Teaching Case Briefing as a Sustainable Skill. By Mary Dunnewold. Mary Dunnewold is a Legal Writing Instructor at. Hamline University School ofLaw in St Paul ...
Cite as: Mary Dunnewold, Rethinking Case Briefing: Teaching Case Briefing as a Sustainable Skill, 19 Perspectives: Teaching Legai Res" & Writing 11 (2010).
Rethinking Case Briefing: Teaching Case Briefing as a Sustainable Skill By Mary Dunnewold Mary Dunnewold is a Legal Writing Instructor at Hamline University School of Law in St Paul, Minn.
Virtually all new law students learn to brief cases, usually during the first week oflaw school, sometimes even earlier.! In fact, many schools include materials about case briefing in their orientation materials. Case briefing is closely tied to the prevailing instructional method in law school classrooms, the case method, and is viewed as a skill fundamental to success in law school classes. 2 Although case briefing is taught in law school as a fundamental skill, it is often not taught as a skill that will continue to be useful to students as they transition from student status to practitioner status. 3 Rather, case briefing is usually taught as a class preparation skill. Accordingly, once students have learned how to read a case and understand what to expect during a classroom Socratic exchange, most stop briefing cases, or do so only through marginal notation in their casebooks. vVhile case briefing is an important class preparation tool, especially in the first year of law school, it can also be a powerful tool beyond
1 For purposes of this article. I am referring to a standard ~J\"" sc:,ool case briet: whkh is an organized system of notes about a reported legal opinion that helps the reader/writer later reconstruct the essential components of the opinion. A standard case brief usually includes identifying information, procedura: posture, facts, issue, rule/holding, and reasoning. 2 See Thomas A. Woxland, Wl1y Can't Johnny Research? Or It All Started wirh Christopher Columbus Langddl, 81 Law Libr.), 451, 455 (1989). 3 A tew legal writing texts have offered an expanded view of Ca5e briefing. See Helene S. Shapo et aI., Writing anti Analysis in the Law 54-55 (5th ed, 2008); Charles R Calleros, Legal Merhod and Writing 99-100 (5th cd. 2006). These texts both go beyond describing case hriefing strictly as a class preparation exercise aod discuss how the same process applies in law practice.
the classroom. In particular, students should be taught that the process of reading a case and taking notes on it, the essence of case briefing, should encompass more than the analysis of that single case. VVhen we go beyond the limited law school class-prep case brief, case briefing involves several legal analysis "subskills" that contribute to actual legal problem solving, including applied case analysis, rule synthesis, and advocacy preparation, To incorporate these subskills and to be useful beyond the classroom, however, the traditionally described case brief format must be expanded so that the case brief becomes a working document that helps the writer think about solving a client's problem and later produce a written product that communicates possible solutions. This view of case briefing, which produces a product I will call the "case brief-plus;' can be taught in any law school classroom in which the discussion goes beyond the casebook and addresses how a case might be used in practice. But most students initially encounter the cognitive task of "thinking forward"4 from basic analysis of a reported case to problem solving for a client in the context oflega! writing assignments. The legal writing classroom thus presents an appropriate venue for introducing this broader perspective on case briefing. The legal writing classroom is also an appropriate venue for teaching an expanded vision of case briefing because as students begin work OIl their first legal writing assignment, they notice that the briefing method they have employed in their doctrinal courses, where the cases are collected into
4 Patrick M, McFadden, A Students' Guide to Legal An"lys;" Thinking Like Il Lawyer 14-15 (2001).
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casebooks, does not quite work for cases relevant to their legal writing assignments. In the legal writing context, the cases are often not edited for student use, as they are in casebooks. A typical case contains "added value" material like headnotes and publishers' synopses, and also commonly presents more than one legal issue. In fact, only a small part of a published case may be relevant to the reader's purpose. Students may not know what to do with this extra material, how it fits into a case brief, or whether to brief it at all. Because students notice these differences and may struggle to determine how to work with an unedited case, they are primed to learn a different approach to case briefing in the legal writing classroom.
The Benefits of Teaching an Expanded Vision of Case Briefing Traditional case briefing teaches fundamental case analysis skills in the most basic sense: understanding the parts of a case, identifYing the rule the case gives rise to, and identifying the reasoning that supports the rule. But if taught as a broader practical skill that is useful beyond the classroom, case briefing can help students consciously identify important subcomponents oflegal analysis that contribute to the larger task of legal problem solving. Further, this expanded view of case briefing can help students better understand how the subcomponents oflegal analysis apply in practice. This approach can also help students understand that the cognitive task of case analysis does not stand alone, but contributes to a larger web of legal analysis and problem solving. Thus, fostering this broader perspective on case briefing will help students better understand their future role as lawyers.
Foundational Principles Underlying the Case Brief-Plus This new context and purpose for case briefing moving toward the solution of an actual client's problem-requires students to understand the task of case briefing in a new way. They are no longer merely searching for a rule that they know will be there somewhere, since the case has been chosen and edited for their use. Instead, they are
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venturing into unknown, unedited territory with a specific goal in mind: to gather material that will contribute to a specific end-producing a product in the context of a client's case. In the legal ,.,,:iting classroom, we can model how an experienced legal reader both reads a case and turns it into a product useful in the problem solving process. Three governing ideas are useful benchmarks in helping students understand how to approach a case brief in an expanded way. 1. Context. To write case briefs useful outside the classroom, students must learn to identify as early as possible the context in which they are reading a case so they can pare an unedited case down to the portions relevant to their problem. This principle follows from the idea that practitioners read cases intending to apply them to a specific set of facts, not in a vacuum. Consequently, early in the process, a case brief writer must identify the problem to be solved for the client so he 1) can focus on just the relevant sections of a case, and 2) can keep the legal analysis and writing process organized, particularly if the case involves more than one issue. Thus, the legal issue raised by a client's situation must be defined as specifically as possible before the briefing process begins so that the reader can be a "purposeful reader"5 who briefs only the relevant section of the case. Accordingly, students need to be taught to read cases in context. Provided they have defined their issue upfront, their first task when reading a case in context is to skim the text to assess the entire content. After skimming the case, they can then identifY the section of the case that appears useful to them, focus their attention on that section of the case, and disregard any remaining material, at least for the moment. This "honing process" is a skill that experienced legal readers employ, and it is essential to efficient research, briefing). case analysis, and note taking
5 See Laurel Currie Oates & Anne Enquist, The Legal ~1/riting Handbook: Analysis, Research, and Writing 37-45 (4th ed. 2006). Tnis ten includes an exceUent section explaining lo students how "good legal readers' approach the reading of a Jegal authority.
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Consider, for instance, a reader with a 3D-page
of organized notes that assists the writer in later
case in hand in which only two pages are relevant to the issue presented. As expert readers, we (the professors) know the readers need not take notes on (or "brief") the entire case. But novice law students don't know this because they are accustomed to reading edited cases in which all material is relevant. Thus, they will understand practical case briefing more quickly if the honing process is explicitly taught.
recalling information for a particular purpose. But a case brief-plus--clesigned to assist ",ith problem solving rather than class preparation has a more expansive purpose than simple case recall. In the case brief-plus context, the notes should support the process of legal problem solving through specific, focused legal analysis.
As a practical matter, then, the case brief-plus should include at the beginning a notation about the real-life issue presented to the reader and how the case relates to that issuef For readers less experienced with legal analysis (e.g., students), defining the issue before reading the case and keeping track of the relationship between the case and the client's situation is critical to efficient reading and legal analysis. Inexperienced readers can easily lose sight of why they are reading the case. But students can be taught that even an experienced reader working with more than one legal issue needs to keep track of which issue a particular case speaks to; thus, a notation about the issue to be addressed and the key legal phrase to be defined through the case, placed at the beginning of a case brief, will help keep the research and writing process organized. 2. Specific analysis. Second, students need to learn how to think about and document more than just the rule and reasoning from the case. In both the class preparation context and the legal writing context, a case brief functions as a system
6 Many studt-'11ts find the concept of a "'phrase that pays" useful in keeping them on track with the concept they should focus on in a case. See Mary Beth Beazley, A Practical Guide to Appellate Advocacy 50-52 (2d cd. 2006). The "phrase that pays" is the specific legal idea that the reader is trying to define by reading and briefing the case. around which the client's legal issue is formu1ated. For instance, in a negligent infliction of emotional distress case 1 the party seeking recovery must be "closely related" to the party whose injury, by virtue ofheing witnessed by the .!irst party, caused the distress. Thus, "dose relationship" would be the phrase that pays that the reader would be attempting to define by reading cast: law. While negligent infliction of emotional distress involves sever..ll other elements, the reader would know that she could focus her attention primarily On the section of the case addressing "close relationship.;'
Because a specific analysis focus is critical to efficient reading of case law, students must learn to ask themselves "what am I trying to get out of this case?" In particular, once a contextual reading has identified the pertinent sections of a case and focused the reader on a particular legal idea, the reader must focus on how the material within that section, which focuses on the particular legal idea, informs the legal analysis of the client's problem. A practitioner reads cases specifically to discern the synthesized rule to be applied to the client's problem, the analogical comparisons to be made between the facts of the reported cases and the facts presented by the client, and the policy that informs courts' decisions in this area of the law. Notes about these three types of information-rule synthesis, possible analogies, and relevant policy-should be recorded in the case brief so that the reader can easily import the ideas into a later written analysis. 'While similar information is recorded in a classroom case brief-that is, the reader is looking for the rule and policy that informs this area of the law-in this context, more is required. The "rule" recorded in a case brief-plus should not stop at the basic "rule of the case:' Rather, the reader needs to be both thinking about and annotating how the rule contributes to a synthesis of a larger rule and whether the case allows for a narrower or broader rule statement that may suit the persuasive purpose of the reader or her opponent. Further, while facts are recorded in a traditional case brief, a case brief-plus should include both facts and notes about possible analogical comparisons to be made to the client's case. While a traditional case brief may include comments about the general policy implications of a case, a case brief-plus should include both notations about how the case documents existing policy in that area of
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the law and notations detailing possible policy arguments to be made in the client's case.
records the lawyer's cognitive process as he applies the reported case to the facts of a new case.
3. Documentation. Third, to be useful to a practitioner, the case brief must document the origin of information so the reader/writer, who will probably later use the information in a written product like an office memorandum or court submission, can accurately cite it. Lawyers have a duty to be truthful and honest/ and plagiarism, even negligent plagiarism, can violate both these rules and law school honor codes. When performing e.xtensive legal research and reading
Second, rule synthesis is the process of taking rule infonnation from a collection of related cases and developing a coherent rule system that takes aU relevant cases into account. Accordingly, a practitioner reading a case looks not only for the rule of that particular case, but analyzes how the case fits with the previous case (and the one preceding that) and aims to construct an overarching system of rules that governs a particular area of the law. The practitioner will note exceptions, new developments, and expansion of the existing synthesized rule. vv'hile students writing traditional class-oriented case briefs also read to discover the development of the law, they are not doing so with the intent of actually constructing a rule that will be applied to a set of facts and used as the basis for arguments and legal conclusions. But a case brief-plus should track the development and synthesis of the law with the intention of solving the client's problem.
volumes of case law, a reader/writer can easily fail to properly document the source of information. A useful and efficient case brief documents location information so that the writer can later properly cite the information. Thus, students must learn that a case brief-plus should include meticulous notation about where information comes from within a case and that indicates quoted (as opposed to paraphrased) language.
Third, advocacy skills playa vital role in legal
Identifying Specific Skills Practiced in Case Briefing These broad principles that students must internalize about case briefing to effectively brief cases for the nonclassroom context tie directly into three specific skills that can be explicitly articulated during the case briefing process and modeled for students in the classroom: applied case analysis, rule synthesis, and advocacy preparation. Helping that they should practice these students specific skills as they brief cases will help them both develop competency with fundamental lawyering skills more quickly and better understand how to use the skills in future contexts. First, applied case analysis can be defined as the application of case law to a specific set of facts. A practicing lawyer must integrate legal and factual knowledge to successfully solve problems, not simply discern the rule of the case. A broader case briefing approach supports and
problem solving. A practitioner reads a case through the lens of the client's situation, not in isolation, and mindful of the fact that she may ultimately need to use the case in her role as an advocate. Accordingly, the practitioner not only s}l1thesizes the rule oflaw and thinks about how the rule can be interpreted in a persuasive context (broadly? narrowly? as an exception?), she also thinks about the analogical arguments that can be constructed around the facts of the case. Thus, the practitioner evaluates not only how the court applies the rule to the facts of the reported case, but actively analyzes whether the facts of her case are sufficiently comparable to justify the same result. Finally, the practitioner notices any policy discussion present in the case and considers how the articulated policies can support an outcome in her case. A case brief-plus, then, should record the reader/writer's thoughts about persuasive rule interpretation, persuasive fact comparisons, and policy application as part of an advocacy plan to be (potentially) executed later in the problem-solving process.
7 Model Rules of Prof'! Conduct R. 3.3.
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Example Case Brief-Plus
Below is an example of what this expanded
\Alhat, then, would a case brief-plus look like in
system of notes might look like when it records not only information about the reported case, but also information about the interplay between that case and the client's situation. The example
comparison to a "normal" case brief! Because a case brief is a working system of notes that assists the legal thinker in later reconstructing the case, the form can, of course, be varied to suit the needs of the writer/researcher. In fact, an eXipel'lellce:o practitioner may accomplish the same kind of thought recording by simply writing in the margins of a printed case copy or using a commercial tool like CaseMap on LexisNexis®. But students benefit from learning a formal organizational system because, first, teaching an organizational system to keep track of analysis models for students how expert legal thinkers material, even though the e.xpert may have moved beyond actually producing the document called a case brief. Second, because the system makes explicit several skills the legal thinker must exercise when using a case in context, students can more readily understand how those skills fit together. Third, the system helps novice readers actually organize their thoughts as they move from simply reading a case to using a case in the context of problem solving.
is placed in the following factual context: You work in a small personal injury firm, and your client was injured in a recreational dog-sledding crash. Your client was a paying customer who took the ride at a winter festival. The dogs tipped the sled and your client was thrown into a tree and sustained severe injuries. You are considering bringing a strict liability action under the Minnesota dog liability statute. You've read the statute and a few early cases, and you know that the statute imposes strict liability when a dog "attacks or injures" a person. Now you have the case Lewe/lill v. Huber in front of you. You need to know if the statute covers injuries resulting from a dog-sledding accident so you can evaluate whether bringing a suit under the statute is a reasonable option to offer your client. If the statute applies, it will be an easier avenue to recovery than a negli:gerlce claim would be.
Case Brief-Plus Client's Issue: Does the Minnesota dog liability statute apply to injuries that occurred when passengers fell off a recreational dog sled?
Phrase That Pays: "attacks or injures" (from language of the statute). Case interprets the statutory language.
Citation (identifying information): Lewe/lin v. Huber, 465 N.W.2d 62 (Minn. 1991)
Mandatory authority. Updated.
Procedural Posture: District court held that statute applied; Court of Appeals affirmed in part and reversed in part. Dog owners appealed. Supreme Court reverses and remands.
There is a dissent that may provide the basis for some arguments.
Facts: Sixteen-year-old dog sitter was driving car with dog in back seat. Dog attempted to climb over seat. Driver was distracted and ran off the road. Car struck child at the side of the road. Child was killed. Parent sued. 465 N.W.2d at 63.
Court remands so injured party can bring common law negligence action. Comparison: Unlike client's case because dog not physically "linked" to injured party, as in our case. Like client's case because no attack and no direct contact between dog and injured person. Also, injuries arguably resulted from actions of sled driver rather than actions of dogs, just as injl1ry in case resulted from actions of driver.
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Case Issue: Under the statute, does any conduct of a dog that ultimately results in injury trigger strict liability? Holding: No. Dog's conduct of distracting a driver, whose car goes out of control as a result and kills a pedestrian by the road, does not result in strict liability under the statute even though there dearly was an "injury:' [d. at 66.
Predicted Outcome for Our Case: Probably no recovery, as in Lewel/in, because no direct and immediate causation.
Case RuJe: A dog only "injures" a person for purposes of this strict liability statute if there is direct and immediate causation between the dog's actions and the injuries, without intermediate linkages.
Synthesis of Rille: Statute imposes strict liability. For strict liability to apply, need not act viciously and there need not be a direct "attack:' But the conditions surrounding the "injury" that would trigger statutory strict liability are not clearly determined. In this case, the court specifically declines to decide whether there must always be direct contact between the dog and the injured person for the statute to apply. But it does decide that causation must be direct and immediate for this heightened liability to apply. An "attenuated" chain of causation is enough under common law negligence, but not here. Comments on Persuasive FormuJation of Rule: Easiest to interpret the rule in this case against our client and construe the rule narrowly. Narrowly construed rule would emphasize that cause in fact is not enough; there must be direct, immediate causation with no links in the chain of causation. Could possibly construct broader, more favorable rule around idea that court has not said there must be direct contact between dog and injured party, only that there must be direct causation.
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Reasoning: Because the statute used both "attacks" and "injures," "injure" has to mean affirmative but non-attacking behavior. There is no "attenuated chain of causation" when a dog attacks a person. rd. at 64. Also, there is no attenuated chain of causation when a dog jumps on or runs into someone and causes injury. rd. So usually there's no problem determining proximate causation. rd. at 65. But given these terms, the phrase "attacks or injures" "contemplates action by a dog that directly and immediately produces injury to the person.... " rd. Thus, while the court declines to decide if direct contact between the dog and the person is required, it does require direct and immediate cause, "without intermediate linkage:' Id.
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