Why Outline When You Can Buy One?
Given the time pressures of law school, many students are left wondering why they should outline at all. Commercial outlines that are written by experts are readily available at cheap prices. Moreover, creating your own outline is time-consuming and difficult.
Statistics show that students who create their own outlines invariably do better on exams than those who rely on commercial outlines.1 It's the process of creating the outline and bringing the material into a cohesive and understandable format that makes the difference. Merely possessing an outline written by the professor or an outstanding student does not guarantee success.
Outlines are simply condensed summaries of the rules of law. The outline serves three primary functions.
First, it helps tremendously in getting you to think like a lawyer. You synthesize your class notes, briefs, reading and secondary sources into one coherent body of law.
Second, you remember the rules better by restating it in your own words. It will help you memorize the material by rewriting and reorganizing it.
Third, the outline is your primary tool in tackling the exam. In the final week before the exam, you out your casebook and class notes on a shelf and concentrate only on your outline. The outline makes you more efficient by giving you focus. Even if your professor allows an open book exam, you'll want to outline in order to be more efficient in using notes during the exam.
There are abundant resources in commercial outlines. However, you won't necessarily succeed by having the best commercial outline or in having an Honors Student's outline from the past. It is the process of outlining that spells the most success for a student. If you do use another student's outline, make sure that she had the same professor as you do. Professors teach their courses differently to emphasize different areas of the law.
Return to Top Test Yourself!
When and What to Outline
While many students attempt to outline, few know how to do it effectively in the first year. Outlining skills are usually not taught in law school. Also, many students start too late in the semester to take advantage of the process. By the time they start outlining, they've forgotten the nuances of the first half of the course. On the other end of the scale, some students start to outline too early. There's a danger of starting before you really have a grasp on the material. You need to know the material before you start to condense it into an outline.
Outlines should be started when you finish a significant portion of the course, but not beforehand. You can figure out when to start outlining by looking at the table of contents in your casebook and comparing it with the syllabus of the course. Most casebooks are broken into sections in which there are three or four chapters comprising 100 pages or so of material. In the standard first year course, this material might take five or six classes. What follows is an example of a break down of major sections and subsections for a Torts class.
Sample Torts Table of Contents
- Intentional Torts
- False Imprisonment
- Intentional Infliction of Emotional Distress
- Defense - Self Defense, Consent, Privilege
- Duty of Care
- Breach of Duty
- Defenses - Contributory Negligence, Assumption of Risk, Statute of Limitations
- Strict Liability
- Trespassory Torts
- Products Liability
Using the sample above, you would want to start outlining only after you have covered an entire section of material, such as all of the Intentional Torts. Although you may feel that you are ready to outline after covering only Assault and Battery, it would be better to wait until you have also covered False Imprisonment and Emotional Distress. Although the areas do not seem related, those torts all have the underlying element of "intent" in common. To fully understand the concept of intent, the other torts will lend insight. Alternatively, don't wait too long. Be sure to start outlining the material once you've completed a section while it is still fresh.
Return to Top Test Yourself!
How to Outline: 6 Easy Steps
Outlining accomplishes two tasks:
The outline should not just rehash the book or lecture notes. If you're only regurgitating what the professor said in class or copying what the casebook author wrote, then you are missing the whole point of outlining - to get you to think like a lawyer.
Here are the steps you should take in doing your first outline.
Step One: Assemble the Materials
Although it seems self-evident, you'll want to have a large workspace that is clear of clutter. Gather together every possible book, note, handout or scrap of paper relating to your class. Here's a list of some of the materials that you want to have on hand.
Materials to assemble:
As you move through the material, you'll want to check each one of these sources in order to see if anything adds to the analysis of the rule of law or whether your professor added any insight into how the rule should be applied.
One of the most common mistakes that students make in outlining is to rely on only one source - such as the class notes or the book. It's easy to develop a rhythm by moving through the book and forgot to check your class notes in order to see what was said in class. By having a large surface area to work with, you can spread all of the materials out and better handle the multiple sources and references.
You also need a good word processing program that has an Outline mode. A book could be written on choosing the right word processor (and there are such books). It's really a matter of personal preference. The most common word processor is Microsoft Word. Although it's popular to dislike Microsoft because the company is a corporate giant, the fact is that Word is fast becoming a standard in the legal field. Word Perfect was considered the standard among law firms because it formatted legal documents such as court briefs, but Microsoft Word has eclipsed Word Perfect as the word processor of choice.
Regardless of which program you use, be sure to take the time to learn the outlining features of your word processor. The outline mode automatically justifies and indents subheadings. Many students make the mistake of indenting by using tabs. However, using tabs only works well for the first line. If your sentences go to a second line (and they will) the word processor will re-justify to the left margin thus making the document hard to read. Take the time to learn the outline mode. You'll save a lot of time in the long run.
Step Two: Create a Template
A key part to getting started is to create a structure or template. The template is merely a format that you adopt in order to "fill in the blanks" as you move through the material. The standard template organizes the material according to IRAC. The template keeps the structure consistent as you jump back and forth between different issues.
The template should have preset headings for the material that you want to gather. By having a clear understanding of where the elements go, you will move through the material more quickly. Create the template in your word processor and leave a copy of it at the top of bottom of your document so that you can easily copy and paste the template as you come to a new issue. It will save you time in the long run.
Although you have a set structure defined for creating the outline, it should not be rigid. Feel free to modify or leave out elements that don't make sense for a particular legal principle. For the most part, however, this method gives first year students the structure they need to learn the elements of legal reasoning.
The template should also be defined as to the outline style you use - i.e. roman numerals vs. legal outlining style (e.g. 1.1, 1.2, 1.3, 1.3.1, etc.). Most word processors will let you use either approach or a hybrid. What matters in choosing a system is that it makes the most organizational sense to you. Choose a system that will facilitate instant recall and understanding of the material. Don't use someone else's approach if it doesn't make sense. Outlining can be as idiosyncratic as you like so long as it aids you in the exam.
The outline structure used here is very similar to IRAC, and the methods used to restate and analyze the rule. The structure allows you to have instant pattern recognition during the exam and it makes it easier to build an outline by plugging items into a set format. If you've followed the advice on briefing cases, you should be able to build an outline with relative ease.
One common mistake that first year students make is to organize their outlines by case. It's natural for students to want to have major heading according to case names since this is how the material was taught. However, this type of organization will not help you on the exam. The exam requires that you recognize issues and then analyze the facts. The IRAC outline breaks rules out according to issue, thereby helping you study for the exam. While your classes have emphasized cases, you need to emphasize analysis in your outline.
We'll step through each of the major headings to see what's necessary in each. See the Appendix for an example of a fully outlined legal principle.
Step Three: Organize the Big Picture
Another pitfall that students make is jumping into the first issue before they get the big picture. Get a sense of the overall structure of your outline before diving into the first case. Know your destination before you start to go there. You'll save a lot of time and frustration by spending ten to fifteen minutes paging through all of your materials to reacquaint yourself with cases and class notes. Just flip through every page of your casebook that you plan to cover and jot down the big picture items. This helps lend a structure to your outline, so that you know what your major headings are going to be. This process is similar to the pre-reading exercise. By looking over the material and getting the gist of it, you will be able to move through it faster and not get bogged down in unnecessary details.
In this first step of getting the big picture, you'll only be filling in the Legal Principles noted by the Roman Numerals. The Roman Numerals might correlate to the headings we saw under the major section headings above for tort. Thus, the intentional torts section of your outline might be organized as follows:
- False Imprisonment
- Intentional Infliction of Emotional Distress
- Defense - Self Defense, Consent, Privilege
You may want to use broad headings such as Intentional Torts and Negligence to separate out the different sections. However, keep the particular torts or ideas as main headings even though they seem to be subheadings of a broader category. Otherwise, you will soon be indenting into sub-sub-subheadings.
Organize it in a way that makes sense to you and which correlates to how your course was taught. At this point, it would be a good idea to compare your organization to the Syllabus that the professor used in the course and to the table of contents in the book.
By using the right methods from the start, you have cut down on the time used to put this material in a useful format.
Step Four: Synthesize the Rule
If you've prepared case briefs and class notes in the IRAC style, then the substance of your outlining should flow naturally from those materials. The big difference is that instead of listing a different rule for each case, you want to synthesize the rules into one principle.
Rules build upon one another and your goal in outlining is to come up with one general rule that combines the related rules from specific cases. Despite the need to illustrate differences, you want one primary rule that governs the jurisdiction that you think your professor will test you on. The synthesized, or primary base line rule, is the one that you will work with in the exam. It is the rule that either your professor adopted in class as the better rule of law or the one that is used in your jurisdiction. Professor Bob Berring at University of California, Berkeley Boalt Hall School of Law calls this "the one perfect sentence" rule. Berring tells students to write "one perfect sentence" that summarizes each major rule of law. Student can then automatically spit out this sentence whenever the issue arises on the exam.
From that base line rule, you can then note distinctions about the rule from other jurisdiction. The jurisdiction could be the state in which your law school resides or it could be the general common law. Ask your professor what she wants you to emphasize before attempting to outline.
In order to synthesize the rule, take advantage of the structure of the casebook. The format for casebooks usually has one principal case that states the primary rule and then several squib cases that have refined the rule or give a different interpretation on a different set of facts. A squib case is a supplementary case that may be edited by the author of the casebook to only bring out certain principles.
To synthesize a rule, you have to start with the base line rule and restate it. Be sure to break the rule into elements that form terms of art. Although the squib cases illustrate distinctions, they can also help you form a general principle. For instance, you might have a principal case that illustrates the old common law and more modern cases that have revised the rule. The base line rule should take into account how the squib cases have modified the common law.
If the difference between the squib cases and the principal case is merely one of language and not substance - i.e. the rule is stated differently but the effect is the same - then just choose the language that best suits you. Don't clutter your outline with unnecessary restatements of the same principle.
After you have the base line rule, you want to list similar rules that illustrate different treatments of the same principles. This will help you in the analysis section of the exam. For instance, you want to be able to see the distinction between the following sources:
- Synthesized (or Base Line) Rule
- Common Law rule
- Restatement Rule
- Model Code Rule
- Rules from Different Jurisdictions
- Using examples to reason by analogy.
State the rule once as common law, once as the uniform statute, once as the Restatement. Note the differences that the different methods illustrate. There won't always be different rules for each type. However, if there are, then it's likely that a different result may happen with a given set of facts if a different rule were applied. Your professor is trying to see if you can catch these nuances, so be sure to make the distinction in your outline.
Finally, like the rules of law, these instructions are just guidelines. You will inevitably find some rule that doesn't fit neatly into the procedure illustrated above. Be flexible and state the proposition in a way that makes sense to you.
Step Five: Illustrate the Analysis
Analysis is the most important element of the outline. Your exam primarily tests your ability to analyze and issue-spot. Consequently, this area of the outline needs to be fleshed out with examples on how to apply the rule. There are four primary ways to prove the elements of a rule of law. You look at the terms of art in the rule and prove it by:
- Using examples to reason by analogy.
- Weighing several factors in a balancing test.
- Applying a judicial test.
- Arguing that the rule's policy is furthered by application to the rule.
One mistake that students make in outlining is to integrate the analysis into the statement of the rule. These tests are so integrated with the rule that they seem to belong as part of it. However, it helps clarify the analysis to keep the rule and tests used to prove the rule separate.
From an organizational point of view, you need to step through the proving of a rule according to each of the rule's elements. Since each individual element is often a term of art, you can use the element as a heading for proof purposes. Underneath the element heading, you then list one of the four ways to prove the rule. See the sample outline that illustrates this principle.
Step Six: Provide Case Summaries
The last step in outlining is to provide case summaries. List every case that you have read including the squib cases with a one or two line description that will jog your memory as to the specifics and holding. This one or two-liner should state sketchy facts of the case and what the case stands for. Include some facts because professors often draw upon case law fact patterns in order to create hypotheticals.
Case summaries give you an edge not only as a way to illustrate the examples for reasoning by analogy, but also to provide a quick overview of a case-by-case organization of the legal principle. By scanning this list, you remember how you learned the material. It's a chronological view into the material. Typically, it will also serve as a way to look at the development of the law, since casebooks often start with a principle case followed by cases that have distinguished that principle.
For purposes of the outline, the case summaries are much more condensed than the case brief. Most of the details are eliminated altogether. There's a real danger of putting in too much material. The point is to get you to recall rather than to have all of the facts. You will rarely need more than two or three sentences.
If a famous judge wrote the case - such as Holmes, Brandeis, or Cardozo - then note that as well. Being able to cite a judge for a certain principle is one of the ways to distinguish yourself from the crowd in an exam. It won't win you a top grade by itself - for that you need stellar analysis. But it does allow you to show that you understand the importance of the opinion by showing its source.
Some other elements to include would be the page number in your casebook so that you can quickly reference it if necessary.
Here's an example of the right way and wrong way to summarize a case for purposes of the outline.
Palsgraf v. Long Island Railroad. 248 N.Y. 339, 162 N.E. 99. Judge Cardozo. Railroad guard pushes a man from behind in order to help him get on moving train. Man drops package wrapped in newspaper that contains fireworks. Fireworks explode. Explosions cause scales to fall on platform which harm plaintiff. Court finds that action by guard was not foreseeable as to the harm that was caused to the plaintiff. Harm caused must be apparent to the ordinary person in order for liability to attach. If the harm is unintentional then it must be natural or probable to occur in order for there to be negligence. Too remote in proximate cause theory for there to be a tort against plaintiff.
Palsgraf. Fireworks case. Explains proximate cause.
Palsgraf v. Long Island Railroad. p. ___. Cardozo. Railroad guard pushes man who drops package. Package contains hidden fireworks that explode and cause scales to fall harming plaintiff. Illustrates that harm was not foreseeable by guard as to plaintiff so no proximate cause.
Return to Top Test Yourself!
What to Leave Out
Not everything that you have in your class notes or case briefs is relevant to the outline. It's as important to know what to leave out as what to put in. For instance, unless your class is Civil Procedure, Criminal Procedure or Evidence, you probably don't need the procedural information (i.e. what happened in the lower courts and how this case came to be appealed) in your outline. Nine times out of ten, this material is irrelevant to your outline.
A clear understanding of procedure might be tangentially important in the exam. In other words, you should be able to talk the talk of procedure in an exam. In fact, your professor may have grilled students on the procedural elements in order to get them to use the artful language of lawyering. But the procedural nuances of the cases are not as important as the nuances of the rule for the body of law you're studying.
As with everything in the study of law, there is probably an exception in your material where procedure is important. In those cases, the rule integrates with some sort of procedural issue and this should be apparent. In general, however, you can leave procedure out of an outline.
A big stumbling block in outlining is pure fear of not getting it right. Because law students don't get much feedback except for the final exam, there is a tendency to always wonder whether you are doing something correctly. This fear often causes first year students to freeze up and not move forward. In other words, they waste time fretting about getting it right. It's easy to fall into the trap that if you don't get the outline right, you won't get the exam right. This is where you can use secondary sources such as commercial outline to verify whether you've gotten the material down correctly. Then you can move forward with more confidence.
Return to Top Test Yourself!
Before the Exam - The One-Page Outline
In the final week before the exam, if not before, you should condense your outline into one page. This page - known as an attack outline - serves as a checklist of issues as you read the exam. The attack outline helps you organize your answer, remind you of key points and to make sure that you haven't missed an issue. The attack outline transforms good students into outstanding students.
The attack outline does two things:
- Builds an analytical framework
- Serves as a reminder of issues and rules
To build the attack outline, figure out how you would analyze a problem that tackled every issue in the course. Where would you start out? Build a framework that works logically from one issue to the next if there were a hypothetical that encompassed every conceivable issue.
For instance, in contracts, you wouldn't start out by analyzing what the damages from a breach of contract were. Furthermore, you wouldn't start at the point of breach. First you would need to establish that there was a valid contract, then discuss the breach, potential defenses and then move onto damages. By figuring out how to analyze an issue - that is the sequence - it helps prepare you to answer a question before you even step into the exam.
Once you have the list of issues and the order in which you would analyze them, then develop shorthand for the major elements or tests that will form the bulk of the analysis. Use this shorthand on your attack outline so that you don't forget to hit on the elements in the analysis. Shorthand and a condensed format will make for a highly idiosyncratic one pager that will probably be understandable to no one but you. That doesn't matter. You're the only person who needs to understand the one pager. If done properly, the attack outline transforms good students into outstanding students.
Return to Top Test Yourself!
Confusion often arises over the term “legal brief.” There are at least two different senses in which the term is used.
An appellate brief is a written legal argument presented to an appellate court. Its purpose is to persuade the higher court to uphold or reverse the trial court’s decision. Briefs of this kind are therefore geared to presenting the issues involved in the case from the perspective of one side only.
Appellate briefs from both sides can be very valuable to anyone assessing the legal issues raised in a case. Unfortunately, they are rarely published. The U.S. Supreme Court is the only court for which briefs are regularly available in published form. The Landmark Briefs series (REF. LAW KF 101.9 .K8) includes the full texts of briefs relating to a very few of the many cases heard by this court. In addition, summaries of the briefs filed on behalf of the plaintiff or defendant for all cases reported are included in the U.S. Supreme Court Reports. Lawyer’s Ed., 2nd. series (REF. LAW KF 101 .A42).
A student brief is a short summary and analysis of the case prepared for use in classroom discussion. It is a set of notes, presented in a systematic way, in order to sort out the parties, identify the issues, ascertain what was decided, and analyze the reasoning behind decisions made by the courts.
Although student briefs always include the same items of information, the form in which these items are set out can vary. Before committing yourself to a particular form for briefing cases, check with your instructor to ensure that the form you have chosen is acceptable.
The parties and how to keep track of them
Beginning students often have difficulty identifying relationships between the parties involved in court cases. The following definitions may help:
Plaintiffs sue defendants in civil suits in trial courts.
The government (state or federal) prosecutes defendants in criminal cases in trial courts.
The losing party in a criminal prosecution or a civil action may ask a higher (appellate) court to review the case on the ground that the trial court judge made a mistake. If the law gives the loser the right to a higher court review, his or her lawyers will appeal. If the loser does not have this right, his or her lawyers may ask the court for a writ of certiorari. Under this procedure, the appellate court is being asked to exercise its lawful discretion in granting the cases a hearing for review.
For example, a defendant convicted in a federal district court has the right to appeal this decision in the Court of Appeals of the circuit and this court cannot refuse to hear it. The party losing in this appellate court can request that the case be reviewed by the Supreme Court, but, unless certain special circumstances apply, has no right to a hearing.
These two procedures, appeals and petitions for certiorari, are sometimes loosely grouped together as “appeals.” However, there is, as shown, a difference between them, and you should know it.
A person who seeks a writ of certiorari, that is, a ruling by a higher court that it hear the case, is known as a petitioner. The person who must respond to the petition, that is, the winner in the lower court, is called the respondent.
A person who files a formal appeal demanding appellate review as a matter of right is known as the appellant. His or her opponent is the appellee.
The name of the party initiating the action in court, at any level on the judicial ladder, always appears first in the legal papers. For example, Arlo Tatum and others sued in Federal District Court for an injunction against Secretary of Defense Melvin Laird and others to stop the Army from spying on them. Tatum and his friends became plaintiffs and the case was then known as Tatum v. Laird. The Tatum group lost in the District Court and appealed to the Court of Appeals, where they were referred to as the appellants, and the defendants became the appellees. Thus the case was still known at Tatum v. Laird.
When Tatum and his fellow appellants won in the Court of Appeals, Laird and his fellow appellees decided to seek review by the Supreme Court. They successfully petitioned for a writ of certiorari from the Supreme Court directing the Court of Appeals to send up the record of the case (trial court transcript, motion papers, and assorted legal documents) to the Supreme Court.
At this point the name of the case changed to Laird v. Tatum: Laird and associates were now the petitioners, and Tatum and his fellows were the respondents. Several church groups and a group of former intelligence agents obtained permission to file briefs (written arguments) on behalf of the respondents to help persuade the Court to arrive at a decision favorable to them. Each of these groups was termed an amicus curiae, or “friend of the court.”
In criminal cases, switches in the titles of cases are common, because most reach the appellate courts as a result of an appeal by a convicted defendant. Thus, the case ofArizona v. Miranda later became Miranda v. Arizona.
These can be extensive or short, depending on the depth of analysis required and the demands of the instructor. A comprehensive brief includes the following elements:
- Title and Citation
- Facts of the Case
- Decisions (Holdings)
- Reasoning (Rationale)
- Separate Opinions
1. Title and Citation
The title of the case shows who is opposing whom. The name of the person who initiated legal action in that particular court will always appear first. Since the losers often appeal to a higher court, this can get confusing. The first section of this guide shows you how to identify the players without a scorecard.
The citation tells how to locate the reporter of the case in the appropriate case reporter. If you know only the title of the case, the citation to it can be found using the case digest covering that court, through Google Scholar, or one of the electronic legal databases subscribed to by the library (Westlaw or LEXIS-NEXIS).
2. Facts of the Case
A good student brief will include a summary of the pertinent facts and legal points raised in the case. It will show the nature of the litigation, who sued whom, based on what occurrences, and what happened in the lower court/s.
The facts are often conveniently summarized at the beginning of the court’s published opinion. Sometimes, the best statement of the facts will be found in a dissenting or concurring opinion. WARNING! Judges are not above being selective about the facts they emphasize. This can become of crucial importance when you try to reconcile apparently inconsistent cases, because the way a judge chooses to characterize and “edit” the facts often determines which way he or she will vote and, as a result, which rule of law will be applied.
The fact section of a good student brief will include the following elements:
- A one-sentence description of the nature of the case, to serve as an introduction.
- A statement of the relevant law, with quotation marks or underlining to draw attention to the key words or phrases that are in dispute.
- A summary of the complaint (in a civil case) or the indictment (in a criminal case) plus relevant evidence and arguments presented in court to explain who did what to whom and why the case was thought to involve illegal conduct.
- A summary of actions taken by the lower courts, for example: defendant convicted; conviction upheld by appellate court; Supreme Court granted certiorari.
The issues or questions of law raised by the facts peculiar to the case are often stated explicitly by the court. Again, watch out for the occasional judge who misstates the questions raised by the lower court’s opinion, by the parties on appeal, or by the nature of the case.
Constitutional cases frequently involve multiple issues, some of interest only to litigants and lawyers, others of broader and enduring significant to citizens and officials alike. Be sure you have included both.
With rare exceptions, the outcome of an appellate case will turn on the meaning of a provision of the Constitution, a law, or a judicial doctrine. Capture that provision or debated point in your restatement of the issue. Set it off with quotation marks or underline it. This will help you later when you try to reconcile conflicting cases.
When noting issues, it may help to phrase them in terms of questions that can be answered with a precise “yes” or “no.”
For example, the famous case of Brown v. Board of Education involved the applicability of a provision of the 14th Amendment to the U.S. Constitution to a school board’s practice of excluding black pupils from certain public schools solely due to their race. The precise wording of the Amendment is “no state shall... deny to any person within its jurisdiction the equal protection of the laws.” The careful student would begin by identifying the key phrases from this amendment and deciding which of them were really at issue in this case. Assuming that there was no doubt that the school board was acting as the State, and that Miss Brown was a “person within its jurisdiction,” then the key issue would be “Does the exclusion of students from a public school solely on the basis of race amount to a denial of ‘equal protection of the laws’?”
Of course the implications of this case went far beyond the situation of Miss Brown, the Topeka School Board, or even public education. They cast doubt on the continuing validity of prior decisions in which the Supreme Court had held that restriction of Black Americans to “separate but equal” facilities did not deny them “equal protection of the laws.” Make note of any such implications in your statement of issues at the end of the brief, in which you set out your observations and comments.
NOTE: Many students misread cases because they fail to see the issues in terms of the applicable law or judicial doctrine than for any other reason. There is no substitute for taking the time to frame carefully the questions, so that they actually incorporate the key provisions of the law in terms capable of being given precise answers. It may also help to label the issues, for example, “procedural issues,” “substantive issues,” “legal issue,” and so on. Remember too, that the same case may be used by instructors for different purposes, so part of the challenge of briefing is to identify those issues in the case which are of central importance to the topic under discussion in class.
The decision, or holding, is the court’s answer to a question presented to it for answer by the parties involved or raised by the court itself in its own reading of the case. There are narrow procedural holdings, for example, “case reversed and remanded,” broader substantive holdings which deal with the interpretation of the Constitution, statutes, or judicial doctrines. If the issues have been drawn precisely, the holdings can be stated in simple “yes” or “no” answers or in short statements taken from the language used by the court.
The reasoning, or rationale, is the chain of argument which led the judges in either a majority or a dissenting opinion to rule as they did. This should be outlined point by point in numbered sentences or paragraphs.
6. Separate Opinions
Both concurring and dissenting opinions should be subjected to the same depth of analysis to bring out the major points of agreement or disagreement with the majority opinion. Make a note of how each justice voted and how they lined up. Knowledge of how judges of a particular court normally line up on particular issues is essential to anticipating how they will vote in future cases involving similar issues.
Here the student should evaluate the significance of the case, its relationship to other cases, its place in history, and what is shows about the Court, its members, its decision-making processes, or the impact it has on litigants, government, or society. It is here that the implicit assumptions and values of the Justices should be probed, the “rightness” of the decision debated, and the logic of the reasoning considered.
A cautionary note
Don’t brief the case until you have read it through at least once. Don’t think that because you have found the judge’s best purple prose you have necessarily extracted the essence of the decision. Look for unarticulated premises, logical fallacies, manipulation of the factual record, or distortions of precedent. Then ask, How does this case relate to other cases in the same general area of law? What does it show about judicial policymaking? Does the result violate your sense of justice or fairness? How might it have been better decided?
Further information and sample briefs
Many of the guides to legal research and writing include a discussion of student briefs, appellate briefs and other types of legal memoranda used by practicing attorneys. Examples and more information can be found in the library books listed below:
- Bahrych, L. (2009). Legal writing in a nutshell (4th ed., Nutshell series). St. Paul, Minn.: West.[Stacks KF 250 .S68 2009
- Clary, B., & Lysaght, Pamela. (2006). Successful legal analysis and writing: The fundamentals (2nd ed.). St. Paul, Minn.: Thomson/West. [Ref. Law 250 .C53 2006]
- Edwards, L. (2007). Legal writing and analysis (2nd ed.). New York, NY: Aspen: Wolters Kluwer Law & Business. [Ref. Law and Reserve Room KF 250 .E378 2007]
- Garner, B. (2004). The winning brief: 100 tips for persuasive briefing in trial and appellate courts (2nd ed.). New York: Oxford University Press. [Ref. Law KF251 .G37 2004]
- Hames, J., & Ekern, Yvonne. (2015). Legal research, analysis, and writing (5th ed.).[Reserve Room KF 240 .H36 2015; For 3rd ed. (2009) Stacks KF 240. H36 2009]
- Putman, W. (2003). Legal analysis and writing (2nd ed., The West Legal Studies series). Clifton Park, NY: Thomson/Delmar Learning. [Ref. Law KF 250 .P87 2003]
- Ray, M., & Ramsfield, Jill J. (2005). Legal writing--getting it right and getting it written (4th ed., American casebook series). St. Paul, MN: Thomson/West. [Ref. Law KF 250 .R39 2005]
- Shapo, H., Walter, Marilyn R., & Fajans, Elizabeth. (2003). Writing and analysis in the law (Rev. 4th ed.). New York: Foundation Press. [Stacks KF 250 .S5 2003]
- Slocum, R. (2006). Legal reasoning, writing, and persuasive argument. Newark, NJ: LexisNexis Matthew Bender. [Stacks KF 250 .S568 2006]
- Yelin, A., & Samborn, Hope Viner. (2015). The legal research and writing handbook: A basic approach for paralegals (7th ed., Aspen college series). [Reserve Room KF 240 .Y45 2015]
Created by C. Pyle, 1982. Revised by K. Killoran, 1999 and by M. Richards, 2017.