Here’s why case briefing is a time drain:
In the vast majority of law school courses, 100% of your grade will be determined by your performance on the final exam. The final exam will almost never test you on case law. And case briefs aren’t handed in for a grade.
So why brief cases? In short: to survive the Socratic Method. Having a summary of the case at the ready means you’re better positioned to defend yourself against Socratic attack. Not being able to answer your professor’s questions in class likely won’t affect your grades, but it certainly might bruise your ego and damage your street cred with peers and professors alike. In addition, you can take information from your case briefs and include it in your outlines later in the semester.
So how do you write a case brief? One that hits all the right notes and gets you through class? It’s all about approaching the casebook excerpt the right way and knowing what to include. We’ve created this guide to help you do exactly that.
In this guide, you’ll learn:
- what a case brief is, and what it’s not,
- how to approach casebook readings so that you’re ready to create a brief, and
- how to write your own case brief, including how to format the brief and what kinds of information you should include.
What a Case Brief Is, and What It’s Not
Put simply, a case brief is a summary of a legal opinion. The term case brief is often confusing to laypeople because the ordinary meaning of the word brief refers to a written argument submitted to a court (such as an “appellate brief”). However, a case brief is neither an argument nor submitted to a court. It is a study tool used by law students to prepare for class and final exams. A case brief might also be referred to as a “case summary,” which better encapsulates the meaning and avoids the ambiguity of the word “brief.”
Pretreating Your Casebook Readings
Okay, you’ve decided you want to write a case brief. But when should you start? After you’ve read the casebook excerpt, right? Wrong. You should be “pretreating” the casebook excerpt as you read the opinion. What do we mean by “pretreating”? We mean highlighting, underlining, and annotating in the margins all the information that will later go into your case brief. For example, if the court starts talking about the facts of the case, you should mark up your casebook by highlighting the facts or writing “facts” in the margin. That way, when you go to write the facts section of your case brief, you don’t need to go fishing.
Writing Your Case Brief
Let’s start with a template that you can use to get started. Go ahead and copy paste these headings into your word processor of choice, and bam, you’ve got yourself a case brief template:
RULE OF LAW:
HOLDING AND REASONING:
A case brief can be formatted in many different ways. You should choose the format that works best for you—and your professor. For example, if a professor routinely asks students to recite the procedural history, then you might want to include a separate section for that information.
Now, you’ve got the template, but you’re going to need to put some flesh on these bones.
Nearly every case brief should include, at a minimum, the following information:
- the facts of the case,
- the legal issue,
- the legal principle applied in the case,
- the holding and reasoning of the majority, and
- a summary of any concurrences and dissents.
Let’s discuss each section in more detail. We’ll use Quimbee’s case brief format for ease of discussion. But other formats exist and are perfectly acceptable.
Many legal opinions clearly outline the facts of the case, and when briefing the case, you might be tempted to copy the court’s rendition of the facts verbatim into your case brief. When writing a case brief, never parrot the court’s language word-for-word; instead, you should always paraphrase the court’s language into plain English. Be mindful of the purpose of a case brief, which is to gain a clearer understanding of the case.
The facts section should include the following information (if obtainable in the casebook excerpt):
- the cause of action (g., a suit for replevin, breach of contract, and so forth),
- an identification of the plaintiff and the defendant in the case by party name,
- the operative facts of the case that led to the dispute between the parties,
- the trial court/jury’s holding, and
- the appellate court’s holding.
Always identify the plaintiff and the defendant in the case. Never simply refer to the parties as “plaintiff” and “defendant” without indicating which party is the plaintiff and which is the defendant. Sometimes a court will refer to parties as appellant/appellee or petitioner/respondent. Make sure you figure out who’s the plaintiff and who’s the defendant. A good rule of thumb: the plaintiff is whoever initiated the lawsuit.
FACTS: In 1962, Congress amended the Federal Food, Drug, and Cosmetic Act to require prescription drug manufacturers to print the common or established name of their drugs in large letters along with the proprietary or trade name of the drug on all packaging. Abbott Laboratories (plaintiff) and thirty-seven other prescription drug manufacturers brought suit against Gardner (defendant), the federal commissioner responsible for enforcing the new act, alleging that the commissioner exceeded his authority in making such a regulation. Abbott successfully sought injunctive and declaratory relief in the district court, but the court of appeals reversed. The United States Supreme Court granted certiorari.
Note that the example begins with an explanation of the background and operative facts that set the stage for the dispute. Then, the example introduces the parties, identifies the plaintiff and defendant by party name, and explains the cause of action. The example correctly concludes with the procedural history.
In the facts section, you described the cause of action, the factual circumstances leading up to that cause of action, and the procedural history of the case. The issue section is the next logical step.
You should identify the legal issue being emphasized in the casebook. For example, if a case in a contracts casebook appears in a chapter on promissory estoppel, then your issue section should also relate to promissory estoppel. Moreover, your issue must not be fact specific. This means that the issue section should not contain the factual details of the case.
The issue should be a legal question, not a procedural one. Hence, the following rendering of the issue section is incorrect: “Whether the trial court erred in granting summary judgment for the plaintiff.” Note that the foregoing issue does not bear on anything substantive, nor does it bear on the legal question at issue in the case.
Finally, your issue section should be phrased as a question that facilitates a “yes” or “no” answer. Never create an issue that invites an ambiguous answer.
May a state limit the appointment of members of its police force to United States citizens?
Does a state law forbidding the teaching of any subject in any language other than English in private, parochial, or public schools within a state violate the Due Process Clause of the Fourteenth Amendment?
Rule of Law
The rule of law is the legal principle or black letter law upon which the court rested its decision in the case. A single legal opinion may contain numerous rules of law or legal principles that impacted the court’s final decision. However, for case briefing purposes, your task is to determine the rule of law germane to the discussion of the case in the casebook and to formulate that rule into one, easy-to-digest sentence.
Pro tip: Look at the chapter and section headings under which the case appears in your casebook; they’ll tell you the topic to which your rule of law should relate or, if there are multiple rules of law, which one is important. For example, if a case appears in the “Promissory Estoppel” section of your contracts casebook, then the rule of law should be related to promissory estoppel (as opposed to some other topic).
The rule of law should never be fact-specific. It should answer the dispositive legal question being posed in the case. Put differently, the rule of law should be the legal issue in the case phrased as a statement. For example, let’s say the issue in the case is: “May a party who repeatedly waives a provision in a contract that is for his own benefit later seek to enforce that provision?” To obtain the rule of law, simply rephrase the question as a statement: “A party that repeatedly, albeit passively, waives a provision in a contract that is for his own benefit, may not later seek to enforce that provision.”
A federal law may preempt a state or local law even if the laws are not mutually exclusive if the state law is deemed to impede the achievement of a federal objective.
If the rule of law relates to a particular statute or provision, you should incorporate that into your rule. For example, if the rule relates to the Fourteenth Amendment’s Equal Protection Clause, you should include that in the rule:
“Under the Equal Protection Clause of the Fourteenth Amendment, Congress may prohibit discrimination only by state actors, not private individuals.”
Holding and Reasoning
Now that you have identified the facts and salient legal issues in the case, you are ready to explain how the court decided the case. You should start your holding and reasoning section by answering the question posed by the issue section with a simple “Yes” or “No.”
The holding and reasoning section should be structured in a manner consistent with the CREAC method. (Reminder: that’s Conclusion, Rule, Explanation, Application, and Conclusion.) Legal frameworks, tests, and principles should be clearly articulated and applied to the facts of the case. You should always explain the rationale behind the legal principles being applied in the case. In fact, perhaps the most common mistake case briefers make in the holding and reasoning section is to omit explanation of the rule (i.e., the “E” in CREAC). The conclusion and procedural disposition of the case should be stated at the end.
To recap, the holding and reasoning section should contain the following information (if obtainable in the casebook):
- A “yes” or “no” answer to the question posed by the issue section,
- The relevant legal principles and rules used to decide the case,
- The application of those principles to the facts of the case,
- The court’s conclusion,
- The procedural disposition (g., reversed and remanded, affirmed, etc.), and
- The names of any seminal cases or important statutes used by the majority in its opinion.
HOLDING AND REASONING: (Winter, J.) No. A district court generally has discretion to call witnesses on its own as necessary. However, a district court may not call a witness on its own where the prosecution’s case would be insufficient as a matter of law without the court’s witness. A court must be impartial and may not insert itself into the role of the prosecution. Doing so would violate a defendant’s right to due process. In this case, the prosecution’s case was insufficient without the testimony of the Cassitys. As a result, it was improper for the district court to call them as witnesses. The court may not, on its own, overcome a defendant’s presumption of innocence. Furthermore, because the district court did not give an explanation to the jury about the court calling witnesses, it is likely that the jury inappropriately gave more consideration to the Cassitys testimony because they were called by the court itself. The district court’s ruling is reversed, and the case is remanded for a new trial.
Concurrences and Dissents
All concurrences and dissents in the casebook should be covered in your case brief. Concurrences and dissents in casebook opinions are often short in length and so should be your summary of that material. Be sure to answer specifically the question of why a judge decided to write separately.
CONCURRENCE: (Widener, J.) The district court should not be reversed based on due process, but rather on criminal procedure. The burden of production of evidence is not on the defendant or the court; it is on the prosecution.
DISSENT: (Russell, J.) The trial judge’s calling of the Cassitys was proper. The majority’s reasoning makes its holding significantly broader than its presumed intention. If a district court is not permitted to step in as the role of prosecutor, a district court would never be permitted to call its own witness. Moreover, the fact that the Cassitys’ testimony was vital to the case is all the more reason that the trial judge properly called the witnesses. A court does not become impartial by simply calling a witness for one side or the other. Finally, if there was any error in failing to instruct the jury on why the court called the Cassitys, such error was harmless.
Note, too, that sometimes a judge or justice will concur in part and dissent in part. Make sure to note this in your brief, for example, by using the header “CONCURRENCE/DISSENT.”
A brief should be exactly that: brief. It’s easy to get carried away, but you need to exercise restraint in deciding what to include in your brief. For example, you should include only the operative facts of the case. And when writing your holding and reasoning section, focus on fleshing out CREAC; you can typically exclude dicta or those portions of the opinion that don’t bear on the topic being emphasized by your casebook. Our advice: Your brief shouldn’t exceed 600 words, excluding concurrences and dissents.
A case brief is a summary of a legal opinion. It’s intended to prepare you in the event that you’re called on in class. Case briefs can also be leveraged later on when you go to write your outlines.
While you’re reading the casebook excerpt, make sure to pretreat the excerpt by identifying the parts that you plan to use later in your case brief, such as by highlighting or annotating in the margins.
Once you’ve pretreated the casebook excerpt, you’re ready to write the brief.
There are many acceptable formats for a case brief. Every brief should include, at a minimum, the facts of the case, the legal issue, the legal principle applied in the case, the holding and reasoning of the majority, and a summary of any concurrences and dissents. Your brief should not exceed 600 words, excluding concurrences and dissents.
Next steps: as a test run, pick a case from your casebook to brief. Then, find Quimbee’s brief for the same case and compare your brief to ours. That way, you can see if you picked the correct rule of law and included all the proper information.