Most law students brief cases in one way or another, but the technique varies somewhat. Some like to brief cases in a traditional way on paper or the computer, using a template and filling it in for each case. Others like to do “highlight briefing” in the casebook, using a different color for each part of the brief. Whatever method a student chooses, it should be the one best for that individual, and the format should not keep a student from marking down what’s most important.
Most briefs have the same basic elements:
- Title & Citation
- Procedural Posture
- Facts
- Issue
- Holding
In traditional briefing, each of these elements is listed and filled in for each case. In highlight briefing, a color is used to represent each element. However, judges don’t always state the issue or the holding in straightforward language, so it can be helpful additionally to write these down, in the margin or elsewhere. Also, whatever the briefing style, it is essential to take notes as well, because briefs are not the most effective way to prepare for exams.
How to Write Case Citations, Find Procedural Posture, and State the Facts
A “case citation” is what tells a reader where to find the case. It is used in footnotes when referring to cases in a paper, or within the text itself when referencing a case in a brief or a memo. This is addressed in legal writing courses, but basically a citation follows the title of the case and includes the volume number, the reporter (book where cases are indexed), and page number, with the year of the case in parentheses. A professor won’t ask for the citation of the case, but it’s a good idea to pay attention to the year the case was decided, as well as where it falls chronologically related to other cases on the same topic.
The procedural posture is simply what happened before the case came to the court at hand. Most cases in law school are appellate cases, so procedural posture will be a few quick notes such as “District Court upheld law, Court of Appeals reversed, Supreme Court reversed Court of Appeals.” Professors often do ask what happened before the case came up on appeal, but information about the arguments in the lower court is normally not needed. Similarly, the facts of the case should be briefed in a concise format, concentrating on which facts were actually important to the resolution of the case.
Finding the Issue and the Holding of a Case
The issue and holding are what are most important in a case, because this is where the legal rules and principles, as well as most of the discussion, live. There can be multiple issues, and multiple holdings, in a case, so students should not strain their brains to narrow it down to one issue. At the same time, there may be questions addressed on the way to the main issue that are really just a part of that issue. Most students get the hold of this after a few class sessions.
If the issue is the big question in the case, the holding is the big answer. The holding is never “reversed.” It is the law applied to the facts of the case. Students should be careful not to generalize, but also not to be so specific that the holding doesn’t mean anything. For example, the holding of Brown v. Board of Education was that segregated public schools violated the Equal Protection Clause. It was not that segregation is unconstitutional (too broad), or that denying this particular student a seat was illegal (too narrow). This, like all parts of law school, gets better with practice, and mistakes are to be expected at first.
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