Avoiding The “Slings And Arrows” Of Outrageous Case Briefing Misfortune And Getting To What’s Important

Reading/briefing casesThis week we welcome guest writer and 3L, Mark Livingston, to discuss how to get started with case briefing as a new law student.

I remember, not so fondly, the first case I tried to brief in law school. It was Todd v. Danner, 17 Ind. App. 368, 46 N.E. 829 (1897). I remember briefing this case, and because it was from 1897, it involved an incident with an unruly steer, and I had no idea how to brief it. The language used by the court was archaic and convoluted. I had no idea what was important or what I needed to include in my brief.

That first brief was awful. Despite the brevity of the court with its two-and-a-half-page decision, my brief weighed in at a cool six pages! I was way off course, and if all of my case briefs had turned out like that one, I would have been briefing my 1L cases after my retirement. I have since developed a few skills and approaches that have helped me streamline the process and cut through my cases like a champ.

What is Case Briefing?

I have to read the cases and write about them and not get a grade for my effort? Yes! Case briefing has been around a long time. It’s a reliable method of teaching law students the “black-letter law” found in cases. It will help you gain understanding about how the legal rules are analyzed and applied by the courts. A good case brief will help cut away the fat and focus on what matters most. The goal is to reduce the unwieldy language found in many court decisions into a fast and efficient weapon in the war against cold-calling, the Socratic Method, and law school exams. Once you capture the essence of the case, you will feel more confidence and be better prepared for anything law school throws at you…which is a lot.

The “Slings and Arrows” – What to Avoid

When I started briefing, I may have understood the purpose (actually, I didn’t) but I certainly didn’t know what I was doing wrong. Knowing what not to do can help a law student squeeze everything he or she needs from each assigned case.

Don’t over-use the highlighter

Book briefing can be effective, but if everything is highlighted, how will you know what is actually important? In fact, the first time you read through the case, put the highlighter down. Your first read should be focused and concentrated. With a basic familiarity of the case, you can start the second read, armed with the highlighter of choice, and strategically showcase the facts, rules, holding, and reasoning that make this case important.

Be careful not to over-read (but also avoid superficial skimming)

You can easily lose the forest for the trees when reading a dense case, because you get too focused on every fact, every rule, and every reference in the decision. On the other hand, skimming superficially while watching Kim and Khloe argue about who is most popular will not give you the level of understanding you need for your law school classes or exams. Try to understand where the case fits in the course syllabus and the case book’s table of contents. This critical step can help to focus your reading and get the main points you need to effectively contribute in class and recall the information on the exam.

Focus!

Friends don’t let friends case brief distracted (or passively). Related to the last point, trying to hack through the foliage of Nineteenth Century language can be a challenge. Doing so while distracted by the television, the cute coffee clerk at your favorite study spot, or videos of cats playing piano on the interwebs is a surefire way to miss what matters in your case briefs. If during your first pass at reading a case, you aren’t focused – walk away. Take a break. Try again later. Otherwise you are going to end up with a case brief that is too long in length and short on (useful) content.

NO ONE ELSE WILL READ THIS (most likely)!

You aren’t drafting an appellate brief for court. Case briefs are a tool to help you and only you. Make sure that they are useful for you. Figure out the information you need in that particular class, for that particular professor, and put that into your brief. These are tools in your tool kit, and most professors don’t want to see them. Your briefs should help you be confident when you speak in class, build strong outlines throughout the semester, and help with general exam prep.

Case Briefing – The 6 Critical Elements
  1. Know the procedural history – what was the path this case took through the courts? One sentence, maybe two.
  2. Know the facts – what happened, to whom, when, and where? This is as a short story. How would you tell this story to your mom over coffee?
  3. Understand how this case fits in the context of your other readings? Knowing this will help zero in on what really matters.
  4. What is the question(s) the court is trying to answer or the issues in dispute? The courts will generally state this plainly at the beginning of the opinion.
  5. What are the rules that the court referenced in its reasoning and did the court establish a new rule(s) through this decision?
  6. What was the holding of the court and what legally-relevant facts pushed the court to decide the way that it did?

Remember: Write for yourself – case briefs are not a writing assignment. This is a tool to help you remember the basics (i.e. facts, issues, rules, holding, and rationale) of each case in class and on your law school exams. You’ve got this!


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About Mark Livingston

Mark earned a B.Sc. in Criminology and Sociology from Ball State University, a M.Sc. in Criminology from the University of Edinburgh in Scotland, and a Master of Philosophy in Russia, Central, and Eastern European Studies from the University of Glasgow in Scotland. He is earning his JD at the University of Valparaiso School of Law. Mark worked for more than 10 years in state and local government in the areas of emergency management, law enforcement, and probation. Mark is a veteran of the United States Army Reserve.

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