the freezer (thesis sentence). Last time we got ice cream it was in a cup and didn't fall over. This time I got my ice cream in a cone (fact-to-fact comparison). Ice cream in a cup doesn't fall over because it's not as tall. But if I get ice cream in a cone, it will fall over and make a mess (explanation of the meaning of the compared facts - distinguishing the facts). So I think I should just eat the ice cream cone as soon as we get home (conclusion - or why I don't have to wait!).
And the test of any good persuasive argument - she got to eat the ice cream before dinner!
Therefore, next time you are applying your assigned facts to the facts of a case/cases, ask yourself - cone or cup? Or in a more scholarly manner, are the facts the same or different? If you want the same result as the court case - argue the facts are similar. Contrarily, if you want different results, argue that the facts are distinguishable. Focus on the material differences - not the minor details. In the ice cream case, the container is the basis for the daughter's argument and thus material to the analysis. Use these differences to argue your position. However, had her mother noted that the cone could be placed upside down in a cup, you would have an arguable counter argument that would justify the mother's edict of waiting until after dinner. So part of persuasive writing is not only thinking about your position, but also considering what the other side might argue.
Bottom line - think about how case facts are similar or different from your assigned facts. Make the reader aware of those comparisons by specifically making analogies or distinctions. Anticipate the other side's argument and try to convince the court that your side is the correct interpretation.
†Many thanks to Amirah Bauder, for the great argument
Preparing for class is more than simply briefing a case. Before you even start, you need to guarantee that the atmosphere is proper for learning and reviewing. So decide: are you an "I must have quiet" sort of person? If so, hit the library and resist that temptation to prepare with friends. How about "I can't think unless there is music?" Find a good location for some sound - although you might need the music at lower decibels than normal. Law school requires immense concentration. Finally, can you prepare with friends? This one may be the most questionable: all of you need to be ready to prepare - and have the same degree of concentration. Otherwise, the studying may deteriorate into a talk session.
Once you found the proper atmosphere, you need to determine how to begin. In the same way an outline will guide you through the entire course, you need some guide of the day's assignment. Before you begin, look at the professor's syllabus and the table of contents. What is the subject matter being covered? Is it an historical overview of that particular area? Are you dealing with the basics? Exceptions? Be prepared to even skim over the day's reading to have a sense of proportion regarding how this day's readings fit into the entire scheme of topics currently being covered by the professor. If you are totally confused about where the professor is - and how the topic fits into the overall context of the course - you might wish to look at a commercial/outside outline or treatise to find the major points. Remember, these outlines are never a substitute for your preparation. However, if you are too perplexed to effectively study, this might help.
This preliminary period may also be a good time to review the questions following the reading: they might provide some focus regarding the cases. Don't be afraid to spend time getting ready - it can save you confusion later on.
Everyone knows that briefing is a preliminary skill that everyone is supposed to do - and lots of students fail to do. The question, of course, is how important is briefing cases prior to class - and how important is it to the overall preparation for exams? After all, good grades are the goal - not perfect briefs.
In fact, briefs can help in shortening exam preparation time so that you will have more time to study and take practice examinations. But reading a case is not the same as reading the latest great American novel - or even a history textbook. In fact, you need to recognize that court cases are not always an example of great writing. Archaic words and style often interfere with your understanding of the topic. Moreover, judges often lack the editing skills necessary to engage their audience. Unlike the instructions you have received from your Legal Research and Writing instructors to write for your audience and provide context, judges often assume you already understand the area of law. Remember, the case opinion is a result of parties suing and being sued in a real-life situation. The judge is primarily addressing his/her opinion to those parties - and they already understand the law. So don't get discouraged if you feel somewhat lost.
Another very important consideration is that you are beginners at legal analysis - and it is not easy to understand. Be patient with your ability - and realize that the initial months will be most difficult to process the courts' decisions.
So What Can You Do to Assist Your Briefing?
Have a legal dictionary - use it when you don't understand a word or phrase. You will find yourself relying upon it less and less as the months go by.
If you can't understand the case and have no sense of context - where does this case fit - go to the table of contents, outlines, or even a treatise to give you sufficient background. All the additional time you spend at this point will save time in the end.
Always make sure you know what system the court is from. Is this state or federal? Trial (rarely), appellate or at the highest appellate level? Remember, not every "supreme court" equals the highest appellate level - New York's Supreme Court isn't!
Remember that the cases you read for a particular assignment might be interrelated. Your understanding may be increased if you think of the cases as part of a continuum.
Don't be too concerned if you just don't "get" a particular case. After reading and attempting to understand - move on. You can always come back later.
Be prepared to have different interpretations of cases. After briefing, you might wish to discuss the cases with colleagues to get their opinions.
Finally, remember that the process of briefing is helping you not only understand a case - but also the legal analysis process. You use cases because they provide:
- Rules and Doctrines
- Legal strategies that affect clients and outcomes
As you brief, you also learn how to do all the above - a great benefit beyond the who, what, when and why of case briefing!
All of you were given a lecture regarding briefing. As a quick review, let's go over the components.
- Case name and citation: make sure you indicate level of court.
- Statement of the case: this includes the relevant facts and any procedural history that is necessary to make sense of the case. Remember that case textbooks are often edited - you will be less likely to find extraneous material in your casebooks as in actual cases. Nevertheless, you need to focus on the important information regarding who is suing whom for what remedy - and what part of the case was the judge deciding on? If it is on appeal, make sure you know what happened in the lower court.
- Issue: generally the court is either deciding what the proper rule of law should be applied and/or how does the law apply to these facts? Sometimes the court needs to decide the proper law before it can apply it to the relevant facts. So don't get confused if you have several issues.
- Argument(s): ask yourself what the current court is deciding. Is the judge ruling that the trial court was correct? If so, what was the legal theory and application and why is it correct? If the current court holds that the lower court was wrong - why is it and what is the correct application and legal theory?
- Holding: fill in the blanks: "Under the correct legal theory, which is _____________, and under these facts, _________________________, then (what happens) ________________ legally?"
- Policy: if applicable.
- Analysis: what do you think about the decision? Later, you might add what your professor thinks about the decision.
After Briefing - but before Class
Once you have briefed a case, it is important to ask yourself several questions to help you prepare for the next class. Remember, in a Socratic class, you will be asked about this case - and other hypothetical situations. The professor will often use these new facts to help you determine the extent of a rule, find the exceptions, test the judge's analysis, and the like. Give yourself a head start by asking yourself:
- Why did the judge focus on certain facts in reaching a decision?
- Why did the judge ignore others?
- Try altering some of the material facts and asking yourself what the result would be - and if it makes consistent sense, particularly if the court looks at policy considerations.
- Compare this case to the previous ones in the same section: how is the case different? Does this case change the established law, or add to it? Does it create exceptions?
Once you have answered these questions, you may find that the class is easier to follow. Remember, preparation is the key.